J. A. O. ONAMUSI (PLAINTIFF)
ALHAJI USMAN IBRAHIM LAWAL TUDUN WADA (DEFENDANTS)
(1971) All N.L.R. 361
Division: High Court, Kano
Date of Judgment: 8th January, 1971
Case Number: SUIT NO. K/96/1969
Before: Jones S.P.J.
(1) The Caretaker Committee of Abandoned Houses became the Abandoned Property Committee by virtue of Abandoned Property (Control and Management) Edict 1970.
(2) Alhaji Ibrahim was an agent of the Abandoned Property Committee which by s. 4 of the Abandoned Property (Control and Management) Edict of 1970 was agent of the owner. Alhaji Ibrahim was therefore a sub-agent and not, in these circumstances liable to the principal, the owner.
(3) Lawal Tudun Wada is not personally responsible to the owner by reason of the personal indemnity provided by s. 16 of the Edict.
(4) The Committee being empowered by the Edict to create legal relationship is, in relation to those legal relationships a legal person, and the name in which the committee is to be made a party to legal proceedings is, by virtue of s. 13 of the Edict, "the Chairman of the Abandoned Property Committee."
Cases referred to:
Montague v. Forwood (1893) 2Q.B. 350.
Chief Andrew Thomas v. Local Govt. Service Board (1965) N.M.L.R. 310.
Knight v. Searle (1964) 2 All E.R. 827.
Vine v. National Dock Harbour Board (1957) A.C. 488.
Willian Kpebimo v. The Board of Governors (1966) N.M.L.R. 130.
Kelly v. National Society of Operative Printers Assistants (1965) 84 L.J.K.B. 2236.
Taffe Vale Rlwy. Co. v. Amalgamated Society of Railway Servants (1901) A.C. 426.
SUIT NO. K/96/1969
Thomas for the Plaintiff.
Majiyagbe for the 1st defendant.
Rowland, State Counsel for the 2nd defendant.
Jones, S.P.J.:-Plaintiff Claims, (a) £1,200 being rent for No. 73 Odutola Street, Sabon Gari, Kano between 1966 and 1969, and (b) £500 general damages for trespass. He is now is possession of the house, so he has dropped an original claim for possession.
It is not disputed that plaintiff is the owner of No. 73 Odutola Street. The defence is that 1st defendant was put into that house as caretaker in January 1968 by the then chairman of the Committee on Abandoned Houses (as it was then called) because it was one of the houses found by that committee to have been abandoned following the crisis of 1966. 2nd defendant is Chairman of the Abandoned Properties Committee (the Successor to the Committee on Abandoned Houses). He was joined not in his official capacity, but in his personal capacity.
The facts are that on 1st October, 1966, plaintiff, as he has stated in evidence, being the owner of No. 73 Odutola Street, Kano, left Kano for his home in the Western Region. He left his brother in charge of this house which was let out to tenants who paid a total rent of about £50 per month gross. Plaintiff came back to Kano in August 1969 and found the house occupied by one Mr Gurum and the Pilgrim Welfare Board. He asked Mr Gurum what he was doing there, and Mr Gurum told him correctly, that he had been put there as a tenant by Alhaji Ibrahim the 1st defendant. He spoke to Alhaji Ibrahim, who told him correctly, that he had been put in charge of that house as caretaker by the Committee for Abandoned Houses.
Plaintiff's brother, whom he had left in charge of the house, died in September 1969 after a long illness. It is relevant that plaintiff said that he was surprised to find the house occupied on his return to Kano. He had received no letter from his brother in the meantime. He had had, he says, oral messages from him. However, he had not received any rent from him, and it was not until April 1968 that the ground rent for the three years 1966-1968 was paid, as evidenced by the receipt Exh 2A. Plaintiff says his brother paid it.
This supports the evidence for the defence that at the time they took over this house it had no tenants. I have no hesitation in believing the evidence for the defence that this property is in an area on the outskirts of the town which became deserted after the crisis, which followed plaintiff's return to his hometown in October 1966. I suspect that plaintiff has been less than honest in pretending to think that his tenants remained in that house. It is true that the majority of those tenants were Yoruba, but I believe the evidence of 1st defendant that the place was isolated, with only cows and sheep there, and that he had some of the materials which he took there to repair the house stolen by thieves despite employing two night watchmen on two occasions. These watchmen both ran away. He then put in his cousin Adamu Gurum to protect the place which, after he had repaired it, was the only house in good repair on that street. I also believe 2 Def. W. the present Chairman of the Abandoned Properties Committee (hereinafter called the "Chairman" and "the Committee" respectively). That 73 Odutola Street was abandoned during the crisis by the occupiers. Finally, I believe 1st defendant when he says that when he took over as caretaker nobody was occupying that house, that it had no doors or windows and few ceilings. (This has the full support of the evidence of 2 P.W.) and that nobody either then or later challenged his authority.
I find, in short, that the house in question was deserted, and uninhabitable when 1st defendant took over caretakership of it, in January 1968.
What was 1st defendant's position? He was put in charge of that house to look after it and repair it on behalf of the Abandoned Properties' Committee. This Committee was created by the Abandoned Property (Control and Management) Edict No. 6 of 1970, with a date of commencement of 2nd November 1967 (sic). Thus, although Exh. 4 which appointed 1st defendant to caretakership of that house, is signed by the Chairman "Caretaker Committee on Abandoned houses", we can and must call that body by its statutory name as from November 1967.
Exh. 4 is dated 15th February, 1968. There is no question that it is to this committee that the Edict No. 6 of 1970 applies, and which it retrospectively set up and named.
There has been some argument as to whether 1st defendant was properly appointed by this Committee. The present chairman of the Committee says he was. That in my view, clinches the matter, and I see no need for the Agreement mentioned in para 2 of Exh. 4 to be exhibited. The fact is that, as the present Chairman says, and as Exhs. 5 and 6, documents written to "The caretaker Plot No. 73 Odutola Street" by the Chairman on 18th April, 1970 and 25th November, 1970 respectively, necessarily imply, 1st defendant was put into that house to look after it on behalf of the Committee. His position in law was that of agent of the Committee.
Now, the Edict states that, the Committee shall
"...for the purposes of this Edict be deemed to be the agent of the owner of such abandoned property."
Thus, in relation to plaintiff, 1st defendant was a sub-agent. Between a principal and a sub-agent there is no privacy of contract. As a general rule the sub-agent is liable only to his employer, the agent. This is made clear in Montagu v. Forwood (1893) 2 Q.B. 350 where an exception to this rule was applied. That exception is where the sub-agent holds himself out to be the main agent, and the person who deals with him has no reason to believe otherwise. That exception does not apply in the present case because plaintiff admitted in evidence that 1st defendant told him he was put in charge of that house by the Committee.
Whatever liability there may be. I therefore find that as a matter of fact and of law 1st defendant as sub-agent is not liable to plaintiff.
Is he liable as a trespasser? The Edict was made, as it says,
"to protect and preserve all abandoned properties for the benefit of their owners."
It declares an abandoned property to be, (Section 2.)
"any property whether movable or immovable which, in the opinion of the Committee, has been abandoned in the State by any person as a result of any disturbance occurring therein in January 1966 or thereafter."
It is abundantly clear from the evidence, both oral and documentary in the list in Exh. 8, that the Committee did form the opinion, and on good ground, that this house was abandoned property within the meaning of section 2 of the Edict.
Section 4 of the Edict says that the committee "shall control and manage any abandoned property."
The word used is "shall" not "may". From this it can be seen that the Committee had a statutory duty to control and manage this house. It did so, as we have already seen, as agent for the owner. It therefore did so legally, and its appointment of 1st defendant as its agent for so doing was also legal. He was not therefore a trespasser.
I note that Section 4 of the Edict says that this management and control shall be done by the Committee, "either alone or jointly with any other person"
This does not, in my view, prevent 1st defendant being a sub-agent, I do not think it creates any specific legal relationship between the Committee and the caretakers it appoints. It seems to me that it merely empowers the Committee to act, as a matter of practice jointly with any other person, in exercising its statutory duty. The relationship of the Committee and that other person will be decided by the method of his employment and the factual relationship between him and the Committee. I am strengthened in this view by the fact that the indemnity section (Section 16 of the Edict) provides for every member of the Committee and every member of an Area Committee, but does not provide for "any other person", yet in Section 4 the power to act through an Area Committee is given immediately after the power to act "jointly with any other person." It could not have been intended to omit anyone who would be held to be as much an agent of the owner as the Committee is, from such indemnity, and I do not think that whoever drafted the Edict was mistaken. I do not think that the omission of "any other person" acting jointly with the Committee from Section 16 does in fact put him in a worse position than his employer. His protection is the normal protection of a sub-agent against an owner. His liability is to the Committee only.
The Committee is liable to the owner. Section 5 of the Edict sets out that liability in full. It includes liability to account if asked, and liability to repair and maintain the property, and to charge, enforce, and collect rents, and to pay the balance of the rents collected less expenses to the owner on his return.
I will mention briefly that I believe the defendants that they did not in fact, during the material time, collect any rent. I find that Mr Gurum was quite properly put in residence there to protect the property. He was given quarters there rent free at first in return for the protection of the property. Later he paid rent but this does not form part of this claim. This, I find, was for the benefit of the owner, and no liability for rent not collected from Mr Gurum is involved.
There were no other tenants in the material period except the Pilgrims Welfare Board hereinafter called "the Board" which occupied those quarters on two occasions without paying rent. This is another matter. 2 Def. W., the present Chairman of the Committee says that the Board does not pay rent for other houses it is occupying nearby. He admits that they should have paid rent at the time. If it were to have any practical effect in this case I would hold that in failing to discharge its duty to implement Section 5(a) of the Edict, the Committee has rendered itself liable to plaintiff for the rent it should have collected from the Board. Section 5(a) of the Edict reads as follows,
"the Committee shall (a) charge, collect and enforce payment of all rents....."
That is then the position of the Committee.
How is this liability to be enforced? The Committee has not been made a party to this action. Instead Alhaji Lawan, the then Chairman of the Committee, has been joined personally. However, Section 16 of the Edict gives him personally, as his Counsel, Mr Rowland, State Counsel, submits, an indemnity against such a personal liability.
"Every member of the Committee...shall not be liable for any act or omission done in good faith by way of giving or purporting to give effect to this Edict...or anything authorised by virtue thereof."
This, to my mind, is a full indemnity, I do not think it tenable, as Mr Thomas, for plaintiff, would, if I understand him correctly, have me say, that in allowing the Board to occupy that house rent free, the Committee was not "in good faith giving or purporting to give effect to" the Edict. I hold that they were so acting. They were not, it is true, acting correctly, but that is exactly the situation which this section is intended to and does cover. I have no doubt the Committee acted in good faith, and I think it possible that it will show that good faith by now accounting to plaintiff and collecting rent they should have collected from the Board and paying plaintiff the balance after expenses. I cannot, however, order it to do so because it is not a party to this action.
It appears that it is not a party to this action because Mr Majiygbe, for 1st defendant, thought that it is not a legal person. To this there are two possible answers. The first is that by Section 13(1) of the Edict,
"The Chairman of the Committee shall be a party to any cause relating to an abandoned property and shall be entitled to be present at the hearing of such cause and may appear either in person or by the Solicitor General of the State or his representative."
By this section the Chairman is made a statutory legal person.
By Section 32 Interpretation Law,
"Where in any Law, power is given to any person to do or to enforce the doing of any act or thing all such powers shall be understood to be given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing."
If that section of the Interpretation Law can refer to status, as I think it can, then it clearly gives the Chairman the power to act as a legal person in suits relating to abandoned property. Even if that section does not refer to status, the clear ordinary meaning of Section 13(i) of the Edict is that the Chairman shall be a party to such actions. Only a legal person can be a party to a legal action. If follows then that the Edict makes the Chairman a legal person.
The second answer has the support of the authority of the Supreme Court. In Chief Andrew Thomas v. Local Government Service Board (1965) N.M.L.R. 310. In a Judgment delivered by Brett J.S.C. the Supreme Court based its decision on the fact that that Board was empowered to create legal relationships, to affect, that is, the legal position of other persons. It said, therefore that although it was not an incorporated body yet (at page 312),
"We reject the submission that a statutory body with functions like those of the Local Government Service Board is not liable to be sued for a declaration, and we do so the more readily since the statutory provisions relating to the appellant's office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings."
In the present case we might well adapt that part of the Supreme Courts Judgment by adding after the word "defendant" the words "or plaintiff." For how could the Committee enforce payment of rents, which it is duty bound to do under Section 5(a) of the Edict unless it can bring a legal proceedings?
In that case the Supreme Court relied on Knight v. Searle (1964)2 ALL E.R.827 and Vine v. National Dock Labour Board (1957) A.C. 488. In a later case, William Kpebimo v. The Board of Governors (1966) N.M.L.R. 130 Arthur Prest, J. following the case just mentioned also mentioned Kelly v. National Society of Operatives Printers Assistants (1915) 84 L.J.K.B. 2236 and Taffe Vale RY Co. v. Amalgamated Society of Railway Servants (1901) A.C. 426. Arthur Prest, J., quoted from the last mentioned case a very lucid exposition of the matter by Farwell J. I repeat it here:
"Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting as agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say that such an association is unknown to the common law. The Legislature has legalised it, and it must be dealt with by the courts according to the intention of the Legislature."
On appeal, the House of Lords approved this statement of the Law. In the present case the Legislature has given the Committee the duty to act as the owners agent and to take full control and management of his immovable property, including the charging of rent and the enforcement of payment of rent, and the contracting for repairs. These duties involve "as a necessary correlative" liability to the extent of such acts of control and management of the immovable property.
Thus the Committee is a legal person capable of being used in the courts. The two answers should, I think, be combined, with the result that Section 13(1) of the Edict is to be taken as providing that in the event of legal proceedings against the Committee or in relation to property under its control then the legal person to be sued or joined in the proceedings is the Chairman of the Committee.
To sum up, I find that neither defendant is liable to plaintiff on this claim; 1st defendant because as a sub-agent he is liable only to the Committee, which employed him, and not to the owner, whose agent the Committee was; the 2nd defendant because it is the Committee, in the name of Chairman of the Committee which is the legal person answerable for the acts of the Committee done in performance of its duties under the Edict, as here, and not the individual members of the Committee, who are indemnified against legal action for such acts, by Section 16 of the Edict.
Plaintiffs claim fails "in toto".