IKEDIFE & ANOR (APPELLANT)

v.

OBIENU (RESPONDENT)

(1975) All N.L.R. 191

Division: Supreme Court

Date of Judgment: 24th April, 1975

Case Number:

Before: Elias, C.J.N., Sowemimo and Ibekwe, JJ.S.C.

APPEAL from the High Court, Onitsha

The land of some families was acquired in Nnewi for the establishment of a market. Defendant's family land formed the largest portion. Although other families had been agreeably paid compensation for their land, defendant refused the amount offered to his family saying it was too small.

The Nnewi Planning Committee and the Nnewi Taxpayers Association on hearing that defendant had sued the Nnewi community in Onitsha High Court, summoned a meeting at which defendant was also present. On reaching no agreement, defendant left; the meeting thereafter appointed the two plaintiffs and a relation of defendant to go to defendant's house and pay him the £881 (N1,762.00) which he claimed as total expenses he incurred on the Onitsha Law suit. This was in consideration of defendant withdrawing the action from the court.

After receiving the amount, defendant failed to withdraw that suit for some time, and the two plaintiffs sued defendant in quasi-contract for money had and received for a consideration that had totally failed and for damages for breach of contract.

The trial Court found for defendant because plaintiffs had failed to establish their claims. On appeal to the Supreme Court, the plaintiffs/appellants repeated their claim as the owner of the £881 and denied being the agents of the defendant in the earlier Onitsha Court suit.

Defendant/respondent proved that the appellants who had paid him the money in his house in the presence of the third emissary of the elders were in fact agents of disclosed principals, the bag of money having been filed with assorted currency notes and pieces of money apparently contributed by the local community members. Plaintiffs/appellants failed to show that they contracted with defendant/respondent as the true owner of the money.

The local Sole Administrator having intervened, the defendant had withdrawn the action on the understanding that there would be a settlement with the community elders regarding the compensation payable to his family for the land acquired.

The Supreme Court

HELD:

(1)     that the appellants, having failed to establish that they acted as independent owners of the £881 when they paid it to the respondent, could not recover it from the respondent;

(2)     that there had been no total failure of consideration as alleged by the appellants as the respondent had withdrawn the action from the Onitsha High Court as agreed;

(3)     that the delay in respondent's effecting the withdrawal of the case was understandable because of the non-fulfilment of the condition that there should be prior settlement of the amount of compensation payable for the land and the further condition that the appellants' principals had in breach of their undertaking to the Onitsha High Court unilaterally applied to that court to strike out the action and thereby obtained heavy costs against the respondent unjustly;

(4)     that the appellants as agents of disclosed principals were incompetent to bring the action by themselves alone; and

(5)     that by bringing the action they could not, however, be held liable for the tort of maintenance as they were not intermeddlers.

APPEAL dismissed.

Cases referred to:

Neveill v. London Express Newspaper Ltd. [1919] A.C. 368

Emogokwue v. Okadigbo (1973) 3 E.C.S.L.R. (Part 1) 267; (1973) 4 S.C. 113 at 117

Balogun v. A.C.B. Limited (1972) 1. S.C. 77 at 84-85

Statute referred:

Evidence Law, S. 74, Cap 40, 1963 Laws of Eastern Nigeria.

APPEAL from the High Court, Onitsha.

SUIT NO. S.C. 398/74

Mr N. N. Anah for Appellants.

Mr P. S. Nwofor, with him Mr C.O.B. Onyali for the Respondent.

ELIAS, C.J.N. (Delivering the Judgment of the court)-For the purpose of establishing a market for the community of Nnewi, private land was acquired from the various families affected and it would seem that payment of compensation had been agreed with all the families except one, that headed by the plaintiff in Suit No. 0/13/70. The accredited representatives of the community offered to pay the plaintiff N100 as compensation, but the plaintiff rejected the offer on the ground that his family land formed the largest part of the area acquired for the market and the amount offered was far too little. When he got no satisfaction from the defendants, Chief K. O. Orizu and ten others, who were respectively the paramount chiefs and other elders of the community, the plaintiff brought an action in the Onitsha High Court in Suit No. 0/13/70 against the defendants. As the progress on the establishment of the market was being hampered as a result of the dispute between the plaintiff and the defendants, the Nnewi Tax Association intervened and, with the occurrence of the court, a meeting was soon called in the home of one Chief Obi at which were present the Nnewi Tax Payers Association, the Planning Committee, the defendants, the plaintiff and a few others. After a full discussion of the matter, it was agreed as per Exhibit F that the plaintiff should be reimbursed the sum of N100 as part of his expenses of the litigation thus far and that, after both parties had jointly addressed a letter to the Registrar of the Onitsha High Court to that effect and after the terms had been settled, the plaintiff should withdraw the action against the defendants, whose emissaries should find out from the plaintiff the total sum as evidenced by official receipts to be produced by the plaintiff. On July 6, 1971, the emissaries, consisting of the two plaintiffs and another man (P.W.2) who was a relation of the plaintiff in that case, called on the latter with one bag or carton of money in currency notes of different denominations ranging from five shillings to one pound notes, and this bag was left with the plaintiff as the money agreed to be paid to him against the receipt of £881 N1,762.00) which was the total amount of the official receipts produced to the emissaries by the plaintiff in his house. The three emissaries obtained an undertaking in terms of Exhibit A from the plaintiff and left, promising the plaintiff that any shortfall in the total amount that might be detected after counting the money in the bag would be made good as soon as the plaintiff would let them know. On counting the total money with his children after the emissaries had left, the plaintiff discovered that it was £14 short and, accordingly, sent to the defendants for the balance which was duly paid up.

When, after receiving the £881, the plaintiff in the Onitsha High Court case had not withdrawn the matter from

the court, Dr Ikedife and Edward Obi as plaintiffs in the present case, Suit No. 0/70/72, brought an action against Clement Obienu as defendant with a claim endorsed as follows:-

"(1)    On or about the 6th day of July 1971 at Nnewi the plaintiffs jointly paid to the defendant the sum of £881 as a consideration for a discontinuance of or a forbearance to continue Suit No. 0/13/70 pending in the Onitsha High Court.

(2)     In breach of the said agreement between the plaintiffs and the defendant, the defendant neither withdrew the case nor refunded the said sum of £881.

(3)     Whereof the plaintiffs claim the refund of the £881 being money had and received for a consideration which has totally failed and £10,000 general damages for the breach of the said contract."

The plaintiff in the Onitsha High Court thus became the defendant in the present action. The plaintiffs averred that they were owners of the money paid to the defendant, although the learned trial Judge disbelieved their evidence thereon and pointed out that they were indeed agents of disclosed principals, the defendants in the Onitsha High Court case. The learned trial Judge was of the opinion that the submission of their Counsel in his final address that the plaintiffs' suit had nothing to do with the Onitsha High Court case in respect of the land acquisition at Nnewi was contrary to the specific pleadings of the plaintiffs in their Statement of Claim, paragraphs 3 to 7 of which read as follows:

"(3)    In 1970, the defendant as plaintiff in Suit No. 0/13/70 filed in action at the Onitsha High Court against His Highness Chief K. O. Orizu, the Obi of Nnewi and 10 others.

(4)     After pleadings were ordered, the plaintiffs intervened and requested the defendant to discontinue the action.

(5)     The defendant offered to discontinue the action on terms, and plaintiffs accepted the offer.

(6)     On or about the 6th day of July 1971 at Nnewi, the plaintiffs jointly paid to the defendant the agreed sum of £881 as a consideration for a discontinuance of or as a forbearance to continue Suit No. 0/13/70 pending in the Onitsha High Court by the defendant. Receipt dated 6th July, 1971 given to the plaintiffs by the defendant will be founded upon.

(7)     In breach of the said agreement between the plaintiff and the defendant, the defendant neither withdrew the case nor refunded the said sum of £881 despite repeated demands. The defendant on 3-1-72 filed his Statement of Claim and Plan in the said Suit No. 0/13/70 which is still pending at the Onitsha High Court."

The learned trial Judge also pointed out that exhibit "A" makes it abundantly clear that the plaintiffs could not be anything else but the agents of the defendants in the Onitsha High Court, and that, as such, they should have brought the present action and not the plaintiffs.

There was also some internal contradiction between the claimants, as the first plaintiff claimed as the sole owner of the money in question, and in view of the fact that the Statement of Claim was issued in their joint names as plaintiffs and has never been amended. Of course, the second plaintiff had offered no evidence to contradict this claim of the first plaintiff, so that the question of ownership of the £881 is still at large. Another difficult aspect of the case is that Counsel for the defendant in the present case submitted that, if the plaintiff's claim that he was acting entirely on his own and not as agent of the defendants in the Onitsha High Court case were to be accepted, the plaintiff must then be held liable to an action of maintenance as an intermeddler in the litigation between parties which does not concern him at all. The learned trial Judge, quite rightly in our view, rejected this argument, pointing out that for an action of maintenance to succeed as a tort, a person must have unlawfully intervened in a litigation between two parties in which he having no interest assists one of the parties to institute, prosecute or defend an action: Nevill v. London Express Newspaper Ltd. (1919) A.C. 368.

Again, the plaintiffs in the present action first claimed in the writ that they were bringing an action in quasi-contract against the defendant for the refund of £881 being money had and received for a consideration that had totally failed and also for £10,000 general damages. When they realised their mistake of claiming in quasi-contract in their writ, they changed the cause of action in paragraph 7 of their Statement of Claim to that of contract and also demanded for damages for breach. The learned trial Judge rightly observed that this was not a case of a quasi-contractual relationship between the plaintiffs and the defendant, since he had found that the plaintiffs were agents of disclosed principles. As to whether the consideration for the payment of the money had totally failed, the learned trial Judge did not find this claim proved, whether on the ground claimed by the plaintiff that the withdrawal of the case from the Onitsha High Court was not made in good faith or whether the withdrawal was considered to be so tardy as to amount really to non-achievement of the purpose for which the money had been paid to the defendant. The learned judge took the view that there was a court order of February 1, 1971 in the way of the defendant, requiring the defendant in the present case and the defendants in the Onitsha High Court case to write a joint letter through their representatives' solicitors to the Registrar of the court before a withdrawal could be effected. Before this important condition had been complied with, however, the defendants in the Onitsha High Court case unilaterally applied to the Onitsha High Court to strike out the pending action there and indeed obtained very heave costs against the plaintiff in that case (who is the defendant in the present case). This action of the defendants; in the Onitsha High Court case was rightly condemned by the learned trial Judge. Due account must also be taken of the role of the Divisional Officer for Nnewi in persuading the plaintiff to agree eventually to withdraw Suit0/13/70 (See Ex.J.). He wrote a letter to the plaintiff on July 14, 1971 asking the latter to withdraw and, as a result, the plaintiff filed a notice of discontinuance on August 17, 1971.

The Divisional Officer was apparently unaware of the standing court order of July 1, 1971, but his intervention had the effect of making plaintiff break his undertaking to the court. The plaintiff having withdrawn the suit, the defendants should not have applied as they did to the court to have the case struck out; should the plaintiffs in the present case have brought their action. After a careful review of the evidence adduced in the present action by the two plaintiffs against the defendant, the learned trial Judge dismissed the action both for the recovery of the money and for general damages.

It is from this judgment that the present appeal has been brought by the plaintiffs/appellants on a total of ten grounds alleging different complaints, some procedural, and some substantive, but nearly all of them being for the most part difficult to sustain. Mr Annah, learned Counsel for the appellants, began by saying that he would argue grounds 7 and 9 together in which the main complaint would appear to be that the learned trial Judge misdirected himself in law and in fact for holding (a) that part of the conciliation between the parties broke down "when learned Counsel for Chief Orizu and ten others surprisingly asked for and obtained heavy costs. This, to say the least, was most unfortunate"; and (b) that the learned trial Judge erred in law by failing to exercise his discretion judicially in awarding costs to the defendants which were unreasonable and unwarranted. The finding of the learned trial Judge to which he is objection reads as follows:

"The defendant paid two sums of 150 guineas and 33 guineas to the defendants in 0/13/70. I feel that the justice of these two related cases is that I should endeavour as far as costs are concerned to put the defendant and the plaintiffs through the defendants in 0/13/70 whom they represent back to the position in which they would have been but for wrong action taken by the defendants in 0/13/70-namely to oppose defendant's withdrawal and obtain 150 guineas and for asking for costs of 33 guineas for extension of time to file Statement of Claim in that case. I have not seen any payments by the defendants in 0/13/70 to defendant here to give a credit and so I would award costs of 150 guineas plus 33 guineas £192. 3/- = N384.30.

'Costs assessed at N384.30'."

We are of the opinion that this observation of the learned trial Judge is legitimate in the particular circumstances of the case and in view of the decisions reached by him on the issue of the liabilities of both parties to each other. The next ground argued by learned Counsel, with which he dealt at length, is ground one which reads as follows:

Learned Counsel for the plaintiffs invited the court's attention to paragraph 10 of the Statement of Defence. That paragraph denies that the plaintiffs acted in any capacity either as principals or agents. He said that the defendant is bound by his pleading but Counsel did not advert to the fact that the court is not bound by a party's pleading."

Learned Counsel submitted that the learned judge misdirected himself by saying that the parties are bound by their pleadings but not the court, and he went on to cite Section 74 of the Evidence Law and the following two cases in support of his contention: Emogokwue v. Okidigbo (1973) 3 E.C.S.L.R. (Part 1) 267; (1973) 4 S.C. 113 at p. 117; Balogun v. A.C.B. Limited (1972 1 S.C. 77 at pp. 84-85. He further complained that, although both parties pleaded that the plaintiffs were not acting as agents, yet the learned judge disregarded these pleadings and held that the plaintiffs were agents of disclosed principals. It is true that the learned trial Judge did hold as follows:

"It is clear from Exh. A that the plaintiffs are not acting on their own but on behalf of Chief K. O. Orizu and 10 others in Suit No. 0/13/70. In the face of this I cannot accept the tenuous evidence of P.W. 1,

"1st plaintiff, to contradict the capacity in which he and 2nd plaintiff acted which is unequivocal on Exh. A."

Learned judge concluded on this point as follows:-

"From the evidence before me, I unhesitantly find that £881 came out of community collection for community development and that it was found necessary to meet the defendant's legal expenses from the revenue on behalf of defendants 0/13/70. The defendants in 0/13/70 were chairman and members of the Planning Committee and were not themselves personally, but officially, involved, in the suit.

I find that the plaintiffs acted as agents and that their immediate principals were the defendants in 0/13/70."

We agree with the learned trial Judge that this is a correct finding in view of the fact that "the improper arrangement of denomination notes of five pounds, one pound, and five shillings and the consequent undisputed error of £14 all point to mass collection and want of that individual attention which characterises personal property;" this is so despite the fact that the first plaintiff, after pleading in paragraph 6 of the Statement of claim that "the plaintiffs jointly paid to the defendants the agreed sum of £881", disclaimed this averment in his statement by asserting that he alone produced the whole money from his private safe and that the second plaintiff only accompanied him to pay it to the plaintiff. There was also the uncontradicted evidence of P.W.2 and D.W.3 that the plaintiffs were emissaries of disclosed principals.

The appellant again complained that the learned trial Judge misdirected himself in Law and in fact in holding as follows (ground 5):

"Whether one took a strict or liberal view of the time limited to file pleadings it is clear that Exhibit A or the precedent agreement compromised the court order without Court involvement or concurrence. As the parties were still bound by the order it follows that the obligation imposed on the defendant by the plaintiffs to unilaterally withdraw the case in flagrant disregard of the order was repugnant and accordingly inoperative."

He contended that this statement overlooked the fact that the plaintiffs were not parties to the suit in which the said order was made and should not therefore be bound by it, and that the statement implies that the plaintiff in Suit No. 0/13/70 could not withdraw his action in court without a joint letter addressed to the court by the Counsel for both parties in that suit. On the assumption that the defendants in Suit 0/13/70 were the real principals, which was found to be so as a fact by the learned trial Judge, the plaintiffs as agents could not be heard to say that they were unaware of the court order of July 1, 1970. We are of the view that the learned trial Judge is right in the following observation which he did make:

"It ought to have been clear to the plaintiffs acting for the defendants in 0/13/70 that they and the defendant were in pari delicto as to the manner of withdrawal which was in opposition to a subsisting Court order which had directed the manner of withdrawal. It is monstrous for an erring party to rely on his own fault to support a claim."

We think it right to refer her to the following note of the Record of Proceedings in Suit 0/13/70 which was tendered by the plaintiffs in the present case as Exhibit E:

"I understand that it is likely that this case may be settled out of Court. If the case is settled out of Court before the date on which pleadings are required to be filed it is ordered that Counsel for the plaintiff and Counsel for the defendants shall write a joint letter to the Registrar who shall advise the date for mention with a view to striking the case out of the general cause list."