LEGAL ISSUE: PRINCIPAL AND AGENT RELATIONSHIP- Position of the law on liability of a principal and his agent in contract as well as in tort

Case Law Excepts
NIGER CONSTRUCTION COMPANY LTD. vs. ATAVWODA & ORS.(2020)LCN/14155(CA)
PRINCIPLE:
“It is imperative that I point out at this junction that the essence of establishing an agency relationship is to prove the tripartite relationship of; Principal – Agent – Third party. This usually creates an obligation between the principal and the agent under which there are certain rights, duties and liabilities. When the agent carries out either of them, privity of contract is created between the principal and the third party.

However, the 1st – 10th Respondent’s issue is one based on tort and not contract.
The general principle of law on agency is that, liability falls on the principal, where the agent is carrying out his instructions/duties or where the principal gives his agent express authority to do a tortuous act. The Principal would be held liable for the tortuous act of the agent.
The agent is however not scot – free or excused from liability in matter bothering on tort. Agent and Principal are considered to be joint tortfeasors in law, and in cases involving more than one tortfeasor, the Plaintiff can choose to sue either the master or servant separately or jointly. The Appellant actually destroyed the farms to construct the road.

This honourable Court in BEKS KIMSE (NIG.) LTD. v. AFRICA & ANOR. (2018) LPELR–24436(CA) held thus: “I agree with the reasoning and conclusions reached therein.

The question to be answered in this appeal to my mind is whether the agent or employee who commits a tort on behalf of his principal, the said agent/employee and the principal are not joint tortfeasors?

It has been established in law that such agent who commits a tort on behalf of his principal are joint tortfeasors and can be sued either jointly or severally. In a case not dissimilar to the present case in appeal, this Court in Alhaji Lai Mohammed vs. Chief Afe Babalola, SAN (2011) LPELR-8973, my Lord Tsammani, JCA, guided by the decisions in Pan Brothers Ltd. vs. Landed Properties Ltd. (1952) All NLR page 22; Management Enterprises Ltd. & Ors. vs. Johnson Otusanya (1987) 4 SCNJ 110; Ifeanyi Osondu Co. Ltd. vs. Soleh Boneh Nig. Ltd. (2000) 3 NWLR (Pt. 656) 322, held that in situations of this nature, this plaintiff is at liberty to either sue the tortfeasors jointly, or pick which amongst the tortfeasors to sue.” per BARKA, JCA, (PP. 21–22, PARAS. D–C). See also DICKSON & ANOR. v. ASSAMUDO (2013) LPELR–20416 (CA); COMMISSIONER FOR HEALTH, NASSARAWA STATE & ORS. v. DADET (2009) LPELR–8907 (CA); IYERE v. BENDEL FEED & FLOUR MILL LTD. (SUPRA).

Flowing from the above, I hold that the Appellant and the 11th Respondent are joint tortfeasors and are both jointly and severally liable. I resolve this issue in favour of the 1st – 10th Respondents.” Per OBASEKI-ADEJUMO, JCA.

ANIOKE & ORS. vs. OGUGUO & ORS.(2020)LCN/14085(CA)
ISSUE: LIABILITY OF JOINT TORTFEASORS- Whether the extent of participation of individual joint tortfeasors in a tortuous offence determines liability in damages where judgment is entered severally and jointly(Issue is mine)

PRINCIPLE:
“The law is settled that if a number of persons jointly participate in the commission of a tort, each is responsible jointly with each and all of the others, and also severally, for the whole amount of the damage caused by the tort, irrespective of the extent of his participation”. EZE & ORS. V. OWUSOH & ANOR. (1962) LPELR-25036 AT 6-7 (E-B); IFEANYI CHUKWU (OSONDU) CO. LTD. V. SONEL BONEH NIG. LTD. (2000) LPELR-1432 (SC) at 24-26 (A-E). In IYERE V. BENDEL FEED AND FLOUR LTD. (2008) LPELR-1578 (SC) AT 26-27 (F-C)* where the Supreme Court *Per MUHAMMAD, JSC, held as follows: “In case of a tortfeasor each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. See: DE BODREUGAM V. ARCEDEKERE (1302) YO 30 EDW 1 (ROLLS SERIES) 106. The following for instance, are joint tortfeasors: 1. Employer and employee where the employer is vicariously liable for the tort of the employee. 2. Principal and agent where the principal is liable for the tort of the agent. 3. Employer and independent contractor where the employer is liable for the tort of his independent contractor. 4. A person who instigates another to commit a tort and the person who then commits the tort. 5. Persons who take concerted action to a common end and in the course of executing that joint purpose commit a tort.”

The implication of the judgment entered jointly and severally against the Appellants herein and the 1st – 4th Respondents at the Court is that each is liable for the entire judgment and the Respondents herein are at liberty to execute the judgment against any of them severally for the entire judgment or jointly against all the parties.” Per BOLAJI-YUSUFF, JCA.

KATOL INVESTMENT LTD. vs. TAJ DEVELOPMENT COMPANY LTD. & ORS.(2018)LPELR-46483(CA)
ISSUE: JOINT TORT FEASORS- Whether joint tort feasors can be sued severally and jointly for their acts which amounts to the tort in issue

PRINCIPLE:
“The learned Counsel for the Appellant is right that joint tort feasors can be sued jointly or severally even if a disclosed principal and his agents, and each would be liable in damages for loss or injuries caused by their joint acts which constitute or amount to the tort in issue. Relying on the cases of *Izuogu v. Emuwa (1991) 4 NWLR (183) 78 and Iyere v. BF & FM (2008) 12 MJSC, 102,* I had cause to restate the law in the case of Dickson v. Assamudo (2013) LPELR-20416 (CA) thus:-
“The law is beyond argument that joint fesors can be sued severally and jointly and each would be liable in damages for the injuries caused by their joint acts which amounted to the tort in issue. However, it is to be noted that before the issue of joint or several liability of joint tort feasors arises, there must be evidence of participation of the persons or parties sued in the commission of the tort complained of first. Mere presence of a person at the scene of alleged tort without participation directly or by conduct in the commission of the tortious acts would not, or better, cannot make a person liable for such acts simply because he was sued along with the tort feasors.”
I. T. Mohammad, JSC, had enunciated instances when joint tort feasors would each be liable for a tort in the case of Iyere v. BF & FM (supra) as follows:-
“The following for instance, are joint tort feasors:-
1. Employer and Employee where the employer is vicariously liable for the tort of the employee.
2. Principal and agent where the principal is liable for the tort of the agent.
3. Employer and Independent Contractor where the employer is liable for the tort of his independent contractor.
4. A person who instigates another to commit a tort and the person then commits the tort.
5. Persons who take concerted action to a common end and in the course of executing the joint purpose, commit tort.” Per GARBA, JCA.(Pp.19-21,Paras.F-C).

MOHAMMED vs. BABALOLA(2011)LPELR-­8973(CA)
ISSUE: JOINT TORT FEASORS- Whether a plaintiff has the liberty to choose between the principal and agent as joint tort feasors
*PRINCIPLE:*
“Being joint tort feasors therefore, a plaintiff has the liberty to choose his victim. He may decide to either sue the principal and agent separately or both of them jointly. Although, the plaintiff has a duty to bring all interested parties in the matter into the fray, it does not mean that where he fails to so join, the action will be incompetent or that the jurisdiction of the Court will be ousted for non joinder. Whichever option a plaintiff decides to take, it will be for him to prove his case at the trial and for the defendant who has been sued to show at the trial that he acted within the scope of his duties and therefore not liable. See *IZUOGU V. EMUWA (1991) 4 NWLR (Pt.183) P.78; IFEANYI GHUKWU V. SOLEH BONEH (Supra); CROWN FLOUR MILLS LTD. V. OLOKUN (2008) 4 NWLR (PT.1077) P.254; EZE V. GEORGE (1993) 2 NWLR (PT.273) P.86 at P.100 and YUSUF V. ADEYEMI (2009) 15 NWLR (PT.1165) P.616.” Per TSAMMANI, JCA.

AINA vs. JAMES(2020)LCN/14102(CA)

ISSUE: Whether an agent of a disclosed principal can be held liable in tort of malicious prosecution

PRINCIPLE:
“The law is settled that in an ordinary agency relationship the principal is bound by the acts of his agent that fall within the scope of his authority, thus an agent who exceeds his authority does not bind his principal. While I agree with the trial Court and counsel for the Respondent on the bare bones of the statement of the law that an agent of a disclosed principal is in some circumstances not liable for actions performed within their scope of authority and only the principal is liable, I am afraid they all misapplied that principle to the instant action for tort; for that principle, very elementary law that it is, only applies the way the trial Court and counsel reasoned in the area of commercial law, more specifically contract law. The cases of QUA STEEL PRODUCTS LTD. V. AKPAN EKONG BASSEY (SUPRA) and AKALONU V. MRS. S. O. OMOKARO (2003) All FWLR (Pt.175) 493 at 504505 referred to by Respondent’s counsel do not also aid his argument, including so many other cases cited by him, as they are cases of contract law which simply confirm the trite legal principle of agency in that area of the law.
In tortious actions the law of agency works fairly differently, in that liability in tort is both joint and several even for an agent and his principal. So that an agent, even of a disclosed principal or master, who commits a tortious action even in the course of his employment is liable personally first, and can be sued alone, just as he can also be sued jointly with his principal. See the decision of Supreme Court in the case of IFEANYI CHUKWU (OSONDU) LTD. V. SOLEH BONEH LTD. (2000) 5 NWLR (PT. 656) 322.

The Apex Court in its later decision in IYERE V. BENDEL FEED AND FLOUR MILLS LTD. (2009) ALL FWLR (PT. 453) 1217 not only confirmed its position in Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (supra) but expatiated further on the principles of agency in tortious law and actions, with Mahmud Muhammad, JSC, (as he then was) saying at p. 1235-1236 Paras. H-D thus: “In the law of agency, the relationship which arises where when a person called agent acts on behalf of another called principal whereby the latter undertakes to be answerable for the lawful acts the former does within the scope of his authority, is what amounts to agency. Liability falls on the principal where he gives his agent express authority to do a tortious act or that which results in a tort. He may also be liable for the tort committed by his agent while acting within the scope of his implied authority. But where the tort by the agent falls entirely outside the scope of his authority, the principal is not liable.”
See also the case of ANIOCHA NORTH LOCAL GOVT. COUNCIL & ORS. V. EZE (2016) LPELR-42016 (CA).

In the instant appeal, the Appellant relied heavily on the case of BEKS KIMSE NIG. LTD. V. AFRICA (2015) LPELR-24436 (CA), where it was held inter alia, as follows: “Even at the risk of repetition, I still stand by the principle that a master is always treated as a joint tortfeasor with the servant for whom he is vicariously liable. See JONES V. MANCHESTER CORP. (1952) 2 QB 852 at Page 870. Being joint tortfeasors therefore a plaintiff is at liberty to choose his victim. He may decide to sue either the master or the servant or both of them jointly. The law is clear on the premise that an agent who commits a tort on behalf of his principal and the principal are joint tortfeasors and may be sued jointly or severally. See DUMEZ (NIG.) LTD. V. UKPENI (1991) 4 NWLR (Pt. 188) 734 @ 743. See also ORDER 11 RULES of the Bendel State High Court (Civil Procedure) Rules, 1988 applicable in Delta State. ORDER 11 RULES of the Kaduna State High Court (Civil Procedure) Rules, 1987.
I shall however conclude by referring to the dictum of Iguh, JSC, at pages 366-367 in SALMON THE LAW OF TORT where he clearly stated as follows: “It is beyond dispute that an agent who commits a tort on behalf of or on the instruction of his principal is along with the said principal, a joint tortfeasor in law. The same is true where a servant commits a tort in the course of his employment. He and his master are in law equally joint tortfeasors as the law in appropriate cases, imputes the commission of the same tort or wrongful act on both of them jointly.”

From the above dicta, it is evident that the Respondent, though an agent of a disclosed principal, cannot by any means, contrary to the reasoning of the trial Court and the argument of counsel for the Respondent, escape liability in tort, if any, on the ground only that he is an agent of a disclosed principal, and acted within the scope of his authority.
​I therefore answer this issue in the negative, and hold that being an agent of a disclosed principal, the Respondent is a joint tortfeasor with the principal and can be sued jointly and/or severally. The trial Court was wrong to hold otherwise. This issue is resolved in favour of the Appellant.” Per ABOKI, JCA.