Whether an Agent of a Disclosed Principal can be held Liable in Tort of Malicious Prosecution

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

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

“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.


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