The 1st respondent sued the appellant and the 2nd respondent jointly and severally claiming a total sum of N132, 000 for a consideration that wholly failed. The 1st respondent also made an alternate claim again the appellant alone for the same amount of money and compound interest thereon at the rate of 14% from September 1984 until payment or judgment or whichever is earlier.

The facts pleaded by the 1st respondent in support of his claim were that the appellant introduced himself to the 1st respondent as the Managing Director and Chief Executive of the 2nd respondent and purportedly acting as such and for himself offered to sell some bags of rice which he had at the ports to the 1st respondent which rice the 1st respondent could in-turn sell to a third party whom the appellant also introduced the 1st respondent as a prospective purchaser. The 1st respondent further averred that the third party’s latter requesting for a performance guarantee by the 1st respondent by the appellant who also showed other documents to the 1st respondent to convince the 1st respondent that the proposed transaction was genuine. The 1st respondent further averred that it paid a total sum of N106, 000 in three installments for the rice to the 1st respondent who received same but failed to issue receipts for same despite his promise to do so. In response, the appellant filed a statement of defence.

At the trial, the 1st respondent called three witnesses namely the Managing Director of the 1st respondent company, his lawyer and the accountant of the 1st respondent company who made the two of the instalmental payments to the appellant. These witnesses testified in line with the 1st respondent’s pleading and particularly about the fact that the payments of the money to the appellant were made in their presence.

Thereafter, the suit was adjourned at the instance of the appellant and the 2nd respondent, and their counsel to 19th and 26th February, 1986 for their defence.

On 19th February, 1986, the appellant and his counsel were absent from court. Consequently, the trial court adjourned the suit to 26th February, 1986 the next trial date already fixed for the suit but the appellant and his counsel were also absent from court on that date. Whereupon the trial court heard the address of counsel to the 1st respondent and adjourned the suit to 20th March, 1986 for judgment which was delivered on that date in favour of the 1st respondent against the appellant.

The appellant was dissatisfied with the judgment of the trial court and appealed to the Court of Appeal where he contended in the main that he ought not have been held personal liable for the money received from the 1st respondent because it was pleaded that he acted as agent for a disclosed principal, the 2nd respondent, and the trial court ought not to have proceeded with the trial of the suit on 26th February, 1986 in the absence of the appellant and his counsel without issuing a hearing notice for service on them.