"Qui facit per alium, facit per se — He Who Acts by Another Acts by Himself

If by the nature of things, a master performs his duties by employing servants or agents, he is responsible for their act in the same way he is responsible for his own acts. Qui facit per alium, facit per se principle states that ’he who acts by another acts by himself'.

This review is based on the liability (including vicarious liability) of an agent acting for or on behalf of a disclosed agent. To what extent can an agent be vicariously liable acting on behalf of a disclosed principal? 

A short account of the fact of the case of OGBE V OJO (2024) 18 NWLR (Pt 1969) 33, the point of reference in this review, is that: in 1996, the 2nd respondent hired the 1st respondent, a Chartered Estate Surveyor and Valuer, to sell a parcel of land in Opebi, Ikeja, Lagos. The 1st respondent advertised the land, leading the appellant to contact him. The 1st respondent (at the Supreme Court but the 1st defendant at the trial Court) facilitated a meeting between the Appellant (at the Supreme Court but the Claimant at the trial court) and the 2nd respondent (at the trial Court and the 2nd Defendant at the trial Court), resulting in the appellant purchasing the land and paying the purchase price and agency fees through two cheques. Consequently, a deed of assignment was executed, and the appellant took possession of the land. However, soon after, third parties claiming ownership of the land confronted the appellant. Aggrieved, the appellant filed a suit at the Lagos High Court, suing the 1st and 2nd respondents, wherein he prays the Court for a refund of the purchase price, interest, and costs.

The 1st respondent, instead of filing a defense, entered a conditional appearance and filed a preliminary objection to be removed from the suit, arguing he was not a necessary party as he acted as an agent of a disclosed principal. The trial court dismissed the objection, holding that he was a necessary party. The 1st respondent appealed to the Court of Appeal, which ruled in his favor, set aside the trial court’s decision, and struck out his name from the suit. The appellant, dissatisfied, appealed to the Supreme Court, arguing that the 1st respondent was a necessary party to the case. The 1st respondent maintained that only the principal should be sued since he acted as a disclosed agent. Fundamentally, the Supreme Court was invited to decide on the effect of where an agent entered into a contract on behalf of a disclosed principal.

The law generally treats the principal that when an agent enters into a contract on behalf of a disclosed principal. The principal assumes all rights and obligations that arise from the transaction. On this point, the Supreme Court emphatically stated that an agent is mainly a conduit or intermediary to which the principal intention is executed reference to the settled principle of "Qui facit per alium, facit per se” which means “he who acts by another acts by himself”.

Giving more credence to this principle, the court further iterated that the doctrine is rooted in the fundamental doctrine of the law of agency that: "An agent acting within the scope of his authority does not become personally liable for actions taken on behalf of the disclosed principal; in this instant case as contained in the appellant statement of claim, the averment that the 1st respondent acted as an agent of the 2nd respondent. He acted on behalf of a disclosed principal in contracting with the sale/purchase of the property which was not disputed. The 1st respondent act was limited to that of an agent  and, no indication was made that he acted outside the scope of his authority”.

Based on the trite principle of law stated above, the court resolved that the 1st respondent has not engaged in any conduct that renders him personally liable, and by that, he should not be necessarily a party to the suit.

In further determination of the case on the issue of whether the agent is vicariously liable for default of his disclosed partner. It was held that:

‘[a]n agent, generally, will not be liable for the default of his disclosed principal. Once an agent contracts with another person on behalf of a disclosed principal, acting within the scope of his authority. The disclosed principal is to be held liable for acts done by the agent. In this instant case, the agent was just acting as a conduit, an intermediary; i.e , he was acting on behalf of his disclosed principal. Furthermore, the purchase agreement cheques, and the deed of assignment were all in the name of the appellant and the 2nd respondent. This clearly shows that the 1st respondent was not a party to the contract, and subsequently he is in no way liable for the default of the disclosed principal and should not be a necessary party to the suit.

In conclusion it is necessary to note the following: 

a. An agent acting on behalf of a known and disclosed principal incurs no liability so long as he acts within the scope of the authority given to him by his principal.

b. An agent of a disclosed principal is not a necessary or proper party in an action against the principal arising from a transaction in which he acted as the agent.

c. Whenever an agent is acting on behalf of a disclosed principal or an employee is acting within his authority, the employee or the agent will not be vicariously liable; rather, the employer or the disclosed principal will be liable.

ABOUT THE AUTHOR:

Muhammad  Adekoya is a member of Research & Litigation Directorate, Solace Chambers, Bayero University Kano. She can be reached via +234 814 154 3337