Ebun Omoregie V. Breitenburger Portland Cement Fabrik (1962)

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ADEMOLA, C.J.F

In the High Court of Lagos the Plaintiffs/Respondents claimed from the Defendant/Appellant the sum of £36,645-12s-6d, being value of goods which the Plaintiffs said they delivered to the Appellant for sale as their agent between April and August, 1957. In the alternative the Plaintiffs’ claim was for an account of the sale of the goods so delivered to the Defendant and payment over of such sum of money as may be found due.

The Plaintiffs are manufacturers of a brand of cement in Hamburg (Germany) known as Portland Cement. The defendant carries on business in Lagos under the name and style of Ebun Omoregie & Co.

Under an agreement, Exhibit E dated 6th July, 1056, made between the parties, the defendant became sole agent in Nigeria of the German Company for sale of Hercules cement on commission basis, the defendant having undertaken to form in Nigeria a company to be known as Hercules Portland Cement Distributing Company Limited. Under the belief that the Company would have been formed, the Plaintiffs shipped three consignments of cement to the defendant who had by then (October 1956) returned to Nigeria from Hamburg which he visited and where the agreement appeared to have been made. The Defendant took delivery of the cement. Be-tween October 1956 and October 1957 several shipments of cement were made to E. Omoregie & Co. and delivery was taken by the defendant. Only the first three consignments were made to the new Company which, for some reasons we are here not concerned with, was never formed.

Meanwhile, as the defendant himself had been anxious for someone from Germany to join him here, one Gunter Dreyer, the Export Manager of the Plaintiffs’ Company, came to Nigeria from Germany in the interest of the Company.

The defendant paid into the Bank to the account of Mr. Dreyer some monies as proceeds from the sale of cement. These were remitted to Ham-burg and Defendant’s account credited accordingly. When Mr. Dreyer left Nigeria for Germany and was succeeded by Mr. Bunz, all proceeds of sale were paid into the account of Omoregie & Co. and forwarded by the Defendant to the Plaintiffs in Germany.

It appears the facts were not in dispute. The defendant did not deny that cement to the value claimed was shipped to Lagos. It would appear his defence was that he introduced customers to buy the cement and either Mr. Dreyer or Mr. Bunz was present and that he did not agree to be responsible for the default of these customers. The controversy, therefore, was in what capacity did the defendant receive the consignments of cement shipped to Lagos.

The learned trial Judge found for the Plaintiffs and entered judgment against the defendant for the amount claimed. The alternative claim was not in the circumstances considered.

Against this judgment, the defendant has appealed to this Court.

Mr. Gardner, for the Appellant, accepted the findings of the learned trial Judge that the Appellant was an agent to the respondents; he con-tended, however, that the other findings as to the liability of the Appellant were not supported by the evidence before the Court, particularly the documentary evidence including the agreements, Exhibits E, L and M, entered into between the parties.

It seems unnecessary to set out the terms of these agreements since Mr. Lawson for the Respondents agreed that there is no clause in any of them creating a del credere agency, nor can such an agency be inferred from any of the agreements. It will be enough to say that the agreement,

Exhibit E, dated 6th July, 1956, contained a clause fixing the commission of the agent (the Appellant). I refer to clause 5 which states:–

“5.The Principal has to pay the agent a commission for each ton of “Hercules” – brand Portland cement sold in Nigeria and guarantees a fixed sum in case the commission does not reach or exceed this sum. The commission has to be paid monthly from all sales which have been paid by customers. At the present the commission is 1/- per ton, the guaranteed fixed sum £50-0s-0d.”

The second agreement Exhibit L made in January 1957 merely in-creased the commission payable. The third agreement Exhibit M is dated 22nd August, 1957, and I will refer to clause 8 only of this agreement, which, if anything, negatives the suggestion of a del credere agency. It reads:–