OAB & SONS V DANIEL

C.GYIMAH
Facts: The Plaintiff in this matter is a Company registered under the Companys Act of
1963 Act 167. The Defendant is the Managing Director of the National Investment Bank. Thus
an oral agreement ensued between the Company represented by their CEO and the defendant in
respect of the sale of bags of rice, rice which the NIB Bank held and stored on behalf of the
Eland Rice Brand. The plaintiffs argue that per the terms of their agreement, even though the
agreement wasnt written, the Defendant had appointed their company as their sole Agents for
the sale of the Eland Rice within a specific geographical area and stipulated the percentage of
Profit they were to make on the sale of each bag. The plaintiff also averred that they were given a
specific Bank account number where all the proceeds made from the sale should be deposited
into and be subsequently transferred to the accounts of Eland International. After effectuating a
number of sales and accruing a significant amount in terms of Commission, trouble began to
brew when the Plaintiffs stated that they were not paid their commission as they were entitled to
and upon enquiry at the Eland Brand Directorship, they were informed that the Defendant has
collected all the moneys already from the source and that they were not privy nor concerned
about that development in matters. Plaintiff then brought an action to compel Defendants to pay
the commission they were entitled to per their agreement.
ARGUMENTS OF THE DEFENSE: The Defendants on their side argued that they had never
appointed the Plaintiffs, nor any of their other buyers irrespective of their location, as their agents
in whatsoever capacity. They also denied totally the fact that they entitled the Plaintiffs to the
collection of any form of commission. They further stated categorically that the Rice belonged to
Eland and that whenever anybody purchased it, their profits would be garnered from their sale of
the rice. In further contentions, the Managing Director of the Eland Company stated that they
had entered into Collateral-management agreement with the Defendant and the NIB Bank, and
that the Bank was in no way acting as their agent, thus lacked any authority to go and hire the
Plaintiffs company as their agents.

PROCEDURAL HISTORY: High Court.

ISSUES:
Whether or not the Plaintiff was engaged by the NIB to sell the bags of rice and if yes in what
capacity?

Whether or not the Plaintiff was entitled then/ paid the commission totaling 1 Billion cedi?
Whether or not the Defendant had appropriated the commission that the Plaintiff was entitled to
by collecting the bulk sum at the bank without their consent or approval?

HOLDINGS:
The Plaintiffs did not sell the Eland Rice on behalf of either NIB or Eland International. Thus it
inconceivable that they could have been appointed as Agents of Principals (be it NIB or Eland)
based on the evidence presented and gathered.
The Plaintiff were not entitled to any commission as despite all the evidence and payment trails
obtained, there was no evidence suggesting the existence of any commission intended in the first
place.
The proof gathered during the testimonies and evidence presented before the court shows that the
Defendant had in no way appropriated the said commission the Plaintiffs were claiming they
were entitled to. The evidence showed that the only commission that was paid was in respect of
another company different from the Plaintiffs company.

RATIO DECIDENDI:
INSAIDOO J:

The Learned referred both to the definition of the concept of Agency in both the Blacks
Law Dictionary and the Law of Agency book authored by Professor STONE, and
proceeded with those references to define The concept of Agency as a relationship that
is frequently the result of a contract between the principal and agent". However, there are
other methods by which it can be created. There are in fact four ways in which agency
can arise: by agreement (express or implied), by ratification, by operation, by estoppel

INSAIDOO argues that the most important factor for the creation of a Principal-Agent
relationship is the consent/ of both parties which is most often, but necessarily every time
in the form of an agreement; yet she highlights that an Agency can be created in certain
cases without an express element of consent. The learned Judge argues that in such
circumstances, the Court will usually looks at the words and conducts that were used
during the alleged creation of the Agency. Also the Court may look at earlier words and
conducts, which may amount to evidence of a particular course of dealing thus form
some sort of historical background.

In respect of this case the Learned Judge argued that even if there was an Agency
relationship as inferred by the Plaintiffs, their principal would have been Eland
International and not the Defendants as the proceeds from the sale were finally paid into
the account of Eland International and not the NIB account. Further evidence is that the
NIB Bank expressly told the Plaintiff not to use their Logo for their transactions
involving the sale of the rice, proving that beyond the acquisition of the rice, there was no
further involvement of the Defendants in the Plaintiffs transactions.

Further there was evidence that the Plaintiff further down the line got in touch with Eland
International and asked to be their Exclusive agents in the distribution of their rice, thus
makes it dubious that they could have had an already existing Agency with the
Defendants, nor that they held those Defendants as acting Principals.

The Learned INSAIDO J also argued that since the Plaintiffs relied heavily on assertions
of the Former Resident Director of Eland, they should have sought to make him a
material witness to justify their claim for their commission they sought to claim. The
learned Judge Justifies her position by citing the dictum of OLLENU J in the case of
Barima GYAMFI v Ama Badu [1963] 2GLR 596 SC where he stated that: In a claim
made by a plaintiff, there is no onus on the defendant to disprove the claim so that
however unsatisfactory or conflicting the defendant's evidence may be, it cannot avail the
plaintiff. The evidence of the defense only becomes important if it can upset the balance
of probabilities which the plaintiff's evidence might have created in the plaintiff's favor or
if it tends to corroborate the plaintiff's evidence or tends to show that evidence led on
behalf of the plaintiff was true.