–
K. CHELLARAM & SONS (SIERRA LEONE) LIMITED
V.
NAJIB ABDALLAH
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
12TH DAY OF APRIL, 1954
2PLR/1954/47 (WACA)
OTHER CITATION(S)
2PLR/1954/47 (WACA)
(1954) XIV WACA PP. 495-498
LEX (1954) – XIV WACA 495-498
–
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
–
BETWEEN:
K. CHELLARAM & SONS (SIERRA LEONE) LIMITED – Appellants
AND
NAJIB ABDALLAH – Respondent
–
ORIGINATING COURT(S)
Appeal from Supreme Court by defendants: No. 16/53.
–
REPRESENTATION
S. J. Marke — for Appellants
C. B. Rogers Wright — for Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
COMMERCIAL LAW — CONTRACT — AGENCY:- Undisclosed principal — Contract made on behalf of by agent for goods — Liability of principal for wrong of Agent — Whether principal can be liable for conversion
TORT AND PERSONAL INJURY:- Conversion of goods — How ascertained — Relations of agent and principal — Relevance of
–
PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil cases — Finding made by Court of Appeal in absence of a finding in the judgment of the Court below
–
CASE SUMMARY
One L, who owed money to the defendants, had an arrangement with them whereby for groundnuts he sent them half the value would be paid for in cash, and the balance would be paid at re-weighing. According to L’s evidence, the plaintiff asked L to send groundnuts for him to defendants on the like terms. L also testified that he then wrote to defendants’ manager, who did not answer, and after a time began sending them plaintiff’s groundnuts.
There was trouble in the end and plaintiff (above respondent) sued the defendants, alleging that he sold them so many bags through their agent L, that he received so much on account, that later he demanded the balance of money or of nuts but defendants repudiated the dealing on the ground that the nuts were the property of L; plaintiff claimed in the alternative damages for conversion of the nuts and bags. The defendants (above appellants) denied that L was their agent and denied privity of contract between them and the plaintiff; they alleged that they bought from L, to whom they had accounted.
The trial Judge held on the evidence that L was agent of the plaintiff but not of the defendants and that the contract was between the plaintiff and L personally, but held also that the defendants having received the groundnuts and denied plaintiff’s title, were guilty of converting the goods and liable to him. The defendants appealed. (Be it noted that the trial Judge, though quoting it in his judgment, made no finding on L’s evidence that before sending the groundnuts he wrote to defendants’ agent telling them of the arrangement with the plaintiff.)
–
DECISION(S) BY THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) The groundnuts were sold to the defendants on credit terms and became their property, whether L was selling as principal or as plaintiff’s agent; therefore they could not be said to be guilty of converting their own property.
(2) Whoever the seller was, the bags were to remain his property and to be returned to him; therefore the defendants could be found guilty of converting them if they denied the title of the rightful owner.
(3) If defendants had no notice that they were dealing with Las an agent they would be entitled to set off his debt against the balance owing by them on the nuts, but L, their own witness, whom they did not treat as hostile at the trial, said that before sending the nuts he had written to them telling them of the arrangement with the plaintiff, and the Court of Appeal would, in the absence of a finding by the trial Judge on the point, make a finding that defendants knew L was acting as plaintiff’s agent and therefore could not set off L’s debt against the balance owing to the plaintiff.
–
–
MAIN JUDGMENT
The following judgment was delivered:
SMITH, C. J., SIERRA LEONE.
In this case, plaintiff-respondent, who is a trader at Magburaka, obtained judgment against the defendants-appellants who are merchants in Freetown and buying agents of the Sierra Leone Produce Marketing Board, for the sum of £421 9s. 6d. as damages for conversion of 890 bags of groundnuts and 590 empty bags.
The defendants now appeal to this Court on three grounds:-
(1) That the decision as regards conversion was against the weight of evidence;
(2) That the trial Judge misdirected himself in holding that the defendants were guilty of conversion, and
(3) That the trial Judge misdirected himself in holding that the plaintiff could sue in conversion if the plaintiff had parted with the possession of and property in the groundnuts.
In order to appreciate fully the points raised it is necessary to refer to the pleadings, certain features in the evidence, and the findings of the learned trial Judge.
In the statement of claim the plaintiff alleged that he sold 890 bags of groundnuts to defendants through their agent J. W. Lamb, that certain payments were made on account but that when on 15th November, 1952, the plaintiff demanded the return of the balance of the nuts or payment of the balance owing, the defendants repudiated the transaction on the ground that the nuts were the property of J. W. Lamb who was indebted to the defendants.
In the alternative the plaintiff claimed damages for conversion of the nuts and bags.
In their defence, the defendants denied that Lamb was their agent at the material time and alleged that they bought the nuts from Lamb and accounted to him for their value and they denied that there was any privity of contract between them and the plaintiff.
Lamb, who had been the defendants’ agent until 31st July, 1952, in charge of their branch in Magburaka, gave evidence on behalf of the defendants and said that when his employment ceased he was held responsible to the defendants for certain unauthorised credits given by him. That in September or October he had a verbal arrangement with the defendants in which any groundnuts shipped down before 15th November, 1952 would be paid for in cash at the time of shipping up to half in value, the balance to be paid at the re-weighing on or after 15th November, 1952.
The plaintiff came to him and “asked me if I could ship groundnuts to the defendants and if they would do the same for his as they did for my own. I then wrote Mr. Metharam (defendants’ manager) … I did not receive any reply and after a period of time I began shipping Abdallah’s groundnuts to Freetown. When I received these groundnuts from Abdallah I was receiving them as a middleman between him and defendants “.
The learned Judge, after reviewing this· and other evidence in the case, held that in this transaction Lamb was not the agent of the buyers, the defendants, but the agent of the seller, the plaintiff. “The contract which Lamb made with him (the plaintiff) was a personal one and not as defendants’ agents.” But the learned trial Judge went on to hold that the defendants having received the groundnuts and having denied plaintiff’s title to them by accounting to Lamb for the balance owing, were guilty of converting the goods and were therefore liable to the plaintiff.
With respect to the learned Judge I am not in entire agreement with his conclusions in law on the facts as found by him.
In the first place it is clear that the transaction covered two matters: firstly, the sale of the groundnuts to the defendants in the terms described by Lamb and secondly, the bailment of the sacks in which these were contained, as it is common ground between the parties that the empty sacks were to remain the property of the seller, whoever he may be, and the buyer was liable to account for them and in fact did account for them in cash or in kind.
So far as the groundnuts themselves are concerned, whatever may have been Lamb’s position in the transactions, they were sold to the defendants on credit terms, half their value on shipment and the balance on re-weighing on 15th November.
So that whether Lamb was selling them to defendants as a principal or as plaintiff’s agent, the property in the nuts passed to defendants when they were shipped and I do not see how the defendants could be held guilty of converting their own property, even though they might deny liability to pay the balance owing.
On the other hand, whoever the seller was, it is clear that the sacks which contained the nuts were to remain the property of the seller and were returnable to him, and as the property, as distinct from the possession, of the sacks never passed to the defendants, they could be found guilty of converting them if they denied the title of the rightful owner.
Therefore on the farts as found by the trial Judge, his judgment was correct in so far as it concerned the empty sacks, but incorrect in regard to their contents.
But that does not entirely settle the question.
As I have already observed the trial Judge held on the evidence that in the transaction Lamb was the agent of the seller and not of the buyer and, apart from one item of Lamb’s evidence upon which the Judge unfortunately made no finding, there was no evidence that the defendants in dealing with Lamb knew that he was not a principal but an agent.
The law on this point as I understand it from decided cases is this:-
If one party contracts with another believing him to be a principal, the real principal may only have such remedies on the contract as the agent would have, and if the other party has a right to set off against the agent, he has a similar right against the principal.
In this case Lamb was already indebted to the defendants when the nuts were sold to them and if they had no notice that they were dealing with him as an agent they could clearly be entitled to do what they did and set off Lamb’s debt against the balance owing by them on the nuts.
In his review of the evidence the trial Judge quotes Lamb as saying that he wrote defendants’ manager before the shipment telling him of the arrangement with the plaintiff, but he makes no finding on the point.
Can this Court make a finding, or must we send the case back for the trial Court to make one? I think we can.
From the plaintiff’s side there is no evidence on the point. His efforts were directed to establish what he had pleaded, namely that Lamb was the buyer’s agent. The evidence comes from the defendants’ side.
They called Lamb, and although Lamb’s evidence was on the whole more favourable to the plaintiff than to the defendants, he was not treated as a witness hostile to the side that called him and the defendants therefore cannot be heard to argue that Lamb is not telling the truth, and it seems to me that if the trial Judge had directed himself on this point, he would have been bound to find that the defendants knew that Lamb was acting as the plaintiff’s agent.
That being so they could not lawfully claim to set off Lamb’s debt against the balance owing to the plaintiff.
For these reasons I am of the opinion that the plaintiff is entitled to judgment for the amount claimed under the first head of his claim for the groundnuts, that is to say to £266 12s. Od. and for the sum of £154 17s. 6d., in respect of the value of the sacks unaccounted for, under the second head of the claim.
I would accordingly enter judgment for the plaintiff for the sum of .£421 19s. 6d and costs to be taxed, and dismiss this appeal.
Since the appellant has substantially failed in this appeal. I would award the respondent the costs of the appeal to be taxed.
–
FOSTER-SUTTON, P.
I concur.
–
COUSSEY, J. A.
I concur.
–
Appeal dismissed; judgment for the respondent-plaintiff.
–