Appeal Court. 11th Nov., 1938.
Appeal from judgment of High
Court.
Claim for Certificate of
Occupancy-Principal and Agent.
The plaintiff applied to the
Government of Nigeria for a
Certificate of Occupancy of a
plot of land at Kano. He was
resident abroad and thereafter
acted through his solicitor. The
certificate was granted to
another person on the
representation of the solicitor.
The plaintiff alleged that the
agency between himself and the
solicitor had been terminated.
The Government was not informed
of such termination.
Hold: The respondent was
entitled to assume that the
solicitor was
still the agent of the
appellant, and appeal dismissed.
The further facts are
sufficiently set out in the
judgment.
R. F. Irving (A. L. Johnson
with him) for the Appellant.
The Acting Solicitor-General
for the Respondent..
The following judgment, with
which the other members of the
Court were in agreement, was
delivered:-
'WEBB, C.J., SIERRA LEONE.
This seems to me to be a very
clear case. The appellant's
claim is in effect that he is
entitled to the grant of a
Certificate of Occupancy of a
plot of land at Kano in virtue
of an undertaking contained in a
letter from the Resident Kano,
dated 7th November, 1935. In
fact a Certificate of Occupancy
was granted on 16th May, 1936,
to a firm called Gaisers.
A certain amount of confusion
has been caused by the fact that
"the respondent relied on an
assignment, or purported
assignment, of the appellant's
right by a firm of Whitehead &
Sons purporting to have been
made by them as equitable
mortgagees under a memorandum of
equitable mortgage signed by the
appellant on 7th August, 1935.
It appears however that this
memorandum was by the law in
force in Nigeria invalid to
transfer any interest, legal or
equitable, in the premises to
Whitehead & Sons, and therefore
they were incompetent to deal
with them. This aspect of the
case may be ignored.
The other, and, in my judgment
the real defence was that the
Certificate of Occupancy was
issued to Gaisers at the request
of the appellant conveyed
through his solicitor and agent
in the matter, Mr. Oddie, in
completion of the sale of the
appellant's interest to them.
The appellant denied that Mr.
Oddie had, or was held out by
him to have, authority in this
behalf. The learned Chief
Justice held that the Government
dealt with Mr. Oddie in good
faith on the assumption that he
had such authority, and his
judgment obviously implies that
he held further that such
assumption was a reasonable one.
It appears from the evidence
that, although the letter
containing the undertaking to
issue a Certificate of Occupancy
to the appellant was only
written in November, it had
really been agreed as early as
June that this should be done
(Exhibit D). In the meantime the
appellant had gone to Europe and
there had entered into
negotiations with one
Brettschneider for the sale to
him, or his firm Gaisers, of his
interest, whatever its exact
nature was, for a sum to be paid
to Whitehead & Sons in reduction
of the appellant's indebtedness
to them. And, as appears by the
uncontradicted evidence of Mr.
Brettschneider, the figure was
agreed early in October at
£1,400, which was duly paid to
Whitehead & Sons. On 22nd
October, Mr. Oddie, who says
that it had been arranged
between him and the appellant
that he s}lOuld endeavour to
sell the premises, wrote to the
appellant (Exhibit A B)
informing him of this and
enclosing a draft assignment for
execution by him. It is true
that on 12th November (Exhibit
AG), a firm of English
solicitors acting for the
appellant cabled to Mr. Oddie "
Logios refuses sell premises
Kano," but the latter at once
replied (Exhibit AK) that
" following Mr. Logios interview
with Messrs. Gaisers the sale
was arranged and has been
completed." In his evidence Mr.
Oddie explained that by this he
meant, as must indeed have been
obvious, that the contract for
sale had been completed. Yet
after this the appellant, or his
advisers, never wrote one word
of protest or repudiation to Mr.
Brett~chneider, nor was any step
taken to inform the Government
that Mr. Oddie had exceeded his
authority, or that his agency
had been revoked, and warning
them not to issue a Certificate
of Occupancy to anyone other
than the appellant himself. On
the contrary we find that on
16th April, 1936, and again on
18th July, 1936 (Exhibits AL and
AN), the appellant wrote to Mr.
Brettschneider letters one of
which refers to the settlement
of his differences with
Whitehead & Sons, and the other
to his hope of obtaining
employment from Mr.
Brettschneider's firm, but
neither of which contains a word
suggesting that he repudiates
the purchase of his interest in
the premises at Kano.
Mr. Irving has argued that the
letter of 7th November,
conferred upon the appellant a
vested interest such that Mr.
Oddie could only deal with it as
his agent if authorised in that
behalf in writing. There is no
foundation for such a
proposition, it being well
settled that an agent may be
appointed or his authority
conferred by word of mouth save
only where he is appointed to
execute an instrument under seal
on behalf of his principal-see
Bowstead on Agency 8 Ed. p. 41.
