OMOREGIE V. BREITENBURGER PORTLAND CEMENT FABRIK

• Pages: 111-117

OMOREGIE V. BREITENBURGER PORTLAND CEMENT FABRIK

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OMOREGIE V. BREITENBURGER PORTLAND

CEMENT FABRIK

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EBUN OMOREGIE

V

BREITENBURGER PORTLAND

CEMENT FABRIK

APPELLANT

RESPONDENTS

SUIT NO. FSC 284/1961

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FEDERAL SUPREME COURT

ADEMOLA,

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C.J.F.

TAYLOR,

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F.J.

BAIRAMIAN,

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F.J.

12th March, 1962.

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Contract - Construction - Contract in writing - Del credere agency.

Cowls - Federal Supreme court - Appeal - No cross appeal - Judgment set

aside - Alternative claim not considered by trial court - When Federal Supreme

Court will remit cause to trial court for determination of alternative claim -

judgment of trial court not supported by evidence.

ISSUES:

1.

Whether a judgment which is not supported by the weight of evidence will be

allowed to stand.

2.

Whether it is necessary for a trial Judge to consider an alternative claim, where

the initial claim is defeated on appeal.

FACTS:

The Respondents appointed the Appellant their sole agent for the sale of ce-

ment by agreement in writing. There was no clause however that the agent would

be personally liable for credit sales. The Appellant from time to time remitted pay-

ments to the Respondents but at the time this action was brought, the amount owed

had run into £36,645-12s-2d. The Plaintiffs/Respondents claimed this amount or

in the alternative an account of money owed and payment over the sum.

The Appellant denied responsibility for default of Customers to whom cement

had been sold on credit who had not paid. Judgment was entered against him in

the amount of the claim and costs and this appeal was brought saying that there

was not enough evidence to back the judgment. Counsel for the Respondent ar-

gued that the agreement implied a

Del credere

agency and that even if the claim

for payment failed the alternative claim for an account must be considered and re-

solved by the Federal Supreme Court.

HELD:

1.

What was contemplated by the parties can be found out in the agreement into

which they entered in the first instance.

2.

Where nothing in an agreement nor subsequent conduct implies a

Del credere

agency, the agent is not liable to a principal for sums due from credit sales to

Customers.

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