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ANDOH v. FREMPONG & COMPANY & OTHERS


  • New
  • 1962-02-26
  • HIGH COURT
  • 1 GLR 130-133
  • Print

CHARLES, J.


Summary

Negligence?-Whether failure of sub-agent to forward football pool coupon to agent constitutes negligence.Agency?-Liability of agent for acts of sub-agent employed without authority of principal.

Headnotes

The plaintiff filled in a coupon, exhibit A, of Zetters International Pools Ltd. and gave it to the third defendant with his stake of two shillings. The third defendant was a sub-agent of the first defendant who was the sole agent of Zetters International Pools Ltd. in Ghana. The third defendant stamped the plaintiff's coupon and signed it and two days later handed it to the second defendant with a list which included the number of the plaintiff's coupon. The second defendant signed the list signifying that he had received the coupon, exhibit A, but failed to forward the coupon or the stake money to the first defendant for onward transmission to Zetters International Pools Ltd. in London, where it should have been received before the relevant football matches were played.The plaintiff, on discovering subsequently that his coupon contained all the correct solutions for which a dividend of G855 18s. was declared sued for damages for negligence.

Judgement

ACTION for damages for negligence. The facts are fully set out in the judgment of Charles J.

The plaintiff's claim against the defendants is for G900 damages for negligence in failing to forward without delay in May, 1960, a coupon with the correct selections in a football pool with Zetters International Pools Ltd. The claim for damages is made up of G855 18s. as special damages and G50 general damages. As the writ could [p.131] not be served on the second defendant in spite of several adjournments for this purpose substituted service was ordered but as the second defendant failed to appear the case was proceeded with against the first and third defendants.

According to the evidence adduced in this case the first defendant was the sole agent of Zetters International Pools Ltd., Ghana, prior to 1958 and during the month of May, 1960 he was still the sole agent. The third defendant was a sub-agent of the first defendant at Prankasi since 1958 and in November, 1959 the third defendant worked as a sub-agent of the first defendant in Takoradi. During March, 1960 the second defendant was appointed as the first defendant's sole agent in Takoradi and he instructed Zetters International Pools Ltd. to send all coupons directly to the second defendant in Takoradi. The third defendant who was introduced to the second defendant by the first defendant as his brother continued to be employed by the first defendant as a collector and sub-agent in Takoradi and the third defendant worked in the same office with the second defendant. The third defendant used to collect coupons with the stake money and give the coupons and stake money with a list to the second defendant whose duty it was to sign the list and forward it with the coupons and the stake money to the first defendant in Accra.

On Tuesday, the 3rd May, 1960, the plaintiff filled in a coupon, exhibit A, with the Zetters International Pools Ltd. and gave it to the third defendant with his stake of two shillings.

The third defendant stamped the coupon and signed it. On Thursday, the 5th May, 1960, the third defendant gave to the second defendant the coupon, exhibit A with a list, exhibit 3 which included among others the number of exhibit A and the second defendant signed the list exhibit 3 as having received, inter alia, exhibit A. The second defendant should have posted the coupons with a list containing their numbers to the first defendant who would then send them direct to London to arrive at least before the relevant football matches on Saturday the 7th May, 1960 were played. However the second defendant failed to forward the plaintiff's coupon, exhibit A or his stake money to the first defendant so the first defendant did not send the coupon and the stake money to Zetters International Pools Ltd. in London.

On the 10th May, 1960 the plaintiff discovered that his coupon exhibit A contained all the correct selections and he had the maximum number of points, which was 21. On the 13th May, 1960 the dividend declared for the maximum points of 21 was G855 18s. which the plaintiff was entitled to receive. The plaintiff immediately informed the third defendant of his success. The third defendant took the plaintiff to the second defendant and told him that the plaintiff had the maximum points and had won a first dividend and the second defendant congratulated the plaintiff and told him he must bring his dividend certificate so that second defendant could give it publicity. The second defendant told the plaintiff he would receive the dividend by registered post from Zetters International Pools Ltd. on the following Saturday. As the plaintiff did not hear from Zetters International Pools Ltd. on the following Saturday, he went to the third defendant who took the plaintiff to the second defendant and informed him that the plaintiff had not received his money. At the request of the second defendant the plaintiff gave him sixpence to write to Zetters International Pools Ltd. but the plaintiff never received any money. [p.132]

It is patently obvious that the second defendant never sent the plaintiff's coupon for transmission to Zetters International Pools Ltd. until he had heard the results of the football matches and after he had realised that the plaintiff's coupon had won a first dividend according to the football results, and that Zetters International Pools Ltd. naturally refused to pay. The second defendant was guilty of such conduct prior to the 3rd May, 1960, when he also failed to forward the coupon of E. T. Koranteng who had staked G10 8s 4d. and after E. T. Koranteng reported the matter to the police at Takoradi, the second defendant had to refund the G10 8s. 4d. to E. T. Koranteng. This was known to the first defendant as the police took a statement from him in connection with the report made by E. T. Koranteng but yet he continued to employ the second defendant as his sub-agent in Takoradi.

The first defendant was a most unconvincing and unimpressive witness and his demeanour in the witness box was most unsatisfactory. He denied questions put to him by the third defendant but was eventually forced to admit suggestions made when he was confronted with documents. I was very impressed with the evidence given by the third defendant who was a witness of truth and wherever the evidence of the first defendant conflicts with his I accept the evidence of the third defendant.

Counsel for the defendant submitted that the undertaking to send the coupon was only binding in honour and cannot be enforced in a civil action and he referred to the cases of Jones v. Vernon's Pools1 and Appleson v. Littlewoods Ltd.2 These cases were founded in contract and not tort and therefore they are irrelevant as it is quite obvious that the plaintiff bases his claim on negligence. Counsel for the first defendant further submitted that the evidence shows that the second and third defendants are sub-agents of the first defendant and that the first defendant cannot be saddled with liability for the negligence of the second defendant who failed to forward the coupon to the first defendant and in support of this he referred to the case of Stone v. Cartwright.3 In this case a colliery belonged to an infant and the defendant was appointed agent and manager thereof under the Court of Chancery. The defendant employed a bailiff under him who superintended the work, and he hired and dismissed colliers at his pleasure but he took no personal concern in the business. The defendant had not given any particular orders for working the mine in the manner which had occasioned the negligence complained of by the plaintiff. It was held that the defendant was not liable as the action should have been brought against the person guilty of the negligence or against the owner of the colliery for whom the act was done.

These facts are totally different from the facts of this case. The second and third defendants were under the direction of the first defendant who represented them to the public as his sub-agents. The first defendant knew prior to the 3rd May, 1960 that the second defendant was not a trustworthy person and yet he continued to employ him. Moreover, there was no privity of contract between Zetters International Pools Ltd. and the second defendant. In Mackersy v. Ramsays, Bonars & Co.4 it was held that an agent is liable for the acts and defaults of his [p.133] sub-agents even though their employment was authorised by his principal and he must account to his principal for all moneys received by them. See also Re Mitchell.5 Zetters International Pools Ltd. never expressly or impliedly authorised the employment of the second defendant by the first defendant nor was there any privity of contract between Zetters International Pools Ltd. and the second defendant nor is Zetters International Pools Ltd. bound by acts of the second defendant.

I therefore hold that the first defendant is liable for the negligence of the second defendant and I therefore enter judgment in favour of the plaintiff against the first defendant for the sum of G900 with costs fixed at sixty-five guineas inclusive of out-of-pocket expenses of G23 7s. 6d. I further hold that the plaintiff has failed to prove his case against the third defendant and I accordingly dismiss it and enter judgment in favour of the third defendant with costs fixed at six guineas.

Decision

Judgment for plaintiff against first defendant.

Plaintiff / Appellant

J. K. Polley

Defendant / Respondent

E. B. Gaisie for the first defendant. No appearance for or by the second defendant. Third defendant

Referals

(1)  Jones v. Vernon's Pools [1938] 2 All E.R. 626

(2)  Appleson v. Littlewoods Ltd. [1939] 1 All E.R. 464 C.A.

(3)  Stone v. Cartwright (1795) 6 T.R. 411; 101 E.R. 622

(4) Mackersy v. Ramsays, Bonars & Co. (1843) 9 C1. & Fin.818; 8 E.R. 628

(5)  Re Mitchell (1884) 54 L.J. Ch. 342

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