KOFI SUNKERSETTE OBU V. A. STRAUSS & COMPANY LIMITED

KOFI SUNKERSETTE OBU

V.

STRAUSS & COMPANY LIMITED

THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

29TH DAY OF JANUARY, 1951

2PLR/1951/8 (PC)

OTHER CITATION(S)

2PLR/1951/8 (PC)

(1951) XII WACA PP. 281 – 283

LEX (1951) – XII WACA 281 – 283

BEFORE THEIR LORDSHIPS:

LORD RADLIFFE,

LORD TUCKER,

SIR JOHN BEAUMONT,

SIR LIONEL LEACH

BETWEEN

KOFI SUNKERSETTE OBU – Appellant

AND

1. STRAUSS & COMPANY LIMITED – Respondents

ISSUE(S) FROM THE CAUSE(S) OF ACTION

COMMERCIAL LAW:- Principal and agent— Agency contract— Commission— Basis and rate left to discretion of principal-Claim for account and payment of commission— Court incompetent to grant relief claimed.

CASE SUMMARY

By an agreement signed by the appellant, who was the agent in West Africa of the respondent company for the purchase and shipment of rubber to the company in London, it was provided, inter alia, that “the company has agreed to remunerate my services with a monthly sum of fifty pounds — subsequently reduced to £20 to cover my personal and travelling expenses … A commission is also to be paid to me by the company which I have agreed to leave to the discretion of the company”. The respondents, after the termination of the appellant’s employment, having instituted proceedings against him claiming money alleged to be due from him as their agent, he entered a counter-claim for an account to be taken between them of all rubber shipped by him between specified dates, and for commission on all the rubber purchased by him for the respondents. On appeal against the dismissal of his counter-claim:-

DECISION(S) OF THE PRIVY COUNCIL

Held: That the relief which the appellant claimed by his counter-claim was beyond the competence of any court to grant. The court could not determine the basis and rate of commission: To do so would involve not only making a new agreement for the parties, but varying the existing agreement by transferring to the court the exercise of a discretion vested in the respondents.

Way v. Latilla (2) considered.

Cases referred to:

(1)    Bryant v. Flight, 151 E.R. 49.

(2)    Way v. Latilla (1937), 3 A.E.R. 759; 81 Sol. Jo. 786.