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AN AGENT CANNOT ACT FOR THE SELLER & BUYER AT THE SAME TIME

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Dictum

It must be mentioned that at common law, an agent must not allow his own interest to conflict with his obligation to the principal. Where such a situation occurs to the knowledge of the third party, the contract is voidable at the option of the principal See Armstrong v. Jackson 2 KB 822; Allied Trading Co. Ltd. v. G.B.N. Line (1985) 2 NWLR (Pt. 75) 74. This common law position is supported by Article 21 of the Rules and Regulation (Exh. AO13) – the Constitution of the Nigerian Institution of Estate Surveyors and Valuers. The interest of the appellant to represent both buyer and seller and claim agency fees from both sides has conflicted with his obligation to the vendor who rightly took the option in my view to terminate the agency appointment. That puts to an end whatever transaction that seemed to be going on between the appellant and the respondent in respect of the property. It would appear that the appellant breached both the Common Law of Agency and the Rules and Regulations of the body he professed to belong to.

— Rowland, JCA. Alex O. Odudu v. Emmanuel O. Onyibe (CA/B/138/98, 15 Mar 2001)

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AN AGENT NEED NOT BE AUTHORISED IN WRITING

We think that this direction has only a dubious application to the facts of this case. First of all it should be realized that the agent need not be authorized in writing. See Heard v. Pilley (1869) L.R. 4 Ch. App. 548 (esp. per Selwyn L.J. at pp. 551, 552); and indeed the name and the identity of the principal on whose behalf the agent acts need not be disclosed; It is the duty of the court in all cases to study the memorandum referred to and then to draw the correct inferences from its contents. In the case of Davies v. Sweet (1962) 2 Q.B. 300, Danckwerts L.J. (delivering the judgment of the Court of Appeal) observed concerning this same point as follows at pp. 305. “But such an authority may be conferred upon an estate agent expressly or may be inferred from the circumstances of the case. It seems to me that authority to enter into a contract on behalf of the defendant should be inferred from the circumstances of this case. The way in which Phillips (the elder) dealt with the plaintiff suggests that he had authority to enter into a contract for the sale of the property and to fix the price, and the letters written by the defendant seem to me to confirm this position.”

– Coker, JSC. Rosenje v. Bakare (1973)

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