Agency is the fiduciary relationship which exists between two persons when one called the Agent is considered in law to represent the other called principal in such a way as to be able to affect the principal’s legal positions in respect of strangers to the relationship by the making of contract or the deposition of property. See GHL Fredman. Per Robert Braegate : The person who is recognized by law as having power to affect the legal right , liabilities and relationship of another called the principal. An agent can be an employee of the principal or an independent contractor. The law sometimes imposes an Agency relationship on the parties though there is no agreement to create an Agency relationship. The agency relationship is said to be concluded on the basis of the observed or observable conduct of the affairs or the intention to deal with each other. When that happens, it is a question of law whether an Agency Relationship exist. Buama v. Oppong- [1992] 2 GLR 213. The defendant was the owner/driver of a commercial vehicle. The plaintiff boarded the defendant’s vehicle as a fare-paying passenger at a lorry station run by the GPRTU on a trip from Accra to Ho. After he had been obliged by the bookman who loaded the vehicle to pay freight for a travelling bag he was carrying the bookman took the bag from him and put it in the boot of the vehicle. However when the vehicle reached Ho, the plaintiff’s bag was not on it. The plaintiff sued the defendant for consequential loss and damages after failing to recover the cost of the bag and items in it. The defendant in defence argued among other things that the bookman was not his agent and therefore he was not vicariously liable for the loss. The court found out that the bookman gave the money he had received from the plaintiff as freight to the defendant and that even though the bookmen were employees of the G.P.R.T.U. they were the ones who dealt directly with the passengers by collecting the fares and freight from them, loading them onto the vehicles and then paying the moneys collected to the drivers. It was held that the agency relationship can be implied by conduct of the parties. thus in a lorry station where bookmen engage in taking transport fares and loading luggages of passengers for a fee a driver or owner of a vehicle cannot claim that the bookmen are not his agents, especially when the transaction was to his knowledge and with his consent. “ if a person represented or permitted to be represented that another had authority to act on his behalf, he would be bound in the same way as he would be if that other had in fact authority to”. Therefore, since the bookman charged for the luggage in the presence of the defendant and gave the fee charged to him, it was clear that the defendant had given ostensible or apparent authority to the bookman to act on his behalf. Accordingly, there was an agent and principal relationship between the bookman and the driver. Per Benin J “...as far as the third party is concerned, he knows not the “bookman.” He goes to a lorry park to board a vehicle to his destination. He knows the vehicle he is going to board has an owner and / or a driver who is going to take him to his destination. He knows the fare he is paying is meant for the owner. if there is a ticket booth at the park and he buys his ticket from there he knows it is the vehicle owner or his agent from whom he has purchased the ticket. If he pays money for any luggage he may have, he knows it is the vehicle owner or his agent who has taken the money from him. He does not go to the station with anybody as his agent nor does he intend to employ one there...the third party knows the ‘bookmen’ to be the agents of the vehicle owners and /or drivers. And moreover the attitude of the vehicle owners and / or drivers in actively co-operating with and allowing the “bookmen” to load their vehicles with goods and passengers lends credibility to the fact that there is an agent-principal relationship between them.”

“From the facts...it is clear the owners and /or drivers have given ostensible or apparent authority to the “bookmen” to act on their behalf. Their conduct and the circumstances of the case clearly justify this since the “bookmen” charged for the luggage in the presence of the defendant and gave the fee charged to the defendant.” “At these lorry parks managed and controlled by the G.P.R.T.U. the usual practice which prevails there, and which I take judicial notice of is that it is the “bookman” who takes the luggage and prefers what fee the third party should pay, and he takes the fee and finds a convenient place on the vehicle owner and /or driver directly for a commission, so that any vehicle owner and /or driver who takes his vehicle to any such station knows that that is the practice or usage there and is bound by it. This effectively the “bookman” in loading the vehicle with goods and /or passengers is the agent of the vehicle owner or driver and the latter is responsible to the third party.”

According to the American Restatement of the law of Agency, 2nd Edition 1958 : Agency is the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control and consent by the other so to act. F.M. Reynolds : BRok C Reynolds on Agency : Agency is the fiduciary relationship which exists between two persons one of expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties and the other of whom similarly consents so to act or to act. The relationship need not be contractual but consensual. That is there exist consent between the parties.

Apparent authority is when you make a presentation that someone has authority and the third party relies on the representation. In the case of Ada Co-opeartive Food Farmers Union Ltd. v. Abodei and Others [1982-83] GLR 114 The plaintiff union bought some tractors and equipment with a loan from the Agricultural Development Bank. The tractors were all registered in the name of the union and the bank. The officers of the union saw the defendants in possession of the tractors and equipment. They made several attempts to retrieve them but failed because the defendants asserted a claim of right on the basis that they had bought the tractors and the attachments from one Azakpoe (A), an officer of the Department of Co-operatives which had guaranteed the loan from the bank. The plaintiff union brought an action for inter alia, recovery of possession of the tractors and their attachments. It was held that only the joint owners had the right of sale in terms of the machinery and not guarantor of the loan. And that there was no evidence that the joint owner had given Azakpoe that right to sell and as such an agency relationship cannot be inferred. “where a person has by words or conduct held out another person, or enabled another person to hold himself out as having authority to act on his behalf, he is bound, as regards third parties, by the acts of such other person to the same extent as he would have been bound if such other person had in fact had the authority which he was held out as having...”. The evidence showed that neither the plaintiff union nor the bank held out Azakpoe as agent by conduct or expressly. Also , that the defense of agency by estoppel would not avail to the defendant. “Agency by estoppel arises where one person has so acted as to lead another to believe that he has authorized a third person to act on its behalf, and that other in such belief enters into transactions with the third person within the scope of such ostensible authority.” Also in the case of BAAH LTD V. SALEH BROTHERS: The plaintiffs were importers of manufactured products who supplied defendants with goods upon the request of the latter. Business transactions were not by written agreements. The plaintiffs used their import license to open letters of credit on the defendants’ behalf and paid bank charges connected therewith and in turn charged the defendants for these expenses plus a commission. The plaintiffs sued that the defendants had failed to pay for some goods supplied to them but the defendants denied the allegation and counter-claimed for some amount overpaid by them. It was held that the conduct of the parties in relation to their business transactions showed an implied agency relationship, where the plaintiffs acquired rights of reimbursement and indemnity in respect of expenses incurred in consequence of the ordering of goods overseas at the request of the defendants. however the plaintiffs failed to adduce sufficient corroborative evidence in support of their allegation of indebtedness and so their claim was denied by the judge. “No one can become the agent of another person except by the will of that person. his will may be manifest in writing or orally, or simply by placing another in a situation in which , according to ordinary rules of law, or perhaps it would be more correct to say, according to the ordinary usages of mankind, that other is understood to represent and act for the person who so placed him; but in every case it is only by the will of the employer that an agency can be created.”