"So then he call me. He tell me about the property. I said, 'Go ahead, but contact Howard [scil. Richard Howarth], a British man.' When I found out it's a Nigerian I say, 'Get in touch with the British man so I can know the truth what's going on.' Then I phoned Howard and said, 'This man is going to call. Please monitor what's going on, tell me the truth regards …” “I just ask him, 'Go ahead'—and it is less than two minutes—'Go ahead, contact Richard.' [Q. And that was really it?] Yes, because I know Richard, I don't know Obahor very well. So get in touch with Richard. Richard will advise me, tell me truth."
“My advice, for what it is worth, is to concentrate on your end of the transaction and leave Prince to his side. If he is serious then you will get the funding, but in his time, which no amount of pushing and shoving will alter. He will understand the urgency—it is your job to buy him as much time as you can.”
“Re: Purchase of 86 Uphill Road, Millhill London NW7 4QE I Prince Arthur Ikpechukwu Eze . . . write to confirm that I have authorised Mr Richard Obahor of Fresco . . . to act on my behalf for the purchase of my the (sic) above property. Mr Richard Obahor will be in regular contact with you throughout the whole purchase process, kindly avail him of what is necessary to facilitate the process as and when required.”
“A. Fresco Property Services UK Ltd and 'The Buyer' have entered into a primary agreement that 'the provider' (sic) will source for a property for the buyer (sic) for residential or investment purposes. B. Fresco Property Services UK Ltd has succeeded in securing for your purchase 86 Uphill Road, Millhill London NW7 4QE C. 'The Buyer' agrees to pay A.Fresco (sic) Property Services UK Ltd the fee of£150,000 (One Hundred and Fifty Thousand Pounds) being 3% of the purchase price for this service facility. The Buyer agrees to pay the fee on the day of the completion via the solicitors. D. This Agreement shall be governed by and construed in accordance with the laws of England and Wales”
“An email sent by Mr Howarth to Prince Eze the following morning shows the nature of the conversation: "Following our telephone conversation last night I am enclosing a copy of the agreement you entered into with Richard Obahor along with a copy of the letter given to the solicitors authorising him to act on your behalf. I will speak to Nicky Corner this morning and report back with her summary of the position and recommendations for the way forward. If you no longer with [scil. wish] Richard Obahor to be involved then it would be sensible to send BPE Solicitors a letter along the lines of the attached. I will report back as soon as I have further news." An attachment to the email was a draft letter from Prince Eze to BPE Solicitors rescinding Mr Obahor's authority, instructing them to act only on his (Prince Eze's) instructions, but permitting them to discuss all matters relating to the transaction with Mr Howarth. Prince Eze signed the letter. It is uncertain whether he sent it to the solicitors, but his evidence was that he had done so.”
“112. When Mr Obahor first contacted Prince Eze, on27 April 2015 , he told him of the opportunity to purchase the Property, told him it was a good deal, and told him of his requirement for a commission of 3% of the purchase price. Prince Eze said that he would proceed with the purchase and told Mr Obahor to contact Mr Howarth in order to progress matters. None of that involves either agency or any other kind of relationship that could fall within the scope of the rules on bribes or secret commissions. Mr Obahor was, so to speak, presenting a pre-packaged deal for which, if it were taken up, he required a percentage commission. So far from being an agent, he was in substance a salesman acting on his own behalf and for his own commercial interest. Nothing in the initial conversation entitled Prince Eze to assume that Mr Obahor would not get paid by the vendors. There was no inherent reason why he should not be paid by either side or, indeed, by both. There is nothing untoward or particularly unusual in an introducing agent receiving commission from both parties to a transaction; cf. Bowstead at para 1-020, above. In the present case, Mr Obahor had not even acted as agent for Prince Eze in sourcing the Property. Further, by 27 April the Conways had already agreed in principle to pay a fee to Mr Obahor. As a matter of fact there was nothing objectively wrong in them so agreeing. Prince Eze did not know that the Conways were to pay Mr Obahor, but nor did they know that Prince Eze was to pay him. That is the context in which subsequent events are properly to be considered. 113. Mr Obahor was told to contact Mr Howarth in order to progress matters. He was not thereby made an agent in any significant sense of the word. Despite his efforts to persuade me of the contrary, Prince Eze was looking to Mr Howarth to oversee matters and give him any necessary advice. That does not, of course, mean that he expected Mr Howarth to give advice as to the property market or the merits of the Property. It means, rather, that, trusting Mr Howarth from long association, Prince Eze was relying on him to ensure that the transaction proceeded properly—to "tell [him] the truth", as he put it. As Mr Obahor had acknowledged on 6 May (with particular reference to finance) and again on 24 June (with more general reference), Prince Eze wanted everything to go through Mr Howarth. As Prince Eze acknowledged, he did not have any real knowledge of Mr Obahor. Contrary to his present claims to the contrary, he did not regard Mr Obahor as a trusted adviser; rather he was someone who could provide a ministerial service in progressing matters. 114. What followed until late June 2015 was at most an attenuated form of agency. Mr Obahor was not being instructed to do anything beyond facilitate the progress of a transaction that was desired by both vendor and purchaser and was intended to be to their mutual advantage. He had authority to receive and communicate information but he had no ability to affect Prince Eze's legal position vis-à-vis the Conways. The directors of Azarvale, acting through Mr Chick, had the legal control of the transaction and Mr Howarth was in charge of the financial side. Mr Obahor's function was to chivvy them and Prince Eze to do their bit when required and to encourage the Conways in the face of prolonged delays. In instructing surveyors, he was performing a ministerial function on the instructions of Mr Chick for Azarvale. I reject the suggestion that the fact that he either did or could perform that function in a manner that was capable of affecting the outcome of the process constituted him a fiduciary within the terms of Christopher Clarke J's dictum properly understood. Whether the information provided by the surveyors was satisfactory for the purposes of the purchase was a matter for the directors of Azarvale and, subsequently, for Prince Eze. The context, already mentioned, remains important: Mr Obahor had introduced the transaction as a salesman, not as an agent; he had his own commercial interest in the transaction proceeding, and there was nothing untoward in either or both parties paying for the introduction. The only promise of payment by the Conways was of commission for the introduction, upon completion. They did not, for example, promise to pay a fee for the use of a particular surveyor. In my judgment, matters stood essentially as they had done at the outset on 27 April. 115. The final stage came with the signing of the documents on 25 June. It is at this stage that Prince Eze gave to Mr Obahor an authority that was, as Mr Howarth observed, very unusual for an acquisition agent. However, the following matters need to be borne firmly in mind. First, the agreement to pay Mr Obahor was made in principle before there was any relationship at all between him and Prince Eze and was formalised at a time when Mr Obahor was not Prince Eze's agent in any relevant sense. Second, the basic context, as mentioned above, remained unchanged. Third, Prince Eze had signed the purchase contract. The only provision remaining to be completed was the completion date. Fourth, the authority given to Mr Obahor was for the purpose of dealing with the solicitors to bring the purchase to fruition. Having regard to the terms of the letter of authority and to the fact that Prince Eze had signed the contract, Mr Obahor's authority could not properly be construed as extending to anything other than progressing the purchase in accordance with the agreed terms of the contract. Mr Obahor certainly did have authority to instruct the solicitors to exchange contracts; that, however, was simply authority to instruct them to make the contract that Prince Eze had signed. There is nothing to indicate that he had authority to change the terms of the agreement. Fifth, the only contractual term that remained outstanding was the completion date. This concerned not the substance of the agreement but the time when the agreement would be completed. Even if the promise of payment made at a time when no relevant agency existed could in principle engage the law on bribes, it is fanciful to think that in the circumstances as they obtained the question concerning the completion date created a position of potential conflict of interest and duty. Moreover, the facts show that on this matter Mr Obahor acted on instructions from Mr Howarth and Prince Eze himself. The true position, in my judgment, is that Mr Obahor's authority was, as Mr Collings submits, ministerial for the purpose of facilitating the progress of the contract that Prince Eze had signed and wanted brought to fruition. Insofar as this involved him in making decisions on what he rightly regarded as minor points, there was no real as distinct from fanciful conflict between his interest and his duty.”
“…the task for this court in looking to see whether the judge was ‘wrong’ so that the appeal should be allowed is to ask whether the judge had legitimate and proper grounds for reaching the decision [s]he did, rather than simply for this court to approach the matter completely afresh and make up its own mind without regard to what the judge decided.”
“29…Where an appeal is to proceed, like this one, by way of a review of the judgment below rather than a re-hearing, it will often be appropriate for this court to give weight to the assessment of the facts made by the judge below, even where that assessment has been made on the basis of written evidence which is also available to this court. The weight to be given to the judge’s own assessment will vary depending on the circumstances of each particular case, the nature of the finding or factual assessment which has been made and the nature and range of evidential materials bearing upon it. Often a judge will make a factual assessment by taking into account expressly or implicitly a range of written evidence and making an overall evaluation of what it shows. Even if this court might disagree if it approached the matter afresh for itself on a re-hearing, it does not follow that the judge lacked legitimate and proper grounds for making her own assessment and hence it does not follow that it can be said that her decision was ‘wrong’.”
“Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”
“Bribery 104. In Industries and General Mortgage Co Ltd v Lewis[1949] 2 All ER 573 Slade J defined a bribe as follows (at page 575): 'For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent.' 105. A bribe was defined even more succinctly by Leggatt J, as he then was, in Anangel Atlas Compania Naviera SA v IshikawajimaHarima Heavy Industries[1990] 1 Lloyd's Rep 167 at 171, as: 'A commission or other inducement which is given by a third party to an agent as such, and which is secret from his principal.' 106. The essential character of a bribe is, thus, that it is a secret payment or inducement that gives rise to a realistic prospect of a conflict between the agent's personal interest and that of his principal. The bribe may have been offered by the payer or sought by the agent. There is no need to establish dishonesty or corrupt motives. This is irrebuttably presumed - Re A Debtor[1927] 2 Ch 367 at 376 (per Scrutton LJ – "the court ought to presume fraud in such circumstances"). A bribe encompasses not just a payment of money but the conferring of any advantage or benefit, and may be an actual benefit or merely the promise of a benefit held out by the payer or an expectation of one. The motive for the payment or inducement (be it a gift, payment for services or otherwise) is irrelevant. In Fiona Trust v Privalov [2010] EWHC (Comm) at para 73 Andrew Smith J contemplated that moonlighting for a person engaged in transactions with the principal might well give rise to a conflict between the agent's interest and duty and that the reward for his services might count as a bribe. 107. The payments (or other benefits) do not have to be made directly to the fiduciary. Bribes may be paid to third parties close to the agent, such as family members or discretionary trusts, or simply to those whom the agent wishes to benefit. The test is whether the payment (or other benefit) puts the fiduciary in a real (as opposed to a fanciful) position of potential conflict between interest and duty. 108. The recipient of the bribe (or the person at whose order the bribe is paid) must be someone with a role in the decision-making process in relation to the transaction in question e.g. as agent, or otherwise someone who is in a position to influence or affect the decision taken by the principal. There is, however, no need to show that the payer intended the agent to be influenced by the payment or whether he was in fact influenced thereby. There is an irrebuttable presumption as to both, and that the principal has suffered damage in the amount of the bribe - Hovenden & Sons v Milhof(1900) 83 LT 41 CA per Romer LJ at page 43; Industries & General Mortgage Co Ltd v Lewis (above) at per Slade J at pages 576 to 578; Mahesan v Malaysian Housing Society[1979] AC 374 PC at pages 380E and 383A-C; Daraydan Holdings Ltd v Solland International Ltd[2005] Ch 119 ,per Lawrence Collins J at para 53. 109. The payment need not be linked to a particular transaction - Daraydan Holdings v Solland International (above) at para 53; Fiona Trust v Privalov [2010] EWHC (Comm) at para 73 (per Andrew Smith J). It is sufficient if the agent is tainted by the bribery at the time of the transaction between the payer of the bribe and payee's principal. If that is so, the agent's conflict of interest means that the principal has been deprived by the other party to the transaction of the disinterested advice of his agent and is entitled to a further opportunity to consider whether it is in his interests to affirm it. It follows that subsequent transactions may be tainted by payments linked to an earlier transaction between the parties, or by a payment not linked to any particular transaction. "If a secret payment is made to an agent, it taints future dealings between the principal and the person making it in which the agent acts for the principal or in which he is in a position to influence the principal's decisions, so long as the potential conflict of interest remains a real possibility": see Fiona Trust at para 73. 110. The underlying rationale for the strict approach taken by the cases is that a principal is entitled to be confident that an agent will act wholly in his interests.”
“38. Obviously if there has been no disclosure the agent will have received a secret commission. This is a blatant breach of his fiduciary duty but additionally the payment or receipt of a secret commission is considered to be a form of bribe and is treated in the authorities as a special category of fraud in which it is unnecessary to prove motive, inducement or loss up to the amount of the bribe. The principal has alternative remedies against both the briber and the agent for money had and received where he can recover the amount of the bribe or for damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given. (Mahesan v Malaya's Housing Society[1979] AC374 , 383). Furthermore, the transaction is voidable at the election of the principal who can rescind it provided counter-restitution can be made. (Panama & South Pacific Telegraph Co. v India Rubber, Gutta Percha, and Telegraph Co. [1875] 9 Ch App 515, 527, 532-3). 39. But "the real evil is not the payment of money, but the secrecy attending it" (Chitty L.J. in the leading case of Shipway v Broadwood[1899] 1 QB 369 , 373). . .”
“The facts and circumstances must be carefully examined to see whether in fact a purported agent and even a confidential agent is in a fiduciary relationship to his principal. It does not necessarily follow that he is in such a position (see In Re Coomber).”
“In most of these cases [viz. cases in which the servant or agent has realised a secret profit, commission or bribe in the course of his employment] it has been assumed that the plaintiff, in order to succeed, must prove that a 'fiduciary relation' existed between himself and the defendant and that the defendant acted in breach of this relation. But the term 'fiduciary relation' in this connexion is used in a very loose, or at all events a very comprehensive, sense. A consideration of the authorities suggests that for the present purpose a 'fiduciary relation' exists (a) whenever the plaintiff entrusts to the defendant property … and relies on the defendant to deal with such property for the benefit of the plaintiff or for purposes authorized by him, and not otherwise … and (b) whenever the plaintiff entrusts to the defendant a job to be performed, for instance, the negotiation of a contract on his behalf or for his benefit, and relies on the defendant to procure for the plaintiff the best terms available …”
“Prince has clearly indicated he wants all requirements/funding instructions to come from you. So please do send him or call him with all the instructions as required . . . Kindly keep me updated.”