Adeaga v Ajayi, 2023 ABCJ 289

In the Alberta Court of Justice Citation: Adeaga v Ajayi, 2023 ABCJ 289 Date: 20231222 Docket: 2290302650 Registry: Edmonton Between: Adeniyi Olalekan Adeaga Plaintiff - and - Olabode Ajayi Defendant Reasons for Judgment of The Honourable Justice S.L. Corbett I. Introduction [ 1 ] Adeaga sues Ajayi for CAD$47,954.24 because he says that Ajayi breached an agreement between them because Ajayi transported cattle they imported from South Africa to Nigeria, on arrival in Nigeria, to Ajayi’s Nigerian farm as opposed to immediately transporting the cattle to Adeaga’s Nigerian farm.

Adeaga refused to accept delivery of the cattle he purchased thereafter asserting that the cattle had been exposed to a “biosecurity threat” on Ajayi’s farm. [ 2 ] Adeaga is asking for “the present dollar value” of his cattle in the Nigerian market which he calculates at a 150% profit for 3 Holstein heifers for a total of CAD$31,875.35 [1] , and a 200% profit for 1 Holstein bull for a total of CAD$15,972.89 [2] . His Civil Claim alleges that his heifers would be pregnant and producing calves, and that he lost the opportunity to breed his bull with local cattle.

Adeaga claims for the value of his cattle less a “clearing” fee, profit, the import permit cost, and truck and logistics costs. [ 3 ] Ajayi denies that he owes Adeaga anything, and counterclaims for CAD$50,000 because he says that Adeaga breached the agreement between them by failing to pay his share of the import costs. [ 4 ] Ajayi says that Adeaga abandoned his cattle on Ajayi’s Nigerian farm, and that Adeaga owes him for expenses related to caring for Adeaga’s cattle from November 21, 2021, including the cost of import quarantine, laboratory tests, feed, and veterinarian treatment, and management costs.

Ajayi alleges that he has a claim for damages for stress and unexpected expenses as itemized. He points out that the events that Adeaga complains about in his Civil Claim took place in South Africa and Nigeria, not in Canada. [ 5 ] The agreement that Adeaga and Ajayi say was breached was formed through WhatsApp communications where the parties agreed to purchase and import cattle into Nigeria from South Africa for their respective farms. Ajayi’s son was also part of the cattle importing group, but he was not sued by Adeaga in this action. II. Jurisdiction and Forum

[ 6 ] This action involves a contract that was formed through WhatsApp communications with two of the parties in Canada, and the other party in the UK [3] . The contract was performed entirely in South Africa and Nigeria.

The contract was allegedly breached in Nigeria. [ 7 ] At trial, neither party raised the issue of jurisdiction or the proper forum to resolve the dispute, although Ajayi did point out that the events complained of by Adeaga took place in South Africa and Nigeria, not in Canada, in his Dispute Note. [4] [ 8 ] There are four presumptive connecting factors that give rise to a “real and substantial connection” and entitle a court to assume jurisdiction in a tort case including: a. The defendant is a resident in the province; b. The defendant carries on business in the province; c.

The tort was committed in the province; and d. A contract connected with the dispute was made in the province. [5] [ 9 ] These principles were extended to contract cases in Alberta, with the following four presumptive connecting factors: e. The defendant is a resident in the province; f. The defendant carries on business in the province; g. A contract or alleged contract is made, performed, or breached in Alberta; and h.

A tort connected with the contract was committed in Alberta. [6] [ 10 ] In this case, Alberta has presumptive jurisdiction because Ajayi is a resident. [ 11 ] It is not clear whether the contract was made in Alberta. Two of the parties to the agreement were in Alberta and one was in the UK. The agreement resulted from communications exchanged on WhatsApp, which is a messaging app.

Neither party tendered evidence or argument to address the issue of where a contract is “made” when it results from WhatsApp communications between individuals who are in Alberta and individuals who are outside of Alberta. [7] [ 12 ] Had the issue of jurisdiction been raised, the presumption may have been rebutted on the basis that the contract was entirely performed outside of Alberta, it was allegedly breached outside of Alberta, and many of the witnesses were in Nigeria or South Africa. [ 13 ] The court might have declined to exercise its presumptive jurisdiction based on the doctrine of forum non conveniens where a court declines to exercise its jurisdiction on the basis that another jurisdiction might be “clearly more appropriate”. [8] This analysis requires the court to consider whether it would be fairer and more efficient to proceed in an alternative forum. [9] In this case, the most obvious alternative forum would have been Nigeria. [ 14 ] This court may not have been the most appropriate forum to hear this dispute.

Both parties to this case were self-represented litigants. In future cases, this court may need to consider whether it should engage in an analysis of jurisdiction simpliciter and forum non conveniens in cases where there may be concern that fairness and efficiency call for another forum to adjudicate the parties’ dispute. While this court is a forum for expeditious and inexpensive dispute resolution [10] , this court has an obligation to maintain control over its proceedings and procedures, and to ensure compliance with the law. [11] III.

Preliminary Evidentiary Issues [ 15 ] Both parties tendered lengthy excerpts from WhatsApp communications in support of their claims. [ 16 ] Adeaga tendered excerpts that contained communications between himself, and individuals not parties to the action with no objection from Ajayi. Ajayi likewise tendered excerpts from WhatsApp communications with no objection from Adeaga. Both parties suggested that they had selected the communications relevant to the dispute between the parties. [ 17 ] The excerpts were difficult to follow because they did not appear to have been organized in chronological order.

Many of the excerpts were undated, and it was not clear who was communicating with whom. [ 18 ] Some of the WhatsApp communications contained statements made by individuals who did not give evidence at trial. These were out-of-court statements. [ 19 ] As the trial progressed, it became clear that there were two categories of out-of-court statements that Adeaga hoped to rely on. The first category was evidence that Adeaga tendered to “understand the unfolding of events” [12] .

Adeaga referred to communications about how the group formed, how they came to the agreement, which was the subject of this action, etc. as part of the narrative. These communications were not tendered for the truth of their contents and will not be considered as anything more than narrative. [ 20 ] The second category were communications that Adeaga hoped to rely for the truth of their contents with no opportunity being afforded to Ajayi to cross-examine these individuals.

These included, for example, communications between Adeaga and his farm worker, Adeaga and the livestock shipper, etc. related to the dispute between the parties. These statements contravened the rule against hearsay, and ought not to have been admitted at trial, given the purpose of their proposed admission and the absence of contemporaneous cross-examination. [13] There were no applicable hearsay exceptions. These statements will not be relied upon in coming to a decision in

this case. [ 21 ] Adeaga also purported to rely on his own WhatsApp communications in both direct and cross-examination. While cross- examining Ajayi, Adeaga put the text of some of his own WhatsApp communications to Ajayi and asked him to confirm that he (ie. Adeaga) had sent the message in question. When Ajayi’s answer contextualized the message in response, Adeaga repeatedly responded to Ajayi’s answer by making a statement which referred to his own WhatsApp message.

This was improper cross-examination, and Adeaga was admonished to conduct a proper cross-examination by asking questions as opposed to attempting to give further evidence after his case was closed. [ 22 ] Adeaga’s attempt to rely on his own WhatsApp communications raises the issue of prior consistent statements, and the use that a trial judge may put to the same.

A trial judge may not use a prior consistent statement to support the inference that a witness’s testimony is more likely to be true because it has been repeated. [14] Permissible uses are limited to including admissions against interest, providing context, rebutting an allegation of recent fabrication, and as the narrative as circumstantial use exception. [15] None of those permissible uses were apparent in this case.

It is not appropriate for a party to attempt to bolster their own credibility by attempting to rely on their own prior consistent statements, and that improper inference will not be drawn in this case. IV. Issues and Brief Answers • Was there a legally enforceable contract between the parties? Brief Answer: There was a legally enforceable contract between the parties, and the parties’ failure to divide the cattle between themselves at the time of purchase did not make the contract invalid because of uncertainty. • Was there an agency relationship between the parties, and if so, what was its scope?

Brief Answer: The agreement between the parties created an agency relationship between Adeaga and Ajayi with the goal of importing cattle to Nigeria. Ajayi acted as agent for Adeaga to purchase and import cattle to Nigeria on his behalf. Ajayi was authorized to give directions, make decisions, and pay expenses in accordance with the express and implied authority granted by the agency agreement. • Was there a breach of contract?

Brief Answer: Adeaga did not prove that Ajayi breached the contract on any of the grounds alleged including failing to pay for the import permit application fee; failing to obtain multiple quotes or prior approval before hiring a customs clearing agent; quarantining the cattle at his farm; or exposing the cattle to a biosecurity risk. Ajayi did prove that Adeaga breached the contract because Ajayi did not pay his share of the import costs. • What remedies should flow? o In favour of Adeaga? Brief Answer: Adeaga did not prove any breach of contract.

He is not entitled to any damages because he failed to prove his case. His action against Ajayi is dismissed. o In favour of Ajayi? Brief Answer: Ajayi proved that Adeaga breached the contract. Ajayi is entitled to damages for Adeaga’s share of the import costs which Adeaga wrongfully failed to pay in the sum of $3,704.38. Ajayi is also entitled to damages for caring for Adeaga’s cattle in the sum of $4,480. The total damages to which Ajayi is entitled because of Adeaga’s breach of contract is $8,184.38.

I determine that title to and the right of possession of the 1 Holstein heifer that remains with Ajayi belongs to Ayaji; however, the cost of the heifer ($4,081.98) will be deducted from the damages owed to Ajayi to prevent a windfall to him and to prevent unfairness to Adeaga. The agency relationship between Ajayi and Adeaga is terminated. The net Judgment against Adeaga in favour of Ajayi on Ajayi’s Counterclaim is CAD$4,102.40 plus interest plus costs. V. Was there a legally enforceable contract between the parties? A.

Evidence [ 23 ] While in Canada, Adeaga and Ajayi (and Ajayi’s son) agreed in WhatsApp communications to purchase and import cattle into Nigeria from South Africa for their respective farms.

[ 24 ] Based on the WhatsApp communications and the parties’ testimony, I find that the parties agreed on the following terms: Purchase a. The parties would buy 14 yearling [16] cattle from a South African livestock farm (CVS Boerdery Pty Ltd or “CVS”); b. Adeaga would buy 3 Holstein [17] heifers and 1 Holstein bull; c. Ajayi would buy 3 Holstein heifers, 2 Brahman heifers and 1 Brahman bull; d. Ajayi’s son would buy 3 Holstein heifers and 1 Holstein bull; e. The parties would buy the cattle separately for their own farms (as opposed to jointly); f.

The parties agreed to the price that each would be paying for their respective cattle; Agency [18] g. Ajayi would source and purchase the cattle from CVS, and each party would provide payment to CVS through Ajayi; h. Ajayi would arrange for the import of the cattle to Nigeria and distribution of the cattle to the parties’ respective farms; Extra Care Costs Before Import i. The parties would share the costs of caring for the cattle before they were imported to Nigeria; Import and Shipping Costs j. The parties would share the costs of importing the cattle to Nigeria; and Distribution of Cattle After Import k.

The cattle would be distributed to the parties’ respective farms after successful import. [ 25 ] The parties did not address how the cattle would be divided between the group, except for the Brahman cattle which were being purchased by Ajayi only. [ 26 ] The documentation from CVS [19] indicates that the heifers were born in July 2020, and that the bulls were born in April 2020. There was no direct evidence substantiating any difference in the size or weight of the cattle purchased.

Adeaga testified about communications with the livestock shipper Lewis regarding differing sizes or weight of the cattle when the cattle were shipped. This hearsay evidence will not be relied on for the reasons outlined in Paragraph 21. [ 27 ] After the cattle arrived in Nigeria, the parties did not agree how to divide the cattle, and how to determine who would get which cattle. Adeaga says that his cattle are on Ajayi’s farm. Ajayi says that two of Adeaga’s three heifers are on another individual’s Nigerian farm [20] , and that he only ever had one of Adeaga’s heifers and the bull (that died in September 2022).

Ajayi’s son ended up with three Holstein heifers and one bull. Neither Adeaga nor Ajayi suggest that the cattle in Ajayi’s son’s possession are Adeaga’s cattle. B. Analysis [ 28 ] To be valid and enforceable, a contract must be certain. [21] [ 29 ] The following principles apply: [22] a. The test for

interpretation and certainty is objective; b. The rule is not just a technicality; c. A supposed contract with an uncertain material term is not a contract, and is usually impossible to perform or enforce; d. Essential terms must show with a reasonable degree of certainty what the parties meant (including terms beyond parties, property, or price); e. The type of contract determines what terms are essential; [23] f. Unfair and unreasonable attitudes by one party to negotiating is irrelevant; g. The parties’ views on whether they had a contract is irrelevant, especially where it has not been performed; h. Uncertainty of terms may be saved in certain circumstances; [24]

i. Invalidity from uncertainty need not be raised immediately; and j. If no valid contract existed because of uncertainty, the parties’ conduct is irrelevant. [ 30 ] The agreement between the parties arose from WhatsApp communications. The agreement relates to the purchase and import of cattle into Nigeria from South Africa. The terms identify the parties (Adeaga, Ajayi, and Ajayi’s son), the property (14 cattle), and the price (the cost of the cattle).

The terms demonstrate that the parties agreed what breed and sex of the cattle that they were each purchasing, who the cattle would be purchased from, how the cattle would be purchased, how the cattle would be imported to Nigeria, that the cattle would be divided between them, and that they would share costs related to care of the cattle and import of the cattle to Nigeria. [ 31 ] I find that the terms of the agreement between Adeaga and Ajayi show with a reasonable degree of certainty what the parties meant. [ 32 ] Part of the dispute between the parties relates to a disagreement about how to divide the 9 Holstein heifers and 2 Holstein bulls between Adeaga, Ajayi, and Ajayi’s son.

While the breed and sex of the cattle were essential terms of the contract, I find that the exact heifers and bulls that the parties were purchasing, or the exact size or weight of the cattle were not essential terms of the contract. The heifers were born in July 2020, and the bulls were born in April 2020. There was no direct evidence substantiating any difference in the size or weight of the cattle which were purchased.

I find that the parties’ failure to address how the cattle would be divided between the group, beyond breed and sex, does not make the agreement void for uncertainty. [ 33 ] Based on those reasons, I find that the contract is valid and legally enforceable. VI. Was there an agency relationship between the parties, and if so, what was its scope? A. Evidence [ 34 ] As outlined in Paragraph 24, the parties agreed that Ajayi would source and purchase the cattle from CVS on behalf of the group. Each party would provide payment to CVS through Ajayi.

The parties agreed that they would share the cost of caring for the cattle, and the cost of importing the cattle. [ 35 ] In accordance with the agreement, Ajayi purchased 9 Holstein heifers, 2 Holstein bulls, 2 Brahman heifers, and 1 Brahman bull in July 2021. The CVS invoice is dated 2021/06/09; however, Ajayi’s Royal Bank of Canada Funds Transfer documentation is dated July 7, 2021. I find that the cattle were purchased from CVS in July 2021 (not in June 2021). [ 36 ] Adeaga provided Ajayi with CAD$7,489 for his 3 heifers and bull [25] .

Each heifer was approximately CAD$1596.60 [26] and each bull was approximately CAD$2,661 [27] . [ 37 ] The purchase documentation from CVS was in Ayaji’s name, and in the name of his Nigerian farm, Eunice and Likkle Farm Ltd. [ 38 ] After the cattle were purchased, Ajayi continued to act as a liaison between the group, CVS, and the livestock shipper. [ 39 ] In August 2021, the cattle were quarantined in South Africa, and laboratory tests were required.

Ajayi paid CVS on August 3, 2021 [28] , and Adeaga reimbursed Ajayi CAD$528 for his share on August 28, 2021. [ 40 ] The parties agreed that Adeaga would complete and submit the import permit application to the Nigerian authorities, which he did, on September 13, 2021. The cost of the application, NGN42387 [29] (approximately CAD$131.40) [30] , was to be shared between the group members [31] .

Adeaga complains that Ajayi and Ajayi’s son did not pay their share of the import permit application fee. [ 41 ] Although Adeaga filled out the import permit application, the consignee was Ajayi and his farm, Eunice and Likkle Farm Ltd. A “consignee” is generally a shipment receiver. [32] The import permit application indicates that Ajayi and his farm were the importer. The application does not name either Adeaga or Ajayi’s son. The payment receipt for the import permit identifies the Payer as Ajayi in the “Payer Information” section, although the email address appears to be that of Adeaga.

Adeaga says he used his Nigerian bank card to pay for the import permit application; however, he did not produce any bank receipts confirming payment. [ 42 ] Permission to import the cattle into Nigeria appears to have been granted on November 11, 2021, as evidenced by a letter indicating that Ajayi and his farm had permission to import the cattle into Nigeria. The letter says it was issued in lieu of an import permit.

The permission to import was only valid until November 25, 2021. [33] [ 43 ] Once import permission was secured, Ajayi worked with CVS and the livestock shipper to arrange to ship the cattle from South Africa to Nigeria. [ 44 ] Extra feeding costs and veterinary costs arising from the delay in securing the import permit as well as freight/shipping costs to ship the cattle from South Africa to Nigeria were invoiced by CVS in November 2021 [34] . [ 45 ] Ajayi paid CAD34,775.18 to CVS on November 15, 2021, to satisfy the invoice dated November 11, 2021, totalling ZAR417,430 for these expenses.

He asked that Adeaga reimburse him for his share, which Ajayi calculated to be CAD$10,594.56 [35] . Adeaga’s share included his share of the CVS invoice, his share of bank charges, and his share of Ajayi’s airfare to Nigeria.

[ 46 ] Adeaga reimbursed Ajayi CAD$6,900 on November 15 and CAD$2,500 on November 17, 2021. On November 17, 2021, Adeaga messaged he would “send the rest tomorrow”; however, on November 20, 2021, Adeaga sent CAD$541.50 for a total of CAD$9,941.50 (leaving a balance of approximately CAD$650). Adeaga told Ajayi that he had no remaining balance owing, and he said that he was not contributing to Ajayi’s airfare to Nigeria to meet the cattle shipment. By this time, Ajayi had already flown to Nigeria to meet the cattle shipment, and to facilitate their import into Nigeria on behalf of the group. B.

Analysis [ 47 ] Agency has been defined as: “…the fiduciary relationship which exists between two persons, one of whom expressly or implicitly manifests assent that the other should act on his behalf so as to affect his legal relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The one on whose behalf the act or acts are to be done is called the principal. The one who is to act is called the agent.” [36] [ 48 ] An agency relationship requires three essential elements: a. Consent of the principal and agent; b.

Authorization of the agent to affect the principal’s legal position; and c. Control by the principal over the agent’s actions. Points (

b) and (

c) often overlap as the principal’s control over his/her agent’s actions is found in the authority given to the agent. [37] [ 49 ] Agency agreements may be oral or written. If oral, the scope of an agent’s express authority is determined by resolving the terms the principal and agent agreed.

If necessary, the court will construe the terms in the context of the surrounding circumstances. [38] [ 50 ] Agency may be express or implied, or both. [39] Implied authority includes “all subordinate acts which are necessary or ordinarily incident to the exercise of … express authority”. [40] An agent has implied authority to do all acts necessary for him/her to accomplish the objective of the agency relationship. [41] [ 51 ] I find that the agreement between the parties created a consensual agency relationship between Ajayi, as agent, and Adeaga, as principal, with the goal of importing cattle from South Africa to Nigeria. [ 52 ] I find that Adeaga expressly authorized Ajayi: • to purchase cattle on his behalf from CVS; • to pay for expenses related to caring for the cattle; and • to arrange for shipping of the cattle. [ 53 ] In accordance with that express authority, Ajayi carried out his agreed role as agent on behalf of Adeaga and the group.

He worked with CVS to source the cattle. He purchased the cattle from CVS. He paid CVS for laboratory tests related to quarantine in August 2021. When the import permit was granted, he worked with CVS and the shipper to arrange to ship the cattle from South Africa to Nigeria. He paid CVS for extra feeding, veterinary, and freight/shipping costs. Apart from Ajayi’s airfare, Adeaga reimbursed Ajayi for his share of these expenses.

There was no evidence that Adeaga was unsatisfied with Ajayi’s discharge of the agency relationship created by the agreement between the parties. [ 54 ] The sales documentation for the cattle was in Ajayi’s name (and that of his farm). Adeaga filled out the import permit application in Ajayi’s name, and he identified Ajayi and his farm as the shipment consignee. The approved import permit was in Ajayi’s name. As noted in Paragraph 24, the parties agreed to share the cost of importing the cattle to Nigeria.

Based on this evidence, I find that Adeaga expressly or implicitly authorized Ajayi: • to arrange for import of the cattle; • to pay for expenses related to import of the cattle; • to import and receive the cattle; and • to distribute the cattle so they could be taken to the parties’ respective farms. [ 55 ] As Adeaga’s agent, Ajayi had implied authority to carry out necessary “subordinate acts” [42] related to discharge of the express authority granted by virtue of the agency relationship. The objective of the agency relationship was to import cattle to Nigeria for the group’s respective farms.

I find that Ajayi had implied authority to carry out the following tasks: • to pay for necessary and reasonable expenses related to importing the cattle (including those not contemplated or approved in advance); • to make necessary and reasonable decisions in the best interests of the group related to importing the cattle; and • to make necessary and reasonable decisions in the best interests of the group related to distribution of the cattle upon successful import.

[ 56 ] In

summary, I find that the agreement between the parties created an agency relationship between Adeaga and Ajayi with the goal of importing cattle to Nigeria. Ajayi acted as agent for Adeaga to purchase and import cattle to Nigeria on his behalf. Ajayi was authorized to give directions, make decisions, and pay expenses in accordance with the express and implied authority granted by the agency agreement. VII. Was there a breach of the contract? A. Evidence [ 57 ] Ajayi flew to Nigeria twice. [ 58 ] The first time was purportedly to attempt to expedite the import permit on September 1, 2021 [43] .

Ajayi gave no evidence as to what steps, if any, that he took to expedite the issuance of the import permit. There was no evidence that Ajayi’s first trip to Nigeria expedited the securing of the import permit. The import permit application was not submitted until September 21, 2021, so it is not clear why Ajayi’s trip earlier that month expedited a permit application that was not submitted until later in the month. [ 59 ] The second time was to meet the cattle shipment.

Ajayi flew to Nigeria on November 17, 2021 [44] . [ 60 ] On November 17, 2021, before leaving Canada, Ajayi asked the group members whether they had a preferred customs clearing agent. He received no response to this communication from Adeaga. [ 61 ] Both Adeaga and Ajayi agreed that a customs clearing agent was required to clear the cattle through Nigerian customs. Both agreed that Nigerian authorities charged duty on imported goods, including livestock. [ 62 ] Ajayi selected a customs clearing agent on arrival in Nigeria to assist with customs clearance.

Time was short as he landed in Nigeria on November 18, 2021, and the cattle were arriving on November 21, 2021. [ 63 ] Adeaga had largely reimbursed Ajayi for his share of the CVS November invoice for extra care costs and freight/shipping charges on November 17, 2021.

Ajayi was already in Nigeria awaiting arrival of the cattle when Adeaga made his November 20, 2021 payment, and then took the position that he owed nothing further (approximately CAD$650 was outstanding). [ 64 ] The disagreement related to sharing the cost of Ajayi’s airfare to travel to Nigeria to receive the cattle shipment appears to have been the genesis of the dispute between the parties. [ 65 ] On November 20, 2021, Adeaga maintained his position on sharing Ajayi’s airfare when Ajayi asked him again to pay the balance owing.

Adeaga then stated that he would not be responsible for sharing the cost of Ajayi’s flight “to oversee handling and moving” of Ajayi’s cattle to his farm from the airport. He added that Ajayi “will not be handling the logistics of moving [his cattle] to [his] farm from the airport”. Adeaga took the position that Ajayi was not “the clearing agent that will process the customs documents”, and that it was Ajayi’s decision to travel to Lagos for “his” cattle. He stated that his “representative” would be at the airport to “receive [his] own cattle and transport them to [his] farm”.

Adeaga also complained he had not been “consulted” about the “decision” for one of them to travel to Nigeria. [ 66 ] This communication was at odds with Adeaga’s November 17, 2021, promise to “send the rest [of what he owed] tomorrow”. This communication was also inconsistent with the terms of the parties’ agency agreement because Ajayi had travelled to Nigeria to import and receive the cattle.

Transport of the cattle to the parties’ farms after their successful import was distinct from their import to Nigeria. [ 67 ] In a subsequent communication on November 20, 2021, Adeaga analogized this shipment to ones where containers of goods are sent from North America to Nigeria, noting there was no need to meet the containers on arrival, and that the customs clearing agent clears the goods through customs, and they receive the goods after the agent has finished their work.

He described this “scenario” as “exactly the same”. [ 68 ] Although Adeaga asserted that importing goods was “exactly the same” as importing livestock, at trial, he admitted that he had never previously imported livestock into Nigeria. [ 69 ] Adeaga took steps to carry out his plan to collect his cattle from the cargo

section at the airport by arranging “transportation and logistics” to move his cattle to his farm straight from the airport. For the first time, he expressed “utmost concern” about the “biosecurity” of his cattle, should they be transported anywhere else but directly to his farm. [ 70 ] Although they initially expected the cattle to arrive in one shipment on November 21, 2021, the shipper had to offload 2 heifers because they would not fit in the shipping container in South Africa. The 2 heifers that were offloaded were shipped on November 26, 2021, with goats related to another purchase agreement.

The first 12 cattle arrived in Lagos, Nigeria on November 21, 2021. [ 71 ] The parties disagreed about how to divide the cattle even before they arrived. [ 72 ] Adeaga suggested they could divide the cattle in “open locations outside the airport area” where they could “be removed from the crate” and divided. He said that four of the 12 cattle, arriving in the first shipment, were his cattle, in response to Ajayi’s suggestion that he take two arriving November 21 and the other two arriving November 26, 2021.

At this point, Adeaga still acknowledged responsibility to pay for his share of clearing the animals. [ 73 ] Ajayi was at the airport when the cattle arrived. He testified that there were no facilities at the airport to hold live animals. He

pointed out the live animals need to be cared for (ie. feeding and watering), unlike containers of goods. [ 74 ] Ajayi cleared the first 12 cattle through customs, and Ajayi (along with his son and nephew) paid the quarantine fees, customs clearing agent’s fees, and the customs duties to import the 12 cattle into Nigeria. Another individual [45] cleared the 2 remaining heifers which arrived with a goat shipment on November 26, 2021. [ 75 ] On their arrival in Nigeria, Ajayi was required to quarantine the 12 cattle together for 14 days.

He signed an undertaking to that effect, and transported the cattle to his farm for quarantine, despite the parties’ original intention that the cattle would be distributed and taken to their respective farms upon arrival. [ 76 ] Ajayi produced a copy of the undertaking that he signed to quarantine the cattle, and a letter from the Nigeria Agricultural Quarantine Service (“NAQS”) dated November 21, 2021, directing that the cattle would be quarantined for 14 days, and making Ajayi’s farm responsible for the “arrival visit, laboratory sampling, analysis, and if necessary, for other subsequent visits for quarantine procedures”.

The NAQS letter sets out that the imported cattle will be “released into the national herd” if “certified healthy”, and “free of diseases and pests”. The NAQS letter sets out a cost of NGN781,000 (approximately CAD$2,421.10) [46] , which Ajayi testified that he paid in cash. [47] [ 77 ] Adeaga acknowledged that livestock imported into Nigeria would have to be quarantined for a period. Both parties agreed that they had not anticipated that the Nigerian authorities would require the cattle to be quarantined together on one farm.

This is not surprising since they had not previously imported livestock to Nigeria. [ 78 ] Adeaga testified that he sent his farm worker to the airport to collect his cattle and transport them to his farm on November 21, 2021. He says he should be reimbursed for the cost of hiring a driver and a truck (NGN135,000 or approximately CAD$418.50 [48] ) because Ajayi did not release his cattle to his representative(s). He did not produce a receipt for this expense, or any proof of payment. [ 79 ] Adeaga did not explain how his farm worker or representative(

s) were supposed to choose “his” cattle at the airport. He did not testify that his representative(

s) had any instructions or authority to select which cattle were “his”. [ 80 ] Adeaga testified that an altercation took place at the Lagos airport because Ajayi refused to release the cattle to his farm worker or representative(

s) after Ajayi cleared the cattle through customs. Adeaga’s version of what occurred at the airport was hearsay. He was not present. He did not call his farm worker, his representative(s), or the Nigerian police authorities to substantiate his allegations. By contrast, Ajayi was present. He denies any police involvement, he said that Adeaga’s farm worker was not there (he had previously met him), and that Adeaga sent “thugs” to “molest him”. Ajayi testified that he refused to release the cattle to Adeaga’s representative(

s) because he undertook to quarantine the cattle for 14 days at his farm. I accept Ajayi’s version of what occurred at the Lagos airport. He was present. His refusal to release the cattle because he signed an undertaking to quarantine the cattle was both reasonable and appropriate. [ 81 ] Adeaga alleged that the customs clearing agent hired by Ajayi was a relative of Ajayi’s, that they previously obtained “multiple” quotes before taking steps, and that the customs clearing agent hired by Ajayi was guilty of “fraud”, or alternatively, that the customs clearing agent’s bill was “fraudulent”.

Adeaga offered no evidence supporting any of these allegations [49] . [ 82 ] Adeaga refused to pay his share of the customs clearing agent’s bill. Ajayi produced a bill from Lyt Resources totalling NGN5,035,000 (approximately CAD$15,608.50) [50] . He produced a bank etransfer receipt demonstrating that he paid NGN3,000,000 (approximately CAD$9,300) [51] towards the Lyt Resources invoice.

Ajayi testified that his son and nephew [52] paid the remainder of the Lyt Resources invoice. [ 83 ] Adeaga pointed to another customs invoice in one of the WhatsApp communications titled “Nigerian Customs Declaration Form” with the agent identified as “OFT Global Limited”, and a total payable of NGN1,550,115 (approximately C$4,805.35) [53] . He asserts that this is evidence of “fraud” in relation to the Lyt Resources invoice. It was not clear what this customs invoice related to as it was buried in excerpts of WhatsApp communications.

It was hearsay evidence, and Adeaga did not call any evidence from OFT Global Limited to refute Ajayi’s testimony that the customs clearing agent was Lyt Resources, and that he and his family members paid Lyt Resources for their services. [ 84 ] Adeaga did not call any evidence to suggest that the Lyt Resources customs clearing invoice was unreasonable.

He did not call any evidence to establish that another agent would have been less expensive or would have taken different steps than those taken by the customs clearing agent selected by Ajayi. [ 85 ] Ajayi asked Adeaga to clear the 2 heifers arriving on November 26, 2021, because Adeaga’s refusal to contribute to the cost of clearing the cattle on November 21, 2021, had placed him in financial difficulty. Adeaga refused to do that. Instead, another individual [54] cleared the second shipment, and the remaining 2 heifers.

Those 2 heifers remain on that individual’s Nigerian farm. [ 86 ] Adeaga refused thereafter to take any of the cattle. [ 87 ] His WhatsApp communication stated that he was “no longer interested” in the cattle because Ajayi had taken his cattle to a “location where they have been most likely exposed to diseases”.

Adeaga said that he was not interested in the cattle coming in the second shipment because they were not “his”. [ 88 ] Adeaga even refused Ajayi’s offer to choose whatever cattle he wanted by any methodology proposed by Ajayi, including giving Adeaga first choice of the cattle. [ 89 ] After the cattle were released from quarantine, Ajayi divided the 12 cattle amongst the group. Ajayi incurred veterinary and laboratory costs to comply with quarantine requirements.

He determined that Adeaga’s cattle were the 2 heifers imported in the second shipment with the goats [55] , and 1 heifer and 1 bull imported in the first shipment. His son’s cattle were transported from his farm to his son’s farm once released from quarantine.

[ 90 ] In dividing the cattle, Ajayi ensured that each group member received the breed and sex of the cattle that were his. Adeaga purchased 3 heifers and 1 bull. Ajayi allocated 1 heifer and 1 bull to Adeaga that remained on his farm, and he allocated 2 heifers to Adeaga that ended up on Nwani’s farm. He allocated 3 heifers and 1 bull to his son. He allocated 3 heifers to himself. He testified that there was no difference in the size and weight of the cattle. I accept his evidence. He was present in Nigeria and made observations to that effect.

Adeaga did not call any direct evidence to refute Adeaga’s evidence. [ 91 ] Adeaga alleges that Ajayi exposed his cattle to a “biosecurity” risk by quarantining the cattle at his farm. Adeaga defined “biosecurity” risks as including anything biological that could cause harm to an animal including disease and snake bites. He did not call any evidence substantiating his allegation that Ajayi’s farm was a “biosecurity” risk.

His assertion is not supported by the cattle’s release from quarantine, satisfactory veterinary and laboratory testing to support quarantine release, or the fact that all the cattle, but for the bull, remained alive at the time of trial. [ 92 ] Ajayi’s suggestion that Adeaga clear the 2 heifers arriving on November 26, 2021, was also made to attempt to alleviate Adeaga’s concern that the cattle would be exposed to a “biosecurity” risk on Ajayi’s farm as Adeaga could transport them directly to his farm for quarantine if he cleared the cattle himself.

Adeaga refused to do so, asserting that these 2 heifers did not belong to him and that they were the smallest cattle. Adeaga offered no direct evidence substantiating his allegation that the 2 heifers shipped on November 26, 2021, weighed less than those shipped on November 21, 2021. As previously noted, the heifers were born in the same month of the same year, and there was no direct evidence to suggest that any one of them was bigger or smaller than the other. There was no evidence suggesting that any difference in weight made a difference in their value.

Adeaga also claimed that he could not clear the heifers because the sales documentation and import permit were not in his name, yet these heifers were cleared through Nigerian customs by another individual [56] , not Ajayi. [ 93 ] Ajayi currently has one of Adeaga’s heifers on his farm, as Adeaga’s bull died in September 2022. Adeaga’s other 2 heifers are with Nwani. Adeaga has refused and continues to refuse to collect his cattle from either Ajayi or Nwani. [ 94 ] Adeaga has not contributed anything towards the quarantine fees, and customs clearing and customs duty costs to import the cattle to Nigeria.

He has not contributed anything towards the ongoing care of the cattle in Ajayi’s possession.

He did not contribute towards the cost of Ajayi’s flight to Nigeria to import the cattle. [ 95 ] Adeaga demanded return of all monies that he contributed toward the purchase, care, and shipping of the cattle to Nigeria, almost immediately upon the cattle’s arrival in Nigeria. [ 96 ] In total, before the cattle arrived in Nigeria, Adeaga had paid CAD$17,958.50 for the purchase of his cattle, and for his share of the quarantine costs, extra feeding and veterinary costs, and freight/shipping costs related to his cattle. [ 97 ] Adeaga alleges that Ajayi has enjoyed the ongoing benefit of his cattle in terms of milk production and breeding.

Adeaga did not call any evidence to prove that Ajayi received any benefit from his cattle. Ajayi testified that the cattle were too young to produce milk or breed. Neither party called any evidence to support these allegations. [ 98 ] Ajayi has incurred ongoing care costs initially for 2 of Adeaga’s cattle (1 bull and 1 heifer), but now only has the ongoing care costs for the heifer as the bull died.

Ajayi produced several receipts regarding expenses related to care of the cattle in addition to etransfer receipts from his bank account demonstrating payment of those expenses. [ 99 ] At trial, Adeaga maintained that he was no longer interested in his cattle once they had been taken to Ajayi’s farm for quarantine because of the alleged “biosecurity” risk to which they were exposed. He wants Ajayi to pay him all the money he paid to CVS for his cattle. B. Analysis 1. Adeaga’s Allegations of Breach of Contract [ 100 ] Adeaga alleges that Ajayi breached the agreement because he says: a.

Ajayi failed to pay his share of the import permit application fee; b. Ajayi failed to obtain multiple quotes and prior authorization before hiring a customs clearing agent; c. Ajayi transported the newly imported cattle to Ajayi’s farm for quarantine as opposed to permitting the cattle to be distributed to separate farms immediately upon arrival ; and d.

Ajayi exposed the newly imported cattle to a “biosecurity” risk by taking the cattle to his farm for quarantine. [ 101 ] Adeaga wants all the money he paid to CVS to purchase, care for, ship, and import the cattle returned to him by Ajayi, based on his allegation that Ajayi breached their agreement. He is not interested in any of the cattle. a. Import Permit Application Fee [ 102 ] Adeaga alleges that Ajayi failed to pay his share of the import permit application fee.

This complaint is not clearly set out in Adeaga’s Civil Claim, which simply says that Adeaga spent time and money to apply for the import permit. [ 103 ] Ajayi’s share was approximately CAD$43.80.

[ 104 ] I have found that the parties agreed to share the costs of importing the cattle to Nigeria. I find that the fee to apply for the import permit falls within that agreement. [ 105 ] Adeaga produced a payment receipt for the import application fee; however, it is in Ajayi’s name. Adeaga did not produce any proof of payment of the receipt. Adeaga cross-examined Ajayi on this issue, and Ajayi denied owing Adeaga monies for this fee. [ 106 ] Adeaga did not tender evidence that he provided a copy of the receipt to Ajayi, or any evidence that Ajayi refused or failed to pay his share.

He simply complained at trial that Ajayi and Ajayi’s son had not paid their share of this fee. [ 107 ] On a balance of probabilities, while the parties agreed to share expenses like this, I find that Adeaga is not able to establish a breach of the agreement resulting from Ajayi’s alleged failure to pay this invoice. Adeaga did not produce evidence that he paid this fee. The payment receipt was in Ayaji’s name, not Adeaga’s name.

Adeaga did not tender any credit card or bank record receipts confirming that he incurred this charge. [ 108 ] Even if I had found that Ajayi’s alleged failure to pay his share was a breach of their agreement to share the costs of importing the cattle, the alleged breach did not deprive Adeaga of any benefit in terms of the agreement. The only remedy that would have been available to Adeaga on this alleged breach would have been damages for CAD$43.80, which represents Ajayi’s share of the import fee application. b.

Retention of Customs Clearing Agent [ 109 ] Adeaga alleges that Ajayi breached their agreement by failing to obtain multiple quotes and prior authorization before hiring a customs clearing agent to clear the cattle through customs in Nigeria. [ 110 ] At the time of contract formation, the parties did not address who they would hire to help them clear the cattle through customs in Nigeria, or what the proposed cost would be. [ 111 ] The parties were aware that a customs clearing agent would be required, and they were aware they would have to pay for a customs clearing agent, and for customs duties. [ 112 ] Adeaga’s allegation asks me to imply a term or terms in their agreement that multiple quotes, and his prior consent was required before Ajayi could act. [ 113 ] Courts may imply contractual terms where the parties only agreed to essential terms, or where the parties did not foresee and provide for a conflict or contingency in their contractual relationship. [57] Courts must not “rewrite” a new agreement, and only ought to imply terms “sparingly and cautiously” as the “legal presumption is against implication of terms”. [58] [ 114 ] Here, I find that the parties clearly foresaw that they would have to hire a customs clearing agent to assist with importing the cattle. [ 115 ] I find that this expense is no different from earlier expenses such as those related to the laboratory testing, veterinary costs, extra feed, and freight/shipping costs which were presented to Ajayi, as the group’s agent, by CVS, and then paid by the group either before or after Ajayi had paid CVS, without question.

There was no evidence, for example, that Ajayi was required to secure multiple quotes or prior authorization for the cost of freight and shipping the cattle from South Africa to Nigeria. [59] Based on the evidence presented at trial, I am not prepared to imply either a term requiring Ajayi to obtain multiple quotes, or a term requiring him to obtain prior authorization before incurring reasonable and necessary expenses to import the cattle to Nigeria. I find that Adeaga is unable to establish, on a balance of probabilities, that there was any such implied term or terms as asserted.

No breach can be founded on this ground. [ 116 ] I have found that Ajayi was Adeaga’s agent, and Adeaga’s allegation related to Ajayi’s retention of the customs clearing agent raises an issue whether Ajayi appropriately exercised his authority as agent in retaining the customs clearing agent in question. I have found that their agency relationship afforded Ajayi authority to pay for expenses related to importing the cattle. I have also found that this included authority to pay for necessary and reasonable expenses that were not contemplated or approved in advance.

This would include, for example, extra feeding costs and additional veterinary expenses related to the import approval delay, and freight/shipping costs paid to CVS. There was no evidence that these expenses were approved in advance, yet Adeaga paid his share of these additional expenses with no complaint.

Adeaga imposed no restriction on Ajayi’s ability to incur these expenses, apart from the context that I have implied, which is that the expenses must have been necessary and reasonable. [ 117 ] Before leaving for Nigeria, Ajayi asked the group if they had a preferred customs clearing agent, evincing an effort to act in the group’s best interests. He received no reply from Adeaga. Time was of essence as the cattle were arriving imminently from South Africa.

In the circumstances, I find that Ajayi, as Adeaga’s agent, took appropriate action to retain a customs clearing agent to assist him with clearing the cattle through customs. Adeaga agreed that a customs clearing agent was necessary to effecting that process. Ajayi was in Nigeria and was in the best position to assess who to hire to assist the group with the cattle import. There was no evidence that the customs clearing agent retained by Ajayi took inappropriate steps or charged an unreasonable amount for the services provided.

There was no evidence that another agent would have taken different steps to clear the cattle, or that another agent would have charged less for the same or similar services.

There was no evidence that the agent retained by Ajayi did not have the necessary experience to clear livestock through Nigerian customs, and the agent’s success in doing so would suggest otherwise. [ 118 ] On a balance of probabilities, I find that Adeaga is not able to establish any breach of the agency agreement on the basis that Ajayi did not obtain multiple quotes, or on the basis that Ajayi unilaterally retained a customs clearing agent.

To the contrary, I find that Ajayi had been granted authority to import the cattle into Nigeria on behalf of the group, and I find that choosing and retaining a customs clearing agent was a necessary and reasonable decision, and expense to accomplish the objective of the agency relationship, which was to import the cattle into Nigeria.

[ 119 ] If I am incorrect in my finding, and Ajayi’s failure to obtain multiple quotes and prior authorization was a breach of the agency relationship between the parties, then I find that any such breach did not deprive Adeaga of the benefit of the contract. The agreement’s goal was to import cattle from South Africa to Nigeria, and retention of the customs clearing agent facilitated as opposed to hampered that goal. c. Cattle Distribution/Quarantine [ 120 ] On arrival, Ajayi transported the newly imported cattle to his farm for quarantine instead of immediately distributing the cattle to separate farms.

Ajayi says that he had to do this because the Nigerian authorities directed him to quarantine the newly arrived cattle at one farm and not multiple farms. Adeaga alleges that Ajayi breached their agreement by not permitting his representative(

s) to take his cattle from the airport directly to his farm. [ 121 ] The parties anticipated that they would be able to each take their own cattle to their farms when the cattle arrived in Nigeria. The parties understood that quarantine would be necessary when the cattle arrived in Nigeria, and they were under the impression that they could quarantine the cattle at their farms.

The parties had not previously imported live animals to Nigeria, and they had no experience with the process. [ 122 ] The Nigerian authorities asked Ajayi to sign an undertaking requiring him to quarantine the 12 cattle that arrived on November 21, 2021, at his farm. He agreed to do so. That signed undertaking was tendered as evidence.

Adeaga asserted that this was a falsified document but called no evidence substantiating that allegation. [ 123 ] In addition to the signed undertaking, Ajayi produced a letter from NAQS directing the quarantine which he implemented. [60] [ 124 ] Upon signing the undertaking and successfully clearing customs with the cattle, Ajayi refused to release the cattle to Adeaga’s representative(s).

Ajayi testified that he refused to release the cattle because he had signed the quarantine undertaking and he intended to comply with it. [ 125 ] I have reviewed the excerpts of the WhatsApp communications from this period and note that they contain out-of-court statements by parties who did not testify at trial. I will not rely on any of these statements as they breach the rule against hearsay.

I did not find the communications helpful, beyond demonstrating that the other issue that Ajayi had was Adeaga’s refusal to pay his share of the import expenses. [ 126 ] I make no findings on the alleged altercation which happened at the Lagos airport as only Ajayi was present, and he asserted that he was threatened by Adeaga’s representative(s).

In my view, nothing turns on the alleged altercation in terms of the allegations of breach of contract in this case. [ 127 ] As Adeaga’s agent, Ajayi was authorized to make necessary and reasonable decisions in the best interests of the group related to importing the cattle, as outlined in Paragraph 55. I accept Ajayi’s evidence that he was required to quarantine the cattle at his farm, and that he took this responsibility seriously and felt bound to comply with this direction.

I find Ajayi’s decision to comply with the directions of the Nigerian customs and quarantine officials was a necessary and reasonable decision that he was implicitly authorized to make as agent for the group and for Adeaga. I find that Adeaga cannot establish, on a balance of probabilities, that Ajayi breached the contract by failing to immediately release the cattle to Adeaga’s representative(s). Rather, I find that Ajayi was upholding the terms of their agency relationship by making a necessary and reasonable decision in the best interests of the group related to importing the cattle as he was authorized to do.

That decision was to comply with the quarantine and customs requirements imposed on him as agent by the Nigerian authorities. [ 128 ] Frustration of contract happens when a situation arises that the parties did not anticipate in their agreement, and where performance of the contract becomes something “radically different” than what was originally agreed to. [61] The “supervening event” must be “permanent as opposed to temporary”. [62] If successfully argued, the doctrine of frustration relieves the parties of their contractual obligations. [63] [ 129 ] While the parties did not anticipate that the cattle would have to be quarantined at one farm as opposed to multiple farms, I find that this is not a situation of frustration of contract as what occurred was not “radically different” [64] from what the parties originally anticipated.

The quarantine period was 14 days, and once the cattle passed quarantine, they could be distributed to their respective owners’ farms. This was a temporary situation, not a permanent one, and one that the evidence demonstrated was easily rectified with compliance with quarantine requirements. [ 130 ] While Adeaga did not address Ajayi’s division and distribution of the cattle in his evidence (as he took the position that he was no longer interested in the cattle), one of the issues which arises from this situation relates to Ajayi’s distribution of the cattle.

I have found that he was authorized as Adeaga’s agent to divide and distribute the cattle. While the parties did not agree how the cattle would be divided before their import, I find that Ajayi offered reasonable opportunities to Adeaga to select whichever cattle he wanted, despite being implicitly authorized to distribute the cattle on their arrival. I find that Adeaga took no steps to avail himself of those opportunities. I find that Adeaga failed to explain how his representative(

s) would have selected “his” cattle, had they been permitted to divide the cattle immediately upon arrival as opposed to having to quarantine the same. I find that Ajayi, as agent, was required to ensure that Adeaga (or Adeaga’s representative(s)) received the appropriate breed, sex, and quantity of cattle, whether that happened at the airport upon arrival or after quarantine. Specifically, Adeaga was to receive 3 Holstein heifers and 1 Holstein bull. [ 131 ] I find that Ajayi’s division of the cattle was reasonable.

He divided the cattle by their breed and sex, and I find that complied with the parties’ agreement. I accept Ajayi’s decision to allocate 1 heifer and 1 bull from the first shipment to Adeaga as reasonable and necessary, and I accept his evidence that Adeaga’s refusal to contribute to the cost of clearing the first shipment put him in financial difficulty.

I further accept Ajayi’s decision to allocate the 2 heifers arriving in the second shipment to Adeaga as reasonable and necessary because he was trying to devise a solution to Adeaga’s allegations that “his” cattle would be exposed to a biosecurity risk if they were not immediately transported to his farm.

[ 132 ] After the quarantine period ended and the quarantine requirements were satisfied, Ajayi distributed his son’s cattle (3 heifers and 1 bull) to his son’s farm. Adeaga could have taken delivery of his cattle, had he wished to do so. [ 133 ] I find that Adeaga was not substantially deprived of the benefit of the agreement, which was that he purchased 3 Holstein heifers and 1 Holstein bull for his farm in Nigeria. The cattle were imported into Nigeria, and ready for transportation to his farm, albeit 14 days later than initially anticipated due to compliance with quarantine requirements.

This was not an unreasonable delay in the circumstances, especially where the parties had no experience with importing live animals to Nigeria. [ 134 ] I find that Adeaga is unable to establish a breach of agreement on the basis that Ajayi transported the newly imported cattle to Ajayi’s farm for quarantine as opposed to permitting the cattle to be distributed to separate farms immediately upon arrival. d. Biosecurity Risk [ 135 ] Adeaga says that Ajayi breached their agreement because he alleges that Ajayi exposed his cattle to a “biosecurity” risk by quarantining his cattle on Ajayi’s farm.

He defined biosecurity risks as including anything biological that could cause harm to an animal including disease and snake bites. This allegation is related to Adeaga’s complaint that Ajayi would not release cattle at the airport to his representative(s). [ 136 ] Adeaga did not call any evidence supporting his allegations that his cattle had been exposed to biosecurity risks on Ajayi’s farm.

Adeaga did not tender any evidence that they had been exposed to disease or other environmental hazards. [ 137 ] Ajayi testified that the 12 cattle which were transported to his farm for quarantine were all released from quarantine after 14 days. He testified that the cattle underwent veterinary and laboratory testing for disease before they were released from quarantine. All the cattle, except for the bull, were alive at the time of trial.

The bull did not die until September 2022, approximately 10 months after successful import. [ 138 ] I find that Adeaga is not able to establish, on a balance of probabilities, any breach of contract on this ground. His allegations were not supported by any evidence whatsoever. e. Conclusion regarding Adeaga’s Allegations of Breach of Contract [ 139 ] I find that Adeaga is not able to establish, on a balance of probabilities, that Ajayi breached the agreement between them based on any of the allegations which he relies on. 2.

Ajayi’s Allegations of Breach of Contract [ 140 ] Ajayi alleges that Adeaga breached their agreement because he says: a. Adeaga failed to pay his share of the import costs including: i. his share of Ajayi’s airfare to Nigeria; ii. his share of the quarantine costs; and iii. his share of the customs clearing and customs duty costs; and iv. his share of the veterinary and laboratory costs to release the cattle from quarantine. a. Failure to Pay Import Costs [ 141 ] Ajayi says that Adeaga breached their agreement because he did not pay his share of the import costs. b.

Airfare [ 142 ] Ajayi suggested that Adeaga ought to reimburse him for both of his trips to Nigeria. I find that Ajayi is not able to prove that his September 2021 trip expedited issuance of the import permit. The application for the import permit was submitted after Ajayi’s trip, and Ajayi did not give any evidence about any steps taken to expedite their permit while he was there in September 2021.

Ajayi did not provide sufficient evidence linking this trip to his responsibilities as agent to import the group’s cattle to Nigeria. [ 143 ] I find that Ajayi has established, on a balance of probabilities, that his second trip to Nigeria in November 2021 was to meet the cattle shipment, and to facilitate their successful import to Nigeria. He was the shipment consignee/receiver, and was authorized by the agency relationship between Adeaga and Ajayi both to arrange for the cattle’s import, and to receive the cattle on import.

I find that Ajayi’s November 2021 airfare was a reasonable and necessary expense related to import of the cattle. [ 144 ] Adeaga suggested that Ajayi flew to Nigeria to look after his own cattle, not Adeaga’s cattle. Adeaga made this allegation after Ajayi had already flown to Nigeria to receive the cattle shipment that was arriving imminently. Adeaga did not call any evidence substantiating his allegation that Ajayi was only looking after the import of his cattle.

The evidence at trial was to the contrary as Ajayi cleared the 12 cattle that arrived on November 21, 2021, through the Nigerian quarantine and customs process with the assistance of the customs clearing agent that he retained on behalf of the group. Adeaga’s focus on his own arrangements for moving his cattle to his farm ignores the requirement that the cattle had to be successfully imported before they could be distributed to any of their farms.

I do not accept Adeaga’s assertion that a shipment of livestock is analogous to a shipment of goods. [ 145 ] I find that Adeaga’s failure to pay his share of approximately CAD$650 was in breach of their agreement to share the import costs.

c. Quarantine and Customs Clearing Costs [ 146 ] Adeaga did not pay Ajayi for his share of the following: a. the quarantine fee of NGN781,000 (approximately CAD$2,421.10) charged by the Nigerian authorities; b. the customs clearing agent fee of NGN5,035,000 [65] (approximately CAD$15,608.50; and c. the veterinary and laboratory fees of NGN95,700 (approximately CAD$296.67) to clear the cattle from quarantine. [ 147 ] I find that Adeaga’s failure to pay his share of the import costs was in breach of their agreement to share the import costs.

Adeaga called no evidence to substantiate his allegations that the customs clearing agent’s bill was fraudulent. He did not challenge the quarantine fee charged by the Nigerian authorities, or the fees charged by veterinarians to clear the cattle from quarantine on Ajayi’s farm. d. Conclusions regarding Ajayi’s Allegations of Breach of Contract [ 148 ] I find that Ajayi has established, on a balance of probabilities, that Adeaga breached their agreement by failing to pay his share of the import fees as agreed, and by failing to pay his share of Ajayi’s November 2021 airfare to Nigeria. VIII.

What remedies should flow? A. Adeaga’s Civil Claim [ 149 ] Adeaga breached the contract, not Ajayi. [ 150 ] Adeaga is not entitled to damages for breach of contract where he failed to prove the same.

Damages require a party to prove an actionable wrong, and Adeaga has not done so. [ 151 ] Even if Adeaga had established that Ajayi breached their agreement, he would only have been entitled to damages, which are the usual remedy for breach of a contract. [66] [ 152 ] Adeaga did not prove that he paid for the import permit application fee. [ 153 ] Adeaga did not provide any receipts or proof of payment regarding his claim for the cost of hiring a truck and driver to transport his cattle to his farm on their arrival in Nigeria.

He did not prove that he incurred these expenses. [ 154 ] Adeaga did not call any evidence to establish that his cattle were producing milk or being breed. He did not call any evidence substantiating his 150% profit claim for the heifers, and the 200% profit claim for the bull. These claims were entirely speculative. [ 155 ] Adeaga’s claim for damages seeks a refund of all the monies he paid to CVS to purchase, care for, and ship the cattle (approximately CAD$17,958.50).

At law, Adeaga was not entitled to rescission as there was no allegation that Ajayi made a false or misleading representation. [67] Instead, Adeaga was seeking to terminate the contract to secure a refund of the monies he paid to CVS. [ 156 ] Termination of a contract is an exceptional remedy and is only available if the breach removes “substantially the whole benefit” of a contract. [68] [ 157 ] In these circumstances, the breaching party has repudiated the contract, and the innocent party must then decide “whether to accept the repudiation and terminate the contract”, or “continue with the contract and deal with the breach in some other way”. [69] Acceptance of the repudiation must be clearly communicated within a reasonable period. [70] [ 158 ] Upon termination (by acceptance of the repudiation), the parties are discharged from future contractual obligations. [71] [ 159 ] In this case, even if Adeaga had established that Ajayi breached the agreement on any of the alleged grounds, I find that Adeaga was not “substantially” deprived of “the whole benefit” of the contract.

The agreement was one to import cattle to Nigeria. The cattle were imported successfully. Adeaga’s cattle arrived in Nigeria, whether they were in the first or second shipment. Adeaga had no basis, at law, on which to terminate the contract between him and Ajayi. Ajayi did not repudiate the contract.

At most, had any breach been proven, Adeaga’s damages would have been restricted to a loss of use of the cattle for the 14-day period where his cattle were quarantined at Ajayi’s farm, or there might have been some reduction in the customs clearing agents’ fee (had Adeaga called evidence to suggest that the fee was not reasonable, which he did not). [ 160 ] Adeaga did not call any evidence to establish what those damages might be, had he been able to prove any breach of contract.

While a trial judge is to do “the best it can” in estimating damages [72] , I am not prepared to provisionally estimate damages where Adeaga tendered no evidence as to value of the loss of use of the cattle for a 2-week period. [ 161 ] There will be no award of damages to Adeaga, who failed to prove any breach of contract in his action against Ajayi. B. Ajayi’s Counterclaim [ 162 ] Adeaga breached the contract by failing to pay his share of the import fees. [ 163 ] Adeaga’s actions require further analysis because Adeaga wrongfully asserted that he was entitled to terminate the contract with

Ajayi. Was this a mere breach of contract, or did Adeaga repudiate the contract? [73] [ 164 ] Adeaga advised Ajayi that he was no longer interested in any of the cattle on November 23, 2021. He did not want any of the cattle that arrived in the first shipment because he said they were exposed to a biosecurity hazard. He did not want the two that were arriving in the second shipment because he alleged that they were smaller. He stated he was “not interested in the cows coming on Thursday because they were not [his]”.

He also stated that he was “no longer interested in the cattle[s]” because they had been taken “to a location where they ha[d] been most likely exposed to diseases”. He demanded a refund of all his money. Ajayi responded and asked Adeaga to pay his share of the import fees. Adeaga reiterated that he was “no longer interested in the cattles”, and again demanded a full refund (this time with 100% interest). [ 165 ] An anticipatory breach of contract may be interpreted as repudiation of a contract.

An anticipatory breach happens when one party, before the contractual completion date, either expressly repudiates future obligations under a contract, demonstrates an intention not to complete a contract, or demonstrates the s/he cannot carry out the contract.

The innocent party may accept the anticipatory breach, and terminate the contract, thereby freeing him/herself of the remaining contractual obligations. [74] [ 166 ] Repudiation of a contract requires that the breach “substantially deprive” the other party “of what he or she bargained for”. [75] While Ajayi has proven that Adeaga breached their agreement, I find that Adeaga was not “substantially” deprived of “the whole benefit” of the contract.

The cattle were successfully imported to Nigeria, which was the goal of the agreement between the parties. [ 167 ] Adeaga’s breach did not justify termination of the contract, and at law, unperformed obligations of both parties remained in place. [76] [ 168 ] Adeaga’s breach entitles Ajayi to damages for Adeaga’s share of the import costs that Adeaga wrongfully failed to pay. The import costs are outlined in Paragraph 146, to which Adeaga’s CAD$650 share of Ajayi’s airfare must be added.

I divided the import costs of CAD$18,326.27 by 12 ($1,527.19), and multiplied them by 2 to arrive at CAD$3,054.38 plus CAD$650 for the airfare. I find that Adeaga’s unpaid share of the import costs totals $3,704.38. [ 169 ] Although Adeaga expressed that he was no longer interested in his cattle, I find that Ajayi remained authorized to make reasonable and necessary decisions in the best interests of the group related to distribution of the cattle after they were imported to Nigeria. [77] [ 170 ] I find that Ajayi’s division and distribution of the cattle after import was authorized by the agency agreement.

His decision to ask Nwani to clear the heifers in the second shipment was necessary and reasonable, where Adeaga’s refusal to contribute his share of the import fees placed him in financial difficulty (and where Adeaga refused to clear them himself). Ajayi had an obligation to mitigate damages, and I find that he made adequate efforts to do so by proposing multiple alternate solutions to the dilemma he was placed in by Adeaga’s wrongful acts, and by Adeaga’s refusal to cooperate with any of the proposed solutions to their dispute. [ 171 ] Ajayi continued to care for 2 of Adeaga’s cattle on his farm.

He produced evidence demonstrating that he paid for feed and for veterinary medication for all the cattle on his farm, including Adeaga’s heifer and bull. [78] I estimate that the cost to feed and care for each cow was approximately CAD$128/month. [ 172 ] There was little evidence addressing the status of Adeaga’s other 2 heifers on Nwani’s farm, apart from evidence that they were alive, and that Adeaga had also refused to collect his cattle from Nwani.

Nwani was not a party to this action, and I make no findings otherwise with respect to the 2 heifers that apparently remain with Nwani. [ 173 ] Termination of an agent’s authority of an agent can occur by agreement, completion of a contemplated transaction, expiration of a stipulated period, by the happening of an event, or by destruction of the subject-matter of the agency. [79] Termination can be accomplished by notice of revocation by the principal or notice of renunciation by the agent. [80] Unilateral revocation by a principal may only be exercised before the agent has exercised authority, or if the agent has committed some wrongdoing justifying dismissal. [81] [ 174 ] I find that Adeaga did not have grounds on which to unilaterally terminate Ajayi’s authority.

Ajayi had already taken many steps in accordance with their agency agreement, and there was no evidence that Ajayi committed any wrongdoing which justified his dismissal as agent. [ 175 ] Unfortunately, Adeaga’s bull died in September 2022. There was no evidence about what caused the bull’s death. There was no evidence that the bull’s death was caused by any wrongdoing on Ajayi’s part, and as noted, the evidence was that Ajayi continued to care for Adeaga’s cattle with appropriate care and diligence.

Adeaga is not able to prove any breach of the agency agreement because the bull died. [ 176 ] At the time of trial, Ajayi continued to care for 1 of Adeaga’s heifers. He incurred care costs for the bull to September 2022, and ongoing care costs for Adeaga’s heifer. Ajayi seeks reimbursement for those additional care costs from Adeaga. In my view, Ajayi is entitled to damages for reasonable care costs, and I find that CAD$128/month for each unit is reasonable.

Ajayi will have damages in the sum of CAD$128 from November 2021 to September 2022 (10 months) for the bull, and damages in the sum of CAD$128 from November 2021 to December 2023 for the heifer (25 months) totalling CAD$4,480. [ 177 ] Adeaga maintained that he is no longer interested in his heifer. He wants a refund of the monies he paid to CVS to import 4 cattle that he is not entitled to claim from Ajayi because he is unable to prove that Ajayi breached the agreement between them.

This factual scenario is distinct from those where a purchaser, who had breached a contract, seeks return of its purchase price from the vendor who has not [82] . Ajayi was not the vendor. CVS was. [ 178 ] Adeaga’s action against Ajayi has not been successful as he could not prove a breach of contract. Adeaga owes Ajayi damages in the sum of CAD$3,704.38 for unpaid import fees, and in the sum of CAD$4,480 for ongoing care of his cattle totalling CAD$8,184.38. Ayaji has been left with a heifer he did not pay for. Adeaga does not want the heifer.

The parties have left the resolution of this final part of their dispute to the court to resolve. Damages are compensatory, and the goal is to restore the non-breaching party to

its original position by awarding damages. [83] [ 179 ] Ajayi’s intended original position was to acquire 6 cattle, not 7. I am not prepared to issue an order requiring Adeaga to accept delivery of his personal property [84] because the personal property is located outside of Canada. The challenge of appropriate relief returns to the jurisdiction and forum issues that I raised at the outset of these reasons.

I am also not prepared to issue that order as I am concerned about the well-being of the heifer, and Adeaga clearly stated he does not want any of the cattle. [ 180 ] Ajayi, by contrast, has demonstrated a willingness to care for the heifer [85] (with his other cattle).

In my view, Ajayi is not entitled to a windfall because of Adeaga’s breach of contract as that does not accord with the compensation principle. [86] Equitable remedies are discretionary, and the basis for the existence of the court’s discretion is to prevent unfairness. [87] [ 181 ] In my view, the best resolution to this dispute, recognizing the jurisdictional and forum issues, is that I am determining that title to and the right to possession of Adeaga’s remaining heifer belongs to Ajayi pursuant to

Section 9.6(1)(a)(i)(

C) of the Court of Justice Act , RSA 2000, c.30.5. The cost of the heifer was: Purchase Price CAD$1,596.60 Freight/Shipping/Care Costs Paid by Adeaga [88] CAD$2,485.38 Total: CAD$4,081.98 [ 182 ] To prevent a windfall to Ajayi and to prevent unfairness to Adeaga, the cost of the heifer of CAD$4,081.98 will be deducted from the damages owed by Adeaga to Ajayi. That leaves Adeaga owing Ajayi CAD$4,102.40 for his breach of contract, and that resolves the outstanding issue regarding ownership of the remaining heifer in Ajayi’s possession in Nigeria. It also terminates the agency relationship between the parties.

The bull is dead, and the agency relationship between Adeaga and Ayaji with respect to the bull terminated on its death [89] . IX. Conclusion [ 183 ] Adeaga’s Civil Claim and action against Ajayi is dismissed. Ajayi is awarded Judgment on his Counterclaim against Adeaga in the sum of $4,102.40 plus pre-Judgment interest from November 21, 2021, pursuant to the Judgment Interest Act , RSA 2000, c. J-1 , as amended plus costs.

I order that Ajayi is entitled to title to and possession of the 1 Holstein heifer that was previously Adeaga’s heifer, and that has been in his possession since November 21, 2021. [ 184 ] Ajayi will have his costs of the main action and of the Counterclaim pursuant to the Column 1 of Alberta Court of Justice Tariff of Recoverable Costs plus his filing fee of $125.00. There were two actions here, the main action and the counterclaim.

I calculate recoverable costs, as follows: Item 1 - $100 for the main claim and $100 for the counterclaim = $200 Item 2 – March 23, 2023, adjourned application - $40 for the main claim and $40 for the counterclaim = $80 -March 30, 2023, application – Justice Haymour awarded Adeaga $350 in costs so those will be deducted from Ajayi’s costs (if not paid) -April 13, 2023 application – Justice Corbett awarded Ajayi $190 in costs so those will be added to this calculation (if not paid) Item 3 – November 10, 2022 and March 24, 2023 Pre-Trial Conferences - $50 x 2 for the main claim and $50 x 2 for the counterclaim = $200 Item 4 – Trial preparation $300 for the main claim and $300 for the counterclaim = $600 Item 5 – Trial attendance – First 2 ½ days $200 for the main claim and $200 for the counterclaim = $400 3 additional ½ days - $225 for the main claim and $225 for the counterclaim = $450 Total: $1,930 plus filing fee of $125 = $2,055 Plus $190 from April 13, 2023, application if not paid by Adeaga Total: $2,245 Minus $350 from March 30, 2023, application if not paid by Ajayi Total: $1,895 [ 185 ] Costs in favour of Ajayi total $1,895, assuming that neither party paid the costs awards from the applications of March 30, 2023, and April 19, 2023.

Heard on the 18 th , 19 th and 21 st days of April 2023.

Dated at the City of Edmonton, Alberta this 22 nd day of December 2023. S.L. Corbett A Justice of the Alberta Court of Justice Appearances: Both parties self-represented.