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Cardinal rule of interpretation of instrument, document or agreement

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JUMBO v. SASIME & ORS (2019) LPELR-48668 (CA)

In the Court of Appeal
In the Port Harcourt Judicial Division
Holden at Port Harcourt
ON MONDAY, 7TH OCTOBER, 2019
Suit No: CA/PH/451/2015

Before Their Lordships

ISAIAH OLUFEMI AKEJU (JCA)
BITRUS GYARAZAMA SANGA RIYI (JCA)
ABUBAKAR MUAZU LAMIDO (JCA)

Between

CHIEF HORACE FERDINAND OKO JUMBO EN Appellant(s)

And

1. H.R.H KING BARR. MALLA SASIME JP
2. CHIEF HENDERSON JUMBO
3. WARI-ALABO PROF. JASPER JUMBO JP -Respondent(s)
(For themselves and as representing Jumbo major of grand Bonny)
4. SKYE BANK PLC
LEAD JUDGMENT DELIVERED BY ABUBAKAR MUAZU LAMIDO, J.C.A.

FACTS OF THE CASE
This is an appeal against the decision of the High Court of Justice of Rivers State, Port Harcourt Judicial Division delivered on September 10, 2015.By an originating summons, the Claimants/1st Respondent submitted the following question for determination: -1. Whether the claimant who has carried out several acts on behalf of the 1st – 3rd Defendant pursuant to the power of attorney dated July 8, 2000 is entitled to his fees under the power of attorney. 2. Whether in view of the clear provision of the power of attorney dated July 8, 2000 it is open to the 1st defendant to use his discretion to decide how much the claimant will be paid for his services. 3. Whether the 1st – 3rd Defendants can resile arbitrarily from the power of Attorney donated to the claimant after the claimant had carried out his functions pursuant to the power of Attorney.

The claimant further sought for the following reliefs against the Defendants:-
​1. A DECLARATION that the claimant is entitled to 30 percent of the sum of N1, 231,658.650:00 paid to the 1st –3rd Defendant by SPDC which amounts to approximately N369, 497,595 by virtue of the power of Attorney donated by the 1st – 3rd Defendants to the claimant and dated July 8, 2000. 2. AN ORDER directing the 1st – 3rd Defendants to pay over to the Claimant the sum of N369, 497,595 being his solicitor’s fees or ALTERNATIVELY, An order directing the 4th Defendant to transfer the said N369, 497,595 to the Claimants accounts domiciled at the 4th Defendant’s bank. The originating summons was supported by an affidavit in support of 49 Paragraphs, several exhibits and a written address. The 1st Defendant/Appellants filed a conditional memorandum of appearance, a counter affidavit and a written reply to the claimant’s Originating summons; the 3rd Defendant/2nd Respondent filed a counter affidavit, annexed some exhibits to the counter affidavit and an address; the 4th defendant/Respondent filed a conditional Memorandum of appearance and a counter affidavit to the Originating summons. The Claimant/1st Respondent filed a further affidavit and a Reply on point of law.

The trial Court thereafter entered Judgment in favour of the Claimant/1st Respondent as claimed in the Claimants Originating Summons directing the 4th Defendant/Respondent to credit the account of the claimant with the Judgment sum domiciled with the 4th Defendant/Respondent. The trial Court also awarded a cost of N50, 000 against the 1st – 3rd Defendants to the claimant. Dissatisfied with the decision of the trial Court, the 1st Defendant filed an appeal against the decision to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court of Appeal considered the merits of the appeal.

APPELLANT’S COUNSEL SUBMISSION
Arguing the appeal, it was the submission of the Appellant’s counsel that the foundation of the Respondent’s case is Exh. MS9 and from the said exhibit the 1st Respondent did not discharge all the duties imposed in Paragraphs 2, 3, 4 and 6 thereof. He also argued that there is Exh MS 14, which is a memorandum of Understanding entered with Lucius E. Nwosu (SAN) who prosecuted the case of the Appellant up to the Supreme Court. Learned counsel further argued that the 1st Respondent was duly informed that due to the fact that the 1st Respondent did not fully performed the terms in Exh MS9 and the fact that Jumbo Major House incurred other liabilities in the course of prosecuting the case, he can only be paid 10 percent of the sum recovered instead of 30 percent as in Exh MS9. This offer the 1st Respondent rejected and on the strength of that rejection of 10 percent offer, the Appellant contends that the 1st Respondent entitlement is on quantum meruit. He referred to FBN V. OZOKWERE (2014) 3 NWLR (PT 1395) 439 and PANAR LTD V. WAGBARA (2000) 2 NWLR (PT 644) 202.

He further stated that the 1st Respondent’s admission of the fact that Lucius E. Nwosu (SAN) presented the suit up to the Supreme Court and his refusal to take the offer of 10 percent instead of 30 percent in Exh. MS9 necessitate calling for oral evidence to prove that he is entitled to a higher sum than the 10 percent offered. He also stated that the trial Court was wrong in holding that by Exh. MS9 the 1st Respondent is entitled to 30 percent of the total sum the Jumbo Major House recovered in view of the fact that it was another counsel who recovered the sum. The finding of fact not supported by any evidence cannot stand and ought to be set aside. He referred to OSAGHAE V. AMADASUN (2014) 16 NWLR (PT 1433) 346. Counsel urged the Court to resolve this issue in favour of the Appellant.

Learned counsel for the Appellant submitted further that the 1st Respondent’s claim is based on disputed legal fees and such cannot be done by an originating summons procedure and that the trial Court was wrong to hold that the dispute is based on the interpretation of the Power of Attorney. He relied on FORTUNE INTERNATIONAL BANK PLC V. CITY EXPRESS BANK LTD (2013) ALL FWLR (PT 679) 112.

RESPONDENTS COUNSEL SUBMISSION
In his brief of argument, learned counsel for the 1st Respondent submitted that the case of the parties was fought on the strength of affidavit evidence. While the 1st Respondent deposed to a 48 Paragraph affidavit, the Appellant only denied some Paragraphs and left Paragraphs 1, 2, 3, 5 – 41 of the affidavit in support unanswered and the consequence of that the paragraphs are deemed admitted by the Appellant. He referred to AG ANAMBRA STATE V. OKEKE (2002) ALL FWLR (PT 112) 176 and AGBAJE V. IBRU SEA FOODS LTD (1972) 25C 50.

Learned counsel submitted further that a careful look at Exh. MS 9 will reveal that the 1st Respondent has earned the payment of the 30% agreed in the said exhibits and having received payment, the Jumbo Major House of Bonny cannot renege on Exh. MS 9. He stated further that where parties have entered into a contract voluntarily, they are bound by the terms therein and if one party performs his obligation under the contract, the other party is bound to perform his own side of the contract. He referred to AG RIVERS STATE V. AG AKWA IBOM STATE (2011) 8 NWLR (PT 1248) 31. He stated that the 1st Respondent has performed his part of the agreement to entitle him to the payment of his professional fees. Learned counsel argued that it is not necessary for the 1st Respondent to perform all the duties in Exh MS 9 before he becomes entitled to his fees.

He noted that the Appellant is strongly attaching weight to Paragraph 4 in Exhibit MS9 while failing to acknowledge the fact that the 1st Respondent issues notice to quit to Shell Petroleum Development Company, notice of owners intention to recover possession and jointly prosecute the case from the High Court up to the Supreme Court and the law is that where joint claimants have different counsel, then the counsel must act together. He referred to FADAYOMI V. SODIPE (1986) 1 NSCC 574 and WILLIAMS V. NWOSU (2001) 3 NWLR (PT 700) 385. He also argued the contention of the Appellant’s counsel that since the claim of the 1st Respondent involved payment of professional fees, an Originating summons procedure is inappropriate and wrong since the 1st Respondent’s action is principally the interpretation of Exh. MS9, which Order 3 Rule 5 allowed. Moreover, where facts are unlikely to be in dispute, originating summons procedure can be resorted to. He referred to DOHERTY V. DOHERTY (1968) NWLR 241 and DAGOGO V. AG RIVERS STATE (2002) ALL FWLR (PT 131) 1954.Learned counsel for the 1st Respondent contended that the procedure adopted in filing the originating summons is proper in view of the fact that the facts in the affidavits of parties are not in dispute.

RESOLUTION OF ISSUES
Considering the appeal, the Court observed that the resolution of the issue in the appeal rest on the contents of Exh MS9, MS14 and the facts averred by parties. While the 1st Respondent’s contention, which the trial Court agreed with, is that he has performed his duties as donated by Exh. MS9, the appellant on the other hand is of the view that the 1st Respondent did not perform all of his functions as stated in Exh. MS9. In other words, it is the Appellant’s contention that the sum recoverable from the Shell Petroleum Development Company was only paid after a protracted litigation up to the Supreme Court instituted by Lucius E. Nwosu (SAN) and not the 1st Appellant.

Exh. MS9 is the Power of attorney donated to the 1st Respondent by Jumbo Major House as represented by the Appellant, the 2nd and 3rd Respondents. The Court defined a power of Attorney as “an instrument granting someone authority to act as agent or Attorney in fact for the grantor.” See BLACKS LAW DICTIONARY 9TH Ed. P 1290. It therefore authorizes the donee to perform certain functions in the donor’s stead. The document itself delegates the powers of the donor and in consequence the donee can only do what the donor can legally do. See UDE V. NWORAH & ANOR (1993) 2 SCNJ 47 and NDUKANBA V. KOLOMO & ANOR (2000) LPELR 10406. The Appellant contended that in view of Paragraph 4 in the power of Attorney, the trial Court was wrong to have held that the 1st Respondent has performed his obligation. The Court went ahead to state the cardinal rule of interpretation of instrument, document or agreement; the words used therein must be given their simple and ordinary meaning. In OGBUNYIYA V. OKUDO (1979) 6-9 SC 32 @ 42, The Supreme Court held that:

“One of the cardinal rules of construction of written instruments is that the words of the written instrument must in general be taken in their ordinary sense notwithstanding the fact that any such construction may not appear to carry out the purpose which it might otherwise be supposed was intended by the maker or makers of the instrument. The rule is that in construing all written instruments the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument; the instrument has to be construed according to its literal import unless again there is something else in the context which shows that such a course would tend to derogate from the exact meaning of the words.” See BURAIMOH V. ESA & ORS (1990) LPELR 819; UBN V. OZIGI (1994) LPELR 3389 and UNILIFE DEVELOPMENT CO LTD V. ADESHIGBIN & ORS (2001) LPELR 3382.

The Court held that what was expected of the trial Court was to take the whole Exh. MS9 (the Power of Attorney) and construe same literally. The Court held further that the trial Court was wrong to have held that the 1st Respondent successfully performed his own part of the terms of the power of Attorney.

The Court restated the position of the law that originating summons procedure is adopted where the sole or principal question to be decided is the construction of a written law or statute, documents, contracts or agreement; or where there is likely no or any substantial dispute of law or any deed, will, contract or other document or some other question relevant to the determination of the issue in controversy. See NATIONAL BANK OF NIGERIA LTD V. ALAKIJA (1979) 9-10 SC 59; EZEIGWE V. NWAWULU (2010) LPELR 1201 and MICHEAL IMODU NATIONAL INSTITUTE FOR LABOUR STUDIES V. MALIKI (2011) LPELR 9100. Originating summons procedure cannot also be used where the action involves hostile proceedings where the facts are seriously in dispute or riotously so. See DOHERTY V. DOHERTY (1968) NWLR 241; KEYAMO V. L. S. H. A. (2001) 18 NWLR (PT 799) 605 and PAM V. MOHAMMED (2008) 16 NWLR (PT 1112) 1. The Court held that originating summons procedure is not the applicable procedure for this action. The 1st Respondent ought to have commenced the action by a writ of summons. This issue for determination was equally resolved in favour of the Appellant and against the Respondent.
HELD
On the whole, the Court found the appeal meritorious and it was thereby allowed.

Appearances:
D.I. Iboroma, Esq. with him, J.H. Egop-Ogor, Esq and T.S. Tuboimie, Esq. -For Appellant

G. I. Abibo, Esq. SAN with him, U. A. C. Azogu, Esq and P. Bereiweriso, Esq. -For 1st Respondent
Compiled by LawPavilion


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