➥ CASE SUMMARY OF:
Arjandas Hiranand Melwani V. Five Star Industries Limited (SC.15/1994, 25 January 2002)
by Branham Chima.
➥ ISSUES RAISED
Power of attorney.
➥ CASE FACT/HISTORY
The plaintiff was a shareholder and director in the defendant Company (hereinafter is referred to as the company). The Board of Directors of the company, by a resolution, on 21st February 1986 transferred his shares to Edict Ltd. As the plaintiff did not request for such a transfer, and he was not a party to the resolution, he instituted an action against the company claiming: “1. A declaration that the resolution of the Board of Directors of the defendant passed on the 21st day of February, 1986 transferring all the shares held by the plaintiff in the company to Edict Limited is irregular, illegal, null and void and of no effect. 2. An order for an account to be rendered by the defendant to the plaintiff in respect of all dividends, bonus shares and other rights and benefits due to the plaintiff in respect of shares held by him in the defendant company and for the payment of all such benefits to the plaintiff.”
The learned Judge entered judgment for the plaintiff “as claimed in his writ of summons.” The company, being dissatisfied, appealed to the Court of Appeal which court allowed the appeal and set aside the judgment of the trial High Court “for reason of being incompetent.”
The Court of Appeal found that the power of attorney, Exhibit B “particularly the page headed ‘To whom it may concern’ cannot by any stretch of imagination be construed to be adequate and create a power of attorney in favour of the donee.”
➥ ISSUE(S) & RESOLUTION(S)
↪️ I. Whether the Court of Appeal was right in setting aside the proceedings at the trial court for reason of being incompetent?
[THE POWER OF ATTORNEY WAS NOT EXECUTED IN NIGERIA, AND SATISFIES THE LAW OF THE PLACE WHERE IT WAS EXECUTED, THUS ADMISSIBLE
‘It is this document that the court below, per Sulu-Gambari JCA, held not to be “adequate and create a power of attorney in favour of the donee.” With respect to their Lordships of the court below, I think they are wrong in this conclusion. Exhibit B was made in Hong Kong, and not in Nigeria; there is no evidence that Exhibit B does not comply with the law of Hong Kong, a part of the Commonwealth at the time Exhibit B was executed. By virtue of section 117 of the Evidence Act (formerly section 116), the document was admissible for the same purpose for which it would be admissible in the United Kingdom. Section 117 provides: “117. When any document is produced before any court, purporting to be a document which by the law in force for the time being in any part of the Commonwealth would be admissible in proof of any particular in any court of justice in any part of the Commonwealth, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the court shall presume – (a) that such seal, stamp or signature, is genuine; and (b) that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in the United Kingdom.” Section 118 (formerly section 117) which the court below relied on and which counsel in their briefs have relied on too, will not, in my respectful view, apply in this case as that section deals with a power of attorney executed in Nigeria or before a consul or representative of Nigeria or of the President.’
‘The conclusion I reach on Exhibit B is that if that document is admissible in Hong Kong (where it was made) – and there is no evidence to the contrary – as a power of attorney, it is equally admissible in this country as such – Section 118 of the Evidence Act refers.’
IT IS ONLY THE PLAINTIFF WHO CAN COMPLAIN OF THE AUTHORITY OF THE DONEE TO SUE
‘It is argued in the respondent’s brief that there was nothing in Exhibit B authorising the donee of the power of attorney to sue on behalf of the donor. Bryant, Powis, and Bryant v. La Banque Du Peuple (1893) AC 170, 177 is cited in support of the submission that a power of attorney is to be construed strictly. If Exhibit B did not empower Mr. Adeniji to sue on behalf of the plaintiff, I think it is for the plaintiff to complain and not the company. Be that as it may, on a fair construction of Exhibit B, I think Mr. Adeniji had the power to sue on behalf of the plaintiff in respect of the latter’s shares in the company. The authority given by Exhibit B was “to act as my attorney and as such to act for and on my behalf in all matters relating to my shareholding in Five Star Industries Ltd. Lagos.” This authority must necessarily include taking all steps, legal action inclusive, that were necessary to protect plaintiff’s shareholding in the company. I have already set out in the early part of this judgment the caption of the action. It shows the plaintiff as Arjandas Hiranand Melwani. That he sued through his attorney, Lateph Akingbade Adeniji only makes the latter an agent. How an agent is to institute an action on behalf of his principal has just been considered by this court in a recent case.’]
‘The Court of Appeal was in error when it held that the action was incompetently constituted. The appeal, therefore, succeeds and it is hereby allowed by me. Mr. Olojo, learned counsel for the Company has argued in the respondent’s brief that as the issues placed before the Court of Appeal by the company were not decided, this case, in the event of the appeal being allowed, should be remitted to the court below for it to pronounce on the other issues raised in the appeal before that court. I regret I cannot accede to this request. The company has not appealed to this court against the failure of the court below to pronounce on all the issues it placed before it. That court took up only one of the issues and decided the appeal on it in favour of the company. The latter took a chance by being content with what that court did and thus did not complain about the former’s failure to pronounce on the other issues. The appeal against the judgment of the Court of Appeal on the only issue pronounced upon by it having succeeded, the judgment of that court is set aside. And the judgment of the trial Federal High Court is restored. I award to the plaintiff ₦2,000.00 costs of the appeal in the Court of Appeal and ₦10,000.00 costs of this appeal.’
➥ FURTHER DICTA:
⦿ FAILURE TO APPEAL FOR ISSUES NOT HEARD BY THE LOWER COURT
It is obvious that the respondent has not appealed against the failure of the court below to consider other issues raised before it. The inference that can rightly be made from that position is that they took a chance that the judgment of the court below would be affirmed by this court. Having regard to what I have said above on the only issue considered by the court below, it is manifest that the risk taken by the respondent has not enured in its favour. On the other hand, as already observed, the trial court had found for the plaintiff/appellant in respect of all his claims against the respondent. As those findings remained undisturbed, it would not in my humble view, be right in the circumstances to now deny the appellant of the fruits of his success by remitting the case to the court below for the consideration of the issues that the court deliberately left unconsidered in its judgment. The justice of the case demands that the appellant should be granted all his claims as found by the trial court. And it is hereby granted accordingly. — Ejiwunmi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
M.E. Ogundare JSC
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
Chief T. Olojo.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)