‘Where there is contract, court is to interpret it for parties’

 Continued from last week IN THE SUPREME COURT OF NIGERIA, on Friday, the 19th Day of October 2012 Before their Lordship; Sylvester Umaru Onu (JSC), Niki Tobi (JSC), Dahiru Musdapher (JSC), Sunday Akinola Akintan (JSC) and Walter Samuel Nkanu Onnoghen (JSC). SC 91/2002 Between Adetoun Oladeji (Nig) Ltd …. Appellant And Nigerian Breweries Plc …. […]

 Continued from last week

IN THE SUPREME COURT OF NIGERIA, on Friday, the 19th Day of October 2012
Before their Lordship; Sylvester Umaru Onu (JSC), Niki Tobi (JSC), Dahiru Musdapher (JSC), Sunday Akinola Akintan (JSC) and Walter Samuel Nkanu Onnoghen (JSC). SC 91/2002
Between
Adetoun Oladeji (Nig) Ltd …. Appellant
And
Nigerian Breweries Plc …. Respondent
Judgment of the Court delivered by Niki Tobi. JSC.

The meaning to be placed on a contract is that which the plain, clear and obvious result of the terms used in the agreement. See Aouad v. Kessrawani (1956) N.S.C.C.33. When constructing document in dispute between the parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract, ideas not potent on the face of the document. See Amadi v. Thomas Aplion Co. Ltd. (1972) 7 N. S. C. C. 262.
Where there is a contract regulating any arrangement between the parties, the main duty of the court is to interpret that contract to give effect to the wishes of the parties as expressed in the contract document. See Oduye v. Nigeria Airways Limited (1987) 2 NWLR (Pt.55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See Amizu v. Dr. Nzeribe (1989) 4 NWLR (Pt.118) 755. However, where the meaning of words used is not clear, the court will fall back on the intention behind the words.
Above all, it is not the function of a court of law to make agreements for parties or to change their agreement as made. See African Reinsurance Corporation v. Fantaye (1986) 1 NWLR (Pt.14) 113.Exhibit B provided in part that without prejudice to accrued rights and liabilities of the parties to the agreement, it could be terminated by one month notice in writing and that it may be suspended or terminated immediately by notice in writing by the respondent upon the occurrence of same event In awarding the damages of N833, 333.00, the Court of Appeal said at page
237 of the Record:”… applying the cases referred to the learned trial Judge found as a fact that the annual profit of respondent/cross appellant was N10 million per annum being a finding of fact it was borne out in Exhibit N to N2. As I have been privileged to read before now the leading judgment of my learned brother Tobi, JSC just delivered, I am in agreement with him that the appeal is meritorious and ought to succeed in part.
The Court of Appeal (hereinafter referred to as the court below) in setting aside the award of N1, 249, 000.00) made by the trial court in favour of the appellant herein, held thus:
“It is common ground that appellant owned the franchise on the empty bottles but possession was in respondent by way of deposit towards the cost of purchase of appellants’ product. In the custom of trade of the business between the parties, the empty bottles are owned by the appellant who put liquid content to be sold to respondent in the sale the cost of the empty bottles is given as credit note with the amount deducted from the overall price with respondent taking advantage of the credit note. The bottles are in form of bailment which arises by way of contract wherein the delivery of personal property by one person (the bailor) to another (the bailee) who holds the properly for a certain purpose under an express or implied term of contract. From the evidence adduced, the appellant is the bailor whilst the respondent is the bailee. In the instant appeal as the contract of bailment is tied to purchase of product of the appellant with content and then credit given to respondent and no evidence of payment separately for bottles, the learned trial judge erred in law to have awarded the bailee the cost of the goods entrusted to it by the bailor when the purpose for the delivery has not materialised …….” (Emphasis supplied.) It is on the basis of the above that the court below set aside the award of N l, = 249, 000.00 made by the trial court in favour of the present appellant.
Having carefully perused the pleadings of the parties herein as well as the evidence produced at the trial in support of their respective cases, I have not seen therein anywhere the facts of a contract of bailment are made out nor evidence of same given by parties on record. It is therefore apparent that the issue of contract of bailment was raised suo motu by the court below without calling on the parties to address it on same before basing its decision to set aside the award in issue thereon. It is settled law that it is not for the court to make a case of its own or to formulate its own from the evidence before it and thereafter to proceed to give a decision based upon its own postulation quite separate from the case the parties made before it. See Adeniji v. Adeniji (1972) 4 SC 10 at 17. It is also settled law that parties are bound by their pleadings.
See Lewis & Peat (NRI) Ltd v. Akkhimien (1976) 1 All MLR 460 at 465; Otuaha Akpapuna v. Obi Nzeka II & ors (1983) 2SCNLR 1 at 14 and Rowland Omoregie & 2 ors v. Idugiemwanye & ors (1985) 6 SC 150 at 185. No party is allowed to present a case contrary to its pleadings. Thus, in the appeal herein, the parties neither having pleaded contract of bailment nor based their case thereon, the court below was in error when it raised the issue contrary to the pleadings of the parties. It is for the above reasons and those more articulately set out in the leading judgment of my learned brother Tobi, JSC that 1 too partially allow the appeal and make no order as to costs. Appeal succeeds partially.
Judgment delivered by: Dahiru Musdapher, J.S.C.