FED. MINISTRY OF JUSTICE POST SERVICE HOUSING SCHEME LTD/GTE v. AVEO GLOBAL RESOURCES LTD & ANOR (2020)

FED. MINISTRY OF JUSTICE POST SERVICE HOUSING SCHEME LTD/GTE v. AVEO GLOBAL RESOURCES LTD & ANOR

(2020)LCN/14130(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, April 15, 2020

CA/A/510A/2016

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FEDERAL MINISTRY OF JUSTICE POST SERVICE HOUSING SCHEME LTD/GTE APPELANT(S)

And

1. AVEO GLOBAL RESOURCES LTD 2. ARC OBU OGBO RESPONDENT(S)

RATIO

WHAT IS A POWER OF ATTORNEY

Nnaemeka Agu JSC (as he then was) has this to say, while delivering the leading judgment in the case of GEORGE OBI UDE V. CLEMENT NWARA & ANOR (1993) 2 NWLR (PT. 278) Pg 638 and I quote –
“…A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the donee. Rather it could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a Power is not perse an alienation or parting with possession…”
The law regards a holder of a Power of Attorney as an agent of the principal or the donor of the Power, and the PW2 confirmed that in paragraph 5 of his witness statement on oath, where he deposed that he acted as a facilitator of the said offer at the request of Aveo Global Resources Ltd (the 1st Defendant in this matter) pursuant to a Memorandum of Understanding dated 22nd February, 2011. In the words of PW2 under cross-examination, he testified that he acted as a facilitator of the 1st Defendant for the allocation of the land in question and before he facilitated the land there was a Memorandum of Understanding. PER AGIM, J.C.A.

WHETHER OR NOT A POWER OF ATTORNEY AS AN INSTRUMENT OF TRANSFER

The question is, based on the facilitation job, does this give PW2 the impetus to transfer interest in the plot of land in question to the Plaintiff pursuant to Exh. 4? The answer is emphatically, NO! For the reason being that a Power of Attorney is not an instrument of transferring title to a plot of land based on the authorities I stated above, and also based on the fact that during cross-examination PW2 confirmed thus:
By the statement/testimony of PW2 above, I make firm to state that PW2 has no authority of the 1st Defendant to transfer the land in question to the Plaintiff, because he testified that the 1st Defendant did not sell the land to him, neither did the 1st Defendant also gave the land to him free. He confirmed the purpose of the Power of Attorney he requested from the 1st Defendant is “in case of failure”. Unfortunately, he did not also tell the Court that there was failure on the part of the 1st Defendant in the transaction, that was what made him to sell the land to the Plaintiff.
Following from the above position, I agree with the learned Defendant counsel that PW2 cannot rely on Exh. 4 to confer title to the land in dispute to the Plaintiff and moreover it is not registered. PER AGIM, J.C.A.

THE ADMISSIBILITY OF AN UNREGISTERED LAND INSTRUMENT

“This means that an unregistered land instrument is not admissible to prove and establish title to land or an interest to the land. However, it is admissible to prove that there is a transaction between the parties. See OKON V. OKON (supra) at pages 23-24 paras. C – A.
If the Plaintiff tendered Exh. 4 to prove the existence of a transaction between them and PW2 it would be understandable , but it would not be admissible if the document is tendered to prove or establish title.” In PRINCEWILL EYO ASUQUO & ORS VS. MRS. GRACE GODFREY EYO & ANOR (2013) LPELR – 20199 (CA), the Court of Appeal Calabar Division, per Ndukwe Anyanwu JCA, held that “an unregistered registrable instrument is admissible as evidence of payment of purchase price. However, it is not admissible in evidence to prove or establish title, as it is not a valid document capable of transferring any title on estate. Such an instrument, coupled with the purchaser being in possession may give rise to an equitable interest.” PER AGIM, J.C.A.

IRREVOCABLE POWER OF ATTORNEY AS AN INSTRUMENT OF TRANSFER.

The law on whether an irrevocable power of attorney confers on the donee, the title to the land that is the subject of the power of attorney is as laid down by the Supreme Court in Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638, Ezeigwe v. Awudu (2008) 11 NWLR (Pt. 1097) 158 at 176, Chime & Ors v. Chime & Ors (2001) 1 SC (Pt. 11), and Okeke v. Nnolim (2005) 5 NWLR (Pt. 1453) 405 at 451.
In Ude v. Nwara (supra) the Supreme Court held that- “A Power of Attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorized another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually clearly spelt out in the power of attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seisin to, third parties. It may be issued for valuable consideration or may be issued for valuable consideration or may be coupled with interest, in either case it is usually made to be irrevocable either absolutely or for a limited period (see Ss. 8 and 9 of the Conveyancing Act of 1881 which is still applicable in the Rivers State under Section 15 of the High Court Law). A power of attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers limits, charges or alienates any title to the done: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is an alienation.” In Ezeigwe v. Awudu (supra) the Supreme Court held that- “An Irrevocable Power of Attorney is not a document of title conferring title to the property in issue on the donee. It would still be necessary for the donee to prove title to the property whose title is in issue. Indeed the existence of the Irrevocable Power of Attorney is a clear evidence or confirmation of the fact that the title to the land in dispute resides in the donor of the Power. The only document that can prove any passing of the title to the donee would be a conveyance or an assignment.” PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/510A/2016 was commenced on 2-8-2016 when the appellant herein filed a notice of appeal against the judgment of the High Court of Federal Capital Territory delivered on 4-5-2016 in suit No. FCT/HC/CV/1051/2011 by A.S. Umar J. The notice of appeal contains six grounds of appeal.

The parties herein have filed their respective briefs as follows – appellant’s brief and respondent’s brief.

The appellant’s brief raised the following issues for determination-
1. Whether the non-registration of the Power of Attorney tendered by the Appellant as Exhibit 4 renders the same inadmissible in evidence. Culled from Ground One.
2. Whether the Appellant Exhibit 4 i.e. the Power of Attorney can be relied on by Appellant’s PW2 to pass title to the Appellant. Culled from Ground Two.
3. Whether the non joinder of the Appellant’s witness Number 2 as a Defendant is fatal to the Appellant’s case. Culled from Ground Eight.
4. Whether on the preponderance of the evidence led the learned trial Judge, was right in dismissing the case of

the Appellant. Culled from Five and Seven.

The respondent’s brief raised the following issues for determination-
1. Whether based on the facts and documentary evidence of this case, the trial Court judge was right in law to hold that he Appellant’s witness (PW2) has no valid title to pass to the Appellant.
2. Whether the Learned trial Judge was right to dismiss the claim of the Appellant which was based solely on an unregistered Power of Attorney relied by PW2 to transfer the 1st Respondent’s land to the Appellant.
3. Whether the failure of the Appellant to joint PW2 or his company Interland Skill Ltd as necessary parties to the suit was fatal to the case of the Appellant at the trial Court.
4. Whether in consideration of oral evidence of PW2 and documentary evidence in Exhibit 17, the Appellant can still lay claim to the Land the subject matter of this appeal.
5. Whether having regards to the oral and documentary evidence adduced by the Respondent at the trial Court, the trial Judge was right in dismissing the case of the Appellant.

It is noteworthy that the appellant did not raise any issue for

determination from ground 1 of this appeal and issue No. 4 in the appellant’s brief is not derived from any of the grounds of this appeal.
Ground 1 reads thusly-
“The Learned trial Judge erred in law when he held:
By the statement of PW2 above, I make firm to state that PW2 has no authority of the 1st Defendant to transfer the land in question to the Plaintiff, because he testified that the 1st defendant did not sell the land to him, neither did the 1st Defendant also gave the land to him free. He confirmed the purpose of the Power of Attorney he requested from the 1st Defendant is “in case of failure”. Unfortunately, what he meant by the words in case of failure, he did not also tell the Court that there was failure on the part of the 1st Defendant in the transaction, that was what made him to sell the land to the Plaintiff.”

By not raising any issue for determination from this ground of appeal, the appellant clearly abandoned it. The law is settled by an unending line of the decisions of the Supreme Court and this Court that a ground of appeal from which no issue for determination is raised is deemed

abandoned and must be struck out. Ground 1 of this appeal is therefore hereby struck out. See Ngilari V Mothercat Ltd (1999) 12 SC (pt. ii) 1.

Issue No. 4 as couched has no relationship with any of the grounds of this appeal because there is no ground of this appeal complaining that the judgment is against the weight of the evidence or that the judgment is wrong on the preponderance of evidence. The appellant indicated in its brief that the issue is culled from grounds 4 and 7 of this appeal. Ground 4 of this appeal complains that “The Learned trial judge erred in law when he held that there was contradiction between the testimony of the appellant’s witnesses PW1 and PW2 as to who the authors of Exhibit 17 represented.” There is clearly no nexus between this complain and issue No.4 in the appellant’s brief. I have carefully read the notice of this appeal. It does not contain ground 7. There are just six grounds of appeal in it. Since issue No. 4 raised for determination in the appellant’s brief is not derived from any of the six grounds of this appeal, it is incompetent and is hereby struck out. SeeEgbe V Alhaji (1990)3 SC (Pt.1).

I will determine this appeal on the basis of the three competent issues raised for determination in the appellant’s brief.
I will determine issues Nos. 1 and 2 together.
I have carefully read and considered the arguments of both sides on these issues.

Learned Counsel for the appellant argued that the Supreme Court decision in Ude v. Nwara (1993) 2 NWLR (PT. 278) Pg 638 relied on by the trial Court to hold that a power of attorney cannot confer title to land and that therefore Exhibit 4 did not transfer title to the disputed plot to Interland Skills Ltd is distinguishable from the present case because the donee of the power of attorney had no valid title to the land the subject of the power of attorney, that in our present case Exhibit 4, the power of attorney gave the Interland Skills Ltd whose alter ego is PW2, the power to alienate the plot in dispute to the appellant, that the Supreme Court in Ibrahim v. Obaje (2018) 18 FWLR 1682 at 1716 held that a power of attorney can confer title or interest in land.

Learned Counsel for the respondents argued in reply that a mere power of attorney could not confer title on

Interland Skills Ltd and PW2 to sell the disputed plot to the appellant, that it is also not registered as required by the Land Registration Act Cap 515 Laws of Federal Capital Territory Vol. 3, that the decision of the trial Court that Exhibit 4, being a power of attorney cannot confer title is correct.
Let me now consider the merits of the above arguments of both sides.

The part of the judgment in which the trial Court held that Exhibit 4 did not confer title on PW2 and that the appellant could not have derived title therefrom reads thusly- “From the facts and circumstances of this suite, it is my understanding that PW2 cannot rely on Exh. 4 to confer title in Exh. 1 to the Plaintiff because, a Power of Attorney or to put it more clearly as stated by His Lordship, Walter Samuel Nkanu Onnoghen, JSC (While reading the leading judgment) held in GILBERT EZEIGWE VS. AWAWA AWUDU (2008) 11 NWLR (PT. 1097) Pg 158 at 176, Paras. A – C that “An Irrevocable Power of Attorney is not a document of title conferring title to the property in issue on the donee. It would still be necessary for the donee to prove title to the property whose title

is in issue. Indeed the existence of the Irrevocable Power of Attorney is a clear evidence or confirmation of the fact that the title to the land in dispute resides in the donor of the Power. The only document that can prove any passing of the title to the donee would be a conveyance or an assignment.”
It is my understanding that the Plaintiff acquired the land in dispute from PW2 based only on Exh. 4. PW1, under cross-examination has this to say –
“We acquire the land and we executed the Power of Attorney on 20/1/2011. We did search as to the owner of 1st Defendant, but more importantly, we have an irrevocable Power of Attorney in favour of Interland Skills Ltd. and our understanding of the Power of Attorney by 1st Defendant is that the 1st Defendant assigned the residue of his interest in the subject matter to Interland Skills Ltd. based on that understanding we enter into transaction with Interland Skills Ltd.”
The understanding of the Plaintiff that led it to enter into transaction with Interland Skills Ltd is an erroneous understanding because Interland Skills Ltd has no title to the land in dispute to pass to the

Plaintiff. Nnaemeka Agu JSC (as he then was) has this to say, while delivering the leading judgment in the case of GEORGE OBI UDE V. CLEMENT NWARA & ANOR (1993) 2 NWLR (PT. 278) Pg 638 and I quote –
“…A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the donee. Rather it could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a Power is not perse an alienation or parting with possession…”
The law regards a holder of a Power of Attorney as an agent of the principal or the donor of the Power, and the PW2 confirmed that in paragraph 5 of his witness statement on oath, where he deposed that he acted as a facilitator of the said offer at the request of Aveo Global Resources Ltd (the 1st Defendant in this matter) pursuant to a Memorandum of Understanding dated 22nd February, 2011. In the words of PW2 under cross-examination, he testified that he acted as a

facilitator of the 1st Defendant for the allocation of the land in question and before he facilitated the land there was a Memorandum of Understanding. “The MOU has a time limit and I am to facilitate the land at the cost of N120 Million Naira…” So says PW2. The Memorandum of Understanding is to my mind, the document tendered in Court during trial and admitted in evidence as Exh. 8.
The question is, based on the facilitation job, does this give PW2 the impetus to transfer interest in the plot of land in question to the Plaintiff pursuant to Exh. 4? The answer is emphatically, NO! For the reason being that a Power of Attorney is not an instrument of transferring title to a plot of land based on the authorities I stated above, and also based on the fact that during cross-examination PW2 confirmed thus:
By the statement/testimony of PW2 above, I make firm to state that PW2 has no authority of the 1st Defendant to transfer the land in question to the Plaintiff, because he testified that the 1st Defendant did not sell the land to him, neither did the 1st Defendant also gave the land to him free. He confirmed the purpose of the Power of

Attorney he requested from the 1st Defendant is “in case of failure”. Unfortunately, he did not also tell the Court that there was failure on the part of the 1st Defendant in the transaction, that was what made him to sell the land to the Plaintiff.
Following from the above position, I agree with the learned Defendant counsel that PW2 cannot rely on Exh. 4 to confer title to the land in dispute to the Plaintiff and moreover it is not registered. This is because Exhibit 4 ought to have been registered, pursuant to Section 2 of Land Instrument of Registration Law. In the case of ERO V. TINUBU (2012) 8 NWLR (PT. 1302) Pg. 104 at 125 paras. B – F Mshelid JCA held while presiding and reading the leading judgment that “an unregistered document which falls within Section 2 of the Land Instrument Registration Law, Ogun State can be admitted in evidence as a receipt or evidence of money transaction. Such document cannot be used to prove title. However, where it is coupled with possession in appropriate cases, it may give rise to equitable interest.” Also in ITA PETER OKON V. EDET BASSEY OKON (2014) LPELR – 22648 (CA), the Court of

Appeal Calabar Judicial Division per Nweze, JCA held that, “for an instrument to be pleaded or tendered in evidence in any Court as affecting land, such instrument must be registered. However, an unregistered registrable instrument is not admissible to prove title. It is only admissible to prove payment of money. Where also it is coupled with letting into possession of land by the seller, it may give rise to an equitable interest.” See also CO-OPERATIVE BANK LTD V. LAWAL (2007) 1 NWLR (PT. 1015) Pg 287.
“This means that an unregistered land instrument is not admissible to prove and establish title to land or an interest to the land. However, it is admissible to prove that there is a transaction between the parties. See OKON V. OKON (supra) at pages 23-24 paras. C – A.
If the Plaintiff tendered Exh. 4 to prove the existence of a transaction between them and PW2 it would be understandable , but it would not be admissible if the document is tendered to prove or establish title.” In PRINCEWILL EYO ASUQUO & ORS VS. MRS. GRACE GODFREY EYO & ANOR (2013) LPELR – 20199 (CA), the Court of Appeal Calabar Division,

per Ndukwe Anyanwu JCA, held that “an unregistered registrable instrument is admissible as evidence of payment of purchase price. However, it is not admissible in evidence to prove or establish title, as it is not a valid document capable of transferring any title on estate. Such an instrument, coupled with the purchaser being in possession may give rise to an equitable interest.” In the case at hand, the Plaintiff could not prove possession, because PW2 in his evidence under cross examination admitted thus:-
“Aveo entered and cleared the land. Aveo also settled the indigenes before clearance of land.”
In view of the above findings even if Exh. 4 is admitted in evidence before this Court, when the Court put the document through the crucible of evaluation and ascription of probative value thereto, this Court find this Exhibit to be a worthless document. I so hold. See I.M.B (NIG) LTD VS. DABIRI (1998) 1 NWLR (PT. 533) pg 284, BURAIMOH VS. KARIMU (1999) 9 NWLR (PT. 618) pg. 310. It is trite law that a Court is always expected in all proceedings before it to admit and act on evidence which is admissible in law, however, where a

Court should in advertently admit inadmissible evidence it has a duty, generally, not to act upon it. AWOPEJO & ORS VS. STATE (2000) 1 NWLR (PT. 659) Pg 1.
Has the Plaintiff proved its case on the available evidence and on the balance of probabilities to be entitled to the reliefs sought?”

to, third parties. It may be issued for valuable consideration or may be issued for valuable consideration or may be coupled with interest, in either case it is usually made to be irrevocable either absolutely or for a limited period (see Ss. 8 and 9 of the Conveyancing Act of 1881 which is still applicable in the Rivers State under Section 15 of the High Court Law). A power of attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers limits, charges or alienates any title to the done: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is an alienation.” In Ezeigwe v. Awudu (supra) the

Supreme Court held that- “An Irrevocable Power of Attorney is not a document of title conferring title to the property in issue on the donee. It would still be necessary for the donee to prove title to the property whose title is in issue. Indeed the existence of the Irrevocable Power of Attorney is a clear evidence or confirmation of the fact that the title to the land in dispute resides in the donor of the Power. The only document that can prove any passing of the title to the donee would be a conveyance or an assignment.”
The Supreme Court in Ibrahim v. Obaje (supra) did not depart from its earlier decisions on the point in the above cases. It held that its decision in Ude v. Nwara would not apply because the facts are different from that of the present case before it and decided the case before it in the light of the peculiar facts of the case such as the fact that the donee to whom the donor delivered the certificate of occupancy of the disputed land, had erected a building on the land, the subject of the power of attorney and the fact that the power of attorney permitted him to do so. The Supreme Court in that case distinguished the

facts of Ude v. Nwara from the facts of the case before it thusly- “I seek to say at this point that the decision in Ude v. Nwara supra is distinguishable clearly from the present case under consideration. For purpose of recapitulation, the 2nd respondent in Ude v. Nwara issued a Power of Attorney to the 1st respondent while statutory lease period of the appellant had not been properly terminated as required by the Eastern Nigerian Law. The 2nd Respondent therein who was the Attorney General of the State who donated this Power of Attorney should not have done so since Government cannot revoke land (except for Public use) and re- allot same land to private person.
The Lower Court did consider the facts in the decision of Ude v. Nwara (supra) before it concluded that the facts are not on all fours and as such should be distinguished. From the facts on the record, the Power of Attorney given to the Respondent by Mr. Otitoju Bonte has transferred the interest in Plot F.96.”
It is clear from the part of the judgment of the trial Court reproduced herein that it considered certain peculiar facts and circumstances of the present case in relying

on the decisions of the Supreme Court in Ude v. Nwara and Ezeigwe v. Awudu. The facts and circumstance it considered include the fact that PW2 was by a memorandum of understanding (exhibit 8) contractually engaged by the respondents to facilitate their acquisition of a plot and its due allocation to them, that the consideration for the facilitation was 120 million Naira, that since the consideration or part of it was not paid to PW2 in advance or upfront, the respondents executed the power of attorney Exhibit 4, appointing him as attorney to deal with the plot to be allocated to it as a security, assurance or guarantee that if he secures the allocation of the plot to the respondent they will pay him the agreed fees of 120 Million Naira, that when PW2 secured the allocation, the respondents paid him the sum of 10 Million with a promise to pay the balance, that when the balance was now paid, PW2 returned it on the ground that he had sold the plot to the appellant herein, that PW2 subsequently received from the respondents the balance of the purchase price. The portion of the judgment that considered these facts reads thusly – “The law regards a holder

of a Power of Attorney as an agent of the principal or the donor of the Power, and the PW2 confirmed that in paragraph 5 of his witness statement on oath, where he deposed that he acted as a facilitator of the said offer at the request of Aveo Global Resources Ltd (the 1st Defendant in this matter) pursuant to a Memorandum of Understanding dated 22nd February, 2011. In the words of PW2 under cross-examination, he testified that he acted as a facilitator of the 1st Defendant for the allocation of the land in question and before he facilitated the land there was a Memorandum of Understanding. “The MOU has a time limit and I am to facilitate the land at the cost of 120 Million Naira…..” So says PW2. The Memorandum of Understanding is to my mind, the document tendered in Court during trial and admitted in evidence as Exh. 8.
The question is, based on the facilitation job, does this give PW2 the impetus to transfer interest in the plot of land in question to the Plaintiff pursuant to Exh. 4? The answer is emphatically, NO! for the reason being that a Power of Attorney is not an instrument of transferring title to a plot of land based on the

authorities I stated above, and also based on the fact that during cross-examination PW2 confirmed thus:
By the statement/testimony of PW2 above, I make firm to state that PW2 has no authority of the 1st Defendant to transfer the land in question to the Plaintiff, because he testified that the 1st Defendant did not sell the land to him, neither did the 1st Defendant also gave the land to him free. He confirmed the purpose of the Power of Attorney he requested from the 1st Defendant is “in case of failure”. Unfortunately, he did not also tell the Court that there was failure on the part of the 1st Defendant in the transaction, that was what made him to sell the land to the Plaintiff.
Following from the above position, I agree with the learned Defendant counsel that PW2 cannot rely on Exh. 4 to confer title to the land in dispute to the Plaintiff and moreover it is not registered… I formed the opinion and agreed with the submissions of the learned Defendant counsel having carefully scrutinized the evidence of witness as well as the documentary evidence tendered that the 1st Defendant has satisfied its obligation of paying the

facilitation fee for the land to PW2. My reasons are first that having examined Exh. 8 and the evidence of PW2 under cross-examination, I understand that there exist an agreement between PW2 and the 1st Defendant for the facilitation of the plot in dispute at the sum of 120 Million Naira only as in Exh. 14 following the issuance of Exh. 13 to the 1st Defendant. PW2 told the Court that on 8/8/2011 the 1st Defendant paid the sum of N90 million into his account, but he returned back the money because he sold the land.
Another point of interest is that, it is PW2 that gave evidence under cross-examination confirming to appoint/contract one Barrister Nnamdi Atama to act on his behalf in respect of the transaction on 5/9/2011 and who wrote Exh. 11 to the 1st Defendant demanding for the balance of the money, which PW2 earlier rejected. It is in evidence as in Exhibit 18 and 19 that the 1st Defendant paid the money as demanded and PW2 did not deny this payment of the sum of N10 Million. This Court is therefore meant to understand that by the actions of PW2 it is clear that the 1st Defendant had complied with Exh. 8 in respect of payment of the facilitation fee to

PW2. I agree with the submission of the learned Defendant counsel on this issue and I so hold.
From the evidence of PW1 under cross-examination, it is really surprising PW1 claimed that the Plaintiff conducted search before purchasing the plot in dispute but he told the Court that he was not aware that PW2 asked for his facilitation fee and was paid N10 Million by the 1st Defendant before PW2 approached the Plaintiff for the transaction. PW1 also in his testimony said that there was evidence of some work done on the land prior to the transaction and that he was not aware that the 1st Defendant settled the indigenes of the community.”
It is noteworthy that the above findings of fact and holdings of the Trial Court are not challenged in this appeal. Ground 1 of this appeal that complained against this part of the said judgment was abandoned, as no issues was raised therefrom for determination The said findings and holdings therefore being unchallenged in this appeal are accepted by the appellant as correct, conclusive and binding upon it. See Iyoho V Effiong (2007)4 SC (pt.iii) 90 and Dabup V Kolo(1993)12 SCNJ 1.
Exhibit 4, the power of

attorney did not confer any title in the plot allocated to the respondents on Interland Skills Ltd including PW2 its alter ego. Therefore Interland Skills Ltd had no title in the disputed plot to transfer to the appellant and cannot transfer a title it does not have to the appellant.

It is not in dispute that the power of attorney, Exhibit 4 was not registered. Without its registration, the agency of PW2 that derived from exhibit 8, ended with his securing the allocation of the plot to the respondents as agreed between them and did not extend to his dealing with the allocated plot on their behalf or otherwise. He cannot rely on the unregistered power of attorney to deal with the land or alienate it. So its alienation of the plot to the appellant on the basis of the unregistered power of attorney is void. He had no title to pass to the appellant. See Vulcan Gases Ltd v. G.F. A.G (2001) 9 NWLR (Pt. 719) 610, Abubakar v. Waziri (2008) NWLR (Pt. 1108) 507, Vulcan Gases Ltd v. Gesellschaft Fur Industries & Anor, Ossai v. Nwajide (1975) 4 SC 207 and Nweke & Anor v. Nweke (2014) LPELR – 23563 (CA).

Let me now consider the issue of whether the

fact that Exhibit 4 was not registered as a deed renders it inadmissible in evidence. The law is settled by an unending line of judicial decisions of the Supreme Court and this Court that an unregistered instrument such as a power of attorney relating to land or a document of title to a right or interest in land is not admissible as evidence of such title or interest, but can be admitted as evidence of receipt of money for the alienation of such title or evidence of the existence of a transaction or agreement to alienate or deal in the land in the manner stated in the document. Examples of such decisions include Akinduro v. Alaya (2007) NSCQLR and Achilihu v. Anyatonwu (2013) 12 NWLR (Pt. 1368) 256(SC).

In the case of Exhibit 4, it is admissible as further evidence that the respondents engaged PW4 to facilitate the allocation of the disputed plot to them.
In the light of the foregoing, I resolve issues 1 and 2 in favour of the respondents.

Although I have struck out issue No. 4 in the appellant’s brief for being incompetent as it is not derived from any of the grounds of this appeal, let me still consider it in case my decision is

overruled in the event of an appeal from this decision, to avoid a remission of the appeal to this Court for rehearing on the issue.

Let me now determine issue No. 3 which asks “Whether the non joinder of the Appellant’s witness Number 2 as a Defendant is fatal to the Appellant’s case.”

The part of the judgment complained against under this issue reads thusly- “Based on the above, I agree in toto with the learned Defendant counsel that the Plaintiff is not justified for calling PW2 as a witness. PW2 to my mind is necessary party to this suit who should clear the dust of some issues regarding his involvement in the suit if he is joined as a Defendant. The PW2 should therefore be a necessary party to the suit. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with. Therefore, where the resolution of a crucial issue in an action revolves around a person who is not a party to the suit then the action is fatally defective. This is because the parties in the suit could not have been properly consisted. Thus,

anyone whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the proceedings. See B.A.T. (NIG) LTS vs. INT’L TOBACCO CO. PLC (2013) 2 NWLR (pt. 1339) Pg. 493 at 514-515 Paras HD-DF.

There is no doubt that Interland Skills Ltd and PW2, its Managing Director and alter ego are the central actors in the transactions that have caused this dispute between the appellant and the respondents. PW2 was the agent of the respondents to facilitate and procure the allocation of the disputed land to the respondents in consideration of which he agreed to receive 120 Million naira as fees for his services. The letter of allocation of the plot to the respondents was in his possession as agent of the respondents. For the purpose of this agency both sides signed exhibit 8, the memorandum of understanding and the respondents signed exhibit 4 and gave to him as assurance and guarantee that they would not fail to pay the said fees, if he successfully facilitates the allocation of the plot to the respondents. He got the plot allocated to the respondents. After the PW4 had received 10 Million Naira as part payment

of the facilitation fee, he proceeded to execute a deed of assignment purporting to sell the respondents right of occupancy of the plot to the appellant and executed a power of attorney in respect of the said plot to the appellants. The appellant entered into this transaction with PW2 based on its understanding that the respondents had by Exhibit P4 alienated or transferred their title to the plot to Interland Skills Ltd. In view of the foregoing facts, there is no doubt that PW2 and Interland Skills Ltd ought to be joined as parties to the suit brought by the appellant on the basis of the above mentioned transactions.
Although Interland Skills Ltd and PW4 ought to be joined as parties to the suit, the failure to join them, did not handicap or render impossible the fair trial and complete and effectual determination of the merit of the suit. So the non joinder of PW2 or his company Interland Skill Ltd did not affect or vitiate the competence or fair trial of the proceedings. Since the non joinder of Interland Skills Limited did not handicap the fair trial of the suit, it cannot vitiate the proceedings. See Okoye & Ors V NCFC Ltd & Ors (1991) 7 SC

(Pt.iii) 33. The Trial Court rightly tried the suit as constituted and determined the rights and liabilities of the named parties and their respective entitlements on the case as presented by them. As the Supreme Court held in Green V Green(1987) LPELR-1338 (SC) “Failure to join a party will thus not be fatal to the proceeding and the Court may determine the issues or questions so far as those issues or questions relate to and affect the rights and interests of the parties actually before it.”

In the light of the foregoing, issue No. 3 is resolved in favour of the appellant.

Let me now determine issue No. 4 which asks “Whether on the preponderance of the evidence led, the learned trial Judge, was right in dismissing the case of the Appellant.”

I have carefully read and considered the arguments of both sides on this issue.

The appellant as plaintiff claimed for the following reliefs:
1. A declaration that the Irrevocable Power of Attorney executed by the 1st defendant on 2nd February, 2011 in favour of Interland Skills Limited over all that undeveloped parcel of land lying and situate at Plot Number 26, Cadastral

Zone D02, Karsana South District, Abuja and covered by file number MISC 103140 is valid and subsisting.
2. A declaration that the Power of Attorney executed in favour of the Plaintiff by Interland Skills Limited dated 20th July, 2011 over all that undeveloped parcel of land known and called Plot Number 26, Cadastral Zone D02, Karsana South District, Abuja is valid and subsisting.
3. A declaration that the Plaintiff is entitled to quiet use and possession of all that undeveloped parcel of land known and called Plot Number 26, Cadastral Zone D02, Karsana South, Abuja.
4. An order of perpetual injunction restraining the Defendants by themselves, their servants, agents and or privies from exercising any acts of ownership possession or title holder over all that undeveloped parcel of land lying and situate at Plot 26, Cadastral Zone D02, Karsana South District, Abuja covered by File Number MISC 103140.”

From its pleadings and evidence, its case that by virtue of a power of attorney the defendants (now respondent) transferred their title and interest in plot 26, Cadastral Zone D02, Kasana District Abuja to Interland Skills, that Interland

Skills Ltd has now sold the said plot to it for 200 Million naira executed a deed of assignment and power of attorney in its favour and that it exercised acts of possession and ownership of the plot until the defendants armed with cudgels, destroyed the posts erected by it and removed the plaintiff’s container and have continued to drive away its workers from the plot.

The defence of the defendants from their pleading and evidence is briefly that Interland Skills Ltd had no title in the said plot 26, that the 1st defendants owns the right of occupancy of the plot, that the defendants had engaged Interland Skills Ltd and its chief Executive, PW4 to facilitate and procure allocation of a plot to 1st defendant, that the contract was in writing in the form of Memorandum of Understanding, that the consideration for the services of Interland Skills Ltd was N120 million naira, that to assure Interland Skills of the payment of the said fee of 120 Million upon the allocation of the plot to 1st defendant, the 1st defendant executed a power of attorney over the land to be allocated, that upon the allocation of the plot to 1st defendant, it paid Interland

Skills Ltd 10 Million naira with promise to pay the balance subsequently, that when it paid the balance to Interland Skills Ltd it retuned the money stating that it had sold the 1st defendants said plot to the plaintiff, that subsequently Interland Skills Ltd received the said balance of the fees for facilitating the allocation of the plot to the 1st defendant and that the appellant has no title to the plot.

Both sides produced all the documents relating to the above mentioned transactions in evidence. The letter of allocation of the plot to 1st defendant (Exhibit 1), the unregistered power of attorney by the 1st defendant to Interland Skills Ltd (Exhibit 4), memorandum of understanding between PW4 and 1st defendant executed on 2-2-2011 (Exhibit 5 or 8), unregistered irrevocable power of attorney dated 20-7-2011 from Interland Skills Ltd to the plaintiff (Exhibit 6), deed of assignment of the same plot by the Chiefs and indigenes of Kuchi Village Abuja to the 1st defendant (Exhibit 9), letter of request for payment of 120 million naira by Interland Skills Ltd (Exhibit 13), letter from M.B. Kangiwa & Associates requesting for refund of the money paid by

plaintiff to Interland Skills Ltd for the Plot and several other documentary exhibits relating to the transactions in respect of the plot.

It is glaring from the testimonies of plaintiff’s two witnesses PW1 and PW2 and all the documentary exhibits tendered by it, that the plaintiff failed to discharge the legal burden on it as plaintiff to prove its entitlement to the reliefs it claimed for in its writ of summons and statement of claim. It became clear from the pleadings and evidence that its claim of title to the said plot 26 was based on its understanding that the 1st defendant had transferred its title to plot 26 to Interland Skills Ltd by its power of attorney exhibit 4 and that Interland Skills Ltd in turn sold its title to the land to it by exhibit 6, a power of attorney dated 20-7-2011. Its root of title is exhibit 4 which is an unregistered power of attorney. The determination of the plaintiff’s entitlement to the reliefs claimed for turned on the whether the 1st defendant intended to transfer his interest in plot 26 to Interland Skills Ltd by the power of attorney and whether as a power of attorney it vested title to the plot in

Interland Skills Ltd. The plaintiff its furnished the evidence that explained that the power of attorney, exhibit was made to assure Interland Skills Ltd that the 1st defendant would pay it the 120 million naira fees for facilitating the allocation of the plot to 1st defendant. So it was made to vest title to plot 26 in the plaintiff. In addition from its nature as a power of attorney, the fact that it is not registered rendered it incapable of being a document of Interland Skills Ltd title to plot 26. The judgment of the trial Court reflected a consideration of all the evidence before it on this issue as the part of it reproduced above shows. The plaintiff’s evidence showed that the plaintiff was not entitled to the reliefs it claimed for. If Exhibit 4 did not vest title to the plot on Interland Skills Ltd, then it has no title in the plot to transfer to the plaintiff. Therefore, exhibit 6, the power of attorney dated 20-7-2011 and the deed of assignment it executed purporting to sell its title to plot 26 to the 1st plaintiff are void and of no effect on the principle of nemodat quod non habet.

In the light of the foregoing, I resolve issue No. 4

in favour of the respondents.

On the whole, this appeal fails as it lacks merit. It is accordingly dismissed.
The appellant shall pay costs N400,000.00 to the respondents.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Emmanuel Akomaye Agim, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

P.E. Ediale Esq., with him, O. P Odigie Esq. For Appellant(s)

Njang S. Egbaji For Respondent(s)