AUGUSTUSA. NDUKAUBA (Substituted by LAZARUS I. NDUKAUBA) v. CHIEF SILAS M. KOLOMO & ANOR(2000)

AUGUSTUSA. NDUKAUBA (Substituted by LAZARUS I. NDUKAUBA) v. CHIEF SILAS M. KOLOMO & ANOR

(2000)LCN/0729(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of March, 2000

CA/PH/119/95

JUSTICES

JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria

IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria

Between

AUGUSTUS A.NDUKAUBA (Substituted by:
LAZARUS I. NDUKAUBA) Appellant(s)

AND

CHIEF SILAS M. KOLOMO
2. ATTORNEY-GENERAL OF RIVERS STATE Respondent(s)

RATIO

WHETHER OR NOT A POWER OF ATTORNEY IS AN INSTRUMENT THAT TRANSFERS OR ALIENATES LANDED PROPERTIES

It must be emphasised that a Power of Attorney is not an instrument that transfers or alienates any landed property. It is merely an instrument delegating powers to the donee to stand in the position of the donor and do the things he could do. It is erroneously believed in not very enlightened circles particularly amongst the generality of Nigerians that power of attorney is as good as a lease or assignment. It is not whether or not it is coupled with interest. It may eventually lead to execution of an instrument for the complete alienation of land after the consent of the requisite authority, has been obtained. PER PATS-ACHOLONU, J.C.A.

DISTINCTION BETWEEN TRUST AND AGENCY

Nothing could be farther from the truth than that the Power of Attorney vested any proprietary interest, either as owner or occupier, in the appellant’s father. Highlighting some of the distinguishing factors between Trust and Agency, Professor J.O. Fabunmi pointed out that-
“Trust relationship is equitable while agency is legal. An agent does not own his principal’s property though he is able to dispose of it and pass good title to a third party by virtue of authority conferred on him, either by his principal or by law, whereas, a trustee is the legal owner of the trust property. An agent acts in accordance with the authority conferred on him by his principal, a trustee acts in the best interest of the trust…” (Italics mine).
(Equity and Trusts in Nigeria, (1986) University of Ife Press, p. 140). PER IKONGBEH, J.C.A.

OGEBE, J.C.A. (Delivering the Leading Judgment): The appellant sued the respondent in the High Court of Rivers State claiming for a declaration that he was the person entitled to the possession, control, management and enjoyment of property known as Plot 138, Borikiri layout (8 Etche Street) Port Harcourt until the proper determination of the lease which is the year 2060, perpetual injunction and other ancillary claims. Pleadings were exchanged and the appellant gave evidence on his behalf. In his evidence, he stated that the disputed property was leased to one Joseph Ezeakunne by the Government of the defunct Eastern Nigeria. As the property is in Port Harcourt, it was deemed granted by Rivers State Government. The lease for 99 years commencing 1st Jan., 1962 is Exh. A. Joseph Ezeakunne subsequently granted a power of attorney Ex. B to his father to manage the property. The father built a house of 16 rooms and managed the property until Nigerian civil war when the family ran away. After the civil war, the property was released to his father by Ex. C. In 1982, the 1st respondent came to the property and took it over and began to develop it. He claimed that he had bought it from the Rivers State Government. The appellant admitted that the power of attorney was not consented by the Governor of Rivers State.
The 1st respondent in his own defence stated that he bought the property from the Rivers State Government in 1982 and developed it extensively, adding 1st and 2nd floors to the existing property. He built 10 bed-room bungalow in an open space within the premises and carried out other developments without any challenge from any body. It was in 1988 that the appellant began to question his title to the property.
The trial Judge gave judgment dismissing the appellant’s claim on the ground that the power of attorney granted to the appellant’s father was void and since the appellant’s father has died the appellant has no locus standi to pursue the case. Dissatisfied with the decision, the appellant appealed to this court and filed a brief of argument which identified four issues for determination as following:
1. “Whether the power of attorney on which the claim was founded in the lower court is null and void and of no effect.
2. Whether the authorities of L.S.D.P.C. v. N.L. & S.P. Limited (1992) 5 NWLR (Pt.244) p. 653 and Osunrinde v. Ajamogun (1992) 6 NWLR (Pt.246) 156 are applicable to this case.
3. Whether the property was duly vested in the defendant/respondent’s vendor (Secretary to the Rivers State Government) who could convey or sell same to the 1st defendant/respondent.
4. Whether the sales agreement Exhibit ‘G’ is known to law and valid.”

The 1st respondent also filed the brief of argument and identified two issues for determination as follows:
1. “Whether plaintiff can rely on the Power of Attorney tendered as Exhibit B in the trial court to institute this action and continue same to conclusion.
2. Whether the plaintiff/appellant has the locus standi in the circumstance of this case to question the validity of the sale of the property to 1st defendant/respondent.”

The appellant also filed a reply brief. The issues formulated by the appellant appear to me as academic and scanty. Issues 3 & 4 are seeking for answers to matters not decided by the lower court at all. It is not the duty of this court to engage in an academic exercise or to decide issues which were not canvassed before the lower court or pronounced upon by the lower court. Accordingly, issues 3 & 4 struck out. In fact, the only issue which arises for determination in this appeal is the first issue formulated by the 1st respondent. The learned Counsel for the appellant submitted that the trial court was wrong in dismissing the claim only on the ground that the power of attorney was not consented to by the Governor of Rivers State. He relied heavily on the case of Ude v. Nwara (1993) 2 NWLR (pt.278) 638 which is a case which has to do with alienation of family land.
The learned Counsel for the 1st respondent in his own submission said that the power of attorney was void because it did not receive the Governor’s consent and on the death of appellant’s father as a donee of the power of attorney, the appellant ceased to have locus standi to pursue the claim. He relied on the case of Osunrinde v. Ajamogun (1992) 6 NWLR (Pt.246) 156.
In the case of Ude v. Nwara (1993) 2 NWLR (pt.278) 638 at pages 664-665, the Supreme Court defined the Power of Attorney as follows:
“It is left for me to deal with the second respondent’s contention that by execution of the Power of Attorney, Exh. “A” without their consent the plaintiff/appellant had committed a breach of the covenant not to part with the possession of the demised property without the lessor’s consent. To begin with, it appears to me that this thrust of the argument lost sight of the time nature of a Power of Attorney. A Power of Attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorizes 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 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 donee: 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 authorises 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.”

From the facts of the case, it can be seen that the appellant’s claim to the property is based entirely on Ex. B, the Power of Attorney given to the appellant’s father to manage the property. The document could not properly transfer title or even possession in the disputed land to his father without the consent of the Governor according to the terms of the lease Exhibit A. That is the purport of the lower court’s decision. From the reading of that document, it is clear that the Power of Attorney only delegated the authority of the donor to appellant’s father personally. It was not meant to transfer the authority from father to son. It therefore followed that when the appellant’s father died on the 29th of October, 1988 during the pendency of the case in the lower court the appellant had no locus standi to pursue the matter.
I am satisfied that the lower court was right in dismissing the appellant’s claim and I see no reason to disturb the judgment. Accordingly I dismiss this appeal and affirm the decision of the lower court. I award N3,000.00 costs in favour of 1st respondent against the appellant.

PATS-ACHOLONU, J.C.A.: I have read in draft the judgment of my learned brother OGEBE, JCA. It must be emphasised that a Power of Attorney is not an instrument that transfers or alienates any landed property. It is merely an instrument delegating powers to the donee to stand in the position of the donor and do the things he could do. It is erroneously believed in not very enlightened circles particularly amongst the generality of Nigerians that power of attorney is as good as a lease or assignment. It is not whether or not it is coupled with interest. It may eventually lead to execution of an instrument for the complete alienation of land after the consent of the requisite authority, has been obtained.
This case arose from the much talked of abandoned property which unfortunately has to pitch a citizen who claims ownership against the person who buys from Abandoned Authority law which seized the property. I believe as much as possible effort should be made to resolve these incipient cases so that the country can move forward.
I agree with the judgment of my learned brother and I abide by the consequential orders he made.

IKONGBEH, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, Ogebe, JCA. I agree entirely with his conclusion that the appellant lacks the locus standi to pursue this matter.
The appellant appears to be under the impression that the plot of land, the subject of this appeal, belonged to his father and that he inherited it on the death of the latter. He appears to believe that the Power of Attorney that Joseph Ezeakunne gave to his father invested his father with proprietary interest in the plot. This is shown by the use in his amended pleadings of such expressions as the “plaintiff enjoyed” the land; “plaintiff’s possession, enjoyment and management continued…”; and “After the war plaintiff resumed his occupation, possession, enjoyment and management of the property”. He made this even clearer at the end of his evidence-in-chief:
“I want a declaration that I am the person entitled to the enjoyment of the property as owner until the lease expires in the year 2060. I also want a perpetual injunction restraining the 1st defendant from interfering with my occupation, possession and use of the said property.” (Italics mine).

This explains why he applied to the lower court to be substituted for his father, who, as plaintiff, had instituted the proceedings in the first place.
Nothing could be farther from the truth than that the Power of Attorney vested any proprietary interest, either as owner or occupier, in the appellant’s father. Highlighting some of the distinguishing factors between Trust and Agency, Professor J.O. Fabunmi pointed out that-
“Trust relationship is equitable while agency is legal. An agent does not own his principal’s property though he is able to dispose of it and pass good title to a third party by virtue of authority conferred on him, either by his principal or by law, whereas, a trustee is the legal owner of the trust property. An agent acts in accordance with the authority conferred on him by his principal, a trustee acts in the best interest of the trust…” (Italics mine).
(Equity and Trusts in Nigeria, (1986) University of Ife Press, p. 140).

By the Power of Attorney, Joseph Ezeakunne merely constituted the appellant’s father, an agent, delegating to him only his power of managing the property. The appellant himself acknowledged this when he stated in evidence-in-chief that “The said Ezeakunne gave a power of attorney to my father to manage the property.”

If the appellant’s father never had any proprietary interest in the plot, it follows that when he died none devolved on the appellant as successor to his deceased father. Nemo dat quod non habet.
Even the power of management delegated to his father by Joseph Ezeakunne could not and did not devolve on the appellant. The law is “Delegatus non potest delegare.” A person to whom a power, trust or authority, is given to act on behalf or for the benefit of another cannot delegate it unless he is authorized to do so. (Jowitt’s Dictionary of English Law, 2nd Ed. vol. 1.) This is because the delegation involves a matter of personal trust between the grantor and the delegate. See Halsbury’s Laws of England, 4th Ed. vol. 1, para. 883. See also Friend v. Young (1897) 2 Ch. 421, at 429, per Stirling, J.
If the appellant’s father could not delegate his delegated powers in respect of the property when he was alive, I do not see how the power could devolve on his successors on his death.
The successor cannot inherit as a matter of course the trust that the grantor of the power of attorney reposed in the attorney, again reminding us of the personal relationship entailed in the arrangement. The fact that the principal trusted the father enough to make him his attorney or agent does not necessarily mean that he will have the same measure of trust or any faith at all in the son. This, no doubt, is one reason why it has been accepted that the death of the grantee of a power of attorney effectively terminates the agency created by the grant. Stirling, J., was of the view that had the principal in Friend v. Young, supra, been aware of the death of the senior partner in the partnership of father and son that they employed as agents they probably would not have continued the agency with the business then run by the son alone.
There is another dimension. The original statement of claim, filed when the appellant’s father was still alive and stood as plaintiff, shows by its paragraph 4 that Joseph Ezeakunne had by then died. By operation of law the death of the principal revokes the power given to the attorney, especially where it is not the case that the power of attorney was given to secure a proprietary interest of the donee or the performance of an obligation owed to the donee. See Halsbury’s Laws of England, ibid. paragraphs 872 and 882. The appellant before us has not shown that Joseph Ezeakunne gave the power of attorney to his father to secure any of his father’s proprietary interests, which it was his duty to secure, or that it was in performance of an obligation owed to his father. So that even if the appellant’s father were still alive he could no longer pursue the matter, the agency having been terminated by the death of his principal.
I too would dismiss the appeal. I abide by the consequential orders in the lead judgment.
Appeal dismissed.

Appearances