ALOYCIOUS OKPE v. BLESSING UMUKORO
(2013)LCN/6534(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of November, 2013
CA/B/224/2012
RATIO
THE GOLDEN RULE ON INTERPRETATION OF STATUTORY PROVISIONS
The golden rule, regarding interpretation of the provisions of a statute and even the constitution, is that words used in the provisions of the statute in question, must prima facie be given their ordinary meaning where such words are not ambiguous. See ELELU-HABEEB V. A-G., FEDERATION (2012) AII FWLR (PT. 629) 1011.It would appeal that the same approach applies to the construction of a document in order to know what the maker of the document or parties to the document intended to do when the document was prepared. This is because it is from the ordinary meaning of words used therein, that the intention of the maker or parties has to be determined. See IHUNWO V. IHUNWO (2013) 8 NWLR (PT. 1357) 550. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WORDS AND PHRASES: INSTRUMENT
The Blacks Law Dictionary 9th Edition defines an “instrument” as a written legal document that defines rights, duties, liabilities and entitlements. In Ogbimi v. Niger Construction Ltd (2006) 9 NWLR Pt. 986 Pg. 474, the Supreme Court held that by the definition of an “instrument” in S.2 of the Land Instruments Registration Law, an “instrument” means a document affecting land in the State whereby one party who may be called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee any right or title to or interest in any land. Thus, where there is an alienation or transfer of interest in land, a legal document does not become an instrument within the meaning of the said S.2 of the Land Instruments Registration Law or Act. See also Lanlehin v. James (1985) 2 NWLR Pt. 6 Pg. 262, S.C. In Awunedu & Ors. v. Onwumere (1994) 1 NWLR Pt. 321 Pg. 375, the Supreme Court held that a registrable instrument which was not registered was still admissible in view of the fact that it was tendered for the purpose of establishing that the transaction between the Respondent and one Mbahaotu was for the redemption of a pledge. Since it was tendered merely as an instrument to show evidence of sale of a piece of land which evidence the parties had pleaded, it was admissible. Per HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
ALOYCIOUS OKPE Appellant(s)
AND
BLESSING UMUKORO
(Suing through his lawful Attorney, Md. Esther Umukoro) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Delta State High Court delivered by Hon. Justice (Mrs.) U.E. Akperi on 17th of May, 2012. The facts that led to this appeal are as follows:
The Respondent was the claimant at the trial court who filed a writ of summons on which was endorsed a claim for declaration of title to a parcel, damages for trespass and an order of perpetual injunction. Parties filed pleadings and issues were joined by the parties. The matter went for pre trial conference and trial proper commenced on the 5th of October, 2011 with the Respondent as claimant opening his case. He sued through his attorney, one Madam Esther Umukoro. Madam Umukoro tendered the power of attorney in evidence as Exhibit A. It was tendered without any objection. The Respondent through the attorney concluded his evidence on 2nd November, 2011, called a second witness and closed his case. The case was adjourned to 28/11/2011 for defence. After filing several motions, the Appellant filed an application mainly for the following prayers.
An order striking out this suit in that this Honourable Court lacks jurisdiction to adjudicate over and/or further adjudicate over this suit in the capacity in which this suit is constituted and/or instituted.
The grounds for the application were stated as follows:
(i) This suit was commenced by one Madam Esther Umukoro, suing as the lawful attorney of the claimant, Blessing Umukoro, vide a purported power of attorney, Exhibit A in this proceedings.
(ii) The subject matter of this suit is land.
(iii) Section 17 of the Land Instrument Registration Law, CAP.81, Laws of the Defunct Bendel State of Nigeria, 1976, an applicable law in Delta State, provides thus:-
17, every power of attorney affecting land shall, so fart as it affects any land, be void unless the same is registered within sixty days from its date if it is executed in Nigeria or within ninety days from its date if it is executed outside Nigeria.
(iv) The purported power of attorney relied upon to commerce this suit was allegedly executed on the 1st day of February, 2002 and stamped on 22/12/2010, the date this suit was commenced in this Honourable Court, without registration.
(v) There is no lawful or valid power of attorney on the basis of which this suit was instituted in the capacity in which the suit is allegedly constituted.
Parties joined issues on the application and written addresses were filed. In a considered ruling delivered on 17/5/2012 the learned trial judge dismissed the application. Dissatisfied, the Defendant at the trial court filed this appeal and argued the appeal while depending on the notice of appeal filed on 22/5/2012.
In the brief settled by Chief P.O. Wanogho, filed on 10/9/2012, the Appellant’s counsel identified three issues for determination as set out below:
1. Whether or not the power of attorney relied upon by the Claimant/Respondent to commence this suit qualifies as a registrable instrument within the meaning of S.3(1) and (2) of the Land Instrument Registration Law, CAP. 81, Laws of the defunct Bendel State of Nigeria, 1976 (an existing and applicable Law in Delta State of Nigeria) and/or the power of attorney which authorized the Respondent (an alleged attorney) to commence this suit for a declaration of title to land and donated other powers to the alleged attorney, does not qualify as a registrable instrument which is inadmissible in evidence without registration.
2. Whether or not the stamping of a power of attorney by the Commissioner for Stamp Duties under the Stamp Duty Law, CAP. 155, Laws of the defunct Bendel State of Nigeria, 1976 (an existing and applicable law in Delta State of Nigeria) meets the registration of registrable instrument in the office of the State Land Registry within the meaning of S.3(1) and (2) of the Land Instrument Registration Law, CAP 81, Laws of the defunct Bendel State of Nigeria, 1976 (an existing and applicable Law in Delta State of Nigeria).
3. Whether or not the power of attorney relied upon in instituting this suit is not an instrument transferring interest on land and/or affecting interest on land and therefore a registrable instrument within the meaning of “instrument” as defined in Section 2 of the Land Instrument Registration Law, CAP 81, Laws of the defunct Bendel State of Nigeria, 1976 (an existing and applicable law in Delta State of Nigeria).
In the Respondent’s brief settled by Mr. Duata, dated 8/10/2012 and filed on 9/10/2012, counsel identified a sole issue for determination set out as follows:
Whether the said Exhibit A is a registrable document and or instrument by virtue of S.17 of the Land Instruments Registration Law, CAP 81, Laws of the defunct Bendel State of Nigeria 1976, as applicable to Delta State.
After a look at the records of appeal, the motion filed by the Appellant, the ruling of the trial court and the grounds of appeal, it is obvious to me that the issue in controversy is whether or not Exhibit A is a registrable instrument within the meaning of the Land Instrument Registration Law, CAP 81, Laws of the defunct Bendel State 1976, the applicable law when the said Exhibit A was tendered. Therefore, in my humble view, a consideration and determination of the sole issue posed by learned Respondent’s counsel would suffice to address all the complaints made by the appellant in the notice of appeal. In any event all the arguments of learned Appellant’s counsel in respect of the three issues as formulated by him are intertwined. I don’t see why I should lend myself to duplicity of arguments.
The controversial Power of Attorney – Exhibit A is on Pg. 16 of the record.
It is important to set out the relevant portion of the said Exhibit A. The donee Mr. Blessing Umukoro donated the power of attorney to his elder sister Madam Esther Umukoro as follows:
POWER OF ATTORNEY TO MANAGE PROPERTY
KNOW YE ALL MEN by these presents created by me MR. BLESSING UMUKORO of Okpaigie Iyede in Isoko North Local Government Area, Delta State Nigeria, this 1st day of February, 2002.
THAT WHEREAS:
1. I am the owner and landlord of the undeveloped piece or parcel of land measuring approximately 100ft x 100ft lying, situate and being ALONG OLD ISOKO ROAD IWHRE-OVIE OGOR, in Ughelli North Local Government Area, Delta State of Nigeria and subject matter of survey plan No. DT/741/173/2001 dated 28/12/2001.
2. I intend to hand over the management and or development of the said property to an agent.
NOW THIS DEED WITNESSES that I hereby nominate and appoint my elder sister, MADAM ESTHER UMUKORO of No. 29, Edoge Street, Ughelli, to be my true and lawful attorney over the said property with authority to do all or any of the following:
1. To develop and or generally manage the property.
2. To ward trespasser (s) off the property.
3. To affirm, defend and or other wise my title to the property any where, before whom ever including any court of law.
4. To exercise any or all of the powers above either by herself or through any legal practitioner of her choice so that the doctrine of “delegates non potest delegare” shall not apply to this Power of Attorney either expressly or by implication.
5. To do all such things that are ancillary, necessary, incidental or consequential for the effective utilization of the powers donated above.
He argued that Exhibit A is an all encompassing donation of powers and/or authority by the donor to the donee thus Exhibit “A” is an instrument affecting land. He submitted that Exhibit “A” falls within the meaning of “instrument” as defined in S.2 of the Land Instrument Registration Law as the said S.2 is very elastic and covers the said Exhibit “A”. Learned Appellant’s counsel is of the view that Exhibit “A” has effectively transferred possession and control of the land covered by same from the donor to the donee. He further submitted that without the registration of the power of attorney in this case, the power of attorney which affects a Land in the State cannot be pleaded or given in evidence as same is void and of no effect whatsoever.
Learned Appellant’s counsel argued that Exhibit “A” was not registered quite contrary to the finding of the learned trial judge that it was registered. Counsel made the argument that stamping a document by paying stamp duties in accordance with the stamp Duties Law is quite different from a registration donee in accordance with the Land Instruments Registration Law of the State. Counsel cited Agboola v. UBA Plc (2011) 11 NWLR Pt. 1258 Pg. 375 at 407. Counsel argued that the trial court misconstrued the stamping of Exhibit “A” as its registration, which are not the same. Learned Appellant’s counsel argued that the power of attorney in this case does not limit the powers donated to the donee to the institution of an action that is specified in court, but gives out several and general powers affecting Land.
Learned Appellant’s counsel submitted that Exhibit “A” is an instrument relating to land and not being registered cannot be pleaded, given in evidence etc, in accordance with S. 2 and 3 of the Land Instruments Registration Law. Counsel cited Abubakar v. Waziri (2008) 14 NWLR Pt. 1108 Pg. 507 at 526. Learned Appellant’s counsel submitted that by virtue of S.17 of the Land Instruments Registration Law, the power of attorney, exhibit “A” is null and void and of no effect and the donee who commenced this suit lacked the legal capacity to commence this suit as at the time the suit was instituted in the capacity in which this suit was filed. He also submitted that where there was no authority from the appropriate person or authority to file a suit at the time it was filed, it renders the proceedings incompetent, in which case there were no proper parties, and where proper parties are not before a court, the court is without jurisdiction to adjudicate. He cited Plateau State of Nigeria v. Attorney General of the Federation (2006) 3 NWLR Pt. 967 Pg. 346 at 423.
Learned Respondent’s counsel is of the view that not all instruments are registrable. He submitted that for an instrument to be registrable it must be that which limits, transfers, or confers any right in land in favor of a person. He cited Ogunleye v. Safejo (2010) ALL FWLR Pt. 523 Pg. 1908 para D-E (ratio 6). He further argued that similarly not every document being a power or attorney is registrable. For a power of attorney to be registrable depends on the purpose for which it was executed and or tendered.
Learned Respondent’s counsel cited Abu v. Kuyabana (2002) FWLR Pt. 99 Pg. 1141, a judgment of this court which had interpreted the provisions of S.2 and 15 of the Land Registration Act, Laws of the Federation. Counsel reminded us that the case is on all fours with this case as the provisions of the Federal Act are in pari materia with the provisions of the State Law relating to Land Registration.
Learned Respondent’s counsel argued that Exhibit “A” as tendered, admitted and marked by the lower court was executed as mere notification to the whole world that the donee had the authority, consent and or approval of the donor to do any or all of the acts so specified. No interest in land was or could be conferred under the document. He cited Mangibo vs. Ogunde (2010) ALL FWLR Pt. 543 Pg. 1897 at pp 1898-1899 (ratio 2). Counsel argued that no instrument was at least executed under exhibit A; neither was any in contemplation.
Let us now look at the relevant sections of the applicable legislation. Sections 2, 3, 16 and 17 of the Lands Instruments Registration Law, Cap 81, Laws of the defunct Bendel State 1976, provide as follows:
2. In this Law –
“instrument” means a document affecting land in the State whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of anther party (hereinafter called the grantee) any right or title to or interest in land in the State and includes –
(a) an estate contract;
(b) a certificate of purchase;
(c) a power of attorney under which any instrument may be executed;
(d) a deed of appointment or discharge of trustees containing expressly or impliedly a vesting declaration and affecting any land to which S.27 of the Trustee Law extends – but does not include a will;
3(1) There shall be in the State a Land registry with an office or offices at such place or places as the Governor may from time to time direct.
(2) The registry shall be the proper office for the registration of all instruments including powers of attorney affecting land in the State.
16. No instrument shall be pleaded or given in evidence in any court as affecting any Land unless the same shall have been registered in the proper, office as specified in section 3.
17. Every power of attorney affecting Land shall, so far as it affects any Land, be void unless the same is registered within sixty days from its date if it is executed in Nigeria or within ninety days from its date if it is executed outside Nigeria.”
Provided that the registrar may extend such periods wherever he shall be satisfied that registration has been delayed without default or neglect on the part of the donee of the power of attorney.
Let me first address the argument of learned appellant’s counsel regarding the contents of Exhibit “A” the relevant portion of which I have set out above in this judgment. The powers donated by the donor to the donee are clear, precise and specific. I cannot agree with the greatest respect to learned appellant’s counsel that the donor gave out several and general powers affecting land. The Blacks Law Dictionary 9th Edition, defines a power of attorney as –
“An instrument granting someone authority to act as agent or attorney in fact for the grantor.”
An ordinary power of attorney is revocable and automatically terminates upon the death or incapacity of the principal (donor). A look at Exhibit “A” clearly shows that it is a power of attorney which authorizes the donee to transact the specific business of developing and managing the property, warding off trespassers and affirming or defending the interest of the donor in the landed property be it in a court of law. The donee cannot exceed the powers specifically granted by the donor. I have to say here categorically that my understanding of Exhibit “A” is that the donor did not give any right to the donee in relation to title or possession of the land. That is to say, there is no power vested in the donee by Exhibit “A” to alienate title in the land. In fact the intendment of the donor was clearly stated which was to hand over the management or development of the property to the donee. In Abu v. Kuyabana supra, a case which is almost on all fours with the facts of this case, this court held per Muntaka-Coomassie JCA (as he then was) as follows at Pg. 1156 of the FWLR:
“In the instant case, the main purpose of exhibit CA1 (the power of attorney) is to show that the attorney has the authority to initiate and conduct this case on behalf of the plaintiff. It has nothing to do with interest on the land. It is quite unnecessary for same to be registered under the Act and it is always admissible without registration.”
The Blacks Law Dictionary 9th Edition defines an “instrument” as a written legal document that defines rights, duties, liabilities and entitlements. In Ogbimi v. Niger Construction Ltd (2006) 9 NWLR Pt. 986 Pg. 474, the Supreme Court held that by the definition of an “instrument” in S.2 of the Land Instruments Registration Law, an “instrument” means a document affecting land in the State whereby one party who may be called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee any right or title to or interest in any land. Thus, where there is an alienation or transfer of interest in land, a legal document does not become an instrument within the meaning of the said S.2 of the Land Instruments Registration Law or Act. See also Lanlehin v. James (1985) 2 NWLR Pt. 6 Pg. 262, S.C. In Awunedu & Ors. v. Onwumere (1994) 1 NWLR Pt. 321 Pg. 375, the Supreme Court held that a registrable instrument which was not registered was still admissible in view of the fact that it was tendered for the purpose of establishing that the transaction between the Respondent and one Mbahaotu was for the redemption of a pledge. Since it was tendered merely as an instrument to show evidence of sale of a piece of land which evidence the parties had pleaded, it was admissible.
In the instant case, I am of the firm view and I agree with the learned trial judge and learned Respondent’s counsel that Exhibit “A” was tendered in the case on the narrow interpretation and understanding that the donee can prosecute this case on behalf of the donor without more. The essence and the scope merely warrants and authorizes the donee to do the specified acts instead and or for and on behalf of the donor. Exhibit “A” was not tendered as proof of ownership of land but rather as a vehicle by which the specified acts can be done by the donee on behalf of the donor.
I also have to agree with the argument of learned Respondent’s counsel that the phrase “every power of attorney” in S.17 of the Land Instruments Registration Law is one defined in S.2 thereof. It is one in which any instrument may be executed. Thus where a power of attorney does not confer power on the donee to execute any instrument on behalf of the donor, it does not become an instrument liable to be registered. S.2 it must be emphasized is the interpretation section of that law. There is no doubt that when circumstances involve dealing in land, a registered power of attorney is the only legal instrument relevant and admissible in court. The Supreme court in Abubakar v. Waziri (supra) emphasized this point and Aderemi JSC referred to Bowstead and Reynolds on Agency 11th Edition Article 10 paragraph 2041 on Pg. 51 where the learned authors commented thus:
“Certain acts must by law be performed by deed, notably conveyances and many leases. In these cases authority to an agent to execute such a deed must itself be given by deed, usually called power of attorney.”
That is the principle that has been entrenched in S.2 of the Lands Instrument Registration Law/Act of the Federation and various States. This has also been affirmed by a plethora of decision law.
I must mention that even though the learned trial judge mistakenly thought that the Exhibit A was registered, that mistake does not warrant setting aside the ruling of the learned trial judge as it is not every mistake that would warrant an upset of the conclusion of the trial judge. It is only where the mistake had caused gross miscarriage of justice that the judgment/ruling of the trial judge would be set aside. See Owhonda v. Alphonso Ekpechi (2003) 9 SCNJ 1. I have to agree with learned appellant’s counsel that the registration of a document is quite different from the payment of stamp duties under the stamp Duties Law.
There is no doubt that where a document is inherently inadmissible, anyreliance on it by the parties even where it was pleaded go to no issue. Thus if Exhibit “A” had been a registrable instrument within the contemplation of S.2 of the Land Instruments Registration Law, being an instrument which conferred any right or title or interest in land to the donee, the Respondent would have been obliged to register it to prove such alienation of interest. However, being merely a document tendered to show that the donor gave the donee power to manage and develop the property and to affirm and defend the title of the donor in the property, it is admissible without registration.
I have looked at the cases cited by learned appellant’s counsel particularly Abubakar v. Waziri (supra) and Agboola v. UBA (supra). In Agboola v. UBA, the Supreme Court held that an unregistered registrable instrument merely confers on the party in whose favour it was executed an equitable interest. The Supreme Court found that Exhibit 1 in that appeal being unpleaded was irrelevant and inadmissible. In Abubakar v. Waziri supra, the Supreme Court held that there was no power of attorney executed or properly pleaded by the claimants in that case.
I have to agree with the lucid and erudite ruling of Hon. Justice (Mrs.) G.E. Akperi that it is the purpose for which a power of attorney is sought to be used that is paramount to qualify it as an instrument.
I am of the firm but humble view that there is no merit in this appeal. The ruling of Hon. Justice (Mrs) G.E. Akperi delivered on 17/5/2012 in Suit No. UHC/98/2010 is hereby affirmed. Appeal Dismissed. N50,000.00 costs in favour of the Respondent against the Appellant.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I am not only in total agreement with the position taken by this lordship that the sole issue formulated by the Respondent suffice for the determination of the appeal, but also with the manner in which the said issue was resolved given the exposition of the law dealing with the issue.
The golden rule, regarding interpretation of the provisions of a statute and even the constitution, is that words used in the provisions of the statute in question, must prima facie be given their ordinary meaning where such words are not ambiguous. See ELELU-HABEEB V. A-G., FEDERATION (2012) AII FWLR (PT. 629) 1011.It would appeal that the same approach applies to the construction of a document in order to know what the maker of the document or parties to the document intended to do when the document was prepared. This is because it is from the ordinary meaning of words used therein, that the intention of the maker or parties has to be determined. See IHUNWO V. IHUNWO (2013) 8 NWLR (PT. 1357) 550.
Against the backdrop of the positions of the law as state above, I simply do not see how it can be said that the power of attorney tendered before the lower court as Exhibit ‘A’ transferred any interest of the donor therein, in the property to which the power of attorney relates, to the donee, in any manner whatsoever. Of particular relevance in this regard is clause in the power of attorney that reads thus:-
“to affirm, defend and or otherwise my title to the property any where, before whom ever including any court of law.”
(Underlining provided by me).
It is in my considered view most clear that if the Appellant had given the words of the power of attorney (i.e. Exhibit ‘A’) their ordinary meaning, and had not decided to ascribe to then meaning that suited his own purpose, he would have seen that the power of attorney in the instant case did not purport to transfer any interest in the property to which it relates, to the donee of the power of attorney under any guise. A fortiori, the Appellant would have seen that the Land instrument registration law cap 81 laws of the defunct Bendel State, as applicable in Delta State, has not application to the said Exhibit ‘A’.
It is regrettable that the appellant has used the matter of the power of attorney (i.e. Exhibit ‘A’) to truncate the expeditious hearing of the instant matter for more than one year. The appellant has in my considered view, rightly argued that the issue of proper parties is jurisdictional in nature. See AYORINDE V. ONI (2000) Vol. 1 NSCQLR 180. This being so, the appellant could have raised the same in an appeal against the judgment the lower court delivered in the case at the end of trial. This in my considered view would have been a better course to take if the appellant was desirous of an expeditious disposal of the case before the lower court.
Having earlier stated to the effect that I am in total agreement with the manner in which the sole issue for determination in the appeal has been resolved in the lead judgment, I too hereby find the appeal to be lacking in merit and dismiss the same.
The ruling of the lower court on 17/5/2012 in suit no. UHC/98/2010 is affirmed by me. I also abide by the order as to costs as contained in the lead judgment.
TOM SHAIBU YAKUBU, J.C.A: The privilege was mine to have perused the draft of the lead judgment just delivered by my Lord, Hon. Justice H.M. OGUNWUMIJU, JCA.
I, entirely agree with the lucid reasoning contained therein which culminated to the dismissal of the appeal. Therefore, I have noting more useful to add to it.
The judgment of G.E. Akperi J., delivered on 17th May, 2012 in suit No. UHC/98/2010 is affirmed.
I abide by the order as to costs contained in the lead judgment.
Appearances
M.E. ORUMAFor Appellant
AND
D.A. DUATA with him MISS A.A. FOLEFor Respondent
