UCHENNA ATUANYA & ANOR v. SIR. JONATHAN ATUCHUKWU & ANOR (2013)

UCHENNA ATUANYA & ANOR v. SIR. JONATHAN ATUCHUKWU & ANOR

(2013)LCN/6560(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of November, 2013

CA/E/144/2008

RATIO

 EFFECT OF AN UNCHALLENGED OR UNCONTRADICTED CREDIBLE EVIDENCE GIVEN IN EXAMINATION-IN-CHIEF

RIGHT OF THE DONEE UNDER A POWER OF ATTORNEY

It is trite law that the right the donee is to exercise on behalf of the donor under a power of attorney, must be a right that belongs to the Donor. It is the right that gives the power to exercise that right. In essence, the power donated to the donee by the donor under a power of attorney must be one that belongs to the donor. A power of attorney donated by the Donor to the donee to exercise rights or powers that the donor do not have will be invalid. As the Supreme Court held in UDE V. NWARA & ANOR (1993) 2 SCNJ 47, a power of attorney is a document 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. It merely warrants and authorizes the donee to do certain acts in the stead of the donor. It is a document of delegation of the powers of the donor. The agent can only do the things that his principal can lawfully do. Per EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. UCHENNA ATUANYA
2. ANIEMEKA ATUANYA Appellant(s)

AND

1. SIR, JONATHAN ATUCHUKWU
(Substituted for CHIEF B. O. ATUCHUKWU By Order of the Court of Appeal made on 6/4/2011)
2. DIMAS PROPERTY LIMITED Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): Ogbuefi Okunwa John Uzo Atuanya in his life time was the Owner of several Properties in Onitsha including the one at No 6 William Street and another at N0 28 Nottidge Street. By an agreement dated 4-1-1971, he leased No 6 William Street, Onitsha to the 1st respondent and one Alphonsus Okeke Maduneme, for themselves and on behalf of one Dimasa Commercial Syndicate for a term of 35 years.

Okunwa John Uzo Atuanya died testate on 4th June, 1973. His Last Will and testament was admitted to probate. In this Will, he appointed Ogbuefi Akunne J. D. Onyisi Obi and his two Sons, namely, Odita and Okechukwu to be the Executors and Trustees of the will and guardians of his infant children.

The respondents claim that Onwugbolu Atuanya and the appellants, in consideration of certain sums of money received from the respondents, donated powers of attorney to the respondents over the right and interest given to them by the Will of their grandfather in No. 6 Williams Street, Onitsha and that the appellants sold their rights and interest in No.28 Nottidge Street, Onitsha under the said Will to 1st respondent. The respondents also claim that the 4th January 1971 lease of the ground floor of No. 6 Williams Street, Onitsha to the 1st respondent and one Dimasa Commercial Syndicate ought to expire in December 2009.

The appellants denied giving any power of attorney to the respondents over any of their rights under the Will or selling any of their said rights to any of the appellants and asserted that the powers of attorney and other documents relied on by the respondents in support of their claim are not executed by the appellants and that the said documents are forged by the respondents in collusion with Onwugbolu Atuanya, their elder brother. The respondents had relied on these documents in their application on 17-10-2001 to be joined as a party in a committal proceedings at Onitsha High Court in Suit No.0/39/89 between the trustees of the Will of Okunwa John Uzo Atuanya and his grandchildren (which include the appellants) concerning the later’s right to share in the family fund created under the will and the need for the trustees to account for the fund. The appellants opposed the application and challenged the documents as forgeries. The trial Court refused the application for joinder because it was brought too late after final Judgment and conclusion of appeal therefrom. On the basis of these documents the respondents have remained in occupation of No 6 Williams Street Onitsha long after the expiration of the 14th January 1971 lease and have refused to quit and give up possession of same. It is these claims of the respondents that caused the appellants to commence suit No 0/35/2004 in Anambra State High Court of Onitsha Claiming for:

(a) A declaration that by virtue of the lease agreement of 4/1/71 between Okunwa John Uzo Atuanya and Messrs Benjamin Obijiofor Atuchukwu and Alphonsus Okeke Maduneme, the 1st Defendant and Alphonsus Okeke Maduuneme’s leasehold interest in No. 6 William Street, Onitsha, shall expire on the 4th day of January, 2006.

(b) A declaration that the so-called powers of Attorney being paraded by the 1st Defendant purporting to grant the 2nd Defendant proprietary interest in the said No. 6 William Street, Onitsha, after 2006, as regards the Plaintiffs interest in the property, at the expiration of the lease in 2006, is null and void, as the Plaintiffs did not execute those purported powers of Attorney.

(c) A declaration that the so-called sale documents being paraded by the 1st Defendant purporting that the Plaintiffs had sold their interest over No. 28 Nottidge Street, Onitsha, to him are null and void, as the Plaintiffs did not execute those documents.

(d) A declaration that no beneficiary under the Last Will and Testament of late Okunwa John Uzo Atuanya, could validly alienate, in any form or manner whatsoever, his interest under the said Will.

(e) An order setting aside the purported sale documents dated 18/04/2000, 10/5/2000, 15/5/2000, 22/5/2000 and powers of Attorney dated 12/11/1999 and 11/01/2000, as being null and void, and incapable of passing any title whatsoever.

Both sides filed and exchanged pleadings. The pleadings of the parties on the basis of which both sides presented their cases include the appellants’ amended statement of claim, the amended Joint Statement of defence and Counter-claim, the reply to the amended Joint Statement of defence and defence to the Counter-Claim. The respondents’ Counter-Claimed for:-

(a) A declaration that the Agreement of 4th January 1971 in respect of No. 6 Williams Street Onitsha shall expire on 31st December 2009

(b) A declaration that upon expiration of the Agreement of 4th January 1971. The lease of No. 6 Williams Street Onitsha shall be renewed for the 1st Defendant and Alphonsus Okeke Maduneme by the Plaintiffs and their eldest brother and other persons entitled to the estate of Okunwa John Uzo Atuanya for at least a further term of 35 years.

(c) A declaration that the Lessees under the Agreement of 4th January 1971 not desiring to renew their lease in respect of No. 6 Williams Street Onitsha the 2nd Defendant shall be entitled to the interest of the Plaintiffs and the eldest brother at No. 6 Williams Street up to the year 2040 by virtue of the afore-recited two irrevocable powers of Attorney of 12/11/99 and 11/1/2000.

(d) Alternatively refund of the sum of N290,320.00 being the sum paid to the Plaintiff by the Defendants in respect of No. 6 Williams Street Onitsha for a consideration that has failed more so when the lease of No. 6 Williams Street Onitsha is subject to renewal and the lessees have option to exercise their right of renewal of the lease.

(e) A declaration that the plaintiffs are bound to execute the document transferring the 3/5 interest of the plaintiffs and their eldest brother Onwugbolu to the Defendants in respect of No. 28 Nottidge Street Onitsha.

(f) An order compelling the plaintiffs and their eldest brother Onwugbolu to execute a Deed of transfer of Assignment to the Defendants in respect of No. 28 Nottidge Street Onitsha.

(g) Alternatively an order for the refund of the sum of N850,000.00 being the sum paid by the 1st Defendant to the plaintiffs and their eldest brother for a consideration that has failed.

Appellants herein as plaintiffs testified for themselves. 1st appellant testified as PW1 and 2nd appellant as PW2.

The respondents as defendants called 5 witnesses in support of their defence and Counter-Claim. Okechukwu Atuanya and Odita Atuanya, uncles to the appellants testified as DW1 and DW2 respectively. The 1st respondent filed a sworn Statement and was Cross-Examined on it as PW3. Mr. Uche Orji, the pay roll Officer of Onitsha North Local government came in answer to a subpoena duces tecum served on the treasurer of the said Local Government to produce payment vouchers signed by 1st appellant to receive his salaries as a staff of the said Local Government. He testified as DW5. One Obed Uruakpa (DW4) testified as a person who said he witnessed the execution of the said powers of attorney by the appellants.

Following the conclusion of evidence and final addresses, the trial Court on 27-2-2008 rendered Judgment dismissing the appellants’ claims and granting the Counter- Claim of the respondents. Dissatisfied with this judgment the appellants commenced this Appeal N0 CA/E/144/2008 on 10-3-2008 by filing a Notice of Appeal containing 6 grounds of appeal.

All the parties to this Appeal have filed, exchanged and adopted their briefs of argument. The briefs include the amended appellants brief, the amended respondent’s brief of argument and the amended appellant’s reply brief.

The appellants in their amended appellants’ brief raised the following issues for determination:-
1. Whether the signatures in Exhibits D5 (A-H), D6, D7 P12 and the Exhibits contained in the Motion dated 16/10/2001 and filed on 17/10/2001 and forming part of the Exhibit P6, purporting to be the Appellants’ signatures, are the same with their undisputed signatures.

2. Whether any of the beneficiaries under Exhibit P1, the Will could validly sell, transfer or alienate, any part of the properties covered by Exhibit P1?

3. When will the lease of No. 6 William Street, Onitsha, expire? Is it 31st December, 2009 as held by the trial Court or 4th day of January, 2006, as asserted by the Appellants?

4. Whether the Respondents proved their counter claim?

The respondents in their amended respondents’ brief of argument raised the following issues for determination:-
1. Whether the Plaintiffs/Appellants discharged the burden of proof placed upon them to proof beyond reasonable doubt that the receipts tendered by the Defendants/Respondents as exhibits D5 (A-H) and exhibits D6, D7 and tendered by the Appellants as exhibit P12 were forged as alleged by the Plaintiffs/Appellants. Grounds 1 and 2 of the Notice and Grounds of Appeal.

2. Whether notwithstanding the clause in the Will of late Okunwa John Uzo Atuanya that No. 6 Williams Street Onitsha and No. 28 Nottidge Street Onitsha shall not be sold, such property can be sold or the interest of a beneficiary disposed off. Grounds 2 and 3 of the Notice and Grounds of Appeal.

3. Whether the Plaintiffs/appellants established in the absence of the Certificate of Occupancy issued by Onitsha Local Government that the lease will expire or expired on 4th January 2006. (Grounds 4 and 6 of the Notice and Grounds of Appeal).

4. Whether the trial Judge was wrong in granting the counter claim of the Respondents in part. (Ground 5 of the Notice and Grounds of Appeal)

Considering the judgment of the Trial Court, the grounds of appeal, the issues for determination raised by both parties and the arguments in the respective briefs of argument, I think that the issues for determination in this appeal raised by both parties can be framed together as one issue namely: Whether the Trial Court was right to have dismissed the plaintiffs (appellants) Claims and granted the defendants (Respondents) Counter-Claims.

The Trial Court determined the case before it on the basis of the authenticity, genuineness and validity of exhibits D5 (A-H) D6, and D7, the powers of attorney and receipts acknowledging payments of money in consideration of agreement to sell the appellants’ interest in No 28 Nottidge Street, Onitsha. After finding as a fact that the appellants signed the said documents, that they are valid and that the restriction against alienation of any bequest of real properly under the Will of Ogbuefi Okunwa John Uzo Atuanya (exhibit P1) did not affect the right of the appellants to alienate their right and interest in realties under the Will, the Trial Court held that “In the light of the above stated facts, circumstances, and the law, I have come to the inescapable conclusion that the claims of the plaintiffs are lacking in merit. I feel compelled to dismiss them. The counter claim of the defendants, on the other hand, succeeds in part only. The lease agreement, exhibit D3, expires on the 31st day of December 2009. The plaintiffs have, since, donated to the 1st defendant, their interests in No 6 Williams Street Onitsha up till the year 2040. They have also agreed to transfer, to the defendants, their interests in No 28 Nottidge Street Onitsha. I therefore, order the plaintiffs to immediately execute, in favour of the defendants, a deed of assignment of all their interests in the said No. 28 Nottidge Street, Onitsha. No order as to costs.”

Learned Counsel for the appellant in the appellants’ brief and reply brief has argued against this Judgment that:
1. The Trial Court upon a comparison of the appellants’ undisputed signatures in exhibit P6, P7, D9, D9A, D9B and D9C with the disputed signatures of the appellants on exhibits D5 (a-c), D6, D7, and P12 drew the wrong inferences or conclusions from the documents and wrongly held that the appellants signed exhibits D5, (a-c) D6, D7 and P12.

2. That the Will vests legal title on the trustees and only them can alienate any part of the estate, and that non of the beneficiaries including the appellants can validly alienate any of their right or interest in any reality as the will prohibited the sale of any part of the real estate of the testator.

3. That No. 6 William Street and No 28 Nottidge Street were not bequeathed under the Will to the appellants. What was bequeathed to them is a right to share in the rents accruing therefrom.

4. That the Trial Court was wrong to have held that the lease of the Ground Floor of No. 6 William Street Onitsha expired on 31st December 2009 and that the correct position is that the lease expired on 4th January, 2006.

5. The respondents failed to prove their counter-claim.

Learned Counsel for the respondents has argued replicando that:-
(i) The appellants failed to discharge the duty placed on them by law to prove beyond reasonable doubt that their signatures on exhibits D5, D6, D7 and P 12 were forged.

(ii) The appellants as beneficiaries under the Will, can, in spite of the prohibition in the will against alienation of any real estate, dispose of their right or interest therein, even without a vesting assent or deed from the Trustees, vesting them with the legal title to their bequests.

(iii) The appellants, in the absence of the Certificate of Occupancy issued by Onitsha Local Government failed to establish that the lease of 4-1-1971 expired on 4-1-2006.

(iv) The Trial Court was right in granting the Counter-Claim of the respondents.

Let me now consider the details of the above arguments of both parties. I will start by considering the nature of the right or interest bequeathed to the appellants under the will of Ogbuefi Okunwa John Uzo Atuanya (exhibit P1) –
Clause 5 of Exhibit P1 states that “I give and devise all my real estate to my Trustees upon trust to carry out the following and I declare that none of my real estate shall be sold after my death”. I agree with Learned Counsel for the appellant that this devise expressly vested the legal title to all the real estate of the testator in the trustees. Both Counsel agree in their submission that in Law the legal title to the properties vest in the Trustees. The nature of the title that is vested on the trustees by a devise such as that in Clause 5 in exhibits P1 is clearly stated in Sections 161 and 162 of the Administration and Succession (Estate of Deceased Persons) Law Cap 4 Vol. 1 1991 Revised Laws of Anambra State, as the freehold or the whole estate or interest which the testator had power to dispose of by Will. S. 161 states that- “where any real estate shall be devised to any Trustee or executor, such devise shall be construed to pass the freehold or other the whole estate or interest which the testator had power dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or other lesser estate or interest shall thereby be given to him expressly or by implication.”
Section 162 states that “where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate or in the surplus rent and profits thereof shall not be given to any person, or such beneficial interest shall be given to any person for life but the purposes of the trust may continue beyond the life of such person the devise shall be construed to vest in such trustee the freehold or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied”.
If the will did not contain a devise expressly vesting the real estate in the trustees as in clause 5 of exhibit P1 but had rather devised such real estate to persons other than the trustees, the position in law would be different. In that event, the trustee will merely administer the estate to execute the bequests in the will and will only have the legal title to the estate until the distribution of the beneficial interests to the beneficiaries under the will. Pending such distribution, the beneficiaries under the will can at best be regarded as holders of future beneficial interests under the will. It is an equitable interest that entitles them to hold the trustees accountable to them and ensure that the bequest is not destroyed through mismanagement of the estate or failure to comply with the testator’s wish in the will.

In YOUNG V ABINA (1400) 6 WACA 189 at 183 the West African Court of Appeal held that – “The Executors and trustee as the personal representatives of the deceased have complete and absolute control over the property of the deceased and can dispose of it by mortgage or sale notwithstanding that the property disposed be specifically bequeathed or limited in trust by the Will”. In C. CAPPA LTD VS V. FERREIRA (1966)1 ALL NLR 57 at 61, the Supreme Court restated the Law that: – “The position therefore is that the deposition contained in the Will of the testator, as indeed in all wills after 1897, took effect only in equity; the legal Owners are the personal representatives and a realty devised by the Will therefore requires a vesting Deed or assent by them to vest it in the devisee”.
Where the will, as in our present case has devised the real estate to the trustees, coupled with the power to administer the estate to execute bequests of personalties and other beneficial interests to other persons in their life time, the trustees hold the dual positions of beneficiaries of the real estate and administrators of the estate. The devise vests in them the freehold or other whole estate or interest in the real estate as the testator had before his demise.

I will now consider the type of property the testator bequeathed to his grandsons (including the appellants) in exhibit P1 and the nature of their right or interest in such properly. The Will did not give the appellants any part of the real estate of the testator it only gave them the right to share in the rents accruing from the lease of the ground and 2nd floors of No. 6 William Street and the right to share in the residue of the family fund. This is clearly stated in Clauses 5a, 5(c), 5(d) and 12 of the will (exhibit P1). For ease of reference these clauses of the will are reproduced here as follows: Clause 5(a) of the Will made the devise in respect of the fund created from rents collected from the properly at No 28, Nottidge Street, Onitsha as follows:- “My Trustees shall collect the rents and create a fund (hereinafter called “the family Fund)” to be used as I shall hereinafter direct. This property is presently on Lease to Messrs R. O. Udodi and S. O. OGBUEFIEKWE and I direct that after my death and at the expiration of the lease, my Sons Odita and Okechukwu shall deal with the property in their absolute discretion except as to sale”.

Clause 5(c) and (d) of the Will made the devise in respect of No. 6 William Street, Onitsha, in the following terms:-
(c) “This premises is on lease to DIMASA Commercial Syndicate paying and yielding thereof an annual rent of 1420 for the ground floor. I direct that the rent be shared equally between my sons Odita and Okechukwu until my grand-sons namely Onwugbolu, Uchenna, Aniemeka (sons of my late son Abel) and Amechi (son of my late son Ofili attain the age of 21 years each and have left Secondary School. Thereafter my sons Odita and Okechukwu shall share half of the rent in equal shares and my grandsons shall share the other half in equal shares.

(d) I am also in exclusive possession of the 2nd floor of No. 6 William Street, Onitsha consisting of two flats and I direct that upon my death my daughter Mrs Obiozo Modebe shall, if she has no proper place of abode, be allowed the use of one of the flats until her death or until her children can provide her with a place to live in. Any rent collected from this 2nd Floor shall be shared as stipulated for the ground Floor.”

Clause 12 the will states that “when all my infant children and grand children have left Schooling, the residue of the family fund shall be shared equally among my Sons Odita and Okechukwu and my grandsons, Onwugbolu, Uchenna, Aniemeka and Amechi”.

It is agreed by all sides that the appellants had started enjoying the right to share in the rents collected from the ground and 2nd floors of No 6 William Street, Onitsha and the right to share in the residue of the family Fund following the judgment of the Anambra State High Court in Suit No. 0/39/89 and that of this court affirming same.

It is glaring from clause 5a of the Will (exhibit P1) that it did not give the appellants any right or interest in No 28 Nottidge Street, Onitsha. It did not give the appellants the right to share in the rents collected from the said property as it gave them in respect of the rents collected from No 6 William Street, Onitsha. It prescribed that the rents from N0 28 Nottidge Street shall be used to create a fund called “The family Fund”. It did not give appellants the right to share in the said fund. It rather states that the fund is to be used as the testator shall direct. Thereafter it states that the testator directed that-:

1. His daughter, Anene be given financial assistance from the family fund at the discretion of the trustees. This is clearly stated in Clause 6 of exhibit P1.

2. If his said daughter, Anene becomes widowed or leaves her matrimonial home, she should be accommodated in two rooms in the family house or any other place and rent paid from the family fund. This is also stated in Clause 6 of exhibit P1.

3. Annuity of 36 pounds in monthly installments of 3 pounds, be paid to each of his two wives, Nwanyibuife and Emengini and that they shall be accommodated in a room in the Family House or any other place at the discretion of the trustees who shall pay the rent from the family fund. This is stated in Clause 7 of exhibit P1.

4. The School Fees for his grand children, namely Onwugbolu, Uchenna, Anemeka, Amechi, Azuka and Ifeyinwa shall be paid from the family fund until they pass out of Secondary School. This is in Clause 8 of exhibit P1.

5. His two grand daughters, Azuka and Ifeyinwa upon being married to Onitsha Indigenes, be given a fitting Marriage ceremony according to Onitsha native Law and Custom as regards “Idu-Uno” and in addition be each given a cash of $50 from the family fund. This is in Clause 9 of the Will.

6. If the family fund is insufficient to meet the above charges the trustees shall use the rents collected from No 6 William Street Onitsha. This is in Clause 10 of the Will.

After making the above directives, the testator stated in Clause 12 of exhibit P1 that “when all my infant children and grandchildren have left schooling’ the residue of the family fund shall be shared equally among my Sons Odita and Okechuliiwu and my grandsons Onwugbolu, Uchenna, Aniemeka and Amechi.” Therefore, the will gave the appellants the right to share only in whatever is remaining of the family fund after all the expenses directed by the testator have been met by the trustees.

The next question that arises at this juncture is whether this right of the appellants to a share of the collected rent and the residue of the family fund is a legal or equitable right. Learned counsel for the respondent has correctly submitted that it is an equitable right until the will is executed and the trustees vest the legal right by assent or deed on the devisee. See C. CAPPA LTD V. FEERRERA (Supra)

It is agreed by all sides that the appellants had started enjoying the right to share in the rents collected from the ground and 2nd floors of No 6 William Street, Onitsha and the right to share in the residue of the family Fund. The equitable right has thereby crystallized into a legal right to share in the rents or fund as the case may be. The trustees are deemed to have assented to the vesting of this right on the appellants by distributing their share of the rents or funds to them.

Let me now consider the power that the respondents claim the appellants gave to them under exhibits P12, D6 and D7 and the nature of the right they also claim the appellants transferred to them under exhibits D5A, D5B, D5C, D5D, D5E, and D5H. Exhibit P12 consists of two powers of attorney. One is given on 12th November 1999. The other is given on 11th January 2000. Exhibit D6 is the original copy of the one given on 12th November 1999. Exhibit D7 is the original copy of the one given on 11th January 2000.

Exhibit D6 at pages 3-4 and exhibit D7 at page 4 state in the same words that “To take over possession of the parts of the ground and 1st floor of the building hereof the interests accrued and apply for and obtain papers/certificates in its own name in respect therefore from the appropriate state or Local Government Authority. To repair and put in place any possible structure in part of the said building whereof their said interests accrue and obtain legitimately howsoever any benefits therefrom.
To let, assign, charge or exchange this interest on the land or any such building, structure, thereon in accordance with provisions of any law for the time being in force and regulating such use.
To generally control, manage and superintend the interest in respect of the building placed or erected thereon and inseam of any compulsory acquisition thereof by the state or any other agency, to present, negotiate and obtain any claim for compensation in respect of the interest therefore.
To prosecute and/or defend any suit or action pertaining to this interest and take all reasonable steps towards prohibiting and/or abating any act inconsistent with the interest of the donon done hereto.”

Exhibits D5A, D5C, D5D and D5E are acknowledgments by the appellants and their brother Onwugbolu Atuanya that they have received certain amounts of money from the respondents as consideration for their agreement to renew the lease of 4th January 1971 of the ground floor of No 6 William Street.

Exhibits D5B is a letter allegedly written to 1″ respondent by the appellants indicating that they and their brother Onwugbolu Atuanya had agreed to sell No 28 Nottidge Street to the 1st respondent at the price of N850,000 and that Onwugbolu has their authority to transact on their behalf and to receive money on their behalf.

Exhibit D5H is an acknowledgment by the appellants that they have received N230,000 from the appellants and their brother Onwugbolu Atuanya and that in consideration therefor they have agreed to sell to the appellants, three fifth of their share in Nottidge Sheet Onitsha.

Learned Counsel for the appellant has argued that what was bequeathed to the appellants under exhibit P1 (the will) was not the properties at No. 6 William Street and No 28 Nottidge Street but only the right to share in the rents collected therefrom. Both sides have agreed that the legal title to these properties vest in the executors and trustees of the will and that the appellants are not the executors and trustees of the will. I have already held herein that the right given to the appellants by the will is to share in the rents collected
from the ground floor and 2nd floor of No 6 William Street and the residue of the family fund. Against this background, the question that arises from the express terms of exhibits Pl2, D5A, D5B, D5C, D5D, D5E, D5H, D6 and D7 are –

a. whether the appellants had the power they donated to the respondents under the powers of attorney
b. whether the appellants had the power and the right to renew the lease of the ground floor of No 6 Williams Street, Onitsha
c. whether the appellants had the right to sell No 28 Nottidge Street, Onitsha.

I will consider these questions seriatim. Let me start with the first one. It is obvious that the will did not give the appellants the right to occupy or possess any part of No 6 William Street, Onitsha. Since the appellants had no legal title to No 6 William Street and had no right to possess or occupy same, could they donate to anybody the power to occupy or possess, repair and restructure, let and assign and generally control, manage and superintend their interest in the building erected on No 6 William Street? I do not think so. The above rights and power vest in the trustees and not the appellants under the will.

A person cannot either by himself or through an agent validly exercise a right or power he does not have. If he exercises (either by himself or through an attorney or agent) any right or power he does not have, such exercise shall be illegal and void. A fortiori, any delegation or donation of the exercise of a right or power he does not have to an agent or attoney shall be equally illegal and void.

Let me now consider the second question of whether the appellants had the power and the right to renew the lease of the ground floor of No 6 William Street, Onitsha. The lease of the said property by the testator in his life time to the respondents is contained in exhibit D3. The will vested the testator’s real estate including No 6 William Street in his trustees. By virtue of S.161 and 162 of the Administration and Succession (Estate of Deceased Persons) Law the legal title to the said real estates vested in the trustees. This includes the free hold and whole estate or interest. By virtue of this devise, the trustees became the lessors under the lease in exhibit D3 as owners of the demised premises. The appellants who do not have the legal title to the said property have no power or right to exercise under the said lease. The right to renew the lease belongs to the owner of the property. As already held herein, the appellants’ right to share in the rents collected from the ground floor and the 2nd floor does not render them owners of the properly or give them the power or right to renew pending leases of any part of the property. That right is vested in the trustees as owners of the property. Therefore the purported renewal of the lease of 4th January 1971 by the appellants is void.

I will now consider the third question of whether the appellants had the right to sell No 28 Nottidge Street. It is glaring that exhibit P1 (the will) gave no right or interest in No 28 Nottidge Street to the appellants. Therefore the appellants had no right or interest in No 28 Nottidge Street to transfer or sell to the respondents. As already held herein exhibit P1 (the will) vested all the real estates of the testator on the trustees. By virtue of Ss. 161 and 162 of the Administration land Succession (Estate of Deceased Persons) Law, the freehold and whole interest in No 28 Nottidge Street became vested in the trustees following the above devise under the will. Therefore the purported agreement to sell No 28 Nottidge Street or any purported interest of the appellants therein is invalid. There was nothing to sell or transfer to the respondents.

Having held as above, it becomes unnecessary to consider if exhibits P12, D5A, D5B, D5C, D5D, D5E, D5H, D6 and D7 were signed by the appellants. This is because even if they were signed by the appellants and therefore not false or forged, they remain illegal and void for the reasons stated above. However, since that was the sole basis of the trial Court’s judgment, I will consider same.

The trial court compared the undisputed signatures of the appellants in exhibits P6, and P11 with the disputed signatures in exhibits D5 (a-h) D6 and D7, and concluded that the signatures though have minor differences are consistent and proceeded to find as a fact that the disputed signatures were made by the appellants. Learned Counsel for the appellants has argued that the trial court was wrong in its conclusion that the disputed signatures are the same with the undisputed signatures Learned Counsel for the respondents replied in support of the decision of the trial court that they are the same. Let me find out if the undisputed signatures and the disputed ones are the same.

The undisputed signatures are contained in:
(a) The counter-affidavit of the 2nd appellant forming part of exhibit P6 (the motion on notice filed by the respondents applying to be joined as parties in Suit No.O/31/89)

(b) The handover note acknowledging that the Assistant Registrar of the Anambra State High Court sitting at Onitsha has handover No. 6 William Street and No. 28 Nottidge Street with the sum of N529,285 being rents collected therefrom. The appellants, their elder brother and their solicitor signed the nore.

(c) The affidavit of the 1st appellant forming part of exhibit P11(a motion on notice filed by the appellants in Suit No.O/422/97

(d) Exhibits D9A, D9B and D9C being personnel emolument vouchers showing payment of salaries to staff of Onitsha North Local Government for the month of February 2007, March 1999 and March 1995. The names and signatures of the 1st appellant are in each of those vouchers. It is in evidence that somebody else collected the salary of the 1st appellant for the month of February 2007 on his behalf and signed the signature space against his name for how this accounts for the difference between signature on exhibit D9A and the signatures on exhibits P7, P11, D9B and D9C.

I have calmly and carefully examined the undisputed signatures in exhibits P7, P11, D9B and D9C and compared each with the other, I hold that they are the same.

I have equally calmly and carefully compared the disputed and undisputed signatures in keeping with S.101(1) of the 2011 Evidence Act Which provides that- “in order to ascertain whether a signature, writing, seal or finger impressionist is that of the person by whom it purports to have been written or made, any signature, writing seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”

It is glaring that the undisputed signatures of each of the appellant on exhibits P6, P7, P11, D9B and D9C are completely different in every respect from their signatures on exhibits P12, D5A, D5B, D5C, D5D, D5E, D5H, D6 and D7. The finding of the trial court that the disputed and undisputed signatures are consistent is not supported by the evidence in the above mentioned exhibits and is therefore wrong. This wrong finding was the sole basis for the trial court’s further finding that the appellants signed exhibits D5 (a-h), D6 and D7. Therefore the further finding of the trial court is bound to be equally wrong. I agree with the submission of Learned counsel for the respondents, that forgery being a crime, an allegation of its commission must be proved beyond reasonable doubt by the person making same. This is so by virtue of S.135(1) and (2) of the 2011 Evidence Act. It is the appellants who in their statement of claim alleged that they did not sign exhibits P12, D5 (a-h), D6 and D7 and that the documents are forged by the respondents. Therefore they had the legal burden to prove beyond reasonable doubt that the documents were forged. I think that they discharged this burden by the evidence of their undisputed signatures being completely different from the disputed signatures. This obvious difference between the two set of signatures support their assertion that they did not sign the disputed signatures. If they did not sign the signatures, the irresistible conclusion, in the absence of any explanation, is that the documents having the disputed signatures were forged.
The wide and irreconcilable difference between the undisputed and disputed signatures coupled with the assertion of the appellants that they did not sign exhibits P12, D5 (a-h), D6 and D7, shifted the evidential burden on the respondents to show that the appellants made the signatures in those exhibits. This is so by virtue of S. 133 (1) and (2) of the 2011 Evidence Act which provides that-
(1) “In civil cases, the burden of first proving existence non-existence evidence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
It is the respondents that are asserting that the appellants signed the said documents. S. 93 of the Evidence Act which provides that:- “If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

The appellants having shown that their undisputed signatures are completely different from the ones the respondents alleged they made, the respondents cannot rely only on the disputed signatures in exhibits P12, D5 (a-h), D6 and D7 to discharge this burden. They must produce other evidence to do so I think that the respondents were able to discharge this burden in respect of the signatures on exhibits P12, D6 and D7 (the powers of attorney), through the evidence of DW4 (Obed Uruakpa) who testified as a witness of the execution of the said powers of attorney by the appellants. He stated in his written Sworn Statement (adopted on 12th July 2007 as his evidence in examination in chief) as follows – “I am Uruakpa Obed of No. 22/6 Anambra Street Bridge Head Housing Estate Onitsha formerly Accounts Clerk now a businessman. I know the plaintiffs and the defendants in this case as well as Onwugbolu Atuanya I recall that about 7th January 2000 Onwugbolu Atuanya, Uche Atuanya and Emeka Atuanya called on me to be their witness in respect of the power of Attorney they want to donate to DIMASA PROPERTY LIMITED. I agreed I went with them to the Chambers of Barrister Ifeanyi Odumegwu of Nnebemchukwu, Nsofor Odumegwu & Co. of No. 37 New Market Road Onitsha. The power of Attorney in respect of No. 6 Williams Street Onitsha was prepared by the said Barrister Ifeanyi Odumegwu, Onwugbolu Atuanya asked me to be their witness in the execution of the power of Attorney. I agreed. The power of Attorney after we read the contents was signed in my presence by Onwugbolu Atuanya, Uchenna Atuanya and Emeka Atuanya. I then signed as their witness. I have also on or about 13/1199 witnessed the execution of a similar power of Attorney for Onwugbolu Atuanya, Uchenna Atuanya and Emeka Atuanya in respect of No. 6 Williams Street Onitsha. If I see the two powers of Attorney, I saw Onwugbolu Afuanya, Uchenna Atuanya and Emeka Atuanya sign before I signed as their witness, I will recognize the two powers of Attorney. I make this written deposition in good faith and in accordance with the Oaths Act and Evidence Act LFN 2004.”

He was not cross-examined on any part of his evidence in the Sworn Statement. No part of the evidence was challenged in any manner in cross-examination. The entire cross-examination did not touch the said evidence. For ease of reference, the cross examination is reproduced here as follows- “I was not an accounts clerk to the 1st defendant. I was an accounts clerk to the Local Government and also to one John Ezeanya of Williams Street. I am referring to the old Onitsha Local government. The Onitsha Local government employed me about 1987 as a temporal staff. One B. U. Ohanugo was the chairman of the Local Government as at that time. I cannot now remember the then Higher Executive Officer of the Local Government. I was issued with an appointment paper. I was either on Grade level 03 or 05. The then Personnel Manager was one Mr. Okafor and Ekweozor was the secretary. I don’t know that Walter Nnoli was the then personnel Manager of the Onitsha Local Government. The secretary to Local Government, Mr. Ekweozor, signed my appointment letter. I got to know the 1st defendant through my friend Onwugbolu. Onwugbolu is slim, fair complexioned and is not two tall. I was keeping records for one John Anya at Williams Street. That was at No. 6 Williams Street of Onitsha. John Anya is a trader on iles. I don’t know that he is a tenant to the 1st defendant. I was not dismissed from the Local Government. I left the Local Government about January, 1996 after working there for two years. I am from Awomamma in Ezinifite Local Government Area of Imo State. I was paid salaries when I was in the Local Government. I was paid through the revenue department. There is a revenue department in the Local Govemment. I moved into Father Joseph’s street in 2004. When I met Onwugbolu for the 1st time, he was complaining that he wanted to acquire further education and that he needed money for that. I am now trading on shoes at the Ochanja market. We have a union in our Ochanja market. I am a member of the union. I don’t now have an identity card. It is not true that I am not Uruakpa Obed.”

The DW4 stated in examination-in-chief that the appellants and their elder brother invited him to witness the signing of exhibits P12 D6 and D7, that he was present when the exhibits were signed by the appellants and he signed as their witness. The materials facts were not challenged or contradicted by his cross-examination. The appellant’s cross-examination of DW4 did not even refer to his evidence on these facts.

Learned Counsel for the appellants has argued in his brief that the evidence of dw5 discredited the evidence of dw4 in that it showed that DW5 who worked in the same department of Onitsha Local government that DW4 claimed to have worked did not know DW4. DW4 did not know who was the then Personnel Manager of the said Local government and that there was nothing like Revenue Department where DW4 claimed to have worked. For these reasons Learned Counsel submitted that DW4’s evidence lacks credibility. I agree that there are discrepancies and may be some contradictions in the evidence of DW4 concerning his tour of duty at Onitsha Local government between 1987 and 1996. I do not think that the contradictions if any are material to the question of whether the appellants signed exhibit P12, D6 and D7. Contradictions as to DW4’s length of service with Onitsha Local government, which department of Onitsha Local government he worked, who was the then Personnel Manager of Onitsha Local government can only be material if the question is whether DW4 was an employee of Onitsha Local government and for how long. In any case, the appellant who had copies of exhibits D6 and D7 before they commenced the suit at the trial said nothing about the portion of the said exhibits which stated that they, the donors signed sealed and delivered the said powers of attorney “in the presences of DW4 and one G.O.D. Ihesiaba.
Apart from denying their signatures, the appellants said nothing about their witnesses. In their statement of claim there is no averment concerning the witnessing of their signing the said documents. The appellants also had prior notice of the sworn statement of DW4. Yet when they came to cross-examine him, they avoided a direct confrontation of DW4 on the contents of his sworn statement by cross-examining him concerning his employment at Onitsha Local government. The cross-examination standing on its own did not even impeach the general veracity or credibility of the witness. The appellants sought to employ the evidence of DW5 that they thought was in conflict with that of DW4 to do so. That is not how to impeach the general credibility of a witness through cross-examination. Conflict in the testimonies of two witnesses called by one party to a case, or an issue, only result in their testimonies on the issue being disbelieved and disregarded by the court. The court cannot choose whom to believe. It cannot believe one and disbelieve the other. See AMADI & ORS v. THE STATE (1993) NWLR (Pt.314) 640 AND BOY MUKA V. THE STATE (1976) 9-10 SC. Therefore it is wrong for Learned Counsel to submit that the evidence of DW5 shows that DW4’s evidence that he worked at Onitsha Local Government is not true. By this submission, Counsel is inviting this court to believe DW5 and disbelieve DW4. In any case DW5’s evidence in cross-examination does not challenge or in any way contradict DW4’s evidence in examination-in-chief. The credibility of DW4’s evidence in examination-in-chief remained unscratched. The general credibility of DW4 as a reliable witness was not successfully impeached.

It is trite law that credible evidence given in examination-in-chief on a material fact if unchallenged or uncontradicted or unshaken during cross-examination must be taken or accepted as stabling the fact alleged therein. See AMERICAN CYNAMID CO LTD V. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (PT.171) 15, IJEBU ODE LOCAL GOVERNMENT V. BALOGUN & CO. LTD (1991) 1 NWLR (PT.166) 136, STEYER NIG. LTD V. GADZAMA (1995) 7 NWLR (PT.407) 305, IFEAIYYICHUKWU OSONDU CO. LTD V. AKHIGBE (1999) 11 NWLR (PT.625) 1, EGBUNIKE & ORS V. ACB LTD (1995) 2 NWLR (PT 315) 34. Since the evidence of DW4 that he was present when exhibits P12, D6 and D7 were signed and that he saw the appellants sign same and he signed as their witness is unchallenged and uncontradicted and the respondents did not elicit any further evidence to show that the signatures on exhibits D5(a-h) were made by the appellants, they failed to discharge the evidential burden to prove that the disputed signatures are those of the appellants. For this reason I hold that the finding of the trial court that the appellants signed exhibits D5 (a-h) is wrong. I therefore set aside the said finding.

Another issue that was raised and argued by both sides in their respective briefs of argument is when the 4th January 1971 lease of the ground floor of No 6 Williams Street will expire. It is issue No. 3 in the appellants brief and issue No. 3 in the respondents’ brief. The appellants claimed in paragraph 29(a) of their statement of claim for a declaration that the said lease was to expire on 4th January 2006. I do not think that appellants had the locus standi to competently maintain an action for a declaration as to when that lease expired. This is because as I have already held herein, they are not parties to the said lease. Following the death, testate, of the original lessor in the lease, Okunwa John Uzo Atuanya on 4th June 1973, his trustees under his will, became the lessors under the lease. As I had earlier held, the appellants are not the said trustees under the said will. Not being parties to the lease contract they have no right or interest under the lease. The right given to them by exhibit P1 (the will) to share in the rents collected from the lease of the ground and 2nd floors of No. 6 William Street is not a right or interest arising under the lease or given by the lease. It is a right given by the will. It cannot be enforced as a contractual right. It does not give the appellants the right to intermeddle in any lease agreement entered into by the trustees with any lessee in respect of the ground and 2nd floor of No. 6 Williams Street. In the light of the foregoing, I hold that the appeal succeeds in part. I hold that the decision of the trial court that the appellants’ claims lack merit, is wrong. It is therefore hereby set aside. Rather, I hold:

(i) that the appellants’ claim for the declaration in paragraph 29(a) of the amended statement of claim that the lease agreement of 4th January 4th shall expire on the 4th of January 2009 is incompetent and is hereby struck out.

(ii) that appellants’ claim in paragraphs 29(b) is meritorious. The powers of attorney given by the appellants to the 2nd respondent on 12th November 1999 and on 11th January 2000 in respect of No. 6 William Street Onitsha are abinitio void and of no effect.

(iii) that the appellants claim in paragraph 29(c) of the amended statement of claim I declare that the purported agreement to sell the appellants’ alleged interest in No. 28 Nottidge Street, Onitsha or to sell the said No. 28 Nottidge Street, Onitsha is void abi initio and is of no effect.

(iv) Exhibits D5A, D5B, D5C, D5D, D5E and D5H (acknowledgment of receipts of money in consideration of agreement to sell No. 28 Nottidge Street Onitsha) and exhibits P12, D6 and D7 (the powers of attorney) are hereby set aside.

I hold that the respondents’ counter-claim for a declaration the lease agreement of 4th January 1971 will expire on 31st December 2009 is incompetent it is accordingly struck out. I hold also that-
(i) the respondents counter-claim for a declaration that upon expiration of the lease agreement of 4th January 1971, the appellants elder brother and other beneficiaries under the will shall renew the said lease as lacking in merit. It is accordingly dismissed.

(ii) the respondents’ counter-claim for a declaration that after the expiration of the lease of 4-1-1971, they are entitled to the interest of the appellants and their eldest brother in No. 6 Willaims Street by virtue of the powers of attorney given on 12-11-99 and 11-1-2000 lacks merit and is accordingly dismissed

(iii) the respondents counter-claim for a declaration that the appellants are bound to execute a document transferring of their interest and that of their eldest brother in No. 28 Nottidge Street to the respondents and the counter claim for an order compelling the appellants and their eldest brother to execute a deed of transfer or assignment of their interest in No. 28 Nottidge Street Onitsha lack merit and are hereby dismissed. I also hold that the respondents’ counter-claims for the refund of the sum of N290, 320 for the renewal of the lease of 4th January 1971 and the sum of N850,000 for the purchase of No 28 Nottidge Street or appellants’ interest therein lack merit and are hereby accordingly dismissed.
I make no order as to costs.

ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Agim J.C.A. Just delivered. I agree with the reasoning and conclusions arrived thereat. My learned brother has exhaustively treated all the issues raised in this appeal. I have nothing useful to add but to adopt same as mine. I too allow the appeal in part and endorse all the consequential orders contained in the lead judgment inclusive of costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had read in advance the lead Judgment of my Learned brother E. A. AGIM, J.C.A. and am of the considered view that he had comprehensively dealt with all the issues that called for determination in this Appeal. It would be a waste of judicial time and energy to add to a well scripted and reasoned judgment. I adopt everything he has decided herein as mine and also hold that this Appeal succeeds in part. I further hold also that the decision of the learned trial Judge that Appellant’s claims lack merit, is wrong and is hereby set aside.

Furthermore, I abide by all other orders as contained in pages 28 and 29 of the Judgment including costs.

Appearances

Chudi Obieze Esq, with Mrs Udoka Ekwealo Esq, and Obiora Amammah Esq.For Appellant

AND

O. J. Nnadi Esq.For Respondent