ABIGAIL NKEM OSAKWE v. FRANCIS DUBEM NWOKEDI & ANOR
(2018)LCN/11939(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/168/2014
RATIO
COURT AND PROCEDURE: THE POWER OF ATTORNEY
“Thus, mere possession of a Power of Attorney does not tantamount to valid title to the land. I am not discounting the fact that the said Exhibit P1 was registered as No. 3 on Page 3 in Volume 221 of the Lands Registry in Awka. However, the registration of a document does not confer any legitimacy or validity to it if it had no power to convey anything ab initio. See AKPENE v. BARCLAYS BANK (1977) NSCC (Vol. II) 29 at 36; ROCKONOH PROPERTY v. NITEL (2001) 7 SCNJ 225 at 248-250.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
COURT AND PROCEDURE: IRREVOCABLE POWER OF ATTORNEY
“The position of the law is that once an Irrevocable Power of Attorney coupled with interest (valuable consideration) in favour of the Donor is given, it is irrevocable to the extent that the consideration which is given is unrealized. Where the consideration is realized the Power of Attorney becomes revocable. The Power of Attorney on its own cannot extinguish the title of the Donor since the Donee remains an agent of the Donor. See CHIME v. CHIME (2001) 3 NWLR Pt. 701 Pg. 527; ONYEANI & ANOR v. J.C. AVAJA (2011) LPELR 3835(CA). It is clear that it is only where the authority of an agent is given by deed, or for valuable consideration for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. In NICHOLAS OKERE v. THERESA AKALUKA (2014) LPELR 24287 (CA)” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
LAND LAW; WAYS TO PROVE INSTRUMENT OF GRANT
“There is no doubt that one of the ways of proving title to land is the possession of a valid instrument of grant. See IDUNDUN v. OKUMAGBA (1976) 9-10 SC 246.
In ROMAINE v. ROMAINE (1992) 5 SCNJ 25 at 36, Nnaemeka-Agu JSC held as follows:
”But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
ABIGAIL NKEM OSAKWE Appellant(s)
AND
1. FRANCIS DUBEM NWOKEDI
2. MR. NAYOKA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Anambra State, delivered by Hon. Justice D.O.C Amaechina on 20/12/13.
The facts that led to this appeal are as follows:
The Plaintiff now the Appellant by a writ of summons filed on the 19th of July, 2006 instituted an action against the Defendants now Respondents claiming the following reliefs:
a. An order of account of all monies collected as rent from the tenants at No. 17 Water Works Road, Omagba, Onitsha as from the plaintiffs father?s death on 16th April 2004 and payment of the said amount to the plaintiff.
b. Perpetual injunction restraining the defendants whether by themselves or by their agents and servants howsoever described from entering or encroaching into the said No. 17 Water Works Road, Omagba, Onitsha and from doing any other thing in or on the said property or collecting any further rents from any tenant therein.
The Appellant also filed a reply to the Defence and a Defence to the counter claim on 29th November, 2007.
The Respondents filed the statement of defence of the 1st and 2nd Defendants and counter-claim on 27th November, 2007. The Respondents counter claimed as follows:
a. A declaration that the Power of Attorney dated 17/2/2003 and registered as No. 3 at page 3 in Volume 221 of the Lands Registry in the office at Awka purportedly granted in favour of plaintiff was wrongfully and/or unlawfully obtained.
b. A declaration that No. 17 Water Works Road, Omagba, Onitsha, was and still is a family house for the entire children of late Chief Raphael Nwokedi.
c. An order directing the Registrar of deed, Ministry of Lands and Survey, Awka, Anambra State to de-register the aforesaid Power of Attorney dated 17/2/2003
d. An injunction restraining the Plaintiff, her servants, agents or howsoever constituted from in whatever manner interfering with the 2nd defendant (sic) continued discharged of his functions/duties for the entire late Raphael Nwokedi Family.
In proof of her case, the Appellant called two witnesses, Pw1 and she gave evidence as Pw2 while three exhibits were tendered through her. The exhibits tendered by the Appellant are as follows:
i. Photocopy of Power of Attorney dated 17th February, 2003 (Exhibit P1)
ii. Photocopy of the last will/testament of Ugonabo Rapheal Okwudi Nwokedi dated 12th December, 2003 (Exhibit P2)
iii. Photocopy of the last will and testament of Ugonabo Rapheal Ononenyi Okwudi Nwokedi dated 22 January, 2001 (Exhibit P3)
While the Respondents in proof of their defence and counter claim fielded five witnesses and tendered six exhibits which were admitted as follows:
“i. A letter dated 14th November, 2007 on result of document examination addressed to J.H.C. Okolo (SAN) (Exhibit D1)
ii. A letter dated 16th November, 2007 by which Exhibit D1 was forwarded to the defendant?s former counsel (Exhibit D2)
iii. A document titled ?Notice of withdrawal and revocation of Power of Attorney dated February 2003.? (Exhibit D3)
iv. A letter date 18th June, 2003 titled ?Recovery of unpaid Electric Bills.? (Exhibit D4)
v. A letter dated 26th June, 2003 titled ?Excessive electric Bill sent to me.? (Exhibit D5)
vi. A document titled ?A serious and solemn declaration made this 8th day of March 2004 (Exhibit D6).”
Issues were joined and after the hearing of the case, the trial Court on 20/12/13 dismissed the Appellant’s case and entered judgment in favour of the 1st Respondent granting part of the counter claim.
Dissatisfied, the Appellant filed a Notice of Appeal on 28th February, 2014. The Appellant’s brief was filed on 13th August 2014 and deemed filed on 28th November, 2017. The Respondents’ brief of argument was filed on 10/5/15 was deemed filed on 29th September, 2016.
Mr. C. Chima Oguejiofor Esq. ACIArb. who settled the Appellant’s brief distilled two issues therein, for the determination of the appeal to wit:
1. Whether the learned trial Judge was right in holding as he did that the case of the plaintiff was without merit and in dismissing the same including her claim for an account of the rents collected in the property by the Respondents
2. Whether the same trial Judge was right in upholding the counter claim of the Respondents and in finding that the property in dispute was family property.
The Respondent in the brief settled by K.C. Ezeanyika also identified one issue and adopted the second issue as distilled by the Appellant.
In my view, there is not much difference in the issues identified by both parties, since the complaints of the Appellant can be determined by one issue, I have couched the issue for determination as follows:
Whether the learned trial Court was right in holding as it did that the case of the Appellant was without merit and in dismissing the same and also for finding that the said building in dispute is family property.?
SOLE ISSUE
Whether the learned trial Court was right in holding as it did that the case of the Appellant was without merit and in dismissing the same and also for finding that the said building in dispute is family property.”
Learned Appellant’s counsel argued that the Appellant acquired the property from her late father, Ugonabo Raphael Okwudili Nwokedi by gift/grant inter vivos which was reduced into writing vide an Irrevocable Power of Attorney dated 17/2/2003 which was admitted as Exhibit P1. Counsel reminded us that since both witnesses for the Appellant were never cross examined, their testimony was not controverted. Pw1 had given evidence that the deceased never meant the house to be family property and did not include it in his Will made on 12/12/2013 admitted as Exhibit P2.
Counsel also argued that the learned trial Judge was wrong to have invalidated the said Power of Attorney on the ground that the Power of Attorney is not a valid instrument for transferring title whereas the relief sought by the Appellant was not a declaration of title over the property in dispute but an order of account of all monies collected as rent and to be paid to the Appellant which is all within the confines of the Power of Attorney.
Counsel submitted that assuming the Power of Attorney cannot transfer title in the property from her late father to her, it still remains a valid document of delegation and thereby empowered the Appellant to collect rents, demand for accounts of rents and generally exercise all powers delegated to her by the deceased.
Counsel submitted that the case of UDE v. NWARA (1993) 2 NWLR Pt. 278 Pg. 638 also favours the claim of the Appellant which is not for title to the property but for rent.
Counsel argued that the fact that the 1st Respondent in his Evidence-in-chief agreed that one of the two storey buildings of the property under contention had been given as gift inter vivos to the Appellant raises a strong presumption that the Appellant also owns the other storey building in the premises. Counsel cited IDUNDUN & ORS v. OKUMAGBA & ORS. (1976) VOL. 10, NSCC Pg. 446; AJIBOYE v. ISHOLA (2006) 13 NWR Pt. 998 Pg. 628; ONUWAJE v. OGBEIDE (1991) 3 NWLR Pt. 178 Pg. 147 at 153; AKINOLA v. OLOWO (1962) 1 ANLR, Pt. 2 Pg. 224 at 225; NKADO v. OBIANO (1993) 4 NWLR Pt. 287 Pg. 305.
Counsel submitted that admissible, relevant, uncontradicted evidence ought to be relied on by the trial judge. Counsel cited OBMIAMI BRICK AND STONE NIG LTD. v. ACB LTD. (1992) 3 NWLR Pt. 229 Pg. 260.
Counsel argued that the 1st Respondent confirmed the story of the Appellant and the Appellant is entitled to take advantage of this weakness. He cited AJIBOYE v. ISHOLA (2006) 13 NWLR Pt. 998 Pg. 628 at 636.
On the issue of the counter claim, Appellant?s counsel argued that the learned trial Judge in reaching the decision that No. 17 Water Works Road Onitsha was a family house had clearly failed to avert his mind to the evidence led before him that showed clearly that it was not.
Counsel stressed that the Appellant in support of her claim led evidence to show that if the property was a family house, the deceased would not have given her one half of the property to own exclusively, and the fact that the deceased and one of his wives was buried on the property does not on its own make it a family property. Moreso, not even one child of the deceased lives on the property, even during the life time of the deceased; the house was rented to tenants who pay rent for their occupation.
Counsel emphasized that the learned trial Judge also ignored the testimony of the Pw1- Emeka Francis Ofordile (SAN) which had thrown light into the reason the property in dispute was not bequeathed to any person in Exhibit P2. Counsel submitted that the testimony was not controverted by anybody and therefore deemed to be the truth; thus, it bears weight and ought to have been attached great probative value by the trial judge. Counsel argued that had the judge attached any probative value to the evidence of Pw1, he would have found that the deceased did not intend No 17 Water Works Road to be a family house.
Counsel argued that the learned trial Judge ought to have put the totality of the evidence adduced by both parties on the imaginary scale and not the evidence of one party to determine the suit. Counsel cited MOGAJI V. ODOFIN 1978 4 SC 91; NWANKPU V. EWULU 1995 5 NWLR Pt. 407 Pg. 269. Counsel submitted that it must be shown that the Court actually evaluated all evidence put forward before it and give reasons for accrediting or discrediting any piece of evidence. Counsel cited ADEBAYO V. ADUSEI (2004) 4 NWLR Pt. 862 Pg. 44, MOGAJI V. CADBURY NIG. LTD. (1985) 2 NWLR Pt. 7 Pg. 393.
Counsel argued that Exhibits D3 and D6 were purportedly made by the deceased who did not tender them in evidence nor was he available to be cross examined on the documents and the law is that a maker of a document is the proper person to tender it and where the person that tenders it is not the maker, the trial Judge should not attach probative value to it. Counsel cited FLASH FIXED ODDS LTD. V. AKATUGBA (2001) 9 NWLR Pt. 717 Pg. 46 at 63; LAMBERT V. NIGERIAN NAVY (2006) 7 NWLR Pt. 980 Pg. 541 at 547; IDESOH v. ORDIA (1997) 2 SCNJ 175 at 184
Counsel argued that the learned trial Judge found that Exhibit P1 had been revoked by the deceased through the instrumentality of Exhibits D3 and D6 but did not reckon with the fact that having already declared Exhibit P1 irrevocable, that not even the deceased can revoke it again by law.
Counsel argued that it was wrong of the learned trial Judge to attach any probative value to Exhibit D3 and D6 tendered by the Respondents when they were of doubtful pedigree, moreso, as Exhibit D3 purporting to revoke Exhibit P1 was not proved to have been delivered to Pw2. Also, the document was tendered by 1st Respondent who was not the maker. Counsel argued that an irrevocable Power of Attorney is not revocable by the donor as he cannot blow hot and cold.
The learned Respondents’ Counsel on the other hand contended that before the Appellant can demand for account and order of perpetual injunction restraining the Respondents, the Appellant has to establish the nature of her interest and that in this case the reliefs sought by the Appellant only translates to claiming outright title and ownership of the entire property known as No. 17 Water Works Road, Omagba Onitsha. Counsel argued that it is then wrong for the Appellant to place reliance on a Power of Attorney as the source of such title to the property in dispute. Counsel insisted that the claim before the court is one of title to property.
Counsel submitted that whereas the Appellant tendered a Power of Attorney in support of her claim in paragraph 7 of the depositions of the Appellant where she stated that her father transferred all his interest in the said No. 17 Water Works Road Onitsha to her, Power of Attorney is just a mere instrument of delegation which does not confer, transfer or alienate title. Counsel cited UDE v. NWARA (1993) 2 SCNJ 47; DICKSON v. SOLICITOR- GENERAL PLATEAU STATE (1974) N.S.C.C (VOL 9) 268; OLALOYE v. BALOGUN (1990) 7 SCNJ 205; TATAMA v. JALOMI (2003) FWLR Pt. 181 Pg. 1682; ELENDU v. EKWUOBA (1995) 3 NWLR Pt. 380 Pg. 704.
Counsel argued that the fact that the Power of Attorney was registered could not have cured the effect of not ensuring that the Governors consent is first had and obtained as provided by Section 22 of the Land Use Act and none compliance with the provisions of the Act renders such transfer of interest null and void.
Learned Respondent counsel argued that the evidence of the Respondent did not support the contention of the Appellant that she was given both property on No 17 waterworks Road, rather the evidence of the 1st Respondent is that she was given the Boys Quarters while the main house is family property.
Counsel argued that the trial Judge was bound by the case of the Appellant at trial which was in fact for title sought to be established by Exhibit P1. Counsel cited NDIC v. ORANU (2001) FWLR Pt. 82 Pg. 1974; LEMOMU v. ALI BALOGUN (1975) 3SC 169; IBANGA v. DEREKE (1986) 4 SC 141.
Counsel argued that the claim of title by transfer of an irrevocable Power of Attorney must be proved. Counsel cited ONYEKWULUNNE v. NDULUE (1997) 7 NWLR Pt. 512 Pg. 277; USIKARO v. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR Pt. 172 Pg. 150; NWAGA v. REGISTERED TRUSTEES RECREATION CLUB (2004) FWLR Pt. 190 Pg. 1360; OKIRI v. IFEAGHA (2001) FWLR Pt. 73 Pg. 153; JOHNSON v. MAJA (1951) 2 WACA 290; OGUGUA v. ARMELS TRANSPORT LTD. (1974) NSCC 169; OKUBULE v. OYAGBOLA (1990) 7 SCN 221; MOTANYA v. ELINWA (1994) 7-8 SCN Pt. 111 Pg. 615; DURU v. NWOSU (1989) 4 NWLR Pt. 113 Pg. 24; MOGAJI v. ODOFIN (1978)4 SC 91; KACHALLA v. BANKI & ORS. (2001) FWLR Pt. 73 Pg. 14; ROMAINE v. ROMAINE (1992) 4 NWLR Pt. 237 Pg. 650; SAVANNAH BANK LTD. v. AJILO (1989) 1 NWLR Pt. 97 Pg.; CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD. & 2 ORS. v. EKPO (2008) 2 S.C.N.J 307
On the other hand, learned Respondent’s counsel argued that although the Appellant filed ‘reply and defence to statement of defence’ in response to the 1st Respondents counter claim, the Appellant failed to file a deposition or lead any evidence with respect to her pleadings; thus, the counter claim remained unchallenged and uncontradicted. Counsel submitted that failure of the Appellant to challenge the Exhibits or lead evidence to challenge the authenticity or otherwise of the documents, left the trial Court with no other option than to rely and act on them. Counsel cited KAYDEE VENTURES LTD. v. MINISTER FEDERAL CAPITAL TERRITORY (2010) 41 2 NSCOR 914.
Counsel argued that there could not have been better evidence than that shown in Exhibits D3 and D6 which were duly pleaded, frontloaded and tendered in Court without any objection. The Appellant did not challenge or controvert them during the proceeding, even when she had the opportunity to do so, it is then open to the Court to act on such unchallenged or uncontroverted evidence before it. Counsel cited OBINECHE v. AKUSOBI (2010)12 NWLR Pt. 1208 Pg. 383 at 392, OLOHUNDE v. ADEYOJU (2000) 10 NWLR Pt. 676 Pg. 562, OMOREGBE v. LAWANI (1980) 3-4 SC 108.
Counsel emphasized that the grant of one storey building to the Appellant as a gift was a deliberate act of the deceased, father of the Appellant and the 1st Respondent and there could not be any other stronger evidence than the solemn declaration of the deceased as contained in Exhibit D6 as the solemn declaration was pointedly direct on the status of No 17 Water works Road and the one storey building demarcated with dwarf concrete which the deceased willed to the appellant is not part of the family house.
Counsel argued that the Power of Attorney does not deprive the donor, Ugonabo of his title to the property, the document being nothing other than an irrevocable Power of Attorney, not a conveyance. Counsel cited EZEIGWE v. AWUDU (2008) ALL FWLR Pt. 434 Pg. 1542. Counsel submitted that the argument by the Appellant?s counsel that Exhibit P1 confirmed that the deceased had meant to give the Appellant the property in dispute to enjoy the same exclusively cannot stand.
Counsel argued that the deceased by Exhibit D3 revoked the Power of Attorney while in Exhibit D6, the donor said that he gave Exhibit P1 in error and that he would want the property to be his place of burial. Counsel further argued that the Appellant’s claim that Exhibit D3 was not served on him was of no moment. Moreso, when Exhibit D3 was been tendered as an exhibit, she did not object to its admission. Exhibits D3 and D6 were frontloaded and included in the list of document served on the Appellant so she cannot complain or deny knowledge of it now. And Counsel cannot use his brief of argument as a place to give evidence. Counsel cited OBASUYI & ORS. v. BUSINESS VENTURE LTD. (2000) 4 SC Pt. 1 Pg. 162, OKOLI v. MORECAB FINANCE NIG. LTD. (2007) 4-5 SC 116. Counsel submitted that it is for the Appellant to prove that she was seeing the document for the first time in her life.
Counsel further expressed that if the maker of Exhibits D3 and D6, the deceased, was not in Court to be cross examined as the Appellant contended and for which reason the two Exhibits lack probative value, the same shall apply to Exhibit P1. Counsel submitted that the case of FLASH FIXED ODDS LTD. V. AKATUGBA (supra) and LAMBERT v. NIGERIAN NAVY (2007) 4 WRN Pg. 136 at 189-190 cited by the Appellant does not apply in this case.
Counsel argued that Exhibit P1 remains void on the authorities ofAKPENE v. BARCLAYS BANK OF NIGERIA (1977) NSCC Vol. 11 Pg. 29 at 36; ROCK ONOH PROPERTY CO. LTD. v. NIGERIA TELECOMMUNICATIONS PLC & ANOR (2001) 7 SCNJ 225 at 248 to 250.
OPINION
Let us first of all settle the issue of fact relating to whether or not the deceased intended to give the Appellant the two buildings on No 17 Water Works Road, Omagba Onitsha. The 1st Respondent in his evidence in chief on page 70-73 of the record had stated that the building which was demarcated by a fence on the land had been given to the Appellant by their father. He was not contesting that fact. He stated that the said property had two buildings. He stated in paragraph 15 of his evidence on oath that one of the orders given to him and his elder brother by their Late father was that the house built as Boys Quarters demarcated by dwarf wall had been given to and should remain the property of the Appellant.
I cannot subscribe to the view that since the 1st Respondent in his evidence conceded that gift to the Appellant; it must be that the deceased granted the whole property to the said Appellant.
It is clear to me from the evidence of the 1st Respondent which was believed by the learned trial Judge and which I also believe as being more credible on a balance of probabilities that the Late Ugonabo Raphael Nwokedi being an Ozo title Chief holder whose first wife and the Appellant?s mother had been buried on the property and who had stated a wish to be buried on the property had regarded the property towards the end of his life as family house and would not have given it to any child. That was why it was not devised to anyone in Exhibit D6.
I am also persuaded in this finding by the fact that the Appellant was never let into possession of the property during the life time of the deceased who lived there and collected rents from tenants therein.
The narrow issue here is whether in spite of the behavior of the deceased who did not put the Appellant into possession of the house in dispute being a gift inter vivos during his life time, No 17 Water Works Road, Omagba is the exclusive or absolute property of the Appellant by grant or transfer of title of the deceased to the Appellant or the family property or family house of the deceased which could not have been given to the Appellant.
Let us first look at the grant or the Power of Attorney given the Appellant. The Appellant’s argument is that she is not claiming title to the property, only an account of the rents hitherto collected and injunction against the Respondents to ensure her future enjoyment of exclusive possession.
There is no doubt that one of the ways of proving title to land is the possession of a valid instrument of grant. See IDUNDUN v. OKUMAGBA (1976) 9-10 SC 246.
In ROMAINE v. ROMAINE (1992) 5 SCNJ 25 at 36, Nnaemeka-Agu JSC held as follows:
”But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own.
Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of question, including:-
i. Whether the document is genuine and valid;
ii. Whether it has been duly executed, stamped and registered;
iii. Whether then grantor had the authority and capacity to make the grant;
iv. Whether the grantor had in fact what he purported to grant; and
v. Whether it has the effect claimed by the holder of the instrument.”
In this case, the Appellant relied on Exhibit P1- the Power of Attorney as the document which vested in her the right of exclusive possession and enjoyment of the disputed property.
The argument that she claimed only rent and enjoyment of the property without claiming title cannot hold water since the prayer for injunction effectively means a prayer for title not withstanding that there is no specific prayer for declaration of title.
InUDE v. NWARA (1993) 2 SCNJ 47, the Supreme Court held that a Power of Attorney is a mere instrument of delegation which does not confer, transfer or limit a charge or alienate title to the Donee.
Thus, mere possession of a Power of Attorney does not tantamount to valid title to the land. I am not discounting the fact that the said Exhibit P1 was registered as No. 3 on Page 3 in Volume 221 of the Lands Registry in Awka. However, the registration of a document does not confer any legitimacy or validity to it if it had no power to convey anything ab initio. See AKPENE v. BARCLAYS BANK (1977) NSCC (Vol. II) 29 at 36; ROCKONOH PROPERTY v. NITEL (2001) 7 SCNJ 225 at 248-250.
I need to explain further the dictum of Nnaemeka Agu JSC in UDE v. NWARA also cited as (1993) 2 NWLR Pt. 277 Pg. 638 at Pg. 665 where my Lord said:
”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 authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is an alienation. See also the cases of ABU v. KUYABAN (2002) 4 NWLR Pt. 758 Pg.599; OLORUNFEMI v. NIG. BANK LTD. (2003) 5 NWLR Pt. 812 Pg. 1 and AMADI v. NSIRIM (2004) 17 NWLR Pt. 901 Pg. 111.”
What the above means is that until the Donee of an Irrevocable Power of Attorney leases or conveys the property to himself, then there is no alienation. Nothing like that has occurred in this case. See also DERRIMA MANGIBO v. CHIEF J.I. OGUNIDE & ANOR. (2016) LPELR- 40547 (CA).
In this case, Exhibit P1 states that Irrevocable Power of Attorney was donated to the Appellant in Paragraph 11 of Exhibit P1 in consideration of ?Fatherly love and affection.
In paragraphs 2, 3, 4, 5 of the said Exhibit P1, the following powers were donated to the Appellant:
2. To manage and superintend the management of the said property and to assign to herself absolutely or to any other person the said property whenever she considers it necessary to do so.
3. To sell and dispose of all and singular the property together with the appurtenances either by private contract or by public auction an together or in separate parcels or lots for such price as she may deem reasonable.
4. To commence, prosecute, enforce, demand, answer, and or oppose application, suits, claims or any other proceedings whatsoever and demands touching on the said property.
5. To sign and set seal to any instrument, deed delivered pertaining to and to and touching on the said property and act and deliver any assignment, sublease, mortgage, surrender, transfer, charge or other deed and to sign or endorse my name upon or to any contract or any instrument or document whatever with respect to the said property.
As I said earlier, by the opinion of Nnaemeka JSC, supra, the Donee must have assigned or alienated the property to himself or herself after receipt of Governor’s consent to do so, before it can convey title. See SAVANNAH BANK v. AJILO (1989) 1 SCNJ and Section 22(1) and Section 26 of the Land Use Act. Also, CALABAR CENTRAL COOPERATIVE THRIFT AND CREDIT SOCIETY LTD v. EKPO (2008) 2 SCNJ 307.
The other point is that before a Power of Attorney can be irrevocable it must be given in financial and NOT filial consideration as was done in this case as the Appellant did not pay any money to the Donor-her father. The definition of ‘good consideration’ in Black?s law Dictionary 7th Edition indicates that it must be ‘valuable consideration’. It is clear that mere filial or moral obligation to donate an Irrevocable Power of Attorney cannot amount to valuable consideration.
The position of the law is that once an Irrevocable Power of Attorney coupled with interest (valuable consideration) in favour of the Donor is given, it is irrevocable to the extent that the consideration which is given is unrealized. Where the consideration is realized the Power of Attorney becomes revocable. The Power of Attorney on its own cannot extinguish the title of the Donor since the Donee remains an agent of the Donor. See CHIME v. CHIME (2001) 3 NWLR Pt. 701 Pg. 527; ONYEANI & ANOR v. J.C. AVAJA (2011) LPELR 3835(CA). It is clear that it is only where the authority of an agent is given by deed, or for valuable consideration for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. In NICHOLAS OKERE v. THERESA AKALUKA (2014) LPELR 24287 (CA) Agube JCA opined as follows:-
”Now, Black’s Law Dictionary 7th Edition by Bryan A. Garner defines “Power of Attorney” at page 1191 thereof as: “An instrument granting someone authority to act as an agent or attorney-in-fact for the grantor – Also termed letter of attorney. 2. The authority so granted.” The Learned Author went on to define the various categories of Power of Attorney to include for the sake of this Appeal, the following:
(a) General Power of Attorney which is a Power of Attorney that authorizes an agent to transact business for the principal.
(b) Irrevocable Power of Attorney which is that power that the principal cannot revoke and this is also termed “Power of Attorney coupled with interest.”
(c) Special Power of Attorney which is such power of Attorney that limits the agent’s authority to specific matter(s).
At page 1189 the term “Power coupled with interest” is defined as:
“A power to do some act, conveyed along with an interest in the subject matter of the power. A power coupled with an interest is not held for the benefit of the principal, and it is irrevocable due to the agent’s interest in the subject property. For this reason, some authorities assert that it is not a true agency power. – Also termed power given as security proprietary.”
At page 1190 of the same , the Learned Author quoted an analysis of the concepts of power coupled with an interest otherwise known as “Power given as security,” “Proprietary Power;” or “Naked Power” by Harold Giff Reuschlein & William A. Gregory, at page 99 para. 47 (1990) Edition of the “THE LAW OF AGENCY AND PARTNERSHIP” where it is stated thus:
“Suppose that the principal borrows money from the agent and by way of security authorizes the agent to sell Blackacre if the loan is not repaid and pay himself out of the proceeds. In such case there is no more reason why the principal should be permitted to revoke than if he had formally conveyed or mortgaged Blackacre to the Agent. Hence it would be highly unfair to the Agent to allow the principal to revoke. The reason why such a case is not properly governed by the considerations usually making an agency revocable is that this is in reality not a-case of agency at all. In a normal agency case the power is conferred upon the Agent to enable him to do something for the principal while here is given to him to enable him to something for himself.
Coupled with an interest means that the Agent must have a present interest in the property upon which the power is to operate.”
I agree absolutely with definitions from my brother and learned author given above.
The second point in issue here is whether in fact, being in law a Revocable Power of Attorney, the Donor had revoked the said Power of Attorney before his death as he was entitled to do since it was made without financial consideration or interest.
In Exhibit P3 made by the deceased testator on 22/1/2001 tendered by the Appellant as Pw2, the 5th paragraph specifically gave to the Appellant- the first daughter of the deceased, ”the Two Blocks of one Storey Building each situate at and known as No. 17 Water Works Road, Onitsha.”
In Exhibit P2 made on 22/12/03 which revoked the previous Will, the testator omitted the devise of the two Storey Buildings at 17 Water Works Road, Onitsha. The Appellant’s counsel claims it was because of the intention of the deceased to give the building to the Appellant. On the other hand, learned Respondent’s counsel argued that it was because by then, the deceased had realized his mistake and wanted that particular building to be family property.
Please note that the Power of Attorney was executed by the deceased on 17/2/03 prior to the Will made on 12/12/03. On 4/1/2004, Exhibit D3 was made by the deceased revoking the Power of Attorney. It was addressed to the Appellant. The deceased specifically gave the reason that the Power of Attorney was revoked because as an Ozo title Chief he would have to be buried in his house according to the tradition and custom of Onitsha.
Exhibit D6 made on 8/3/04 was more by way of instructions regarding what to do on his death and the deceased made elaborate explanations as to why the second Building where his two wives had been buried must remain family property as he wished to be buried therein. The deceased affirmed his earlier devise of the one Storey Building on the same property given to the Appellant demarcated by a dwarf wall and his revocation of his gift to her of the second Building as they are two different properties. These documents were not contested at the time they were tendered and on reading the record I can find no serious contention by the Appellant regarding their validity as having been made by the deceased. I am of the view that the learned Judge was right that Exhibit D3 and D6 both support the counter claim of the 1st Respondent that the building being contested on No. 17 Water Works Road, Onitsha was meant by the deceased to be family property and found it to be so.
I must comment the erudite and thorough judgment of the learned trial Judge. I also commend His Lordship’s forbearance throughout the process. The judgment was a pleasure to read. I must also commend the outstanding industry of both counsel.
The judgment of Hon. Justice D.O.C Amaechina delivered on 20/12/13 in Suit No. 0/408/2006 is hereby affirmed. Appeal Dismissed. I make no order as to costs as the Appellant and 1st Respondent are family members and I wilt not add to the disharmony.
IGNATIUS IGWE AGUBE, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, the PJ, HELEN MORONKE.JI OGUNWUNMIJU, JCA. I agree with the reasoning and conclusion that the Appeal is devoid of merit and deserves nothing but dismissal. In this vein, I hereby dismiss the Appeal. I abide by the consequential orders made in the said lead judgment.
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
N. AROH (Miss) with him, S.I.C. MARCUS-AGBASU and S.I OKOYE (MISS)For Appellant(s)
K.C. EZEANYIKA with him, F.I. OTALUKAFor Respondent(s)
