CHINEDU AJOKO v. IFEANYI OKAFOR & ANOR
(2019)LCN/12530(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/OW/252/2016
RATIO
COURT AND PROCEDURE: THE POWER OF ATTORNEY
“It is, however, the law that a Power of attorney is not an instrument for transfer of title to land, and as such not usually a registerable instrument. It is a mere authority on the donee to act, at the pleasure of the donor, the donee being only an agent of the donor. See Ude Vs Nwara (1993) 2 SCNJ 47; Atuanya and Anor Vs Atuchukwu & Anor (2013) LPELR 22566 CA; Okpe Vs Umukoro (2013) LPELR ? 21999 CA; Nwaudo & Anor Vs Mba & Anor (2016) LPELR 40547 CA. In the case of Chime & Ors Vs Chime and Ors (2001) LPELR 849 (SC), the Supreme Court held: ‘It is where a Power of Attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owed to the donee that it is irrevocable either by the donor, without the consent of the donee, or by the death, in capacity, bankruptcy, winding up or dissolution of the donor, so long as the donee has the interest or the obligation remains undischarged’ 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. But it is not irrevocable merely because the agent has an interest in the exercise of it. Per Iguh, JSC.” PER ITA GEORGE MBABA, J.C.A
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
CHINEDU AJOKO
(BY HIS ATTORNEY SAMSON AKALAZU) Appellant(s)
AND
1. IFEANYI OKAFOR
2. OKECHUKWU OKAFOR Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the judgment of Imo State High Court in Suit No. HOW/153/2006, delivered by Hon. Justice P.O. Nnadi (now Chief Judge of Imo State) on 10th July, 2015, wherein the trial Court dismissed the Plaintiff’s claim, but granted, in part, the Counter claim by the Defendants. The Appellant herein was the Plaintiff, suing by his Attorney, Samson Akalazu, while the Respondents were the Defendants.
At the Lower Court, Appellant had sought the following reliefs:
(a) A declaration that the claimant is entitled to the Statutory Right of Occupancy in and over Plot 21 Housing Area E, New Owerri Layout, Owerri.
(b) A declaration that the acts of the Defendants in invading and disturbing the Claimant’s quite possession of the said property and of chasing away his workmen thereby disrupting the completion of building construction thereon are unlawful and constitute trespass.
(c) N20,000,000.00 (Twenty Million Naira) being general damages for trespass to the said claimant’s property.
(d) Perpetual injunction restraining the Defendants by themselves, their heirs, servants, agents, workmen, privies or anybody whosoever from interfering with or disturbing the Claimant’s exclusive possession of his property therein or from further trespass thereto or interfering with his title or interest over the said claimant?s Plot 21 Housing Area E, New Owerri Layout, Owerri. Page 14 of the Records of Appeal.
The Respondents had Counter-claimed, as follows:
1.A declaration that the Will of Chief Mathias Udokoro Okafor in respect of Plot 21 New Owerri Layout, Area E registered as instrument No. 9 Page 9 in Volume 33 of the Lands Registry in the office at Owerri with the Survey Plan IMLd. P/5 was willed to the defendants as contained in the said Will of Chief Mathias Udokoro is set aside.
(2) An Order setting aside or declaration as null and void the purported Power of Attorney of the Claimant made on 22/3/2005 in so far as it relies on and rooted on the Power of Attorney, purportedly made between Chief Wilson Osita Okafor and Henry Emenalor, made without the consent and approval of the defendants and other principal members and beneficiaries of Plot 21 New Owerri Layout, Area E, registered as No. 9, at Page 9 in Volume 33 of the Lands Registry in the Office at Owerri under the Will of late Chief Mathias Udokoro Okafor family of Umudiele Akwu Akokwa Town in Ideato North Local Government Area of Imo State.
(3) An Order that Plot 21 New Owerri Layout, covered by Statutory Certificate of Occupancy, registered as No. 9 at Page 9 in Volume 33 of Lands Registry in the Lands Office at Owerri is and remains part of and included in the Will of late Chief Mathias Udokoro Okafor, until the Will is set aside by an order of the Court. (Pages 163 and 202 of the Records)
After hearing the case and considering the addresses of Counsel, the trial Court held for the Respondents, as follows:
‘The parties are ad idem that the validity of the Will of Chief Mathias Udokoro Okafor is pending, between his children i.e. Osita Wilson Okafor and Dr. Chris Okafor on one hand and the defendants counter claimants on another hand, at High Courts of Onitsha and Awaka (sic) in Anambra State, and since the matters and issues raised therein are subjudice, this Court cannot delve into the effect and validity of the Will and contents therein. Suffice it to state that the Court can only deal with claim No. 2 of the Defendant’s Counter-claim and the consequential order, following the findings of the Court that the Power of Attorney made in Exhibit C is not valid. In conclusion, this Court finds and so holds that the claimant has failed to prove his claims and his claims are hereby dismissed.
On the Counter claims, this Court holds that having found that the Power of Attorney as in Exhibit C was not validly made, the Defendants/Counter claimants have proved their entitlement to have the Power of Attorney contained in Exhibit C, which has been found to be invalid, set aside.
The defendants’ claim in this regard succeeds and judgment is entered in favour of the Defendants, and the Court orders, as follows:
1.That the claims of the claimant are hereby dismissed
(2) That the Counter claim of the defendants succeeds only to the extent of having the invalid Power of Attorney set aside and hereby orders as follows:
An Order setting aside and declaring null and void the purported Power of Attorney in respect of Plot 21 Housing Area E, New Owerri Layout, Owerri shown in Exhibits C, D and E dated 31/12/2004 and 22/3/2005, 2/5/2005 respectively.
(3) That reliefs Nos (i) (iii) of the Defendants’ Counter claims which touches and concerns the reliefs in other pending cases before Anambra State High Court are hereby struck out.
(4) The Claimant shall pay cost of N5,000.00 to the Defendants. (See pages 403 – 404 of the Records of Appeal).
Piqued by the above decision, the Claimant (now Appellant) appealed, as per the Amended Notice of Appeal, filed on 13/3/2017 and deemed duly filed on 31/5/2017, which raised four (4) grounds of Appeal. He filed his brief of arguments on 25/5/2017, which was also deemed duly done on 31/5/17, wherein Appellant distilled three (3) Issues for the determination of the appeal, as follows:
(1) Whether the Lower Court was right in holding that Exhibit C was not validly made by reason that the donor being illiterate did not thumb print on it with a jurat. (Ground 1)
(2) Whether the Lower Court was right in holding that Exhibit C was given for no consideration and so came to an end upon the death of the donor (Ground 2)
(3) Whether the trial Learned Judge misdirected himself, when His Lordship held that building and construction went on by the claimant in spite of the pendency of the Suit until it was completed, while the Suit was pending (Ground 3).
The Respondents filed their brief on 9/3/2018, which was deemed duly done on 14/6/18. They distilled three Issues, too, for the determination of the appeal, namely:
“1. Whether the Lower Court was not right in holding that the Power of Attorney (Exhibit C) was not made by the purported donor and therefore null and void.
(2) Assuming without conceding that the Power of Attorney (Exhibit C) was in fact made by the purported donor, did the power so conferred by the said Power of Attorney not come to an end upon the death of the donor.
(3) Whether the Court below did, in fact, misdirect itself, which (sic) it held that the Appellant continued construction on the land in dispute, despite the pendency of the Suit.
Arguing the Appeal on 22/11/18, Learned Counsel for the Appellant, Chief S.N. Amadi, submitted that, contrary to the holding of the trial Court, there was nowhere in Exhibit W that Osita Wilson Okafor or Dr. Uche Chris Okafor stated that their father was illiterate and only thumb printed on documents with jurat; he said that a perusal of Exhibit S, in particular, Page 1 paragraph 4, will show that the case of Osita Wilson Okafor, as stated therein, is not that Chief Mathias Udokoro Okafor only thumb printed on documents with jurat, but that he was only able to sign his name in a particular way, as was taught him by his business partner.
The trial Court had held on page 401 of the Records, as follows:
“That Osita Wilson Okafor and the CW2, Dr. Uche Chris Okafor, stated in Exhibits S and W, which were processes in Suit No. A/190/2005 and A/508/2004 that their father was stark illiterate and only thumb prints on documents with jurat, but there is no such thumb print made by the donor on Exhibit C and no jurat contained therein.”
Counsel said that the trial Court was therefore wrong to infer and conclude that the late Mathias Udokoro Okafor was an illiterate and ought to have thumb printed Exhibit C with a jurat. Counsel urged us to note the definition of illiterate, placing reliance on Illiterate Protection Law of Eastern Nigeria, 1963, applicable in Imo State, and the case of Patterson Zochonis & Co., Ltd Vs Mallam Momo Gusau & Anor (1962) ALL NLR 244, to say that that Court held:
‘I have always understood the word illiterate to refer to a person totally unable to read or write in any language.’
Counsel submitted that the trial Court?s holding was perverse, as it had ignored the material evidence, which CW2 gave, that he knew the signature of his father, Chief Mathias Udokoro Okafor, and had recognised same on the Exhibit C, and that he was present, when his father signed the document (Exhibit C); that the said evidence of CW2 was corroborated by the statement of the respondents, via Exhibit O, that Chief Mathias Udokoro Okafor received private lessons, attended adult education classes, knew how to speak and write English language, and was a customary Court Judge in the then Onitsha Customary Court; Counsel further said that DW1 (Ifeanyi Okafor) also corroborated the evidence the Chief Mathias Udokoro Okafor was not illiterate when he stated:
‘The signature on Exhibit B credited to my father is the real signature of my late father, Chief Mathias Udokoro Okafor.
The signature on Exhibit C is my father’s signature. Page 307 of the Records.
Counsel submitted that whether a person is illiterate or not is a question of facts to be determined on the evidence adduced before the Court. He relied on Nicholas AYANRU Ltd Vs Mandilas Ltd (2007) ALL FWLR (Pt. 382) 1847 SC. He urged us to interfere with the decision of the trial Court, saying that it was perverse, relying on the case of Onwuchekwa Chukwu & Anor Vs The State (2007) ALL FWLR (Pt.384) 268.
On Issue 2, Counsel submitted that the trial Court was wrong to hold that even if the Exhibit C had been signed by the donor, that since the donee of Exhibit C gave no consideration for the Exhibit C, the powers conferred by it came to an end, upon the death of the donor and before the subsequent grant made to Barr. Emenalor in Exhibit D. Counsel submitted that a thorough scrutiny of the Exhibit C shows that it was given for consideration i.e. natural love and affection and the grant was stated to be irrevocable.
On Issue 3, Counsel submitted that the trial Court was speculating, when it said ‘that the building and construction on the land in dispute went’ on in spite of the pendency of this Suit, until it was completed while the Suit is pending? (page 401 of the Records); that the said ruling erroneously portrayed the Appellant as a person who disobeyed Court orders; whereas Exhibit F (Survey Plan of the disputed land) rather showed that the features on the land, the subject matter of the appeal, was a one storey building, one bungalow, one security house and concrete wall fence, which were all erected by the Appellant, prior to the institution of the action, and the buildings had been virtually completed (as what was left was painting) when the defendants trespassed on the land and challenged the Appellant. He referred us to page 45 of the Records of Appeal. Counsel added that those buildings had remained in that condition, till today. He referred us to page 257 of the Records, where he said the trial Court restrained the Respondents herein from further trespass to the land in dispute, while restraining the Appellant herein from carrying out further construction work on the land in dispute.
Counsel argued that the order of the trial Court was not disobeyed; that committal proceedings would have been taken against him for contempt, if he had disobeyed the Court. He relied on the case of Bendex Engineering Corporation & Ben Nwosu Vs Efficient Petroleum Nigeria Ltd (2001) FWLR (Pt.47) 1188 on the danger of basing a Court decision on speculation.
Counsel urged us to resolve the Issues for Appellant and to allow the appeal.
Responding, Learned Counsel for the Respondents, Olisa Ede Esq., on whether the Lower Court was right to hold that Exhibit C was not made by the purported Donor, and therefore null and void, said that the parties were ad idem, that Chief Mathias Udokoro Okafor died on 2/3/04, but the Exhibit C (Irrevocable Power of Attorney) purportedly donated by him, was executed on 3/12/2004; he argued that by law, a dead man cannot wake up from the grave to execute a document! Moreover, Counsel said the Donee (who was a son of the donor) allegedly granted the Power of Attorney, was one who made the father to know no peace, while he was alive, wondering how the father would donate the power to him!
He said that by law a document is the best evidence and speaks for itself and one is not permitted to read into the document what is not there. He relied on the Gov. of Ogun State Vs Coker (2008) ALL FWLR (Pt. 406) 1900 at 1913; Divine Ideas Ltd Vs Haja Mero Umoru (2007) ALL FWLR (Pt. 380) 1468 at 1500; Vera Ezomo Vs NNB Plc & Anor. (2007) ALL FWLR (Pt. 368) 1032. Counsel called us to note that Exhibit C was made on 2/3/2004, after the death of his father, and Appellant was unable to prove that the document was made in 1986 as he alleged. Counsel said that the trial Court had compared the signature of the alleged Donor on the Exhibit C, with that of Chief Mathias Udokoro Okafor, as contained in the Exhibit B (Certificate of Occupancy), and came to the conclusion that the two signatures did not look alike; he said that the law is settled, that a trial Court has the power to compare two signatures, to determine whether they are the same. He relied on Section 101(1) of the Evidence Act, 2011 and the case of Ndoma-Egba Vs ACB (2005) 14 NWLR (Pt 944) 29; Kalio Vs Kalio (2005) 4 NWLR (Pt. 915) 305.
Counsel added that Appellant did not even appeal against the findings of the trial Court that the two signatures did not look alike and so this Court cannot disturb that finding, when it has not been shown to be perverse, or that it led to miscarriage of justice. He relied on the case of Maja Vs Stocco (1968) 1 ALL NLR 141 at 149; Woluchem Vs Gudi (1981) 5 SC 291.
Counsel also submitted that Appellant had deposed to an affidavit that Chief Mathias Udokoro Okafor (his father) became senile from, 1987, as a result of old age and no longer took active interest in the way and manner his Estate and businesses were run. (See Exhibit W ? Suit No. O/506/2004, paragraph 8 of the Statement of Claim).
Thus, Counsel said, that Appellant had admitted that from around 1987, their father, Chief Mathias Udokoro Okafor, became senile as a result of old age, and as the years went by, became progressively, worse. (Paragraph 12 in Support of Motion on Notice for interlocutory injunction). Counsel said that, from the above, it was clear that by the averment/admission of the purported Donee (Osita Wilson Okafor), of the Exhibit C, the donor of the Power of Attorney had been senile, even before the 2005, when the Exhibit C was made. That means, the alleged Donor could not have made the Exhibit C, when it was allegedly made, by reason of the senility of the purported Donor. Counsel relied on the Black?s Law Dictionary, 6th Edition, page 1362, on the meaning of senile, and its effect on contract entered into by one, adjudged senile.
Counsel also drew our attention to the Exhibit M (Daily Champion Newspaper of 19/1/05), wherein Osita Wilson Okafor (Donee of Exhibit C), stated, by way of public Notice:
The general public is hereby notified via this medium that the original documents of the under listed properties belonging to Chief Mathias Udokoro Okafor, who died on 2nd March, 2004, are hereby declared missing.
They are:
(a) No. 4 Onuora Ikeme Street, Fegge Onitsha, Anambra State
(b) No. 9 Ideani Street (double Plot) off Owerri Onitsha Road (behind Texaco Petrol Station) Obosi, Anambra State
(c) Plot E 21 Owerri New Layout (Residential Area) Owerri, Imo State.
Counsel argued that, having indicated and advertised the missing of documents of those properties, which included Plot E 21 Owerri New Layout, Imo State, the trial Court was right to hold the Exhibit C (relating to the above property) in suspicion; he said that Exhibit C, if made, at all, was made when Chief Mathias Udokoro Okafor had died!
Counsel further observed that Exhibit C did not carry the name of the legal practitioner that prepared it, and the CW2 did not know the lawyer who prepared it; that it was not prepared by a legal practitioner; that CW1 had no personal knowledge of the Exhibit C and had stated that he was not present when the document was made.
Counsel also relied on Exhibit L, tendered by Appellant, wherein he deposed that Exhibit C was made on 31/12/2004 (that was after the death of the purported Donor!) He relied on the case of Ottih Vs Nwanekwe (1990) 3 NWLR (Pt.140) 550 at 552 – 553; Section 160 of the Evidence Act, 2011. Counsel said that that averment was binging on the Appellant.
On Issue 2, assuming the Exhibit C was made by the purported Donor (which was not conceded), whether the Power so conferred did not come to an end, upon the death of the Donor? Counsel answered in the affirmative. He said that the law was settled, that a power of attorney comes to an end and becomes, automatically revoked by operation of law, upon the death of the donor; he also argued that a power of attorney does not become irrevocable, simply because it is so tagged, but is irrevocable only to the extent that the consideration, if given, was unrealized. He said that where the consideration is realized, the Power of Attorney becomes revocable; that a power of attorney, on its own, cannot extinguish the title of the Donor, since the donee remains an agent of the Donor. He relied on Nwaudo Vs Mba (2016) LPELR – 40547 (CA); Y.Y. Dadem -Property Law & Practice in Nigeria (2001): University Press Ltd. 1st Edition Pages 42 – 45.
Counsel submitted that Exhibit C was not given for any valuable consideration on the part of the donee; that the recital clause simply stated: in consideration of my natural love and affection without any consideration thereof.
Counsel said that the natural love and affection were from the Donor to donee, whereas, consideration should flow from the donee to the donor. Even then, Counsel said natural love and affection cannot qualify for valid consideration that can be realized so as to make a power of attorney irrevocable, until the interest is realized.
He relied on Faloughi Vs Faloughi (1995) 3 NWLR (Pt.384) 343; Eastwood Vs Kenyon (1840) 113 ER 482.
Counsel stressed that there was no consideration furnished by the purported donee of the said Power of Attorney; that it follows that there is no basis to describe the Power of Attorney (Exhibit C) as irrevocable. Thus, upon the death of the donor, Chief Mathias Udokoro Okafor, the Powers conferred on the donee became automatically revoked by operation of law. Therefore, as at the 22nd of March, 2005, when Mr. Wilson Osita Okafor, purportedly, donated a Power of Attorney to one Barrister Henry Emenalor, purportedly, acting on the Powers conferred on him by the Exhibit C, he had no such Power to donate Power of Attorney to Barrister Henry Emenalor, because the Powers, purportedly conferred on him by Exhibit C, had been automatically revoked by operation of law on the 2/3/2004, when the alleged donor, Chief Mathias Udokoro Okafor died.
Counsel relied on the case of Ude Vs Nwara (1993) 2 NWLR (Pt. 278) 638 SC, to say that a Power of Attorney is not an instrument of transfer of title to land, but merely a document of delegation of power.
Counsel further referred us to Exhibit W (Suit No. O/506/2004, filed by Wilson Okafor and Dr. Chris Uche Okafor (CW2) soon after the death of their father, Chief Mathias Udokoro Okafor) wherein Wilson Osita Okafor averred that Chief Mathias Udokoro Okafor died on 2/3/04, leaving behind landed properties, vehicles shares, including the land in dispute – plot 21, Housing Area E, New Owerri Layout, Owerri. See paragraph 4 of Exhibit W. Counsel said that no mention was made in Exhibit W of donation of Power of Attorney or execution of same by that father to Osita Wilson Okafor by the Plaintiffs in the Suit No. O/506/2004 (Exhibit W).
Counsel also referred us to Exhibit S (Suit No. A/190/2005) wherein the same Osita Wilson Okafor listed Plot 21, Housing Area E, New Owerri Layout, Owerri (proterty in dispute) among the other properties, left behind by Chief Mathias Udokoro Okafor. He said that from Exhibits S, W and M, it was obvious that the land in dispute survived Chief Mathias Udokoro Okafor and was left behind by their deceased father; that Osita Wilson Okafor had no personal interest in the property, and so could not have granted any power of attorney over the land to anybody.
On Issue 3, whether the Court below did, in fact, misdirect itself, when it held that Appellant continued to construct house(s) on the land in dispute, despite the pendency of the Suit, Counsel answered in the affirmative. He said that Appellant totally misconceived the law, when he argued that the trial Court speculated and erroneously portrayed Appellant as acting in disobedience of Court order. He added that it was true that Appellant kept building, even when the case was pending.
Counsel urged us to resolve the issues against the Appellant and to dismiss the appeal.
RESOLUTION OF THE ISSUES
I think the three Issues donated by the Appellant for the determination of this appeal are actually on the same cardinal point, namely whether the trial Court was right to hold that the Exhibit C was not made by Chief Mathias Udokoro Okafor and was not valid and that the land in dispute, being one of the properties that survived Chief Mathias Udokoro Okafor, formed part of his estate.
Appellant in this case was brought into the land by means of Power of Attorney by Barrister Emenalor (Exhibit E) who earlier received a Power of Attorney from Osita Wilson Okafor (Exhibit D). And the said Osita Wilson Okafor had earlier procured the Exhibit C on 31/12/04, claiming the same was Power of Attorney donated to him by his father, Chief Mathias Udokoro Okafor, who died on 2/3/04. Exhibits E and D, therefore, depended on the Exhibit C, for validity.
It should be appreciated that the trial Court did not consider the main reliefs in contention in the case, which sought declaration of title in respect of the property, plot 21, Housing Area E, New Owerri Layout, Owerri, covered by statutory right of occupancy registered as No. 9 at page 9 in Volume 33 of the Lands Registry, Owerri. Whereas Appellant had alleged to have acquired the land by means of a Power of Attorney from Barrister Henry Emenalor, who acquired power from Wilson Osita Okafor (who in turn claimed to have had the land, via Power of Attorney (Exhibit C) by his father, Chief Mathias Udokoro Okafor, the Respondents claimed the said land formed and remained part of the Estate of their late father, Chief Mathias Udokoro Okafor, who died on 2/3/2004 and that the land was willed to them by their late father. Because the tussle over the Will of their late father, Chief Mathias Udokoro Okafor, was pending in Courts in Suit Nos. O/506/04 (Exhibit W) and A/190/2005 (Exhibit S), at the instance of Wilson Osita Okafor (Appellant’s Vendor) and Dr. Chris Okafor and his brothers (Respondents), the trial Court held:
‘The parties are ad idem that the validity of the Will of Chief Mathias Udokoro Okafor is pending between his children i.e. Osita Wilson Okafor and Dr. Uche Chris Okafor on one hand and the defendants counter-claimants, on another hand, at the High Courts of Onitsha and Awaka (sic) in Anambra State, and since the matters and issues raised therein are subjudice, this Court cannot delve into the effect and validity of the Will and the contents therein. Suffice it to say that the Court can only deal with claim No. 2 of the Defendants? Counter-claim and the consequential order, following the findings of the Court that the Power of Attorney made in Exhibit C is not valid.? See page 403 of the Records of Appeal.
Of course, Appellant did not contest the above decision, that issues about the Will of late Chief Mathias Udokoro Okafor were and remained subjudice, because of the pending suits in the Anambra State High Court, and so could not be delved into. Appellant only appealed against the holding relating to the validity of the Exhibit C ? the alleged power of Attorney by the father of Osita Wilson Okafor and his brothers (including the Respondents), to the said Osita Wilson Okafor (He was also written as Osita Okafor or Wilson Osita Okafor).
The Exhibit C is reproduced on pages 61 – 64 of the Records of Appeal, alleged to have been made on 31st day of December, 2004, as Power of Attorney by CHIEF MATHIAS OKAFOR (as Donor) to MR. OSITA WILSON OKAFOR, (as Donee). The recital of the Power of Attorney, states:
Whereas:
1. Under and by virtue of a Statutory Certificate of Occupancy dated 23/4/81 and registered at No. 9 of page 9 Volume 33, I became entitled to the piece or parcel of land known as plot 21 Housing Area E, New Owerri.
(2)I am desirous of appointing and have decided to appoint MR. OSITA OKAFOR my true and lawful Attorney to act for me in the said land (hereinafter called ‘THE LAND’) in consideration of my natural love and affection without any consideration thereof.
NOW THIS DEED WITNESSETH AS FOLLOWS:
In pursuance of the above recital including my desire and decision to appoint MR. OSITA OKAFOR my lawful Attorney, I CHIEF M.U. OKAFOR do hereby – nominate and irrevocably appoint the said MR. OSITA OKAFOR, my true and lawful.
(1) To assign the land to themselves or to any other person or persons subject to the consent, where applicable, or any authority entitled to give such consent.
(2) From time to time at their discretion to appoint and remove at pleasure substitute(s) as attorney or attorneys under them and to delegate to any such substitute(s) all or any of the powers and authorities herein conferred on him in respect of the land.
(3) To execute all the powers herein stipulated either by themselves or through their agents so that the doctrine of delegatus non potest delegate shall not apply to this Power of Attorney?
(4) Generally, to do all such acts and things as maybe necessary or expedient in connection with the management of the land as I myself could do.
Of course, going by the evidence adduced at the Lower Court, the alleged Power of Attorney by Chief Mathias Udokoro Okafor to Osita Okafor was a fraud, as the same was a legal impossibility, having been allegedly made on 31/12/2004, over 9 months, after the death of Chief Mathias Udokoro Okafor, (alleged Donor), who died on 2/3/2004! The late Chief Mathias Udokoro Okafor could not have made and/or signed Exhibit C for one of his sons (Osita Okafor), from the grave, to donate powers to him (Osita Okafor) to manage the land in dispute and/or transfer or assign title therein to any person! Evidence shows that the parties were, indeed, in agreement that Chief Mathias Udokoro Okafor died on 2/3/04 and that Exhibit C was allegedly made on 31/12/04 by the late Chief Mathias Udokoro Okafor.
The trial Court had made findings to that effect and held that the Exhibit C was not made by late Chief Mathias Udokoro Okafor. The Court added:
“It also follows that if Exhibit C was not made by late Chief Mathias Udokoro Okafor and valid, Exhibits D and E which are dependent on it cannot also be genuine and valid, and the claims of the Claimant based on Exhibits C, D & E cannot succeed and fails, accordingly. I also find that the land in dispute was one of the properties that survived Chief Mathias Udokoro Okafor and formed part of his estate, on his death.” See page 402 of the Records of Appeal.
Surprisingly, rather than the Appellant admitting his misadventure, for allowing himself to be scammed by those who brought him into this scandal (of being sold a litigation), and instead of seeking to hand over those who defrauded him by means of the invalid Power of Attorney Exhibits C, D and E, to the Police, he (Appellant) came up with this appeal, trying to fault the sound reasoning and findings of the trial Court, but without appealing against the said findings! Of course, in law, a finding of Court not appealed against remains binding and conclusive. See Ebenighe Vs Achi (2011) 2 NWLR (Pt.1230) 65; Anioslina Vs State (2011) 14 NWLR (Pt.1268) 530; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; Nmanumeihe Vs Njemanze (2016) LPELR 40212 CA; Ogwudire Vs Obigwe & Anor. (2014) LPELR 23635 CA. Appellant did not also contest the decision that Exhibit C was not made by Chief Mathias Udokoro Okafor and that Exhibits D and E were invalid, being dependent on invalid Exhibit C.
It was also very clear that the same Osita Okafor (Osita Wilson Okafor), who procured the Exhibit C and used same to lure Barrister Emenolor and the Appellant into the land in dispute, had pleaded in other Suits pending at the High Court of Anambra State (O/506/2004 and A/190/2005) that, the land ? plot 21, Housing Area E, New Owerri Layout, Owerri, was part of the Estate of late Chief Mathias Udokoro Okafor, left behind by the deceased. (See Exhibits S and W). And the said Wilson Osita Okafor (or Osita Wilson Okafor) had earlier made Exhibit M, wherein he stated, by means of Public Notice in a National Newspaper, that the original documents, relating to some of his father?s properties, were missing and the properties listed included the land in dispute, Plot E21 Owerri, New Owerri Layout (Residential Area) Owerri, Imo State. Exhibit M taken out in the Daily Champion Newspaper of 19/1/05, was therefore strange, after he (Appellant) had, on 31/12/04, manufactured a power of attorney that the father had donated the said land to him, (after his death on 2/3/2004).
That was a very unintelligent fraud, in my opinion. I do not therefore see how I can fault the decision of the Learned trial Court in this matter. I do not also think it is necessary to discuss whether or not a Power of Attorney, automatically, comes to an end on the death of the donor, where the donee furnished no consideration for the Power of Attorney. In my opinion, such is inapplicable in this case, as the Exhibit C was not made by late Chief Mathias Udokoro Okafor, before he died. I do not also think it is necessary to discuss whether or not Chief Mathias Udokoro Okafor was an illiterate, in the circumstances.
It is, however, the law that a Power of attorney is not an instrument for transfer of title to land, and as such not usually a registerable instrument. It is a mere authority on the donee to act, at the pleasure of the donor, the donee being only an agent of the donor. See Ude Vs Nwara (1993) 2 SCNJ 47; Atuanya and Anor Vs Atuchukwu & Anor (2013) LPELR 22566 CA; Okpe Vs Umukoro (2013) LPELR ? 21999 CA; Nwaudo & Anor Vs Mba & Anor (2016) LPELR 40547 CA.
In the case of Chime & Ors Vs Chime and Ors (2001) LPELR 849 (SC), the Supreme Court held:
‘It is where a Power of Attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owed to the donee that it is irrevocable either by the donor, without the consent of the donee, or by the death, in capacity, bankruptcy, winding up or dissolution of the donor, so long as the donee has the interest or the obligation remains undischarged’ 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. But it is not irrevocable merely because the agent has an interest in the exercise of it. Per Iguh, JSC.
In the purported Power of Attorney (Exhibit C), which was declared invalid by the Lower Court, there was no valuable consideration given by the alleged donee, and the purported document was not for the purpose of effectuating any security or of protecting or securing any interest of the agent, to suggest it surviving the alleged donor, upon the death of the alleged donor. Of course, in this case, the Exhibit C was made after the death of the alleged Donor. I therefore resolve the issue against the Appellant and hold that the appeal is devoid of merit. It is accordingly dismissed.
Appellant shall pay the cost of this appeal assessed at Fifty Thousand Naira only (N50,000.00) to the Respondents.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother lTA G. MBABA J.C.A. I agree with his reasoning and conclusion. I have nothing more to add. I also dismiss the appeal and affirm the decision of the Court below. I abide by the consequential order made as to costs.
Appearances:
Chief S.N. Amadi For Appellant(s)
Olisa Ede Esq.For Respondent(s)
