GARBA CHAIRMAN & ORS v. ALHAJI ABDULKADIR RASHEED
(2014)LCN/7122(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of April, 2014
CA/K/275/2012
RATIO
AGENCY: WHETHER AN AGENT ACTING UNDER A POWER OF ATTORNEY MAY BE DEEMED TO ACT IN THE NAME OF THE PRINCIPAL
The law is that an agent acting under a power of attorney should, as a general rule act in the name of the principal. If he is authorized to sue on the principal’s behalf, the action should be brought in the principal’s name.
It was enunciated in Vulcan Gases Ltd. v. G. F. Ind. A.G. (2001) 9 NWLR Part 719 page 610, per Iguh, J.S.C., that the donee of a Power of Attorney or an agent in the presentation of a court suit or action pursuant to his power must sue in the name of the donor or his principal and not otherwise. The proper Plaintiff in an action commenced by an Attorney pursuant to a power of attorney is the Donor of the Power of Attorney. See also Melwani v. Five Star Ind. Ltd. (2002) 3 NWLR (Pt.753) 217, where Ogundare, J.S.C., observed that:
“How an agent is to institute an action on behalf of his principal has just been considered by this court in a recent case, Vulcan Gases Ltd. v. G.F. Ind. Gasverwertung A-G. (G.I.V) (2001) 9 NWLR (Pt.719) 610. In the case, this court reviewed the ways an agency may arise. It was decided in that case that generally there is no statutory requirement in Nigeria that a power of attorney for an agent to sue or defend on behalf of his principal should be by deed. It was also decided that in the circumstances of that case, the lawful attorney of the plaintiff properly took out the action under common law and that the action was competently constituted. In that case, as in the instant case, the agent took out the action in the name of his principal. This case, on the issues under consideration, is on all fours with the Vulcan Gases Ltd. case. And on the authority of that case I hold that the action here was competently constituted. The agent, Mr. Adeniji, unlike the agent, Mr. Nahman in United Nigeria Company Ltd. v. Joseph Nahman & Ors. (2000) 9 NWLR (Pt.671) 177, sued in the name of his principal, Arjandas Hiranand Melwani. It is interesting to observe that Mr. Olojo, in oral argument, concedes it that the action as revealed by the caption is between A. H. Melwani and Five Star Industries Ltd. With this concession, it is difficult to argue that the action as constituted is incompetent. The Court of Appeal was in error when it held that the action was incompetently constituted.”PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES:
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
1. GARBA CHAIRMAN
2. MUMUNI MAI ANGWAN
3. ILLIYA WANZAN
4. ABDULLAHI MOHAMMED
5. GROUP CAPTAIN ABDUL GHALI
6. BURHANUDDEEN – Appellant(s)
AND
ALHAJI ABDULKADIR RASHEED – Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The plaintiff is an Estate Agent and the caretaker of Plots No’s .25 close 1 TPO 462B Malali N.E. Malali Kaduna covered by an offer of Grant/Regrant of Statutory Right of Occupancy KDL No 37061/8, belonging to Bakut Na’omi Mara (Mrs), Plot No. 27 close 1 TPO 462B Malali N.E Malali Kaduna covered by offer of Grant/Regrant of Statutory Right of Occupancy NO. KDL NO. 40679/11 belonging to Hadiza I. Saleh, Plot No. 34 Close 1 TPO. 462B Malali Kaduna covered by Certificate of Statutory Right of Occupancy No. KD.12420 dated 18/02/2002 belonging to Alh. Ilyasu Abdulkarim, Plot NO. 39 Close 1 TPO. 462B Malali N.E Malali Kaduna covered by Certificate of Statutory Right of Occupancy No. KD 17111 dated 8/7/2005 belonging to Adamu Jagaba, all the above plots been taking care of by the Plaintiff as their Estate Agent, at all times prior to the trespass committed by other persons unknown upon the authority of the Defendants.
It was averred he was given powers of Attorney in respect of the said houses. The allegation is that the 1st to 6th Respondents in the company of unknown persons encroached and trespassed on the said Plots under the Respondent’s care and cleared the bush and started excavating the ground for laying of foundation and walling the four Plots. The 5th Respondent purportedly purchased the Plots from the 1st – 4th Respondents without conducting due search as to the true owners of the plots. As a result of the encroachment, the 1st – 4th were arraignment before the Chief Magistrate Court at No. 9, at Daura Road, Kaduna in Charge No. KMD/156042009; Between: Abdulkadir Abdulrasheed vs. Garba Chairman & 3 Ors. In consequence thereof, the Respondent commenced a law suit against the Appellants and sought the following reliefs:
(a) A DECLARATORY ORDER of this Honourable Court that these Plots of land i.e Plot 25 Close 1 on TPO 462B Malali N.E. Malali Kaduna covered by Offer of Grant/Regrant of Statutory Right of Occupancy No. KDL 37061/8 belonging to Bakut Na’omi Mara (Mrs), Plot No. 27 Close 1 TPO 462B Malali N.E Malali Kaduna covered by Offer of Grant/Regrant of Statutory Right of Occupancy No. KDL 40679/11 belonging to Hadiza I. Saleh, Plot No. 34 Close 1 TPO. 462B Malali Kaduna covered by Certificate of Statutory Right of Occupancy No. KD.12420 dated 18/02/2002 belonging to Alh. Ilyasu Abulkarim, Plot No. 39 Close 1 TPO, 462B Malali N.E Malali Kaduna covered by Certificate of Statutory Right of Occupancy No. KD 17111 dated 8/7/2005 belonging to Adamu Jagaba, all the above Plots been taking care of by the Plaintiff as their Estate Agent, at all times prior to the trespass committed by other persons unknown upon the authority of the Defendants.
(b) AN ORDER of perpetual injunction against the Defendants, their agents, attorneys, servants and those claiming authority and or on behalf of the defendants jointly and severally from interfering with the possession of the Plaintiff’s caretaking the said Plots.
(c) AN ORDER of this Honourable Court restraining the Defendants from perfecting title, beneficial, tenurial and of whatever form in favour of any other person, corporate except to formalize and specifically to conclude the issuance of the Statutory Certificates of Occupancy in favour of the respective owners where applicable.
(d) AN ORDER of this Honourable Court DECLARING NULL AND VOID any other title in favour of any person(s) corporate including all the Defendants which covers or is superimposed on the each of the four Plots already vested in the respective owners (as aforementioned) and now being care-taken by the Plaintiff.
(e) AN ORDER of this Honourable Court setting aside ALL or ANY of title created in favour of any person, corporate or incorporate inclusive of all the defendants which Title runs contrary to the pre-existing and subsisting title of the respective allottees by the Bureau For Lands And Survey, Kaduna
(f) The cost of this suit.”
The 1st to 4th Respondents filed their Joint Statement of Defence on the 15th September, 2009. It seems to have been dated the 7th September, 2009. It has another date of 29/9/09 with apparently, Receipt No. 030904. Then, via the Motion on Notice dated 1/6/2010 and filed by the 5th and 6th Defendants on the 23rd June, 2010, extension of time was granted to them on 30/6/2010 to file their said 5th and 6th Defendants’ Statement of Defence out of time and the same was deemed as properly filed and served.
The 5th Defendant, i.e., the 5th Appellant herein counter-claimed against the Plaintiff, that is, the Respondent, thus:
“(a) The sum of N1,000,000.00 as general damages for loss of use of the money earmarked for the development of the disputed part of the farmland and the loss of value/depreciation in value of the said money from 2009 to date.
(b) 10% interest on the judgment sum until same is fully liquidated.
(c) Cost of this Counter-Claim.”
After the hearing conducted by the lower Court, judgment was delivered in the suit on the 25th April, 2012 in favour of the Respondent. All the reliefs sought by him, were granted by the lower Court, thus:
“In the present case, the Plaintiff is relying on Certificate of Occupancy and a grant. The defendants denied that the area in dispute is part of the Malali layout and averred that the Plaintiffs had no valid titles.
It is trite that a Certificate of Occupancy issued by the appropriate authority and duly registered is at least prima facie evidence of title and raises the presumption that its holder possesses such title. See Kyari vs. Alkali (2001) 11 MDLR Part 724 page 412; Ngene vs. Chike Igbo & anor (2006) 4 NWLR 131 and Magaji vs. Cadbury Nig. Ltd (1963) 2 NWLR Part 7 page 394. From the above, there is a presumption that Exhibits 1A, 1B, 1C and 1E have given the titles stated to the holders. In the present case, a staff of the issuing authority i.e. Ministry of Lands and Surveys testified as D.W.7. He confirmed that the said Exhibits were issued by them and that the holders had titles in Malali North East layout over Plots 25, 27, 34 and 39 of Close 1.
The Court visited the Plots and the Plaintiff showed the Court Plot 23 which was immediately before the disputed land. He showed the Court that the Plots on that side were numbered odd numbers while the Plots on the opposite side were numbered even numbers. Indeed the Plaintiff showed us Plots 28 and 30 which were numbered and located just where they should be opposite the disputed Plots as per the sketch maps attached to the Plaintiff’s Exhibits which are the same and which DW7 identified as the correct sketch map for the area. One of the beacons was found which clearly showed the locations of the block up to the end of the road I.
The beacons on Plots 25, 27 and 39 were said to have been demolished when the defendants moved a tractor to the area to clear the land. The defendants admitted hiring a tractor to clear the area.
From the above, I am satisfied that the Plaintiff has proved the claims before the Court prima facie.
Defendant’s case: the evidential burden shifted to the Defendants to disprove this by showing that they were customary owners before the grant to the Plaintiff’s principals who were not compensated and whose interests were not properly revoked.
It is trite that for an acquisition to be lawful certain conditions must be fulfilled.
1. There must be a notice of acquisition duly signed and served on the customary or other land owner in accordance with the law.
2. The acquisition must be for public purpose or overriding public interest.
3. Compensation must be paid.
See sections 28, 29, 44 and 54 of the Land Use Act, section 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) Provost vs. Edun (2004) 4 MJSC 94 at 99 – 101; Ononuju vs. A.G. Anambra (2009) 8 SCM 143 at 163, paragraphs D-F where in the last case cited above the Supreme Court Emphatically said:
“…….it follows that no one, including the government can deprive a holder or occupier of a parcel of land unless the land is acquired for overriding public interest or for public purpose by the Local Government or State Government. Section 28(4) of the said Act, payment of compensation is also a condition precedent to the validity of such acquisition. See Ogunleye vs. Oni (1990) 2 NWLR Part 135 Page 745.”
In the present case’ it is the case of the defendants that the government had compensated for all the properties they acquired but their farms were not compensated. On the one hand the defendants stated that 1st and 2nd defendants farmlands were not acquired because they were excavation sites. On the other hand they said the said persons were farming on the land.
Throughout the pleadings and evidence, the defendants particularly the 1st defendant did not show any root of title. He did not even say how he acquired the land either by inheritance, sale, grant etc. he never gave any description of the land. No neighbouring lands were described. No dimensions, no maps no features that could identify his land with all certainty. In fact the 1st and 4th defendants talked of the 1st and 2nd defendants and others as owning lands in the area but nothing was said about the location or specific identity of the 1s’t defendant’s land.
Learned Counsel to the defendants raised the issue of compensation in his address probably based on the evidence of DW7 under cross examination that some land owners in the area resisted the acquisition of further lands in the area so there was no assessment for those areas.
With all due respect to learned Counsel, this was not the defence of the 1st to 4th defendants. They stated that in paragraphs 3A and B of their pleadings:
“Sometimes between 1993 – 1995 the Kaduna State Government created a layout at Malali and all farm owners whose farmlands were in the layout were paid compensation. The area of farmlands belonging to the 1st and 2nd defendants and other persons that were not included in the layout was left to them. The 1st – 4th defendants shall rely on the layout made by the Kaduna State Government at the trial of this suit and same is hereby pleaded.”
In the circumstance the only question to be asked is if the area in dispute is within the layout No. 257 TPO 462B Malali N.E. The answer is clearly yes as can be seen from all documentary evidence before the Court, evidence of P.W.1, admission of DW7 and physical inspection by the Court.
The question of compensation therefore does not arise.
On the whole, the Plaintiffs claim succeeds and all the reliefs are granted. The counterclaim fails and is dismissed.”
Following the judgment, the Defendants lodged an appeal against the same which was based on two grounds of appeal. Their Briefs were filed and exchanged by the parties. The Appellants in their Brief of Argument prepared by their learned Counsel, Emeka Ogbonaya Esq; raised two issues for consideration by this Court. They read thus:
“1. Whether by the operation and combined effect of the provisions of sections 3, 4 and 5 of the Land Instrument (Preparation) Law Cap 84 of Kaduna State and Sections 2, 3(2), 8(1), 14, 15, 17(1), (2) and (4) and 24 of Land Registration Law Cap 85 of Kaduna State the Plaintiff (Respondent) had the locus standi to institute this action thereby vesting the lower Court with jurisdiction to entertain the suit (Ground 1).
2. If the answer to issue 1 is in the affirmative, whether having regard to the state of pleadings, oral testimonies and documentary evidence before the lower Court, the Plaintiff had discharged the burden of proof on him as to entitle him to judgment and grant of the relief he sought. (Ground 2).”
The Respondent distilled three issues for determination whereas only two grounds of appeal were raised in the Appellant’s Notice of Appeal, the issues propounded via his learned Counsel, Y.A. Gbadamosi Esq, are as follows:
“1. Whether there is/are feature(s) in the suit which should prevent the learned Trial Judge or the High Court from exercising jurisdiction in this matter.
2. Whether having regard to all the pleadings, oral and documentary evidence adduced and surrounding circumstances of this case, the Respondent should not succeed in the Court below.
3. Whether having regard to all the circumstances of this case, the Learned Trial Judge properly evaluated all the evidence adduced in this case before arriving at His decision.”
It was submitted on behalf of the Appellant that the Respondent has no locus standi to institute the action by virtue of sections 3, 4, and 5 of the Land Instrument (preparation) Law Cap 84, Laws of Kaduna State, and sections 2, 3(2), 8(1), 14, 15, 17(1) (2) and (4) of the Land Registration Law Cap 85 Laws of Kaduna state therefore, the lower Court lacked the jurisdictional competence to entertain the same. He relied on Chief Agu and anor vs. Peter Adeboye Odofin and anor 1992 3 SCNJ 161 at 168 lines 26 – 32 and Madukolu vs. Nkemdilim (1962) 2 ALL NLR 581 at 589 -590. He referred to Exhibits 2A, 2B, 2C, 2D, and 2F representing the Powers of Attorney allegedly given to him by Bakat Na’omi Mara (Mrs), Hadiza I. Saleh, Alh. Ilyasu Abdulkarim, Adamu Jagaba and Alh. Rabin Dansharif and which contains, also, the powers to take full benefit of the properties, obtain new Certificate of Occupancy in his name and to sue or defend any action affecting the properties.
He submitted that Power of Attorney is an instrument affecting Land by sections 3 of the Land Instrument (Preparation) Law Cap, 84, Laws of Kaduna State and sections 2 and 3(2) of Land Registration Law, Cap 85 of Kaduna State. He further referred to sections 4 and 5 and 17(1), (2) (4) and 5, and 17(1), (2) and (4) of the Land Instrument (Preparation) Law and contended that there is nothing on the faces of the documents to show they were issued by a Legal Practitioner and there were no endorsement of any name or address as required. Also no certification as required by section 17(2) and (4) of the Land Registration Law thereon. He further stressed that there is nothing to show that the fees were paid and that the instruments were registered. There was no assessment on the face of the documents by the Commissioner For Stamp Duties of Stamp Duties fees to be paid. It was further contended that Exhibits 2A, 2B, 2C, 2D and 2F offended sections 14 and 15 of the Kaduna State Land Registration Law as they were not registered within six months from their dates, therefore, they are null and void and ought to be expunged. He further argued that Exhibit 2C purportedly donated by one Alh. Ilyasu Abdulkarim was registered, the registration is incapable of curing the defect since it was not executed by him in the presence of a Magistrate or Justice of the Peace as a witness thereto.
Learned Counsel, also, referred to section 8(1) of the Land Registration Law of Kaduna State. He pointed out that Exhibits 2D and 2F referred to the same property, i.e. 39 Close 1, but the donees were the Respondent and one Alh. Rabin Dansharif. In Exhibit D; Alh. Rabin Dansharif was the donee, whereas in 2F the Respondent was the donee and no explanation was given in that respect. lt was further explained that the date on which it was purportedly sworn to was mutilated, though the Commissioner inserted the latter date of 20/7/09, meaning, the Respondent could not have used it legally as he was not the donee for Plot No. 39 Close 1. Only Exhibit 2F dated 13/5/09 and 20/5/09 purportedly has him as the donee.
It was further stressed that none of the Powers of Attorney had any date of sealing or executions, that all of them were incompletely executed. Learned Counsel then argued that the Respondent could not prove his capacity and authority to institute the action. He then urged that issue No. 1 be answered in the negative.
With regard to issue No. 2, he strongly contended that the Respondent did not discharge the burden of proof on him as stated in the case of Shasi & anor vs. Smith & 2 ors (2010) All FWLR Part 813 page 1231 at 1243 paragraphs C-D. He stressed that the trial Court did not thoroughly evaluate the evidence adduced before it by the Appellants particularly the challenge by the Appellants to the Certificates of Occupancy mentioned in their Witness Statements on Oath as Exhibits 1A, 1B, 1C, and 1D. He stated that the depositions were not impugned undercross-examination and, as such, the Court ought to ascribed probative value to the same. He argued that the issuance of the Respondent’s Certificate did not follow any due process in that there was nothing to show there were applications by the alleged donors of the Power of Attorney, too, there was no evidence that possession in the said properties was granted to them or that they had been paying the ground rents and had performed acts of ownership.
They did not testify as to how they were given the grants in view of depositions of D.W.1- D.W.4, that there were no proper grants to them since there was no Notice of Revocation and no evidence of payment of compensation. There were also no endorsement on the Certificates of Occupancy evidencing assessment of Stamp Duties and payment of the same. He stated that the defence showed in the pleadings, adopted Witness Statements on oath, and, their testimonies, that they have been in possession for long, and, that the layout was created between 1993 and 1995. He submitted that the trial Court’s remarks and conclusion at page 180 of the record did not flow from the evidence before the Court. He then urged the Court to allow the appeal and set aside the judgment of the High Court of Kaduna State delivered on 25/4/2012 in suit No. KDH/KAD/597/2009, strike out the suit for lack of jurisdiction or dismiss the Respondent’s claims for lacking in merit.
Y.A. Gbadamosi Esq, learned Counsel for the Respondent submitted in respect of the first issue presented by the Respondent, that is to say; ‘Whether there is/are feature(s) in the suit which should prevent the learned Trial Judge or the High Court from exercising jurisdiction in this matter.’ He contended that the Donors of the Powers of Attorney fully complied with the stated provisions of the Land Instrument (preparation) Cap. 57 and Land Instrument Registration Law, Cap. 58. He submitted that an Irrevocable Power of Attorney is not a document of title. It does not confer title in the property in issue on the Donee, but a clear evidence or confirmation of the fact that the title to the land in dispute resides in the Donor of the power. He relied on Ezeigwe vs. Awudu (2008) 11 NWLR Part 1097 page 158 at 176, per Onnoghen, J.S.C. He further cited the cases of Madu vs. Nbakwe (2008) 10 NWLR Part 1095 Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR 83 at page 126 paragraphs A-C; Part 1157; Irene Thomas & Ors vs. Olufosoye (1986) 1 NLR Part 18669 page 684 – 685; Shobo gun vs. Sanni & Ors. (1974) 11 S.C. 35; Nelson Amadi vs. Mene Ijiriegbo (1960) 5 FSC 97; Nigerian Farmers and Commercial Bank Ltd vs. Oladipo Moore (1959) LLR. 46., and Fadiora & Or vs. Gbadebo & anor (1978) 1 LRN 97 at 109; Abaye vs. Ofili (1986) 1 SC 231 at 269 – 270 and submitted that the Respondent has the locus to institute the action. He stated that the averments of the Respondent and his evidence that he is the Plaintiff by virtue of being the caretaker and Estate Agents of the owners of the four plots in dispute, proved that he had the locus and the lower Court had the jurisdictional competence to hear the suit.
He also made reference to Order 13 Rule 2 of the Kaduna State High Court (Civil Procedure) Rules, 2007 and argued that the Appellants did not challenge the Respondent’s capacity to sue in their Statement of Defence at the Court below and ought to have applied to the Court to strike out the Respondent from the proceedings.
Regarding issue No. 2, learned Counsel referred to the Witness Statement on Oath of the Respondent on how he was appointed Attorney, how the Appellants started their trespass and the steps taken, Exhibits 1A, 1B, 1C, and 1D and which said Certificates of Occupancy were confirmed by D.W.7 and pages 166 and 151 – 154 of the record. He stated that the Respondent proved his case to the satisfaction of the Court and as established by long line of land cases. Counsel submitted that where two parties make conflicting claims on the same land, possession being disputed, the land ascribes to the person that can prove better title to the land in dispute. He made reference to the cases of Provost vs. Edun (2004) 4 MJSC 94 at 106 paragraphs B, S.O.; Adole vs. Boniface B. Gwa (2008) 4 SCNJ at 20; Kodinlinye vs. Odu (1935) 2 WACA C.J. pages 337, 338; Fagunwa vs. Adibi (2004) 12 NIJSC 1 at 27 – 28; Emegwara & Ors vs. Nwaimo & Ors (1953) 14 WACA, 34; Amandi vs. Chinda (2009) 38 NSCQR 344 at pages 368 -369 and Dabo vs. Abdulahi (2005) 5 MJSC 57 at 82 paragraphs F – G. He also referred to the evidence of DW1- DW4 and DW5 – DW6 and pages 72, 99, 155 – 161 and 162 – 167 of the record and submitted that the Appellants were unable to prove anything. He referred to the comments of the lower Court and stated that the Respondent discharged the onus on him.
On issue No. 3, learned Counsel persuaded that the Appellants’ Counsel’s argument thereon should not be countenanced as the entire argument are all new and fresh issues not pleaded or contested at the trial Court. Learned Counsel referred to the cases of E.A. Industries Ltd. vs. Newfound (2009) 8 NWLR Part 535 Part 1144 at page 565 paragraphs H-G; Adeyeye vs. Ajiboye (1987) 3 NWLR Part 61 page 432 at 451; Abidoye vs. Alawode (2001) 3 SCNJ 40 at 49; and Kodinlinye vs. Odu (1935) 2 WACA 336, 337; Mogaji vs. Odofin (1978) 4 SC 91, and various pages of the record of appeal and stated there were no features occasioning miscarriage of justice in the case. He urged that the Appeal be dismissed with substantial costs.
I have carefully studied the issues distilled by the Appellants for determination by this Court, they emanated from the two grounds of appeal stated in their Notice of Appeal.
By the first issue, the Appellants are challenging the locus standi of the Respondent to have instituted the action against them in the light of the provisions of sections 2(2), 3, 4, and 5 of the Land Instrument (Preparation) Law Cap. 84 of Kaduna State and sections 2, 3(2),8(1), 14, 15, 17(1), (2) and (4) and 24 of the Land Registration Law Cap. 85 of Kaduna State. It ought to be remembered that locus standi is the competence of a Plaintiff to commence an action in Court. Where the plaintiff lacks the locus standi or his standing in law to institute the action, the trial Court is robbed of the jurisdiction to entertain and determine the suit. It is absolutely imperative for the Plaintiff in an action to state the capacity in which he instituted the action because he must be competent in the first place to have done so.
As rightly observed by the Respondent’s Counsel, this issue was not canvassed before the trial Court, but, that notwithstanding, an objection to locus standi touches on the jurisdiction of the Court. The issue of locus standi of the Plaintiff is fundamental to the exercise of the judicial powers conferred on the Court. See Ironbar vs. Federal Mortgage Finance (2009) 15 NWLR Part 1165 page 506 where it was opined that a defendant cannot be held to have waived his right to object to the locus standi of the Plaintiff merely because he did not raise it in the trial Court. This is because the issue of locus of the plaintiff is fundamental to the exercise of the judicial powers conferred on the court. See C.C.B. Nig. Ltd vs. Mbakwe (2002) 7 NWLR Part 765 page 158. Cases abound that issue of locus standi is so fundamental that where a party to a suit lacks the standing to institute an action, the matter shall automatically come to an end because the Court shall be without jurisdiction and cannot be competent to proceed further and consider the merit or otherwise of the action.
It is trite that locus standi being an issue of jurisdiction can be raised at stage or level of the proceedings in a suit even at the Court of Appeal by any of the parties without leave of Court or the Court suo motu. See Ajayi vs. Adebiyi (2012) LPELR-7811 (SC) where the apex Court expressed, per Adekeye, J.S.C., that locus standi is a threshold issue and it is not limited to being raised as a special defence and pleading it specifically as required by the Rules of Court. It transcends any High Court Rules and it can be raised by preliminary objection at any stage of the case.
This has rendered impotent the argument of Learned Counsel for the Respondent that since the Appellants did not join any issue with the Respondent on his capacity to sue, they are precluded from raising the same on appeal, before this Court. Locus standi of a party to sue is the fabric of the jurisdiction of any Court and, as such, it is wrong to characterize it as a technical issue. The Respondent, clearly stated and highlighted the capacity in which he commenced the said action. He averred that he instituted the action as an Estate Agent and Caretaker of the Plots enumerated in his pleading belonging to the within-named owners at paragraph 5 of the Statement of Claim.
It must be noted that legal requirements for a Power of Attorney are totally different from the capacity of the Respondent to institute the action. Power of Attorney is described in the Black’s Law Dictionary, 9th Edition as an authority to act as agent or attorney in fact for the grantor. See the case of Ude vs. Nwara (1993) 2 NWLR Part 277 page 638 at 665 where the Supreme Court held that “A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of donor, and so, is not an instrument which confers, transfers, limits, charges or alienates any title to the: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of donor to a third party. 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. It is categorized as a document of delegation, it is only after, by virtue of the Power Attorney, the donee leases or conveys the property, the subject of the power, to any person including himself, then there is an alienation.
In Abubakar vs. Waziri (2008) NWLR Part 1108 page 507, and relying on Vulcan Gases Ltd vs. G.E. Ind. A.G. (2001) 9 NWLR Part 719 page 610 at 664 and Ossai vs. Nwatide & anor (1975) 4 S. C. 207, the Supreme Court, per Aderemi J.S.C., held that Power of Attorney as it relates to land or landed property must be registered.
Section 2 of Land Registration Law, Cap. 85, Laws of Kaduna State, 1991 provides that Instrument is defined as meaning:
“A document affecting Land whereby are party (hereinafter called the grantor) confers, transfer, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land, and includes a Certificate of Purchase and a Power of Attorney under any instrument may be executed, but does not include a will.”
The law has by the aforementioned section fixed and circumscribed the meaning of instruments, it used the word “includes” to assert that the instruments are not limited to the ones listed in the definition, but embraces any document that confers, transfers, limits, charges or Extinguishes interest in land. It distinctly mentioned Power of Attorney as an instrument. It is the law that any Instrument is registerable and where an instrument is not registered, it has the following effects:
(a) It cannot be pleaded
(b) Even if pleaded, it is inadmissible in evidence as proof of title, and,
(c) The Courts cannot give effect to it to transfer interest in land.
See section 15 of the Land Registration Law, Cap. 85, Laws of Kaduna State. It may, however, serve as a proof of payment of money with the effect of creating equitable interests in favour of the person making the payment because he has acquired an equitable interest in the land which is as good as a legal estate and the equitable interest can only be defeated by a purchaser for value without notice of the prior equity and such registrable instrument can be admitted to prove such equitable interest and the payment of purchase money or rent.
Further, by sections 19 and 22 of the Stamp Duties Act, Cap. 58, Laws of the Federation of Nigeria, an unstamped instrument will not be admissible as evidence in Court. However, a Court, Arbitrator or Referee may permit a defaulter to pay all unpaid duties and penalties on an instrument to enable him to formally tender it in evidence. See section 22 of the Stamp Duties Act.
In the instant case, the Respondent and his Counsel have only themselves to blame for defaulting in the payment of the assessed Stamp Duty. Section 15 of the Land Registration of Kaduna State clearly provides that no instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in section 3. Section 3 stipulated that there shall be a land registry with an office or offices at such place or places as the Commissioner may from time to time direct. The registry shall be the proper office for the registration of all instruments including Powers of Attorney affecting land.
It is clear in the foregoing that section 3(2) of the Land Registration Law, Cap 85, Laws of Kaduna State of Nigeria, 1991 mandated all instruments including Power of Attorney affecting Land to be registered. A Registrable Instrument which is not registered cannot be pleaded and if plead, it is not admissible in evidence, but where through inadvertence it was admitted it should be expunged. See also Akindeino vs. Alaya (2007) 15 NWLR Part 1057 page 312 per Aderemi, J.S.C., where it was held that an unregistered document affecting land must not be pleaded and neither is it admissible in evidence.
I have deeply perused the documents respectively titled Power of Attorney given by Mrs. Bakut Na’omi Mara, Hadiza I. Sale, Alh. Ilyasu Abdulkarim and Adamu Jagaba respectively to the Respondent and one Alh. Rabiu Dansharif, and, tendered as Exhibits 2A, 2B, 2C and 2D respectively, and, could not observe any fact evidencing their registration at the Kaduna State Land Registry or the payment of Stamp Duties in their respect.
These documents titled “Power of Attorney” were mandated by the Kaduna State Land Registration Law to be registered as instruments. The Law imposed a sanction that where they were not registered, they shall not be pleaded but even where pleaded they shall not be received in evidence. If they were inadvertently received in evidence, they should be expunged. It was these unregistered Powers of Attorney that delegated the powers of the original owners of the Lands in question to the Respondent to act as their agents or their attorney. By law these documents were inadmissible, they should not have been received in evidence and relied upon by the lower Court to prove the power of the Respondent in instituting the action. Since they were not registered, they were inadmissible by virtue of section 15 of the Land Registration Law of Kaduna State, and having been inadvertently admitted this Court would invoke its powers under section 15 of the Court of Appeal Act to expunge the same. Accordingly, Exhibits 2A, 2B, 2C and 2D are hereby expunged for being Statutorily inadmissible. Since the documents that authorized the Respondent to sue on behalf of the original owners were not registered, he does not seem to have had the locus to have instituted the action as their attorney or their caretaker, therefore the proper order to make is that of striking out the claim filed by the Respondent as the caretaker or Attorney of the original owners of the said properties. It may also be necessary to observe too, that the Respondent instituted the said suit in his personal name and not in the respective names of the Donors in respect of each plot of Land. The law is that an agent acting under a power of attorney should, as a general rule act in the name of the principal. If he is authorized to sue on the principal’s behalf, the action should be brought in the principal’s name.
It was enunciated in Vulcan Gases Ltd. v. G. F. Ind. A.G. (2001) 9 NWLR Part 719 page 610, per Iguh, J.S.C., that the donee of a Power of Attorney or an agent in the presentation of a court suit or action pursuant to his power must sue in the name of the donor or his principal and not otherwise. The proper Plaintiff in an action commenced by an Attorney pursuant to a power of attorney is the Donor of the Power of Attorney. See also Melwani v. Five Star Ind. Ltd. (2002) 3 NWLR (Pt.753) 217, where Ogundare, J.S.C., observed that:
“How an agent is to institute an action on behalf of his principal has just been considered by this court in a recent case, Vulcan Gases Ltd. v. G.F. Ind. Gasverwertung A-G. (G.I.V) (2001) 9 NWLR (Pt.719) 610. In the case, this court reviewed the ways an agency may arise. It was decided in that case that generally there is no statutory requirement in Nigeria that a power of attorney for an agent to sue or defend on behalf of his principal should be by deed. It was also decided that in the circumstances of that case, the lawful attorney of the plaintiff properly took out the action under common law and that the action was competently constituted. In that case, as in the instant case, the agent took out the action in the name of his principal. This case, on the issues under consideration, is on all fours with the Vulcan Gases Ltd. case. And on the authority of that case I hold that the action here was competently constituted. The agent, Mr. Adeniji, unlike the agent, Mr. Nahman in United Nigeria Company Ltd. v. Joseph Nahman & Ors. (2000) 9 NWLR (Pt.671) 177, sued in the name of his principal, Arjandas Hiranand Melwani. It is interesting to observe that Mr. Olojo, in oral argument, concedes it that the action as revealed by the caption is between A. H. Melwani and Five Star Industries Ltd. With this concession, it is difficult to argue that the action as constituted is incompetent. The Court of Appeal was in error when it held that the action was incompetently constituted.”
Also, in Ntia v. James (2007) ALL FWLR (Pt.351) 1600 at 1612 Paras. D – F (CA), it was held by this Court that even though as an agent Emmanuel Jones has stepped into the stead of his principal i.e APICO in this matter by the authority of the Power of Attorney, the Locus Standi to sue still resides in his principal i.e in this case the APICO so that the agent must necessarily sue in the name of his donor or principal and not otherwise, per Chukwuma-Eneh J.C.A.(as he then was). See also, the case of United Nigeria Co. Ltd. v. Nahman (2000) 9 NWLR Part 671 page where Sanusi, J.C.A., referring to the learned authors of Halsbury’s Laws of England, 4th Edition clause 4 page 447 paragraph 744 expressed : “An agent acting under a power of attorney should, as a general rule act in the name of the principal. If he is authorized to sue on the principal’s behalf the action should be brought in the principal’s name.
It is clear in the Writ of Summons and Statement of Claim filed by the Respondent that the suit commenced by him at the lower Court was commenced in his personal name and not in the names of the Donors of the Powers of Attorney. He ought to have presented the suit in the names of those Donors as he has no locus whatsoever to institute the action in his own personal name. The proper plaintiff was not before the lower court and where the locus standi is lacking, the action is incompetent and the court lacked the jurisdiction to entertain it in the first place. Since the issue of locus standi borders on the jurisdiction of the lower Court to have entertained the action, this appeal is hereby allowed, and the judgment of the lower court is hereby set aside. Accordingly the action filed by the Respondent before the Kaduna State High Court on 5/8/09 in suit No KDH/KD/597/2009 is hereby struck out for want of competence to sue. I make no order as to Costs.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of her Lordship Orji-Abadua JCA. I abide by the consequential orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions in the lead judgment.
Appearances
Emeka Ogbonaya, Esq. For Appellant
AND
Y. A. Gbadamosi Esq. For Respondent
