IDEMUDIA v. IGBINOVIA
(2022)LCN/16834(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 28, 2022
CA/B/488/2019
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MR. ROBERT OSEMWENGIE IDEMUDIA APPELANT(S)
And
MRS. IRIOWEN IGBINOVIA RESPONDENT(S)
RATIO
THE POSITION OF LAW RELATING TO POWER OF ATTORNEY AND CONVEYING AN INTEREST IN LAW
In Murphis Burger Ltd V. Thomas & Ors (2019) LPELR – 47319 (CA) it was held:
“When dealing with the principles of law relating to power of attorney to convey an interest in law, the Court held in the case of Farmers Supply (KDS) V. Mohammed (2009) LPELR – 8196 (CA) thus “I agree, the Respondent conceded that a Power of Attorney is not an instrument that transfers or alienates any title. It is merely an instrument that delegates powers to the donee to stand in the position of the donor and do the things he can do. See Ude V. Nwara (supra) where the Supreme Court held as follows “A Power of Attorney – 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 authorized the donee to do any of these acts to any person including himself, the mere issuance of suit power is not perse an alienation or parting with possessions so far, it is categorized as a document of delegation.”
Per Obaseki Adejumo JCA who equally held that the decision cited above on the power of Attorney does not confer title.
Nnaemeka – Agu JSC held in Ude V. Nwara and Anor (1993) LPELR – 3289 (SC) as follows:
“A Power of Attorney merely warrants and authorizes the donee to do certain acts. In the steads of the donor and so is not instrument which confers, transfers, limits, charges or alienates 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 power is not perse 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 alienation.” PER BOLA, J.CA.
THE MEANING AND SCOPE OF POWER OF ATTORNEY
Then on the meaning and scope of power of attorney, this Court in Garba Chairman & Ors vs. Alhaji Abulkadir Rasheed (2014) LPELR-23594(CA) per Orji-Abadua, J.C.A., relying on Ude vs. Nwara (supra) held thus:
“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 278 page 638 at 665 where the Supreme Court, per Nnaemeka-Agu, JSC., 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. So, 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.” PER ORJI-ABADUA, J.C.A.
CONDITION THAT MUST BE PRESENT FOR PARTIES TO HAVE A VALID CONSENT JUDGEMENT
I may also add that “it is settled law that to have a valid consent judgment, the parties must be ad idem as to the agreement, and the terms of settlement must be filed in Court. It is the order of Court based upon the terms of settlement that is the consent judgment – See Woluchem v. Wokoma (1974) 3 SC. 153.” See also Afegbai v. A. G., Edo State & Anor (2001) 14 NWLR part 733 page 425. In the instant case, the alleged consent judgment was not filed in the Court and it was the document tendered as Exhibit D which purportedly conveyed the land in dispute to Mr. Abella Igbinovia. PER ORJI-ABADUA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State sitting at Benin City delivered in Suit No. B/02/2002 by E.O. Ahamioje J. on 8th November 2018.
Dissatisfied with the above judgment, the Appellant appealed to this Court vide his Notice of Appeal filed on 16th January, 2019, with the leave of this Court granted on 25/2/2022, the Appellant amended his Notice of Appeal.
The Appellant’s Brief of Argument settled by E.O. Afolabi Esq., was filed on 22/1/2020. The Respondent Brief settled by K.O. Obamogie was filed on 11/4/2022 but deemed filed on 01/06/2022. Briefs were adopted on 01/06/2022.
FACTS OF THE CASE
The Appellant’s (Claimant) case was that his late father – Mr. Osamwengie Idemudia was the original owner of the land measuring 100 feet by 100 feet out of which 50 feet by 100 feet is in dispute in this case. The Appellant stated that he inherited the property after his father’s death according to Benin Customary law. That the Respondent (Defendant) had no interest or title to the land.
On the part of the Respondent, it was her case that she traced her son’s title to the Claimant’s late father. She went on to say that the Claimant’s father transferred part of the land in dispute to his brother – Mr. Osemwowa. That at the death of Osemwowan Idemudia, his son Ifa Idemudia sold the property to one Hon. Johnson Osayande Osawe. That it was the said Hon. Johnson Osayande Osawe who later sold to her son-Abella Air Igbinovia.
Appellant’s issues for determination:
1. Whether by the Power of Attorney (Exhibit ‘B’) the Appellant’s Attorney had the power to sell or transfer the interest of the Appellant in the manner which Exhibit ‘D’ attempted to do.
2. Whether Exhibit ‘D’ which referred to Mr. Rufus Idemudia a co-owner without any reference to the other owner (if any) was, can validly transfer title and whether Mr. Rufus Idemudia had any partial ownership of the subject matter which he attempted to transfer to Mr. Abella Igbinovia Via Exhibit ‘D’
ISSUE NO 1.
On the definition of Power of Attorney, the Appellant’s Counsel referred to the following; BLACK’S LAW DICTIONARY, 9TH EDITION; Chairman & Ors V. Rasheed (2014) LPELR – 23594 (CA).
It was submitted that a Power of Attorney could not confer title on the donee or Attorney for which he may also transfer. He referred to the case Nwaudo & Anor V. Mba & Anor (2016) LPELE – 40547 (CA) where it was held that a Power of Attorney “is merely an instrument of delegation of power and not a means through which a donor alienates his interest.”
It was posited that for a donee of a Power of Attorney empowered to transfer title to be able to successfully transfer title for and on behalf of a donor, he must transfer in the name of the donor and not otherwise. Referred to the case Vulcan Gases Ltd V. G.F. Ind AG. (2001) 9 NWLR (Pt. 719) 610.
Counsel submitted that a Power of Attorney is a document of specific rights, authorities and obligation. Thus a donee cannot act outside the powers so donated. It was stated by Counsel to the Appellant that the powers donated to the attorney in the instant case are as contained in Exhibit ‘B’ on page 69 of the Record.
It was submitted that there was nowhere in Exhibit ‘B’ where the donee was empowered to transfer the title of the donor. That one does not give what he does not have. “Nemo dat quod non habet.” Reference was made to the case Vulcan Gases Ltd. V. G.F.I.G (2001) ALL FWLR (Pt. 53) 1 at 54.
Counsel equally referred to the Book “Property Law Practice in Nigeria”, Jos University Press Ltd, 2009, page 48 where it was stated that “where the donee is to execute a deed on behalf of the donor, then the appointment itself (the Power of Attorney) must be by deed, that is under seal.”
It was submitted that for a donee to be capable of executing any document of title (Exhibit ‘D’) the document empowering him to act (Exhibit ‘B’) must be by deed. That Exhibit ‘B’ in this case does not qualify as a deed. Refer to the case Abina V. Farhat (1938) 14 NLR 17 where it was held that a deed was unenforceable because the authority was not conferred by a deed.
It was reiterated that there was nothing in Exhibit ‘B’ empowering the donee to alienate the subject matter of the suit.
On Exhibit ‘D’, Counsel argued that a critical examination of Exhibit ‘D’ reveals that one Mr. Rufus Idemudia (The Claimants Attorney) signed the document as “CO-OWNER”. That this was a clear misrepresentation which renders the document void. Mr. Rufus Idemudia never had title over the subject matter. He was never a co-owner.
It was submitted that there was nowhere in Exhibit ‘D’ where it was stated that Mr. Rufus Idemudia acted for and on behalf of the Claimant. He simply signed for himself as co-owner.
Counsel urged the Court to resolve the issue in favour of the Appellant as Exhibit ‘B’ did not empower the attorney to transfer the subject matter, and Exhibit ‘D’ is void for misrepresentation.
Counsel urged the Court to allow the appeal on this issue.
On issue no. 2, it is whether Exhibit ‘D’ which referred to Mr. Rufus Idemudia as Co-owner without any reference to who the other owner (if any) was, can validly transfer title and whether Mr. Rufus Idemudia had any partial ownership of the subject matter which he attempted to transfer to Mr. Abella Igbinovia Via Exhibit ‘D’.
It was submitted that Exhibit ‘D’ could not validly transfer title to Mr. Abella Igbinovia. That for Exhibit ‘D’ to be a valid document, it must meet certain condition namely:
1. The Commencement
2. Parties
3. Recital
4. Operative part
5. Consideration and receipt clauses
6. Covenant for title
7. Words of grant
8. Description of the property
9. Habendum
10. Covenant of Indemnity
11. Testimonium
12. Execution and Attestation Clauses.
It was submitted that a careful look at Exhibit ‘D’ revealed that one Mr. Rufus Idemudia signed as Co-owner while Mr. Abella Igbinovia (Respondent) signed as the Assignee. Rufus Idemudia who signed as Co-owner was not proved to have any interest in the property.
It was contented that by Exhibit ‘D’ there was no evidence that Mr. Friday Eregbowa was directed by the Defendant’s son to sign on his behalf. He simply misrepresented himself as the Defendant’s son and signed as him. That misrepresentation is a ground for setting aside a transaction in law. See Offor V. Leaders Coy Ltd & Anor (2007)7 NWLR (Pt. 1032)1.
It was submitted that even a consent judgment may be set arise on the grounds of common mistake, fraudulent misrepresentation or misconception. See Vulcan Gases Ltd V. G.F. Ind. AG (supra).
Counsel urged this Honourable Court to resolve this issue in favour of the Appellant and allow this appeal. He equally urged the Court to set aside the judgment of the lower Court and in its place enter judgment for the Appellant as per his Amended State of Claim.
RESPONDENT’S BRIEF
The Respondent submitted a sole issue for determination.
Whether having regard to the state of the pleadings and evidence at the trial Court in relation to the incident of out of Court settlement by the parties, the trial Court was not right to have relied on the outcome of this said settlement in dismissing the Appellant’s suit.
It was submitted that parties to an action which is pending in Court are entitled to compromise or settle their dispute on whatever terms they may agree at any stage of the proceedings. He cited the case of Offor V. Leaders and Coy. Ltd & Anor (2007) 7 NWLR (Pt. 1032) 1 at 20, Salihu V. Ministry of Education, Gombe State (2017) 3 NWLR (Pt. 1551) 124 at 133-134, West African Portland Cement Plc. V. Oduntan & Anor (2007) LPELR – 9046.
Flowing from the above, it was argued that where parties were able to successfully and amicably resolve the issue in dispute between them, the implication is that the compromise or settlement thus reached constitutes a new and an independent agreement. The import of this is the concession by both sides to avoid the necessity of determining liability under the original claim before the Court. Refer to the case Obayiuwa V. Ede (1998) NWLR (Pt. 535) 670 at 678.
It was submitted that the Appellant having received the sum of N500,000 (Five hundred thousand Naira) on mutually agreed terms from the Respondent in full and final settlement of the Appellant’s claim, in the suit at the trial Court, that is suit no. B/02/2002, the Appellant abandoned his right to maintain his claim in the said suit against the Respondent. Furthermore, the lower Court no longer had the jurisdiction to continue to adjudicate on the Appellant’s original claim. Refer to the case of Minal Holdings Ltd V. Comptroller General Customs Service (2021) 8 NWLR (Pt. 1777) 188 where the apex Court held as follows:
“When a compromise agreement is brought to the notice of Court the agreement compromising the action between the parties completely supercedes the original cause of action and the Court has no further jurisdiction in respect of that action.”
It was argued that parties were in agreement in the action.
It was submitted that the Appellant’s submission at the probative value of Exhibit B (Power of Attorney) donated to the Appellant’s attorney, Rufus Idemudia and Exhibit ‘2’ Deed of Transfer made between the Appellant’s Attorney and the Respondent son were misconceived and untenable. That from the evidence of parties, their witnesses and exhibits tendered at the trial, the parties had reached an amicable settlement of the dispute between them the Appellant’s claim had been extinguished and the suit no more maintainable.
Counsel urged the Court to resolve the issue against the Appellant.
Against the background of the issues distilled by both parties and their submissions, this Court formulates the following issues for determination in this appeal:
1. Whether by the Power of Attorney (Exhibit ‘B’), the Appellant’s Attorney had the power to sell or transfer the interest of the Appellant in the manner reflected on Exhibit ‘D’
2. Whether Claimant (Appellant’s) Attorney could validly refer to himself as Co-owner on Exhibit ‘D’ and whether the said Attorney (Rufus Idemudia) had any interest which he could alienate in the disputed property.
3. Whether the parties successfully settled the matter amicably at the lower Court.
ISSUES 1 AND 2
Issues 1 and 2 are interwoven and shall be considered together for the purpose of resolving the pertinent question arising therefrom.
Mr. Robert Osemwengie Idemudia is the Appellant in this case. He sued through his lawful Attorney Mr. Rufus Idemudia. By paragraph 3 of the Amended Statement of claim, the Plaintiff. Robert Osemwengie Idemudia executed a Power of Attorney in favour of Mr. Rufus Idemudia. The said Power of Attorney is the document referred to as Exhibit ‘B’ in this action.
The said Rufus Idemudia (Claimant’s Attorney) testified as the Claimant in the lower Court and he tendered the Power of Attorney as Exhibit ‘B’.
It is noted that Exhibit ‘D’ (Deed of Assignment) dated 7/6/2006 was equally tendered through Mr. Rufus Idemudia (Claimant’s Attorney).
At the lower Court, Mr. Rufus Idemudia testified as follows:
“The Claimant’s Attorney, Mr. Rufus Idemudia adopted his sworn deposition on the 28/7/2016, wherein he stated that his late brother, Osemwengie Idemudia acquired the land in dispute from Ward 23/L Egua-Iyoba in Uselu Community measuring 100ft by 100ft vide an Oba Approval dated the 10/7/71, Exhibit “C”. That Osemwengie Idemudia later built a three (3) bedroom bungalow on a portion of the land measuring 100ft by 50ft. He stated that the deceased was buried in accordance with the Benin Native Law and Custom by the only surviving son, Robert Idemudia, the Claimant after which he inherited the property in dispute. He said that sometimes in 2001, the Claimant who resides in Germany visited Nigeria and discovered that the Defendant and her relations took over the house and were living therein. That before the Claimant left for Germany, he instructed him to institute this suit. He stated that after the case became six years old in Court, the Defendant approached him and his family to settle the matter out of Court. That during the meeting called to discuss the terms of settlement, an Agreement paper was presented to him which stated that he is the co-owner of the land and that he should sign and accept the sum of N500,000 Exhibit “D”. That when he informed the Claimant, he told him not to accept the N500,000.00 except it is N2. 5 Million. That as the Defendant failed to pay the balance sum of N2 Million, he refused to withdraw the case from Court. He finally urged the Court to grant the reliefs.
In answer to questions under cross-examination by K.O. Obamogie, Esq., the Claimant’s Attorney stated that on the 7/6/2006, he attended a settlement meeting held in the residence of the Odionwere, Chief I. Eboigbe as a representative of the Claimant, with CW2, the Okaegbe Uyi Odiase and the Defendant. That he received the sum of N500,000 as part-payment for the settlement of the suit of the sum of N2.5 Million. That he gave Mr. Eboigbe the sum of N50,000.00 as 10% commission and that he received the sum of N2,000.00 to file a Notice of discontinuance of the suit. He stated that he signed an agreement, Exhibit “D” in furtherance of the settlement. He said that apart from the dispute in this instant case, he has no other dispute with either the Defendant or her son. That he will be surprise to hear that Exhibit “D” before he signed same. That he is not a co-owner of the property. That at the conclusion of the settlement meeting there was entertainment. That he is still in custody of the N500,000.00 paid to him on the 7/6/2006.”
On page 166 of the Record, the lower Court held as follows:
“Having scrutinized Exhibit “D”, it is my view that same represents the compromise agreement or out-of-Court settlement reached by the parties which terms are binding on the Claimant. It is equally my view, that the Claimant’s Attorney cannot by his oral evidence vary the terms of Exhibit “D”, containing the terms of the compromise agreement reached by the parties. I therefore disbelieve the evidence of the Claimant’s Attorney that it was the sum of N2.5 Million that was agreed upon by the parties as the final settlement.”
On page 168, the lower Court in its judgment held:
“In the instant case, the evidence before the Court show indisputably that the parties in fact settled this matter and compromised the suit, though the parties did not file the usual terms of settlement but entered into an agreement, Exhibit ‘D’
Admittedly, Exhibit ‘D’ was inelegantly drafted but that did not affect its validity that the parties actually executed the agreement.”
The sum total of the evidence of Mr. Rufus Idemudia and the decision of the lower Court recapitulated above incline this Court to consider the first issue which is whether by the power of Attorney (Exhibit ‘B’) the Attorney (Rufus Idemudia) had the power to sell or transfer the interest of the land in the disputed land in the manner reflected on Exhibit ‘D’
In other words, can the Attorney Rufus Idemudia by the Power of Attorney transfer or alienate the interest of Robert Osemwengie Idemudia to Abella Igbinovia through Exhibit ‘D’. Does Exhibit ‘B’ (Power of Attorney) confer power on the Attorney to transfer land to Igbinova? Does Exhibit ‘B’ convey power to transfer interest in the land on Attorney Rufus Idemudia? The answer to the above question can only be derived from line of decisions in respect of the issue.
In Murphis Burger Ltd V. Thomas & Ors (2019) LPELR – 47319 (CA) it was held:
“When dealing with the principles of law relating to power of attorney to convey an interest in law, the Court held in the case of Farmers Supply (KDS) V. Mohammed (2009) LPELR – 8196 (CA) thus “I agree, the Respondent conceded that a Power of Attorney is not an instrument that transfers or alienates any title. It is merely an instrument that delegates powers to the donee to stand in the position of the donor and do the things he can do. See Ude V. Nwara (supra) where the Supreme Court held as follows “A Power of Attorney – 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 authorized the donee to do any of these acts to any person including himself, the mere issuance of suit power is not perse an alienation or parting with possessions so far, it is categorized as a document of delegation.”
Per Obaseki Adejumo JCA who equally held that the decision cited above on the power of Attorney does not confer title.
Nnaemeka – Agu JSC held in Ude V. Nwara and Anor (1993) LPELR – 3289 (SC) as follows:
“A Power of Attorney merely warrants and authorizes the donee to do certain acts. In the steads of the donor and so is not instrument which confers, transfers, limits, charges or alienates 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 power is not perse 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 alienation.”
It is equally pertinent to examine Exhibit ‘B’ the Power of Attorney and determine when it donated to the donee power to alienate the land in dispute or convey same to any other person. Exhibit ‘B’ states:
“ BY THIS POWER OF ATTORNEY made the 27th day of December, 2001. Mr. ROBERT OSENMWENGIE IDEMUDIA of Falken Street 18, 01067 Dresdem, Germany do hereby appoint MR. RUFUS IDEMUDIA of No. … Second (2nd) Eweka Street, Off Ekenwan Road, Benin City, Edo State of Nigeria as my true and lawful Attorney for me in my name and on my behalf to do and execute all or any of the acts and things following namely:
1. To take possession of property, a parcel of land measuring one hundred feet by one hundred feet (100 ft by 100 ft) situate and lying in Uselu Egua-Iyoba, Ward 23/L demarcated by blocks B.T.P B.B. No. 739-730.
2. To manage and superintend the management of the said parcel of land.
3. To warn off and prohibit and if necessary proceed against the appropriate Court of law all trespassers on the said parcel of land and to take appropriate steps whether by action or otherwise to abate all nuisance.
4. And generally to act as my attorney in relation to the said parcel of land and on my behalf to execute and do all acts and things as fully and efficiently in all respects as I would do.
IN WITNESS WHEREOF, I hereunto set my hands and seal this day and year first above written.
Assigned, sealed and delivered
By MR. ROBERT OSEMWENGIE IDEMUDIA.
In the presence of:
Name: Mr. John Idemudia
Address: No.2, Eboigbe Street, off Medical Store Road, Benin City.
Occupation: Estate Officer.
It is quite clear that the Power of Attorney does not authorize the donee to transfer, alienate or convey the land to another person. In Nwaudo & Anor V. Mba (2016) LPELR-40597 (CA), it was held that a power of Attorney is merely an instrument of delegation of power and not a means through which a donor alienates his interest.
There is nowhere in Exhibit ‘B’ where the donee is empowered to transfer or alienate the title of the donor. It cannot transfer interest in the land neither does its alienate the land in favour of the done. As it is said in Ekengwu V. Ekengwu (2018) LPELR-45070 (CA), the power of Attorney does not transfer interest in the land neither does it alienate the land in favour of the donee no matter how flamboyantly, the contents of the power of attorney was drawn. It is merely an instrument of delegation of power.
Exhibit ‘B’ is no more than an instrument of delegation of power. It does not transfer interest in land especially the Appellants land. It cannot be utilized to transfer the Appellants land to any person including Abella Igbinovia. Exhibit ‘B’ is not a Deed capable of affecting an alienation of land. Needless to say nothing is contained in Exhibit ‘B’ empowering the donee to alienate the subject matter of the suit.
The above conveys this Court to Exhibit ‘D’, the Deed of Assignment. In Exhibit ‘D’ Rufus Idemudia, the Appellant’s Attorney made the Deed of Assignment claiming to be a co-owner of a piece of land in Benin City on one hand and one Abella Igbinovia of Eboigbe Street, Benin City as the Assignee. By the Deed, Rufus Idemudia as “Co-owner” transferred the land in dispute to the Assignee Abella Igbinovia. It is significant to say that Exhibit ‘D’ never indicated who Co-owned the property with Rufus Idemudia. There is nothing in Exhibit ‘D’ revealing that Rufus Idemudia the supposed co-owner has any interest in the land? There is no doubt Rufus Idemudia has no special interest on the land other than being an Attorney of the Robert Osemwinge Idemudia. There is nowhere in Exhibit ‘D’ that Rufus Idemudia acted on behalf of Robert Osemwinge Idemudia.
Without doubt the claim of the Attorney of the Appellant as a co-owner is a misrepresentation. It has no element of truth. A misrepresentation is a representation that is false in substance and in fact. It is the act of making a misleading statement about something. See Sodeinde V. Allen & Anor (2018) LPELR-46782 (CA). It is clear the misrepresentation is capable of rendering the document – Exhibit ‘D’ void.
Exhibit ‘D’ cannot validly transfer little, just as Rufus Idemudia never derived any power or authority from Exhibit ‘B’ to alienate land to Abella Igbinovia via Exhibit ‘D’. The transfer made to him cannot stand in the circumstance against the backdrop that Rufus Idemudia had no capacity to transfer Robert Osemwengie’s landed property to Abella Igbinovia. Exhibit ‘B’ confer no such power or Rufus Idemudia. Exhibit ‘D’ consist of misrepresentation facts thereby rendering it void. It cannot validly confer title.
Exhibit ‘L’ (Oba of Benin’s Approval) establishes that the plot of land of which part is in dispute in this case was allocated to Osemwengie Idemudia on 13/9/1972 as revealed on page 67 of the Record and paragraph 6 of the Amended Statement of Claim. Rufus Idemudia who signed Exhibit ‘D’ as the co-owner of the dispute land has no title to the disputed land and by reason of his not being a co-owner or the owner of the land cannot validly transfer it. He cannot give what he does not own-Nemo dat guod non habet. Not even by Exhibit ‘B’ – Power of Attorney nor by Exhibit ‘D’. The invalid Deed of Assignment. Once again it is asserted that Exhibit ‘D’ consist of misrepresentation. A misrepresentation is a ground for setting aside a transaction in law. See Offor V. Leaders Coy. Ltd & Anor (Supra). By reason of this, Exhibit ‘D’ is void and cannot convey title.
It need be emphasized, that the supposed compromise or consent judgment was premised on the invalid Exhibit ‘D’. Can this compromise or consent Judgment of the lower Court stand in the face of misrepresentation and misconception that bedeviled Exhibit ‘D’? I refer to the case Vulcan V. Gases Ltd V. G. F. Ind. A.G (Supra) where the apex Court held in this regard:
“It is long settled that a consent judgment or order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of common mistake, fraudulent misrepresentation or misconception.”
This Court had held earlier that Exhibit ‘D’ is void against the backdrop of misrepresentation and therefore invalid. Flowing from this premises, nothing can be built on it by way of compromise or consent judgment. Any compromise so reached or judgment entered therefore cannot stand. It is subject to being set aside.
Arising from the foregoing, the matter at the lower Court could not be settled successfully based on the invalid and null and void documents Exhibit ‘D’. No settlement can be placed on a null act. One cannot place something on nothing. It cannot stay it will definitely collapse. The matter could not have been successfully settled by the parties at the lower Court on the basis of the above.
Flowing from the above and in the final analysis, all the issues raised by this Court are hereby resolved in favour of the Appellant against the Respondent.
Accordingly, this appeal succeeds. The judgment of the lower Court in Suit No. B/02/2002 between Mr. Robert Osemwinge Idemudia (suing by his lawful Attorney Mr. Rufus Idemudia) V. Mrs. Iriowen Igbinovia is hereby set aside.
Parties to bear their respective costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the advantage of reading before now the leading judgment in this appeal just delivered by my learned brother, Bola, J.C.A., and I must say that I am in complete agreement with his reasoning and resolution of issues therein.
The said power to transfer the interest of the Appellant, Mr. Robert Osemwengie Idemudia in the said parcel of land measuring 100ft by 100ft situate and lying in Uselu Egua-Iyoba, Ward 23/L demarcated by blocks B.T.P B.B. No. 730- 739 to Mr. Abella Igbinovia was allegedly derived from the document tendered as Exhibit B, the Power of Attorney executed by the Appellant in favour of his lawful attorney, Mr. Rufus Idemudia. The said Power of Attorney was made on the 26th December, 2001 in which the Appellant appointed the said Mr. Rufus Idemudia as his true and lawful attorney for him in his name and on his behalf to do and execute all or any of the acts and things enumerated therein. Power was delegated to him to execute certain specific acts.
By the evidence proffered before the lower Court, the Revocable Power of Attorney given to Mr. Rufus Idemudia did not transfer the interest in the said land to him. As Power of Attorney was described by Uwaifo, JSC., in Vulcan Gases Ltd case (supra), it is a formal instrument by which one person empowers another to represent him, or act in his stead for certain purposes. It may confer general or particular powers. By Exhibit B, the donee cannot exceed the power donated to him thereunder. The items listed in Exhibit B, did not include any power to alienate the land in question or convey title in the said property to a third party, rather it was an act by the donor to hand over the management or development of the property to the donee.
Then on the meaning and scope of power of attorney, this Court in Garba Chairman & Ors vs. Alhaji Abulkadir Rasheed (2014) LPELR-23594(CA) per Orji-Abadua, J.C.A., relying on Ude vs. Nwara (supra) held thus:
“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 278 page 638 at 665 where the Supreme Court, per Nnaemeka-Agu, JSC., 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. So, 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.”
By the above definition, it is clear that the revocable power of attorney given to the said Rufus Idemudia by the Appellant did not include power to alienate the said land, therefore, the said power of attorney could not have conveyed any title to the land in issue to the said Mr. Abella Igbinovia, that is to say; the said Rufus Idemudia could not have then conveyed that title to the Respondent’s son. He had no title to convey. As rightly Observed in the leading judgment of this Court, the said Rufus Idemudia could not have given what he did not have, nemo dat quid non habet. Therefore, Exhibit D, is a nullity and ought to be set aside.
I may also add that “it is settled law that to have a valid consent judgment, the parties must be ad idem as to the agreement, and the terms of settlement must be filed in Court. It is the order of Court based upon the terms of settlement that is the consent judgment – See Woluchem v. Wokoma (1974) 3 SC. 153.” See also Afegbai v. A. G., Edo State & Anor (2001) 14 NWLR part 733 page 425. In the instant case, the alleged consent judgment was not filed in the Court and it was the document tendered as Exhibit D which purportedly conveyed the land in dispute to Mr. Abella Igbinovia.
Be that as it may, I would, therefore, add that: “A consent judgment can be set aside on any ground which may invalidate an agreement on which it is founded, would be rescinded. When therefore, a consent judgment is sought to be set aside on the ground of fraudulent misrepresentation, the same principles apply as would apply were the action one for rescission of a contract. In Huddersfield Banking Co. Ltd. v. Henry Lister & Son, Ltd. (1895-9) All ER Rep 868 it was held that a consent order made by the Court to give effect to the compromise of a legal claim by the parties concerned can be set aside, not only on the ground of fraud, but for any reason which would afford a ground for setting aside the agreement on which the order was made, for example, on the ground of a common mistake regarding a material fact. In that case Lindley, ECJ, said: “The only thing, to my mind, to be done on this point of setting aside a consent judgment is to see whether the agreement upon which it was based can be invalidated or not. If the agreement cannot be invalidated, the consent order is good. If the agreement can be invalidated, the consent order is bad.” In Vulcan Gases Limited vs. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (2001) LPELR-3465(SC), the apex Court per Iguh, J.S.C., laid the grounds for setting aside a consent judgment. “It is thus clear that apart from fraud which, if established in any judgment or order, necessarily invalidates the same, a consent judgment or order may be set aside for cogent and sufficient reason which in law would constitute a ground for setting aside the agreement on which such consent judgment or order was based. As Lindley, L.J. put it in Huddersfield – Banking Company Ltd. v. Henry Lister and Son Ltd. (supra) at Page 871: – “A consent order, I agree, is an order, and so long as it stands, it must be treated as such, and so long as it stands I think it is as good an estoppel as any other order. I have not the slightest doubt on that point. But that a consent order can be impeached not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in more formal way than usual. I also have not the slightest doubt.” “It is long settled that a consent judgment or order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of a common mistake, fraudulent misrepresentation or misconception. See Attorney General vs. Tomline (1877) 7Ch. D. 388, Huddersfield Banking Company Ltd. v. Henry Lister and Son Ltd. (1895-99) All E.R. 868 (C.A.).” Then on whether a person affected by a null judgment/order is entitled to have it set aside, it stated that: “Similarly, an order, be it by consent or otherwise, which is a nullity is something which the person affected thereby is entitled to have set aside ex debito justitiae. The Court in its inherent jurisdiction has definite jurisdiction or power to set aside its own order or decision made without jurisdiction if such order or decision is in fact a nullity and an appeal in such circumstance cannot be said to be necessary. It can thus be said that outside the appellate procedure, a judgment or order can be set aside if it is a nullity or where a Court was misled into giving the judgment by some mistake, believing that the parties consented to its being given, whereas, in fact, they did not. See Craig v. Kanseen (1943) K.B. 256 or (1943) 1 All ER 108 at 113; Okoli Ojiako and Ors v. Onwuma Ogueze and Ors. (1962) 1 All NLR 58; Ekerete v. Eke 6 NLR 118.” See also Tomtec Nigeria Limited vs. Federal Housing Authority (supra), per Onnoghen, J.S.C. (as he then was) wherein it was held that: “It is settled law that Courts of record have the inherent jurisdiction to set aside their judgments/ decision/order, in appropriate cases or under certain circumstances which include: When: (i) the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties; (ii) the judgment is a nullity; (iii) it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it; (iv) the judgment was given in the absence of jurisdiction; (v) the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; (vi) where there is fundamental irregularity. See Igwe vs. Kalu (2002) 14 NWLR (Pt. 787) 436 at 453-454, Ebe vs Ebe (2004) 3 NWLR (Pt. 860) 215 at 243, Odofin vs. Olabanji (1996) 3 NWLR (Pt.435) 126 at 133.” The Supreme Court had clearly established that consent judgment can be set aside, the mode of initiating the proceeding for setting the same aside and the grounds upon which that can be achieved. This has obviously dislodged the argument of learned Counsel for the Respondent and then accentuated the contentions of the Appellants that the lower Court has the jurisdiction to set aside a consent judgment.” See Uchechukwu Ishmael vs. Emmanuel Ukaegbu (2018) LPELR-46626(CA), per Orji-Abadua, JCA.
In the light of the above, I too allow this appeal and hereby set aside the judgment of the lower Court. I abide by the further orders made in the leading judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read in draft the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. I am in complete agreement with the reasoning and conclusion reached by his Lordship. The evidence which stands unimpeached is that Exhibit “D”, the so called terms of settlement is a product of misrepresentation. It is therefore liable to be set aside, and is set aside. The setting aside of Exhibit “D” leaves the judgment of the lower Court without a leg to stand on.
The appeal is therefore allowed. I abide by the consequential orders made in the leading judgment inclusive of the order that parties bear their respective costs.
Appearances:
Emmanuel Olayiwola Afolabi For Appellant(s)
K.O. Obamogie, with him, F.O. Ohonbamu and Osahon Obamogie For Respondent(s)
