MR. ALFRED AJAYI RAINE V. MR. MACDONALD ODIBO & ANOR. (2012)

MR. ALFRED AJAYI RAINE V. MR. MACDONALD ODIBO & ANOR.

(2012)LCN/5130(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 7th day of February, 2012

CA/PH/77/2002

RATIO

INTERPRETATION OF STATUTE: THE GENERAL RULE OF INTERPRETATION

The Abandoned Properties Act is a law that was enacted to deal with properties whose owners were not known after the civil war in the country. The law is applicable within the Rivers State and it is therefore a statute subject to the general rules or interpretation. The general rule of interpretation which is sometimes called the golden rule of interpretation is that where the provision of a statute is very clear and unambiguous, the records contained there should be gene to their natural meaning. See Balogun v. NCSB (2003) 2 NWLR (Pt.804) 389 at 397 paragraph E – F.’ In Araka v. Egbue (2003) 7 SC 75 at 85, the Supreme Court per Tobi JSC said:- “The primary function of the court is to search for the intention of the law maker in the interpretation of a statute, where a statute is clear and unambiguous; the court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, a court of law has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties.” See Awuse v. Odili (2003) 18 NWLR (Pt.851) 116 at 180 – 181 paragraph H-A. PER. PAUL ADAMU GALINJE, J.C.A.

THE POSITION OF THE LAW WHERE THERE IS NO EVIDENCE PRODUCED

JUSTICE

MUSA DATTIJO MUHAMMAD (OFR) justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE justice of The Court of Appeal of Nigeria

Between

MR. ALFRED AJAYI RAINEAppellant(s)

AND

1. MR. MACDONALD ODIBO
2. RIVERS STATE HOUSING & PROPERTY DEV. AUTHORITYRespondent(s)

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): By his further amended statement of claim at the lower court, dated 5th December 1996, the 1st Respondent herein who was the plaintiff at the lower court, claimed against the Appellant and the 2nd Respondents jointly and severally the following reliefs:
1. A declaration that the purported sale of the plaintiffs house presently known and referred to as No. 10B Fleming Avenue Rumuomasi, Port Harcourt by the 2nd Defendant to the 1st Defendant is unlawful, grave in justice, unconstitutional, null and void.
2. A declaration that the plaintiff is owner still the lawful and legitimate owner of the property presently known and referred to as No. 10B Fleming Avenue, Rumuomasi Port Harcourt.
3. A perpetual ‘injunction restraining the defendants, their agents and privies from further trespassing on No. 10B Fleming Avenue, Rumuomasi Port Harcourt.
4. N200,000 General damage for trespass and losses suffered by the plaintiff as a result of the Defendant’s action.
ALTERNATIVELY
5. The plaintiff claims the sum of N2m (Two Million Naira) being and representing the value of the property from the Defendants jointly and severally as compensation due to him from the property.
By their earlier statement dated 23/01/1995 and 5/12/1996, the Appellant and the 2nd Respondents, who were 1st and 2nd Respondents at the lower court respectively, denied the 1st Respondent’s claims. In addition, the Appellant counter claimed as follows:
(a) A declaration that the 1st defendant is entitled to the right of occupancy of the 2 bedroom flat situate at NO. 10B Fleming Avenue Rumuomasi, Port Harcourt now being held unto by the plaintiff through Mr. Eugene Dappa a tenant.
(b) N500,000.00 General damages for trespass suffered by the 1st defendant as a result of the actions of the plaintiff’s actions.
(c) A order of perpetual injunction restraining the plaintiff, his servants’ agents and privies from further trespassing on No. 10B Eleming Avenue, Rumuomasi, Port Harcourt.
Issues having been joined and after hearing testimonies of the witnesses called by the 1st Respondent herein and the Appellant, and upon hearing Learned Counsel for the appellant and the 1st Respondents, the Learned trial judge, Mary Odili J (as she then was) found merit in the claim of the 1st respondent and granted him reliefs 1-3 in terms of his claims. Learned trial judge awarded N20,000 as general damages and N2,000 cost against each Respondent then.
The Appellant is dissatisfied with the decision of the lower court. Being aggrieved he has brought this appeal. His notice of appeal dated and filed on the 17/8/1998 contains three grounds of appeal. This notice was later amended. The Amended notice of appeal containing three grounds of appeal is dated 22/2/07.
Parties filed and exchanged briefs of argument. The first Respondent issued a notice of preliminary objection which he argued at pages 4 -25 of the 1st Respondent’s brief of argument dated and filed on the 9/11/10, but deemed filed on the 1/12/10.
The preliminary objection, being a preliminary issue will be considered first before delving unto the appeal. The grounds upon which the 1st Respondent’s objection lies are hereunder set out as follows;-
1. The Amended Notice of Appeal relied upon by the Appellant is fundamentally defective and incompetent as the Appellant stated therein a non-existent Port Harcourt High Court as the court that delivered the judgment he is appealing against.
2. The Honourable court has no jurisdiction to entertain appeals from the said Port Harcourt High Court.
3. The entire Appeal which is obviously hinged on the said Amended Notice of Appeal is also fundamentally defective and incompetent.
4. Furthermore the Appellant without first obtaining the leave of this Honourable court or the lower court raised in Ground of appeal No. 1 in the Amended Notice of Appeal the fresh issue of the Abandoned property Decree No. 90 or Act absolving the Appellant, an alleged purchaser of an abandoned property, form any liability or claim in respect thereof.
5. The said Ground of Appeal is thus fundamentally defective and incompetent and consequently issue No. 1 in the Appellant’s brief which was formulated from the said incompetent Ground of Appeal is also fundamentally defective and incompetent.
6. The Appellant also without the leave of court raised and canvassed in his Brief of Argument of the Rivers State Housing and Property Development Authority Edict, 1985.
7. The said issue of the application of the said Rivers State Housing and Property Development Authority Edict, 1985 is not covered by any ground of appeal.
8. The arguments in paragraphs 3.5 – 3.7 and 4.1 – 4.5 in the Appellant’s Brief of Argument are unrelated to any of the issues for determination formulated by the appellant in his Brief of Argument and thus incompetent.
9. The entire arguments of the three issues formulated by the Appellant in his Brief of Argument are also fundamentally defective and incompetent as the incompetence of the said issues and arguments has contaminated them since all the issues were argued together.
In his submission on the preliminary objection, Mr. Wodu, learned counsel for the 1st Respondent argued grounds 1, 2 and 3 together, while Grounds 4, 5, 6, 7, 8 and 9 are argued together. I will therefore adopt the same order in determining this preliminary objection.
The objector’s quarrel are indicated in grounds 1, 2, and 3 is with the portion of the Amended notice of appeal dated 22/2/07, which reads thus:-
“TAKE NOTICE that the 1st Defendant/Appellant being dissatisfied with the judgment of Honourable justice Mary Odili, sitting at Port Harcourt High Court, on the 16th day of July, 1998, do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3….”
According to the learned counsel, there is no provision of the constitution or any other statute that established or created Port Harcourt High Court, as such, Port Harcourt High Court as reflected in the notice of appeal is non-existence. Learned counsel referred the court to section 240 of the constitution of Nigeria 1999 and forcefully submitted that this court is enjoined to take appeals from the courts listed therein and because Port Harcourt is not so listed in the section aforesaid it is unconstitutional for this court to assume jurisdiction on this appeal.
Finally on this segment of the argument learned counsel submitted that it is the notice of appeal that confers jurisdiction on this court to entertain the appeal and if the notice of appeal is defective, then the court would have no jurisdiction to entertain the said appeal. In aid learned counsel cited Danbam v. Lele (2000) 11 NWLR (Pt.678) 413 at 427 paragraph B-C, Amadi v. Okoli (1977) 7 SC 57, also reported in (1977) 11 NSCC 117, Akinloye v. Adelakun (2000) 5 NWLR (Pt.657) 530 at 535, Odunze v. Nwosu (2007) 13 NWLR (Pt.1050) 1 at 28 paragraph D – G; Nwazurike v. A.G. Federation (2007) 8 NWLR (Pt.1035) 1 at 17 paragraph D – H. Also cited as an authority that the jurisdiction of this court is strictly circumscribed by the constitution is the case of Ehuwa v. O.S.I.E.C. (2006) 18 NWLR (Pt.1012) 544 at 567 – 568 and 576, 582.
Now, I have gone through the file and the record of this appeal and I am unable to find any reply brief filed by the Appellant.
The preliminary objection issued and argued in the 1st Respondent’s brief of argument is no doubt a new issue which required refutal or rebuttal by the Appellant. Order 18 rule 5 of the Court of Appeal Rules 2011 provides as follows:-
“The Appellant may also, if necessary, within 14 days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.
What then is the consequence of the failure to react to the new issues raised in the respondent’s brief of argument by the appellant?
The answer to this poser is provided for under Order 18 rule 10(1) of the court of Appeal Rules 2011, which provides that where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points of issues arising from the Respondent’s brief. The issues raised by the 1st Respondent in his preliminary objection concerns the notice of appeal which is an important foundation of the appeal which is found defective will render the appeal incompetent. It is therefore strange that the Appellant saw nothing wrong in his failure to file a reply brief.
In Okeke Anadi v. Okeke Okoli (supra) at page 118, which is cited and relief upon by the objection, the Supreme Court per Idigbe JSC of blessed memory had this to say:
“We think we should begin by making it clear that this court very much deprecates the rather increasing habit of some counsel who appears before us of showing very little care in the way and manner papers relating to appeals in this court are brought up. Some counsel hardly take sufficient pains in drawing up the grounds of appeal set down in the notice of appeal from the decision of the lower court. The notice of appeal is very important document because it is the foundation of the appeal and if it is defective, the court of appeal has inherent power to strike it out on the ground that it is incompetent.”
The Court of Appeal is enjoined by section 240 of the constitution of the Federal Republic of Nigeria 1999 to hear appeals from the courts listed therein. For the avoidance of doubt, the section aforesaid provides as follows:
“Subject to the provisions of this constitution, the court of appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”
In the list of the courts set out under the section of the constitution mentioned above, there is none that is called “Port Harcourt High Court.” I therefore agree with Learned Counsel for the 1st Respondent that the jurisdiction of this court is strictly circumscribed by the constitution and any appeal arising from the decision of a court other than those courts listed under S.240 of the 1999 constitution is outside the jurisdiction of this court.
The notice of preliminary objection was filed on the 9th November 2010 and the appeal was finally heard on the 14th November 2011. The appellant had over one year to either amend the notice of appeal or file a reply to the 1st Respondent’s brief of argument wherein the preliminary objection was argued. None of this was done. The defect inherent in the notice of appeal goes to the root of the originating process. It is not a mere irregularity that can be blamed on the mistake of counsel. By their training, Lawyers are required to be masters of legal drafting. This is so because a single word used inappropriately in a document in litigation can destroy an otherwise a good case.
For all I have said here, I find the amended notice of appeal dated 22/2/07 and filed on 28/6.07 but deemed filed on 28/5/09 incompetent and sane is accordingly struck out.
Having struck, out the notice of appeal, I could have rested my judgment here. But in case I am wrong, I will proceed to examine the 2nd segment of the objection and subsequently the appeal. The 2nd segment of the 1st Respondent’s objection is in capsulated on grounds 4, 5, 6, 7 8 and 9. In his argument, Mr. Wodu learned counsel for the 1st Respondent submitted that the issues of Abandoned Property Decree No. 90 absolving the Appellant from any liability arising from the purchase of abandoned property canvassed in ground 1 of the notice of appeal and argued under the 1st issue for determination by the Appellant was never raised and considered at the lower court. In a further argument learned counsel also pointed out that the issue of the application of the Rivers State Housing and property development Authority Edict 1985 was neither pleaded now raised in the lower court and was therefore not considered in the judgment of the lower court. Learned Counsel submitted that there are fresh issues raised for the first time in this appeal, as such the appellant ought to have sought for and obtain leave of the court before raising such fresh issues, Since the Appellant did not obtain leave before raising these issues, the grounds of appeal in which these issues are raised and the argument canvassed thereon are incompetent. Learned counsel cited a host of authorities in support of his submission some of which I will consider in course of this judgment.
Finally learned counsel submitted that the issue of the application of the Rivers State Housing and Property Development authority Edict, 1985 is not covered by any of the three grounds of appeal contained In the Appellant’s Amended Notice of Appeal. According to the learned counsel, where an issue raised and canvassed in a brief of argument is not covered by any ground of appeal, such argument is at large and goes to no issue. In conclusion learned counsel urged the court to hold that any argument on the Rivers State Housing and Property Development Authority Edict is incompetent.
At paragraph 3(b) of the Appellant’s statement of claim at page 12 of the record of this appeal it is pleaded for the Appellant who was the 1st Defendant at the lower court as follows:-
“[b] At the time of the purchase of the property by the 1st defendant the property was an abandoned property.”
The 2nd Respondent’s statement of Defence at the lower court is at pages 31-32 of the record.
The averment at paragraph 4(e) and (h) read as follows:-
“[e] That the property is one of those abandoned as a result of the Nigerian Civil war. It is therefore an abandoned property within the meaning of the abandoned property [custody and Management] Edict of 1969. The real owner has not come to claim the property.
(b) That the plaintiff was not the one who built the property or house. The plaintiff has never been in possession of the property in dispute. The property was built by someone else who abandoned it as a result of the Nigerian Civil War.”
In his further amended statement of claim, the 1st Respondent herein, who was the plaintiff at the lower court, at paragraph 29 set out the following averment-
“29. The plaintiff shall further contend at the trial of this suit that the property in dispute was never and has never been an abandoned property and was never acquired by either the Rivers State Government or the Abandoned Property Implementation Committee and neither offered any or invited the plaintiff for any compensation.
From the state of the pleadings of the parties, issues were joined in respect or whether the property, subject matter of the dispute, was an abandoned property or not. Clearly the 1st Respondent denied that the house at 10B Fleming Avenue was an abandoned property. The duty was therefore on the Appellant who asserted the positive to establish before the lower court that the house was an abandoned property since mere averment could not take the place of evidence. Mr. Irwin Eiworitin, who testified by virtue of the powers of Attorney granted to him by the 1st Respondent admitted in this evidence that the property at No. 10B Fleming Avenue is an abandoned property. This is what he said:-
“I know that it was abandoned property after we carried out a search and the 2nd defendant gave us to buy. It was at Housing Authority that we conducted the search. I cannot remember the year as at now. I have heard of Abandoned Property Implementation Committee. I was aware they were in charge of Abandoned Properties in this state. I had transaction with Housing authority not with Abandoned Property Implementation Committee. I do not know if Rivers State Government applied to court to reacquire this property before it was sold to me. It is not true that Abandoned Property Authority had no control over this property as it was not within their area (sic) authority and so could not have (sic) sold to me”.
Clearly the Appellant pleaded and led evidence in respect of Abandoned Properties. Pleadings as defined by Black’s Law Dictionary 6th Edition are the formal allegations by the parties to a law suit of their respective claims and defence, with the intended purpose being to provide notice of what is to be expected at trial. Those formal allegations are issues of facts and the law applicable to those facts are presumed to be part of the pleadings of the parties and could be referred to even though, they are not pleaded. Since the issue of abandoned property was pleaded and canvassed by the Appellant at the lower court, submission on Abandoned Property Decree No. 90 as it affected the appellant in the notice of appeal and the 1st issue for determination as canvassed by the appellant is not a fresh issue, since it was the law applicable to the issues of abandoned properties. Also the argument in respect of the Rivers State Housing and Property Development Authority Edict 1985 is not a new issue that requires leave to so raise same, since the case at the lower court was fought on ownership of property that was purported to have been sold by the Rivers state Government. In Udegbunam v. FCDA (2003) 10 NWLR (Pt.829) 487 at 502 paragraph D-E, the Supreme Court per Kutigi JSC (as he then was) said:-
“The rule is that every pleading must state facts and not law. So that a plaintiff who wishes to prove at the trial that a particular law applies to his case must state the facts which make the law applicable and will not be allowed to plead conclusion of law as was the case here.”
All the cases cited by the Learned Counsel for the objector which include Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt.902) 227 at 249 paragraphs G-H, S.P.D.C. (Nig.) Ltd. v. Tiebo (2005) 9 NWLR (Pt.931) 439 at 473 – 474 paragraph H-A, Itonika Sawimill Nig. Ltd. v. Hoff (1994) 2 NWLR (Pt.326) 252 at 261 and so many others are good law on the issue of raising fresh issues on appeal. They are however not applicable in the instant objection raised by the 1st Respondent. I therefore overrule the objection contained in grounds 4, 5, 6, 7, 8 and 9 in support of the preliminary objection.
Having therefore overruled the 2nd segment of the preliminary objection, it is as I have alluded to, pertinent to consider the appeal on its merit.
The Appellant formulated three issues for determination of this appeal and the 1st respondent adopted the same issues in his brief of argument. The 2nd respondent did not file any brief of argument.
The first issue for determination of this appeal reads thus:-
“Whether the court below had the competence and jurisdiction to declare null and void any sale of an abandoned property validly conducted under the Abandoned Properties Act Cap. 1990 laws of the Federation.”
In his argument in support of this issue, Mr. Fatai Aremu Oso, Learned Senior Counsel for the Appellant submitted that the 2nd Respondent herein must have consulted with the Abandoned Properties Implementation Committee before it sold the property in question to the appellant, as such it is entitled to the protective amour of the Abandoned Properties Act Cap. 1 of the laws of the Federation 1990. Accordingly learned Senior Counsel urged this court to hold as follows:-
1. The sale to the Appellant by the 2nd Respondent was and it is still valid and subsisting.
2. The jurisdiction of the trial court was no longer there to entertain any suit in respect of the disputed property by any aggrieved person against the Appellant. Learned Counsel cited in aid section 3(1)(2) and (3) of the Abandoned Properties Act and section 9(1) of the Rivers State Housing and Property Development Authority Edict 1985.
Finally learned senior counsel urged us to resolve this issue in favour of the Appellant.
For the 1st Respondent, Mr. Wodu of counsel argued that section 3(1), (2) and 3 of the Abandoned Properties Act has in no way ousted the jurisdiction of the lower court from entertaining the suit brought before it by the 1st Respondent.
On the question of whether the 2nd respondent consulted with the Abandoned Property Implementation committee before selling the said property to the Appellant, learned counsel urged the court to hold that that submission is a mere speculation, as there is no evidence in record that suggested that consultation. Finally learned counsel urged the court to resolve the first issue in favour of the 1st Respondent.
Learned counsel on both sides have centred their submission on S.3(1)(2) and (3) of the Abandoned Properties Act. It is therefore desirable to set out the section hereunder for the purpose of clarity thus:
3(1) Any member of the committee or any person acting on its behalf shall stand indemnified and no suit or other proceedings shall lie at the instance of any person aggrieved in respect of any property sold by the committee or anything done in compliance with the direction of the Federal Government in respect of abandoned properties.
(2) The question whether any provision of Chapter IV of the constitution of the Federal Republic of Nigeria has been is being or would be contravened by anything done or purported to be done by the committee shall not be inquired into in any court of law and accordingly section 40, 42 and 220(1)(b) of the constitution shall not apply in relation to such question.
(3) Any proceedings against the committee or members of the committee or any person acting on its behalf (whether criminal or civil) commenced before the date of commencement of this Act, shall cease and any other or ruling already made shall be null and void and of no consequence whatsoever.”
The Abandoned Properties Act is a law that was enacted to deal with properties whose owners were not known after the civil war in the country. The law is applicable within the Rivers State and it is therefore a statute subject to the general rules or interpretation. The general rule of interpretation which is sometimes called the golden rule of interpretation is that where the provision of a statute is very clear and unambiguous, the records contained there should be gene to their natural meaning.
See Balogun v. NCSB (2003) 2 NWLR (Pt.804) 389 at 397 paragraph E – F.’
In Araka v. Egbue (2003) 7 SC 75 at 85, the Supreme Court per Tobi JSC said:-
“The primary function of the court is to search for the intention of the law maker in the interpretation of a statute, where a statute is clear and unambiguous; the court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, a court of law has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties.”
See Awuse v. Odili (2003) 18 NWLR (Pt.851) 116 at 180 – 181 paragraph H-A.
In the instant case the provision of the law cited is only applicable to protect members of the Abandoned Properties Implementation Committee which was given the responsibility to manage those abandoned properties in Rivers State. The Committee is not a party to this appeal. The 2nd Respondent clearly cannot benefit from the protective amour of the law cited above.

It is suggested that the 2nd Respondent might have consulted with the Abandoned Properties Implementation Committee by virtue of the provisions of Section 9(1) of the Rivers State Housing and Property Development Authority Edict 1985 before selling the property to the Appellant. This section provides as follows:-
“The authority shall, to the greatest possible extent consistent with the performance of its duty under their edict, consult and cooperate with Local Government Counsel, Department Branches and the Agencies of the State Government, the Federal Government and other State Governments having duties related or having aims or objects related to those of the authority.”
This piece of legislation provides for consultation between government departments and agencies. The mere provision of the law is not a conclusive prove that such consultations have taken place. Any suggestion that any consultation has taken place must be accompanied by comprehensive evidence that there have been consultations between those agents and arms of government. Where there is no evidence produced, such suggestions will at best remain speculations. In R.E.A.N. Plc. v. Anumnu (2003) 6 NWLR (Pt.815) 52 at 117 – 118, paragraph H – A, this court held as follows:-
“Speculation on evidence is not one of the functions of a court of justice. Rather a court receives an act on evidence placed before it by parties in accordance with the law….The learned trial judge in the circumstances had acted correctly in ignoring this issue of betterment and salvage as he did that of element of profit when no evidence was placed before him to assist him determine the issues raised by the Appellant.”
In S.D.C. Co. (Nig.) Ltd. v. Nagel & Co. Ltd. (2003) 4 NWLR (Pt.811) 611 at 639 paragraph B-G, this ocurt commented again on the duty of the court not to indulge on speculation as follows:-
“But all these, are matters of speculation and conjecture in which the courts are not allowed or entitled to embark on.”
See also Seismograph Ltd. v. Ogbem (1976) 4 SC 85.
In the instant case, it was neither pleaded at the lower court that the 2nd Respondent consulted with the Abandoned Properties Implementation Committee nor did the lower court make any pronouncement to that effect before the property was sold to the appellant. Section 3(1)(2) and (3) is therefore inapplicable in this case. This issue is therefore resolved in favour of the 1st Respondnet and the ground 1, upon which it is formulated is hereby dismissed.
The Appellant’s 2nd issue for determination of this appeal is whether in the Nigeria Laws all attorneys, must be appointed in writing before they can sue or be sued on behalf of their principals. This issue is said to arise from the 2nd ground of appeal.
Addressing this issue, Mr. Oso, Learned Senior Counsel, for the appellant submitted that for the evidence of any person who calls himself an attorney to be admissible, it is not necessary for such attorney to produce a written authority. In aid Learned senior counsel cited Melwane v. Five Star Industries Ltd (2002) 93 LRCN 82. In a further argument, Learned counsel submitted that the appellant; was later on in the cause of the proceedings replaced by DW1 without objection by the Respondents and their counsel, as such he is qualified to represent his principal in proceedings in court without a written authority. Form these point Learned counsel made reference to several passages of the judgment of the lower court rhetorically and concluded that the lower court was in error by holding that the 1st Respondent had been in long possession of the disputed property and therefore entitled to judgment. Learned senior counsel urged this court to resolve this issue in favour of the Appellant.
The learned senior counsel submitted that the Appellant in this appeal was later on in the cause of the proceedings replaced by DW1 without objection by the Respondents and his counsel. For avoidance of doubt, I reproduce the learned senior counsel submission at page 5 paragraph 3.7 as follows:-
“From the tenor of the above quotation it becomes manifest that the Appellant was later on in the cause (sic course) of the proceedings replaced by DW1 without objection by the respondents and his counsel. Can it then be correct that DW1 without a written authority cannot represent his principal to testify on his behalf as his agents or attorney without authorization by the principal? At the risk of repetition, the question should be answered in the negative.”
My concern here is if the Appellant were replaced by DW1, the appellant would have ceased to be a party to the case at that point of replacement up to the appeal herein. When a counsel agrees to take a brief, he has clearly agreed to take responsibility over the documents submitted for determination of such matter. Even if the Learned senior counsel was told by his client that the Appellant was replaced by DW1, the documents before this court in respect of this case point to the contrary.
By its very nature’ a power of attorney is an instrument by which authority of one person to act in place and stead of another as attorney in fact is set forth.
Section 150 of the Evidence Act 2011 provides as follows:-
“The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a notary public or any court judge or magistrate, consul or representative of Nigeria or, as the case may be, of the president, was so executed and authenticated.” This provision is also found at section 118 of the Evidence Act Cap 112, laws of the Federation 1990.
In the case of Chime v. Chime (1995) 6 NWLR (Pt.494) 734 at 757 paragraph A-B which is cited and relied upon by learned counsel for the 1st Respondent power of attorney is defined in the following words:-
“A power of Attorney is a document, and may be under seal which authorizes a person to act for another person his agent. The person who donates the power is called the donor while the person to whom it is donated is called the donee.”
It is therefore my firm view that power of attorney cannot be given orally, since by its nature, it is a document. This much was admitted by DW1 himself when he said at page 64 of the record that he is the Attorney of the 1st Defendant and that the authority was not oral.
There is no law that prevented the Appellant from calling a host of witnesses in prove of his case at the lower court. DW1 who gave evidence had every right to testify as a witness for the Appellant. But where he told the court that his evidence was based on a power of attorney donated to him by the appellant, he had a responsibility to produce and tender the power of Attorney. Since he failed to do so, the learned trial judge was right when she said:-
“The DW1 who claimed to be attorney of the defendant could not produce any documentary proof of such authority. I believe such a status cannot be acquired by the witness merely calling himself an attorney of some other person. The defence put up certainty was weak.”
The learned trial judge is right in her comment about the power of attorney of the witness. There is nothing that has led to miscarriage of justice in that pronouncement. The case of Melwani v. Five Star Industries Ltd. (supra) which was cited by the learned counsel for the Appellant was based on the filing of a case where the agent that filed the matter made declarations and depositions as to his status. In the instant case, DW1 only appeared as a witness and if there was a power of attorney for him to take over the prosecution of the case, same cannot be made orally.
Learned senior counsel for the appellant is also not happy with the comment of the learned trial judge that the evidence of the defence is weak. I think the learned trial judge is right. One of the five ways of proving title to a piece of land is proof by production of documents of title to the land in dispute. See Idundun & Ors v. Okumagba & Ors (1976) 9-10 SC 227 at 248. The production of such document of title must be duly authenticated in the sense that their due execution must be proved. In the instant case, the plaintiff Chief Ijeoma Ezuma of blessed memory told the court that he bought the land upon which the disputed building stands from Mr. T. Okereke. The ownership of the land was traced from Gabriel Chukwu through Agwu to Okereke. He tendered the receipts in respect of sales to Agwu, Okereke and the plaintiff which were admitted as Exhibits ABC. The receipt showed that the plaintiff bought the land in 1963 and completed the building thereon in 1967. He was given a certificate which showed that the house was fit for habitation. He subsequently rented the house out to the air force who were in occupation throughout the war. PW2, one Jonathan Chukwu, a son to the original owner of the land was signatory to the purchase receipt exhibit B.
Now for the Appellant, only the DW1 gave evidence. His contradictory evidence on the amount paid for the property and who actually bought the property from the 2nd respondent was not corroborated, as the 2nd respondent abandoned its statement of defence when it refused to call evidence. I am aware that where production of a valid title of grant does not necessarily carry with it automatic relief for grant of declaration of title relating to such grant. The court must make sure that documents are genuine and valid. The local court whose responsibility it is to scrutinize the documents submitted by parties has done so. Parties have also agreed that the issues of abandoned properties are handled by Abandoned Properties Implementation Committee. The 2nd Respondent’s handling of the sale of the extant property is an indication that the property was not abandoned. I agree with the learned trial judge that the case of the defence without any support from the 2nd Respondent is weak. Case for the two parties when placed on an imaginary scale, that of the 1st Respondents clearly preponderances and thus, tilts the scale in his favour.
For all I have said, this issue is resolved in favour of the 1st Respondent and against the Appellant. The ground upon which it is formulated is hereby dismissed.
The last and final issue is whether the trial judge was right in awarding title to the plaintiff/Respondent, when the identity of the property he is claiming remained uncertain.
On this issue, learned senior counsel for the appellant submitted that for a declaration, of title to land to be effective, potent and enforceable it must be tied to a plan.
Learned Senior Counsel contended that the identity of the property in dispute is uncertain in view of the alleged contradiction in the case of the plaintiff at the lower court as to when the property in dispute became known as Fleming Avenue or Flaming Street. It is the argument of the learned senior counsel that the disputed property should be capable of being identified by its street name and number.
Learned senior counsel made reference to paragraphs 3, 10 and 20 of the further amended statement and contended that the description of the property in dispute is not precise, accurate and unequivocal. For the 1st Respondent, it is submitted that the argument of the learned counsel for the appellant are irrelevant to the issue of the identity of the property. Learned counsel further submitted that parties are all agreed as to the identify of the property in dispute.
Now the initial claim of the 1st respondent is at paragraph 32 of his statement of claim dated 5/9/1994 and filed on the 13/9/94. Sub-paragraphs A and B of that statement read thus:-
“A. A declaration that the purported sale of the plaintiff’s house presently known and referred to as No. 10B Fleming Avenue Rumuomasi, Port Harcourt by the 2nd Defendant to the 1st Defendant is unlawful grave in justice, unconstitutional null and void.”
B. A declaration that the plaintiff is still the lawful and legitimate owner of the property presently known and referred to as No. 10B Fleming Avenue, Rumuomasi, Port Harcourt.”
In his statement of defence the Appellant as 1st Defendant counter-clamed at paragraph A as follows:-
“A declaration that the 1st defendant is entitled to the right of occupancy of the 2nd bedroom flat situate at no. 10B Fleming Avenue, Rumuomasi, Port Harcourt now being held unto by the plaintiff through Eugene Dappa tenant. In the 1st Respondent’s amended statement of claim dated 6th June, 1994,, at pages 22-24 of the record and the further amended claim dated 5th December, 1996 at pages 38 – 40 of the records, the 1st Respondent’s claim of the property at No. 10B Fleming Avenue is constant.”
The testimony of Eugene Dappa mentioned by the appellant in his counter-claim as tenant of the 1st respondent is at pages 58 – 59 of the record of this appeal. I quote him from the last line at page 58 as follows:-
“I live at No. 10B Fleming Avenue Rumuomasi, I am a pensioner I retired from Nigeria Air force. I know the property in dispute 10B Fleming Avenue.”
Clearly from the pleadings of the parties and the testimony of Euguene Dappa, none of the parties can claim ignorance of the disputed property in respect of which they joined issues. In Olujinle v. Adeagbo (1988) 19 NSCC (Pt.1) 625, the Supreme Court said:-
“That it is now perfectly settled that a survey plan is not a sine qua non in every land case. This is especially so when both parties know the quantity and quality of the land in dispute between them. In this appeal both parties do know the quantity and quality of the land in dispute and as such a plan ceases to be an absolute necessity”.
I am therefore of the firm view that the parties know the location of the disputed property and had joined issues in respect of the same property. The argument that the property has not been properly identified is a lame one and therefore serves no useful purposes. This issue is again resolved in favour of the 2nd Respondent and against the Appellant.
Having resolved all the issues submitted for the determination of this appeal against the Appellant, this appeal shall be and it is hereby dismissed.
The 1st Respondent is entitled to the cost of this appeal which I assess at N30,000.00 against the Appellant.

M. DATTIJO MUHAMMAD J.C.A.: I have read in advance the lead judgment of my learned brother GALINJE JCA. I share his reasonings and conclusions that this appeal being lacking in merit should and I do hereby dismiss same at the costs ordered by my learned brother.

T.O. AWOTOYE, J.C.A.: I have read through the draft of the judgment just delivered by my learned brother P.A. GALINJE JCA. I agree with the reasoning and conclusion therein. I have nothing else to add. I agree the appeal lacks merit and it is hereby dismissed.
I abide by the order as to costs made in the lead judgment.
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Appearances

Mr. M.C. Wilcox,
C.S. PatrickFor Appellant

AND

Mr K. Wodo,
Mr. W. Rollings.
2nd Respondent absentFor Respondent