MR. BENJAMIN CHUKWUDI NWEKE & ANOR v. GABRIEL NWEKE (2014)

MR. BENJAMIN CHUKWUDI NWEKE & ANOR v. GABRIEL NWEKE

(2014)LCN/7429(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 30th day of July, 2014

CA/E/93/2013

RATIO

CONTRACT: PRIVITY OF CONTRACT; WHETHER IT IS ONLY PARTIES TO A CONTRACT THAT CAN ENFORCE RIGHTS AND OBLIGATIONS UNDER THE CONTRACT

It is trite law that only parties to a contract can be made parties to an action arising out of the contract to enforce rights and obligations under the contract. It is not possible to make a non party to a contract, a party to an action to enforce a right or obligation under the contract. This is what the legal doctrine of privity of contracts postulates. The Supreme Court in BASINCO MOTORS LTD v. WOERMANN LINE AND ANOTHER (SUPRA), RELYING ON NEGBENEBOR V. NEGBENEBOR (1971) 1 ALL N.L.R. 210, IKPEAZU VS. A.C.B. LTD (1965) N.M.L.R. 374, K.S.O. ALLIED PRODUCTS LTD VS. KOFO TRADING CO LTD (1996) 3 N.W.L.R. (PT 436) 244 AND ALFORTIN LTD V. A.V. (1996) N.W.L.R. (pt 475) 634, explained this doctrine thus; “the doctrine of privity of contracts portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only parties to a contract can sue and be sued on the contract. A stranger to a contract cannot sue or be sued on the contract even if the contract is made for his benefit … Moreover, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract.” per. EMMANUEL AKOMAYE AGIM, J.C.A.

ACTION: MIS-JOINDER OR NON-JOINDER OF PARTIES; WHETHER NO PROCEEDINGS SHALL BE DEFEATED BY REASON OF MIS-JOINDER OR NON JOINDER OF PARTIES AND THE COURT SHALL DEAL WITH THE CASE AS PRESENTED IN RESPECT OF THE RIGHTS OF THE PARTIES BEFORE IT

In any case, it is judicially settled through a long line of cases that no proceedings shall be defeated by reason of mis-joinder or non joinder of parties and the Court shall deal with the case as presented in respect of the rights of the parties before it. In A.G. of Rivers State v. A.G. of Akwa-Ibom State (2011) 29 W.R.N, 1 at 30, the Supreme Court held that “the Courts have held it for quite long that no cause or matter shall be defeated by reason of mis-joinder or non joinder of the parties and the Court may in every cause or matter, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” This settled judicial position that has now crystallized into a general principle of law is the result of the consistent enforcement by the Courts over time, of the Rules of Court that save proceedings from being vititiated by non joinder or mis-joinder of the parties. Implicit in this principle is the notion that provided that the named Plaintiff has the locus standi to bring the action, and the action discloses a cause for it against the named Defendant, the non joinder of another Plaintiff with the requisite locus standi or another Defendant against whom there is a cause of action should not defeat the proceedings. The Court should determine the case as presented by the Plaintiff. In my view, this principle gives the Court the discretion to allow or not allow the proceedings depending on what it considers to be the justice of the case in the peculiar circumstances of that case. per. EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUF Justice of The Court of Appeal of Nigeria

Between

1. MR. BENJAMIN CHUKWUDI NWEKE
2. MR. EMMA CHUKWU Appellant(s)

AND

GABRIEL NWEKE Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 15-11-1995 the respondent herein, as plaintiff filed a claim and caused the issuance of a writ of summons in the then Anambra (now Enugu) State High Court in the Enugu Judicial division at Enugu commencing suit No. E/639/95 against the appellants herein, as defendants. Both sides filed and exchanged pleadings, namely, amended statement of claim and amended statement of defence. In the amended statement of claim, the plaintiff claimed for:
(a) A declaration that his sale of the property situate at and known as Plot 6 Block 12 Achara Layout, Enugu and registered as No. 29 at page in volume 944 of the Lands Registry Enugu to one Michael Ngene by virtue of a loan agreement dated the 14th day of September, 1992, and entered into between him and the defendant is valid, effective and binding in law and equity.
(b) Perpetual injunction restraining the defendant, his agents, servants, privies or any person(s) whom he represented in the transaction respecting the property situate at and known as Plot 6 Block 23 Achara Layout, Enugu and registered as No. 29 at page 29 in volume 944 of the Lands Registry Enugu from having anything whatsoever to do with the property without the consent of Michael Ngene as true and beneficial owner.

On 23-9-99, the appellants herein, as plaintiffs, equally filed a claim and caused the issuance of a writ of summons in the above mentioned court commencing suit No E/446/99 against the respondent herein as defendant. Both sides filed and exchanged pleadings namely, statement of claim and statement of defence. In the statement of claim, the plaintiff in suit No E/446/99 claimed for:
(a) “A declaration that his sale of the property situate at and known as Plot 6 Block 12 Achara Layout, Enugu and registered as No. 29 at page in volume 944 of the Lands Registry, Enugu to one Michael Ngene by virtue of a loan agreement dated the 14th day of September, 1992, and entered into between him and the defendant is valid, effective and binding in law and equity.
(b) Perpetual injunction restraining the defendant, his agents, servants, privies or any person(s) whom he represented in the transaction respecting the property situate at and known as Plot 6 Block 23 Achara Layout, Enugu and registered as No. 29 at page 29 in volume 944 of the Lands Registry Enugu from having anything whatsoever to do with the property without the consent of Michael Ngene as true and beneficial owner.

Both suits were tried and determined together as consolidated suits. However there is nothing in the records of this appeal showing that either party applied for their consolidation and there is no order of consolidation what is in the record is a letter dated 19-2-2000 from learned Counsel to the appellants herein applying to the Honourable Administrative Judge in the Enugu Judicial Division of the State High Court to transfer suit No E/446/99 from High Court No 9 to High Court No 2 of the same State High Court, where suit No E/639/95 which was then part heard was pending so that the two can be dealt with by the same Judge. This is obviously not an application for consolidation. It is clear from the record that both matters were heard by the same Judge who treated them as consolidated suits. The trial court in its ruling of 3-6-2009 refusing the application by learned Counsel to the appellants herein for adjournment of that day’s sitting in the case, and in its final judgment, referred to the two suits as consolidated suits. Both sides did not object to this procedure and have not questioned it even in this appeal. It is obvious all parties consented to this procedure and dealt with the suits as consolidated.

Both sides filed list of witnesses, witness statements on oath, list of documents and documents to be used at the trial. The respondent testified as PW1 and elicited evidence through another witness as PW2. The 2nd appellant testified as DW1 and the 1st appellant testified as DW2.

Upon the conclusion of evidence by both sides and following the addresses of learned counsel on both sides, the trial court rendered judgment on 14-7-2010, granting the reliefs claimed for by the respondent in paragraphs 20(a) and (b) of the amended statement of claim dated 30-9-1997 and dismissed the appellants’ claim in “the suit dated 26th January 2000.”

On 22-7-2010, the appellants commenced this appeal No CA/E/93/2013 by filing a notice of appeal containing 6 grounds of appeal. In the said notice of appeal, the appellants stated that the part of the judgment of the trial court appealed against is “the whole judgment except the aspect wherein the case of the defendant in the suit dated 26th day of January 2000 was dismissed.” The appellants also stated in the said notice of appeal that the relief sought for from this court is “to set aside the judgment of the trial court in its entirety except the aspect wherein the case of the defendant in the suit dated 26th January 2000 was dismissed, and a further order of the Court of Appeal dismissing suit No. E/639/95. It is therefore clear from the foregoing contents of the notice of appeal that this appeal is against only part of the judgment as it relates to suit No E/639/95 and the decision granting the claims in the amended statement of claim therein.

Both parties to this appeal have filed, exchanged and adopted their briefs of arguments; namely, appellants’ brief of argument and the respondent’s brief of argument.

The appellants’ brief of argument raised the following issues for determination in this appeal:
ISSUE No. 1
“Whether the suit was not incompetent since Mr. Michael Ngene in whose favour the judgment of the trial court was entered that he owned the property subject of the present appeal was not even joined as a party to the suit.”
ISSSUE NO. 2
“Whether the plaintiff/respondent had proved his case on a balance of probabilities as to entitle him to the reliefs granted by the trial court”.

The respondent’s brief of argument raised the following issues for determination in this appeal.
ISSUE 1:
Was the plaintiff/respondent not competent to ask the Honourable Court for a declaratory relief that his personal action which affected the rights and obligations of other people was valid and proper in law and equity?
ISSUE 2:
Did the plaintiff/Respondent in view of the evidence before the court, documentary and oral, not discharge the onus of proof on the balance of probability as required by law?

It is glaring that the issues for determination in this appeal raised by both parties are in substance the same. I will determine this appeal on the basis of the issues as couched by the appellants.

Let me start with the first issue of “Whether the suit was not incompetent since Mr. Michael Ngene in whose favour the judgment of the trial court was entered that he owned the property subject of the present appeal was not even joined as a party to the suit.”

Learned Counsel for the appellants has argued under this issue that the suit was incompetent because-
1. Mr Ngene to whom the respondent sold the suit property was not joined as a party. According to Learned Counsel his presence as a party in the case was indispensable. He relied for this submission on the Supreme Court decision in FAJEMIROKUN v. COMMERCIAL BANK OF NIGERIA NIG. LTD. & ANOR (2009) 2-SC (PT 1) 26 AT 65. Learned Counsel further argued that it was amazing that the trial court having held that he ought to have been a party in this case and joined as a plaintiff, being a man who would suffer hardship” If the court pronounces otherwise, still went ahead to declare title in favour of Mr Ngene who was not a party to the suit, rather than striking out the suit for being improperly constituted and therefore incompetent. He then submitted that the trial court was wrong to have done so and relied for this submission on the decision of this court in EZIONWU V. EGBO (2006) ALL FWR (PT 316) 314 AT 36 where it was held that where the grant of a relief as in the instant case will affect the interest of other persons not parties to a suit, those persons are necessary parties and they must be heard or given opportunity to be heard and if they are not before the court, the court cannot grant the claim”.
1. “The writ in this matter was taken out by the plaintiff/respondent on 15/11/95 more than 3 years after he had purportedly sold the property to Mr. Michael Ngene, and so the question is, with what authority did the said plaintiff/respondent file the suit since the property was at that date vested in Mr. Michael Ngene?, with respect no such Power of Attorney had been presented or tendered at the trial. The suit did not also indicate that it had been filed by the present plaintiff as Attorney for Mr. Michael Ngene.”
2. “Insofar as the learned trial judge had found that a valid sale of the property was made to the said Mr. Michael Ngene since 14/9/92 then to all intents and purposes, it is the said Mr. Michael Ngene who has the proper standing (“Locus standi”) in law to take out the present suit in court to protect his interest or title in the land subject of this suit and not the respondent who did not also have his Power of Attorney to institute the present action.”

He relied on the case of VULCAN GASES LTD V. G.I.V (2001) 5 SC (PT 1) AT 15 where the Supreme Court held that the donee of a power of attorney or an agent suing by virtue of that power must sue in the name of donor or his principal and not otherwise.

He further submitted that the respondent having already conceded that he had alienated the property to Mr Ngene cannot on his own file any suit again to claim title whether for himself or on behalf of Mr Ngene without a power of attorney made out by Mr. Ngene authorizing him to do so. He relied for this submission on the decision of this court in A.G RIVERS STATE v. OHOCHUKWU (2004) 6 NWLR (Pt. 869) 340. He finally submitted that respondent had no locus standi to institute the action and could not have proved title to the suit property for Mr Michael Ngene who never authorized him to commence the suit on his behalf nor was joined as a party to the suit.

The learned SAN for the respondent argued in reply that the plaintiff’s prayer in other words seeks a declaratory judgment that his act of sale of the suit property to Mr. Ngene was lawful and was not asking for a declaration of title, in which case, the title holder at the material time would have been indispensable. He emphasized that the plaintiff was simply asking for a declaratory relief or merely for a declaration that what he did was pursuant to the terms of agreement between him as the lender and the 1st appellant as the borrower, and was a complete compliance with the undertakings in exhibit A and therefore valid and lawful. He then submitted that it was only through a declaratory judgment that the plaintiff would have validly asserted his right in accordance with Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The Learned S.A.N. further argued that the Plaintiff was justified in law and in fact in seeking this remedy without involving the beneficiary of the right he wanted to establish. According to him the act of sale of the property was strictu sensu the sole act of the Plaintiff, and the beneficiary played no part in the said act. It was immaterial then that he stood to benefit from the declaration if granted. He then submitted that if the beneficiary has nothing to offer in a claim, he is not a party at all, let alone being a necessary party thereto. He was not even qualified to be a mere witness.

The Learned S.A.N. submitted further that what was in contention in this case was whether the Respondent had the right to sell and that the issue of who was entitled to ownership of the property was still a futurity. According to the learned S.A.N. the order sought after by the Respondent was merely built around a right of disposal and not purely around the present right of ownership.

I will preface the determination of the merits of the above arguments with a restatement of the established facts of this case to facilitate the understanding of my treatment of the issues arising from the said arguments.

The suit property namely, Plot 6 block 12, number 7 Enugu-Agidi Street, Achara Layout, Enugu, registered as number 29 at page 29 in volume 944 in the Enugu Lands Registry, was owned by one Mr Samuel Ilonzo. The 1st Appellant took a loan of N500, 000 to enable the 2nd Appellant and his sibling, Michael Chukwu, buy the ownership of the right of occupancy of the suit property. The Respondent and the Appellant entered into a written loan agreement on 14/9/1998, under which the Respondent gave the said sum of N500, 000 as loan, to the 1st Appellant on the terms and conditions stated in the written loan agreement. The written loan agreement states that- “NOW THIS AGREEMENT WITNESSES that pursuant to the foregoing and in consideration of the sum of N500, 000.00 (five hundred thousand Naira) now paid the borrower by the Lender the receipt whereof the borrower hereby acknowledge the borrower HEREBY DEPOSITS with the lender as security the original title instruments to the property viz-the Deed of Lease dated the 20th November 1975 and registered as No. 29 at page 29 in volume 944 of the Land Registry Enugu as well as the unregistered but duly executed irrevocable power of Attorney made to purchasers by the former owner of the property to hold the same as security until the said borrowed sum is repaid to the lender. PROVIDED ALWAYS AND IT IS AGREED that if the borrower fails to refund the said sum of N500,000.00 (five hundred thousand naira) to the lender on the stipulated date the lender shall be entitled to sell the said property to recover the money which he loaned to the borrower. And in pursuance of the foregoing the borrower HEREBY AUTHORIZES AND EMPOWERS the lender to sell the property aforesaid to realize his money.”

The 1st appellant entered into this loan agreement without the knowledge and consent of the 2nd appellant.

The 1st Appellant paid the said borrowed sum to Mr Samuel Ilonzo to purchase the said property in the presence of the Respondent. The deed of sublease dated the 20th day of November 1995 registered as number 29 at page 29 in volume 944 in the Enugu Lands Registry, admitted as exhibit B, and the power of attorney of 14th September 1992, admitted as exhibit C, were handed over to the Respondent in keeping with the written loan agreement (exhibit A.) In consideration of the receipt of the payment of the sum of N500, 000, Mr Samuel Ilonzo donated an irrevocable power of attorney to the 2nd Appellant and his sibling, Michael Chukwu, to inter alia take possession of manage, develop and alienate the suit property. The 1st Appellant failed to repay the loan as agreed to pursuant to exhibit A. In keeping with the terms contained in exhibit A which entitled the Respondent to sell the suit property in the event of a failure by the 1st Appellant to repay the loan as agreed, the Respondent claims he sold the suit property in January 1993 to one Michael Ngene. He went with Mr Ngene to Mr Samuel Ilonzo to execute a document of transfer of the property to Mr Ngene. The 1st appellant refused to sign and rather threatened the Respondent. The Respondent brought this suit to assert his entitlement to sell the suit property pursuant to the written loan agreement (exhibit A) with the 1st Appellant and to seek remedies for the 1st appellant’s breach of the loan agreement by opposing the respondent’s sale of the suit property.

Having restated in summary the facts of this case I will now proceed to consider the sub issues arising from the arguments of learned Counsel to both sides. The issues are as follows;
1. Whether the non joinder of Mr Michael Ngene as a party to the suit at the trial Court rendered the suit incompetent
2. Whether the Respondent had the locus standi to bring the said suit

I will deal with sub issue 2 first because it is more fundamental than the first one. Once the party that initiated the suit has no locus standi to bring it, the suit is incompetent and the Court would lack the jurisdiction to entertain it and so no question of non joinder of a necessary party can arise. As such, a joinder cannot cure the lack of jurisdiction that existed at the commencement of the suit.

It is glaring from the pleadings and the evidence of the Respondent that it was the refusal of the 1st Appellant to assist the Respondent in convincing Mr Samuel Ilonzo to execute a transfer of ownership of the suit property to Mr Michael Ngene and the 1st Appellant’s opposition of the Respondent’s sale of the suit property that caused the Respondent to bring the suit at the trial Court. The Respondent in paragraphs 18 and 19 of the amended statement of claim averred that:
18. The plaintiff avers that the defendant instead of assisting him to regularize the sale in keeping with the terms of the said agreement started dishing out threats of assassination and what have you. He said the defendant also promised to evict armis the said Michael Ngene who had already taken possession of the premises.
19. The plaintiff further avers that is to protect his rights and those of the said purchaser, Michael Ngene, that he come to this Honourable Court.”

The Respondent in paragraphs 25, 26, 27, 28, 29, 30, 31 and 32 of his written statement on oath, adopted as his testimony in his examination in chief on 3/6/2009, testified that:
25. That since it was now our trading season and I needed the money, I sold the house in January 1993 to one Michael Ngene.
26. That I executed a document with the said Michael Ngene
27 That after I sold the land, I asked the defendant to accompany me to Mr, Ilonzo’s house so that we can properly execute a proper document in favour of the new purchaser.
28. That he, the defendant so accompanied me, stayed there but refused to sign the document.
29. That the defendant after the execution at Ilonzo’s house started issuing threats at me.
30. That that is why I have come to court to seek a declaration that the sate of the property by me with the consent and knowledge of the defendant was proper.
31. That I am asking the court to declare my action lawful and valid.
32. That I am also asking the court to compel the defendant to execute the deed of Assignment in favour of Mr. Ngene as the sale and the assignment were according to the contract between two of us.”

The Appellants in paragraphs 16 and 20 of their amended statement of defence averred that the Respondent could not have sold and transferred what did not belong to him and that therefore the purported sale was void. It is glaring from the Respondent’s pleading and evidence that he brought this suit to remedy the 1st Appellant’s breach of the condition in the loan agreement that if the debt is not repaid, the Respondent was entitled to sell the suit property, which breach consists of his opposition to the Respondent’s exercise of his right under the loan agreement and the resulting sale of the property to Mr Michael Ngene. The cause for this action therefore is the 1st Appellant’s breach of the loan agreement by opposing the Respondent’s right to sell the property and the sale of same to Mr Michael Ngene. I therefore agree with the submission of the learned S.A.N. for the respondent that “in the present case, the right sought to be protected is the right of sale which was questioned by the Appellant”.

The entitlement of the Respondent to sell the suit property derives from exhibit A, the loan agreement. The Appellants’ obligation to recognize and support the realization of that entitlement derives from exhibit A. The 1st Appellant’s refusal to recognize that entitlement and support its exercise by the Respondent is a breach of exhibit A. It is trite law that a party to a contract or an agreement has the locus standi to sue in respect of any beach of his right in the agreement or contract, or for a refusal by the other party to the agreement to discharge his obligations under the agreement or contract. See OWUDUNNI V. REGISTERED TRUSTEES OF C. C. C. AND ORS (2000) 6 SCNJ 399 AND BASINCO MOTORS LTD V. WOERMANN LINE AND ANOTHER (2009) 13 N.W.L.R. (PT 1157) 149 (SC) and EMORI v. ESUKU (2012) LPELR 9797 (CA)
Therefore, the Respondent has the locus standi to sue in respect of any breach of his right under the loan agreement or for the refusal by the 1st Appellant to discharge his obligations to the Respondent under the loan agreement.

The question of validity, lawfulness or otherwise of the result of the exercise by the Respondent of his right under the loan agreement, cannot affect the existence of a right of action in respect of any breach of that contractual right. The sale of the suit property by the Respondent to Mr Michael Ngene is the result of the exercise of his entitlement to sell the suit property under the loan agreement. The opposition of the Appellants to the sale results from their refusal to recognize and accept that entitlement. The Respondent has brought this suit asserting that the sale to Mr Ngene is valid and lawful because he was entitled under the loan agreement to sell the suit property. Since he has the locus standi in respect of the 1st Appellant’s breach of the Respondent’s right to sell and the 1st Appellant’s obligations to ensure the realization of that right under the agreement, I think that the Respondent has the locus standi to bring suit number E/639/95 to provide a remedy for the Appellant’s refusal to allow or support the transfer of the property to Mr Ngene which is frustrating the Respondent’s exercise of his entitlement to sell the suit property under the loan agreement.

The benefit accruing from the Respondent’s suit to Mr Ngene, which is the protection of the latter’s interest in the suit property, is merely the result of the exercise by the Respondent of his right of action by this suit to enforce his contractual right and the 1st Appellant’s contractual obligations in exhibit A. The right of action to enforce a contractual right or obligation cannot be lost because a person who is not a party to the contract will benefit from the exercise of that right of action. The effect of an actio ex contractus on the interest of persons not parties to the contract cannot deprive the parties to the contract their right of action to enforce rights and obligations under the contract.

For the above reasons I hold that the Respondent had the locus standi to bring suit number E/639/95.
Let me now consider the sub issue of whether the non joinder of Mr Michael Ngene rendered the Respondent’s suit number E/639/95 incompetent.

As I had held herein, it is clear from the pleadings and the evidence that the suit was brought to enforce the contractual right of the Respondent and the contractual obligation of the 1st Appellant under the loan agreement (exhibit A). It is glaring from the pleadings and the evidence that Mr Michael Ngene was not a party to that loan agreement. The central issue in controversy in this suit is whether the Respondent was entitled to sell the suit property by virtue of the loan agreement.

The Appellant’s question the Respondent’s right to sell the suit property and have refused to get the suit property transferred to Mr Ngene. It is obvious that Mr Ngene cannot be a party to a suit that is brought to resolve the dispute between the parties to the loan agreement as to whether the Respondent was entitled to sell the suit property. Mr Ngene is not privy to that contract. It is trite law that only parties to a contract can be made parties to an action arising out of the contract to enforce rights and obligations under the contract. It is not possible to make a non party to a contract, a party to an action to enforce a right or obligation under the contract. This is what the legal doctrine of privity of contracts postulates. The Supreme Court in BASINCO MOTORS LTD v. WOERMANN LINE AND ANOTHER (SUPRA), RELYING ON NEGBENEBOR V. NEGBENEBOR (1971) 1 ALL N.L.R. 210, IKPEAZU VS. A.C.B. LTD (1965) N.M.L.R. 374, K.S.O. ALLIED PRODUCTS LTD VS. KOFO TRADING CO LTD (1996) 3 N.W.L.R. (PT 436) 244 AND ALFORTIN LTD V. A.V. (1996) N.W.L.R. (pt 475) 634, explained this doctrine thus; “the doctrine of privity of contracts portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only parties to a contract can sue and be sued on the contract. A stranger to a contract cannot sue or be sued on the contract even if the contract is made for his benefit … Moreover, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract.”

The fact that the outcome of the determination of the dispute between the contracting parties as to the Respondent’s entitlement to sell and the Appellants’ duty to recognize that right will affect the interest of Mr Ngene, cannot make him a proper or necessary party to the contractual dispute when he is not a party to the contract. His interest in the suit, though resulting from the exercise of the Respondent’s contractual right, is not one arising under the loan agreement. It is a transaction distinct from the loan agreement. It’s an interest arising from an agreement between the Respondent and Mr Michael Ngene. The Appellants are not parties to that agreement and have no obligations under that agreement. If suit number E/639/95 was brought to determine the rights Mr Michael Ngene had acquired in the suit property, by virtue of the agreement between the Respondent and Mr Ngene to sell the suit property to Mr Ngene, Mr Michael Ngene would have been a desirable, necessary and proper party to the action. But this suit is not concerned about the right and interest Mr Michael Ngene has acquired in the suit property as a result of the agreement to sell the suit property to him.

I agree with the submission of the Learned Senior Advocate for the Respondent that the decision in Ezionwu v. Egbo (Supra) is not applicable in this case. In Ezionwu’s case, reliefs were sought against Uyo Traditional Rulers Council and Commissioner of Police. The Applicants sought for a declaration that their molestation by the above mentioned Council and Commissioner of Police or their agents was in violation of their fundamental right as guaranteed by Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and also sought for an injunction restraining the said Council and Commissioner of Police from further molesting, intimidating and disturbing them. The Uyo Traditional Rulers Council and Commissioner of Police were not joined as parties to the suit even though reliefs were expressly sought against them. This Court held in that case that since they would be bound by the said reliefs if granted and the question of their liability cannot be effectively and completely determined unless they are made parties to the suit, they are necessary parties to the suit and their non joinder renders the suit incompetent and robs the Court of the jurisdiction to try same.

The case of A.G. of Rivers State v. Ochochukwu (Supra) is not relevant to the determination of the issues of locus standi or non joinder of parties to an action. There is no part of the decision in that case that dealt with the issues herein. In that case, the Plaintiff had surrendered back to the Government of Rivers State, his right of occupancy to the suit property. The government accepted the surrender and went on to reallocate the property to the 3rd Defendant who was a bonafide purchaser for value without notice. In considering the said effect of the said surrender of the Plaintiff’s right of occupancy to the suitland, this Court held that the Plaintiff, having already surrendered the plot, no longer has any right in the said plot. The facts of that case are completely different from the facts of this case and have no relevance whatsoever to the determination of the issues herein. It is obvious that even though Mr Ngene’s bid to buy the property would be affected by the result of this suit, the central question in this suit can be effectively and completely settled without him being joined as a party to the suit. He is therefore not a necessary party to suit number E/639/95. As a non party to the loan agreement (exhibit A), the issue of the Respondent’s entitlement to sell the suit property and the Appellants’ obligation to recognize the right and help its realization under that agreement can be effectively and completely determined without joining him as a party. As the Supreme Court held in Green v. Green (Supra), “necessary parties are those who are not only interested in the subject matter of the proceedings, but also who, in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the Plaintiff.” The Supreme Court in this case explained the difference between proper parties, desirable parties and necessary parties. It held that proper parties are those who though not interested in the Plaintiff’s claim, are made parties for some good reason e.g. where the action is brought to rescind a contract, any person is a property to it who was active in concurring in the matters which gave the Plaintiff the right to rescind same. Desirable parties are those who have an interest or who may be affected by the result. Its definition of a necessary party is already quoted above. See In Re: Mogaji (1996) N.W.L.R. (Pt 19) 759, where the Supreme Court restated that from the earliest times, the consideration has always been, whether the entry of the party sought to be joined is necessary for an effectual and complete adjudication of all questions in the case”.

In light of the foregoing I resolve issue number 1 in favor of the Respondent.

Let me now consider the second issue of whether the Plaintiff proved his case on the balance of probabilities as to entitle him to the relief granted by the trial Court.

I will start the determination of this issue by finding out what the trial Court decided in respect of the proof of the Respondent’s claim. The trial Court held that: “The plaintiff took out this action seeking a declaration of the Honourable Court that what he did i.e. the sale, of the property according to the provisions of the Loan Agreement Exhibit A was proper. Note that the document Exhibit A said that “it is hereby agree that if the Borrower (Benjamin chukwu) fails to refund the said sum of N500, 000.00 to the lender on the stipulated date the lender shall be entitled to sell the said property to recover the money which he loaned to the borrower. The borrower has failed to refund the money. The lender shall be entitled to sell the said property to recover the money, which he loaned to the borrower.” And in pursuance of the foregoing, the borrower hereby authorized and empowers the lender to sell the property aforesaid to realize his money. My understanding of this phrase is that one may not fully understand all these argument without going through the scenario of the transaction. What really happen in my opinion was that-
i) Gabriel Nweke had an understanding with Benjamin Nweke alone.
ii) That Gabriel Nweke plaintiff in the consolidated case lent money to Benjamin Nweke – the 1st defendant.
iii) That the transaction was reduced to writing in terms of Agreement between the plaintiff – Gabriel Nweke and the 1st defendant – Benjamin Nweke – Exhibit A.
iv) That the transaction was not authorized by any other person including the 2nd defendant because the 2nd defendant in his evidence said;
“I am not aware of my loan agreement between Mr. Gabriel Nweke and Mr. Benjamin Nweke there is no agreement between himself and the original vendor Mr. Ilonzo.”
v) That the right was equitable all along.
vi) That the terms of the agreement were breached by the 1st defendant, Benjamin Nweke.
vii) That the plaintiff executed the right to him by the debtor – Mr. Benjamin Nweke in Exhibit A.
The issue before the court and highly canvassed is whether-
a) The plaintiff – Gabriel Nweke was not proper plaintiff in this case
b) Whether the 2nd defendant was competent to authorize the plaintiff to sell.
c) A declaration of court that the defendant (in the consolidated suit) remain the owner of the property i.e. say block 12 plot 6 otherwise known as No. 7 Enugu Agidi Street Achara Layout Enugu and is entitled to all possessory and ownership rights thereto including the statutory Rights of occupancy of same.
I will not go into the first question (a) above for the simple reason that that was taken as a preliminary issue and trashed out by this honourable Court presided over by my predecessor Hon. Justice R. C. Agbo, now of the Court of Appeal, Lagos division, but sitting as a judge of this Court. As for question (b) I have stated above that the agreement was between the plaintiff and the 1st defendant simpliciter. After the agreement the 1st defendant who never claimed he had at any time taken possession of the property and the documents of title, abandoned the loan agreement to the plaintiff. The plaintiff therefore took the possession from the original vendor Mr. Ilonzo, took the title document from Mr. Ilonzo and took the loan agreement and started to deal with the property. In fact, and in law he was in perfect possession and control of the property. Mr. Benjamin Nweke never signed the contract document as agent. He signed as the person in total control of the situation. As I said above, the right conferred on the plaintiff was equitable. In laws, he the plaintiff has equitable chose in action as far as the property was concerned. The plaintiff allegedly, sold to a known buyer, Mr. Ngene. Neither the 1st defendant nor the 2nd defendant or even the plaintiff joined (Mr. Ngene) as a party knowing fully well that the right of 3rd party is now involved. The name of (Mr. Ngene) was mentioned in the pleading and that is all. I am of the opinion that he ought to have been a party in this case and joined as a plaintiff being a man who would suffer hardship if the court pronounces otherwise. The position of the plaintiff – Gabriel Nweke can be likened to that of a seller-in-possession. It is the considered opinion of this court that whether as lien, or as person who was holding equitable chose-in-action, the plaintiff by the terms of the contract document Exhibit A, which the defendant did not deny, was entitle to his money by disposing of the property according to the terms of the contract and considering the surrounding circumstances including the nil position the 2nd defendant in the whole exercise, was free to sell, and did sell in obedience to the rights conferred on him by his debtor – the 1st defendant and only party on the other side known to the plaintiff at all material time. At the same time, I am of the opinion as urged by Dr. M.E. Ajogwu (SAN) that 1st defendant – Benjamin Nweke was an agent and wore the authority to borrow money, negotiate for loan, buy a property, and mortgage the property and the title documents, his scope of authority or ostensibly authority cover authority to sell or allow the plaintiff to sell and recoup himself – mortgage being an implied power to sell. It is for the above reason that I am unable to agree with the defence counsel, in the consolidated suit) that the whole case has to do with the privity of contract and that the principle Nemo dat quod non habet; applies in this case since Gabriel Nweke was acting under the authority of Exhibit A. I hold that the plaintiffs claim in the amended Statement of Claim dated 30th September 1997, that is declaration that the sale of the property situate at and known as plot 6 Block 12 Achara layout, Enugu registered as No. 29 at page 29 in volume 944 of the Land Registry, Enugu to one Michael Ngene, by virtue of the loan agreement dated the 14th day of September 1992 and entered into between him and the defendant is valid and effective and binding in equity.
b) perpetual injunction restraining the defendants, their agents, servants, privies or any person whom they represent in the transaction respecting the property situate at and known as plot 6 Block 23 Achara Layout Enugu and registered as No. 29 page 29 in volume 944 of Lands Registry Enugu or having anything to do with the property without the consent of Michael Ngene as true and beneficial owner.
The plaintiff has in paragraph 32 of the plaintiff’s statement on oath dated 2nd October 2007 prayed the court thus-
“That I am also asking the court to compel the defendant to execute the Deed of Assignment in favour of Mr. Ngene as the sale and assignment were according to the contract between the two of us.”
I agree with the counsel for the defendant that it is nowhere provided in the terms of the agreement. I cannot, therefore, make the order, and this is hereby dismissed. From the foregoing, the case of the defendant in the suit dated 26th day of January 2000 is hereby dismissed.”

Learned Counsel for the Appellants has argued that;
1. The clear implication of this decision granting the above reliefs claimed by the Respondent in his amended statement of claim is that the trial Court declared Mr Ngene the owner of the suit property in spite of the fact that he was not even a party to the suit, did not claim for title to the suit property and did not elicit evidence to establish the title to the said property.
2. The Respondent beyond his mere testimony in Court, which was denied by the Appellants, led no evidence to establish the sale of the suit property to Mr Ngene and since issues were joined by the parties in their pleadings on whether there was such a sale, it is the Respondent’s case that will fail in the absence of the evidence of such a sale.
3. The Respondent did not join Mr. Ngene as a co plaintiff or call him as a witness because Mr. Ngene would have testified against the Respondent. This was a clear case of withholding evidence.
4. Exhibit C, the irrevocable power of attorney, shows that the suit property belongs to the 2nd Appellant and his sibling, Mr Michael Chukwu. Therefore, by the principle of nemo dat quod non habet, only the two of them can validly alienate the suit property and not Respondent. Learned Counsel referred to the Supreme Court decision in Okelola v. Adeleke (2004) ALL F.W.L.R. 1980 at 1984 and 1985, applying the principle of nemo dat quod non habet.
5. Since the 2nd Appellant and his brother Michael Chukwu did not sign the loan agreement (exhibit A), had no knowledge of it and did not consent to it, they are not bound by it. Only the 1st Appellant and the Respondent are bound by it.
6. The 1st Appellant and Michael Chukwu, the owners of the suit property did not authorize the Respondent to sell the property. He therefore conveyed nothing to Mr. Ngene.
7. The Respondent’s possession of the suit property was unlawful and amounted to trespass. The 2nd Appellant and Michael Chukwu being the owners of the suit property are deemed in law to have possession of same. Learned Counsel relied on the decision of the Supreme Court in Ayanwale v. Odusani (2011) 12 S.C. (pt 111) 59 at 72.
8. The Respondent did not prove his case on the balance of probabilities and so was not entitled to the reliefs granted to him by the trial Court.

The Learned Senior Advocate for the Respondent has argued that what the Respondent ought to prove are the facts that justify his sale of the property or otherwise and that it would be vainest pedantry to expect him to prove his claim in the nature of a declaration of title to land as it was not an action for declaration of title to land.

The Learned S.A.N. further submitted that the Respondent showed that-
1. That he gave money to the 1st defendant on behalf of the defendants.
2. That the 1st defendant gave conditions of taking the money and wrote the conditions down in Exhibit ‘A’.
3. That nobody was taken unawares or by surprise as to what the agreement was and its intendment.
4. That the 1st defendant agreed before the court that Exhibit ‘A’ spoke for itself.
5. That Exhibit “B & C” were kept with the plaintiff/respondent for the sole purpose of satisfying exhibit “A”.
6. That the time for the refund of the loan elapsed.
7. That the conditions stipulated in Exhibit “A” were ripe for implementation.
8. That the documents, particularly Exhibit “A” which was admitted by the appellant having spoken for itself, the court does not allow oral evidence unduly to qualify or remove the effect of a written undertaken.

According to the Learned S.A.N. the Appellants are not arguing that the Respondent has not proved his case. Rather their argument is that Mr Ngene did not prove his case personally. The Learned S.A.N. also argued that there was no doubt either in the evidence supported by the pleadings that the beneficiary was a non existent person or that the property was not actually sold to him. What was in issue throughout and thoroughly canvassed was whether the Plaintiff/Respondent with the unchallenged mandate in exhibit A, could sell his property and recoup himself. The Learned S.A.N. argued that whether or not some persons would be beneficial owner if the sale was valid and that this issue was an accepted fact by the parties and the bone of contention was whether the sale was valid and legal or not. Another submission of the Learned S.A.N. is that throughout the contest, both parties believed and behaved in a way that justified the transactions which shows that the title to the property remained with the Respondent and never passed to the Appellants and so the Respondent was justified in dealing with the property in the way he dealt with it, and the Court cannot be used as an instrument of bad faith.
Let me consider the above arguments of both sides.

Let me start with the question of whether the Respondent had any colour of title to the property by virtue of exhibit A. Learned Counsel for the Appellants has argued that he held no title to the property and had non to sell to Mr Ngene. The Learned S.A.N. for the Respondent had argued that title to the property remained with the Respondent and never passed to the Appellant.

Exhibit B shows that the owner of the right of occupancy of the suit property is Mr Samuel Ilonzo. As the trial Court rightly found, the 1st Respondent borrowed the sum of N500, 000 from the Respondent and paid to Mr Ilonzo on behalf of the 2nd Appellant and Michael Chukwu. All parties herein in their pleadings and evidence agree and the trial Court found as a fact that the payment to Mr Ilonzo was consideration for the purchase of the suit property from him by the 2nd Appellant and Michael Chukwu.

Mr Samuel Ilonzo did not testify as a witness. There is no evidence that he issued an acknowledgment of receipt of the sum as the price for the sale of his property to the 2nd Appellant and Michael Chukwu. There is no evidence, testimonial or document from Mr Ilonzo confirming that he sold the suit property to the 1st Appellant or his brother or any other person. However, Mr Ilonzo made exhibit C, an unregistered power of attorney, wherein he acknowledged receipt of the said N500, 000 from the 2nd Appellant and Michael Chukwu and that in consideration of that payment, he irrevocably appointed them as his attorneys to inter alia possess, manage and develop and even alienate the said suit property.

On the basis of exhibit C, Learned Counsel for the Appellants has argued that the suit property belongs to the 2nd Appellant and Michael Chukwu and that exhibit C speaks for itself. I do not agree with this submission. The ownership of the right of occupancy of the suit property was vested in Mr Samuel Ilonzo by virtue of exhibit B. He never divested himself of such ownership and never vested same on any other person. It is wrong for Learned Counsel for the Appellants to regard exhibit C as transferring the ownership of the suit property to 2nd Appellant and Michael Chukwu. A power of attorney is basically an authority a principal gives to a person to act as his agent in respect of a specific matter. If the matter is a real property and the power of attorney is registered as a deed it becomes an instrument that appoints a person to exercise the ownership rights in a property on behalf of the owner of the property. The donee of the power does not become the owner of the property by virtue of that appointment. He remains the agent of the owner of the property even if the power is irrevocable and the ownership right of the property remains in the owner of the property. In Ude v. Nwara (1993) 2 NWLR (pt 277) 638 at 665 the Supreme Court held that “a power of attorney merely authorizes the donee to do certain acts in the stead of the donor, and so it is not an instrument which confers, transfers, limits, changes or alienates any title to the donee. Rather, it could be a vehicle whereby those acts would be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. See also the decisions in Abu v. Kayabana (2002) 4 N.W.L.R. (pt 758) 599, Amadi v. N’Sirim (2004) 17 N.W.L.R. (pt 801), Mandigbo v. Oguide and Anor (2009) L.P.E.L.R. 8416 (C.A.) and Nwankwo v. Agwuna (2007) L.P.E.L.R. 8445 (C.A.).
Exhibit C cannot be effective as an appointment of the 2nd Appellant and Michael Chukwu as the attorneys of Samuel Ilonzo to exercise on his behalf, his rights of ownership in the suit property because it is not registered as a deed. It is settled law that a power of attorney to act in respect of a landed property must be registered as a deed to be effective. See Abubakar v. Waziri and Ors (2008) N.W.L.R. (pt 1108) 507, Vulcan Gases Ltd v. G.E. Ind A-G (2001) 9 N.W.L.R. (pt 719) 610 at 664 and Ossai Nwaitde and Anor (1975) 4 S.C. 207.

Upon the payment of the sum N500, 000 to Samuel Ilonzo, the Respondent took custody of the original copies of exhibits A, B and C which were regarded as documents of title to the land and took physical possession of the said land. The trial Court found that the Plaintiff therefore took possession from the original vendor Mr Ilonzo, took title documents from the said Mr Ilonzo as well as the loan agreement and started to deal with the property. In fact and in law, he was in perfect possession and control of the property. Mr Benjamin Nweke never signed the contract document as agent. He signed as the person in absolute control of the situation. As I said above, the right conferred on the plaintiff was equitable. In law, the Plaintiff has an equitable chose in action as far as the property was concerned.” The Learned Counsel for the Appellants has argued that the Respondent did not own any modicum of interest in the property and his possession of same remained unlawful and a trespass and that possession even for a million years cannot ripen into ownership as against the real owner. The Learned S.A.N. for the Respondent argued that throughout the course, both parties believed and behaved in a way that justified the transaction which shows that title to the property remained with the Respondent and never passed to the Appellants.

The Respondent’s claim of right to possession of exhibits A, B and C and possession of the suit land was based on the authority the 1st Appellant gave him to sell, retain possession of the documents relating to the land and possession of the land and to sell the land upon failure of the 1st Appellant to repay the debt, which authority is contained in exhibit C.

The question that arises at this juncture is whether the 1st Appellant had right or power in law to sell the suit property if he, the 1st Appellant defaults to repay the loan. It is beyond argument that Samuel Ilonzo did not transfer his title to the suit property to the 1st Appellant. The 1st Appellant has never contended or suggested in any way, that he acquired title to the property or any interest therein. His relationship with the suit property is that he, on behalf of the 2nd Appellant, Michael Chukwu, arranged for the loan from Samuel Ilonzo, entered into the loan agreement (exhibit A) to enable him pay for the suit property on behalf of the 2nd Appellant, and Michael Chukwu who, even though disowned exhibit A, accept that they are owners of the suit property by virtue of the said N500, 000 paid to Samuel Ilonzo and exhibit C resulting therefrom. The trial Court made findings concerning the exact status and role of the 1st Appellant in the transaction and the making of exhibit A. It first found that Mr Benjamin Nweke never signed the contract document as agent that he signed as the person in total control of the situation. Further in its judgment the trial Court held that the 1st Defendant, Benjamin Nweke was agent and wore the authority to borrow money, negotiate for a loan, buy a property, mortgage the property and the title documents. His scope of authority or ostensible authority covers the authority to sell and recoup himself (mortgage being an implied power to sell).

If the 1st Appellant who is obviously not the owner of the suit property, signed exhibit A in his own right for himself and not as an agent of anybody, it means he was not acting as an agent of the owner of the suit property, when he used the suit property as security for the repayment of the loan from the Respondent, and when he authorized the Respondent to sell the suit property if the loan was not repaid as agreed. The use of a person’s property as security for the repayment of a debt and authorization that it be sold to recover the debt without the consent of the owner, is illegal. Such a transaction and the authorization to sell cannot be given effect by law.
The fact that the 1st Appellant believed that he had the right to authorize the Respondent to sell the suit property and the Respondent’s mistaken believe in the authenticity of said right, is of no moment. Their belief cannot justify or legalize such a mortgage and authorization. A person who is not the owner of a property cannot mortgage or pledge it as security for the repayment of his debt, without the knowledge and consent of the owner of the property. Any such mortgage or pledge or like transaction is illegal and void.

The trial Court was right in holding that the 1st Appellant acted as an agent of the 2nd Appellant and Michael Chukwu in the transactions in exhibit A and C because the loan obtained by the 1st Appellant from the Respondent under exhibit A was used for the benefit of the 2nd Appellant and Michael Chukwu. The benefit is their irrevocable appointment as attorneys of Mr Ilonzo to take over and exercise his ownership rights in the suit property on his behalf. This is contained in exhibit C. They accepted exhibit C and now claim to be the owners of the suit property on the basis of exhibit C.

There is no doubt that the 1st Appellant executed exhibit A in his own name and not in the names of the 2nd Appellant and Michael Chukwu. He did not indicate therein that he was taking the loan on their behalf. However, the purpose of the loan is stated in the recital in exhibit A, as to purchase the suit property for the 1st Appellant and Michael Chukwu. It is reasonable to presume from the content of Exhibit A and the acceptance of exhibit C by the 2nd Appellant and Michael Chukwu, that the 1st Appellant was acting as their agent when he executed exhibit A and obtained the for them. Their acceptance and reliance on exhibit C to assert their right to the suit property amounts to a ratification of the transaction in exhibit A. Having accepted exhibit C and are now relying on it as a basis for their claim of right to the suit property, they are estopped from denying that the 1st Appellant was their agent in obtaining the loan under exhibit A. In Vulcan Gases Ltd v. Gesellschaft Fur Industries and Anor (2001) 5 S.C. (pt 1) 1, it was held that the relationship of principal and agent arises in anyone of five ways, namely, by express appointment (orally or in writing), by ratification of an agent’s acts, by operation of the doctrine of estoppel, by implication of law in the case of necessity and by presumption of law in the case of a co-habitation.
But the scope of the 1st Appellant’s agency cannot extend to the alienation and authorization of the alienation of the suit property. This is because it is settled law that the authority to act as agent in relation to land or landed property must be registered as a deed. See Vulcan Gases Ltd v. G.E. Ind A-G (Supra), Ossai Nwaitde and Anor (Supra), Abubakar v. Waziri (Supra) and Vulcan Gases Ltd v. Gesellschaft Fur Industries and Anor (Supra).

Secondly, at the time exhibit A was made, the Appellant and Michael Chukwu were not attorneys to Mr Ilonzo in respect of the suit property and had no existing interest in the said property. So the 1st Appellant’s agency was only valid in respect of the negotiation and collection of the loan and could not have extended to the use of a property that the 2nd Appellant and Michael Chukwu had no existing interest in, as a security to obtain a loan for them.

In the light of the foregoing I hold that the 1st Appellant had no power to mortgage, pledge or in any manner alienate the suit property to the Respondent and had no right to authorize the Respondent to sell same in default of the payment of the loan. The clause in exhibit C, wherein it was stated that the Respondent was entitled to sell the suit property if the 1st Appellant failed to repay the loan of N500, 000 as agreed therein, is void and unenforceable. The Respondent was not entitled in law to sell the suit property to Mr Ngene or anybody for any reason. The remedy of the Respondent lies in an action against the Appellants for debt recovery and not in selling the suit property. In the light of the foregoing I resolve issue number 2 in favour of the Appellants.

On the whole, this appeal succeeds and is accordingly allowed. The judgment of the Enugu State High Court in suit number E/639/95 delivered on 14/7/10 per A. R. Ozoemena J is hereby set aside. The Plaintiff’s claims in the amended statement of claim in suit E/639/95 are hereby dismissed.
I make no order as to costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: My learned brother, Emmanuel Akomaye Agim, JCA afforded me the opportunity of reading before now, the lead judgment he has just delivered. My learned brother duly considered and adequately resolved the issues that came up for consideration and determination in this appeal. I have nothing meaningful to add in a manner that will advance the value or extend the frontiers of the reasoning and conclusions reached in the said lead judgment. I am thus in agreement therewith, inclusive of the orders made therein. I abide therewith.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading before now, the judgment delivered by my learned brother JUSTICE E. A. AGIM JCA.
I agree with the reasoning and conclusions therein.

Appearances

C. CHUMA OGUEJIOFOR ESQ, WITH F. C. OKEKE ESQ AND A. T. NWAKA ESQFor Appellant

AND

DR. M. E. AJOGWU SAN WITH V. O. AJOGWU ESQFor Respondent