SHEHU BALA & ANOR v. SALE HASSAN (2014)

SHEHU BALA & ANOR v. SALE HASSAN

(2014)LCN/7009(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of March, 2014

CA/K/123/2012

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

1. SHEHU BALA
2. MAGAJI MAI ITACE Appellant(s)

AND

SALE HASSAN Respondent(s)

RATIO

WHETHER OR NOT THE QUESTION OF LOCUS STANDI CAN BE RAISED AT ANY TIME IN A PROCEEDING

Furthermore, the question of locus standi arises as an issue for determination from the grounds of appeal. The jurisdiction of the trial Court to preside over this matter was raised earlier by the Appellants during the addresses ordered by the learned trial Court. Being a fundamental question therefore, locus standi is one of those special circumstances that can be raised at any stage of the proceedings and even for the first time in the Supreme Court. The defect with regards to a party to bring an action goes to the root of the case because parties form the vital pivot on which a Court action rest. He referred the Court to the cases of:
MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587, MAGAJI VS MATARI (2000) 2 SCNQR 636, OGBA VS ONWUZO (2000) 22 NSQLR PAGE 888 AT 899. PER ABOKI, J.C.A.

WHETHER OR NOT GROUNDS OF APPEAL CAN BE SPLIT TO GIVE MULTIPLE ISSUES FOR DETERMINATION

It is trite that no ground of appeal can be split to give multiple issues for determination, even though an issue for determination can be formulated from a multiple grounds of appeal.
See: YUSUF VS AKINDIPE, where the Supreme Court held thus:
“It is not permissible to formulate more than one issue for determination from a ground of appeal, even though several grounds of appeal can be covered by one issue for determination.”
See: AGBETOBA VS LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR (PT.188) AT 666;
In ADELOSOLA VS AKINDE (2004) 12 NWLR (PT. 889) 295, the Court held:
“It is against the practice of brief writing for one ground of appeal to be split into two issues.”
See also: NFOR VS ASHAKA CEMENT CO. LTD (1994) 1 NWLR (PART 319) 222. PER ABOKI, J.C.A.

WHETHER OR NOT HE WHO ASSERTS MUST PROVE

It is trite law that the person who asserts has the legal burden of proof. See:
AMODU VS AMODE (1990) 5 NWLR (PT. 150) 356; FAMUROTI VS AGBEKE (1991) 5 NWLR (PT. 189) 1; BUHARI VS OBASANJO (2004) 1 EPR 160; AWUSE VS ODILI (2005) ALL FWLR (261) 248 AT 313
It was held in the case of ODON VS BARIGHA-AMANGE (2010) 12 NWLR (PT.1207) 13 thus:
“The person who asserts bears or has the legal burden to proof because judgment would be given against him if no evidence was adduced in a case. Until the plaintiff who usually asserts, discharges the legal burden owed, there will be nothing for the defendant or Respondent to react to by way of defence. In effect, where a plaintiff fails to adduce satisfactory evidence to prove what was asserted, there will be no duty on the defendant to adduce evidence because the plaintiff has to succeed on the strength of his own case and not absence of the evidence from the defendant.”
Furthermore, it has been held in the case of UKPO VS NNAJI (2010) 1 NWLR (PT.1174) 175 that:
“Where sufficient evidence is adduced by the party who asserts, the burden of proving the contrary then shifts to the other person against whom the judgment will be given if no further evidence is adduced.”
See also:
KALGO VS KALGO (1999) 6 NWLR (PART 608) 639; ROTIMI VS FAFIRIJI (1999) 6 NWLR (PART 606) 305; AYOGU VS NNAMANI (2006) 8 NWLR (PART 981) 160. PER ABOKI, J.C.A.

DEFINITION OF THE TERM “LOCUS STANDI”

In the case of NYAME VS FRN (2010) 7 NWLR (PT. 1193) 344 SC, the term locus standi was defined thus:
“…entails the legal capacity of instituting, initiating or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from anybody or person whatsoever, including the provisions of any law.”
With respect to a plaintiff, the Court in the case cited above went further to state thus:
“…the fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint heard before the Court. A plaintiff will have locus standi in a matter only if he has special interest or; alternatively, if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where the interest is adversely affected.” PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court of justice delivered on the 7th December, 2011 by Mohd Sadi Mato J.

The summary of the facts of the case leading to this appeal is as follows:

The Respondent who is the plaintiff at the lower Court filed an action through a writ of summons dated 15th July, 2005 and claim against the Defendant the following:

“1. Declaration of Court that Jibrin Lamido Unguwa Uku is the legal title holder and the owners of the piece of land situate at Unguwa Uku, Tarauni District of Tarauni Local Government Kano State covered by Right of Occupancy No. LKN/O0N/COM/84/161

2. Declaration of Court that the defendant have no legal title or ownership of the said piece of land and therefore has no justification to trespass into the land and prevent the plaintiff from his lawful occupation and constructions of structures under the approved building plan given by the KASEPPA.

3. Declaration of Court that the plaintiff was the lawful Attorney of the said Jibrin the original title holder of the right of occupancy in respect of the land covered by the right of occupancy No. LKN/CON/COM/84/161 and can therefore maintain an action in respect of the piece of land.

4. Declaration of Court that the actions of the defendants on invading the piece of land with their surface tanks, firewood etc. and refusing to vacate the land and also attempting to prevent the plaintiff from lawfully constructing a structure approved by KASEPPA was unlawful, trespass and illegal.

5. Perpetual injunction restraining the defendants by themselves, servants, privies, agents from entering, remaining in the piece of land or occupying or continue to occupy the said piece of land.

6. Damages cost, other reliefs in the interest of justice.”

At the hearing, the Respondent called in two witnesses and tendered 9 exhibits in support of their case. The Defendants on their part called one witness who testified in their favour.

At the end, judgment was entered for the plaintiff and against the defendants and as follows:
“1. Declaration of Court that Jibrin Lamido Unguwa Uku is the legal title holder and owner of the piece of land situate at Unguwa Uku, Tarauni local government, Kano covered by the certificate of Occupancy No. LKN/CO/Com/84/161.

2. Declaration of Court that the defendants have no legal title or ownership of the said piece of land covered by certificate of Occupancy No. LKN/CON/Com/84/161.

3. Declaration of the Court that the plaintiff is the lawful Attorney of the said Jibrin Lamido, the original holder of right of occupancy in the respect of the land covered by certificate of Occupancy No. LKN/CON/Com/84/161 and can therefore maintain an action in respect of the piece of land

4. Perpetual injunction restraining the defendants and/or their agents from entering or occupying or continue to occupy the piece of land.”

It is against this decision that the defendants appealed to this Honourable Court. The notice of appeal dated on 31/01/2012 and filed on 02/02/2012 contains 6 grounds of appeal without their particulars as follows:

“GROUND ONE
The learned trial Court erred in law when it held that Jibrin Lamido Unguwa Uku is the legal title holder and owner of the piece of land situate at Unguwa Uku, Tarauni local government Kano covered by certificate of Occupancy No. LKN/CON/Com/84/161, when there was no pleadings and no evidence led before the trial Court as to how such title was derived and when Jibrin Lamido was made a party to the action at the lower Court.

GROUND TWO
The learned trial judge did not give the defendants a fair trial when he held that the defendant did not plead the fact that Jibrin Lamido denied selling the plot in dispute to the plaintiff and the trial Court went on to deem the statement of defence by not hearing the application to that effect pending in the trial Court even at the time of judgment.

GROUND THREE
The learned trial judge erred by not ascertaining the identity of the land in dispute between the parties and the land sold to the plaintiff by Jibrin Lamido before giving a verdict one way or the other

GROUND FOUR
The learned trial Court erred in law when he granted a prayer in favour of a party not in the action, whose purported sale and transfer of land to the plaintiff in a customary way was not pleaded and not proved by evidence.

GROUND FIVE
The decision of the learned trial judge was not reasonable, was unwarranted and against the weight of evidence.

GROUND SIX
The learned trial Court entered a judgment for the Respondent without proof of any form of the title on the bases of a purported “Power of Attorney” when the visit to the land in dispute ordered by Court was pending and the purported donor of the power was not made a party and neither did he testify before the trial Court even when the Appellants summoned the donor to testify he was prevented by plaintiff’s counsel from testifying.”

Parties filed their briefs of argument in accordance with the rules of this Court. The Appellants’ brief was dated 25/06/2013 and filed on the 26/06/2013, while the Respondents’ brief was dated 19/09/2013 and filed on 23/09/2013. Both parties adopted the said briefs as their argument in this appeal.

The Appellants formulated four issues for determination from their six grounds of appeal which reads thus:

“1. Whether the plaintiff now Respondent by virtue of the power of Attorney donated to him by Jibrin Lamido his vendor, has any locus standi to sue the Appellants as of right in respect of the title to the land over which the power of attorney was donated on which Appellants have been in possession for years,

2. Whether the Plaintiff/Respondent on the basis of probability required by law in respect of proof of title to land, proved his title or any form of title before the trial Court,

3. Whether the trial Court gave the Appellants fair hearing or whether the learned trial Court was fair and impartial in the determination of this case,

4. Whether the judgment given by the learned trial Court in favour of Jibrin Lamido is within the powers of the trial Court.”

The Respondent on the other hand distilled three issues for determination which reads as follows:

“1. Whether the Respondent has a locus standi to institute the action contained in suit no K/442/05 before the Kano State High Court of justice leading to eventual judgment in his favour that form the basis of this appeal. Distilled from ground No 1,

2. Whether the Respondent has proved his case at the lower Court on the balance of probabilities/preponderance of evidence. Grounds 3, 4 and 6

3. Whether the Appellants were denied any fair hearing by the lower Court. Ground 2.

The Respondent also raised a preliminary objection on the competence of the issues formulated by the Appellants.

The issues raised in the notice of preliminary objection will be given a priority consideration in the determination of this appeal.

The learned counsel to the Respondent had submitted in his notice of preliminary objection that the Appellants grounds of appeal No 1 and 6 are issues that were never raised at the lower Court either in the course of trial or during addresses and can only be raised with the leave of Court hence the Appellants cannot raise this fresh issues without leave of Court. He referred the Court to the case of OLUM OGBA & ORS VS ISREAL J ONWOZU & ANOR VOL 22 NSCQR 888 AT 898-899

In response, learned counsel to the Appellants in his reply brief submitted that appeals from the High Court to the Court of Appeal are governed by the provisions of the Constitution of the Federal Republic of Nigeria 1999 and he referred the Court to SECTION 241(1)(a). He also referred this honourable Court to the cases of MU’AZU VS BANI MUSA HOLDINGS LTD (2011) ALL FWLR (PT.594) 172 AT 181, IWUEKE VS IMO BROADCASTING CORPORATION (2005) ALL FWLR 1025 AT 1040 B-C.

Learned counsel to the Appellants submitted that ground one of the notice of appeal is a proper complaint against the judgment of the lower Court on the error or injustice done to the Appellants at the lower Court.

Learned counsel to the Appellants also submitted that ground six of the notice of appeal is a complaint against the judgment of the learned trial Court for wrongfully conferring title on plaintiff via a power of Attorney when there is no clear identity of the land in dispute. The land was to be visited as approved by the learned trial judge upon application but no such visit took place because the learned trial Court closed the defence of the defendants prematurely.

A critical scrutiny of grounds 1 and 6 of the Appellants’ grounds of appeal shows that the Appellants who were the defendants at the lower Court raised those issues in paragraph 9 of their Amended Statement of Defence at page 82 of the record of appeal thus:

“The defendants partly admits paragraphs 7 and 8 of the statement of claim in that they actually petitioned the Hon. Commissioner for Land and physical planning over the ownership of the said land as a result of which a committee was constituted and the site was visited together with the defendants and the said Jibrin Lamido, wherein the said Jibrin Lamido confirmed before the members of the committee that the place where the defendants are occupying does not form part of the area where his own land is situated. At the trial evidence shall be lead to prove this assertion.”

Also at pages 27-28 of the records the DW1, testified as follows:

“The plot in question does not belong to the plaintiff. I was allocated the plot 18 years ago and I was conducting my business ever since. After about 10 or 11 years of peaceful enjoyment, the plaintiff came into the land and we started a dispute. Upon this moment, he took us to the police station about 2 years ago. The police referred us to the Lands Ministry. The lands ministry suggested the land be shared to us but we refused. The lands office then invited Jibrin Lamido from whom the plaintiff said he purchased the plot. Jibrin Lamido came denied and so the plot in dispute was not the one he sold to the plaintiff. That was on 30/12/2005. He gave this information before officials of Tarauni Local Government and lands office. Later on we continued keeping the land and the plaintiff brought us to Court.”

Based on the foregoing therefore, the Appellants’ grounds of appeal No. 1 and 6 cannot be said to be fresh issues that were never raised at the lower Court. They are issues that were clearly raised at the lower Court and the testimony of Dw1 is in line with the paragraphs 9 of the amended statement of defence.

On the second ground of the preliminary objection, the Respondent contended that issues No 1, 2, 3 and 4 formulated and argued by the Appellants in their brief of argument are incompetent in view of duplicity in the grounds of appeal. He further submitted that only one issue for determination can be formulated from a single ground of appeal and where four issues were formulated in respect of six grounds of appeals No 1, 2, 3, 4, 5 and 6 the issues so formulated becomes incompetent and ought to be struck out. He referred the Court to the cases of
MERCHANTILE BANK OF NIGERIA PLC VS LINUS NWOBODO VOL 23 NSCQR 60 AT 67-68; ATIKU VS THE STATE (2010) 9 NWLR (PART 1199) 241 AT 264; UBA VS ABDULLAHI (2013) 3 NWLR (PT.807) 357.

In response, learned counsel to the Appellants submitted that they filed six grounds of appeal and out of the six grounds of Appeal; they formulated four issues for determination even though more issues could have been formulated in addition to the four. The four issues formulated by the Appellants relates to the grounds of Appeal as follows:

a. Issue 1 relates to grounds 1, 5, & 6 of the notice of appeal
b. Issue 2 relates to grounds 3, 4, 5 & 6
c. Issue 3 relates to grounds 2 & 5
d. Issue 4 relates to ground 1 & 5

The notice of appeal filed by the Appellants contained six grounds of appeal and four issues for determination were distilled from the six grounds of appeal. The Appellants formulated issue No. 1 from grounds 1, 5 & 6, issue No. 2 from grounds 3, 4, 5 and 6, issue No. 3 was formulated from grounds 2 & 3, and issue No. 4 was formulated from grounds 1 & 5. This is improper. It is the position of the law that every issue for determination in an appeal must arise from one or more grounds of appeal. It is wrong in law to formulate multiple issues for determination from a single ground of appeal.
It is trite that no ground of appeal can be split to give multiple issues for determination, even though an issue for determination can be formulated from a multiple grounds of appeal.
See: YUSUF VS AKINDIPE, where the Supreme Court held thus:
“It is not permissible to formulate more than one issue for determination from a ground of appeal, even though several grounds of appeal can be covered by one issue for determination.”
See: AGBETOBA VS LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR (PT.188) AT 666;
In ADELOSOLA VS AKINDE (2004) 12 NWLR (PT. 889) 295, the Court held:
“It is against the practice of brief writing for one ground of appeal to be split into two issues.”
See also: NFOR VS ASHAKA CEMENT CO. LTD (1994) 1 NWLR (PART 319) 222.

In the instant case therefore, the issues formulated by the parties did not comply with the principles guiding formulation of issues. The four issues for determination formulated by the Appellants are incompetent having been raised from duplicate grounds of appeal.

I am of the opinion that it will be prudent to consider this appeal on its merit and it is for this reason that I adopt the three issues formulated by the Respondent for the determination of this appeal.

ISSUE ONE
Whether the Respondent has a locus standi to institute the action contained in suit no K/442/05 before the Kano State High Court of justice leading to eventual judgment in his favour that form the basis of this appeal. Distilled from ground No 1.

On issue one, the learned counsel to the Appellants submitted that in order to determine whether the plaintiff now Respondent has the locus standi to sue in respect of the land in dispute, it will depend on the statement of claim filed at the trial Court, He referred the Court to the case of MANGIBO VS OGUNDE (2010) ALL FWLR (PT.543) PAGE 1905. He argued that the two heads of claim in the statement of claim (1 and 2) clearly states the nature of the plaintiff’s claim as that of an attorney or an agent of a principal. He further stated that power of attorney is an instrument of delegation. He referred this honourable Court to the case of UDE VS NWARA (1993) 2 NWLR (PT.278) PG 638 AT PG 664 AND 665.

Learned counsel to the Appellants also submitted that where the principal of an agent is known or disclosed, the correct party to sue for anything done or omitted to be done by the agent is the principal. This honourable Court is referred to the case of LEVENTIS TECHNICAL LTD VS PETROJESSICA ENTERPRISES LTD (1992) 2 NWLR (PART 224) 459 AT PAGE 468.

Learned counsel to the Appellants further submitted that the plaintiff being an Attorney or Agent to the Donor of a power of attorney cannot sue as of right. This was more apparent by the virtue of the plaintiffs’ 1st head of claim, which sought a declaration of title in favour of Jibrin Lamido who unfortunately was not joined as a party in this action. This contravened the known principle of law that only parties to an action are bound by its decision or outcome. He referred the Court to the case of EKE VS AKUNNE (2009) ALL FWLR (PART 466) 2023 AT 556.

In his reply, on issue one, learned counsel to the Respondent submitted that the issue of locus standi never arose at the lower Court and that this is the first time it is raised by the Appellants and he argued that the Respondent has locus standi to institute and maintain suit No. K/442/05 before the Kano State High Court against the Appellants. He referred the Court to the cases of FAWEHINMI VS ATIKU (1987) 4 NWLR (PT.67) AT 797; MRS PETER PAM VS NASIRU MOHAMMED VOL 35 NSCQR 123 AT 172-173; OKOCHA VS INEC & ORS (2009) 7 NWLR (PT.1140) 295 AT 306-307.

Learned counsel to the Respondent further submitted that the contention of the Appellants that the Respondent must join Jibrin Lamido in the matter is a misconception as the said Jibrin Lamido no longer holds any interest in and over the land in dispute as posited by exhibit 1 which is the sale agreement and his non joinder cannot defeat the Respondent’s claim. He referred the honourable Court to the cases of:
OSUN STATE VS. DALAMI NIG. LTD (2003) 9 NWLR (PART 818) AT 72; DAPIALONG VS LALONG (2007) 5 NWLR (PT.1026) 199.

Learned counsel to the Respondent submitted that having conveyed the land in dispute to the Respondent, he has no other interest or injury to suffer and at best can be a witness for any of the parties to the suit. He also submitted that the issue raised by the Appellants that the power of Attorney granted to the Respondent by Jibrin Lamido made him an agent was not correct as the power of Attorney was for a valuable consideration and an irrevocable one, and the combination of exhibit 1 at pages 183-184 of the records and that the power of attorney reveal that the land has been conveyed to the Respondent and that the power of attorney is irrevocable. He referred this Court to the cases of;
UDE VS NWARA (1993) 2 NWLR (PART 278) 638; LEVENTIS TECHNICAL LTD VS PETRO JESSICA ENT LTD; EKE VS AKUNNE.

Learned counsel to the Respondent further submitted that by mere raising the issue of Respondent’s locus standi the Appellants who challenges it are deemed to have accepted the averment in the statement of claim. The Court was referred to the case of ADESOKAN VS ADEGOROLU (1997) 3 NWLR (PT. 493) 261.

The Respondents’ statement of claim at paragraphs 3 page 7 of the records reads:

“The plaintiff avers that one Jibrin Lamido of Unguwa Uku qtrs. Was the owner of piece of land at Unguwa Uku and some time on or about the 15th February, 1998 he conveyed the said piece of land to the plaintiff via a simple sale agreement executed by the said Jibrin Lamido and the plaintiff and same was witnessed by witnesses including the village head of Unguwa Uku. The said agreement is pleaded.”

Also, paragraph 5 of the power of attorney donated to the Respondent by the said Jibrin Lamido reads:

“To bring or defend any action or other proceedings in respect of or affecting the said land or any part thereof and to enforce by foreclosure sale appointment of receiver or receiver manager………. ”

Going by the definition of locus standi and also by the above claim in the statement of claim, I am most convinced that the Respondent has an interest in the plot of land in dispute. Also a good fook at paragraph 5 of page 205, the power of attorney donated to the Respondent allows the Respondent to bring or defend any action in respect of the said land.

Based on the above therefore, the Respondent has a locus standi to institute the action contained in suit No: K/442/05 before the Kano State High Court of justice the issue is resolved in favour of the Respondent.

ISSUE TWO
Whether the Respondent has proved his case at the lower Court on the balance of probabilities/preponderance of evidence. Grounds 3, 4 and 6

On issue two, learned counsel to the Appellants submitted that it is trite law that a claimant of title to land has the duty to prove title with a reasonable degree of accuracy and also that such claim or proof must be on the strength of the case of the claimant and not the weakness of the defence. He referred the Court to the cases of EKE VS AKUNNE (SUPRA) 2023 AT 2037. SHITTU VS FASHAWE (2005) ALL FWLR (PT.278) 1017 AT 1031-1033

Learned counsel to the Appellant further submitted that from the pleadings and the evidence led by the Respondent, the Respondent purportedly claimed title over the land in dispute as Attorney to Jibrin Lamido who the plaintiff never made a party to this action. Learned counsel submitted that title to land can be proved by several methods. He referred this Court to the cases of IDUNDUN VS OKUMAGBA (1976) 9 – 10 SC 337; BALOGUN VS AKANJI (2005) 22 NSCQR PG 104 AT 117.

He submitted that the five methods by which title to land may be proved as summarised in the above cases are as follows:
“1. Traditional method,
2. Production of documents of title which are duly authenticated,
3. Acts of selling, leasing and renting out all or part of the land or farming on it or a portion of it,
4. Acts of long possession and enjoyment of the land and;
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.”

Learned counsel to the contended that from the Respondents’ pleadings and the evidence led before the Court, the Respondent attempted to prove title by production of documents of title to wit statutory right of occupancy obtained through the conversion of a customary right of occupancy. Unfortunately, such document of title is not conclusive proof of title but mere prima facie evidence of title.

Furthermore, learned counsel argued that the plaintiffs’ case lacks substratum and therefore urged the Court to dismiss same. He submitted that the Respondent did not plead the other methods of proving title as contained in the decisions of IDUNDUN VS IKUMAGBA (supra). Learned counsel also argued that the Respondent did not prove the existence of customary title that could be converted to statutory right of occupancy because conversion presupposes the existence of a subsisting customary right of occupancy that can be converted to statutory right of occupancy. He further contended that even though the Respondent did not have a statutory grant, he is pretending to lay claims to have been given statutory right of occupancy. He referred the Court to the case of ADISA VS OYIWOLA & ORS (2000) 2 SCNQR 1264 AT 1299 and the case of AKPADIAHA VS OWO (2000) ALL FWLR (PT. 57) 947 F-G

Learned counsel to the Appellants argued that even though the Respondent purportedly purchased the land from Jibrin Lamido, no witness was called to prove the sales transaction. He also contended that even though Jibrin Lamido is still alive, he was not joined as a party and was not called to testify as a witness and that when the Appellants applied to call Jibrin Lamido as witness, the Respondent and the lower Court frustrated such effort after the witness came to Court in response to a subpoena served on him at the instance of the Appellants.

Learned counsel to the Appellants submitted that the title of the vendor was not pleaded and not proved. Nothing in the pleadings related to the nature of title of Jibrin Lamido neither was there evidence as to what title Jibrin Lamido had which was purportedly sold to the plaintiff. He maintained that the Respondent testified to the fact of the Appellants’ title in page 15 line 23 of the records of proceedings and that by the piece of that evidence, the plaintiff established the fact pleaded by the Appellants that the land was allotted to them by the Tarauni Local Government Council. He argued that since facts admitted need not be proved, the Appellants’ pleadings in relation to the allocation of the land in dispute to them are established. He referred the Court to the case of JOLASUN VS BAMIGBOYE (2011) ALL FWLR (PT.595) PG 203 AT 218.

Learned counsel to the Appellants further submitted that what amounts to purchase in law of customary title is a purchase followed by delivery of physical possession in presence of witnesses and further asked why Jibrin Lamido who abandoned the processing of title documents to the land in 1985 because the land was acquired for developing a motor park suddenly sell the same land to the plaintiff.

Learned counsel to the Appellants also submitted that even though plaintiff purported to have applied to Tarauni Local Government for fencing permit, there is no proof that any fence was ever erected by the plaintiff on the land in dispute and furthermore, there is no evidence before the trial Court that Jibrin Lamido had customary title from Tarauni Local Government and that the letter for permission to erect a fence must have been a misconceived document as it lacks basis. He further submitted that the plaintiff having failed to prove sale under customary law did not prove any other form of title recognised by the law before the trial Court, ought to fail and he referred the Court to the cases:
AKPADIAH VS OWO (SUPRA); OGUNBANBI VS ABOWABA 13 WACA 222; AKINGBADE VS ELEMOSHO (1964) 1 ALL NLR 154; COLE VS. FALOMI (1956) SCNR 180.

He submitted that since the vendor through whom the plaintiff claims has not shown to have any form of title which he could transfer to SALE HASSAN, the principle of law which is trite that NEMO DAT QUAD NON HABET should apply in this case.

Learned counsel to the Appellants submitted that the certificate of occupancy which the plaintiff processed and obtained in the name of Jibrin Lamido which has number LKN/COM/CON/84/116 and that by the nature of this statutory right of occupancy the ‘CON’ is an indication that the land in respect of which the certificate is issued was covered by customary right of occupancy because ‘CON’ is short for conversion from customary to statutory and also that the plaintiff was not able to prove the existence of such customary right of occupancy hence the plaintiffs’ case ought to and should fail. He stated that the position of the law with regards to certificates of occupancy is that it is merely a prima facie evidence of title. Learned counsel to the Appellants submitted that a certificate of occupancy issued over land with subsisting customary title would give way to a better title. He urged the Court to nullify the purported statutory right of occupancy NO: LKN/CON/COM/84/161 issued in the name of Jibrin Lamido. The Court was referred to the case of AKPADIAHA VS OWO (SUPRA).

Learned counsel to the Appellants submitted that the Appellants had and still has a better title to the land in dispute because even the plaintiff in his evidence admitted that the Appellants were allocated with the piece of land in dispute at Unguwa Uku Motor Park Tarauni Local Government. The piece of evidence of DW1 has been corroborated by the Plaintiff/Respondent himself in his oral testimony. The Court was referred to the case of AKPADIAHA VS OWO (2001) ALL FWLR (PG 57) 940 AT 959- 960; OGUNLEYE VS ONI (1990) 2 NWLR (PT.135) 745.

Learned counsel submitted further that Jibrin Lamido who ought to have been the claimant in this case was not allowed to testify when he was served with a subpoena by the Appellants through the trial Court, even though he came to Court on several occasion and was even put in the witness box on 08/03/2011 by the Appellants’ counsel but the Plaintiff’s counsel gave flimsy excuses which were not recorded by the trial Court and the Appellants were frustrated in their bid to call their witnesses.

Learned counsel urged this honourable Court to hold in favour of the Appellants on this issue and allow this appeal for the reason that the party who could give evidence in this case the alleged vendor was prevented by the party who ought to have called him as a witness. He referred the Court to SECTION 167(d) of the EVIDENCE ACT.

The learned counsel to the Respondent on the other hand submitted that he has proved his case at the lower Court on the balance of probability and preponderance of evidence. He submitted that the Respondent called two witnesses and tendered 9 exhibits in proof of his case. He further submitted that the testimonies of the Respondent’s witness as well as the 9 exhibits admitted were not in any way challenged and the lower Court relied on the unchallenged evidence of the Respondent to ground its judgment. He referred the Court to the cases of:
INEC VS ONYIMBA & ANOR (2004) 14 NWLR (PT.892) 92 131;
SHELL PETROLEUM DEV CO NIG LTD VS EDAMKVE & ORS (2009) 39 NSCQR 605.

Furthermore, learned counsel to the Respondent submitted that the only evidence given by the Appellants on page 24-28 of the records was not proved by the Appellants by either calling the officials of the land or Tarauni LG to testify or by calling Jibrin Lamido to testify, he further submitted that at best the evidence is unsubstantiated and therefore goes to no issue.

Learned counsel to the Respondent referred this honourable Court to exhibit 7 at page 200 of the records of proceedings and submitted that the parties in this case were invited by a committee set up by the ministry of land and physical planning, Kano State to look into the Appellants complaints and Jibrin Lamido was in attendance at the land office and he was not recorded to have denied selling the land to the Respondent. Counsel referred the Court to the last paragraph of page 173 of the record and also the resolution of the committee at page 174 of the record.

Learned counsel to the Respondent also submitted that the Appellants did not lead any evidence in support of their pleadings and therefore their pleading goes to no issue. He referred the Court to the case of ARABAMBI VS ADVANCED BEVERAGED IND LTD 24 NSCQR 520 AT 547.

Learned counsel to the Respondent submitted that the Appellants having failed to lead any evidence in support of their pleadings they are deemed to have been abandoned and the lower Court has no business in grounding its judgment on abandoned pleadings that is not supported by any evidence.

On the issue of visit to locus to ascertain the land in dispute, learned counsel to the Respondent submitted that the identity of land claimed by the Respondent was as contained in exhibit 5 pages 188 of the record. He referred the Court to page 155 and 157 of the records where the land was described. He also submitted that exhibit 7 at pages 173 of the records aptly stated that the land was shown by Jibrin Lamido who conveyed it to the Respondent during the physical inspection of the site with the Appellants and so they knew the identity of the land and the Respondent tendered and admitted exhibit 5 which contained a survey plan of the land and the Court need not visit the locus or bring evidence of boundaries. He referred the Court to the case of ONABE VS DEBANG (1997) 7 NWLR (PT.514) 683 AT 693.

In the instant case, the Respondent cannot prove that exhibit 7 which is the report of committee of ministry of land found in page 200 of the record, is genuine and valid. This is because of the fact that the Respondent failed to prove the validity of their exhibit after the Appellants in their amended statement of defence at paragraphs 10 at page 82 questioned its credibility. The said paragraph 10 reads:

“The defendants deny paragraph 9 and 10 of the statement of claim and went further to state that the committee report was never presented to them….”

Furthermore, the evidence of Dw1 found in pages 28 of the records of proceedings of the lower Court touches on the credibility of the said report of the committee. The evidence of Dw1 reads

“The lands office then invited Jibrin Lamido, from whom the plaintiff said he purchased the plot. Jibrin Lamido came denied and so the plot in dispute was not the one he sold to the plaintiff. That was on 30th December, 2005.

He gave this information before the officials of the Tarauni local government and lands office. Later on we continued keeping the land and the plaintiff brought us to Court.”

The above testimony of Dw1 challenges the validity of the said report of the committee and to further prove the above testimony, the Appellants through the trial Court served Jibrin Lamido with a subpoena. Even though Jibrin Lamido was in Court and put in the witness box, he was never allowed to give any testimony, and the trial Court did not record any reason as to why the said Jibrin Lamido was discharged with taking his testimony.

The Respondent ought to have called any member of the said committee to testify to the validity of the report, or better still invited the person who sold the land to him that is Jibrin Lamido to testify to the validity was the report of the committee, but none of these was done by the Respondent

In the case of ODON VS BARIGHA AMANGE (SUPRA), the Court held that:
“In effect, where a plaintiff fails to adduce satisfactory evidence to prove what was asserted, there will be no duty on the defendant to adduce evidence because the plaintiff is to succeed on the strength of his own case and not the weakness of evidence from the defendant.”
See also; ONIFADE VS OYEDEMI (1999) 5 NWLR (PT.601) 54 AT 56

Also, for unchallenged evidence to merit acceptance and probative value, it has to be credible and sufficient to support the pleadings of the party. See the cases of GONZEE NIG LTD VS NERDC (2005) ALL FWLR (274) 235 AT 248; ADELEKE VS IYANDA (2001) (PT.729) 1

The Respondent who has the burden of proof did not proffer enough evidence before the lower Court, and has fallen short of the requirements of the proof on balance of probability. I hereby resolve issue No 2 in favour of the Appellants.

ISSUE THREE
Whether the Appellants were denied any fair hearing by the lower Court. Ground 2.

On issue three, learned counsel to the Appellants submitted that fair hearing is a threshold issue in any trial and it is fundamental to the validity or otherwise of any proceedings before law Courts. He referred the Court to SECTION 36(1) of the Constitution of the Federal Republic of Nigeria 1999 and the case of MIDEN SYSTEM LTD VS EFFIONG (2011) ALL FWLR (PT.591) 1596 AT 605 and the BLACK’S LAW DICTIONARY.

Learned counsel further submitted that a close look at the judgment of the trial Court will certainly disclose that the Appellants were not given a fair trial as defined by Black’s law dictionary and contemplated by our laws.

Learned counsel to the Appellants also submitted that in the judgment of the trial Court, there was no comment on the pieces of evidence which are self-contradictory. He submitted that when DW1 was testifying, documents were tendered through the witness which were rejected by the trial Court on the grounds that they were not pleaded or certified as is required by law, but when counsel to the defendants sought to withdraw the documents, the trial Court ordered that the documents be marked and tendered rejected so as to prevent the possibility of curing the defects which made the document not admissible. Learned counsel also submitted that the only witness for the defence who was allowed to testify as DW1 stated thus:

“The land officer then invited Jibrin Lamido from whom the plaintiff said he purchased the plot in dispute, was not the one he sold to the plaintiff.”

Learned counsel to the Appellants argued that the witness was not cross-examined on the above piece of evidence but was surprised when the trial judge held thus:

Learned counsel submitted that the trial Court went on to deem the averments in the statements of defence and counter claim as abandoned, this the learned counsel to the Appellants submitted as gross injustice and unfair to the Appellants because the Appellants pleaded that the certificate issued to the Respondent was as a result of misrepresentation and also that Jibrin Lamido confirmed to the members of the committee set up by the HON. COMMISSIONER of land and physical planning Kano State that the place occupied by the Appellants did not form part of the land where his own land is situated. He also submitted that the Appellants clearly pleaded allocation of the land in dispute by the Municipal and Tarauni Local Government and this was part of the evidence of DW1, and under cross-examination, the witness said he applied for the land before he was given.

Learned counsel to the Appellants submitted that it was unfair for the trail Court to close its eyes to the piece of evidence on pleaded facts. The position of the law is that no matter how foolish the defence the Court has to consider it. He referred the Court to the cases of NGIGE VS OBI (2006) ALL FWLR (PT. 330) 1041 AT 1145; ITA VS EKPENYONG (2001) 11 NWLR (PT. 977) 54.

He contended that the trial Court should have considered the prayer of the counsel to the Respondent since the counsel to the Appellants was seeking to withdraw the document because the mistake of not certifying the public documents was at best the mistake of the counsel not that of the Appellants. He maintained that the trial Court on the 12/07/2011 closed the defence for the Appellants without stating any reason. The Appellant’s counsel applied to reopen the defence by a motion dated 26/07/2011 filed on the 27/07/2011 but the trial Court on the 28/07/2011 refused to hear or consider the motion which is still pending.

Learned counsel to the Appellants further submitted that the defendants were not only shut out by the trial Court but were tactfully made not able to put a defence and where defence was put, the trial Court did not see anything worth considering as against the consideration for the Respondent’s case.

Learned counsel argued that the counsel to the Appellant’s at the lower Court was given two weeks to file an address in writing which was done. N the written address, counsel to the Appellants raised issues of the Respondent’s inability to prove title and possession and that there was no proof that the Respondent was vested with enough interest to sue and cases were sited but the trial Court did not refer to them in its conclusion. He also submitted that the issue of locus standi of the plaintiff in this case was raised but the trial Court did not consider it in its judgment.

He submitted that the question of obtaining statutory certificate when there was no existing customary right of occupancy raised in the written address was also not considered in the conclusions of the trial Court and the counsel’s submissions on the long possession of the Appellants which was pleaded and proved through evidence.

Learned counsel contended that the trial Court ought to have considered the defence put up by the defendants through their counsel. The learned trial Court was also unfair in refusing to consider the defence of long possession put by DW1 and the defence of denial by Jibrin Lamido that the findings of the trial Court that the pieces of evidence were not pleaded was unfair. The Court was referred to the case of ADEBAYO VS SHIGO (2005) 21 NSCQR 103.

Learned counsel further submitted that the trial Court did not consider the question of Locus standi of the plaintiff raised in the written address of the defence counsel which goes to the jurisdiction of the trial Court. He referred the Court to the case of ELABANJO VS DAWODU (2006) 27 NSCQR 318 AT 343.

The Respondent submitted that the Appellants were accorded fair trial by the lower Court. He referred this honourable Court to the several adjournments sought and approved by the Appellants at the lower Court. These adjournments are found in pages 13 to 46 of the records of proceedings.

Learned counsel to the Respondent submitted that from 27/7/2011 when the Appellants were given two weeks to file their written address to 7/12/2011, the Appellants did not file any application to adduce any evidence if they have one. They were therefore accorded ample opportunity to present their case which they refused to utilise and the lower Court having regards to unnecessary application for adjournments by the Appellants refused to grant further adjournment as to do was to adjourn the case without any reason accepted by law. They have therefore waived their right if any. He referred this honourable Court to the cases of:
MOBIL PRODUCING NIG LTD VS LASEPA 2003 FWLR (137) 1029 AT 1053-1054; BAMISILE VS NATIONAL JUDICIAL COUNCIL 2013 ALL FWLR (PT 678) 911 AT 920 – 921; OMEZIRI VS OKO (2005) ALL FWLR (PT 261) 386 AT 401; UDU VS STATE (1990) 12 SCNJ 50 AT 60.

Learned counsel to the Respondent also referred the Court to the cases GOV. ZAMFARA STATE VS GYALENGE (2012) 4 SCNJ 1 AT 20 – 21 and ONARO VS HASSAN (2013) 788 AT 817.

The party’s right to be heard in any given case before a Court is fundamental in nature. This is enshrined in section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Courts of law have the duty to uphold all Constitutional rights of individuals. Any breach of the Constitutional rights of a party to a suit before any Court of law would be fatal to the decision reached by the Court no matter how so well a Court arrived at such a decision. Therefore, a Court must give parties equal rights to be heard. In the case of LEADERS & CO LTD VS BAMAIYI (2010) 18 NWLR (PART 1225) AT 333, the Supreme Court held that:
“The maxim ‘audi alteram partem’ means ‘hear the other side’ it denotes basic fairness and a generally accepted standard of natural justice, It means that a Court should allow both parties to be heard and ensure it listens to the point of view or case of each side. A decision of the Court which breaches the principles of fair hearing as enshrined in section 36 of the Constitution of FRN 1999 is null and void.”

In the instant case, the Appellants complained that the learned trial Court on the 12th July, 2011 closed the defence for the Defendants/Appellants without any reason stated by the Court, the Appellants counsel applied to re-open the defence by a motion dated 26th July, 2011 and filed on 27th July, 2011 but the trial Court on the 28th July, 2011 refused to hear or consider the motion which till date is pending. See page 47 of the records of proceedings of the High Court.

Also, on the 8th March, 2011, the Appellants were able to bring Jibrin Lamido to Court to testify but when he was before the Court, the plaintiff’s counsel started making submissions and the Court discharged the Appellant’s witness. The Court did not record the submissions made by the Respondent counsel neither did the Court give reasons why it discharged the Appellants witness without taking his evidence.

Furthermore, the trial Court refused to consider the defence of long possession put forward by Dw1. the evidence of Jibrin Lamido was refused on the ground that the piece of evidence were not pleaded. These facts were pleaded in paragraphs 9 of the statement of defence contained in page 82 and also in the judgment at page 227 of the printed records.

Apart from the refusal to hear the application pending before the court, it went further to expunge the strange evidence the Appellants led before it, when it held that:

“I have gone through the averments contained in the statement of defence and the counter claim. It is clear that no evidence was led by the defendants to give teeth to the defence and prove the counter claim.” It is trite that an averment in pleadings is not tantamount to evidence and it can never be construed as such. On the contrary, it has to be proved by evidence. Therefore I deem the averment in the statement of defence and the counter claim as abandoned”.

Going through the records of proceedings, at page 27-28 the Dw1 testified to prove their statement of defence and counter claim.

Therefore, it is unfair to the Appellants; the learned trial Court ought to have evaluated the evidence before the Court properly before reaching its final decision.

Furthermore, the lower Court rejected all the documents tendered before it by the Appellants on the ground of technicalities. The documents not being certified by law, but having regards to the relevance of the documents, the Court ought not to have rejected it based on technicalities and even when the learned counsel to the defendants applied for the withdrawal of the said documents in order to regularise it. The Court rejected the application and marked all the exhibits inadmissible. This is most unfair to the evidence of the Appellants.
In the case of CHIEF AKPAN VS BOB (2010) 17 NWLR (PT.1223) PAGE 421, the Court held that:
“Technical justice is not justice at all and Court of law should distance itelf from it. Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impending it with mere technical procedural irregularities that occasion no miscarriage of justice. Thus where the facts are glaring clear, the Court should ignore the technicalities in order to do substantial justice.”
See also: FBN VS TSA IND LTD (2010) 15 NWLR (PT.1216).

In the case of NWAOSU VS NWAOSU (2000) 4 NWLR (PT. 652) PAGE 35 AT 362, the Court held that:
“In all the common law jurisdictions, Nigeria and the US inclusive, fair hearing is fundamental in the adjudicatory process and where it is infringed upon, any judgment or order obtained thereby is flawed and must be set aside.”

Based on the above breach of the Appellant’s right to fair hearing by the lower Court, there is merit in this Appeal; therefore I resolve this issue in favour of the Appellants.

The decision of the trial Court is hereby set aside. The Chief Judge of Kano State is hereby ordered to assign this case to another judge of the Kano State High Court to be heard de novo.

There is no order as to cost.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I have read the judgment of learned brother, Aboki, J.C.A., and I agree with his conclusion that this appeal be allowed but, however, on the reasons expressed by me hereunder.

The proceeding at the lower Court was commenced by the Respondent via a Writ of Summons dated 15/7/2005 on which were endorsed the Respondent’s six reliefs. It is noteworthy that in the Respondent’s Statement of Claim, the particulars of the reliefs sought were not individually repeated, rather, the Respondent averred at paragraph 14 of his Statement of Claim that “the Plaintiff claims as per his Writ of Summons”. It ought to be highlighted that the action at the lower Court was instituted in the name of the Respondent, Saleh Hassan, but the first relief was for a Declaration that Jibirin Lamido Ungwar Uku, the Donor of the Power of Attorney, is the legal title Holder and owner of the said piece of land covered by Right of Occupancy No. LKN/CON/COM/84/161, then the third relief sought for a Declaration that the Respondent was the lawful Attorney of the said Jibiru Lamido.

After taking evidence of the parties and addresses of their respective Counsel, the lower Court found in favour of the Respondent and awarded reliefs 1, 2, 3 and 5 sought by the Respondent in his favour and dismissed the counter-claim of the Appellants. This appeal was thereafter lodged by the Appellants, who later presented four issues for the determination of this Court. The Respondent formulated three issues for consideration by this Court. I would for brevity deal with issue No.1 which touched on the locus standi of the Respondent to institute the action. The first issue presented by the Appellants is whether the plaintiff now the Respondent by virtue of the Power of Attorney donated to him by Jibrin Lamido his vendor, has locus standi to sue the Appellants as of right in respect of title to the land over which the Power of Attorney was donated on which the Appellants have been in possession.

It was argued by the Appellants that the Respondent being an agent of a disclosed Principal or a known Donor of a Power of Attorney cannot sue as of right in view of his first head of claim which sought for a declaration in favour of Jibrin Lamido who was never joined as a party to the suit. The Appellants are by their contention challenging the standing of the Respondent to sue the Appellants in the first place in his personal name. The action was not instituted in the name of the said Jibrin Lamido, the Donor, but in the name of the agent, the Donee.

Cases abound that issue of locus standi is so fundamental that where a party to a suit lacks the standing to institute an action, the matter shall automatically come to an end because the Court shall be without jurisdiction and cannot be competent to proceed further and consider the merit or otherwise of the action.

It must be stated that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do certain acts specified therein, on behalf of the grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless made irrevocable in a manner known to law. Even an irrevocable power of attorney does not have the effect of transferring title to the grantee. So, power of attorney does not convey ownership. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
In Innocent Obiora Nwankwo V. Comfort Agwuna (2007) LPELR-8445(Ca), Ogebe, J.C.A., (as he then was) opined that:
“..a Power of Attorney cannot confer title on a donee. It is a mere delegation of the powers of the donor to the donee. In the case of Ude v. Nwara (1993) 2 NWLR (Pt.277) 638 at page 665 the Supreme Court had this to say on defining power of attorney: “A power of attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers limits, charges or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is an alienation. See also the cases of Abu v. Kuyabana (2002) 4 NWLR (Pt.758) 599, Olorunfemi v. Nig. Bank Ltd. (2003) 5 NWLR (Pt.812) 1 and Amadi v. Nsirim (2004) 17 NWLR (Pt.901) 111.”

It was enunciated in Vulcan Gases Ltd. v. G.F. Ind. A.G. (2001) 9 NWLR Part 719 page 610, per Iguh, J.S.C., that the donee of a Power of Attorney or an agent in the presentation of a court suit or action pursuant to his power must sue in the name of the donor or his principal and not otherwise. The proper Plaintiff in an action commenced by an Attorney pursuant to a power of attorney is the Donor of the Power of Attorney.
Further, in Melwani v. Five Star Ind. Ltd.(2002) 3 NWLR (Pt.753) 217, Ogundare, J.S.C., observed that how an agent is to institute an action on behalf of his principal has just been considered by this court in a recent case, Vulcan Gases Ltd. v. G.F Ind. Gasverwertung A-G. (G.I.V.) (2001) 9 NWLR (Pt.719) 610. In the case, this court reviewed the ways an agency may arise. It was decided in that case that generally there is no statutory requirement in Nigeria that a power of attorney for an agent to sue or defend on behalf of his principal should be by deed. It was also decided that in the circumstances of that case, the lawful attorney of the plaintiff properly took out the action under common law and that the action was competently constituted. In that case, as in the instant case, the agent took out the action in the name of his principal. This case, on the issues under consideration, is on all fours with the Vulcan Gases Ltd. case. And on the authority of that case I hold that the action here was competently constituted. The agent, Mr. Adeniji, unlike the agent, Mr. Nahman in United Nigeria Company Ltd. v. Joseph Nahman & Ors. (2000) 9 NWLR (Pt.671) 177, sued in the name of his principal, Arjandas Hiranand Melwani. It is interesting to observe that Mr. Olojo, in oral argument, concedes it that the action as revealed by the caption is between A. H. Melwani and Five Star Industries Ltd. With this concession, it is difficult to argue that the action as constituted, is incompetent. The Court of Appeal was in error when it held that the action was incompetently constituted.
Also, in Ntia v. James (2007) ALL FWLR (Pt.351) 1600 at 1612 Paras. D – F (CA), it was held by this Court that even though as an agent Emmanuel Jones has stepped into the stead of his principal i.e APICO in this matter by the authority of the Power of Attorney, the Locus Standi to sue still resides in his principal i.e in this case the APICO so that the agent must necessarily sue in the name of his donor or principal and not otherwise, per Chukwuma-Eneh J.C.A.(as he then was). See also, the case of United Nigeria Co. Ltd. v. Nahman (2000) 9 NWLR (Pt. 671) page where Sanusi, J.C.A., referring to the learned authors of Halsbury’s Laws of England, 4th Edition clause 4 page 447 paragraph 744 expressed: “An agent acting under a power of attorney should, as a general rule act in the name of the principal. If he is authorised to sue on the principal’s behalf, the action should be brought in the principal’s name.
Mukhtar, J.C.A held in C.N. EKWUOGOR INVESTMENT (NIG) LTD. V. ASCO INVESTMENT LTD. (2011) LPELR-3899 (CA) that “Where, the plaintiff claims to protect the interest of its principal under a power of attorney, the suit must be brought in the principal’s name or at least in the agent’s name acting for the donor of the power of attorney, but certainly not by the donee in his own right, for he has no such right independent of the power of attorney. My learned brother Sanusi, JCA has aptly observed in United Nigeria Co Ltd v. Nahman (2000) 9 NWLR (Pt.671) 177 at 187 – 188 paras H-B: “An agent acting under a power of attorney should, as a general rule, act in the name of the principal. If he is authorized to sue on the principal’s behalf, the action should be brought in the principal’s name. A deed executed in pursuance of such a power is properly executed in the name of the principal or with words to show that the agent is signing for him, but the donee of the power may, where so authorized by the donor of the power, execute any instrument with his own signature and, where sealing is required, with his own seal, and act in his own name. This provision for execution and action by the donee in his own name exists as an alternative to the statutory procedure for the execution of a conveyance by the attorney of a corporation or by a corporate attorney. Any document executed or thing done under this provision is as effective as if it were executed or done in the name of the donor of the power. In the instant case, the 1st respondent, the donee, is authorized to act on behalf of his principal, the donor of the power of attorney. Thus, any act he does in his name is effective as if it was done by the donor.” The respondent therefore could only have filed the suit in its capacity as an attorney for Shanghai Light Industrial International (Group) Corporation Ltd. the donor of the power of attorney under which guise the respondent’s right has been rooted. Also, OKORO, J.C.A. (as he then was) stated it is the duty of a Plaintiff in his suit to show by his averments in the statement of claim that he has locus standi to institute the action; else, the statement of claim will be struck out. See Chief Irene Thomas & Ors. V. Olufosoye (1986) 1 N.W.L.R. Part 18 page 669.
It is clear in the Writ of Summons and Statement of Claim filed by the Respondent that the suit commenced by him at the lower Court was commenced in his personal name and not in the name of the Donor of the power of Attorney. He ought to have presented the suit in the names of those Donors as he has no locus whatsoever to institute the action in his own personal name. The proper Plaintiff was not before the lower Court and whereat the locus standi is lacking, the action is incompetent as the Court lacked the jurisdiction to entertain it in the first place. I see no need to proceed with the consideration of the remaining issues propositioned by the Appellants for consideration since this has at the outset dispose of this appeal. Accordingly, this appeal is hereby allowed by me based on the first issue formulated by the Appellants. Consequently, the judgment of the lower court in the said suit No. K/442/2005 is hereby set aside together with all the orders made therein. In view of lack of capacity on the part of the Respondent to have instituted the action founded on the Power of Attorney donated to him by one Jibrin Lamido and tendered as Exhibit 8 in the botched proceeding, the said suit No. K/442/2005 is hereby struck out for want of jurisdiction. I make no order as to costs.

ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading, in draft, the lead judgment just delivered by my learned brother, ABDU ABOKI JCA, and I agree with his reasoning and conclusions.

I abide by the consequential orders in the lead judgment.

Appearances

Murtala Musa Esq.For Appellant

AND

S. A. Magashi Esq. – holding brief for Salisu Sule Esq.For Respondent