Ayatu Abu V. Abdullahi E. Kuyabana & Ors (2001)

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MUNTAKA-COOMASSIE, J.C.A.

In the writ of summons issued by the High Court of Justice, Federal Capital Territory, the plaintiff, (Ayatu Abu) now appellant, claimed against the defendants, now respondents as follows:-

1. “A declaration that the plaintiff is the bonafide owner of the land known as plot 884 later converted and known as plot 885 Mabushi District in Abuja Federal Capital Territory.
2. A declaration that the transfer of the land known as plot 884 later known as plot 885 Mabushi District in Abuja Federal Capital Territory by the 1st defendant to the 2nd defendant or any person is null, void and amount to fraud as the 1st defendant had transferred the land to the plaintiff first in time.
3. An order of injunction restraining the defendants, their agents, servants and privies from building, constructing or doing anything on the said land.

4, An order directing the defendants, their agents, servants, and privies to hand over the statutory right of occupancy or any other documents relating to the land known as plot 884 later known as plot 885 Mabushi District in the Federal Capital Territory to the plaintiff.”

The plaintiff’s title was endorsed thus; Ayatu Abu (suing by HIS ATTORNEY Shuaibu Abu) on the writ of summons. After the service of the writ, the defendants filed their memorandum of appearance.

Thereafter the defendants filed a notice of preliminary objection dated 16th day of July, 1999 and sought the following prayers:-

“… an order striking out the above suit for want of jurisdiction on the following grounds:-

(a) Non-compliance with provisions of Sherriffs and Civil Process Act, Cap. 407 Laws of the Federation of Nigeria.

(b) Lack of locus standi on the part of the plaintiff/applicant’s attorney to institute the suit.”

This motion was moved in the lower court on the 20/7/99, while it was thereafter adjourned to the 26th July, 1999 for the appellant’s reply. Having heard both parties on the said preliminary objection, the learned trial Judge, granted the application in part and dismissed the suit on the following terms:-

“The learned counsel for the plaintiff/respondent on the other hand argued that Section 99 of the Act applies only to processes issued for service outside jurisdiction. In the case at hand, the processes are issued and served within jurisdiction. This argument is well taken, the provision of Section 99 of the Act applies only to processes served outside jurisdiction and it does not therefore apply to the case at hand in which service was effected with F.C.T. (sic)

On the second leg of the applicants’ argument however, I am convinced that the power of attorney as duly submitted by the learned applicants’ counsel is a document affecting land and by the provision of Section 15 of the Land Registration Act it can neither be pleaded nor given in evidence unless it is registered in the Land Registry. Section 3(2) of the Land Registration Act has further butressed this point. It is well taken by the applicants’ counsel. The power of attorney in question having not been duly registered cannot therefore give valid locus to the attorney in respect of a matter such as the instant one affecting land.

It follows therefore that the suit filed by the purported attorney whose power falls short of statutory requirement for recognition on matters affecting land is incompetent. It further follows that the suit being incompetent must be and is hereby dismissed.”

It is against this ruling upholding the preliminary objection that the plaintiff had appealed to this court. In the notice of appeal filed in this court. Four grounds of appeal were filed thus:-

1. The learned trial Judge erred in law when he held that the plaintiff lacks locus standi to institute this action.
2. The learned trial Judge erred in law when he held that a power of attorney vide Exhibit (A) by which the donee was given the power to sue was inadmissible pursuant to Section 15 of the Land Registration Act, Cap. 515 LFN.
3. The learned trial Judge erred in law when he dismissed the suit instead of striking it out on the ground of Jack of jurisdiction.
4. The trial Judge erred in law when he granted the relief not sought in his ruling.”

In accordance with the rules of this court both parties filed and exchanged their respective briefs of arguments.