Alhaji A.B. Abubakar V Alhaji Abubakar Daniya Waziri & 3 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

P.O.  ADEREMI, J.S.C.

This is an appeal against the judgment of the Court of Appeal (Abuja Judicial Division) delivered on the 16th day of September 2004, The said court (hereinafter referred to as the court below) heard the matter on appeal from the judgment of the High Court of Niger State sitting in Minna, Niger State which judgment itself was delivered on the 16th of October 2002.

The respondents herein as plaintiffs before the trial court had claimed from the appellant herein as the defendant before the High Court, the following reliefs: –

(1) An order on the defendant to give a satisfactory account of the assets of the late Alhaji A, B, Waziri who died on the 3rd of May 1995,

(2) An order that the defendant should disengage from the administration of the estate of the said deceased. and

(3) An order that the defendant should surrender all assets of the said deceased in his possession to the plaintiffs.

The plaintiffs filed their pleadings but the defendant who failed to file any pleading brought two applications before the trial commenced. The first which was to join a limited liability company by name AREWA CONSTRUCTION COMPANY LIMITED as 2nd defendant was dismissed by the trial court. The second application was by way of preliminary objection contending that the Power of Attorney was donated to the Board of Directors of Arewa Construction Company Limited and not to the defendant and consequently praying that the suit be struck out for what he termed as failure to sue a proper party was equally overruled. Thereafter, the plaintiffs as respondents here called a witness in the person of the 4th plaintiff/respondent. The appellant as defendant in that court did not file any defence also did not call any evidence. The trial judge, in a reserved judgment delivered on the 16th October 2002 dismissed the suit in toto, in so doing he held inter alia: –

”In the instant case apart from the averments of the plaintiffs I can find no evidence to support their’ claim that they donated the defendant with the power of Attorney to deal with the property of their father on their behalf. Throughout the pleadings the word “assets” is used – assets of late Alhaji A.B. Waziri. The evidence of PWI shows they are all landed property in respect of which there is no Power of Attorney vested in the defendant-.

Consequently, none of the reliefs can be granted against the defendant. In the final analysis, the suit, should be dismissed as a result the case is hereby dismissed’.”

Being dissatisfied with the judgment, the plaintiffs who are the present respondents, appealed to the court below. The court below after taking arguments of counsel, in a reserved judgment delivered on the 16th of July 2004, allowed the appeal and consequently granted all the reliefs sought by the plaintiffs/respondents against the defendant/appellant. In so finding, the court below after referring to the provisions of Order 27 Rule 8 (1) of the Niger State Civil Procedure Rules, reasoned inter alia: –

“In effect the above provision provides for a situation where a defendant who has been served with a writ of summons and a statement of claim fails to file a reply, that is, a statement of defence in answer to the claim labeled against him within the time stipulated by the court rules as in the instant case. in such a situation, the plaintiff is, on an application to the court, entitled to judgment as per the reliefs claimed. It is trite that where there is no defence to the plaintiffs claim, the plaintiff is entitled to judgment.

In the circumstances, this appeal succeeds and is hereby allowed. I set aside the decision of the trial court delivered on the 16/10/2002 and invoke our powers under Sec. 16 .of the Court of Appeal Act Cap LFN 1960 and substitute it with an Order entering judgment for the plaintiff in the following terms:-

(1) It is hereby ordered that the respondent/defendant gives a satisfactory account to the plaintiffs/appellants of the assets of Late Alhaji A.B. Waziri who died on the 3/5/95.

(2) It is hereby ordered that the defendant/respondent disengages from the aministration -of the estate of late Alhaji A.B. Waziri.

(3) It is hereby ordered that the defendant/respondent surrenders all assets of late Alhaji A.B. Waziri in his possession to the plaintiffs/appellants.”

Being dissatisfied with this judgment, the respondent before that court who is now the appellant, has appealed to this court by a Notice of Appeal filed on 23rd August 2004 with four grounds of

appeal.

Distilled from the said grounds of appeal for determination by this court are two issues which, as set out in his brief of argument filed on 17th March 2005, are in the following terms: –

“(1) Whether the Court of Appeal was right in holding that the trial court should not have gone into the issue of Power of Attorney.

(2)’. Whether the plaintiffs had proved their case upon a preponderance of evidence.

For their part, the respondents raised only one issue for determination in this appeal; as set out in their brief of argument, it is as follows: –

“Whether the lower court was right in holding that plaintiffs had proved their case.

By a Notice of Preliminary Objection pursuant to Order 2 Rule 9 (1) of the Supreme Court Rules as amended in 1999, the respondents are urging that this appeal be struck out on the ground that same was not filed with the prior leave of the court, since, according to them, grounds 1,2,3 and 4 raise issues of mixed law and fact. It is basic constitutional principle that where grounds of appeal are of mixed law and facts or facts alone, it is imperative that leave of court must first be sought and obtained otherwise the Notice of Appeal carrying such grounds on that leave of court is incompetent and it is as good as an appeal not having been filed and if such grounds are additional grounds and no leave is sought and obtained in respect of them an issue arising there from will be regarded as incompetent and will be struck out. See Aja & Anor v. Okoro & Ors (1991) 7 NWLR (pt.203) 260 and Section 233 (3) of 1999 Constitution of the Federal Republic of Nigeria. However, an appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right where the ground of appeal involves question of law alone in any civil or criminal proceedings. See Section 233(2) (a) of the aforesaid Constitution. The respondents/applicants to the Notice of Preliminary Objection have submitted that grounds 1, 2, 3 and 4 raise issues of mixed law and facts and consequently the Notice of Appeal filed on 23rd of August 2004 is incompetent. In reply, M.I. Usman, learned senior counsel for the appellant argued that grounds 1 – 4 do question the interpretation the court below gave to the evidence to the effect that there was a Power of Attorney and yet none was tendered. The four grounds, to him, are grounds of law and they do sustain the appeal. I must not fail to say that the determination of what ground of appeal is pure law, mixed law and facts or facts alone is loaded with difficulty. In deed it is a terrain not easy to traverse in bur civil jurisprudence. I have had a very careful study of the four grounds and it seems to me that ground 2 is purely a ground of law and it therefore sustains the Notice of Appeal Ground 2 reads:

Ground 2

“The Honourable learned justices of the Court of Appeal erred in law in setting aside the judgment of the trial court when the evidence of the plaintiffs’ sole witness was contrary to the pleading.”

This ground, when read objectively, does not call for perception or evaluation of evidence led. All it is saying is just an invitation to read the averments in the pleading and see whether raised by the appellant and the only issue identified by the respondents; the two sets of issues dovetail into each other shall therefore take them together.

When this appeal came before us for argument on the 1st of April, 2008, Mr. Usman, learned senior counsel for the appellant referred to, adopted and relied on the appellant’s brief of argument filed on 17th March 2005; he referred to pages 59 – 63 of the records of proceedings which contains the judgment of the court below and pointed out that even though the court below found that Power of Attorney was donated yet none was tendered in evidence – this, he further submitted was fatal to the case of the plaintiffs/respondents. He urged that the appeal be allowed and the judgment of the court below be set aside and the judgment of the trial court dismissing the suit in toto be restored.

Mr. Ibrahim, learned counsel for the respondent referred to, adopted and relied on the respondents’ brief and urged that the appeal be dismissed.

Having found that the Notice of Appeal is competent, I shall now proceed to consider the merit or otherwise of the appeal. In his brief of argument, the appellant after reviewing the evidence of PWI to the effect that the case of the respondents hinged on the fact that Power of Attorney was donated to the appellant to-give the legal authority to deal with the landed property of the deceased. And having admitted that the Power of Attorney was in writing, the plaintiffs/respondents were under a duty to tender them in evidence and failure to so do was fatal to the case of the plaintiffs/respondents. That the defendant/appellant did not file any statement of defence and failed to call evidence would not amount to an admission of the plaintiffs/respondents’ case; while relying on same judicial decisions the like of (1) Comptor Ltd v. Ogun State water Corporation (2002) 4 S.C.N.J. 342; (2) Aduku v. Aiyelabola (1942) 8 WACA 43 and (3) Egestamba v. Onu7drutkf. (2002) 15 NWLR (Pt. 791) 466 he urged that the appeal be allowed, the decision of the court set aside while the decision of the trial court be affirmed. On their part the respondents submitted that paragraphs I and 3 of the statement of claim constitute the foundation of their case. The averments on the two aforesaid paragraphs of statement of claim is that two persons (the Etsu Nupe and the elders) intervened in the matter of administration of the estate of the deceased. And since nothing in the averments suggests that the appointment said to have been made by the Etsu Nupe was in writing and/or that the advice of the elders was heeded and a Power of Attorney executed as a follow up; it was therefore submitted that evidence. led in support thereof would not be admissible; thus, evidence of purported donation and existence of a Power of Attorney would be inadmissible in law. They further went on to submit that since no statement of defence was filed, issues were never joined on the averments in paragraphs 1 and 3 of the statement of claim. They finally submitted that issue as to donation of Power of Attorney to the appellant by the respondents or the execution of same was pleaded and so they did not constitute issues arising from the pleadings. They finally urged that the appeal be dismissed.

As pointed out by the parties in their respective briefs, the fundamental issue throwing itself up for determination in this case is whether there is evidence, admissible in law, supporting the existence of Power of Attorney and more importantly, whether Power of Attorney was pleaded. The only pleadings before the trial court is the statement of claim filed on behalf of the plaintiffs/respondents. That the property of late Alhaji A.B. Waziri included landed property is not in dispute. Paragraphs 1 and 3 of the statement of claim which raise this crucial issue read:-

Para 1

“The plaintiffs are the surviving children of late Alhaji A.B. Waziri Nupe who die (sic) on 3/6/95 suffering from with hypertension as primary cause of death. The defendant as at the instance of His Royal Highness the Etsu Nupe appointed to take charge and oversee the affairs of the said deceased on behalf of the plaintiffs.”

Para 3

“The plaintiffs were by the intervention of elders advised to donate the defendant with Power of

Attorney to deal with the assets of their father.”

It has been a long standing principle of our law that pleadings must not be evasive; it must be cogent and pungent. One of the objects of pleadings is to settle the issues to be tried and it must be taken as established law that parties are bound by their pleadings and the court should not allow evidence to be given in respect of facts not pleaded or not clearly pleaded. See Atanda & Ors v. Ajani & Ors. (1989) 3 NWLR (pt. 111) 555. PW1 – Alhaji Mohammed Yauri Waziri who is the 4th plaintiff/respondent while testifying in proof of the averments in their pleadings, said inter alia:-

“By virtue of the Power of Attorney thus donated to the defendant he was expected to render account to us, but he did not.”

Can it be said that a Power of Attorney, going by the averments in paragraph 1 and 3 of the statement of claim, was pleaded My answer to this question is in the negative. The highest or the most benevolent interpretation or construction that can be given to these averments particularly in paragraph 3 is that an advice was given that a Power of Attorney be donated to the defendant/appellant. There is no averment that it was so donated. As I have pointed out above, the estate involved landed property. In law, Power of Attorney as it relates to land, is an instrument, going by the definition of section of Land Registration Laws of Niger State Cap 67 Section 2 thereof Section 15 of the same Law provides: –

“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.”

The importance of Power of Attorney and its being registered particularly when it relates to landed property is underscored by the following comment in Bowstead and Reynolds On Agency 1ih Edition Article 10, Para 204 I on page 51 which reads thus: –

“Certain acts must by law be performed by deed, notably conveyances and many leases. In these

cases authority to an agent to execute such a deed must itself be given by deed, usually called Power of Attorney.”

To reinforce the contention that Power of Attorney as it relates to land or landed property must be registered was emphasised by this court in the case of VULCAN GASES LTD V. G.E. IND A-G (2001) 9 NWLR (pt.719) 610 where at page 664 it was reasoned:-

“But these are specific circumstances requiring a Power of Attorney such as Section 85 of the Registration of Titles Law (Cap 166) Vol. 7 Laws of Lagos State or as contemplated by the definition in Section 2 of the Land Instrument Registration Law (Cap. 111) vol. 5 Laws of Lagos State or as provided under Sections 46 – 48 of the Conveyancing Laws, of Property Act 1881 of England…

These circumstances invariably concern dealing in land.”

OSSAI V. NWAITDE & ANOR (1975) 4 S.c. 207 where it was held that since the instrument was not registered when the plaintiffs’ claim was instituted and since it was not averred as such in the statement of claim, then the claim was incompetent and the pleading ought to have been struck out.

Given the judicial authorities that I have referred to above, this action is not maintenance in law, against the defendant/appellant. The court below was therefore wrong in law in entering judgment in favour of the plaintiffs/respondents. It will be a travesty of justice to allow the judgment of the court below to stand.

Accordingly, this appeal succeeds, and it is allowed. The judgment of the court below is hereby set aside. In its place, I hereby restore the judgment of the trial court delivered on 16th of October 2002 dismissing the claims of the plaintiffs/respondents. The appellant is entitled to the cost of this appeal which I assess at N50,000.00 (fifty thousand naira) and same is hereby awarded in his favour but against the plaintiffs/respondents.

SC.41/2005