Aloycious Okpe V. Blessing Umukoro (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Delta State High Court delivered by Hon. Justice (Mrs.) U.E. Akperi on 17th of May, 2012. The facts that led to this appeal are as follows:

The Respondent was the claimant at the trial court who filed a writ of summons on which was endorsed a claim for declaration of title to a parcel, damages for trespass and an order of perpetual injunction. Parties filed pleadings and issues were joined by the parties. The matter went for pre trial conference and trial proper commenced on the 5th of October, 2011 with the Respondent as claimant opening his case.

He sued through his attorney, one Madam Esther Umukoro. Madam Umukoro tendered the power of attorney in evidence as Exhibit A. It was tendered without any objection. The Respondent through the attorney concluded his evidence on 2nd November, 2011, called a second witness and closed his case. The case was adjourned to 28/11/2011 for defence. After filing several motions, the Appellant filed an application mainly for the following prayers.

An order striking out this suit in that this Honourable Court lacks jurisdiction to adjudicate over and/or further adjudicate over this suit in the capacity in which this suit is constituted and/or instituted.

The grounds for the application were stated as follows:

(i) This suit was commenced by one Madam Esther Umukoro, suing as the lawful attorney of the claimant, Blessing Umukoro, vide a purported power of attorney, Exhibit A in this proceedings.

(ii) The subject matter of this suit is land.

(iii) Section 17 of the Land Instrument Registration Law, CAP.81, Laws of the Defunct Bendel State of Nigeria, 1976, an applicable law in Delta State, provides thus:-

17, every power of attorney affecting land shall, so fart as it affects any land, be void unless the same is registered within sixty days from its date if it is executed in Nigeria or within ninety days from its date if it is executed outside Nigeria.

(iv) The purported power of attorney relied upon to commerce this suit was allegedly executed on the 1st day of February, 2002 and stamped on 22/12/2010, the date this suit was commenced in this Honourable Court, without registration.

(v) There is no lawful or valid power of attorney on the basis of which this suit was instituted in the capacity in which the suit is allegedly constituted.

Parties joined issues on the application and written addresses were filed. In a considered ruling delivered on 17/5/2012 the learned trial judge dismissed the application. Dissatisfied, the Defendant at the trial court filed this appeal and argued the appeal while depending on the notice of appeal filed on 22/5/2012.

In the brief settled by Chief P.O. Wanogho, filed on 10/9/2012, the Appellant’s counsel identified three issues for determination as set out below: