Augustusa. Ndukauba (Substituted by Lazarus I. Ndukauba) V. Chief Silas M. Kolomo & Anor (2000)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The appellant sued the respondent in the High Court of Rivers State claiming for a declaration that he was the person entitled to the possession, control, management and enjoyment of property known as Plot 138, Borikiri layout (8 Etche Street) Port Harcourt until the proper determination of the lease which is the year 2060, perpetual injunction and other ancillary claims. Pleadings were exchanged and the appellant gave evidence on his behalf. In his evidence, he stated that the disputed property was leased to one Joseph Ezeakunne by the Government of the defunct Eastern Nigeria. As the property is in Port Harcourt, it was deemed granted by Rivers State Government. The lease for 99 years commencing 1st Jan., 1962 is Exh. A. Joseph Ezeakunne subsequently granted a power of attorney Ex. B to his father to manage the property. The father built a house of 16 rooms and managed the property until Nigerian civil war when the family ran away. After the civil war, the property was released to his father by Ex. C. In 1982, the 1st respondent came to the property and took it over and began to develop it. He claimed that he had bought it from the Rivers State Government. The appellant admitted that the power of attorney was not consented by the Governor of Rivers State.

The 1st respondent in his own defence stated that he bought the property from the Rivers State Government in 1982 and developed it extensively, adding 1st and 2nd floors to the existing property. He built 10 bed-room bungalow in an open space within the premises and carried out other developments without any challenge from any body. It was in 1988 that the appellant began to question his title to the property.

The trial Judge gave judgment dismissing the appellant’s claim on the ground that the power of attorney granted to the appellant’s father was void and since the appellant’s father has died the appellant has no locus standi to pursue the case. Dissatisfied with the decision, the appellant appealed to this court and filed a brief of argument which identified four issues for determination as following:

1. “Whether the power of attorney on which the claim was founded in the lower court is null and void and of no effect.
2. Whether the authorities of L.S.D.P.C. v. N.L. & S.P. Limited (1992) 5 NWLR (Pt.244) p. 653 and Osunrinde v. Ajamogun (1992) 6 NWLR (Pt.246) 156 are applicable to this case.
3. Whether the property was duly vested in the defendant/respondent’s vendor (Secretary to the Rivers State Government) who could convey or sell same to the 1st defendant/respondent.
4. Whether the sales agreement Exhibit ‘G’ is known to law and valid.”

The 1st respondent also filed the brief of argument and identified two issues for determination as follows:

1. “Whether plaintiff can rely on the Power of Attorney tendered as Exhibit B in the trial court to institute this action and continue same to conclusion.
2. Whether the plaintiff/appellant has the locus standi in the circumstance of this case to question the validity of the sale of the property to 1st defendant/respondent.”

The appellant also filed a reply brief. The issues formulated by the appellant appear to me as academic and scanty. Issues 3 & 4 are seeking for answers to matters not decided by the lower court at all. It is not the duty of this court to engage in an academic exercise or to decide issues which were not canvassed before the lower court or pronounced upon by the lower court. Accordingly, issues 3 & 4 struck out. In fact, the only issue which arises for determination in this appeal is the first issue formulated by the 1st respondent. The learned Counsel for the appellant submitted that the trial court was wrong in dismissing the claim only on the ground that the power of attorney was not consented to by the Governor of Rivers State. He relied heavily on the case of Ude v. Nwara (1993) 2 NWLR (pt.278) 638 which is a case which has to do with alienation of family land.

The learned Counsel for the 1st respondent in his own submission said that the power of attorney was void because it did not receive the Governor’s consent and on the death of appellant’s father as a donee of the power of attorney, the appellant ceased to have locus standi to pursue the claim. He relied on the case of Osunrinde v. Ajamogun (1992) 6 NWLR (Pt.246) 156.

In the case of Ude v. Nwara (1993) 2 NWLR (pt.278) 638 at pages 664-665, the Supreme Court defined the Power of Attorney as follows:

“It is left for me to deal with the second respondent’s contention that by execution of the Power of Attorney, Exh. “A” without their consent the plaintiff/appellant had committed a breach of the covenant not to part with the possession of the demised property without the lessor’s consent. To begin with, it appears to me that this thrust of the argument lost sight of the time nature of a Power of Attorney. A Power of Attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorizes another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually clearly spelt out in the Power of Attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seisin to third parties. It may be issued for valuable consideration or may be coupled with interest, in either case, it is usually made to be irrevocable either absolutely or for a limited period (see Ss, 8 and 9 of the Conveyancing Act of 1881 which is still applicable in the Rivers State under Section 15 of the High Court Law). 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 authorises 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.”

From the facts of the case, it can be seen that the appellant’s claim to the property is based entirely on Ex. B, the Power of Attorney given to the appellant’s father to manage the property. The document could not properly transfer title or even possession in the disputed land to his father without the consent of the Governor according to the terms of the lease Exhibit A. That is the purport of the lower court’s decision. From the reading of that document, it is clear that the Power of Attorney only delegated the authority of the donor to appellant’s father personally. It was not meant to transfer the authority from father to son. It therefore followed that when the appellant’s father died on the 29th of October, 1988 during the pendency of the case in the lower court the appellant had no locus standi to pursue the matter.

I am satisfied that the lower court was right in dismissing the appellant’s claim and I see no reason to disturb the judgment. Accordingly I dismiss this appeal and affirm the decision of the lower court. I award N3,000.00 costs in favour of 1st respondent against the appellant.

Other Citations: (2000)LCN/0729(CA)