United Nigeria Company Limited V. Joseph Nahman & Ors (2000)

LawGlobal-Hub Lead Judgment Report

SANUSI, J.C.A.

This is an appeal against the judgment of Silva, J. of Lagos State High Court delivered on 20th June, 1995. The 1st respondent was the plaintiff at the lower court. The appellant was the 3rd defendant while the 2nd, 3rd and 4th respondents were the 1st, 2nd and 4th defendants respectively at the lower court. The 1st respondent by his final amended statement of claim instituted an action claiming the under-mentioned reliefs:

1. A declaration that the plaintiff is the owner in possession of all that piece or parcel of land which is situated at and known as plot 16 Ijora Causeway, Ijora, Lagos.
2. Perpetual injunction restraining the defendants and their servants and agents from going on the said plot and further acts of trespass on the said plot 16 Ijora Causeway.
3. N200.00 damages against the defendant for trespass committed on the plaintiff’s said land that is plot 16 Ijora Causeway, Lagos.

Annual Rental value is N456:20k.

The 2nd and 3rd respondents as 1st and 2nd defendants in their final amended statement of defence denied all the plaintiff’s claims. The appellant thereupon on 28/6/82 applied to be joined as the 3rd defendant in the suit and the lower court so joined them. Subsequently, they filed their final amended statement of defence and counter-claim. They also denied all the claims by the plaintiff. In their counter-claims they sought the following reliefs:

“Whereof the 3rd defendant claims a declaration that the order made by this court on 23rd January, 1989 that the Registrar of Titles to rectify Register of Title No. M09639 in respect of plot 16, Ijora Causeway in favour of the plaintiff by restoring the name of Jamil Akkari Abdallah on the proprietorship register of Title No. M09639 is null and void and of no effect whatsoever”.

On its own part, the 4th respondent as the 4th defendant filed his final amended statement of defence wherein he admitted committing an error in registering plot 16, Ijora Causeway Lagos in favour of Bendel State Government and undertook to rectify the Register of Title No. M09639 in favour of the plaintiff by restoring the name of Jamil Akkari Abdallah on the proprietorship register of the said file. He however, denied any inducement by the 1st and 2nd defendants. He however, admitted that he never gave any notice to the plaintiff in that wise. Perhaps it is appropriate to briefly state the facts of this case as presented at the lower court so as to give a background of what led to this appeal. The case of the plaintiff at the lower court is that he was the lawful attorney of one Jamil Akkari Abdallah by the grant of a Power of Attorney dated the 27th March, 1997. He alleged that the disputed plot at No.16, Ijora Causeway (situated at Ijora Industrial Estate) was granted to the said Jamil Akkari Abdallah by the then Mil. Gov., Lagos State for 99 years to expire on the 30/6/2068. The grant was subsequently registered under title No. M09639 at the Land Registry Lagos. The plaintiff alleged that in 1978 he noticed that the 3rd defendant/appellant had come into the land and upon enquiries he found that the company was on the land at the instance of the then Bendel State Government, acting pursuant to a supplement to Federal Government Official Gazette No. 10 Volume 64 of 10th March, 1977 part B otherwise referred to as LN 13 of 1977 which forfeited a 3 acre undeveloped land at Ijora Causeway, Lagos, property of one Edwin Clark and vested it in the Bendel State Government. He further alleged that the land belonging to Edwin Clark which was forfeited vide Legal Notice 13 of 1977 was not the same as the land in dispute.

On 23rd January, 1989, the court below granted an application by the plaintiff praying that the Registrar of Titles 4th defendant/respondent to rectify the Register of Title No. M09639 in respect of Plot 16 Ijora Causeway in favour of the plaintiff by restoring the name of Jamil Akkari Abdallah on the proprietorship register of title No. M09639. The ground for the application was that the 4th defendant had admitted in his Statement of Defence that title to plot 16, Ijora Causeway, Lagos was thoroughly forfeited and registered in favour of Bendel State Government. It is also the case of the plaintiff that the land forfeited by the Federal Government was plot 16A, which originally belonged to one Mattar Brothers but was sold to Edwin Clark and that instead of restricting the forfeiture to that plot of land alone, the Government extended it to the land in dispute.

On the other hand, the substance of the appellant’s counter-claim at the lower court is simply as follows:-

It argued that there was no such person known as Jamil Akkari Abdallah in existence for whom the plaintiff is allegedly acting as an Attorney. Also the land in dispute was identified by the Lagos State Government as the parcel of land referred to as 3 acres of undeveloped land in the legal Notice 13 of 1977 which was forfeited by the Federal Government and vested in the Bendel State Government who in turn granted a sublease of same to the appellant. It also argued that the Power of Attorney issued in favour of the plaintiff was not in relation to plot 16 Ijora Industrial Estate being occupied by the appellant. He finally argued that the order for rectification of the Register of Title No. M09639 in respect of the land in dispute in favour of the plaintiff made by the court on 23/1/1989 was a nullity on the ground that the said Jamil Akkari Abdallah does not exist at all.

Pleadings were ordered, filed, exchanged and later amended. After the lower court took evidence from the parties it entered its judgment in favour of the 1st respondent in all his claims and dismissed the appellants counter-claim in its entirety. Being dissatisfied with the lower court’s judgment the appellant/3rd defendant appealed to this court. The appellant identified three issues for determination in this appeal. These three issues which were also adopted by the respondent’s counsel are listed below:-

1. Whether Joseph Nahman, the plaintiff in this suit has locus standi to seek and obtain the reliefs sought.
2. Whether the plaintiff established his case on the balance of probabilities.
3. Whether the 3rd defendant/appellant was not entitled to succeed on its counter-claim.

It is pertinent to say that only the 1st respondent filed a brief in this appeal. I shall adopt and be guided by these three issues formulated by the appellant’s counsel in deciding this appeal. In doing so, I shall consider and determine the issues seriatim. The first issue touches on a very important principle i.e. locus standi. The appellant in this case raised the issue of locus standi of the 1st respondent at the lower court and raised the same issue here. It is trite law that issue of locus standi relates to jurisdiction and as such can be raised anywhere even in the Supreme Court for the first time. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172; A-G., Enugu State v. Avop Plc (1995) 6 NWLR (Pt.399) 90 at 112.

Issue of locus standi is fundamental in that if a court determines that a party to a suit lacks the standing to bring an action, the matter shall automatically terminate there because the court can no longer consider the merit or otherwise of the action or suit. See A G., Enugu State v. Avop Plc (supra).

The learned counsel for the appellant argued that the plaintiff in this suit at the lower court is Joseph Nahman. Since he is not the owner of the land in dispute, he had no locus standi to seek for the declaration as he did at that court. He challenged the lower court’s finding that Jamil Akkari Abdallah is the plaintiff because that finding was not supported by material evidence presented in the case before him e.g. the heading or title of the suit. He referred to the endorsement on the writ as well as the statement of claim.

It is not in dispute that Joseph Nahman sued the parties at the lower court “as Attorney for Jamil Abdallah.” The appellant posed the question that being an “Attorney” to the said Jamil Abdallah, does he have the locus standi to sue as the plaintiff to claim a land which belongs to his principal? In answering the question the learned counsel for the appellant submitted that where an action was commenced by an Attorney for the recovery of money on behalf of a disclosed principal, it was held that such agent or attorney has no locus standi. He referred to the case of Ekuma v. Silver Eagle Shipping Agencies Ltd. (1987) 4 NWLR (Pt.65) 472. He also referred to in his brief, the case of Modupe Folarin Alakija v. Nigeria Door Fabrication Co. Ltd. in suit No. CA/L/229/87 which is unreported. He however did not supply the case to us and all effort made to trace the case which emanates from this division as shown in the suit No. CA/L/229/87 proved abortive. I would rather not comment on it to be on the safe side.

The learned appellant’s counsel further argued that the ‘plaintiff’ did not state in his statement of claim or in his oral evidence that he was suing for and on behalf of Jamil Akkari Abdallah but merely stated in the Power of Attorney that he (the plaintiff) is the lawful attorney of Jamil Akkari Abdallah by virtue of the Power of Attorney dated 27th April, 1967. According to the learned counsel, the Power of Attorney does not in itself authorise the plaintiff to sue in his own name. He referred to and relied on the preamble and clause 3 of the Power of Attorney. He finally submitted that the lower court ought to have struck out the suit on the grounds of lack of locus standi on the part of the plaintiff. He thereupon urged us to so hold and uphold the appeal on this ground. In his brief the respondent’s counsel submitted that the respondent did not institute this action as the beneficial owner of the land in dispute. But merely instituted it as the lawful attorney of Jamil Akkari Abdallah, his principal.

The preamble and clause 3 of the Power of Attorney which was exhibited at the trial as Exhibit 1 reads as follows:-

“By the Power of Attorney Jamil Akkari Abdallah Gusau in the Federation of Nigeria hereby appoint Mr. Joseph Nahman, a building Contractor of 63/96 Broad Street Lagos, aforesaid, my lawful Attorney for me and on my behalf to do and execute all at any of the acts and things following, namely:

1. …
2. …
3. To bring or defend any action or the proceedings in respect of or affecting the said land or any part thereof.”

In his oral testimony at the lower court, the 1st respondent while testifying as PW1 at the trial stated thus:-

“The Power of Attorney Exhibit 1 was given to me by Mr. Jamil Akkari Abdallah who instructed me to follow up the processing of the title No. 16 Ijora Causeway Lagos and to obtain a land certificate and as a building construction man, to eventually develop the land for him. At that time, Jamil Akkari Abdallah had only a letter of allocation. This is the letter of allocation sent to me by Jamil Akkari Abdallah. With this letter of allocation issued in 1965, he wanted me to follow the processing of his land certificate at the Ministry of land.”

Furthermore under cross-examination by appellant’s counsel the 1st respondent stated thus:

“I do not own the land. I have not built any structures on the land up to now. I do not know what structures are on the land now. Upon these pieces of evidence and others adduced at the trial the lower court made the following finding, to wit:

“I have taken a look at the title of this suit. It reveals to me that Jamil Akkari Abdallah is the plaintiff and not Joseph Nahman.

The title reads thus:

Joseph Nahman

(Attorney for Jamil Akkari Abdallah) … Plaintiff

AND

1. Permanent Secretary, Bendel State Etc.)
2. Attorney General of Bendel State )…Defendants
3. United Nigeria Company Ltd. )
4. Registrar of Titles, Lagos State )

To my mind, this portrays clearly that Joseph Nahman has only filed this action as Attorney for Jamil Akkari Abdallah who is the plaintiff. If the name of Joseph Nahman alone had appeared as the plaintiff I would have held that he had brought the action for himself. It is clearly expressed in this heading or title that Jamil Akkari Abdallah is the plaintiff while his Attorney is Joseph Nahman. The orthodox way of putting the title when a plaintiff sues by his Attorney is Jamil Akkari Abdallah (suing by his Attorney, Joseph Nahman).

I can see nothing wrong in putting the heading the other way round as it is done in this case. It is still the same thing. Jamil Akkari Abdallah is clearly the plaintiff while Joseph Nahman is acting as Attorney for him.

I therefore find that the plaintiff has locus standi to bring this action which has been properly brought by his Attorney Joseph Nahman. All decided cases cited by Mr. Oyetibo, in support of the maxim ‘Nemo dat quod non habet are consequently irrelevant.”

The learned authors of Halsbury’s Laws of England, 4th Edition clause 4 page 447 paragraph 744 had this to say on agency through power of attorney:

“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. 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 executed or done in the name of the donor of the power.” (italics mine).

Thus, from the foregoing the said Joseph Nahman the donee of the power of attorney is authorised to act on behalf of his principal or the donor of the power. Any act he did in his name is effective as if it was done by the donor.

It is important to note that the term locus standi simply means legal capacity to institute proceeding in a court of law. It is often used inter-changeably with the term such as “standing” or “title to sue”. See Adesanya v. President of Federal Republic of Nigeria and Anor (1981) 2 NCLR 358 per Fatayi Williams; Thomas v. Olufosoye (1986) 3 NWLR (pt.18) 669.In my view therefore, having been authorised by the donor of the Power of Attorney to act there is no how one can say Joseph Nahman has no legal capacity to institute proceedings in the court against the defendant/appellant in this case. I therefore hold that he can do so as he has locus standi to do so.

Coming to the case of Ekuma v. Silver Eagle Shipping Agencies (PH) Ltd. (supra) cited and heavily relied on by the learned appellant’s counsel, I unhesitatingly say that the facts in that case are distinguishable from the facts in the instant case. In the first place in Ekuma’s case the power of attorney relied on was not exhibited at the trial very much unlike in this case. Also in that case it was not shown that there was privity of contract existing between the appellants and respondents. It was for those reasons that this court held in that case that the respondent had no locus standi to prosecute the case. The peculiarities in that case do not exist in the instant case.

I strongly hold the view that even if the learned trial Judge is wrong in referring to Jamil Akkari Abdallah or Joseph Nahman as the actual plaintiff in the suit, I feel that will not be sufficient a reason for me to disturb his finding of the lower court since no miscarriage of justice was occasioned to the appellant by such references. See Olatunji  v. Adisa (1995) 2 NWLR (pt.376) 167 at 183; Nwaeze v State (1996) 2 NWLR (pt.428) 1 at 21.

Thus, from the circumstance of the case particularly the evidence adduced at the lower court it will amount to great injustice to interfere with the finding of the lower court simply because the heading of the suit at the lower court was not put the other way round. To so disturb the lower court’s finding on that premise is to sacrifice justice on the altar of sheer technicality. It is trite law that where there is a technical procedural misnomer in the trial of a case at the lower court, an appeal court should not interfere with the decision of the trial court unless it holds the opinion that there is a miscarriage of justice. See Chime v. Chime (1995) 6 NWLR (Pt.404) 734 at 751. Anero v. Eze (1995)1 NWLR (pt.370) 129 at 140. This court in Chime’s case (supra) held that where the court can see its way without failure of justice, it can and indeed should endeavour to ensure that the case is decided on its merit and avoid undue leaning in favour of technicality.

I think it is apt to say that in recent times the scope of locus standi has been very much extended by superior court of record. Some of the issues the court should accommodate in deciding whether a person has locus standi are whether the persons who request an adjudication of a particular issue and not necessarily whether the issue itself is justiciable. Therefore, the court has to look at the cause of action and the facts of the case in order to ascertain whether locus standi to sue is disclosed. The provisions of Section 6(6) (b) of the 1979 Constitution and Section 6 of 1999 Constitution have now been broadly interpreted in several decided authorities. Few of these cases are Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) 797 at 832; Adefulu v. Oyesile(1989) 5 NWLR (Pt.122) 377 at 418; Akilu v. Fawehinmi (No.2)(1989)  2 NWLR (Pt.102) 122 at 193; Thomas v. Olufosoye(supra}.

Where an individual shows that he has vested interest in a property or he disputes the ownership of same in another person then he has the competence to institute an action to preserve the properly until the question of the ownership of the said property is resolved. See Okoye v. Lagos State Government (1990) 3 NWLR (Pt.136) 115 at 125. In the instant case, Joseph Nahman clearly shows that he has vested interest in the disputed land in view of the Power of Attorney given to him by Mr. Jamil Akkari Abdallah. He therefore has locus standi to sue so that the ownership of the land is determined by the court. For the aforesaid reasons I am of the view that the lower court is right in holding that Joseph Nahman i.e. the plaintiff at the lower court has locus standi to seek and obtain the reliefs he sought. I therefore answer the 1st issue for determination in the affirmative.

On the second issue for determination which is whether the plaintiff established his case on the balance of probabilities the learned counsel for the appellant referred to the Power of Attorney which as he rightly pointed out, was issued on 27/3/1967 while the land certificate was issued on 22/6/1971. On this illustration he referred to the maxim Nemo Dat Quod Non Habet. He also referred to the case of Akerele v. Atunrase (1969) 1 All NLR 201 at 202. He further submitted that the Power of Attorney was null and void ab initio since the donor had then no title to the land in respect of which he donated the Power of Attorney.

In another submission, the learned counsel for the appellant suggested that Jamil Akkari Abdallah did not exist at all hence no action can be instituted on behalf of a non-existent person.

On the issue of the date the Power of Attorney was given and that of issuance of the certificate in respect of the land, the lower court gave its unassailable explanation which I agree with entirely. It said thus:

“In other words, Plot 16, Ijora Causeway was allocated to Jamil Akkari Abdallah in November, 1965. Thereafter, he gave a power of attorney to Joseph Nahman in respect of the land in 1967. The formal lease of the land was given to Jamil Akkari Abdallah by the Governor of Lagos State in 1971 to take retrospective effect from 1969. See Exhibit 5. All these explain why it appears as if the power of attorney was given before the lease of the land was granted.”

Similarly, the learned trial Judge after relying on the certificate of naturalization annexed to Exhibit 12 and the affidavit of one Attorney Abdullah, he became convinced that the said Jamil existed. These pieces of evidence were never challenged by the appellant hence I have no cause to interfere with it. The learned trial Judge also found from the evidence adduced before him that plot 16 Ijora Causeway, Lagos was allocated to Jamil Akkari Abdallah in 1965 by the Military Governor of Lagos State. Thereafter, a formal lease of the said land was given to Jamil Akkari Abdullah in 1971 by the Lagos State Government upon fulfillment of same conditions attached to the allocation. It is a judicially noticed fact that letter or notification of allocation is normally given before formal lease is granted to an allotee.

It is an established principle of law that in civil cases proof is based on balance or preponderance of evidence adduced at the trial. There are a plethora of decided authorities on this which need not be cited.Thus after duly considering the evidence adduced in the case and the entire record of appeal and the trial court’s judgment, I am fully convinced that the plaintiff/1st respondent proved his case on the preponderance of evidence. He is therefore entitled to all the claims he made and the lower court has rightly granted him such claims. I have no justification to interfere with or disturb the judgment of the lower court.

The next issue relates to appellant’s counter- claim at the lower court. The learned appellant’s counsel submitted rightly in my view that success of his counter-claim is predicated on if I find that the 1st respondent had no locus standi. Put in another way, if I hold that the 1st respondent has no locus standi then the lower court’s order made on 23/1/89 that the Registrar of Titles should rectify the Register of Title No. M09639 in respect of plot 16 Ijora Causeway in favour of the 1st respondent/plaintiff cannot stand. I have dealt with the issue of locus standi at length when dealing with the first issue and arrived at the inevitable conclusion that plaintiff had locus standi. In any case I can say a word or two on the counter-claim since both parties made submissions on it in their briefs and it was also keenly contested at the lower court. It is trite that a counter-claim is more or less an independent action or cross-action. This being so evidence must be led to prove it in order to succeed. See Ige v. Farinde (1994) 7 NWLR (Pt.354) 42 at 68. As I said above the counter-claim is based on an order made against the 4th defendant and respondent. The appellant did not lead credible evidence to actually prove that Jamil Akkari Abdallah in whose favour the order was made was not in existence. He who asserts must prove. But on the other hand the trial Judge relied on the affidavit evidence of Attorney Abdallah and the certificate of naturalization and found that he was an existing person. This finding was partly relied on by the trial Judge to also hold that the Power of Attorney was valid and that the said Joseph Nahman had locus standi. It is pertinent to note also that the order on which the counter-claim was based was made by another Judge Muri Okunola J (then of Lagos High Court) and not Silva J. whose decision is being appealed against. There is no indication that the present appellant had appealed against that order. The said order was made because the 4th defendant (4th respondent) admitted in their pleadings that they made mistake in registering wrong plot for wrong person i.e. wrong land was forfeited and sublet to a wrong person. The order made was meant to correct the mistake. The counter-claimant in this appeal failed to convince the court to hold the contrary. Also in the instant appeal the counter-claimant failed to adduce sufficient ground to hold that the order was made perversely or was fraudulently obtained. I therefore see no justification in interfering with the lower court’s finding and refuse to declare it null and void. I also refuse to grant the declarations sought in the counter-claim and dismiss it too.

In the result and for the reasons I have given above, this appeal is devoid of any substance. It is unmeritorious. It therefore fails and is accordingly dismissed. The counter-claim also fails and is also dismissed. There will be cost of N4,000 against the appellant in favour of the 1st respondent.

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Other Citations: (2000)LCN/0780(CA)