Augusta Chime V Chime (2001)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C 

The facts involved in this case are not seriously in dispute.

The 1st plaintiff is the wife of the 2nd plaintiff and an in-law to the 4th defendant. She sued the 1st, 2nd and 3rd defendants in the Enugu High Court of the then Anambra State claiming for the following reliefs as contained in paragraph 17 of her statement of claim:

“WHEREFORE the plaintiff claims against the defendants jointly and severally as follows:-

(i) A declaration that the Power of Attorney dated the 13th day of July, 1990 and registered as No. 64 at page 64 in Volume 1299 of the Lands Registry, Enugu, was not given by the 4th defendant.

(ii) A declaration that the Notice to Quit No. RP/1998/90 dated 24th July, 1990 and given by the 2nd defendant to the plaintiff in respect of the property plaintiff lawfully occupies at No. 22 Moorehouse Street, Ogui, Enugu is invalid, null and void and of no effect.

(iii) A declaration that the purported Conveyance/ Assignment between the 1st and 2nd defendants for which the approval/consent of the 3rd defendant is required and based on the Power of Attorney registered as 64/64/1299 is irregular, null and void.

(iv) An injunction restraining the defendants, their servants agents and functionaries from taking steps to perfect the assignment and from interfering with the plaintiff’s user and enjoyment of the property situate at No.22 Moorehouse Street, Ogui Enugu.”

Before filing the statement of claim and on the application of the 4th defendant he was joined in the action. The application was granted on 29/11/90. An application dated 6/12/90 on behalf of the 1st, 2nd and 4th defendants praying that the trial court should direct a Magistrate or any officer of the court to take the evidence of 4th defendant on commission and that during such exercise all parties to the suit should attend the examination of the 4th defendant was filed on 10/12/90. The depositions so taken would be filed in court and that it might be given in evidence by the 1st and 2nd defendants at the trial. After listening to learned counsel for and against the application the learned trial Judge granted it as prayed and adjourned the matter to 21/1/91 for hearing so that learned counsel could file their statement of claim as well as the statement of defence respectively.

Subsequent to the order (supra) plaintiff filed her statement of claim on 9/1/91. The 1st, 2nd and 4th defendants filed a joint statement of defence on 14/1/91. On the 21/1/91 Charles Chika Chime, John K. Chime, Raphael Chime and Gabriel Chime filed an application seeking for an order to be joined as co-plaintiffs in the suit.

As earlier fixed, the court sat on 22/1/91 to take the evidence of 4th defendant who was described as an ailing old man. The learned trial Judge had told the parties on 18/2/90 that he would himself take the evidence of the 4th defendant and on 22/1/91 as requested earlier by Mr. Mogboh SAN, counsel for the plaintiff, and on that date he took down the evidence of 4th defendant, Chief Mogboh SAN (Miss Ukoh with him) for the plaintiff while Mr. Anyamene SAN (Dr. Mogbana and Mrs. Udogu with him) for the 1st, 2nd and 4th Defendants appearing for the parties respectively. The 4th Defendant after being sworn on the Bible, gave his evidence at the end of which he was subjected to vigorous examination by Chief Mogboh, SAN. The learned trial Judge then adjourned the case for continuation of hearing on 12/2/91 without objection by learned counsel appearing. When the case came up on 12/2/91, at the request of Miss. Ukoh, learned counsel for the plaintiff, the case was adjourned to 25/4/91 to enable the parties negotiate settlement, and on the adjourned date Mr. Mabu appeared for the plaintiff. He told the court that the parties were continuing with the effort to settle out of Court and to that end another meeting had been fixed for 9/6/91. The case was further adjourned to 19/6/91 for report of settlement or continuation of hearing.

On 19/6/91 Mr. Mabu and Mr. Anyamene SAN appeared for the plaintiff and the defendants respectively. There was no settlement reached. The learned trial judge reluctantly granted another adjournment because learned counsel for the plaintiff reported that the plaintiff could not be in court for continuation of hearing of the case as she was not well. This was supported by a medical report. The learned trial judge adjourned the case to 3/7/91 with a remark that “No further application for adjournment will be entertained.”

On 2/7/91 learned counsel for the plaintiff/applicant moved the court for leave to join Charles Chike Chime, John K. Chime, Raphael Chime and Dr. Gabriel Chime as co-plaintiffs. The application being not opposed was granted as prayed and the co-plaintiffs were given 14 days within which to file their statement of claim while the defendants were equally given 7 days within which to file statement of defence to the co-plaintiffs’ statement of claim. The case was then adjourned to 24/9/91 for continuation of hearing. It is to be noted that the mode for service of the pleadings herein ordered was to be service on counsel by counsel.

The case came up again on 17/9/91 and with consent of learned counsel for the parties it was again adjourned to 24/9/91, the date originally fixed for hearing.

On 24/9/91, learned counsel for the plaintiffs filed a notice to produce a letter dated 10th February, 1991 said to have been written by Mr. Sampson Okafor Chime, the 4th defendant, to Rev. Nwizu, the chairman of the 2nd defendant. On the same 24/9/91 learned counsel Mr. Mabu appearing for the plaintiffs informed the court that in line with Order 9 rule 1 (II) of the High Court of Anambra State, he had agreed with counsel for the defendants to file the co-plaintiffs’ statement of claim and which he had already filed. He also asked the court to recall 4th defendant for further examination on behalf of the co-plaintiffs who were not parties to the case at the time the 4th defendant testified adding that if the request was granted plaintiffs’ counselor, the plaintiffs will have the responsibility of bringing him.” The order to recall 4th defendant was granted by the court as prayed.

As if that was not enough learned counsel for the plaintiffs came up with another application for an adjournment to enable him serve the 3rd defendant with the statement of claim of the co-plaintiffs to which Mr. Anyamene SAN, raised an objection on ground that the 3rd defendant did not enter appearance to the writ of summons and other court’s processes and documents served on him and that it would be idle to adjourn for such purpose as he had nothing to defend from the statement of the plaintiff’s claim as he was a nominal party. Mr. Mabu of plaintiff’s counsel insisted that he was not ready to go on with the case on that day as he had not rehearsed his witness and also that the 4th defendant he wanted to recall was not present in court that day. The court agreed and granted a short adjournment to 30/9/91.

When the case came up on 27/9/91, Mr. Mabu appeared for the plaintiffs while Mr. Anyamene SAN appeared for the defendants. 4th defendant was put into the witness box and was sworn on Bible before being further examination by Mr. Mabu of plaintiffs’ counsel.

At the conclusion of the further examination learned counsel for the plaintiffs made the statement as recorded by the court:-

“that the plaintiff and co-plaintiffs do not intend to testify in this case nor do they intend to call any witness. Says the plaintiff and co-plaintiffs hereby close their case as they do not intend to lead evidence.”

Mr. Anyamene SAN then led further evidence in support of the defence and in proof of the counter-claim. On that same date to wit 27/9/91 the defence closed its case. The case was adjourned to 30/9/91 for address by learned counsel, and on the. adjourned date learned counsel delivered their addresses which was continued to conclusion on 8/10/91. Ubaezonu J (as he then was) reserved judgment to 21/10/91.

On 23/10/91 as evidenced by the court proceedings on that date, learned counsel for the plaintiffs had earlier on before that date filed a motion to arrest the court’s judgment. The court for some reason could not sit on 21/10/91 as scheduled. On 23/1 0/91 when the case was called Mr. Anyamene SAN (Dr. Mogbana and Mrs. Udogu with him) announced their appearance for the defendants. Neither the plaintiffs nor their counsel were in court at the time. The learned trial judge recorded what happened thereafter as follows:-

“Court: This case was adjourned to 21/10/91 for judgment. Before that date a motion to arrest the judgment was filed by counsel for plaintiff and co-plaintiffs. The court did not sit on 21/10/91 and at the direction of the Judge the case was adjourned to today 23/10/91 for judgment and the motion. I came into the court at 9.30 a.m. but counsel for the plaintiff and co-plaintiffs was not in court. I waited for the counsel for about 20 minutes. Mrs. Omah from whose Chambers Mr. Mabu who has conducted this case came into the court and on being questioned by the court she said that Mr. Mabu was in the High Court No.3. The court sent for him, firstly through Mrs. Omah secondly through the Clerk of court and finally through the court duty Police. Mr. Mabu eventually arrived and said that he was not ready to go on with the motion. He further says that the case file has been taken away from him.”

Thereafter, the learned trial Judge struck out the motion for the arrest of judgment and proceeded to deliver his considered judgment in which he dismissed the plaintiffs claims while upholding the counter-clam of the 1st, 2nd and 4th defendants. He awarded N5,000.00 general damages specifically to the 2nd defendant and costs of N2,000.00 generally to the 1st, 2nd and 4th defendants.

Being not satisfied with the judgment of the trial court, the plaintiffs appealed to the Court of Appeal, Enugu Division. In a considered judgment of that court by Achike JCA (as he then was) with which both Ejiwumni JCA (as he then was) and Niki Tobi JCA agreed, the appeal was unanimously dismissed with N1,000.00 costs in favour of the defendants/respondents.

Still not satisfied by the Court of Appeal decision, the plaintiffs have now further appealed to this court.

Parties filed and exchanged briefs of argument against the 6 original and the 6 additional grounds of appeal. The appellants formulated the following 9 issues for determination by this court:

“1. Whether the Court of Appeal was right to have dismissed the appellants’ appeal when the learned trial Judge who became a Judge of the High Court of the new Anambra State had lost jurisdiction to hear and determine the case after the creation of a separate Enugu State where the property in dispute situates out of the old Anambra State, on the 27th of August, 1991.

2. Whether the Court of Appeal was right to have dismissed the appellants’ appeal after finding that the writ of summons was not served on the 3rd defendant and that the motion for joinder of the 4th defendant had not been served on all the parties to the suit to wit the 1st and 3rd defendants, on the ground that it was for the party not served and not for the plaintiffs/appellants to complain or that the non-service raises an issue of mere technicality.
3. Whether the Court of Appeal was right to have dismissed the appellants’ appeal when on the chronology of events as outlined by it, it was shown that the learned trial Judge took evidence of the defence and addresses of counsel before pleadings closed.
4. Whether the Court of Appeal was right in holding that the learned trial Judge was right to have himself taken the evidence of the 4th defendant before issues were joined and before hearing the plaintiffs and in the manner he did, and upon an application that his evidence be taken on commission by a magistrate.
5. Whether the Court of Appeal was right in failing to note that even if the learned trial Judge had the jurisdiction and power to order the 4th defendant to give evidence upon the application before him, he did not find the factual bases for the exercise of his discretion in the matter established, and also the stage at which he could exercise it has not been reached.
6. Whether the Court of Appeal was right to have failed to observe that the judgment of the learned trial Judge was a nullity, as having been delivered without due notice to the appellants and after the learned Judge had lost jurisdiction.
7. Whether the Court of Appeal was right in holding that the sale of the house in dispute to the 2nd respondent was duly proved and that it proved the N5,000.00 damages awarded to it.
8. Whether the Court of Appeal directed itself correctly as to the validity and effect of the power of attorney, Exhibit A, in the suit.
9. Whether upon a proper direction on the evidence the Court of Appeal was right to have held that the respondents proved their case and were entitled to judgment.”

Save for the objections raised by learned counsel for the defendants against some of the grounds of appeal and the issues raised in the appellants’ brief of argument he seems to have adopted the issues as formulated since he did not formulate any in his brief. I shall consider the objections raised. Henceforth the plaintiff and co-plaintiffs and the defendants shall be referred to as the appellants and the respondents respectively in this judgment.

I have considered both the grounds of appeal and the issues objected to and have come to conclusion that except for issue 9; which is not hinged to any ground of appeal both the grounds of appeal and the issues objected to are competent. Leave was sought and obtained to file the additional grounds and the issues formulated seem to over-lap and I therefore prefer to treat them in this judgment.

Issue I will be taken along with issue 6 when I come to deal with that issue.

Issue II

Under this issue learned counsel for the appellants advanced the argument that the 3rd defendant was not served with the writ of summons and that both the 3rd defendant/respondent and the 1st defendant/respondent were equally not served with the 4th defendant/respondent’s application for joinder. On the basis of these arguments he submitted that issues were not joined in the case when the learned trial Judge took the evidence of the 4th respondent.

In reply to arguments supra learned counsel for the 1st, 2nd and 4th respondents submitted that both the 3rd defendant and 1st respondent were served with all court processes in the case. Learned counsel referred in particular to paragraph 3 of the 1st appellant’s affidavit in which she deposed that the 2nd and 1st defendants were served. He also submitted that both the 1st defendant/respondent and 3rd defendant were served with the 4th defendant/respondent’s application to be joined as a party. After citing authorities in support of his submission learned respondent’s counsel contended that assuming that the parties referred to were not served (which he did not concede), learned counsel for the appellants had no business to complain for and on behalf of such parties and that the party that should have complained for non-service is the party affected.

It is not in dispute that neither 1st respondent nor the 3rd defendant complained against the non-service of the court processes referred to above or any other order made. It does not therefore lie in the mouth of the appellants to complain on their behalf. It is abundantly clear from the printed record that neither the 3rd defendant nor the 1st and 2nd respondents complained against non-service of any court process on him, in fact throughout the proceedings in this case the 3rd defendant did not put up any appearance. He did not join issue with the appellants on any aspect of the case. He remained a silent defendant who from the look of things had no stake in the matter he was just a nominal party. The Court of Appeal was perfectly right when it stated thus in the lead judgment:

“The application for nullification of such proceedings would be at the instance of the defendant against whom an order is made without prior notification of proceedings in which the order was made for the simple reason that a condition precedent for the exercise of the court’s jurisdiction in making the order has not been fulfilled . I am therefore clearly of opinion that for a party to a suit to apply for the proceedings to be nullified by reason of failure of service, where service is a requirement, it must sufficiently be established that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is not in my view open to every party to the proceedings to make such an officious complaint. If such complaint is sustainable, it will yield startling results. Thus, an aggrieved plaintiff, as in the instant appeal, would be enabled to appeal against a judgment against him on the technical ground that a party to the proceedings has not served some process,”

See Obimonure v. Erinosho (1966) 1 All NLR 245; Richardson v. Mellish 2 Bing 225; Madukolu v. Nkemdilim (1962) 1 All NLR 587 (1962) 2 SCNLR 341 and Skeconsult v. Okey (1981) 1 SC 6. Issue II is therefore resolved in favour of the respondents against the appellants.

Issues 3, 4 and 5 of the appellants’ brief are inter-related as they deal with the recording of the evidence of the 4th respondent and the relative effect of such action to the proceedings and will be taken together.

The gravamen of the complaint in the three issues is that the learned trial Judge recorded down the evidence of 4th respondent instead of it being recorded by a magistrate or any other officer of the court assigned to do so by the Judge. It was also canvassed that the learned trial Judge was wrong in taking the case of the respondents before that of the appellants. Learned counsel for the appellants therefore submitted that the Court of Appeal committed grave error for failing to hold that the method adopted by the trial Judge in taking the evidence of the 4th respondent before the close of pleadings and thereby joining issues was contrary to the known procedure and the rule of evidence. Learned counsel contended that even if it was assumed that the learned trial Judge had power to take the evidence of the 4th respondent on ground of his age and deteriorating condition of his health, there was not, on the evidence before the trial court, a proper factual basis for the exercise of the power of discretion and the Court of Appeal was in error in coming to the conclusion that the procedure adopted by the trial Judge was right.

In reply, learned counsel for the respondents after setting out in sequence what transpired before the learned trial Judge agreed to take down the evidence of 4th respondent by himself, submitted that it was Mr. Mogboh SAN, learned counsel for the 1st plaintiff/appellant who was the only plaintiff at that stage, that urged the court to take the evidence of 4th defendant/respondent. And that that happened after pleadings between 1st plaintiff/appellant and 1st, 2nd and 4th defendants/respondents had been completed. He also submitted that the learned trial Judge was right by virtue of Order 23 rule 54 of the High Court Rules of Anambra State 1988 to have taken out of turn, the evidence of 4th respondent in view of his old age and dwindling health coupled with the fact that he was the owner of the property in dispute. He further contended that even if the procedure adopted by the trial Judge in taking the evidence of 4th respondent out of rum was wrong (which was not conceded) it was a purely procedural irregularity which did not occasion any miscarriage of justice and that the appellants did not suffer any.

It is to be noted that the appellants did not call evidence in proof of the averments in their pleadings but rested their case on that of the defence. So they must swim or sink with the respondents.

On 18/12/90 during the hearing of the application of learned counsel for the respondents praying for an order that a magistrate or any officer of the court take the evidence of the 4th respondent on commission on account of the latter’s old age and failing health, it was Mr. Mogboh SAN appearing at that stage for the 1st appellant who was the only plaintiff in the case, that induced the learned trial Judge to take the evidence of 4th Respondent by himself. On page 22 volume 1 of the record of proceedings, he stated:

“the order sought was prejudicial to the plaintiff/respondent in that evidence taken by another person will be of no evidential value to the court. The evidence of the 4th defendant ought to be

taken by this court …. ”

The learned trial Judge agreed with the request and adjourned the hearing to 22/1/91 for taking the evidence of 4th respondent by himself. On 22/1/91 when the evidence of 4th respondent was taken the plaintiff/1st appellant had already filed her statement of claim on 9/1/91 while the 1st, 2nd and 4th respondents filed their joint statement of defence on 14/1/91. So the statement by learned counsel for the appellants that the evidence of 4th respondent was taken before pleadings were filed and issues joined, cannot be correct. The learned trial Judge was empowered by the rules i.e. Order 23 rule 54 of the Anambra State High Court Rules to make an order that the evidence of a particular witness be taken on commission where the situation warrants that. The instances cited under the rule are not exhaustive. See Dabiri v. Dabiri (1957) NRLR 121. The court has a discretion to make the order or refuse to do so when applied for. In the case in hand, there was medical evidence attached to the application of the respondents that the evidence of 4th respondent be taken on commission for his infirmness, due to old age and failing health condition. On request by learned senior counsel for the plaintiff/1st appellant who was then the only plaintiff, the learned trial Judge agreed to take the evidence himself. This was done and the witness was exhaustively cross-examined and re-examined. In my view it will be now too late for the learned counsel to complain against the procedure which he induced the learned trial Judge to adopt. The evidence of 4th respondent was taken in fear that he might die before the time of taking his evidence was due. In my view the Court of Appeal after considering the circumstances leading to the taking of the evidence of 4th respondent, was right in its conclusion that

“It is clear that the trial court was competent to take the evidence of 4th respondent as he did, out of turn, for the compelling reasons stated in the supporting affidavit to the application. Even if 4th respondent was well at the time his evidence was taken, yet if it appeared necessary for the purpose of justice, a trial court could and should order that 4th respondent’s evidence be taken out of turn as he in fact did. Surely, that is a sensible and cautious approach dictated by expediency. It is difficult to accept that by taking the evidence of 4th respondent out of turn in the circumstances shown above any reasonable appellate tribunal can hold that the trial court ordered the respondents to first begin their case.”

“Assuming, but not conceding, that it was irregular to take the evidence of 4th respondent out of turn, the complaint of irregularity will only avail the appellant and co-appellants if they can further show that they have in consequences suffered injustice by the fact that 4th respondent’s evidence was taken first. They did not make such complaint and could not have done so because their learned counsel not only subjected 4th respondent, as DW1 to strenuous cross-examination he even had the second bite to further cross-examine that witness when he was recalled at the order of court at the request of the co-plaintiffs.”

There are no merits in these issues and are therefore resolved against the appellants.

Issues 1 and 6

In Issues 1 and 6 the complaint therein was that the judgment was delivered without due notice to appellants and coupled with the fact that the learned trial judge had lost jurisdiction due to the creation of Enugu State out of the then Anambra State. It was the submission of counsel for the appellants that the trial judge being an indigene of the New Anambra State and the landed property being situate in the New Enugu State, he lacked jurisdiction to continue entertaining the case. He referred to sections 3, 4 and 8 of Decree No. 41 of 1991. It was the further submission of learned counsel that neither his clients i.e. the appellants nor himself were informed of the date the judgment was to be delivered.

In answer to the submission on jurisdiction counsel for the respondents referred to section 6 of Decree No. 41 of 1991 and submitted that it vested the learned trial Judge with the power and jurisdiction to continue with the hearing of the case to conclusion.

As submitted by learned counsel for the respondents, the fact that Enugu State was created out of the then Anambra State and the landed property in dispute is situate in Enugu State while the learned trial judge belongs to or is an indigene of the new Anambra State, does not divest him of the jurisdiction to continue with the case to finality. Section 6 of Decree No. 41 of 1991 provides as follows:

“Any proceeding pending before any court of a State immediately before the commencement of this Decree may, after such commencement be continued before that court and shall not adversely be affected by the provisions of this Decree.”

This completely answers Issue 1 of the appellants’ brief. I need say no more on it.

On the complaint that the learned trial Judge delivered judgment without due notice to the appellants and who had filed a motion for the arrest of such judgment, the record of the proceedings as taken down by the learned trial judge provides a complete answer, it reads thus:

“2nd defendant present. Other parties absent.

Mr. Anyamene, SAN. (Dr. Mogbana & Mrs. Udogu with him) for defendants.

Court: This case was adjourned to 21/10/91 for judgment. Before that date a motion to arrest the judgment was filed by counsel for plaintiff and co-plaintiffs. The court did not sit on 21/10/91 and at the direction of the Judge the case was adjourned to today 23/10/91 for judgment and the motion.

I came into the court at 9.30 a.m. but counsel for the plaintiff and co-plaintiffs was not in court. I waited for the counsel for about 20 minutes. Mrs. Offiah from whose chambers Mr. Mabu who has conducted this case came into the court and on being questioned by the Court she said that Mr. Mabu was in the High Court No.3. The Court sent for him, firstly through Mrs. Offiah secondly through the Clerk of court and finally through the court duty Police. Mr. Mabu eventually arrived and said that he was not ready to go on with the motion.

He further says that the case file has been taken away from him.

Court: Motion is hereby struck out.

(Sdg)

(E.C.Ubaezonu)

JUDGE

23/10/91

When learned counsel finally appeared in court he did not even deem it fit to apologise to the court but only discourteously told the court that he was not ready to go on with the motion and that the case file had been taken away from him. He did not apply for any adjournment. This in my view was nothing short of abandoning his motion for the arrest of judgment and the learned trial Judge was perfectly right and in order when he struck it out. Counsel have a duty to be respectful and courteous to courts. It is part of the discipline in the legal profession. It is counsel that should wait for the court and not the other way round.

I am yet to come across a provision of any of our laws which provides that where a judgment is delivered without due notice of the delivery date to a party involved in consequence of which he is absent in court when the judgment is delivered, the judgment so delivered is null and void. Its delivery is neither without jurisdiction, nor is it null and void. It may amount to a mere irregularity which has no effect on the substance of the judgment or jurisdiction of the court.

Issues 1 and 6 are without merit and are resolved against the appellants.

Issue 7

It was the argument of learned counsel for the appellants under this issue that the 4th respondent having given an irrevocable power of attorney to the 1st respondent to sell the property in dispute, his subsequent sale of property by himself to the 2nd respondent was illegal, null and void. He referred to the affidavit sworn to by 4th respondent in support of his application of joinder of action.

It was his contention that the respondents’ case was no longer that the 2nd respondent purchased the property from the 1st respondent, but that the 2nd respondent purchased it directly from the 4th respondent. Learned counsel also attacked the power of attorney given to the 1st respondent by the 4th respondent as forgery and same not given by 4th respondent and therefore the purported conveyance between the 1st and the 2nd respondents was irregular, void and of no effect. He also attacked the evidence adduced by respondents as contradictory, particularly that of 4th respondent.

In answer to the arguments above, learned counsel for the respondents contended that since the appellants adduced no evidence in support of the averments in their pleadings which were successfully traversed the legal effect would be that the appellants had abandoned their case and therefore the learned trial Judge was right when he dismissed their case and that the Court of Appeal was right and in order when it affirmed the decision.

In paragraphs 9 and 10 of the 1st appellant which are the relevant averments on this issue, it was pleaded:-

“9. The investigations revealed that the 1st defendant who is the 9th son and youngest child of the 4th defendant had purported to assign the property to the 2nd defendant acting pursuant to a power of attorney purportedly given by the 4th defendant. The said Power of Attorney dated the 13th day of July, 1990 and registered as No. 64//64/1299 will be founded at the hearing.

10. These findings were brought to the notice of the 4th defendant who unequivocally denied having ever given any Power of Attorney to the 1st defendant in respect of the property or ever authorizing the 1st defendant to sell the property. The 4th defendant further urged the plaintiff’s husband to take all necessary steps to avoid the purported sale,”

Also the case of the 2nd, 3rd , 4th and 5th appellants [who were referred to in both the trial court and the Court of Appeal as co-plaintiffs] on this issue was stated in paragraphs 9, 10, 11 and 12 of the statement of claim of co-plaintiffs which state as follows:

9. The co-plaintiffs aver that the 4th defendant admitted to the 1st co-plaintiff that he never sold, assigned or authorized the sale or assignment of the property to the 2nd defendant or anybody else.
10. The 4th defendant also denied ever donating a Power of Attorney registered as No. 64 at page 64 in Volume 1299 in the Lands Registry in the office at Enugu to the 1st defendant or anybody.
11. The co-plaintiffs aver that the purported assignment of the property by the 1st defendant to the 2nd defendant on the authority of the said Power of Attorney is null and void.
12. The co-plaintiffs aver that the same Power of Attorney was not donated to the 1st defendant by the 4th defendant as the signature thereon was not that of the 4th defendant.”

When learned counsel for the appellants was called upon by the learned trial Judge to adduce evidence in proof of the averments in their pleadings, learned counsel Mr. Mabu was recorded to have stated-

“Mr. Mabu says that the plaintiff and co-plaintiffs do not intend to testify in this case nor do they intend to call any witness. Says the plaintiff and co-plaintiffs hereby close their case as they do not intend to lead evidence.”

As a result of that submission, the respondents opened their case and called one Chike Ikeoluonye Nwizu as their 2nd and last witness. Counsel on both sides addressed the court and in a considered judgment by the learned trial Judge, he opined on this issue as follows:-

“Let me however deal with the several claims of the plaintiffs. The first is a declaration that the Power of Attorney dated 13th day of July 1990 and registered as No. 64 at page 64 in Volume 1299 of the Lands Registry Enugu was not given by the 4th defendant. The said Power of Attorney is Exhibit A. The 4th defendant told me that he executed and gave Exhibit A. He identified his signature in Exhibit A. I believe him that he signed Exhibit A. Moreover, the plaintiffs through their Counsel says that the plaintiffs also rely on the evidence of 4th defendant. I find no substance in this claim in the light of the evidence before the court.

The second relief claimed by the plaintiff but not claimed by the co-plaintiffs is for a declaration that the notice to quit No. RP/1998/90 dated 24th July 1990 and given by the 2nd defendant to the plaintiff in respect of the property is invalid null and void and of no effect.

No such notice is before this court. No reason was given as to why the notice was not produced in court. There is no evidence why the notice to quit should be set aside. My view is that the plaintiff has not made this claim in any seriousness. The claim accordingly fail.

The third relief claimed by the plaintiff which is the same as the 2nd relief claimed by the co-plaintiffs is for a declaration that the purported conveyance/assignment between the 1st and 2nd defendants for which the approval/consent of the 3th defendant is required and based on the power of attorney registered as 64/64/1299 is irregular, null and void. No evidence has been led by the plaintiff or co-plaintiffs why the transaction should be declared irregular, null and void. There is no evidence that the party or parties seeking this declaration have any beneficial interest in the subject-matter of the claim. There is no evidence that the plaintiff or the co-plaintiffs are parties to any such transaction. There is no evidence of the nature of the conveyance/assignment. If it is in the form of a document, there is no evidence that any of the plaintiffs is party to it. Moreover, the document is not before me. I hold the view that the plaintiffs have not made out a case to entitle them to the declaration sought. This claim also fails.”

The Court of Appeal in affirming the above conclusions of the court said-

“First the question of invalidity of Exhibit A. This is an assertion by the appellant. It is trite that he who asserts must prove. If there is a failure of proof, the contested assertions become unsustainable. From appellants pleadings, Exhibit A was a forgery that involved a criminal act which must be proved beyond reasonable doubt. See section 138 (1) and 2 of the Evidence Act, Laws of Nigeria (1990) edition. The burden of proof in respect thereof rested squarely on appellants who gave no evidence whatsoever. On the other hand, 4th respondent testified emphatically as having executed Exhibit A. That piece of evidence remained unchallenged, uncontradicted, supported by the pleading and by its nature, not incredible, the trial judge had no option but to accept it. See Nwabuoku v Otti (1961) 2 SCNLR 232, Bello v. Eweka (1981) 1 SC 101; M.I. A & Sons v FH.A. (1991) 8 NWLR (Pt. 209) 295.”

In dealing with the contradictory nature of the evidence, the Court of Appeal after referring to some portions of the evidence of 4th respondent, said-

“I am satisfied that the above piece of evidence is in conflict with the pleading which have earlier been reproduced. It is trite that evidence which differs from what the parties pleaded goes to no issue and ought to be expunged or discarded by the trial court; an appellate court may discountenance it. See Emegokwue v. Okadigbo (supra) and George & Ors. V. Dominion Flour Mills Ltd. (supra). The law is now commonplace that parties are bound by their pleadings and any evidence at variance or in conflict, with the party’s pleading should always be ignored. A trial Judge has no responsibility to make a case for either party which is different for what it had pleaded.

No doubt, if that was the only evidence before the court with regard to how the sale was effectuated, that point would have remained at large, fluid and indeed unproved. Nevertheless, the court, especially the appellate court, has a duty to examine the totality of the evidence tendered before the trial court in order to be satisfied that what the parties had pleaded is in consonance with the evidence led at the trial. Otherwise the assertion being made by the party in such circumstance would go to no issue, and it is another way of saying that the assertion has not been proved. Looking at Exhibit D, I am satisfied that its content is in tune with respondents’ pleading with regard to the sale of the property in dispute to 2nd respondent.

The next point of substance that was raised by appellants’ Counsel under this issue was that if 4th respondent donated a Power of Attorney in favour of 1st respondent it followed that he divested himself of title to sell the same property covered by the power of attorney. In other words, the purported sale of the property by 4th respondent would be invalid. Of course, respondents’ counsel submitted to the contrary. The resolution of this controversy calls for a second look at the meaning and scope of the term power of attorney. A power of attorney is a document, and may be under seal, which authorizes a person to act for another person as his agent. The person who donates the power is called the ‘donor’ while the person to whom it is donated is called the ‘donee’. The power conferred on the donor may be either general or special. It is inconceivable that given the circumstances described above the right of the donor over certain property will be subordinated to that of the donor by reason only that he has, as it were, made a delegation of such right to the latter. The better view is that so long as the donor has not exercised the power comprised in the power of attorney it is clearly open to the donor to exercise the same power. Therefore, where the donor has in fact exercised the power under the power of attorney the donor’s power in this regard expires.”

I completely endorse the conclusions reached above on the issue and I do not think I can improve on them. The fact that a power of attorney was given by the 4th respondent [who is the donor] of his power to alienate the property does not divest the donor of power to deal with the property so long as the 1st respondent (the donor) had not exercised such power. See Gregory & Biude v. (1) Clement Nwara (2)A.C Rivers State (1993) NWLR (pt. 278) 638 at 664 and 665; Ajuwon v.Adeoti (1990) 2 NWLR(Pt. 132) 271 at 292 and 294, and Oshola v. Finnih (1991) NWLR (pt 178) 192 at 197.

This covers both Issues 7 and 8 which are both answered in Affirmative.

The last point raised in this appeal is Issue No.9 under which the appellants complained that no prior notice of four clear days was given with respect to the counter-claim and he cited Order 27 rule 4 of the High Court Rules of Eastern Nigeria, applicable in Anambra State.

Learned counsel for the respondents submitted that this issue is incompetent as it was not related to any of the grounds of appeal.

I have gone through the grounds of appeal filed [both original and additional] and I am unable to find any ground of appeal to which this issue is hinged. It is incompetent and is hereby struck out. See Ifediora & 4 Ors. v. Ben Ume & Ors. (1988)2 NWLR(Pt. 74) 5 and Momodu v. Momoh (1991) 1 NWLR (pt 169) 608 at 620-621.

On the whole I find no merit in any of the grounds of appeal raised and canvassed.

The appeal lacks merit and is hereby dismissed with N10,000.00 costs to the respondents.

---

SC.179/1995