Deinma Mangibo V. Chief J.I. Oguide & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal against the judgment of Hon. Justice F.N.N. ICHOKU C.J. delivered on the 5th day of March 1998 in favour of the plaintiff (1st Respondent herein in this appeal). 1st Respondent as plaintiff in the trial court has claimed against the Appellant and the 2nd Respondent herein jointly and severally as follows:
“17(i) A declaration that the plaintiff is the Lessee of the Leasehold properties situate at and known as No.4 and 4A, Bishop Johnson Lane, otherwise known as plots 2 and 9 Block 204, Bishop Johnson Layout, port Harcourt.
In the ALTERNATIVE: A declaration that the plaintiff is entitled to have the lease of the properties renewed in his favour. And an order of court that the lease be renewed in his favour and granted a certificate of occupancy.
(ii) A DECLARATION that the purported sale of the properties to 1st Defendant by the 2nd Defendant is null and void in that the plaintiffs rights interests in and over the properties have not been finally and totally extinguished in accordance with the provisions of the law.
(iii) N2,000.00 damages for trespass.
(iv) A perpetual injunction, restraining the Defendants, their agents and/or servants from further acts of trespass to the properties.
IN THE ALTERNATIVE TO paragraph 17(i) – (iv), plaintiff claims to be entitled to compensation in that 2nd Defendant has deprived him of his properties”.
The parties settled pleadings by filing and service of their respective statements of claim and defence.
The main thrust of the plaintiffs (1st Respondent herein) case is to the effect that the property, the subject matter of the action, that is plots 2 and 9 (later known as No.4 and 4A) Bishop Johnson street Layout Port Harcourt was by a building Lease dated 25/9/63 demised to one Mr. G.I. Etumnu for a term of 3 years certain and that although the Building Lease of the property took effect from 1/1/63, and permission had in fact been granted to the said G.I. Etumnu to start development of the property sometime in 1962. The plaintiff further contended that the Lessee of the property Mr. G.I. Etumnu subsequently in 1965, donated an irrevocable power of Attorney to him which power was duly executed and registered. The said Etumnu also allegedly assigned the subject matter of the case to the plaintiff (now Respondent). The deed of Assignment was not tendered in evidence but the application for assignment which was in any event, not equally registered in the Lands Registry, in Port Harcourt.
The plaintiff claimed further that he let out the structures on the land to some tenants but later on was informed that 2nd Defendant instructed the tenants to be paying rents to a new landlord, being the 1st Defendant who upon the said instruction began collecting rents and was persisting in same before the action was instituted. He further gave evidence that Mr. G.I. Etumnu was dead, and that the lease was for a 3 year duration which had expired and no renewal had been made. In proof of his case plaintiff called 2 witnesses, himself as PW1 and another as PW2.
The main thrust of the 1st Defendant who testified in person, is that the plaintiff lacked the competence to institute the action as he did not plead nor adduce evidence of his title to the subject matter of the case save for the fact that a power of Attorney was made in his favour. He further contended that the Plaintiff never had any interest transferred to him by Mr. G.I. Etumnu or any other person for that matter. It is further contended that the property which lease had expired reverted to the Rivers state Government and the state Governor through the permanent secretary, Lands and Housing Bureau offered the property to the 1st Defendant. That the plaintiff fled Port Harcourt during the Nigerian civil war and in consequence lost physical possession of the property. He claims further that upon payment of the purchase price and due execution of a Sales Agreement between him and the 2nd Defendant, he subsequently took effective physical possession of the premises occupying same and collecting rents from tenants in a part of the property.
The 2nd defendant called 2 witnesses and defence was closed. Counsel addressed the lower court, and in its judgment delivered on 5/3/88 the learned trial Chief Judge entered judgment in favour of the plaintiff as per his statement of claim.
Dissatisfied with the judgment of the trial court, the 1st Defendant hereinafter referred to as the Appellant filed a Notice of Appeal containing 6 grounds of appeal against the said judgment; articulating his complaints from which 3 issues were formulated in the Appellant’s Brief of argument in accordance with the Rules of this court. The issues are as follows:
“(i) whether the Honourable court was right in granting to the Plaintiff/Respondent a relief that he had abandoned.
(ii) Whether the action of the Plaintiff/Respondent was competent having regard to the fact that he instituted the action in his own name without indicating the name of the Donee of the Donor (sic) of the Power of Attorney upon which he was acting.
(iii) whether the failure to join the Rivers State Government as a party was not fatal to the case for the plaintiff/Respondent.
The 1st Respondent in his brief of argument identified two issues for determination of the appeal as follows:
“3.01 Whether the plaintiff/1st Respondent was competent to bring or institute this action at the lower court (Grounds 2 of the Grounds of Appeal).
3.02 whether the non joinder of the Rivers State Government as a party to this suit at the lower court was fatal to the plaintiff claim (Ground 3 of the Grounds of Appeal).
It is pertinent at this stage to state that on 3/7/2007 this court granted Appellant’s application to be heard on his brief and that of 1st Respondent, since the 2nd Respondent was not in any way interested in defending the appeal. In effect the 2nd Respondent did not deem it necessary to file any brief of argument in this appeal.
After a careful consideration of the issues presented for determination of the appeal, I am of the view that the three issues of the Appellant are quite comprehensive and adequate enough to resolve the appeal. I will consider the Appellant’s issues seriatim. The first issue formulated by the Appellant is not identified or taken cognizance of by the 1st Respondent as an issue for determination of the appeal. The question is whether the trial court was right in granting to the Plaintiff/Respondent a relief that he had abandoned. The pleadings of the plaintiff/Respondent have been reproduced above from page 6 paragraph 17(1). It is for a declaration that the lease be renewed in the name of the plaintiff and certificate of occupancy granted to him. The plaintiff/Respondent during the course of his testimony did not lead evidence whatsoever in proof of this relief. The learned counsel Mr. S.J. Ofoluwa Esq. for the plaintiff, in his final address at page 90 lines 23-29 of the Record, stated as follows:
“There is an alternative claim appearing at page 3 of the Amended statement of claim. The plaintiff gave no evidence in support of the alternative claim. It is abandoned by the plaintiff. The plaintiff therefore abandoned relief in paragraph 17(1), we are abandoning it. We are left with reliefs 14(2), 17(3), 17(4) and 17(5).”
However, in his judgment the learned trial chief Judge granted the same relief that had been abandoned by the plaintiff on page 135 lines 29 – 31. He held thus:
“The relief number one can thus be made. In the circumstance I hereby declare that the lease be renewed in the name of the plaintiff and certificate of occupancy granted him.”
The Appellant has contended that the Hon. Trial Judge when he granted a relief that had been abandoned acted outside the ambit of the law. That the fact of abandonment amounts to a complete surrender, relinquishment of the claim made by the plaintiff. I cannot but agree more when a claim or a relief is withdrawn or abandoned it means such a claim or relief has ceased to exist and is as though no such claim or relief was made.
The position of the law is that a judge does not grant that which is not sought for or prayed for. The court is not a “Father Christmas” or a charitable organization. See EKPENYONG V. NYONG (1975) 2 SC 71; MAKANJUOLA V. BALOGUN (1989) 3 NWLR (Pt.108) 192 and CARLEN (NIG). LTD. V. UNIJOS (1994) 1 NWLR (Pt.3 23) 631 at 669.
I agree in toto with the learned counsel for the Appellant that the learned trial judge did not take due cognizance of the trite legal principles in giving judgment on issue that has been abandoned by the party seeking the said relief. This relief ought not to have been granted in the first place: See BAMIGBADE V. BALOGUN (1994) 1 NWLR (Pt.323) at 738 – 9. It is in the light of the foregoing reason that I resolve this issue in favour of the Appellant.
But this is not the end of the matter because the Plaintiff/Respondent made some claims in the alternative as clearly evinced from his statement of claim enumerated above. Before I decide on the merit of his claims, there is a fundamental issue raised by the Appellant herein; which may render such claims stale or difficult of consideration on the question of the plaintiff to institute the said action, at all. This is the question of locus. This is the question that arose in issue 2 identified by the Appellant and which the Respondent vaguely responded to in his ISSUE 1. It is common ground that the Respondent commenced the instant action as plaintiff without offering an iota of indication that he was doing so in that capacity having been granted any power of Attorney. The thrust of his claim as stated in his statement of claim particularly paragraph 7 is to the effect that he derived his title to the subject matter of the case by virtue of a power of Attorney which he duly registered and which he would tender in court. I hereby reproduce paragraph 7 of plaintiffs’ statement of claim:
“7. By a Power of attorney dated 20th day of April 1965 and Registered as No. 47 at page 47 in volume 414 of the Lands Registry in the office at Enugu now port Harcourt. The said Mr. G.I. Etumnu, for valuable consideration formally transferred all his interest in and over the plots of land to the plaintiff.”
He claimed that the Power of Attorney was donated to him by one Mr. G.I. Etumnu and in his favour the Building Lease was made by the Government of the Eastern Region Nigeria for a period of 3 years from 1/1/1963.
It must be explained the nature of power of Attorney.
It is a document usually but not always necessarily under seal, whereby a person seized 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 spelt out in the power of attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seizing 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 absolute or for a limited period (See sc. 8 and 9 of the conveyance Act, 1881) which was 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, changes or alienates any title to the donee rather it could be a vehicle whereby these acts would be done by the donee for and in the name of the donor to a third party. See Ude v. Nwara (supra).
I agree with the learned counsel for the Appellant, that in a situation where the donee of a power of Attorney is instituting an action with respect to the subject matter of the power of attorney, the only manner known to law for instituting such an action is the indication of the fact that the Donee is suing through his lawful, Attorney; the Donor of the said power. This is based on the nature of the power of attorney as explained above.
In paragraph 4 of his statement of Defence 1st Defendant (appellant herein) admitted existence of power of Attorney but deny that it vested or confer any title on the Respondent.
During the course of his testimony at trial the Respondent; on cross-examination stated that he applied for the assignment of the land in dispute. He neither tendered the Deed of Assignment nor the application. There was therefore incontrovertible evidence that no consent to assign the Land in compliance with the provision of the Land Use Act s.22.
It is pertinent to observe that the power of Attorney granted to the Respondent was predicated on the subsistence of the Building Lease granted to the Donor, Mr. Etumnu. It is common ground to all parties that the lease had tenure of 3 years certain which expired in 1965 without being renewed. In law the Power of Attorney therefore ceased to have any validity as the basis of its authority was no longer in existence. Hence the Respondent as 1st Defendant pleaded in paragraph 13 of his statement of Defence thus:
“13. By way of defence also 1st Defendant avers that by reason of facts pleaded in paragraphs 4 and, 5, above the action is not properly constituted in that:
(a) The plaintiff is not the leasee of the property mentioned above either before during or after the expiration of lease hereof.
(b) The plaintiff is not bringing this action as Attorney or Agent of the former leasee.
(c) The former leasee having died the Plaintiff’s Power of Attorney (even if valid before) is extinguished by reason of the death of the donor i.e. the former leesee.
(d) By reason of sub-paragraphs (a) (b) (c) above and paragraph 12 of his statement of Defence, 1st Defendant will contend during or before the trial that this action be dismissed against the plaintiff on legal grounds with punitive cost.”
Although I have reproduced paragraph 13 of the 1st Defendant’s/Appellant statement of Defence, it is for the better appreciation of the complaint of the Appellant on the objection on locus standi. This court and the apex court have consistently held that in determination of locus standi, the plaintiff’s statement of claim should be the only process that should receive the attention of the court. See ADESOKAN V. ADEGOROLU (1997) 3 NWLR (Pt.493) 261; OWODUNNI V. REGISTERED TRUSTEES OF CELESTRIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt.675) 315 and DISU V. AJILOWURA (2006) 14 NWLR (Pt.1000) 783 and ADESANOYE V. ADEWOLE (2006) (Pt.1000).
I have carefully examined the statement of claim and I am satisfied that the Respondent; in the first place had no locus standi to institute the action at the High court for the copious reasons I have already stated above. For the learned trial judge to have embarked on hearing and determining this matter, where the plaintiff who brought the action had no locus standi, was an exercise in futility. In view of this, it is needless considering the last issue of non-joinder of the Rivers State Government as a party. This does not help the matter for either party in the circumstance of this case.
In sum, this appeal has merit and it is allowed. The decision of the High court Rivers state delivered on 5/3/998 entering judgment in favour of the Respondent herein, as per his claim, is hereby set aside and the said Respondent’s claim dismissed. I make no order as to costs in the circumstance of this case. Each party is to bear costs of prosecuting this appeal.
Other Citations: (2009)LCN/3179(CA)
