Innocent Obiora Nwankwo V. Comfort Agwuna (2007)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The appellant sued the respondent in Onitsha High Court in Suit No.0/598/86 seeking the following reliefs in an Amended Statement of Claim;

“a. A Declaration that the Plaintiff is the bonafide owner in possession of property at Plot 13 Block 87, Modebe Layout otherwise known as No. 26 Afubera Street,Onitsha.

b. An Order of perpetual injunction restraining the Defendant by herself or her agents, servants or privies from trespassing, leasing or interfering with the Plaintiff’s quiet possession use and enjoyment of the said land and the developments thereon.

c. N100,000.00 damages for trespass.”

The respondent filed an Amended Statement of Defence denying the claim. At the trial the appellant testified for himself and called three witnesses to the effect that he bought the disputed property from Mrs Sussana Agwuna. He tendered “Exhibit P2” which was a power of attorney donated to Sussana Agwuna by Theophilus Agwuna over the property in Issue.

The respondent testified for herself and called three witnesses. Her defence was that Sussana Agwuna was the first wife of the late Theophilus Agwuna. The couple were divorced as far back as 1982 and the late Theophilus did not donate any power of attorney to Sussana Agwuna and did not sign “Exhibit P2”, the power of attorney.

She tendered Exhibit D1-D4 as documents to show the genuine signature of the late Theophilus Agwuna. The trial court in its judgment dismissed the appellant’s claim.

DissatisfIed with this judgment the appellant has appealed to this court and the learned counsel for him filed a brief of argument and identified one issue for determination as follows:

“Whether a valid title was transferred to Sussana Agwuna who made a sale of the property in dispute to the Plaintiff.”

The respondent did not file any brief and the appellant was granted leave to argue his appeal on his brief alone.

The learned counsel for the appellant submitted that it was not disputed by both sides that the disputed property belonged to late Theophilus Agwuna. What was in dispute is whether title of the property was transferred to Sussana who in turn sold it to the appellant.

The learned counsel submitted that the trial court was wrong in holding that DW1, DW3 and DW5 were familiar with the signature of late Theophilus Agwuna.

The trial court was also wrong in holding that Exhibit P1 was mutilated and Exhibit P2 was not signed by the late Theophilus Agwuna. The learned counsel also contended that the allegation of mutilation and forgery of the signature of the late Theophilus was not proved beyond reasonable doubt and the trial court was wrong in dismissing the appellant’s claim. He submitted that on the authority of Kadoso V. Daniel (1986) 2 NWLR (Pt. 20) I that the signature of the late Theophilus Agwuna on Exhibit P2 should be presumed to be his signature.

I have taken a critical look at the submission of the learned counsel for the appellant and the record of appeal and it is quite clear from the record that Mrs Sussana Agwuna and the late Theophilus were divorced by a valid Court Order as far back as 24th of November 1982. There was no evidence before the trial court of a remarriage by the couple. On the contrary there was evidence that from the date of the divorce up to the time the late Theophilus Agwuna died in 1992 they never lived together again. Instead the late Theophilus Agwuna married the respondent with whom he lived until he died.

It follows therefore that Exhibit P2 which was relied upon by the appellant as the document giving title of the disputed property to Mrs. Sussana Agwuna on the 14th of March 1990 leaves a question mark.

The trial judge compared the signature on Exhibit P2 of the late Theophilus Agwuna with the signature on Exhibit D1 to D4 and came to the conclusion that the signatures of D1 – D4 are the same and a re different from the signature on Exhibit P2 which was adjudged not genuine. This is a finding of fact made by the trial judge which I have no right to interfere with unless it is shown to be perverse.

The trial court was at pains to analyse the evidence and came to the conclusion that the late Theophilus Agwuna never donated the property in dispute to Sussana Agwuna as alleged. The reasoning and conclusion of the trial court in my view are justified based on the evidence before it. I have no cause to interfere with it. Moverover, a Power of Attorney cannot confer title on a donee. It is a mere delegation of the powers of the donor to the donee. In the case of Ude v. Nwara (1993) 2 NWLR (pt 277) 638 at page 665 the Supreme Court had this to say on defining power of attorney:

“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 authorizes 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.

See also the cases of Abu v. Kuyabana (2002) 4 NWLR (Pt.758) 599, Olorunfemi v. Nig. Bank Ltd. (2003) 5 NWLR (pt 812) 1 and Amadi v. Nsirim (2004) 17 NWLR (Pt. 901) 111.

Consequently I see no merit in this appeal and I hereby dismiss it and affirm the judgment of the trial court. I make no order as to costs since the respondent did not appear to argue the appeal.

Other Citations: (2007)LCN/2393(CA)