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(Suing by his Attorney SHUAIBU ABU)
ABDULLAHI E. KUYABANA AND Ors.
COURT OF APPEAL
BEFORE THEIR LORDSHIPS
DAHIRU MUSDAPHER, JCA (Presided)
MUHMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA (Delivered the leading judgment)
ZAINAB ADAMU BULKACHUWA, JCA
A.A. Izinyon (SAN) for the plaintiff
Jude Okeke Esq. for the defendant.
PRACTICE AND PROCEDURE – COURT -Incompetency of action – proper order to make.
CONVEYANCING – “Instrument” within the meaning of Land Instrument Registration Act, Cap. 515 Laws of the Federation of Nigeria, 1990 – nature of document that qualifies as same.
CONVEYANCING – Registrable instrument – power of attorney – nature of – power of attorney to execute any instrument in respect of a landed property – when it becomes registrable under the Land Registration Act, Cap. 515 Laws of the Federation of Nigeria, 1990.
PRACTICE AND PROCEDURE – EVIDENCE – Unregistered of registrable instrument – principles governing admissbility of same.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Pending action – type of orders that a court can make with respect to same.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Order not sought by party – propriety of court granting such an order – power of appellate court to set aside same.
PRACTICE AND PROCEDURE – Incompetent action – proper order for the court to make in respect of same.
PRACTICE AND PROCEDURE – Pending action – type of orders that a court can make with respect to same.
MUNTAKA-COOMASSIE, JCA (Delivering the leading judgment):
In the writ of summons issued by the High Court of Justice, Federal Capital Territory, the plaintiff, (Ayatu Abu) now appellant, claimed against the defendants, now respondents as follows:
“1. A declaration that the plaintiff is the bonafide owner of the land known as plot 884 later convened and known as plot 885 Mabushi District in Abuja Federal Capital Territory.
The plaintiff’s title was endorsed thus – Ayatu Abu (Suing By His Attorney, Shuaibu Abu) on the writ of summons. After the service of the writ, the defendants filed their memorandum of appearance. Thereafter the defendants filed a notice of preliminary objection dated 16th day of July, 1999 and sought the following prayers:
“…An order striking out the above suit for want of jurisdiction on the following grounds:
(a) Non-compliance with provisions of Sherriffs and Civil Process Act, Cap 407 Laws of the Federation of Nigeria.
(b) Lack of locus standi on the part of the plaintiff/applicant’s attorney to institute the suit.”
This motion was moved in the lower court on the 20/7/99, while it was thereafter adjourned to the 26th July, 1999 for the appellants reply. Having heard both parties on the said preliminary objection, the learned trial Judge granted the application in part and dismissed the suit on the following terms:-
“The learned counsel for the plaintiff/ respondent on the other hand argued that section 99 of the Act applies only to processes issued for service outside jurisdiction. In the case at hand, the processes are issued and served within jurisdiction. This argument is well taken, the provision of section 99 of the Act applies only to processes served outside jurisdiction and it does not therefore apply to the case at hand in which service was effected with F.C.T. (sic).
On the second leg of the applicants argument however, I am convinced that the power of attorney as duly submitted by the learned applicant’s counsel is a document affecting land and by the provision of section 15 of the Land Registration Act it can neither be pleaded nor given in evidence unless it is registered in the Land Registry. Section 3(2) of the Land Registration Act has further butressed this point. It is well taken by the applicant’s counsel. The power of attorney in question having not been duly registered cannot therefore give valid locus to the attorney in respect of a matter such as the instant one affecting land.
It follows therefore that the suit filed by the purported attorney whose power falls short of statutory requirement for recognition on matters affecting land is incompetent. It further follows that the suit being in competent must be and is hereby dismissed.”
It is against this ruling upholding the preliminary objection, that the plaintiff had appealed to this court. In the notice of appeal filed in this court. Four grounds of appeal were filed thus:-
In accordance with the rules of this court both parties filed and exchanged their respective briefs of arguments. On the hearing day, 9/4/2001, both parties adopted their briefs of argument and also addressed this court briefly in further amplification of some points in their respective briefs. The appellant, in his brief of arguments formulated three issues for determination as follows:-
“1. Whether the trial court was right in holding that the plaintiff lacks the locus standi to institute the action as the power of attorney donated to him has not been registered pursuant to section 3 and 15 of the Land Registration Act, at that stage of the proceedings.
The respondents, on their part, formulated two issues for our consideration of the appeal thus:-
“1. Whether the appellant could rely on exhibit (A) in evidence being an un-registered power of attorney to commence proceedings at the trial court.
The issues 2 and 3 formulated by the appellant and issue 2 formulated by the respondents respectively relate to whether the trial Judge was right to dismiss this suit or to strike it out, both parties in their respective briefs of arguments were at consensus ad idem, that the suit ought to have been struck out instead of it being dismissed, even if the lower court found the action as being incompetent. The appellant in his brief of argument, submitted thus:-
“It is submitted that once a court ruled that it has no jurisdiction, the consequential order to make is one striking out the suit. In Yakubu v. Governor of Kogi State (1997) 7 NWLR (Pt. 511) 66 at 84, this Hon. court held that where an action is not properly constituted either because there is no proper parties before the court or there is a mis-nomer or the competency of the action itself is questioned, the consequential order to make in either circumstance is striking out such claim and not a dismissal.”
agreement with this submission, the learned counsel to the respondents in his brief of argument submitted as follows:
“The respondents concede that the suit should have been struck out and not dismissed on the following grounds:
(a) The respondents in their motion paper specifically prayed for an order striking out the suit
(b) Evidence was not led by the parties on merit
(c) An order of dismissal was not asked for by the respondents.
The submissions of the two learned counsel above stated, have effectively resolved the two issues of whether the appropriate order was made in this point was handled, as it has relieved this court of the pains of taking steps to resolving this otherwise simple and rudimentary legal issue. However, I wish to restate the basic principle of law as it relates to this point as follows:
(1) Where an action before the court is found to be incompetent, either by reasons of lack of locus standi or the parties in court are incompetent or not juristic person which has resulted in the lack of jurisdiction of the court to hear the case, the proper order to make is that of striking out the suit and not dismissal.
In the case of Adesokan v. Adetunji (1994) 6 SCNJ 123 at 146, the Supreme Court, per Ogundare JSC stated the position as follows:
“In view of the reason that lack of standing of the plaintiff (or where a proper defendant is not before the court) affects the jurisdiction of the court to adjudicate in the matter, the proper course, as held in Oloriode and Ors v. Oyebi (supra) is to strike out the action. If the court has not jurisdiction, it cannot dismiss the action.”
The Supreme Court went further in the case of Jacob Ovenseri v. Ojo Osagi Ede and Ors. (1998) 7 SCNJ, 118 at 195, to state the duties of a court before whom an action is pending regarding the type of order to make as follows:
“On the first issue, it must be pointed out in a case properly before the court, at the end of the hearing and addresses the trial court can give any of the following verdicts: (1) Give judgment in favour or against the plaintiff i.e. (a) he can dismiss the claim, or (b) he can allow the claim; or (c) he can enter non-suit if the parties are given a hearing on non-suit of (2)
Strike out the suit because the court had no jurisdiction to try the case, or the parties in court are incompetent or not juristic persons, or have no locus standi to file.” See also Yakubu v. Governor of Kogi State (1998) 7 NWLR (Pt. 511) 66 at 84 Oloriode v. Oyebi (1984) 1 SCNLR 390 at 407, and The Road Transport Employer Association of Nigeria v. The National Union of Road Transport Workers (1992) 2 SCNJ 251. (3) The making of the order of dismissal by the lower court was made without jurisdiction, since the said relief was not sought for. It is trite law that no court has jurisdiction to grant unto a party a relief he did not claim or seek for. In the case of Akinbobola v. Plisson Fisko Nigeria Ltd. AND Ors (1991) 1 NWLR (Pt 167) 270 at 278, the Supreme Court, per Kawu JSC stated the principle as follows: “I think there is merit in the submission of Mr. Akintoye that the Court of Appeal was in error when it made the order directing the refund of N100,000.00 deposit . The issue before the Court of Appeal relating to the deposit was whether the learned Judge of the Federal High Court could validly make the order directing the refund of the deposit after he had held that his court lacked jurisdiction to entertain the substantive suit. That issue was resolved in favour of the appellant by the Court of Appeal. In my view, the order made by the Court of Appeal cannot be said to be consequential order. Furthermore, as Mr. Akintoye rightly submitted, it was an order gratuitously made by the Court of Appeal as none of the parties had asked for it. A court will not normally grant a relief to a party, which has not been claimed. Nneji v. Chukwu (1988) 3 NWLR (Pt 81) 84.”
In the instant case, none of the parties claimed for an order of dismissal. It is my view that it was made gratuitously by the lower court. With due respect to the learned trial Judge the dismissal order was made in an abnormal manner and it is hereby set aside. See also Ekpenyong v. Nyong (1975) 2 S/C 71 and Obioma v. Olomu (1978) 2 S/C pl. See also Afrotec v. Mai AND Sons Ltd. (2001) 6 WRN 65 S.C. p1 at p12.
The only issue left in this appeal is the validity of exhibit CA1 i.e. the power of attorney that is : –
“Whether exhibit CA1 is a registrable instrument which affects the locus standi of the appellant, to institute this action which it is not registered.”
Learned counsel to the appellant Izinyon SAN, submitted forcefully in his brief of arguments that the learned trial Judge was in grave error in holding that a document, a power of attorney, to institute and defend a suit needs to be registered before its admissibility. He further submitted that exhibit CA1 was donated to institute, defend any action on the appellant to his donee on the land. It was his submission that exhibit CA1 is not a registrable instrument. The mere reference to a “power of attorney under which an instrument may be executed” is a reference to a power of attorney especially an irrevocable power of attorney, coupled with interest where a right to title has been transferred, extinguished or limited. In such situation, an instrument may be executed pursuant to such power of attorney. But under exhibit CA1 no Instrument need be executed from the said power, he contended. He relied on the case of Ude v. Nwara (1993) 2 SCNJ 47 at 66. He then concluded that exhibit CA1 did not transfer any right of title to the donee and therefore not caught by the provisions of sections 2 and 15 of the Land Registration Act Cap 515 LFN.
On the other hand, the learned counsel to the respondent, Jude Okeke Esq. submitted that exhibit CA1 is a registrable instrument, and the failure to register it in this case had rendered it in admissible. This in effect means that the plaintiff has no locus to institute this action, which therefore rendered this action incompetent. It was the contention of the learned counsel to the respondents that even though exhibit CA1 was granted to the attorney to institute, prosecute or take any other legal steps whether on trial or on appeal on behalf of the plaintiff in respect of the landed property owned by or to which the plaintiff is entitled or possessed of in Abuja, it’s subsequent paragraph conferred beyond mere right of institution or defence of suits. He referred to paragraph 3 of exhibit CA1 and submitted that it places the attorney in the same position and/or status as the donor himself. He accordingly submitted that exhibit CA1 confers on the attorney the right to transfer, charge or extinguish any right or interest in the land, and therefore, it falls within the purview of sections 2 and 15 of the Land Registration Act which requires such instrument to be registered before it can be accepted and admitted in evidence.
Having stated this much, I think the main issue now in this matter, is whether exhibit CA1 falls with the meaning of a registrable instrument under the provisions of section 2 of the Land Registration Act Cap 515 LFN, hereinafter referred to as Act. Section 2 of that Act provides thus:-
“Instrument means a document affecting land whereby the party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called his grantee) any right or title or interest in land and include a certificate of occupancy and a power of attorney under which an instrument may be executed.”
From the onset even at the risk of repetition, I would like to point out that before a document could fall within the meaning of Instrument as provided above it must:-
(a) affect land;
(b) confer, transfer, limit, charges or extinguish in favour of another party any right or title or interest in land or
(c) a certificate of occupancy; of
(d) a power of attorney under which an instrument may be executed.
The relevant aspect of this section of the Act to this case is (d) i.e. “a power of attorney under which an instrument may be executed.” Exhibit CA1 in this case is a power of attorney, and it provides thus:
“This power of attorney dated this 9th day of June 1990.”
Ayatu Abu of No. 45 Peterborugh Apt. 31 Boston USA (hereinafter referred to as the donor) which said expression shall include where the context so admits my assigns, successors-in-title, agents and privies hereby appoint Shuaibu Abu of Kubuwa FCT, Abuja, my attorney for me and in my name and on my behalf to do and execute any of the Acts and things following namely:-
“To institute, defend, prosecute or take any other legal steps whether on trial or on appeal on my behalf in respect of any landed property owned by me or to which I am entitled or possessed of whether at or Marbushi District or any other part of the Federal Capital Territory, Abuja.
Generally to do all such lawful acts and things as my attorney thinks advisable for the purpose aforesaid as, and efficiently in all respect as I would do myself.”
The respondents, counsel conceded quite correctly, that exhibit CA1, was granted to the attorney to institute, defend, prosecute or take any other legal steps whether on trial or on appeal on behalf of the plaintiff in respect of his landed property, but his disagreement is with the provisions of clause 3 which provides, to wit
“Generally to do all such lawful act and things as my attorney thinks advisable for the purpose aforesaid as and efficiently in all respect as I could do myself.”
It was therefore his contention that the provisions of the Act goes beyond institution, defence or prosecution of actions on behalf of the plaintiff.
With due respect, it is my view that this submission is misconceived.
The operative words in that clause are – “For the purpose aforesaid…….” The word “Aforesaid” simply means “said or named before” See Chambers English Dictionary 7th edition at page 22 or Chambers Mini Dictionary, edited by Catherine Schwarze page 8. The same phrase has been defined as – aforementioned, above-mentioned, above-named, described above or preceding. See the New Nuttall Dictionary of English Synonyms and Antonyms page 11 of the revised edition and edited by Roseline Fergusson.
The clause is made subject to clause 2 of exhibit CA1. He could therefore not do any act that is not for the purposes as stated in clause 2. In addition this court has not been able to see where exhibit CA1 confers any power on the attorney to execute any instrument in respect of the donors landed property. Assuming, without necessarily conceding, that it does, the power of attorney does not become registrable until and unless such an instrument is executed. In the case of Ude v. Nwara (1993) 2 SCNJ 47 at 66-67 or (1993) 2 NWLR (part 278) p 638/664 as per Nnaemeka Agu JSC stated succinctly the law thus:-
“A power of attorney is a document, usually but not always necessarily under seal, whereby a person seized of an estate in land authorises another person (the donee) 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 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 Sections 8 and 9 of the Conveyance 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 authorises the donee to do certain acts instead of the donor and so it is not an instrument which confers, transfer, limits charges or alienate 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 alienate or parting with possession. So far it is categorised 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 a person including himself then there is alienation.
I cannot agree more and I bow to it. With the foregoing, my answer to this issue is simply in negative I therefore hold that exhibit CA1 is not a registrable instrument under section 2 of the Act. However even if I am wrong in holding that exhibit CA1 is not registrable instrument under the Act (I hope I am not), that exhibit, even if registrable, can it still be admitted in evidence without it being registered? It is my view, with respect, that the admissibility or otherwise of an unregistered registrable instrument depends on the purpose for which it is being sought to be admitted. For example, if it is being tendered for the purpose of proving or establishing title to land and/or interest in land it will apparently not be admissible under section 15 of the Land Registration Act (supra). But if it is only to show that there was a transaction between the grantor and grantee, it will be admissible. To buttress this point, I will refer to the following cases.
In the case of Okoye v. Dumez Nig. Limited (1985) 1 NWLR (Pt. 4) 783, where lease agreement were held to be admissible even though were not registered, the Supreme Court at page 803 per Karibi-Whyte JSC held as follows: –
“It would therefore seem to me apposite and admissible in this action where documents, exhibits E and F were tendered in an action against the respondents were lawfully on the land in dispute. It is admissible to show that respondents were not trespassers to the land in dispute.”
In my opinion where a registrable or unregistered instrument is regarded as inadmissible in evidence, it may be necessary on a proper consideration of the document itself, and the purposes for which it was tendered to determine whether it is not admissible for that purposes. If the purpose for which it is tendered did not affect any legal interest in land, it is in my opinion admissible for the purpose for which it was produced – namely in this case an equitable right to remain on the land. His Lordships has said it all.
(2) In the case of Agwu Nedu v. Onwu Mera (1994) 1 SCNJ 106, a customary agreement for sale of land was held admissible even though it was not registered. Muhammed JSC held at pages 117-118 as follows;-
“It is crystal clear from the wording of exhibit C that it is evidence of sale of a piece of land and from the proceedings that the document had been tendered in evidence simply to establish a fact which the parties have pleaded. It is not and cannot be an instrument as is defined in the land Instrument Registration Law. Even if it was an estate contract and consequently an instrument registrable for the purposes of the Land Instrument Registration Law of Eastern Nigeria, since the purposes of producing it was only to establish evidence that the transaction between the respondent and Mba haotu was for the redemption of pledge, the document is admissible.”
See also the cases of:-
(1) Joseph Babalola AND Ors v. Samuel Armoro (1973) NSCC 108, at 113;
(2) Olayede Akingbade v. Oyeyipo Elemosho (1964) All NLR 154; and
(3) Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74.
In the case at hand, the main purpose of exhibit CA1 is to show that the attorney has the authority to initiate and conduct this case on behalf of the plaintiff. It has nothing to do with interest on land or title to land. It is quite unnecessary for same to be registered under the Act and it is always admissible without registration.The trial court should have ordered for the striking out of the suit rather than dismissing same. Umaru Abba Tukur v. Taraba State Government (1997) 6 SCNJ page 81; or (1997) 51 LRCN p149, and Governor of Kogi State v. Yakubu (2001) 16 WRN 98; (2001) 85 LRCN, p756 at page 767 per Mohammed JSC.
In the result and applying the above principles, I hereby allow this appeal. The order of the trial court made on the 30th February. 1999 is hereby set aside. The case is remitted back to the Chief Judge, High Court, Federal Capital Territory, Abuja for re-assignment for hearing before another Judge of that court.
DAHIRU MUSDAPHER, JCA.:I have had the honour to read before now the judgment of my Lord Muntaka-Coomassie JCA just delivered. For the same reasons contained in the aforesaid judgment which I respectfully adopt as mine, I too allow the appeal and set aside the decision of the trial court. I remit the case back to the High Court of the Federal Capital Territory and thereat to be tried de novo by another Judge. I abide by the order for costs contained in the aforesaid leading judgment.
BULKACHUWA, JCA.:I have read before now the lead judgment just delivered by my learned brother Muntaka-Coomassie, JCA. He had meticulously dealt with all the issues raised in the appeal and I have nothing useful to add. I adopt the reasonings and the conclusions reached in the lead judgment as mine in allowing the appeal. I abide by all consequential orders made therein.
Cases referred to in the judgment
Adesokan v. Adetunji (1994) 6 SCNJ 123
Afrotec v. Mai AND Sons Ltd. (2001) 6 WRN 65; (2001) 1 S.C 1.
Akinbobola v. Plisson Fisko Nigerian Ltd. (1991) 1 NWLR (Pt 167) 270
Akingbade v. Elemosho (1964) 1 All NLR 154.
Babalola v. Armoro (1973) NSCC 108.
Ekpenyong v. Nyong (1975) 2 S.C 71.
Fakoya v. St. Paul’s Church, Shadamu (1966) 1 All NLR 74.
Governor of Kogi State v. Yakubu (2001) 16 WRN 98; (2001) 85 LRCN, p.756.
Nneji v. Chukwu (1988) 3 NWLR (Pt 81) 84
Nedu v. Mera (1994) 1 SCNJ 106.
Ovenseri v. Ede (1998) 7 SCNJ, 118.
Okoye v. Dumez Nig. Limited (1985) 1 NWLR (Pt 4) 783.
Oloriode v. Oyebi (1984) 1 SCNLR 390.
Obioma v. Olomu (1978) 3 SC 1.
Road Transport Employer Ass. of Nig. v. The Nat. Union of Road Transport Workers (1992) 2 SCNJ 251
Tukur v. Taraba State Government (1997) 6 SCNJ page 81; or (1997) 51 LRCN p149
Ude v. Nwara (1993) 2 SCNJ 47 or (1993) 2 NWLR (Pt 278) 638.
Yakubu v. Governor of Kogi State (1997) 7 NWLR (Pt 511) 66.
Statutes referred to in the judgment
Sherriffs and Civil Process Act, Cap. 407 Laws of the Federation of Nigeria 1990: section 99
Land Registration Act Cap. 515 Laws of the Federation of Nigeria 1990, sections 3(2), 15.
Conveyance Act 1881, section 8 AND 9.
High Court Laws of River State, section 15.
Books referred to in the judgment
Chambers English Dictionary 7th edition, P.22
Chambers Mini Dictionary, Edited by Catherine Schwarze, P.8.
New Nuttall Dictionary of English Synonyms and Antomyms revised edition, edited by Roseline Fergusson P. 11.