➥ CASE SUMMARY OF:
Abigail Nkem Osakwe V. Francis Dubem Nwokedi & Anor. (CA/E/168/2014, 13 July 2018)
by Branham Chima.
➥ ISSUES RAISED
Power of attorney;
Family property.
➥ CASE FACT/HISTORY
The facts that led to this appeal are as follows: The Plaintiff now the Appellant by a writ of summons filed on the 19th of July, 2006 instituted an action against the Defendants now Respondents claiming the following reliefs: a. An order of account of all monies collected as rent from the tenants at No. 17 Water Works Road, Omagba, Onitsha as from the plaintiffs fathers death on 16th April 2004 and payment of the said amount to the plaintiff. b. Perpetual injunction restraining the defendants whether by themselves or by their agents and servants howsoever described from entering or encroaching into the said No. 17 Water Works Road, Omagba, Onitsha and from doing any other thing in or on the said property or collecting any further rents from any tenant therein.
The Respondents filed the statement of defence of the 1st and 2nd Defendants and counter-claim on 27th November, 2007. The Respondents counter claimed as follows: a. A declaration that the Power of Attorney dated 17/2/2003 and registered as No. 3 at page 3 in Volume 221 of the Lands Registry in the office at Awka purportedly granted in favour of plaintiff was wrongfully and/or unlawfully obtained. b. A declaration that No. 17 Water Works Road, Omagba, Onitsha, was and still is a family house for the entire children of late Chief Raphael Nwokedi. c. An order directing the Registrar of deed, Ministry of Lands and Survey, Awka, Anambra State to de-register the aforesaid Power of Attorney dated 17/2/2003 d. An injunction restraining the Plaintiff, her servants, agents or howsoever constituted from in whatever manner interfering with the 2nd defendant (sic) continued discharged of his functions/duties for the entire late Raphael Nwokedi Family.
Issues were joined and after the hearing of the case, the trial Court on 20/12/13 dismissed the Appellants case and entered judgment in favour of the 1st Respondent granting part of the counter claim.
Dissatisfied, the Appellant filed a Notice of Appeal on 28th February, 2014.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the learned trial Court was right in holding as it did that the case of the Appellant was without merit and in dismissing the same and also for finding that the said building in dispute is family property?
RESOLUTION:
[THE PROPERTY IS REGARDED AS FAMILY HOUSE, AND WAS NOT GIVEN TO ANYONE
‘It is clear to me from the evidence of the 1st Respondent which was believed by the learned trial Judge and which I also believe as being more credible on a balance of probabilities that the Late Ugonabo Raphael Nwokedi being an Ozo title Chief holder whose first wife and the Appellants mother had been buried on the property and who had stated a wish to be buried on the property had regarded the property towards the end of his life as family house and would not have given it to any child. That was why it was not devised to anyone in Exhibit D6. I am also persuaded in this finding by the fact that the Appellant was never let into possession of the property during the life time of the deceased who lived there and collected rents from tenants therein.’
‘Exhibit D6 made on 8/3/04 was more by way of instructions regarding what to do on his death and the deceased made elaborate explanations as to why the second Building where his two wives had been buried must remain family property as he wished to be buried therein. The deceased affirmed his earlier devise of the one Storey Building on the same property given to the Appellant demarcated by a dwarf wall and his revocation of his gift to her of the second Building as they are two different properties. These documents were not contested at the time they were tendered and on reading the record I can find no serious contention by the Appellant regarding their validity as having been made by the deceased. I am of the view that the learned Judge was right that Exhibit D3 and D6 both support the counter claim of the 1st Respondent that the building being contested on No. 17 Water Works Road, Onitsha was meant by the deceased to be family property and found it to be so.’]
.
.
.
✓ DECISION:
‘The judgment of Hon. Justice D.O.C Amaechina delivered on 20/12/13 in Suit No. 0/408/2006 is hereby affirmed. Appeal Dismissed. I make no order as to costs as the Appellant and 1st Respondent are family members and I will not add to the disharmony.’
➥ FURTHER DICTA:
⦿ A PRAYER FOR INJUNCTION COULD BE A PRAYER FOR TITLE
The argument that she claimed only rent and enjoyment of the property without claiming title cannot hold water since the prayer for injunction effectively means a prayer for title not withstanding that there is no specific prayer for declaration of title. — H.M. Ogunwumiju JCA.
⦿ THE MERE REGISTRATION OF A DOCUMENT DOES NOT IPSO FACTO GIVES POWER TO IT
Thus, mere possession of a Power of Attorney does not tantamount to valid title to the land. I am not discounting the fact that the said Exhibit P1 was registered as No. 3 on Page 3 in Volume 221 of the Lands Registry in Awka. However, the registration of a document does not confer any legitimacy or validity to it if it had no power to convey anything ab initio. See Akpene v. Barclays Bank (1977) NSCC (Vol. II) 29 at 36; Rockonoh Property v. Nitel (2001) 7 SCNJ 225 at 248-250. — H.M. Ogunwumiju JCA.
⦿ FILIAL CONSIDERATION CANNOT DONATE AN IRREVOCABLE POWER OF ATTORNEY
The other point is that before a Power of Attorney can be irrevocable it must be given in financial and NOT filial consideration as was done in this case as the Appellant did not pay any money to the Donor-her father. The definition of good consideration in Blacks law Dictionary 7th Edition indicates that it must be valuable consideration. It is clear that mere filial or moral obligation to donate an Irrevocable Power of Attorney cannot amount to valuable consideration. — H.M. Ogunwumiju JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. C. Chima Oguejiofor Esq. ACIArb.
⦿ FOR THE RESPONDENT(S)
K.C. Ezeanyika.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ IN RESPECT OF AN INSTRUMENT OF GRANT, COURT WILL INQUIRE INTO THE FOLLOWING
In Romaine v. Romaine (1992) 5 SCNJ 25 at 36, Nnaemeka-Agu JSC held as follows: But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of question, including:- i. Whether the document is genuine and valid; ii. Whether it has been duly executed, stamped and registered; iii. Whether then grantor had the authority and capacity to make the grant; iv. Whether the grantor had in fact what he purported to grant; and v. Whether it has the effect claimed by the holder of the instrument.”
➥ REFERENCED (OTHERS)
