➥ CASE SUMMARY OF:
Stanislaus Uzoechi V. J. I. Alinnor & Anor. (CA/E/102/89 • 13 Jul 2000)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Power of attorney;
Damages.
➥ CASE FACT/HISTORY
From the pleadings and the evidence led in support, the appellant’s case put in a nutshell is that it was the Attorney of the respondents, PW 1 who approached him and requested to be allowed to erect a boys’ quarters on a portion of his land while the Attorney would grant him an access road through the respondent’s land. According to the appellant, he agreed on the conditions that a solicitor should be engaged by them to prepare the necessary documents and that both of them should survey the pieces of land he offered for the exchange. It was also the case of the appellant that there was an ancient footpath running by the side of the respondents’ land to his own land through which he got to his land behind the respondents’ land. He did not deny destroying the respondents’ concrete fence. He destroyed it after he had asked the Attorney to remove the structure which he refused. The respondents’ case put briefly was that in January, 1977 by a deed of conveyance Exhibit C, they acquired title to a parcel of land at Orji along Owerri/Okigwe Road from one Dominic Duruku who himself bought from the original owners of the land by a deed of conveyance Exhibit B. They later donated a Power of Attorney, Exhibit A to C.C. Alinnor, PW1 to manage the parcel of land on their behalf. Later the appellant who owned a parcel of land behind the land of the respondents and whose land was land-locked, approached the attorney and requested him to grant an access road through the respondents’ land to his land as he could not get to his land from Okigwe Road without passing through the respondents’ land. After initial hesitation, the Attorney agreed on the condition that the appellant would grant the respondents a portion of his land in exchange of the said access road. Acting on behalf of the respondents, the Attorney granted appellant an access road through the respondent’s said land measuring 230ft by 14 feet, 78 feet, and 32 feet wide at various points in exchange for a portion of the appellant’s land which was also granted to the respondents measuring 100ft by 50 feet. After the exchange, each party took possession of the area granted and the appellant started to make use of the access road to convey materials to his land which the Attorney on behalf of the respondents fenced off the portion granted in exchange with concrete cement blocks and erected building foundation on it. A draft deed of conveyance was prepared and sent to the appellant for execution to reflect the exchange, but he returned it after six months on the ground that the access road had merged with Orji Layout Plan as an approved road mapped by the Town Planning Authority. On 22/8/79 and without the consent of the respondents, the appellant broke down the respondents’ concrete fence on the land, destroyed the foundation of the building on it, and carried away the blocks. At the end of the trial, in a reserved judgment, the learned trial Judge entered judgment in favour of the respondents against the appellant and dismissed his claim in Suit No. HOW/116/80. Dissatisfied with the judgment, the appellant has appealed to this court.
➥ ISSUE(S)
I. Whether the Power of Attorney, Exhibit A was properly proved at the trial having regard to the provisions of Section 117 of the Evidence Act?
II. Could the defendant/appellant be said to be estopped from enforcing his legal rights against the plaintiffs in this suit?
III. Could the learned trial Judge rely on survey plans of the defendants/appellant which had since been amended to discredit the case of the defendant/appellant?
IV. Given the limited nature of the powers donated by the plaintiffs to the Attorney and terms of the agreement between the defendant/appellant and the plaintiffs has a contract crystallised or were the terms merely subject to contract?
V. Whether the award of general damages in addition to special damages by the trial court was wrong in the circumstances of this case?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[SECTION 117 APPLIES TO ONLY POWER OF ATTORNEY EXECUTED ABROAD
‘Learned counsel for the appellant was unable to cite any authority in support of his submission than Exhibit A not having been executed before a Notary Public, Magistrate or Judge is in breach of Section 117 of Evidence Act and therefore the Attorney has not established the capacity in which he was suing. The case of Ayiwoh v. Akirede supra relied on by learned counsel for the respondents makes it clear that Section 117 of the Evidence Act applies only to Powers of Attorney executed abroad- I am persuaded by it notwithstanding that it is a decision of a High Court. This issue is resolved in favour of the respondents against the appellant.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[‘I am in full agreement with the submission of learned counsel for the appellant that issue of estoppel was not pleaded by the respondents in their statement of claim. Be that as it may, the learned trial Judge did not base his judgment solely on estoppel even though he made reference to it in his judgment … It is quite clear from above that the learned trial Judge found as a fact on the evidence led before him that a contract had been entered into between the appellant and the respondents in respect of the exchange of the pieces of land. There was nothing perverse in his findings as the findings were supported by the totality of the evidence adduced before him and as such this court cannot interfere with these findings. See Akinloye v. Eyiyola (1968) NMLR 92 at 95, Woluchem v. Gudi (1981) 5 S.C. 291 at 295-296. The important point, therefore is that the reference by the trial court to quasi estoppel being merely superflous or a surplusage, has not in any way occasioned any miscarriage of justice, See Saude v. Abdullahi supra. This issue is also resolved in favour of the respondents against the appellant.’]
.
.
↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.
[THE TRIAL JUDGE DID NOT RELY ON SURVEY PLAN ALONE
‘Apart from Exhibits M and N, there was abundant evidence on record which the learned trial Judge considered in coming to the irrestistible conclusion that there was no ancient footpath in the area. A look at Exhibits B, C, and J1 (the various Deeds of Conveyance) by which each party originally came into possession of his own portion of land in the area, do not show any ancient footpath in the area. It is to be noted that Exhibits B, C and J1 were made many years before these actions were instituted. There is no ancient footpath indicated in Exhibit JI, the appellant’s survey plan. In Exhibits 1C and K1, the appellant’s amended survey plans, he clearly indicated a road running through the respondents’ land which terminated on his own land. He also marked in both plans verged blue a portion of his land to be granted to the respondents on conditions. Surprisingly, under cross examination at page 139 of the records he denied marking out any piece of land for exchange. At page 180 lines 6-20 of the records, the learned trial Judge said:- Be that as it may, a cursory look at Exhibit K.K ‘M’ and ‘N’ all filed by the defendant as aforesaid reveals that the area of the plaintiff’s land is shown in green verge. As already stated, the proposed road for exchange was clearly shown; the defendant’s plot given to the plaintiffs in exchange for the access road is clearly depicted in blue while the defendant’s entire land was shown in pink. One would ask if the proposed road was clearly shown in all these exhibits as well as the area which the defendant was to give in exchange, can we really say that the areas slated for exchange by both sides were not known? This again goes to negative the assertion of inconclusiveness of the arrangements between the parties by the defendants. I am therefore of the clear and firm view that the learned trial Judge did not base his findings of fact on Exhibits M and N alone. This issue is resolved in favour of the respondents against the appellant.’]
.
.
↪️ ISSUE 4: IN RESPONDENT’S FAVOUR.
[THE POWER OF ATTORNEY IS NOT A REGISTRABLE INSTRUMENT
‘The contention of learned counsel for the appellant that Exhibit A, the Power of Attorney was not registered is misconceived because it is not an Instrument within Section 2 of the Land Instruments Registration Law (supra) because paragraph 5 of it provides as follows:- To enter into any arrangement with any person or persons concerning the said parcel of land including exchange or sale of a portion of the said parcel of land provided that in the event of sale or exchange, the deed of conveyance, shall be executed by us. From above, it is clear that the respondents reserved the power of exchange or sale of the land, and as such, it is not caught by Section 2 of the Land Instruments Registration Law, supra. It follows that the Attorney could conclude a contract for exchange of land and take possession without himself executing the deed of conveyance and that is exactly what the Attorney did in this case. Exhibit A therefore, in my own view, is not a registrable instrument within the contemplation of Section 2 of the Land Instruments Registration Law (supra). This issue is also resolved in favour of the respondents against the appellant.’]
.
.
↪️ ISSUE 5: IN RESPONDENT’S FAVOUR.
[AWARDING SPECIAL AND GENERAL DAMAGES DOES NOT AMOUNT TO DOUBLE COMPENSATION
‘The distinction between special and general damages consists of damages which the law presumes to be natural or probable consequences of the defendant’s act, while special damages consists of items of loss which are capable of exact calculation.It is my view that the additional award of ₦5,000.00 to the respondent does not amount to double compensation.’
‘It is well settled that a Court of Appeal will not interfere with the finding of a trial Judge as to the award made by him on damages unless it is satisfied that he acted on a wrong principle of law or the amount awarded is so high or so low as to make it an entirely erroneous estimate of the damages to which the claimant is entitled. See Ediagbonya v. Dumez (Nig.) Ltd. (1986) 3 NWLR (Pt. 31) 761 and Nigeria Airways Ltd. v. Abe (supra).I am of the view that the learned trial Judge applied the correct principle of law in awarding the sum of ₦5,000.00 as general damages and as such, I will not interfere with it. ’]
.
.
.
✓ DECISION:
‘In the end result, this appeal lacks merit and it is hereby dismissed with ₦5,000.00 costs in favour of the respondents, against the appellant.’
➥ FURTHER DICTA:
⦿ ISSUES MUST RELATE TO GROUNDS OF APPEAL
I agree entirely with submissions of learned counsel that once grounds of appeal have been filed and issues identified, the grounds of appeal must relate to the issues identified. I also agree with him that the wording of ground six of the grounds of appeal is inappropriate in a civil appeal. As no issue was distilled from ground six of the grounds of appeal, the appellant is deemed to have abandoned it and it is accordingly struck out. — Akpiroroh JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Akpiroroh, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)