CASE SUMMARY OF:
Alhaji Abubakar v. Abubakar Waziri & Ors (2008) - SC
- Power of attorney;
- Statement of Defence;
- Leave of Court;
- Ground of Appeal;
1. Alha Ji A.b. Abubakar
1. Alha Ji Abubakar Daniya Waziri;
2. Alha Ji Umaru Edota Waziri;
3. Alha Ji Mohammed Lima Waziri;
4. Alha Ji Mohammed Yauri Waziri
LEAD JUDGEMENT DELIVERED BY:
- P.O Aderemi, JSC
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- M.I. Usman.
* FOR THE RESPONDENT
- M.N. Ibrahim Esq.;
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
This is an appeal against the judgment of the Court of Appeal (Abuja Judicial Division) delivered on the 16th day of September 2004; the said court (hereinafter referred to as the court below) heard the matter on appeal from the judgment of the High Court of Niger State sitting in Minna, Niger State which judgment itself was delivered on the 16th of October 2002. The respondents herein as plaintiffs before the trial court had claimed from the appellant herein as the defendant before the High Court, the following reliefs:
(1) An order on the defendant to give a satisfactory account of the assets of the late Alhaji A.B Waziri who died on the 3rd of May 1995;
(2) An order that the defendant should disengage from the administration of the estate of the said deceased; and
(3) An order that the defendant should surrender all assets of the said deceased in his possession to the plaintiffs.
The plaintiffs filed their pleadings but the defendant who failed to file any pleading brought two applications before the trial commenced. The first which was to join a limited liability company by name AREWA CONSTRUCTION COMPANY LIMITED as 2nd defendant was dismissed by the trial court. The second application was by way of preliminary objection contending that the Power of Attorney was donated to the Board of Directors of Arewa Construction Company Limited and not to the defendant and consequently praying that the suit be struck out for what he termed as failure to sue a proper party was equally overruled.
Thereafter, the plaintiffs as respondents here called a witness in the person of the 4th plaintiff/respondent. The appellant as defendant in that court did not file any defence also did not call any evidence.
The trial judge, in a reserved judgment delivered on the 16th October 2002 dismissed the suit in toto, in so doing he held inter alia: "In the instant case apart from the averments of the plaintiffs I can find no evidence to support their claim that they donated the defendant with the power of Attorney to deal with the property of their father on their behalf. Throughout the pleadings the word "assets" is used assets of late Alhaji A.B. Waziri. The evidence of PW1 shows they are all landed property in respect of which there is no Power of Attorney vested in the defendant. Consequently, none of the reliefs can be granted against the defendant. In the final analysis, the suit, should be dismissed as a result the case is hereby dismissed".
Being dissatisfied with the judgment, the plaintiffs who are the present respondents, appealed to the court below. The court below after taking arguments of counsel, in a reserved judgment delivered on the 16th of July 2004, allowed the appeal and consequently granted all the reliefs sought by the plaintiffs/respondents against the defendant/appellant. In so finding, the court below after referring to the provisions of Order 27 Rule 8(1) of the Niger State Civil Procedure Rules, reasoned inter alia: "In effect, the above provision provides for a situation where a defendant who has been served with a writ of summons and a statement of claim fails to file a reply, that is, a statement of defence in answer to the claim labeled against him within the time stipulated by the court rules as in the instant case. in such a situation, the plaintiff is, on an application to the court, entitled to judgment as per the reliefs claimed. It is trite that where there is no defence to the plaintiffs claim, the plaintiff is entitled to judgment. In the circumstances, this appeal succeeds and is hereby allowed. I set aside the decision of the trial court delivered on the 16/10/2002 and invoke our powers under Sec. 16 .of the Court of Appeal Act Cap LFN 1960 and substitute it with an Order entering judgment for the plaintiff".
Being dissatisfied with this judgment, the respondent before that court who is now the appellant, has appealed to this court.
1. Whether the Court of Appeal was right in holding that the trial court should not have gone into the issue of Power of Attorney.
HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED; WITH N50,000 COST AGAINST THE RESPONDENT]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT, AND AGAINST THE RESPONDENTS.
i. Paragraphs 1 and 3 of the statement of claim which raise this crucial issue read: Para 1: "The plaintiffs are the surviving children of late Alhaji A.B. Waziri Nupe who die (sic) on 3/6/95 suffering from with hypertension as primary cause of death. The defendant as at the instance of His Royal Highness the Etsu Nupe appointed to take charge and oversee the affairs of the said deceased on behalf of the plaintiffs." Para 3: "The plaintiffs were by the intervention of elders advised to donate the defendant with Power of Attorney to deal with the assets of their father."
Can it be said that a Power of Attorney, going by the averments in paragraph 1 and 3 of the statement of claim, was pleaded? My answer to this question is in the negative. The highest or the most benevolent interpretation or construction that can be given to these averments particularly in paragraph 3 is that an advice was given that a Power of Attorney be donated to the defendant/appellant. There is no averment that it was so donated.
The importance of Power of Attorney and its being registered particularly when it relates to landed property is underscored by the following comment in Bowstead and Reynolds On Agency, Article 10, Para 204 on page 51 which reads thus: - "Certain acts must by law be performed by deed, notably conveyances and many leases. In these cases authority to an agent to execute such a deed must itself be given by deed, usually called Power of Attorney."
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The law does not generally allow oral evidence to be lead in proof of a document. - Niki Tobi, JSC. Abubakar v. Waziri (2008)
It is basic constitutional principle that where grounds of appeal are of mixed law and facts or facts alone, it is imperative that leave of court must first be sought and obtained otherwise the Notice of Appeal carrying such grounds on that leave of court is incompetent and it is as good as an appeal not having been filed and if such grounds are additional grounds and no leave is sought and obtained in respect of them an issue arising there from will be regarded as incompetent and will be struck out. However, an appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right where the ground of appeal involves question of law alone in any civil or criminal proceedings. - P.O Aderemi, JSC. Abubakar v. Waziri (2008)
it is trite law that if a ground of appeal alleges misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated. - Chukwuma-Eneh, JSC. Abubakar v. Waziri (2008)
It has been a long standing principle of our law that pleadings must not be evasive; it must be cogent and pungent. One of the objects of pleadings is to settle the issues to be tried and it must be taken as established law that parties are bound by their pleadings and the court should not allow evidence to be given in respect of facts not pleaded or not clearly pleaded. - P.O Aderemi, JSC. Abubakar v. Waziri (2008)
In the determination of whether a ground of appeal is mixed law and fact or facts simpliciter, the ground of appeal, and the particulars must be considered and taken together. They cannot be considered or taken separately. There are instances where a ground of appeal does not contain particulars of error. Such instances, genuinely arise where there is no need for particulars. In such instances, the court has no choice than to consider only the ground of appeal. - Niki Tobi, JSC. Abubakar v. Waziri (2008)
As it is, of the four grounds of appeal one is of law and it is ground 2. It is trite law that one valid ground can sustain an appeal. I therefore hold that ground 2 sustains this appeal and I will therefore not strike out this appeal as urged by counsel for the respondent. I will take the merits of the appeal. - Niki Tobi, JSC. Abubakar v. Waziri (2008)
Power of Attorney is an instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of the principal. - Niki Tobi, JSC. Abubakar v. Waziri (2008)
The end of this brief.
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