OKOYE v. TOBECHUKWU
CITATION: (2016) LPELR-41508(CA)
In the Court of AppealIn the Enugu Judicial Division
Holden at Enugu
ON FRIDAY, 17TH JUNE, 2016Suit No: CA/E/398/2009
Before Their Lordships:
TOM SHAIBU YAKUBU Justice, Court of AppealRITA NOSAKHARE PEMU Justice, Court of AppealMISITURA OMODERE BOLAJI-YUSUFF Justice, Court of Appeal
BetweenCHIEF G. N. OKOYE - Appellant(s)
AndMR. FRANK TOBECHUKWU(Suing through hisAttorney, Felorah Merchants Nig. Ltd) - Respondent(s)
RATIO DECIDENDI
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1. APPEAL - RIGHT OF APPEAL: Condition precedent for the exercise of a right of appeal"The right of appeal is created by Sections 241 and 242 of the Constitution of the FederalRepublic of Nigeria, 1999 (as amended). Section 243 (1) (a) of the Constitution stipulates thatthe right to appeal to the Court of Appeal from the decisions of the High Court shall beexercisable in the case of civil proceeding such as the one on appeal at the instance of a partyto the case or with the leave of the High Court or Court of Appeal at the instance of any otherperson having an interest in the matter. Though the right to appeal to the Court of Appeal is aconstitutional right, it is a right which can only be exercised strictly within the purview or limitof the Constitution or relevant statutory provision. From the plethora of authorities available onthe right to appeal, it is very clear that certain conditions must exist before a right of appealfrom any decision of a High Court to the Court of Appeal can be exercised. Those conditionsinclude the following:(1) The right to appeal can only be exercised by a party to the proceedings or any other personhaving an interest in the matter.(2) For a party to exercise a right of appeal, he/she must show that he is aggrieved by thejudgment.(3) A person aggrieved by a decision is one who is adversely affected by the decision of theCourt in that the decision has wrongfully deprived him of something or has adversely affectedhis title to something. SeeTOOCHUKWU ANYANWU V. EMEZIE OKOROAFOR & ORS. (2012) LPELR - 20823, OMOTESHO V.ABUDULAHI & ORS. (2007) LPELR - 8412 (CA). In MOBIL PROD. (NIG.) UNLTD V.MONOKPO(2003) 18 NWLR (PT. 852) Page 346 at 399 (A - C), the Supreme Court held that a party to theproceedings can only appeal against a decision which has deprived him of something. TheCourt stated thus: "A party to proceedings cannot appeal a decision arrived there at whichdoes not wrongfully deprive him of an entitlement or something which he had a right todemand. Unless there is such a grievance, he cannot appeal against a judgment which has notaffected him since the whole exercise may turn out to be academic. Under no circumstancescan it be argued that a party to proceedings who has not been affected by a decision maynevertheless appeal against it merely as a party. See, for instance, AKINBIYI V. ADELABU(1956) SCNLR 109 where it was recognized that a person entitled to appeal is a personaggrieved by a decision, i.e. a person against whom a decision has been pronounced whichdeprived him of some right." Though Section 241 (1), (f) (ii) gives a party to the proceedingsthe right to appeal against the decision of the High Court where an injunction is granted orrefused, that right is not absolute. No right of appeal is absolute. The right to appeal against anorder of injunction can only be exercised by a person who is adversely affected by the order. Iam of the firm view that the mere fact that an order of injunction was made against theappellant does not automatically entitle him to appeal against that order. This is because hehas not suffered any legal grievance and the order has not deprived him of something orwrongfully refused him something. The appellant on his own clear and unequivocal admissionhas no right to the land at all. The law is settled that the only person entitled to appeal againsta decision is a person aggrieved. A person aggrieved is a person who has suffered a legalgrievance. In IKONNE V. C.O.P. & ANOR. (1986) 4 NWLR (PT.36) PAGE 473 AT 479 the SupremeCourt explained the meaning of "a person aggrieved'' as follows: "The expression" personhaving interest" has been defined as synonymous with "person aggrieved." In Re:SIDEBOTHAM, EX. P. SIDEBOTHAM (1990) 14 CH. D. AT P. 465, JAMES L. J., said, "A personaggrieved' must be a man against whom a decision has been pronounced which has wrongfullydeprived him of something, or wrongfully refused him something, or wrongfully affected histitle to something." In Re: REED BOWEN & CO. Ex. P OFFICIAL RECEIVER (1987) 19 Q. B. D. ATP. 178, Lord Esther pointed out that "a person aggrieved" includes "a person who has agenuine grievance because an order has been made which prejudicially affects his interests."See also C.P.C. V. NYAKO (2011) 17 NWLR (PT.1277) PAGE 451 AT 481 (F-H). A person who hasnothing to do with the property in respect of which a restraining order is made against him hasnot been deprived of his entitlement to anything and is therefore not an aggrieved person."PerBOLAJI-YUSUFF, J.C.A. (Pp. 9-13, Paras. E-E) - read in context
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2. CONVEYANCY LAW - POWER OF ATTORNEY: Presumption of execution and authenticationof power of attorney"The provisions of Section 145 (2) and 150 of the Evidence Act, 2011 on the presumption as toa Power of Attorney is very clear and unambiguous and does not warrant any clumsyargument. Those sections provide that:145 (2). "Whenever it is directed by this Act that the Court shall presume a fact, it shall regardsuch fact as proved unless and until it is disproved. 150. "The Court shall presume that everydocument purporting to be a power of attorney, and to have been executed before andauthenticated by a notary public or any Court, judge, magistrate, consul or representative ofNigeria or, as the case may be, of the President, was so executed and authenticated." ACombined reading of Sections 145 (2) and 150 of the Evidence Act, 2011 clearly brings out theintention of the law maker. Once a Power of Attorney shows ex facie that it was executedbefore a Notary Public who authenticated same, the Court must presume that its executionwas valid and regular. The Court has no discretion in the matter. The provision of Section 145(2) of the Evidence Act, 2011 reinforces the command and the mandatory directive given tothe Court in Section 150 of the Act."Per BOLAJI-YUSUFF, J.C.A. (Pp. 30-31, Paras. D-D) - read incontext
3. COURT - POWER OF COURT: Power of Court to disregard and ignore irrelevant issues"In INTERCONTRATORS LTD. VS. NPFMB (1988) I NSCC 759, the Supreme Court held that "It isneither desirable nor permissible in the determination of a matter for the Court to take intoconsideration issues neither relevant nor necessary for its decision." The Court has the powerto disregard and ignore irrelevant issues which are raised purposely to obscure the main orreal issue before it. See A. C. N. & ANOR. VS. INEC & ORS. (2013) LPELR - 19991 (CA), Thelearned trial judge was right when he ignored and disregarded irrelevant issues raised by theappellant."Per BOLAJI-YUSUFF, J.C.A. (Pp. 23-24, Paras. E-B) - read in context
4. COURT - DUTY OF COURT: Duty of Court to limit and confine itself to the issues raised by theparties"The law is settled that the Court should confine itself to the case presented by parties beforeit."Per BOLAJI-YUSUFF, J.C.A. (P. 23, Paras. A-B) - read in context
5. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of provingthat a power of attorney has not been regularly executed"Whoever asserts that a power of attorney has not been regularly executed or that it is aforgery as the appellant contends has the burden to prove his allegation by cogent andcredible evidence. See N. P. S. VS. ADEKANYE & ORS (2002) 15 NWLR (PT. 790) 318, AWOSILEV. SOTUNBO (1992) LPELR - 658, (1992) NWLR (PT. 243) 514, ONOBA VS. ABUJA BUILDINGPRODUCTS LTD & ORS (2014) LPELR - 22794 (CA), KALU VS. AGU & ORS. (2014) LPELR - 22849(CA), 1108 ABUBAKAR."Per BOLAJI-YUSUFF, J.C.A. (P. 31, Paras. D-F) - read in context
6. EVIDENCE - ADDRESS OF COUNSEL: Whether address of counsel can take the place ofevidence"The law is settled that an address no matter how brilliant does not take the place ofevidence." Per BOLAJI-YUSUFF, J.C.A. (P. 14, Para. A) - read in context
7. EVIDENCE - EVALUATION OF EVIDENCE: Whether where the question does not involve theissue of credibility of witness(es), an appellate court is in good position as the trial court toevaluate such evidence"failure of the Court to evaluate evidence does not automatically lead to a reversal or settingaside of the judgment. This is because the law is settled that where a trial Court failed orneglected to evaluate evidence led which is mainly documentary and which does not involvethe demeanour or credibility of witnesses, an appellate Court is in as good a position as thetrial Court to evaluate the evidence and come to its own decision. See AYUYA VS. YORIN(SUPRA), NTEOGWUILE V. OTUO (2001) 16 NWLR (PT. 738) 58, ODUTOLA & ORS. V.MABOGUNJE & ORS. (2013) LPELR - 19909 (SC), MOMOH & ORS. V. UMIRU & ORS.(2011) LPELR - 8130 (SC)."Per BOLAJI-YUSUFF, J.C.A. (Pp. 24-25, Paras. C-A) - read in context
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8. JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER: Whether an AppellateCourt can set aside the decision of a lower Court which is right but based on wrong reasons"It is firmly settled that an appellate Court will not set aside the decision of a trial Court whichis right and just merely because the trial judge gave wrong reasons for the decision.SeeIBULUYA & ORS. VS. DIKIBO & ORS. (2010) 18 NWLR (PT. 1225) PAGE 627. The appellateCourt is concerned with whether the decision is right and just and not whether it is groundedon right reasons."Per BOLAJI-YUSUFF, J.C.A. (P. 28, Paras. C-E) - read in context
9. LAND LAW - DECLARATION OF TITLE TO LAND: Whether the latin maxim "jus tertii" is adefence to an action for declaration of title to land"The law is settled that a party in a claim for declaration of title cannot rely on the title of athird person unless he is claiming on the strength of such title. In legal parlance, the appellantraised a defence of Jus Terti which means "a right of a third party". In ADELAKUN VS. ISEOGBEKUN (2003) 7 NWLR (PT. 819) PAGE 295, this Court per Aderemi, JCA as he then was heldthat "a third party cannot be heard to contend that the right to the land in dispute was inanother person". See also ADERINOYE VS. LEGIT GLOBAL INVERSTMENT LTD. (2014) LPELR -24050 (CA)."Per BOLAJI-YUSUFF, J.C.A. (P. 22, Paras. C-E) - read in context
10. LAND LAW - TITLE TO LAND: Position of the law where parties trace their title to samegrantor"In a land cause or matter, it is not mandatory to call a grantor or his representative or privy asa witness. However, where two rival claimants trace their title or grant to the same grantor,the evidence of the grantor becomes necessary particularly where the grantor is available andcan be called as a witness. The imaginary scale of justice tilts in favour of the party that callsthe grantor and whose grant is confirmed by the grantor and supported by credibledocumentary evidence where available."Per BOLAJI-YUSUFF, J.C.A. (P. 27, Paras. C-E) - read incontext
11. P R A C T I C E A N D P R O C E D U R E - A C A D E M I C O R H Y P O T H E T I C A LQUESTION(S)/ISSUES/SUIT/EXERCISE: Attitude of Courts to academic/hypothetical issuesor questions"The attitude of the appellate Courts to an appeal that constitutes an academic exercise hasbeen stated in many cases. See BADEJO VS. FED. MIN. OF EDUC. (1996) 8 NWLR (PT. 464)PAGE 15, BAKO V. INEC & ORS. (2013) LPELR - 20727 (CA). MMAMMANN V.F.R.N. (2013) 6NWLR (Pt. 1351) PAGE 569 AT 582 (B-C), 1279). Where a decision in an appeal will not conferany right or benefit on an appellant, the Court has a duty to terminate or end the appeal."PerBOLAJI-YUSUFF, J.C.A. (P. 14, Paras. C-F) - read in context
12. P R A C T I C E A N D P R O C E D U R E - A C A D E M I C O R H Y P O T H E T I C A LQUESTION(S)/ISSUES/SUIT/EXERCISE: Whether Courts should restrict hearings toconsideration of live issues only"The primary duty of the Court is to identify and decide the real issue(s) in dispute betweenthe parties. The focus of the Court should be the subject matter of the litigation and the issuesin dispute. Where there is no dispute between the parties, there is nothing for the Court todecide and there cannot be any burden of proof because the Court will only consider liveissues in controversy between the parties and not hypothetical issues or questions which haveno bearing or effect on the right of the parties. See TRADE BANK PLC VS. BENILUX (NIG.) LTD.(2003) 9 NWLR (PT. 825) PAGE 416, BUNGE VS. GOV. OF RIVERS STATE (2006) 12 NWLR(PT.995) PAGE 573."Per BOLAJI-YUSUFF, J.C.A. (Pp. 18-19, Paras. F-C) - read in context
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M I S I T U R A O M O D E R E B O L A J I - Y U S U F F ,
J.C.A.(Delivering the Leading Judgment): The
respondent as the plaintiff instituted suit no. O/138/2005 in
the High Court of Anambra State holden at Onitsha
wherein he claimed the following reliefs against the
appellant in his Further Amended Statement of claim filed
on 9/7/07:
a. “A declaration that the plaintiff is the person
entitled to the said low density, Plot No. 24 Block 11
Site B, Site and Services Scheme Trans Nkisi Onitsha
Anambra State.
b. N5, 000,000.00 (Five Million Naira) damages for
trespass.
c. Perpetual injunction restraining the defendant, the
agents, privies, cohorts and workmen from
trespassing or further trespassing on the said low
density Plot 24 Block 11 Site B, Site and Services
Scheme Trans Nkisi Onitsha or in any other manner
disturbing or interfering with the plaintiffs
possession of the said land.”
The respondent’s case is that he applied to the Federal
Ministry of Works and Housing for allocation of land.
Pursuant to his application, Plot No. 24 Block 11 Site B,
Site and Services Scheme, Trans Nkisi, Onitsha was
allocated to him by the said Federal Ministry of
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Works and Housing. He accepted the allocation, paid the
requisite fees and obtained an approval for the building to
be constructed on the land. In September, 2004, the
appellant trespassed on the said land by depositing sand
and stone on the land.
The appellant as the defendant contended that the land
which the respondent referred to as plot 24 Block 11 Site
B, Site and Services Scheme Trans Nkisi Onitsha is Plot
448 Block XV111, Federal Ministry of Works Scheme.
According to the appellant, the alleged site B was invented
by some unscrupulous staff of the Federal Ministry of
Works and Housing. Most importantly, the appellant
pleaded that he is not the allottee of plot 448 Block XV111
which the respondent is claiming as plot 24 Block 11 Site B.
He asserted that there is no person called Frank
Tobechukwu, the name was invented to circumvent the law
and embark on multiple allocations which the law forbids.
The respondent called three witnesses. The appellant
testified as DW1 and called no other witness. In a
considered judgment delivered by Honourable Justice V. N.
Agbata sitting at the High Court of Anambra State, Onitsha
Judicial Division on 20th
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April, 2009, judgment was entered in favour of the
respondent as follows:
“I, therefore, consider the case of the plaintiff as
being meritorious. The plaintiff is therefore, the
person entitled to the statutory right of occupancy
over the piece or parcel of land known as plot No. 24,
Block 11, Site B of the Sites and Services Scheme,
Trans Nkisi layout, Onitsha, more particularly
delineated shown verged red in the plaintiff’s plan
No. CE (A)/LD 006/2006, Exhibit P9. The defendant,
his agents, and/or servants are, therefore, hereby
restrained from further trespass on the land
aforesaid. No order as to costs.”
Dissatisfied with the above judgment, the appellant has
appealed to this Court on 8 Grounds of appeal which are
reproduced below without their particulars:
GROUND I: ERROR IN LAW
“The learned trial judge erred in law and occassioned
a gross miscarriage of justice when he failed to
consider any of the documents tendered by both
parties and admitted in evidence in the suit.
GROUND II: MISDIRECTION IN LAW
The learned trial judge misdirected himself in law and
came to a wrong decision which occassioned
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a gross miscarriage of justice when he failed to
consider, evaluate or make a finding of facts on the
contents of the bundle of document admitted as
Exhibit D3.
GROUND III: MISDIRECTION
The learned trial judge misdirected himself in law and
came to a wrong decision which occassioned a gross
miscarriage of justice when he held as follows:
“At the end of the respective cases for the parties
both counsel addressed the Court extensively, I have
carefully considered the pleadings of the parties
together with the evidence adduced with rapt
attention the submissions of the counsel with respect
thereof (sic). The issue in controversy in this suit,
seems to me to be, as between the plaintiff and the
defendant who is the rightful allottee of the disputed
portion of land.”
GROUND IV: ERROR IN LAW
The learned trial judge erred in law and came to a
wrong decision when he totally failed to consider and
determine any of the issues raised by both parties to
the suit as the issues for determination.
GROUND V: ERROR IN LAW
The learned trial judge erred in law and came to a
w r o n g d e c i s i o n w h e n h e h e l d t h a t t h e
Plaintiff/Respondent
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was entitled to the statutory right of occupancy over
the plot of land in dispute without resolving whether
the Plaintiff/Respondent had sued the proper party in
this suit.
GROUND VI: ERROR IN LAW
“The learned trial judge erred in law and came to a
wrong decision which occassioned a gross
miscarriage of justice when he held thus:
“In my most humble opinion the above cannot by any
stretch of imagination, be considered a defence to the
formidable case which was made out by the Plaintiff,
since the Defendant has admitted, that the land in
dispute does not belong to him, he has nothing to lose
if the Court declares the Plaintiff the owner thereof.”
GROUND VII: ERROR IN LAW
The learned trial judge erred in law and came to a
wrong decision, which occassioned a gross
miscarriage of justice when he held that it is none of
the business of the Defendant if the Plaintiff had
applied for the land with a Pseudo name.
GROUND VIII:
The judgment is against the weight of evidence.”
The appellant’s counsel formulated 7 issues for
determination as follows:
1. “Whether it was right and proper for
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the learned trial judge not to consider and evaluate
any of the documents tendered by both parties and
admitted in evidence in this case fought by both
parties on documentary evidence.
2. Whether based on the state of pleadings, the
learned trial judge was right in concluding that the
issues in controversy was whether as between the
Plaintiff and the Defendant who was the rightful
allottee of the disputed land.
3. Whether the learned trial judge was justified in
failing to consider and determine any of the issues
raised by both parties to the suit as the issues for
determination and proceeded to formulate his own
sole issue without affording the parties an
opportunity to address on it.
4. Whether the learned trial judge was right when he
held that the Plaintiff/Respondent was entitled to the
statutory right of occupancy over the plot of land in
d i spu te w i thou t r e so l v ing whe ther the
Plaintiff/Respondent had sued the proper party.
5. Whether it was right for the learned trial judge to
m a k e a d e c l a r a t o r y j u d g m e n t t h a t t h e
Plaintiff/Respondent was entitled to the statutory
right of occupancy over the land subject matter of
this suit solely
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because the Defendant/Appellant admitted that the
said land does not belong to him.
6. Whether the learned trial judge was right and
justified in holding that it was none of the business of
the Defendant/Defendant if the Plaintiff/ Respondent
had applied for the land with Pseudo name, when the
Defendant/Respondent had raised an issue of
jurisdiction that the Plaintiff/Respondent is a non-
existing person and that the name Frank Tobechukwu
was invented.
7. Whether based on the totally of evidence adduced
in this case, the judgment delivered by the trial Court
is sustainable.”
The respondent’s counsel formulated the following three
issues for determination.
1. “Whether the Respondent has sued a wrong person
in this matter.
2. Whether the Respondent is a non-existent person
which thereby deprives the Court of jurisdiction in
the matter.
3. Whether, based on the pleadings and the evidence
on record, the learned trial judge was justified in
declaring the Respondent as entitled to the Statutory
Right of Occupancy over the Plot of land in dispute.”
The respondent raised a preliminary objection to the
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competency of the appeal by a notice of preliminary
objection filed on 27th September, 2013 on the ground that
this appeal is a mere academic exercise as the decision of
the Court below has not adversely affected the interest of
the appellant because the appellant having admitted that
Plot 24 Block 11 Site B, the subject matter of this appeal,
was never allocated to him, the appellant did not suffer any
loss from the decision of the Court below and has not
appealed against the finding of the Court below that he has
nothing to lose if the Court declares the plaintiff the owner
thereof.
The argument in support of the objection is incorporated in
the respondent’s brief. It is submitted by counsel that only
an aggrieved party can maintain an appeal against
judgment of a Court of law. Where a party is not aggrieved
in any way, he has no business whatsoever to appeal in the
matter. He referred to OGUNKUNLE VS. ETERNAL
SACRED ORDER OF THE C & S. (2001) 12 NWLR (PT.
727) PAGE 359 AT 370 – 371 (H – B), NGIGE VS. OBI
(2006) LRECN PAGE 11 AT 61 (B – C), A. G. OF THE
FED. VS. ANPP (2003) LRECN PAGE 300 AT 331 (C –
E). He further
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submitted that the appellant having admitted that the land
subject matter of the judgment being appealed against does
not belong to him has not suffered any loss and is not an
aggrieved party. Therefore, this appeal is incompetent and
should be struck out.
In his response contained in the amended reply brief, the
appellant’s counsel submitted that the appellant having
been adjudged a trespasser with an order of perpetual
injunction restraining him, his servants and agents from
further trespass on the land, he is an aggrieved party
affected by the judgment. He referred to N. B. A. V.
CHUKWUMEIFE (2007) 8 NWLR (PT. 1035) PAGE 221
AT 237 (C – D), NABARUMA V. OFODILE (2004) 13
NWLR (PT. 891) PAGE 599 AT PAGE 620 – 621 (G –
C), OKOYEKWU V. OKOYE (2009) 6 NWLR (PT. 1137)
PAGE 350 AT 375 (F – H). He urged the Court to dismiss
the objection.
RESOLUTION:
The right of appeal is created by Sections 241 and 242 of
the Constitution of the Federal Republic of Nigeria, 1999
(as amended). Section 243 (1) (a) of the Constitution
stipulates that the right to appeal to the Court of Appeal
from the decisions of the High Court shall be
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exercisable in the case of civil proceeding such as the one
on appeal at the instance of a party to the case or with the
leave of the High Court or Court of Appeal at the instance
of any other person having an interest in the matter.
Though the right to appeal to the Court of Appeal is a
constitutional right, it is a right which can only be
exercised strictly within the purview or limit of the
Constitution or relevant statutory provision. From the
plethora of authorities available on the right to appeal, it is
very clear that certain conditions must exist before a right
of appeal from any decision of a High Court to the Court of
Appeal can be exercised. Those conditions include the
following:
(1) The right to appeal can only be exercised by a party to
the proceedings or any other person having an interest in
the matter.
(2) For a party to exercise a right of appeal, he/she must
show that he is aggrieved by the judgment.
(3) A person aggrieved by a decision is one who is
adversely affected by the decision of the Court in that the
decision has wrongfully deprived him of something or has
adversely affected his title to something.
See
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TOOCHUKWU ANYANWU V. EMEZIE OKOROAFOR &
ORS. (2012) LPELR – 20823, OMOTESHO V.
ABUDULAHI & ORS. (2007) LPELR – 8412 (CA). In
MOBIL PROD. (NIG.) UNLTD V.MONOKPO (2003) 18
NWLR (PT. 852) Page 346 at 399 (A – C), the Supreme
Court held that a party to the proceedings can only appeal
against a decision which has deprived him of something.
The Court stated thus:
“A party to proceedings cannot appeal a decision
arrived there at which does not wrongfully deprive
him of an entitlement or something which he had a
right to demand. Unless there is such a grievance, he
cannot appeal against a judgment which has not
affected him since the whole exercise may turn out to
be academic. Under no circumstances can it be
argued that a party to proceedings who has not been
affected by a decision may nevertheless appeal
against it merely as a party. See, for instance,
AKINBIYI V. ADELABU (1956) SCNLR 109 where it
was recognized that a person entitled to appeal is a
person aggrieved by a decision, i.e. a person against
whom a decision has been pronounced which deprived
him of some right.”
Though Section 241 (1), (f) (ii) gives a
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party to the proceedings the right to appeal against the
decision of the High Court where an injunction is granted
or refused, that right is not absolute. No right of appeal is
absolute. The right to appeal against an order of injunction
can only be exercised by a person who is adversely affected
by the order. I am of the firm view that the mere fact that
an order of injunction was made against the appellant does
not automatically entitle him to appeal against that order.
This is because he has not suffered any legal grievance and
the order has not deprived him of something or wrongfully
refused him something. The appellant on his own clear and
unequivocal admission has no right to the land at all. The
law is settled that the only person entitled to appeal against
a decision is a person aggrieved. A person aggrieved is a
person who has suffered a legal grievance. In IKONNE V.
C.O.P. & ANOR. (1986) 4 NWLR (PT.36) PAGE 473 AT
479 the Supreme Court explained the meaning of “a person
aggrieved’’ as follows:
“The expression” person having interest” has been
defined as synonymous with “person aggrieved.” In
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Re: SIDEBOTHAM, EX. P. SIDEBOTHAM (1990) 14
CH. D. AT P. 465, JAMES L. J.,
said,
“A person aggrieved’ must be a man against whom a
decision has been pronounced which has wrongfully
deprived him of something, or wrongfully refused him
something, or wrongfully affected his title to
something.”
In Re: REED BOWEN & CO. Ex. P OFFICIAL
RECEIVER (1987) 19 Q. B. D. AT P. 178, Lord Esther
pointed out that “a person aggrieved” includes “a
person who has a genuine grievance because an order
has been made which prejudicially affects his
interests.”
See also C.P.C. V. NYAKO (2011) 17 NWLR (PT.1277)
PAGE 451 AT 481 (F-H). A person who has nothing to do
with the property in respect of which a restraining order is
made against him has not been deprived of his entitlement
to anything and is therefore not an aggrieved person.
The only reason why the appellant has filed this appeal
according to him is to protect the interest of his children
from his estranged wife to who he is now saying the land
was allocated. First, the alleged allocation to the
appellant’s estranged wife was never raised or
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disclosed throughout the pendency of the suit at the Court
below. The law is settled that an address no matter how
brilliant does not take the place of evidence. Secondly, the
appellant is not entitled to protect a non-existing right. The
appellant having categorically stated that the land was not
allocated to him, none of his privies including his children
can lay claim to the property or exercise any right in
respect of the land through him. Even if the appellant wins
this appeal, he or his privy cannot thereby become the
owner of the land or get a right to enter the land. This
appeal is clearly academic and cannot achieve anything.
The attitude of the appellate Courts to an appeal that
constitutes an academic exercise has been stated in many
cases. See BADEJO VS. FED. MIN. OF EDUC. (1996) 8
NWLR (PT. 464) PAGE 15, BAKO V. INEC & ORS.
(2013) LPELR – 20727 (CA). MMAMMANN V.F.R.N.
(2013) 6 NWLR (Pt. 1351) PAGE 569 AT 582 (B-C),
1279). Where a decision in an appeal will not confer any
right or benefit on an appellant, the Court has a duty to
terminate or end the appeal. I have considered the entire
facts and circumstances disclosed by this appeal, the
14
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6) LP
ELR-41
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CA)
provisions of the Constitution and cases decided by this
Court and the Supreme Court, I am of the firm view that
the objection has merit and ought to succeed.
Since it is firmly settled that it is duty of an intermediate
appellate Court to deal with and make its pronouncement
on all issues properly raised before it, I will proceed with
the consideration and determination of the appeal on its
merit.
I have considered the record of appeal, the grounds of
appeal and the issues formulated by counsel to both
parties, I am of the view that all the issues formulated by
both counsel are subsumed under issue 7 formulated by the
appellant’s counsel. For avoidance of doubt, the issue is
“Whether based on the totality of the evidence adduced in
this case, the judgment delivered by the trial Court is
sustainable.”
The appellant’s counsel submitted that the learned trial
judge was wrong when he failed to consider or evaluate the
documents tendered by the parties in the suit. According to
counsel, the case was essentially contested on documentary
evidence, therefore, failure to consider and evaluate the
documents tendered as exhibits
15
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6) LP
ELR-41
508(
CA)
has occassioned a miscarriage of justice. He referred to
INEC VS. OSHIOMOLE (2009) NWLR (PT. 1132) PAGE
607 AT 663 – 664 (H – A), NDUKWE VS. STATE (2009)
7 NWLR (PT. 1139) PAGE 43 AT 86 (E), ARABAMBI
VS. ADVANCE BEVERAGES IND. LTD. (2005) 19
NWLR (PT. 959) PAGE 31. Counsel submitted that the
learned trial judge was wrong when he failed to consider,
determine or resolve any of the issues raised by both
parties but instead proceeded to raise a sole issue for
determination without affording the parties the opportunity
to address the Court. He referred to OWODUNNI V. RTD.
TRUSTEES OF C. C. C & 13 Ors. (2000) 10 NWLR (PT.
675) PAGE 315, ODUNAYO VS. YUSUF VS. ADEGOKE
(2007) 11 NWLR (PT. 1045) PAGE 332 AT 360 (G – H).
Counsel further submitted that the learned trial judge was
wrong when he concluded that the issue in controversy was
who between the appellant and the respondent was the
rightful allottee of the land in dispute contrary to the issues
joined by the parties and the state of the pleadings. He
referred to N. B. C. I. V. INTERGRATED GAS (NIG.)
LTD. (2005) 4 NWLR (PT. 916) PAGE 617 AT 644 –
645, A. G. LEVENTIS (NIG.) PLC. V. AKPU
16
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6) LP
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508(
CA)
(2007) 17 NWLR (PT. 1063) PAGE 416 AT 446.
Counsel also submitted that the learned trial judge was
wrong when he granted a declaration that the respondent
was entitled to the statutory sight of occupancy over the
land in dispute without resolving the issue of whether the
respondent sued the proper party and solely because the
appellant admitted that the land does not belong to him and
that it is not the business of the appellant if the respondent
applied for the land in a pseudo name since the law is
settled that in a claim for declaration of title, the onus is on
the plaintiff to prove that he is entitled to the declaratory
reliefs. He referred to OWHONDA VS. EKPECHI (2003)
17 NWLR (PT. 849) PAGE 326, UGWUNZE VS.
ADELEKE (2008) 2 NWLR (PT. 1070) PAGE 148 AT
176, TEMILE VS. AWANI (2001) 12 NWLR (PT. 728)
PAGE 726, EZE OKONKWO VS. OKEKE (2002) 11
NWLR (PT. 777) PAGE 1 AT 29 – 30 (G – B).
In response, the respondent’s counsel submitted that the
law is certain that he who asserts must prove. Since the
appellant asserted that the land in dispute belongs to a
third party, the onus is on the appellant to supply the
identity of the third party
17
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CA)
and if the appellant is not the owner of the land as he
claimed, he has no business in opposing an injunction and
appealing against the judgment. Counsel argued that the
allegation that the respondent is a non-existent person and
that the name was invented for procuring multiple
allocations of land are allegations of fraud and the law
requires the pleading of sufficient particulars of the fraud
and sufficient proof by evidence. He referred to
USENFOWOKAN VS. IDOWU (1969) NSCC, VOL. 16
PAGE 108 AT 112, UHUNMWANGHO VS. OKOJIE &
ORS. (1982) 9 SC 101 AT 138. Counsel submitted that
the learned trial judge was entitled and in fact duty bound
to discountenance the bare and vague allegations of fraud
made by the appellant.
In reply, the appellant’s counsel submitted that if the
respondent wanted the appellant to disclose the identity of
the third party, he should have asked for further and better
particulars of the appellant’s pleading or take advantage of
the provisions of Order 26 Rules 1, 2, 8 (1) of the High
Court (Civil Procedure) Rules of Anambra State, 2006.
RESOLUTION:
The primary duty of the Court is to identify and decide the
18
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6) LP
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CA)
real issue(s) in dispute between the parties. The focus of
the Court should be the subject matter of the litigation and
the issues in dispute. Where there is no dispute between
the parties, there is nothing for the Court to decide and
there cannot be any burden of proof because the Court will
only consider live issues in controversy between the parties
and not hypothetical issues or questions which have no
bearing or effect on the right of the parties. See TRADE
BANK PLC VS. BENILUX (NIG.) LTD. (2003) 9 NWLR
(PT. 825) PAGE 416, BUNGE VS. GOV. OF RIVERS
STATE (2006) 12 NWLR (PT.995) PAGE 573. From the
entire pleadings of both parties and the evidence led, the
issue which was in dispute was the allocation or ownership
of the land in dispute which both parties knew but referred
to in different names or with particulars. There was no
ambiguity in the pleadings of both parties particularly
Paragraph 10 of the Further Amended Statement of
Defence on pages 177 – 182 of the record wherein the
appellant pleaded thus:
“The Defendant was never informed of such forgery.
The Defendant was validly allocated plot 447 Block
XVIII At Trans Nkisi, Sites and
19
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6) LP
ELR-41
508(
CA)
Services Scheme. Defendant reiterates that he is not
the allottee of Plot 448, Block XVIII which the
Plaintiff is claiming in this suit as Plot 24, Block 11.’’
The appellant in his evidence under cross-examination
confirmed the fact that the land in dispute which he
referred to as plot 448 was not allocated to him. The
learned trial judge in his judgment on page 391 of the
record held as follows:
“The facts of the case are, mostly, not disputed. The
Federal Ministry of Works and Housing allocated to
the plaintiff plot No.24 Block 11, site B of the Sites
and Services Scheme. Trans Nkisi Layout, Onitsha.
Thereafter, he went into effective possession until the
defendant trespassed by deposited building materials
thereon. The plaintiff reported the incident to the
Federal Ministry of Work and Housing who promptly
cautioned the defendant to desist from his offending
acts of trespass on the land.
On the other hand, the defendant seems to be saying
that the land in dispute is not plot No. 448 of the said
Trans Nkisi Layout Onitsha. According to him, the
said plot No. 448 does not belong to him but to a
third party whom the
20
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6) LP
ELR-41
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CA)
plaintiff neglected to sue. He, therefore, appears to
me, to be saying that he is the wrong person to have
been in the suit. This is borne out, particularly, by
Paragraphs 13 and 19 of the defendant’s deposition of
the 19th day of May 2008.
In my most humble opinion, the above cannot, by any
stretch of the imagination, be considered a defence to
the formidable case which was made out by the
plaintiff. Since the defendant has admitted that the
land in dispute does not belong to him, he has
nothing to lose if the Court declares the plaintiff the
owner of thereof. It is also none of the business of the
defendant if the plaintiff had applied for the land with
the pseudo name.”
In law, the above finding and decision of the learned trial
judge cannot be faulted. Though, the law is settled that a
declaratory relief such as title to land is not granted on
admission, with the clear and categorical admission of the
appellant that the land subject matter of the litigation was
not allocated to him, the story ended. There was nothing
for the learned trial judge to consider. There was no
dispute or any issue between the parties for the learned
trial
21
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6) LP
ELR-41
508(
CA)
judge to consider. See BUNGE VS. GOV. OF RIVERS
STATE (SUPRA), LEWIS & PEAT (N. R. T) LTD VS. A.
E. AKHIMIEN (1976) 6 S.C 159. The appellant both in
his pleading and his evidence stated that the respondent
knows the owner of the land in dispute but elected not to
sue the rightful owner, thus setting up the title of a third
party as a defence to the action. The appellant failed to
state in his pleading or in his evidence the person to who
the land was allocated. The law is settled that a party in a
claim for declaration of title cannot rely on the title of a
third person unless he is claiming on the strength of such
title. In legal parlance, the appellant raised a defence of
Jus Terti which means “a right of a third party”. In
ADELAKUN VS. ISE OGBEKUN (2003) 7 NWLR (PT.
819) PAGE 295, this Court per Aderemi, JCA as he then
was held that “a third party cannot be heard to contend
that the right to the land in dispute was in another person”.
S e e a l s o ADERINOYE VS . LEGIT GLOBAL
INVERSTMENT LTD. (2014) LPELR – 24050 (CA).
The only duty the leaned trial judge had was to decide
whether the respondent was entitled to succeed in
22
(201
6) LP
ELR-41
508(
CA)
his claim against the appellant. The learned trial judge had
no business to open an enquiry as to whether the land was
allocated to an undisclosed and invisible third party. The
law is settled that the Court should confine itself to the
case presented by parties before it. In my humble view, the
learned trial judge identified the real issue in dispute
between the parties and rightfully resolved same in favour
of the respondent when he held as follows:
“At the end of the respective cases for the parties
both counsel addressed the Court extensively, I have
carefully considered the pleadings of the parties
together with the evidence adduced with rapt
attention the submission of the Counsel with respect
thereof. The issue in controversy, in this suit, seems
to me to be, as between the plaintiff and the
defendant who is the rightful allottee of the disputed
portion of land.”
In INTERCONTRATORS LTD. VS. NPFMB (1988) I
NSCC 759, the Supreme Court held that "It is neither
desirable nor permissible in the determination of a
matter for the Court to take into consideration issues
neither relevant nor necessary for its decision.”
23
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6) LP
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The Court has the power to disregard and ignore irrelevant
issues which are raised purposely to obscure the main or
real issue before it. See A. C. N. & ANOR. VS. INEC &
ORS. (2013) LPELR – 19991 (CA), The learned trial
judge was right when he ignored and disregarded
irrelevant issues raised by the appellant.
Even if it is correct that the learned trial judge should have
considered the evidence led by both parties at the Court
below notwithstanding the admission of the 1st respondent
that the land was not allocated to him, failure of the Court
to evaluate evidence does not automatically lead to a
reversal or setting aside of the judgment. This is because
the law is settled that where a trial Court failed or
neglected to evaluate evidence led which is mainly
documentary and which does not involve the demeanour or
credibility of witnesses, an appellate Court is in as good a
position as the trial Court to evaluate the evidence and
come to its own decision. See AYUYA VS. YORIN
(SUPRA), NTEOGWUILE V. OTUO (2001) 16 NWLR
(PT. 738) 58, ODUTOLA & ORS. V. MABOGUNJE &
ORS. (2013) LPELR – 19909 (SC), MOMOH & ORS. V.
UMIRU & ORS.
24
(201
6) LP
ELR-41
508(
CA)
(2011) LPELR – 8130 (SC).The appellant confirmed that
the evidence led in this case is totally documentary
evidence. Therefore this Court is in as good a position as
the learned trial judge to evaluate the evidence, make its
own findings and reach its own decision.
The respondent tendered twelve exhibits. Exhibit P3 is the
letter by which Plot 24, Block 11 Trans Nkisi Site B (Low
Density) was allocated to Frank Tobechukwu by the
Federal Ministry of Works and Housing. Exhibit P4 is the
receipt issued to him in acknowledgement of the payment
of the requisite fee. Exhibits P5B and P6A are the building
plan and the letter of approval by Ministry in respect of the
building that respondent intend to construct on the land.
Exhibit P9 is the survey plan of the land. Exhibit P11 is the
layout plan which shows plot 24 Block 11 within site “B”
and it is verged red. There is no plan or layout plan
showing that the land in dispute is plot 448. The
respondent called PW3 who was the Zonal Town Planning
Officer of the Federal Ministry of Housing and Urban
Development, Field Headquarters, Awka, Anambra State to
testify on the allocation. He stated that
25
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CA)
he was in Court in response to the subpoena issued and
served on the Controller of the Ministry which was passed
to him. He tendered the subpoena as Exhibit P10. He
confirmed in his statement on pages 126 – 129 of the
record of appeal that the land in dispute is Plot 24 Block
11, Site B, Low Density of Trans Nkisi Layout, Onitsha. He
narrated in detail how site B in the scheme came into
existence. He confirmed that plot 24 Block 11 was allocated
to the respondent. He also confirmed that plot 448 Block
XV111 is among the forged allocation letters carried out by
syndicates for which the Ministry made the publication of
1st October, 1999 Daily Champion Newspaper cancelling
such false allocation letters. The publication was tendered
as Exhibit P6. Under cross-examination, he said there was
allocation of plots in Site A in 1992. Plots 447 and 448 were
allocated in 1992 in site A. He could not remember the
names of the allotees. He said the publication of 1st
October, 1999 shows that plots 447 and 448 were allocated
in Block XV111A site A.
I have examined Exhibit 6, it shows that plots 447 and 448
in Block XV111A were allocated to Chinwe E. Okeke and
26
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6) LP
ELR-41
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CA)
Godwin Ogwueleka respectively. That according to Exhibit
P6 was the authentic list of allotees. No other letter of
allocation was tendered to challenge Exhibits P3 and P4.
The evidence clearly shows that any allocation of plot 448
to any other person apart from the persons listed in Exhibit
P6 was not genuine and is among those cancelled. Thus all
the relevant documents relating to the allocation of the
land in dispute to the respondent are unchallenged and
uncontroverted. In a land cause or matter, it is not
mandatory to call a grantor or his representative or privy
as a witness. However, where two rival claimants trace
their title or grant to the same grantor, the evidence of the
grantor becomes necessary particularly where the grantor
is available and can be called as a witness. The imaginary
scale of justice tilts in favour of the party that calls the
grantor and whose grant is confirmed by the grantor and
supported by credible documentary evidence where
available. In this case, the grantor confirmed the grant to
the respondent and denied the alleged grant to any other
person. The allocation to the respondent is clearly
established by documentary evidence.
27
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CA)
The question of the appellant’s evidence out weighing the
evidence of the appellant does not even arise since the
appellant is not claiming ownership of the land in dispute.
The bundle of documents tendered as Exhibit D3 has
nothing to do with the land in dispute which the appellant
referred to Plot 448 but confirmed by PW3 to be Plot 24,
Block 11, Site B on the layout. The mere assertion or bare
allegation that the land belong to a third party fell far short
of the required proof.
It is firmly settled that an appellate Court will not set aside
the decision of a trial Court which is right and just merely
because the trial judge gave wrong reasons for the
decision. SeeIBULUYA & ORS. VS. DIKIBO & ORS.
(2010) 18 NWLR (PT. 1225) PAGE 627. The appellate
Court is concerned with whether the decision is right and
just and not whether it is grounded on right reasons.
Having considered the entire pleadings of parties, the
evidence led, the grounds of appeal, the issues formulated
for determination and arguments of counsel to both parties,
I do not hesitate to hold that this appeal totally lacks merit.
RESPONDENT’S NOTICE OF INTENTION TO
28
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CONTEND
The respondent’s counsel filed a notice of intention to
contend that the judgment of the Court below be upheld on
grounds other than those relied upon by the Court below.
The notice was filed on 27th September, 2013. The ground
for the notice is that there is a presumption of regularity in
favour of the Power of Attorney (Exhibit P2) donated to the
respondent’s attorney and the appellant did not discharge
the onus on him to show that the respondent is a non-
existent person. Counsel submitted that the Court is
entitled to presume that Exhibit P2 was executed by the
respondent same having been executed by the donor before
a Notary Public as shown on the face of the document. He
relied on Sections 145 (2) and 150 OF THE EVIDENCE
ACT, 2011, PROSPECT TEXTILE MILLS VS. I. C. I
PLC, ENGLAND (1996) 6 NWLR (PT. 457) 668 AT 689
(E – G), ARJANDAS HIRANAND MELWANI (SUING
THROUGH HIS ATTORNEY LATEPH AKINGBADE
ADENIJI VS. FIVE STAR IND. LTD (2002) 3 NWLR
(PT. 753) 217 AT 247 (B – C). Counsel argued further
that even if the Court finds that the ground relied upon by
the lower Court cannot sustain the conclusions reached by
the Court, the
29
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6) LP
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CA)
judgment will still be upheld on the basis of the
presumption of validity of Power of Attorney executed
before and authenticated by a Notary Public.
In response, the appellant’s counsel submitted that the
parties having joined issue in the pleadings as to the non-
existence of Frank Tobechukwu, the burden was on the
respondent to prove the existence of Frank Tobechukwu
and that burden cannot be dislodged by any legal
gymnastics and in the absence of proof that Frank
Tobechukwu is an existing person, Sections 145 (2) and
150 of the Evidence Act, 2011 will not avail the respondent.
RESOLUTION:
The provisions of Section 145 (2) and 150 of the Evidence
Act, 2011 on the presumption as to a Power of Attorney is
very clear and unambiguous and does not warrant any
clumsy argument. Those sections provide that:
145 (2). "Whenever it is directed by this Act that the
Court shall presume a fact, it shall regard such fact
as proved unless and until it is disproved.
150. "The Court shall presume that every document
purporting to be a power of attorney, and to have
been executed before and authenticated by a
30
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6) LP
ELR-41
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CA)
notary public or any Court, judge, magistrate, consul
or representative of Nigeria or, as the case may be, of
the President, was so executed and authenticated."
A Combined reading of Sections 145 (2) and 150 of the
Evidence Act, 2011 clearly brings out the intention of the
law maker. Once a Power of Attorney shows ex facie that it
was executed before a Notary Public who authenticated
same, the Court must presume that its execution was valid
and regular. The Court has no discretion in the matter. The
provision of Section 145 (2) of the Evidence Act, 2011
reinforces the command and the mandatory directive given
to the Court in Section 150 of the Act.
Whoever asserts that a power of attorney has not been
regularly executed or that it is a forgery as the appellant
contends has the burden to prove his allegation by cogent
and credible evidence. See N. P. S. VS. ADEKANYE &
ORS (2002) 15 NWLR (PT. 790) 318, AWOSILE V.
SOTUNBO (1992) LPELR – 658, (1992) NWLR (PT.
243) 514, ONOBA VS. ABUJA BUILDING PRODUCTS
LTD & ORS (2014) LPELR – 22794 (CA), KALU VS.
AGU & ORS. (2014) LPELR – 22849 (CA), 1108
ABUBAKAR. The appellant
31
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relied on the closeness of serial numbers of the application
form obtained by the respondent and one Nonso Dumebi,
the bank drafts by which the requisite fees were paid, the
receipts issued and the fact that the two powers of attorney
were witnessed by the same person and donated to the
same person to conclude that it was a single individual that
was behind the high level racketeering using fictitious
names to acquire multiple plots. Those deductions and
subtractions in my view do not amount to a cogent proof
that Tobechukwu is a non-existent person. Once a power of
attorney was donated to the Feloral Merchants Nigeria
Limited and ex-facie complied with the law, the
presumption of regularity inures in favour of the document.
It is not open to the appellant to insist on a particular mode
or form of proof of the authenticity of the power of
attorney. The presumption of regularity has not been
rebutted by the appellant. The contention of the appellant
that the respondent is a non-existent person or that proper
parties are not before the Court is misconceived.
In conclusion, I find that the appellant has failed to show
that the judgment is wrong. This appeal
32
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lacks merit and it is hereby dismissed. The judgment of the
High Court of Anambra State delivered in suit No.
O/138/2005 by Hon. Justice Vin. Agbata on 20th April, 2009
is hereby affirmed. There shall be N100,000.00 (One
Hundred Thousand Naira) costs in favour of the
respondent.
TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the
judgment just delivered by the HON. JUSTICE MISITURA
OMODERE BOLAJI-YUSUFF, JCA. I am in agreement
with the resolution of the issues thrown up in the appeal. I
have nothing more useful to add to it. The appeal is lacking
in merits and it is consequently, dismissed.
I affirm the judgment of Vin N. Agbata, J. In re - Suit No.
0/138/2005 at the Anambra State High Court of Justice,
holden at Onitsha, delivered on 20th April, 2009.
I adopt the award of costs as contained in the lead
judgment, as mine.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of
reading in draft the lead Judgment just delivered by my
brother MISITURA OMODERE BOLAJI-YUSUFF JCA.
I agree with her reasoning and conclusions. I abide by the
consequential order made as to costs.
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33
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