*IDEMUDIA vs. IGBINOVIA(2022)*
*LCN/16834(CA)*
*ISSUE:* POWER OF ATTORNEY-Whether a power of attorney can confer power on the donee to transfer interest in the land of the donor as it is the donee’s land; Whether a consent judgment predicted on a deed of assignment wherein a donee of a power of attorney exceeded his powers by selling the land of the donor as his own can be set aside(Issue is mine)
*PRINCIPLE:*
“Mr. Robert Osemwengie Idemudia is the Appellant in this case. He sued through his lawful Attorney Mr. Rufus Idemudia. By paragraph 3 of the Amended Statement of claim, the Plaintiff. Robert Osemwengie Idemudia executed a Power of Attorney in favour of Mr. Rufus Idemudia. The said Power of Attorney is the document referred to as Exhibit ‘B’ in this action.
The said Rufus Idemudia (Claimant’s Attorney) testified as the Claimant in the lower Court and he tendered the Power of Attorney as Exhibit ‘B’.
It is noted that Exhibit ‘D’ (Deed of Assignment) dated 7/6/2006 was equally tendered through Mr. Rufus Idemudia (Claimant’s Attorney).
At the lower Court, Mr. Rufus Idemudia testified as follows:
“The Claimant’s Attorney, Mr. Rufus Idemudia adopted his sworn deposition on the 28/7/2016, wherein he stated that his late brother, Osemwengie Idemudia acquired the land in dispute from Ward 23/L Egua-Iyoba in Uselu Community measuring 100ft by 100ft vide an Oba Approval dated the 10/7/71, Exhibit “C”. That Osemwengie Idemudia later built a three (3) bedroom bungalow on a portion of the land measuring 100ft by 50ft. He stated that the deceased was buried in accordance with the Benin Native Law and Custom by the only surviving son, Robert Idemudia, the Claimant after which he inherited the property in dispute. He said that sometimes in 2001, the Claimant who resides in Germany visited Nigeria and discovered that the Defendant and her relations took over the house and were living therein. That before the Claimant left for Germany, he instructed him to institute this suit. He stated that after the case became six years old in Court, the Defendant approached him and his family to settle the matter out of Court. That during the meeting called to discuss the terms of settlement, an Agreement paper was presented to him which stated that he is the co-owner of the land and that he should sign and accept the sum of N500,000 Exhibit “D”. That when he informed the Claimant, he told him not to accept the N500,000.00 except it is N2.5 Million. That as the Defendant failed to pay the balance sum of N2 Million, he refused to withdraw the case from Court. He finally urged the Court to grant the reliefs.
In answer to questions under cross-examination by K. O. Obamogie, Esq., the Claimant’s Attorney stated that on the 7/6/2006, he attended a settlement meeting held in the residence of the Odionwere, Chief I. Eboigbe as a representative of the Claimant, with CW2, the Okaegbe Uyi Odiase and the Defendant. That he received the sum of N500,000 as part-payment for the settlement of the suit of the sum of N2.5 Million. That he gave Mr. Eboigbe the sum of N50,000.00 as 10% commission and that he received the sum of N2,000.00 to file a Notice of discontinuance of the suit. He stated that he signed an agreement, Exhibit “D” in furtherance of the settlement. He said that apart from the dispute in this instant case, he has no other dispute with either the Defendant or her son. That he will be surprised to hear that Exhibit “D” before he signed same. That he is not a co-owner of the property. That at the conclusion of the settlement meeting there was entertainment. That he is still in custody of the N500,000.00 paid to him on the 7/6/2006.”
On page 166 of the Record, the lower Court held as follows:
“Having scrutinized Exhibit “D”, it is my view that same represents the compromise agreement or out-of-Court settlement reached by the parties which terms are binding on the Claimant. It is equally my view, that the Claimant’s Attorney cannot by his oral evidence vary the terms of Exhibit “D”, containing the terms of the compromise agreement reached by the parties. I therefore disbelieve the evidence of the Claimant’s Attorney that it was the sum of N2.5 Million that was agreed upon by the parties as the final settlement.”
On page 168, the lower Court in its judgment held:
“In the instant case, the evidence before the Court show indisputably that the parties in fact settled this matter and compromised the suit, though the parties did not file the usual terms of settlement but entered into an agreement, Exhibit ‘D’
Admittedly, Exhibit ‘D’ was inelegantly drafted but that did not affect its validity that the parties actually executed the agreement.”
The sum total of the evidence of Mr. Rufus Idemudia and the decision of the lower Court recapitulated above incline this Court to consider the first issue which is whether by the power of Attorney (Exhibit ‘B’) the Attorney (Rufus Idemudia) had the power to sell or transfer the interest of the land in the disputed land in the manner reflected on Exhibit ‘D’
In other words, can the Attorney Rufus Idemudia by the Power of Attorney transfer or alienate the interest of Robert Osemwengie Idemudia to Abella Igbinovia through Exhibit ‘D’. Does Exhibit ‘B’ (Power of Attorney) confer power on the Attorney to transfer land to Igbinova? Does Exhibit ‘B’ convey power to transfer interest in the land on Attorney Rufus Idemudia? The answer to the above question can only be derived from line of decisions in respect of the issue.
In Murphis Burger Ltd. V. Thomas & Ors. (2019) LPELR-47319 (CA) it was held: “When dealing with the principles of law relating to power of attorney to convey an interest in law, the Court held in the case of Farmers Supply (KDS) V. Mohammed (2009) LPELR-8196 (CA) thus: “I agree, the Respondent conceded that a Power of Attorney is not an instrument that transfers or alienates any title. It is merely an instrument that delegates powers to the donee to stand in the position of the donor and do the things he can do. See Ude V. Nwara (supra) where the Supreme Court held as follows “A Power of Attorney – is not an instrument which confers, transfers, limits, charges or alienates 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 authorized the donee to do any of these acts to any person including himself, the mere issuance of suit power is not perse an alienation or parting with possessions so far, it is categorized as a document of delegation.” Per Obaseki-Adejumo, JCA, who equally held that the decision cited above on the power of Attorney does not confer title.
Nnaemeka-Agu, JSC, held in Ude V. Nwara and Anor. (1993) LPELR-3289 (SC) as follows: “A Power of Attorney merely warrants and authorizes the donee to do certain acts. In the steads of the donor and so is not instrument which confers, transfers, limits, charges or alienates 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 authorizes the donee to do any of these acts to any person including himself, the mere issuance of such power is not perse an alienation or parting with possession. So far it is categorized 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 person including himself then there is alienation.”
It is equally pertinent to examine Exhibit ‘B’ the Power of Attorney and determine when it donated to the donee power to alienate the land in dispute or convey same to any other person. Exhibit ‘B’ states:
“ BY THIS POWER OF ATTORNEY made the 27th day of December, 2001. Mr. ROBERT OSENMWENGIE IDEMUDIA of Falken Street 18, 01067 Dresdem, Germany do hereby appoint MR. RUFUS IDEMUDIA of No. … Second (2nd) Eweka Street, Off Ekenwan Road, Benin City, Edo State of Nigeria as my true and lawful Attorney for me in my name and on my behalf to do and execute all or any of the acts and things following namely:
1. To take possession of property, a parcel of land measuring one hundred feet by one hundred feet (100 ft by 100 ft) situate and lying in Uselu Egua-Iyoba, Ward 23/L demarcated by blocks B.T.P B.B. No. 739-730.
2. To manage and superintend the management of the said parcel of land.
3. To warn off and prohibit and if necessary proceed against the appropriate Court of law all trespassers on the said parcel of land and to take appropriate steps whether by action or otherwise to abate all nuisance.
4. And generally to act as my attorney in relation to the said parcel of land and on my behalf to execute and do all acts and things as fully and efficiently in all respects as I would do.
IN WITNESS WHEREOF, I hereunto set my hands and seal this day and year first above written.
Assigned, sealed and delivered
By MR. ROBERT OSEMWENGIE IDEMUDIA.
In the presence of:
Name: Mr. John Idemudia
Address: No.2, Eboigbe Street, off Medical Store Road, Benin City.
Occupation: Estate Officer.
It is quite clear that the Power of Attorney does not authorize the donee to transfer, alienate or convey the land to another person. In Nwaudo & Anor. V. Mba (2016) LPELR-40597 (CA), it was held that a power of Attorney is merely an instrument of delegation of power and not a means through which a donor alienates his interest.
There is nowhere in Exhibit ‘B’ where the donee is empowered to transfer or alienate the title of the donor. It cannot transfer interest in the land neither does its alienate the land in favour of the donee. As it is said in Ekengwu V. Ekengwu (2018) LPELR-45070 (CA), the power of Attorney does not transfer interest in the land neither does it alienate the land in favour of the donee no matter how flamboyantly, the contents of the power of attorney was drawn. It is merely an instrument of delegation of power.
Exhibit ‘B’ is no more than an instrument of delegation of power. It does not transfer interest in land especially the Appellants land. It cannot be utilized to transfer the Appellants land to any person including Abella Igbinovia. Exhibit ‘B’ is not a Deed capable of affecting an alienation of land. Needless to say nothing is contained in Exhibit ‘B’ empowering the donee to alienate the subject matter of the suit.
The above conveys this Court to Exhibit ‘D’, the Deed of Assignment. In Exhibit ‘D’ Rufus Idemudia, the Appellant’s Attorney made the Deed of Assignment claiming to be a co-owner of a piece of land in Benin City on one hand and one Abella Igbinovia of Eboigbe Street, Benin City as the Assignee. By the Deed, Rufus Idemudia as “Co-owner” transferred the land in dispute to the Assignee Abella Igbinovia. It is significant to say that Exhibit ‘D’ never indicated who Co-owned the property with Rufus Idemudia. There is nothing in Exhibit ‘D’ revealing that Rufus Idemudia the supposed co-owner has any interest in the land? There is no doubt Rufus Idemudia has no special interest on the land other than being an Attorney of the Robert Osemwinge Idemudia. There is nowhere in Exhibit ‘D’ that Rufus Idemudia acted on behalf of Robert Osemwinge Idemudia.
Without doubt the claim of the Attorney of the Appellant as a co-owner is a misrepresentation. It has no element of truth. A misrepresentation is a representation that is false in substance and in fact. It is the act of making a misleading statement about something. See Sodeinde V. Allen & Anor. (2018) LPELR-46782 (CA). It is clear the misrepresentation is capable of rendering the document – Exhibit ‘D’ void.
Exhibit ‘D’ cannot validly transfer little, just as Rufus Idemudia never derived any power or authority from Exhibit ‘B’ to alienate land to Abella Igbinovia via Exhibit ‘D’. The transfer made to him cannot stand in the circumstance against the backdrop that Rufus Idemudia had no capacity to transfer Robert Osemwengie’s landed property to Abella Igbinovia. Exhibit ‘B’ confer no such power or Rufus Idemudia. Exhibit ‘D’ consist of misrepresentation facts thereby rendering it void. It cannot validly confer title.
Exhibit ‘L’ (Oba of Benin’s Approval) establishes that the plot of land of which part is in dispute in this case was allocated to Osemwengie Idemudia on 13/9/1972 as revealed on page 67 of the Record and paragraph 6 of the Amended Statement of Claim. Rufus Idemudia who signed Exhibit ‘D’ as the co-owner of the dispute land has no title to the disputed land and by reason of his not being a co-owner or the owner of the land cannot validly transfer it. He cannot give what he does not own – Nemo dat guod non habet. Not even by Exhibit ‘B’ – Power of Attorney nor by Exhibit ‘D’. The invalid Deed of Assignment. Once again it is asserted that Exhibit ‘D’ consist of misrepresentation. A misrepresentation is a ground for setting aside a transaction in law. See Offor V. Leaders Coy. Ltd. & Anor. (Supra). By reason of this, Exhibit ‘D’ is void and cannot convey title.
It need be emphasized, that the supposed compromise or consent judgment was premised on the invalid Exhibit ‘D’. Can this compromise or consent Judgment of the lower Court stand in the face of misrepresentation and misconception that bedeviled Exhibit ‘D’? I refer to the case Vulcan V. Gases Ltd. V. G. F. Ind. A.G (Supra) where the apex Court held in this regard: “It is long settled that a consent judgment or order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of common mistake, fraudulent misrepresentation or misconception.”
This Court had held earlier that Exhibit ‘D’ is void against the backdrop of misrepresentation and therefore invalid. Flowing from this premises, nothing can be built on it by way of compromise or consent judgment. Any compromise so reached or judgment entered therefore cannot stand. It is subject to being set aside.
Arising from the foregoing, the matter at the lower Court could not be settled successfully based on the invalid and null and void documents Exhibit ‘D’. No settlement can be placed on a null act. One cannot place something on nothing. It cannot stay it will definitely collapse. The matter could not have been successfully settled by the parties at the lower Court on the basis of the above.
Flowing from the above and in the final analysis, all the issues raised by this Court are hereby resolved in favour of the Appellant against the Respondent.
Accordingly, this appeal succeeds. The judgment of the lower Court in Suit No. B/02/2002 between Mr. Robert Osemwinge Idemudia (suing by his lawful Attorney Mr. Rufus Idemudia) V. Mrs. Iriowen Igbinovia is hereby set aside.
Parties to bear their respective costs.” Per BOLA, JCA.