In The Court of Appeal

(Owerri Judicial Division)

On Wednesday, the 25th day of May, 2011

Suit No: CA/PH/150/2008

Before Their Lordships

 Between

 And

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an appeal against judgment of S. O. E. Nwanosike. J., delivered on 19/04/2007 in the High Court of Abia State sitting at Umuahia.

The appellants as plaintiff's before the lower court filed a Writ of Summons on 4/5/92 against the defendant which was followed up by a Statement of Claim filed on 13/7/92 wherein the appellants as plaintiffs claimed against the defendant as follows:

(a) A declaration of this Honourable Court that the plaintiffs are entitled to the right of occupancy and possession of the said No. 19, Abiriba Street, Umuahia, also known as plot 6, in Block 1, Umuahia within the jurisdiction of this Honourable Court.

(b) An account by the defendant to the plaintiffs all the rents he has collected from the premises since 1970 until date

(c) An order of court restraining the defendant from further collection of rents from or interfering and/or intermeddling with the said No. 19, Abiriba Street, Umuahia.

(d) An order of court nullifying the letters of Administration dated 6th April, 1982 fraudulently obtained by the defendant (a native of Olokoro Umuahia) who is in  no way related to the deceased (a native of Abiriba) by presentation of unauthentic documents. 

The relevant pleadings before the lower court are:

1. Appellant's statement of claim dated 6/7/92 and filed on 13/7/92.

2. Respondent's Amended Statement of Defence dated 23/2/2004 and filed on 25/2/2004.

The appellant's case at the trial court was that the property known as and called No. 19 Abiriba Street (Plot 6 Block 1) Umuahia, Abia State (the property in dispute) was originally the property of one late Jacob Okpani.  Upon his death, his father, one Ifendu Okpani obtained Letters of Administration in respect of his properties including the property in dispute.  At the onset of the Nigeria Civil War in 1967 the said Ifendu Okpani donated a Power of Attorney to the respondent, a native of Umuahia, to manage the property for him as a caretaker, while Ifendu Okpani returned to his native hometown of Abiriba.   On Ifendu Okpani's death, the appellants (who are his brother and wife respectively) obtained Letters of Administration over his estate including the property in dispute.

Appellants said that as a result of illness and old age they returned to their native hometown of Abiriba and claimed that the respondent took advantage of this development and started collecting rents, claiming ownership of the property.

The respondent on the other hand said that the Power of Attorney executed in his favour by Ifendu was not meant to appoint him caretaker but one that vested him with ownership of the property absolutely.  He agreed that Jacob was the original allottee of the property, and that Ifendu, his stepfather was granted Letters of Administration over the property of Jacob.  But, that Ifendu sold the property in dispute to one Mr. G. C. Ugwunali who, in turn sold to him on March 21, 1963 for a sum of 600 (six hundred pounds).  Mr. Ugwunali introduced him to Ifendu who agreed that he sold the property in dispute to Mr. Ugwunali.  After the introduction, Ifendu demanded and received from him (Respondent) a further sum of 80 (eighty pounds) as a consideration to ratify the sale transaction between him and Mr. Ugwunali.  Ifendu, after receiving the money from him, executed the Power of Attorney to enable him take over the property not as a caretaker but owner.  Respondent said, he paid the relevant statutory rates to government from the year 1964, through Ifendu because he (Respondent) was then resident in Kaduna as a worker and the change of ownership of the title deeds of the property had not been effected.  At the trial, PW1 gave evidence for the appellants and the respondent alone also gave evidence in defence.  Each of the parties tendered sundry documents in respect of their respective cases.

In his judgment, the learned trial Judge found for the respondent.  At page 164 of the printed record he had this to say:

"Now from the totality of the evidence I find that Ifendu as the administrator of the estate of Jacob, sold the property in dispute to Mr. Ugwunali who in turn sold to the defendant.  I also find that after the sale to defendant, Mr. Ugwunali introduced the defendant to Ifendu who demanded and received the sum of 80 (eighty pounds) from demand in rectification of the sale.  I prefer the evidence of the defendant to that of the plaintiffs.  I reject the evidence of the plaintiffs that the defendant was appointed a caretaker over the property in dispute.  I accept the evidence of the defendant that the property was sold to him by Mr. Ugwunali for a valuable consideration and that the sale was verified and confined (sic) confirmed for value by Mr. Ifendu Okpani, the administrator of the estate of Jacob Okpani, the original allottee.  I hereby dismiss the plaintiff's suit against the defendant and award N5,000.00 (Five Thousand Naira) costs to the defendant."

Dissatisfied with this judgment, the appellants filed a Notice of Appeal containing four (4) grounds of appeal before this court on 31st May, 2007.

Appellants Brief of Argument dated 8/5/08 was filed on 12/5/08.  Respondent's Brief of Argument dated 9/9/08 was filed on the same date.

Appellants nominated the following issues for determination:

"1. Whether the trial court was right in holding that there was a valid sale of the property in dispute from Ifendu Okpani to Mr. Ugwunali and then to the respondent.

2. Whether the learned trial Judge was right in holding that the Power of Attorney (Exhibit D or R) donated by Ifendu Okpani to the respondent conferred a proprietary interest in the land on the respondent."

The respondent formulated the same issues as the appellants.

On Issue No. 1 learned counsel for the appellants submitted that the learned trial Judge erred in law when he held that there was a valid sale of the property in dispute from Ifendu Okpani to Mr. Ugwunali then to the respondent.  The respondent stated under cross-examination that there was no document evidencing the so called sale of the property in dispute from Ifendu Okpani to Mr. Ugwunali.

Counsel submitted that from the totality of the evidence led by the parties at the trial court, there cannot be said to be a valid sale of the property in dispute from Ifendu Okpani to Mr. Ugwunali as claimed by the respondent to be his root of title.

Counsel referred to the case of Anwasi  vs.  Chabasaya (2000) 6 NWLR (Pt. 661) 408 at 417 and submitted that the respondent did not produce any document of title during the entire trial evidencing any form of transfer of the property in dispute from Ifendu Okpani to the said Mr. Ugwunali from whom he claimed to have purchased the property.  There was no document even showing the payment of any purchase price.

Appellants counsel referred to the case of Folarin  vs.  Durojaiye (1988) 1 N.S.C.C. 255 [SC] on requirements of transfer of legal title under English Law and submitted further that there was no scintilla of oral evidence that Mr. Ugwunali was let into possession by Ifendu Okpani, there was no evidence of any person who witnessed the alleged transfer to Mr. Ugwunali.

Learned counsel for the appellants referred to the cases of Jiwul  vs.  Dimlong (2003) 9 NWLR (Pt. 824) 154 at 160 and Nwadiogbu  vs.  Nnadozie (2001) 12  NWLR (Pt. 727) 315  at 318 and submitted  that the failure of the respondent to satisfy the conditions as regards proof of the root of his alleged title to the disputed property was fatal to his case and the trial court erred to have held that there was a valid sale of the property in dispute from Ifendu Okpani to Mr. Ugwunali.

Counsel submitted that the respondent pleaded and traced his root of title to Mr. Ugwunali but failed to establish how Mr. Ugwunali derived his own title to the property.  He merely said that the said Mr. Ugwunali told him that he (Ugwunali) bought the property from Ifendu Okpani.  The respondent, according to appellant's counsel did not produce any documentary or even oral evidence to that effect.  In other words, he could not prove the facts he pleaded.

Counsel referred to the case of Kate Enterprises Ltd  vs.  Daewoo Nig. Lit., (1985) 2 NWLR (Pt. 5) 116 at 118 and said that consequent on these facts, the appellants had no onus on them to dispute the facts adduced by the respondent.

Counsel submitted that the respondent could only produce Exhibit "O" as the only purported evidence that he bought the property from Mr. Ugwunali.

Exhibit 'O', said counsel is not a document of title in favour of the respondent and was not admitted as a document of title.  He furthered, that having admitted Exhibit 'O' only as a receipt, it was wrong for the trial Judge to have elevated it to the status of a document of title.  The onus is on the witness tendering a document to link it with the specific purpose for which it is being tendered.

On this, counsel referred to the case of Agbodike  vs.  Onyekaba (2001) 10 NWLR (Pt. 722) 576 at 579.

Appellants counsel said that at the trial, the respondent's counsel specifically stated that he sought to tender the document (Exhibit O) as a receipt and that it was on this basis that the said document was admitted.  Counsel then referred to the case of Ishola  vs.  U.B.N Ltd. (2005) 6 NWLR (Pt. 922) 422 and submitted that it was not proper for the learned trial Judge to use the document for any other purpose or to ascribe another probative value to it different from the purpose for which it was tendered.

Counsel submitted further that Exhibit "O" was not signed by its purported, as such, it cannot be relied on in proof of any proprietary legal interest.

Counsel referred to the case of S.P.D.C. (Nig) Ltd.  vs.  Olarewaju (2002) 16 NWLR (Pt. 972) 38 at 45 and said that an unsigned document is inadmissible to prove a claim to proprietary legal interest based thereon.

Counsel submitted that the learned trial Judge was wrong in placing so much reliance on and ascribing undue weight to Exhibit "O" on the scanty evidence given in its respect, even after its authenticity had been vehemently  challenged and none of the signatories to the said document had been called as a witness and no explanation whatsoever was proferred for the absence of these crucial witnesses.

On this, counsel referred to the case of Trade Bank Plc.  vs.  Dele Morenikeji Nig. Ltd. (2005) 6 NWLR (Pt. 920) 309 at 315 and submitted that the alleged maker of  Exhibit 'O' was himself not also called as a witness and no explanation was proferred for his absence.  Also, that Ifendu Okpani the owner of the property did not countersign Exhibit 'O' or in any manner acknowledge its existence.

Counsel submitted that the authenticity of Exhibits P2, P3 and P4 were challenged at the trial.  But, that the trial court in its judgment made no reference to this challenge but accepted the said exhibits and duly relied on them.  That, a cursory look at these exhibits shows  that they were even made before Exhibits "D" which the respondent relies upon as his document of title.  The trial court faced with this dilemma, said counsel, rather held "it is therefore safe to conclude that ever before Exhibit "D" was made, Ifendu had already divested himself of the property and vested same on the defendant".  That finding, said counsel, is unsustainable.

Counsel submitted that assuming Exhibit "D" the Power of Attorney donated by Ifendu Okpani to the respondent was an instrument of title, the respondent sought to have conveyed the property to himself instead of obtaining Letters of Administration over the estate of Ifendu Okpani including the property in dispute.  That, having obtained Letters of Administration over the estate of Ifendu Okpani, the respondent is unwittingly admitting that title to the property still resided in Ifendu Okpani.  This, counsel said, is obviously at variance with the pleadings of the respondent to the effect that title had passed from Ifendu Okpani to his vendor Mr. Ugwunali, who then sold to him.

Counsel submitted that the respondent's case was riddled with inconsistencies and unexplained facts, which even baffled the trial court.  That, the trial court [at page 163 of the Record] stated thus: "The question that arises:- what was the connection of Mr. Ugwunali to Ifendu in relation to this property?  Was he a tenant living in the property through whom Ifendu got his correspondences including the ones in dispute, or was he a caretaker of the property?..."

In the absence of the correct explanation of these missing facts, said counsel, the trial court ought to have held that the respondent's case was manifestly unreliable.

According to counsel, the trial court, in the same eagerness [at page 164 of the Record] mistook the address "The next of kin of Mr. J.E. Okpani  (deceased) c/o Udi Utiti" to mean that the letter was addressed to a person called Udi Utiti and held same against the appellants.  When, in fact, the words "Udi Utiti" referred to the village compound of the appellants and not a living person.

Counsel concluded on Issue No. 1, that there were no materials placed before the trial court upon which it came about the conclusion that there was a sale from Ifendu Okpani to Mr. Ugwunali and thence to the respondent.

In reaction to appellants Issue No. 1, learned counsel to the respondent submitted that the transaction from Ifendu Okpani to Mr. Ugwunali and subsequently to the respondent is a valid sale of the property in dispute.  

Counsel referred to the cases of Anwasi  vs.  Chabasaya  (2000) 6 NWLR (Pt. 661) 408 at 417 and Odusoga  vs.  Ricketts (2003) 2 NLLC 579 and submitted that once there is payment of the purchase price of the land to the purchaser in the presence of a witness, title in the land passes to the purchaser.

Respondent's counsel submitted further, referring to the cases of K. Nwosu  vs.  J. Otunola (1974) 4 S.C. 21 at 29-30 and Pius Amakor  vs.  Benedict Obiofuna  (1974) 3 S.C. 67 and submitted that the position of the law is that unless and until the plaintiffs had shown a title superior to that of the defendant, the defendant must continue to keep possession of the property even if he is a trespasser.

Furthermore, said respondent's counsel, where an appellant fails to prove the root of title he pleaded and relied on (as in the instant case) his claim must be dismissed.

In deciding appellants Issue No. 1, there is need to clarify one or two  points of misunderstanding of facts and misconception of law which arose in the submissions of the learned counsel for the appellants.

The first is the appellant's belief or claim that exhibit O, the purchase receipt from Mr. Ugwunali to the respondent was claimed by the respondent to be his root of title.  Exhibit 'O' cannot appropriately be described from the pleadings of the parties as the root of title of the respondent.  Exhibit 'O' is the purchase receipt from Mr. Ugwunali as vendor of the property in dispute to the respondent but the title to the property would only be properly traced to Mr Ifendu Okpani.

This factual situation is made clearer by the averment in paragraph 7 of the Respondent's Amended Statement of Defence to wit.

"7. In further answer to paragraph 6 of the statement of claim, the defendant states that between 1963 and the time the Nigerian Civil War broke out in 1967, that the  defendant was not resident at Umuahia, but was residing and working with the U. A. C. Motors in Kaduna, and as such, could not be appointed a caretaker for said Ifendu Okpani nor for any of his heirs, privies including the plaintiffs.

Defendant states that since March, 1963 he bought the said property from Mr. G. U. Ugwunali, that he has never accounted to anybody else for rent collected from the said property.

The defendant further states as follows:

(a) That one Mr. G. U. Ugwunali first bought the said property from Ifendu Okpani.

(b) That early in 1963 when Mr. G. U. Ugwunali had financial needs that he desired to re-sell the said property, Messers, M. I. Ogbulafor, S. Usuwa and J. Okpechi contacted the defendant and were witnesses when the defendant bought the said property from Mr. G. U. Ugwunali on 21/3/63 for 600 (Six Hundred Pounds Sterling).

(c) Mr. G. U. Ugwunali in the presence of Messers M. I. Ogbulafor, S. Usuwa and J. Okpechi, introduced the defendant to Ifendu okpani as his vendor of the said property.  Ifendu Okpani received the sum of f80 from the defendant to enable Ifendu Okpani undertake the responsibility of assigning the said property to the defendant.  Mr.  G. U. Ugwunali issued a receipt dated 21/3/63 to the defendant that he for consideration in the sum of f600.:- had transferred his plot Block 1 Plot 6 to the defendant.  This receipt is hereby pleaded and will be relied upon at the trial.  Tendered as Exhibit "O".

(d) It was in consideration of the money the defendant paid to Mr. G. U. Ugwunali as the owner of the said property at the time and is further consideration of the sum of f680:- which said Ifendu Okpani received for the stated purpose that he, Ifendu Okpani granted Power of Attorney to the defendant which authorized defendant to rebuild the whole  building at No. 19 Abiriba Street, Umuahia Ibeku Township as defendant thinks fit and to renew the lease when expired and to sign all documents and to execute any deed or instrument in respect of the said Plot and the premises.  The said Power of Attorney  did not state that Ifendu Okpani appointed the defendant his caretaker to administer and manage the property on his behalf in the light of the then impending Nigerian Civil War as averred in paragraph 6 of the statement of claim otherwise, Ifendu Okpani could not have received consideration in addition to that of Mr. G. U. Ugwunali as basis for granting the said Power of Attorney.  The said Power of Attorney is hereby pleaded."

The second misconception on the part of the learned counsel for the appellants is the confusion between the proof of purchase of land which is acknowledged or receipted and the proof of a valid sale of land.  The proof of a valid sale of land which suggests the acquisition of a legal title necessarily involves the proof of purchase of land.  However, the proof of purchase of land on its own creates an equitable interest in the land.  In other words, where a person pays for land and obtains a receipt for the payment, followed by his going  into possession and remaining in possession, equitable interest is created for him in the land, such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land.

Kachalla  vs.  Banki (2006) 8 NWLR (Pt. 982) 364 S.C.

Nsiegbe  vs.  Mgbemena (2007) 10 NWLR (Pt. 1042) 364 S.C.

Aminu  vs. Ogunyabi (2004) 10 NWLR (Pt. 882) 457 C.A.

Ohiari  vs.  Yesuf (2004) 1 NWLR (Pt. 855) 548 C.A

In the instant case, the appellants approached the court on the basis that the respondent was a mere caretaker of the property in dispute.  At the onset therefore, the burden of proving ownership or any form of proprietary interest on the land shifted to the respondent.  The respondent however pleaded, gave evidence and tendered not only Exhibit 'O' but also Exhibits P1-P5 and Exhibit D or R.

Exhibit 'O' is the purchase receipt from Mr. Ugwunali.  Exhibit P1-P5 are correspondences between the original title holder/Grantor- Ifendu Okpani and the Ministry of Lands whereby Ifendu Okpani sought the transfer of the property in dispute to the respondent.  Of particular relevance in this respect is the admission of the purchase and the payment of the purchase price in Exhibit P2 and P5 by Ifendu Okpani, the Administrator.  Paragraph 2 of Exhibit P2 reads:

2. The Plot has been sold to Mr. Jonathan Chukwuma Avajah who now wants the name of the deceased in the original lease to be changed to his own as he has bought the Plot.

And, Exhibit P5 another letter from Ifendu Okpani to the Hon. Minister of Town Planning, Ministry of Town Planning, Enugu, reads thus:

Assignment of Lease of Plot 6 Block 1 Umuahia Ibeku Township.

1. I have the honour by virtue of letters of Administration dated 30th July, 1965, to apply for permission to assign the above property to Mr. J.C. Avajah.

2. The amount of consideration agreed upon is f680.

3. I shall be grateful to be informed of the necessary fees payable.

Yours sincerely,

(sgd.)       

Ifendu Okpani

ADMINISTRATOR.

Apart from Exhibit 'O', that is the purchase receipt to the respondent from Mr. Ugwunali, the admission of Ifendu Okpani in Exhibits P2 and P5 has shown not only that the respondent purchased the land in dispute from Mr. Ugwunali but also that it was with the consent, approval and participation of Ifendu Okpani.

A purchase receipt is evidence that there was an agreement for sale of land, and that the consideration for sale was paid by the purchaser.  See Aminu  vs.  Ogunyebi (supra).   Meanwhile, a purchase of land can be proved by a purchase receipt of by an agreement of sale, or by any fact that shows such a transaction did take place.  Adepate  vs.  Babatunde (2002) 4 NWLR (Pt. 756) 99.

In the instance case, the fact that the respondent had purchased the land in dispute was not only proved by Exhibit 'O' but also by the admissions of Ifendu Okpani in Exhibits P2-P5.

The learned counsel for the appellants did argue that if indeed Mr. Ugwunali passed a valid title to the respondent by Exhibit O, there would not have been any other thing which Ifendu Okpani would pass to the respondent by the Power of Attorney Exhibit D or R.

In my opinion, the above poser by the learned appellants counsel begs the question.  The picture is that there was a sale from  Ifendu Okpani to Mr. Ugwunali which  was not perfected.  The subsequent sale from Mr. Ugwunali to the respondent as the previous, also, at best creates an equitable interest.  Any attempt to create a valid/legal title as opposed to an equitable interest must necessarily involve the assent of the grantor/administrator- Ifendu Okpani and that explains the circumstances of Exhibit D or R, the Power of Attorney from the perspective of the respondent.  From the above, it would be seen that the learned trial Judge was in order to have observed at page 163 of the record that:

"But let me still presume that Mr. Ugwunali was either a tenant or caretaker and that in that capacity he saw Exhibit J and could recite its statutory No. off head, what of EXH. P1,  P1 to P5 wherein Mr. Ifendu applied for a change of name on the title deeds in favour of the defendant because the property had been sold to him?.  The only reasonable and probable explanation to Mr. Ugwunali's connection to the property, which I believe, i.e that he bought same from Mr. Ifendu and that the defendant bought from Mr. Ugwunali which sale was ratified by Mr. Ifendu.  And that because Ifendu, as administrator of the estate of Jacob, could not change the name on the title documents for reasons in EXHIBITS P3 and P4, the defendants own could be reflected on the said title documents.  I therefore find that the defendant bought this property in dispute."

And before then, at page 162 the learned trial Judge rightly observed that:

"I shall, meanwhile, pause here to comment on some of these exhibits.  A careful look will show that some of them came into existence before EXH. "D" now in dispute.  For example,  EXH. P2 was made over eighteen months,  EXH P3, four months, and P4 two weeks, all before EX. D was created.  It is therefore safe to conclude that ever before EXH. D was made Ifendu had already divested himself of the property and vested same on the defendant.  Or at least he had created an equitable interest in the property in favour of the  defendant." 

In the instant case, the moment the respondent proved that he had secured an equitable interest in the property in dispute coupled with possession with or without Exhibit D or R, the burden of proving better or superior title shifts to the appellants.  The appellants in this case failed to discharge the burden of proving better title over and above the interest or title of the respondents.

Issue No. 1 is resolved against the appellants.

On Issue No. 2, learned counsel for the appellants submitted that the trial court erred in law to have construed the Power of Attorney Exhibits "D" or "R" as having conferred title in respect of the property in dispute on the respondents. 

Counsel submitted that a Power of Attorney is not a document of title but could only be a vehicle through which title could be transferred.  On this, counsel referred to the cases of Gregory Obi Ude  vs.  Clement Nwara & 2 Ors. (1992) 2 NWLR (Pt. 278) 638, Amadi  vs.  Nsirim [2004] 17 NWLR (Pt. 901) 111, Olorunfemi  vs.  Nig. Educational Bank Ltd.  [2003] 5 NWLR (Pt. 812).

He submitted that the burden of proving the meaning, contents of the Power of Attorney at all times, lie on the respondent since he relied on same as his document of title.  After referring to the judgment of Niki Tobi, JCA (as he then was) in Bamgbose  vs.  Jiaza (1991) 3 NWLR (Pt. 177) 64 at 74, counsel submitted that a Power of Attorney is construed strictly, as such it cannot purport to donate more powers than are contained within it.  And, that a cursory look at Exhibit D or R will clearly show that the Power of Attorney merely appointed the respondent as a caretaker to manage and superintend the property.  That the wordings of the said Power of Attorney were simple and free from ambiguity and the trial court erred in importing into the document extraneous matters which were not stated therein.  Counsel referred to the case of Ishola  vs.  U.B.N. Ltd. (2005) 6 NWLR (Pt. 922) 422, and submitted further that it was the un-warranted resort and importation of other exhibits [documents] by the trial court in interpreting Exhibit "D" that unwittingly led the trial court to a wrong interpretation.

In the instance case, said counsel, Exhibit "D" stands on its own and has no nexus to the other exhibits resorted to for its interpretation by the learned trial Judge.  Also said counsel, the said Power of Attorney was also not coupled with any valuable interest nor stated to be irrevocable.  He referred to the cases of Chime  vs.  Chime (2001) 3 NWLR (Pt. 101) 527 at 554-555, U.B.N. Plc  vs.  Njuk [2003] 16 NWLR (Pt. 845) 183 at 209,  Oguntokun  vs.  Carew (2000) 13 NWLR (Pt. 683) 108 at 116and  submitted that the Power of Attorney not being coupled with valuable consideration, lapsed upon the death of the donor.

Finally, on Issue No. 2, counsel submitted that if the intention of the donor was to divest himself of the property, the Power of Attorney would have been made "irrevocable" which is not case.

On Issue No. 2, learned counsel to the respondent submitted that the appellants misconstrued the intention of the donor regarding the effect of Power of Attorney donated to the respondent.  That, it was the intention of Ifendu Okpani when he donated Power of Attorney to the respondent to transfer title of the property in dispute.

Counsel submitted that Exhibit P, P1-P5, go to establish the intention of Ifendu Okpani when he donated Exhibit D to the respondent.

As it was the case with Issue No. 1, the submissions of the learned counsel for the appellants reveal that the appellants do not have a proper grasp of the reasoning and conclusion of the lower court in the instant case.  As it were, learned counsel for the appellants would seem to give the impression that the trial before the lower court dealt exclusively with the interpretation of Exhibit D as an instrument of title in favour of the  respondent.  As a matter of fact, this was not the case.  The fact that the learned trial Judge considered the evidence offered by the parties in a holistic manner before coming to conclusion is borne out by the trial court's observations at pages 160 and 162 of the record.

First, at page 160 that:

"In resolving this issue, I think it is necessary for the court to consider the case as a whole, including the other exhibits tendered along with Exhibit "D" in the proceedings Exhibit "D" is not the only document before the court.  There are others. Exhibit "D" should not be read in isolation."

Second, at page 162 that:

"It is therefore safe to conclude that ever before Exhibit D was made, Ifendu had already divested himself of the property and vested same on the defendant."

Furthermore, appellants Issue No. 2 was distilled from Ground 3 of the appellants Notice and grounds of appeal.  Meanwhile, there is nothing in the said Ground 3 of the Notice of Appeal to suggest that the conclusion of the learned trial Judge in conferring a proprietary interest in the land on the respondent was based on Exhibit D or R or solely on Exhibit D or R.

The Particulars of Error in the said Ground 3 of the appellants Notice of Appeal do not tally with the statement in the Ground itself.  They read together as follows:

GROUND 3

ERROR IN LAW

The trial court erred in law in holding that "I reject the evidence of the plaintiffs that the defendant was appointed a caretaker over the property in dispute."

PARTICULARS OF ERROR

A. Exhibit "D" or Exhibit "R" being the Power of Attorney donated by Ifendu Okpani to the respondent was given without consideration and therefore lapsed on the death of Ifendu Okpani.

B. A clear interpretation of Exhibit "D" or "R" shows that it was donated to the respondent for the general purposes of taking charge of the property as a caretaker.

C. It was wrong of the trial court to construe the meaning and intention of the maker of Exhibit D or R by reference to other documents extraneous to Exhibit D or R even though tendered at the trial.

D. Exhibit "D" or "R" is not a document of title as to confer any proprietary interest in the property to the respondent.

E. Section 132 (1) of the Evidence Act LFN 1990 does not permit the use of oral evidence of the respondent to vary or contradict the clear terms of Exhibit "D" or "R".

F. Exhibit P to P5 were not duly certified in accordance with Section 111 (1) of the Evidence Act LFN 1990 and ought to have been expunged from the record.

From the above, it would be seen that the particulars of error do not reflect the complaint of the appellants in Ground 3.  While the complaint in Ground 3 deals with conclusion on evaluation of evidence by the learned trial Judge which was appraised in its totality, the particulars of error that accompanied the Ground relate to interpretation or construction of Exhibit "D" or "R" which does not arise from the judgment.  Beyond the above observations, the learned counsel for the appellants in his brief of argument made statements of law which are not true for all times or all purposes or which in particular do not assist him in the circumstances of the instant case.  For example, the learned counsel for the appellants referred to the case of Chime vs.  Chime (supra)and Oguntokun  vs.  Carew (supra) for the propositions that the Power of Attorney in the instant case Exhibit D or R was not coupled with any valuable interest nor stated to be irrevocable and that the death of the principal deprives the agent of the power to act for the principal.

In the first place, the death of the principal only deprives the agent to act only in cases of revocable Power of Attorneys and not where the power is irrevocable.  Thus, the question in each case is whether on the construction of a particular Power of Attorney in all the circumstances of the case, it could be said to be revocable or irrevocable.

The quotation by the learned counsel for the appellants at page 11 of the appellant's brief from the case of Chime  vs.  Chime (supra) pages 554-555 followed the decision in the English case of Reigate  vs.  Union Manufacturing Co. (Ramsbottom) (1918) 1 K. B. 592 C. A and the case of Slatter  vs.  Railway Commissioner (New South Wales) 1931 45 C.L.R. 68, which held that where the authority of an agent is given by deed, or for valuable consideration for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest.

The point here, is to emphasize that contrary to the submissions of learned counsel for the appellants both the case of Reigate  vs.  Union Manufacturing Co. (supra) and the Supreme Court of Nigeria decision in Chime  vs.  Chime (supra) identify at least two senses in which a Power of Attorney not expressed to be irrevocable could be declared to be irrevocable.

First, is where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security.  Second, is for protecting or securing any interest of the agent.

In the second case, the power is said to be irrevocable during the subsistence of such security or interest.

The lead opinion in the case of Chime  vs.  Chime (supra) was delivered by Wali, JSC.  In the context of the facts of the case itself, the supporting opinion of Iguh, JSC at  page 554-555 summarizes the position of the law as follows:

"It is where a Power of Attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owed to the donee that it is irrevocable either by the donor without the consent of the donee or by the death, incapacity, bankrupty, winding up or dissolution of the donor, so long as the donee has the interest or the obligation remains undischarged.  See Reigate  vs.  Union Manufacturing Co. (Ramsbottom) (1918) 1 K. B. 592 C. A.  Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest.  See Slatter  vs.  Railway Commissioners (New South Wales) (1931) 45 C.L.R. 68.  But it is not irrevocable merely because the agent has an interest in the exercise of it.  In my view, Exhibit A is not irrevocable as it did not by itself constitute a security for the agent and was not even made for any valuable consideration. " (Underlined emphasis supplied).

In the instance case, the judgment of the learned trial Judge was based more on the equitable interest created in favour of the respondent by Exhibits O, P1-P5 rather than the Power of Attorney Exhibit D or R.  Furthermore, the construction of Exhibit D if any in this case unlike that of Exhibit A in the case of Chime  vs.  Chime (supra) was done in the light of other documents tendered at the trial.  On this, the learned trial Judge observed at page 160 of the printed record:

"In resolving this issue, I think it is necessary for the court to consider the case as a whole, including the other exhibits tendered along with EXH. "D".  In the proceedings EXH. "D" is not the only document before the court.  There are others.  EXH. D should not therefore be read in isolation.  It ought to be construed along with those other documents so as to find out the proper intention of the parties in the whole transaction of which EXH. D is only a part.  After all, it is the construction to be placed on EXH. D itself, that is the subject matter of this dispute.  And to resolve the issue of the construction to be placed on EXH. D I think it is proper for the court to call in aid other documents before it.  This will help the court to place the proper construction on the intention of the parties.  I shall now call in aid those other documents."

I must quickly point out that the learned counsel for the appellants cried foul to the above approach by the learned trial Judge and relying on the case of Ishola  vs.  U. B. N Ltd. (supra) he insisted that:

"The general rule is that where the words of any, instrument are free from ambiguity in themselves and where the circumstances of the case have not created any doubt or difficulty as to the proper application of the words to claimants under the instrument or the subject matter to which the instrument relates, such an instrument is always to be construed according to the strict, plain and common meaning of the words themselves.  It is therefore wrong to import into the instrument extraneous matters which are not stated therein."

Unfortunately, perhaps unlike the situation in Ishola  vs.  U. B. N. Ltd. (supra)  Exhibit D or R in the instance case is not so free from ambiguities.  Apart from the opening paragraphs of the document -Exhibit D which uses expressions such as "on my behalf, and in my name, to take charge of, and manage the lease hold estate in my name and on my behalf" all other paragraphs of the same document do not suggest any clarity of the intention of the parties.

For example, paragraphs (d) (e) (f) and (g) of the said Exhibit D could be suggestive of a transfer of property from the donor to the respondent.  They read thus:

"(d) To rebuild any part or portions of the premises aforesaid for or an my behalf or cause to be rebuilt the whole bulding at No. 19, Abiriba Street, Umuahia Ibeku Township as he may think fit.

(e) In general, for the purpose of this taking charge of the said premises as I could have lawfully done myself as the sole Administrator if this authority had not been given to Mr. Jonathan Chukwuma Avajah.

(f) to sublet the whole premises or any part or portion thereof for any rental and upon such terms as the said attorney may deem expedient  and to accept unto accruing thereupon.

(g) To renew the lease when expired and also to sign all document/documents and to execute any deed or instrument in respect of the said plot and the premises.

And I, hereby confirm and agree to ratify and confirm whatever the said Jonathan Chukwuma Avajah shall lawfully do or cause to be done in or about the premises aforesaid by virtue hereof and to indemnify and save the said Jonathan Chukwuma Avajah from and against the same."

The learned trial Judge accepted the evidence of the respondent in relation to Exhibits O, P1-P5 and D or R to reject the contention of the appellants that the respondent was merely a caretaker of the property in dispute.

In the circumstances of this case, I do consider that the learned trial Judge came to a right conclusion. 

In this respect, while it is true that the provision of Section 132 (1) of the Evidence Act Cap. 112 LFN 1990 generally excludes oral evidence of contracts, grants and other dispositions of property reduced to a documentary form, the proviso to Section 132 (1) as contained in Section (1)(a) - (e) (2) and (3) of the same Evidence Act for example, Section 132(1) (c) says that the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property may be proved. This proviso to the provision of Section 132(1) has its root in the English Common Law. In De Lassalle vs. Guild Ford (1961) 2 K. b. 215, the plaintiff and the defendant negotiated for the lease of a house by the letter to the former. The terms were arranged, but the plaintiff refused to hand over the counterpart that he had signed unless he received an assurance that the drains were in order, and the counterpart was thereupon handed to him. The lease contained no reference to drains. The drains were not in good order, and an action was broght to recover damages for breach of warranty. It was held that the representation made by the defendant as to the drains being in good order was a warranting and that it was a separate collateral about which oral evidence could be given, and for breach of which an action was maintainable. See also Jacobs vs. Batavia & General Plantation Trust Ltd. (1924) 2 Ch. 329, and Webster vs. Higgin (1948) 2 All E. R. 127. Also, by Section 132 (3), oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on.

In the instance case, the learned trial judge was right in the light of Exhibit O. P1 - P5 and the oral evidence of the respondent as PW1 to hold that the Power of Attorney (Exhibit D or R) donated by Ifendu Okpani to the respondent conferred a proprietary interest in the land on the respondent. 

Issue No. 2 is in favour of the respondent. 

Having resolved the two issues in this appeal in favour of the respondent, the appeal lacks merit and it is accordingly dismissed. 

N5,000.00 costs is awarded to the respondent as against the appellant. 
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.:  I have read in advance the lead judgment delivered by my learned brother OWOADE, J.C.A. I agree with his reasoning and conclusion that this appeal lacks merit. I dismiss the appeal and I make similar consequential order as to costs as contained in the leading judgment. 

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I agree.

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