Cedric Moss & Ors. V. Kenrow (Nigeria) Limited & Ors. (1992)
LawGlobal-Hub Lead Judgment Report
OMO, J.S.C.
The action now on appeal was originally instituted by the plaintiffs/appellants, who are beneficiaries of the estate of Noel Wilfred Moss (deceased). The first to fourth plaintiffs/appellants are his children; the fifth plaintiff is his grandson (son of his son Standard) and the sixth is the mother of the fifth and widow of Standard Moss. The fourth and fifth defendants/respondents are also his children who together with the second plaintiff were appointed Executor and Executrix in the Will of the aforesaid N.W. Moss who died on the 28th May, 1956. Only the fourth and fifth defendant so functioned after Probate was granted only to both of them until 7th November, 1966 when by an order of court they were relieved of their appointment and the Federal Administrator-General took over the administration of the said Estate. On the creation of Lagos State the 3rd defendant/respondent took over the administration of the estate.
During the administration of the 3rd defendant/respondent a deed of lease dated 23rd September, 1971 was executed in favour of the 1st defendant by the 2nd (not the 3rd) defendant whereby part of the properties of the testator at 125A Apapa Road but numbered 14 Brickfield Road was devised for 30 years with an option to renew for a second term of 10 years.
The present action is an attack against that lease which was admitted in evidence as Exhibit C and sought three reliefs, the first against all the defendants jointly and severally is for:
(1) a declaration that the Deed of Lease of No.125A Apapa Road dated 23/9/71 made in favour of the 1st defendant by the Public Trustee is a nullity.
The second, against the Administrator-General of Lagos State (the 3rd defendant) for:
(2) an order directing the Administrator-General to vest the said premises in the devisees thereof in accordance with the testator’s Will.
The third, against the 1st and 2nd defendants only for
(3) an injunction restraining the 1st defendant company and the Public Trustee from committing trespass.
Pleadings were duly filed by the parties and after hearing them and/or Counsel on their behalf the learned trial Judge in a considered judgment, declared “the lease agreement a nullity” (claim 1), granted the injunction sought (claim 3), and ordered that 3rd defendant vests the premises on the devisees in accordance with the testator’s wishes (claim 2).
Dissatisfied with that judgment the defendants/appellants appealed to the Court of Appeal. There, briefs were filed and oral argument adduced by the parties. By a majority of 2 to 1, the court below allowed the appeal and dismissed the claim of plaintiffs/respondents, who have now filed an appeal to this Court against the judgment of the Court of Appeal.
Eight grounds of appeal, were filed by the plaintiffs/appellants (hereinafter referred to simply as appellants) in support of their appeal, which they set out in their notice of appeal as follows:-
(i) The court below erred in law in failing to observe that it is not permissible in law for a corporation sole (or other person exercising statutory authority) to plead estoppel or the acquiescence of the person affected by the act complained of in answer to a claim that it (the corporation or authority concerned) has acted ultra vires.
(ii) The court below erred in law in failing to observe that the maxim “Omnia praesumuntur ritte esse acta” does not operate so as to validate an ultra vires act.
(iii) The court below erred in law in holding that it was permissible in the circumstances of this case to presume that “the conditions had ripen (sic) for the 2nd defendant to take over the trusteeship of the deceased’s estate from the 3rd defendant.”
Particulars of Error
(a) The office of the Administrator-General does not automatically convert nor is it automatically transferred to that of the Public Trustee as is the case with a private administrator or executor.
(b) Ground (ii) of the Grounds of Appeal is hereby repeated,
(iv) Even if (which is not conceded) the court below was correct in holding that the 3rd defendant was entitled to a lease for 30 years, it was wrong for the court below to have decided that “the vesting of the property in the devisees must be postponed until the expiration of the lease.”
Further Particular of Error
On the hypothesis that there was a valid prior grant of a lease for 30 years in favour of the 1st defendant such lease will continue in force as an incumbrance on the estate or interest of tile beneficiaries of the testator and in accordance with the provisions of Section 34(4) of the Land Use Act,
The court below erred in law in holding that the question whether the lease was to be for 10 years or for 30 years was not raised on the pleadings when it was clearly raised in the Statement of Defence of the 4th and 5th defendants.
(vi) The Court below erred in law and on the facts in holding or assuming that all the beneficiaries assented to the transaction whereby a lease was granted to the 1st defendant.
(vii) The court below erred in law in failing to observe that Exhibit D merely enables the 1st defendant to replace the boy’s quarters. It does not enable that defendant to erect the block of eight flats which they in fact erected.
(viii) The court below erred in law and all the facts in failing to observe that the equitable doctrine of laches and/or acquiescence cannot apply in this case for the following (among other) reasons-
(a) the first defendant, at the time of the transaction knew or ought to know that it was the Administrator-General and not the Public Trustee who had power to grant the lease;
(b) the Public Trustee knew or ought to know that it was the Administrator-General who had power to grant the lease;
(c) there is no evidence that the plaintiffs were aware or ought to have been aware of any mistaken belief on the part of the 1st, 2nd or 3rd defendants.”
From these they distilled the following issues for determination:-
(i) Whether the deed of lease Exhibit C is a nullity because
(a) all the beneficiaries did not consent to the transaction and
(b) the deed was executed by the Public Trustee and not by the Administrator-General;
(ii) Whether it would be inequitable for the court to declare the deed Exhibit C a nullity because –
(a) the beneficiaries consented to the transaction;
(b) the beneficiaries received and shared rents paid by the 1st defendant under the lease;
(c) the beneficiaries were guilty of laches and acquiescence.
(iii) Whether the Court of Appeal was correct in holding that the High Court could only properly have ordered that the Administrator-General shall vest the premises at No.125A Apapa Road (including the property in dispute) in the devisees after the expiration of 30 years from the date of Exhibit C”
The defendants/respondents (hereinafter called “respondents” only) “summarized” the issues for determination thus:-
“Whether the Court of Appeal exercised its judicial discretion judiciously when it granted equitable relief to the Defendant/Appellant in accordance with the rules of equity and principles of justice having sufficiently considered the general and special circumstances of this case.”
Briefs were duly filed by the parties and counsels were heard in oral argument at the hearing of this appeal.
On the first issue for determination, the two complaints are that the beneficiaries did not consent to the transaction i.e. the lease of the property, and that the deed when prepared was executed by the Public Trustee and not by the Administrator-General. On the sub-issue of consent, it is the submission of appellants’ counsel that for the transaction to be valid all the beneficiaries must approve of it. This is particularly so because in compliance with the Will of the testator, the very property demised should have been vested in the beneficiaries 5 to 6 years earlier. The appellants specifically pleaded in paragraph 13 of their statement of claim that the 2nd appellant knew nothing about the lease. She is a daughter of the deceased whose maiden name was Elsa Moss, and at the time the lease was executed she was resident abroad, Although this fact was denied by the 1st respondent in its pleading, the 2nd and 3rd respondents in their pleading limited information about and consent to the lease to the 5th respondents only. It is clear on the evidence led, counsel contended, that the 1st defendant entered into the transaction in Exhibit C at the instance of the 5th respondent, actively aided by his sister the 4th defendant whose lawyer actually prepared the lease agreement. In reply, counsel for the 1st respondent has submitted that appellants submission “is fraught with injustice and represents a rigid adherence to the law” which this court should ignore. Since the 4th and 5th respondents who are beneficiaries of the estate knew about the transaction and consented to it, and represented to the 1st respondent that all the beneficiaries; consented, the appellants must he estopped from claiming lack of consent.
The pleading of the parties on this sub-issue shows the appellants denying having consented to the lease being granted. Whilst the 1st respondent on the one hand pleaded that all the beneficiaries i.e. the appellants and the 4th and 5th respondents, gave their consent; the 2nd and 3rd respondents averred that only the 5th defendant gave his consent. It is not necessary in this judgment to quote at length the evidence led on this sub-issue. It is enough to surmise that it revealed that the only persons who gave their consent to the lease were the 4th and 5th respondents, beneficiaries who had been removed from administration of the estate five years earlier by a court order, 2nd appellant’s evidence that she was then living abroad and did not get to know about the lease until 8 years later (in 1979), and that the 5th respondent did not contact her before he gave his consent, was confirmed by the 5th respondent, and not controverted by the 1st respondent. According to the 5th respondent only three beneficiaries of the estate were resident in Nigeria when the lease was executed – the 4th respondent, the testator’s youngest son – Stanford (now deceased) – and himself. Yet in the face of this evidence, Kolawole, J.C.A in his judgment in the court below held that –
“From the evidence of all the parties it was manifest that the plaintiffs and the other children of the Testator consented to grant a lease of the property in dispute to the appellant Kenrow (Nigeria) Limited.”
On this sub-issue, the finding of Nnaemeka-Agu, J.C.A. (as he then was) in his minority judgment, which has been commended to us by counsel for the appellants. is more in accord with the facts, and is to be preferred. He found as follows:-
(1) “I may pause here to observe, on the question of consent of the beneficiaries, that whereas the 1st defendant averred that all of them consented to the transaction, the 2nd and 3rd defendants averred that only the 5th defendant consented. Evidence called at the trial showed that it was only the 4th and 5th defendants who, as I have shown, had been removed for maladministration, who consented to the transaction. Even so, they asserted on oath that they consented to a lease for a five year term with a five-year option. The learned Judge did not find that the other beneficiaries consented. As for the question whether the consent given by the 4th and 5th defendants was for a 5 years or a 30 years term, he did not consider it necessary to make a finding on the pleaded facts in view of the more fundamental issues he had to decide.” (Note: Italics mine)
and also that
(2) “It was the case for the Public Trustee and the Administrator General that it was only the 5th defendant that was involved in the negotiation or was consulted. Although the appellant averred that all the plaintiffs were consulted, this was not proved. D.W.1 himself stated under cross-examination by Mr. Kester thus: ‘Sydney Moss (i.e. 5th defendant) was the only one we dealt with and who agreed with us on the lease. We did not deal with the other beneficiaries because we did not know them.’ (Parenthesis mine).
Thus the whole lease proceeded upon wrong premises.”
Later in his judgment, Kolawole, J.C.A. expressed the view that there was ostensible authority for the grant of the lease thus –
”Two of the beneficiaries who were originally executrix and executor of the deceased’s estate and who would appear to have ostensible authority to grant or, at best, consent to the granting of a lease of the property either consented and/or knew of the transaction.”
In his judgment, in response to the submissions of learned counsel for the appellants to the same effect, Nnaemeka-Agu, J.C.A. (as he then “”‘as) rejected same and drew attention to the contrary evidence led before the trial court in the following words:-
“I do not agree with the learned Senior Advocate for the appellant that the decision in this case should be in any way influenced by the fact that the 4th and 5th defendants consented to the transaction or that the appellant could hide under the cloak that they had ostensible authority. This is because not only had he and his co-executor been removed from the management of the estate since 1966, as per Exhibit B, but also evidence called at the trial does not support such assertion. D.W.1, Alhaji Yekini Adisa Abode a one time director of the appellant company said under cross-examination:
‘Sydney Moss informed me it was part of their father’s estate. I was not aware initially that they were having interest in the estate. Before the time they signed the lease I was aware of their beneficial interest. Before we signed the lease we were aware of other beneficiaries’ interest in the property. I said that Sydney Moss agreed to grant us the lease. ‘
- D.W., Alhaji Abode said:
‘Sydney Moss was the only one who dealt with us on lease. We did not deal with the other beneficiaries because we did not know them before.’
The 5th defendant, Sydney Moss, himself said;
‘I read paragraph 5 of Exh. C (witness reads)
‘To the best of my knowledge the paragraph is not true. There were 3 beneficiaries resident in Nigeria in September, 1971. Four were abroad. It is not to my knowledge that the beneficiaries abroad consented to the lease.
Later he stated under cross-examination by Mr. Sofola: ‘I admit that there are other beneficiaries interested in the property. A number of them were abroad. I did not take steps to inform those beneficiaries abroad as to what was going on with the property.’
There was no other evidence showing that the beneficiaries abroad, or indeed other beneficiaries apart from the 5th defendant were consulted or consented before the execution of Exh. C and the
learned Judge, rightly in my view, did not find that they consented.”
(Note: Italics mine)
It is enough for me to say that these findings of the learned appellate Justice, with which I am in entire agreement, concludes the sub-issue of consent in favour of the appellants and against the 1st respondent particularly. At best, only the 5th and possibly the 4th respondent consented to a lease being granted to the 1st respondent. Since they were not signatories to the lease (Exhibit C) their claim as to what terms they agreed to, which is not an issue in this appeal, could be the subject of closer scrutiny. The submission in 1st respondent’s brief (page 7 paragraph 3(5) (d)) that
“If the D.W.5 who is a beneficiary of the Will fails to notify the other beneficiaries and represented to the 1st respondent that he in fact has obtained their consent, then, the plaintiffs must be estopped from claiming lack of consent.”
( Italics mine)
is not supported by the evidence led and is therefore untenable. D.W.5 was neither a representative of the beneficiaries with an obligation to notify them of the lease, nor did he represent to the 1st respondent that he had obtained their consent. The importance of this submission on consent in this appeal can be said to be three-fold. First, as submitted by appellants counsel, having regard to the provisions of Clause 5 of the testator’s Will, with effect from 1967 (when his youngest child attained the age of 18 years) the properties of the testator which include the particular piece of land devised under the lease, were due to be devised by the Administrator-General to the beneficiaries. He therefore became a passive or bare Trustee having no active duties to perform vide Christie v. Ovington (1875) 1 Ch.279; Re Cunningham and Frayling (1891) 2 Ch.567. In such circumstances, I agree with counsel that the beneficiaries can require him (as trustee) to grant the lease to the 1st respondent, and they in turn cannot be heard thereafter to reprobate and say that the lease is a nullity. Secondly, the lease itself recites that the 2nd appellant consented to the granting of the lease. Having found that there was no such consent, that recital is false. Thirdly, if in fact the alleged consent was given, the submissions of the 1st respondent seeking the aid of equity against the appellants would have been irresistible. This disposes of appellants Issues (i)(a) and (ii)(a), the answer to both of which is in the negative.
I will now proceed to consider Issue (i)(b) which asks whether Exhibit C is a nullity because the deed was executed by the Public Trustee and not by the Administrator-General. The submission of the appellants here is that it was the Administrator-General who was by order of court – Exhibit B – appointed to manage the affairs of the estate and not the Public Trustee. The Public Trustee therefore had no right whatsoever to execute Exhibit C. He also had no title vested in him to pass on to the 1st respondent. In his judgment the learned trial Judge had taken the same view, holding that the two offices of Administrator-General and Public Trustee were distinct and separate. Although 1st, 2nd and 3rd respondents had pleaded that both offices were at the time of the lease held by the same person, no evidence was led in proof of that averment. He therefore held that the lease Exhibit C is a nullity. The court below (majority judgment) however took a different view of the matter. As succinctly set out by the appellants (in their brief), it decided that “the common law principle compendiously referred to as the presumption of regularity and embodied in the legal maxim omnia praesumuntor ritte esse acta and enacted in section 149 of the Evidence Act provided a perfect answer to the plaintiffs’ complaint”. The reasoning by which Kolawole, J.C.A. came to that conclusion arc set out in his judgment at pages 277 to 228 of the records of appeal where after stating that 4th and 5th respondents would appear to have ostensible authority to grant the lease (a conclusion statement already shown in this judgment not to be based on the evidence led, and misconceived), he proceeded to state as follows:-
“Now at the time of the transaction, partic ularly because the 5th defendant was asked by the 3rd defendant (the Administrator- General) to find a lawyer to prepare the lease agreement and the 5th defendant asked Mr. D.B. Coker who was then acting for the 4th defendant to prepare the lease agreement, there was no means, at least there was no evidence, by which the 1st defendant could know
(i) Whether or not the 2nd defendant had or had no authority to devise the said property:
(ii) Whether or not the conditions had ripened for the 2nd defendant to take over the Trusteeship of the deceased’s estate from the 3rd defendant:
(iii) the difference between the office of the 2nd and 3rd defendants.
Mr. Sofola submitted that in view of the above situation, it would be proper for the 1st defendant to presume that the transaction was regular and the provisions of section 149(1) and (2) of the Evidence Act would enure for the benefit of the 1st defendant. The section enacts as follows:-
‘149(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
(2) When it is shown that any person acted in a public capacity it is presumed that he had been duly appointed and was entitled to act.”
The scenario set out by Kolawole, J.C.A., on the basis of which the presumption of regularity is based is very faulty, on the evidence led. The deductions would also appear not tow be based on a proper evaluation of the evidence, and beg the question raised as to whether they support the presumption relied upon. The same fault affects the reasons finally given for the decision that the presumption is applicable. As to the scenario, there is no evidence by the 3rd appellant (the Administrator-General) that it asked the 5th appellant “to find a lawyer to prepare the lease agreement”. The evidence of D.W.1 – a Director of the 1st respondent company is to the effect that “The Administrator-General told us (my note: i.e. Sydney Moss and himself) to get a lawyer to prepare the agreement”. This envisaged a joint responsibility. The lawyer to be found, was therefore to be that of the 1st and 5th respondent. 5th respondent himself did not support the statement that Administrator-General asked him to find a lawyer. What can be gleaned from his evidence is that he recommended a lawyer known to him to 1st respondent. The deduction that follows, to wit, that because of this fact the 1st respondent was ignorant of the authority of 2nd and 3rd respondents vis-a-vis the land, and the differences in their offices, cannot possibly be correct. What the learned appellate justice said the 1st respondent was ignorant of clearly raises the maxim “Caveat Emptor” against it. It was the company’s duty to get a lawyer to vet the agreement which it was about to sign, and if it failed to do so, and signed a faulty document which fails to protect its interest, the blame is squarely to be laid at its door. It cannot possibly be rescued from such self-induced recklessness by a reliance on the rebuttable presumption of regularity. The authorities which the learned appellate Justice referred to merely illustrate some aspects of the maxim sought to be relied on. They do not show that the facts of the present case justify reliance on the maxim. They therefore do not require any consideration here. With regard to the reasons given for the conclusion that the maxim is applicable, it has already been established beyond any doubt that all the beneficiaries did not agree to the lease to the 1st respondent, nor the terms thereof. Nor has it been established (and this will be further considered hereafter) that they all benefitted from whatever rent was paid, if at all; because the 2nd and 3rd respondents, who could so testify failed to do so. Finally, the finding that Mr. Coker, the lawyer, “was therefore the agent of the beneficiaries” must be one of the most outlandish of the conclusions arrived at by the learned Justice.
Having shown that the premises on which the learned Justice founded the presumption of regularity is entirely faulty, I will now consider the submission of appellants’ counsel on its merits. The minority judgment of Nnaemeka-Agu, J.C.A. (as he then was) deals fully with this sub-issue, and it’s conclusions thereon are in my view, very correct. I agree with the basic submission of appellants’ counsel that there are no facts pleaded by the defence on which the presumption can be founded. The pleading that both “the 2nd and 3rd defendants validly granted the lease to the 1st defendant” (vide paragraph 14 of 1st defendant’s Statement of Defence) is not only contrary to the recitals in Exhibit C. but was not proved. As to the pleading that the Administrator-General is the holder of both offices of Administrator-General and Public Trustee (vide paragraph 10 of the Statement of Defence of the 2nd and 3rd,defendants), this was not supported by any evidence and so was also not proved. Even if it was established that the same person was holding the two offices, this fact was not stated in Exhibit C where the lessor was stated to be the Public Trustee. It is therefore to the functions of the Public. Trustee that any presumption of regularity can apply. If both offices have identical functions it may be possible to argue that the setting out of one name instead of the other is immaterial. The truth however is that both offices are the creation of statutes which set out their respective functions which are different vide The Administrator-General Law of Western Region (Cap.2) Laws of Western Region. 1959, and the Public Trustee Law of the Western Region (Cap. 108) Laws of Western Region 1959. Section 6 of the latter law, sets out the powers and duties of the Public Trustee to be
“(a) to act as an ordinary trustee;
(b) to act as a custodian trustee:
(c) to be appointed by the court”
It does not provide that he can act as an Administrator-General.That the execution of Exhibit C is the duty and function of the Administrator-General has not been disputed. Not only did the Court give it that power – per Exhibit B at page 211 of the record of proceedings, but the negotiations throughout as evidenced by the parties was conducted by the Administrator-General. Furthermore, the presumption is specifically excluded where the parties involved (the Administrator-General and the respondents) are acting in a fiduciary relationship to each other, “vide Huguenia v. Basely (1807) 14 Yes. 273; nor can it apply where the third party such as the 1st appellant, had or could have had notice of the facts relied on to raise the presumption. In this connection the 1st, 4th and 5th appellants knew throughout, and so testified, that negotiations were with the Administrator-General, not the Public Trustee. It is also well to remember that the presumption of regularity is rebuttable. The facts hereinbefore adduced are in my view ample for the presumption, where it arise, to be deemed rebutted. The conclusion therefore must be that the Public Trustee had no locus whatsoever to execute Exhibit C. His so doing is a very serious defect to the document, and makes it unarguably a nullity. The fact that any or all the parties acted on an invalid document cannot make it valid. The minority judgment of the court below has gone further to show other defects of Exhibit C on the basis of which it can be declared invalid. These need not however be considered here as they were not canvassed in this appeal. The answer to Issue (i)(b) considered is therefore in the affirmative .
Issue (ii)(b) asks whether it will be inequitable for the court to declare Exhibit C a nullity because the beneficiaries received and shared rents paid by the 1st defendant under the lease. The question that immediately arises is whether there was a categorical admission and/or finding that the beneficiaries received rent paid to the 3rd respondent by the 1st respondent. Here again, the answer to this question cannot have been difficult if the 2nd appellant, who is alleged to have received such rents, had testified. Unfortunately, and for reasons which must “raise an eyebrow” he did not testify. The learned trial Judge made the following finding of fact on this question –
“With regard to the first defendant/company ….. they (sic) did not … show that they paid any rent thereunder (my note: under the lease). The State Administrator-General did not come to show that he accounted for the proceeds of the lease to the beneficiaries.
– (Note: italics mine)
Without showing that this finding is wrong, the court below (Per Kolawole, J.C.A. observed as follows:-
“The lease which the plaintiffs claimed is a nullity was brought into life at the instance of the 5th defendant who took the representative of the appellant to the Administrator-General. The lease was executed on 23 September 1971 Exhibit C at an annual; rent of 1,800pounds (N3,600) with effect from 1st day of January 1971. The rent of 3,600pounds (N7,200) was paid for two years. There is no evidence that the Lessee ever defaulted in the payment of rent for those nine years.”
No where in this observation or any where else in his judgment or that of his brother Justice Uthman Mohammed, J.C.A. was a categorical statement made that the beneficiaries, particularly the appellants, received any portion of 1st respondent’s rent. Nnaemeka-Agu, J.C.A. (as he then was) in his judgment faced the issue squarely in an incisive analysis of the evidence led and the arguments of both sides stating that:
“It was also submitted on their behalf that they (plaintiffs) derived a benefit from the lease by enjoying the rents. So, in accordance with the maxim: ‘qui senti Commondum sentrie debet et onus” the who derives advantage ought to sustain the burden), it would be inequitable to now revoke, or set aside the lease. It was therefore submitted that learned Judge was wrong to have made an order of injunction in the circumstances………The learned Senior Advocate for the appellant further argued that as the plaintiffs were in receipt of the rents from the transaction from the appellant it would be inequitable and unreasonable to allow them to now say that the lease was a nullity or for the lower court to have granted them the relief they claimed. Unfortunately the learned trial Judge did not find that the plaintiffs received rents accruing from the premises in dispute from the 3rd defendant. The evidence given at the trial was that there were three buildings, apart from the one occupied by the 20th Century Press, on the land in dispute. Indeed Mrs. Bishop, 2nd plaintiff, after describing all these buildings on 125A Apapa Road said:
‘It is not correct that with the lease, we are also to collect money from the Administrator-General. We first collected money in 1979, and the money was remitted by the Ministry of Defence occupying 127 Apapa Road.The second occasion was a cheque recovered by Mr. Desalu in 1976. I did not know at the time that there was a lease’.
And the 5th defendant stated:
‘I received my share of the rents from the Administrator-General. I do not know whether it was rents from the 1st defendant. There were other rents. I collected my own share about 2 or 3 years ago. I suppose the other beneficiaries must have collected their own share from the Administrator-General.
‘Thus the 5th defendant knew only of the collection of his own rents and could not swear positively that the other beneficiaries (respondents) collected their own. Even in respect of his own, he did not say that it was rent accruing from the lease, Exh. C. The Administrator-General who could have cleared the air did not testify. It was therefore not proved that any of the plaintiffs received the rents accruing to the estate at a result of the lease. Exh. C. This state of the facts completely knocks the bottom out of the argument of the learned Senior Advocate for the appellant about the inequity of the decision” (Italics mine).
This unassailable analysis, with which I am in complete agreement answers the question asked in issue (ii)(b) thus: the beneficiaries (the appellants in particular) were not shown to have received and shared any rents paid by the 1st respondent to the 2nd respondent. Equity cannot therefore come to the rescue of the 1st respondent on the ground that they did.
Are the defences of laches and acquiescence open to the 1st respondent against the appellants It is the submission of the appellant that no such defences are available in this case against them. Firstly, because they were very inadequately pleaded, particulars thereof not being given vide Ibenwelu v. Lawal (1971) 1 All N.L.R. 23 (26): where Ademola C.J.N stated that
“It is trite law that all equitable defences must be pleaded fully and with due particularity”
Secondly, that there are no facts to sustain the plea in this case, laches and acquiescence are pleaded in paragraphs 5 and 8 of the Statement of Defence of the 1st appellant thus:-
“5. The 1st defendant avers that the plaintiffs are guilty of laches, acquiescence and of standing by when the suit M1207/66 was fought by the Administrator General and Public Trustee of the Lagos State for mismanagement by the 4th and 5th defendants.”
“8. This defendant avers that the plaintiffs are guilty of laches and that the 1st defendant shall rely on all equitable defences at the trial of this case.”
Suit No. M/207/66 was instituted by the Probate Registrar(not the Administrator-General or the Public Trustee) at the instance and instigation of the 2nd appellant (she so testified and it was not denied) against her sister and brother the 4th and 5th respondents, for the mismanagement of the Estate. She made a complaint in her capacity, as a person named as an Executrix in her father’s Will.
It is therefore false to accuse all the plaintiffs of ‘laches, acquiescence and standing by” in respect of that action. All the appellants were aware that as a result of that action the 3rd respondent took over the administration of the Estate. Where therefore is the laches and acquiescence complained of Obviously more particulars are required to clearly state how those defences arise from Suit No. M/207/66. Paragraph 8 speaks for itself. It merely avers laches against the appellants and nothing more. The submission of the appellants should therefore succeed on these grounds and the answer to issue (ii)(c) must be No! Even though the pleadings are deficient the complaint of the 1st respondent on which these defences are hinged is that the appellants stood by, giving the impression that everything was alright between them as per Exhibit C whilst the Ist respondent proceeded to expend money building on the land leased a block of six flats “valued at N1.2 million.” What are the facts They are that the building complained of commenced in February 1979, eight years after Exhibit C was executed. Seven months after, on 6/09/79, the 3rd respondent wrote a strong protest letter (Exhibit D) to the 1st respondent, in which its attention was drawn to the fact that it had grossly violated the terms of Exhibit C in commencing the building complained of which ended in the following words-
….. it will be in your interest to stop the construction of the new building until the issue is determined”
Despite this stern and prompt warning, the 1st respondent proceeded to complete the building. From these facts it is abundantly clear that far from the 3rd respondent standing by and/or closing its eyes to the building operations of the 1st respondent, 3rd respondent told it without delay to discontinue building. There was therefore no delay or acquiescence on the part of the 3rd respondent. Nor do these facts justify a plea of laches because without delay there can be no laches. There is therefore no delay or lapse of time which can sustain a plea of laches or acquiescence vide Lindsay Petroleum Co. Hurd (1874) L.R.5 P.C. 221 (239/240): Taylor v. Kingsway Store (1965) 1 All N.L.R. 19 (22). Were there such delay the court will have to further consider whether it would be unjust to grant a remedy to the appellants because of their conduct which constitutes a waiver or neglect of their right vis-a-vis the 1st respondent, and which if granted, would put them into a very difficult position vide Ramsden v. Dyson (1856) L.R.I.A.L where the principle of laches is simply explained thus:
“If a stranger begins to build on my land supposing it to be his own. and I. perceiving his mistake, abstain from setting him right, and leave him to persevere in his error. a court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that when I saw the mistakes into which he had fallen, it was my duty to he active and to state my adverse title; and that it would he dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might hare prevented.
But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land, and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights:’ (Italics mine)
The 3rd respondent was vigilant and active in fulfilling his obligations but the 1st appellant treated his warning with contempt. Equity clearly cannot come to his aid in such circumstances. Appellants counsel has in his brief set out certain elements which must be present before the defences of laches and acquiescence can avail the 1st respondent. These are-
(i) the 1st defendant must show that he was in fact mistaken as to his own rights over the land:
(ii) the 1st defendant had, in reliance on his mistake expended money on the land;
(iii) the plaintiffs must know of the existence of their own right which is inconsistent with the right claimed by the 1st defendant over the land;
(iv) the plaintiffs must know of the mistaken belief of the 1st defendant of his right;
(v) the plaintiffs must have encouraged the 1st defendant in his expenditure of money”
Vide Wilmot v. Barber 15 Ch.D.96. I agree with him that not one of these elements have been shown to exist.
The third (iii) and last issue raised by the appellant for determination relates to the order made by the learned trial Judge on appellants second head of Claim as follows:-
“that the State Administrator-General do vest the premises at 125 Apapa Road including the property in dispute on the devisees in accordance with the provisions of paragraph 5 of the Will”
In paragraph 5 of his Will the testator had directed that his landed property at Apapa Road (which includes the land in dispute) should be made over (i.e. vested on) his children – all the beneficiaries – when the youngest of them attained the age of 18 years. The year at which this vesting should have taken place, as found earlier is 1967, five years before Exhibit C was executed. The court below reversed the order of the trial Court mainly on the ground that since:- “the learned trial Judge has rejected the claim, of the plaintiff that the lease was for a period of 30years, that the vesting of the properly in the devisees must be postponed until the expiration of the lease” (Per Kolawole. J.C.A.)
The learned appellate Justice gave no other reason in support of this conclusion. Appellant’s counsel has submitted that this decision cannot be supported because even if the lease is a nullity, the vesting can exist, subject to it; and that as the lease is a nullity the decision of the High Court “was correct either way”.1st respondent’s counsel in it’s brief has supported the decision of the court below stating that since Exhibit C is not a nullity and the parties thereto are still bound by it’s term no devise of any term or interest in the property shall be made to any third party or person contrary to provisions of Exhibit C.
I am unable to appreciate the linkage between the term of the lease and the undisputed right of the beneficiaries to have the properties vested in their names; a right which accrued in 1967 and has not been given to them for 17 years (1967 to 1984) It has not been suggested that vesting the property in the beneficiaries will in any way attenuate whatever rights the 1st respondent has in the property in dispute, were it not a nullity. The submission of appellants’ counsel is therefore very well taken and the decision of the court below cannot be supported.
The order of the trial court is hereby affirmed subject to the word convey being substituted for the word vest set out in the second line of my rendering thereof above. I agree with appellants’ counsel that the vesting follows the conveyance, by operation of law. There should be no difficulty in carrying out this order since 3rd respondent had always expressed its willingness to transfer the Estate to the beneficiaries “as soon as an order is obtained from a court of law to that effect” (paragraph 13 of its statement of defence refers). The answer to Issue (iii) as set out is therefore in the negative.
Finally, I wish to comment very briefly on the 1st respondent’s single issue for determination set out earlier. First of all, the claims of the appellants are not all the subject of the exercise of “judicial discretion judicially exercised” by the Court of Appeal. Most of them raise issues of law which were canvassed at the court of trial and on which the decisions of that court should and were based. In seeking the help of Equity, submissions have been made which suggest that the effect of conveying the property to the appellants will be an unmitigated disaster to a respondent whose conduct has been impeccable.
The facts however appear to lead to an entirely different conclusion. Exhibit C devised the property in dispute to the 1st respondent for 30 years, a term which ends on the 23rd of September 2001, i.e. 9 years from now. It has used the property for 21 years at an outrageously low rent of N3,000 per annum for several acres of land and a building in Bricktied/Apapa Road, Lagos. It chose to commence building on the land after its lease had run for 7 years with 23 years to go. Even if it hoped to have a renewal for to further years, the total number of years it would use the land as of right, would be 33 years. On this basis it committed itself to putting up a building which it said was worth N1.2 million at the time of the trial.
This means it obviously expected to be in a position to negotiate for vastly increased rent at the end of its term so as to be able to continue using the property. But a reading of Exhibit D shows that there is no way it could have had a renewal having regard to the multifarious and patent breaches of Exhibit C which it had deliberately committed! It is therefore only 9 years that it could have stayed on the land “as of right”. Having regard to the very low rent it has been paying, and the various breaches set out in Exhibit D, the orders made, apart from being legally correct. are equitable. If it wants to continue using the property for its business, it knows what to do. The 1st respondent’s only issue must therefore be answered emphatically in the negative.
All the issues canvassed having been found in favour of the appellants, this appeal is hereby allowed. The judgment of the court below is hereby set aside together with its order as to costs. and the judgment of the trial court is hereby restored subject to the slight amendment to its order on the appellants’ Claim 2 set out earlier. The appellants are entitled to the costs of hearing in the court below and in this Court which I assess at N700.00 and N1,000.00 respectively.A. G. KARIBI-WHYTE, J.S.C.: I have had a preview of the judgment of my teamed brother Uche Omo, J.S.C, in this appeal. I agree entirely with his reasoning therein and the conclusion allowing the appeal.
I abide by the costs awarded in my learned brother Uche Omo’s judgment.A. B. WALI, J.S.C.: I have read in advance, a copy of the lead judgment of my learned brother, Uche Omo, J.S.C, and I endorse his reasoning and the conclusion for allowing the appeal.
For those same reasons, I do hereby allow the appeal and abide by the consequential orders made in the lead judgment of my learned brother. Uche Omo, J.S.C. including that of costs.I. L. KUTIGI, J.S.C.: I have had a preview of the judgment of my learned brother Omo, J.S.C, just delivered.
I agree with his reasoning and conclusions. The appeal is allowed with costs as assessed in the lead judgment.E. O. OGWUEGBU, J.S.C.: I have had the privilege of a preview of the lead judgment of my learned brother Omo, J.S.C. I entirely agree with his reasoning and conclusion. The minority judgment of Nnaemeka-Agu, J.C.A. (as he then was) put the matter much more clearly and it is hereby upheld.
The appeal is allowed by me and I abide by all the consequential orders including those as to costs contained in the lead judgment.
Appeal allowed.
SC.77/1988
