Diab Nasr & Anor V. Antoine Rossek (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

The plaintiff, a general merchant and hotelier, is the brother-in-law of Diab Nasr,the 1st defendant who is married to his sister. The second defendant is a nephew of the 1st defendant and was at all material times an employee of the 1st defendant.

On 17th August, 1962, both the plaintiff and the 1st defendant, by virtue of a deed of lease dated 13th November, 1959 became the co-lessees of a property at No. 194 Broad Street, Lagos, which they had leased for a term of 75 years at a yearly rent of 600(pounds). Earlier, on 1st October, 1961 they had also jointly taken a lease of the adjoining property at No. 196 Broad Street, Lagos, for the same term of 75 years at a yearly rent of 150(pounds).

At the time of these transactions, the plaintiff already owed the first defendant the sum of 4,300(pounds). Being in need of more money, he asked the 1st defendant for a further loan of 1,500(pounds). As the plaintiff’s total indebtedness had now reached the sum of 5,800(pounds), the first defendant asked the plaintiff for a security. In reply, the plaintiff undertook to mortgage to the 1st defendant his half shares in the two properties to which we had earlier referred. This undertaking was reduced into writing as shown in the document dated 20th November, 1961, (Exhibit C) which reads

“I, the undersigned Antoine Rossek, hereby declare that as I am partner with Mr Diab Nasr on properties situated at Nos. 194 and 196 Broad Street, Lagos, that I am willing to mortgage my share of those properties to Mr Diab Nasr, that we have an outstanding account and plus a cheque to K.L.M. to be paid by Mr Diab Nasr, later we should verify the account and settle the whole account before end of November, 1961.

(Sgd.) A. ROSSEK.

Soon after receiving this document, the 1st defendant requested the plaintiff to execute in his favour a power of attorney to enable him to mortgage or lease the plaintiff’s interest in their joint properties in order to raise money if and when the need arose. The plaintiff agreed. Two days later, the 1st defendant telephoned the plaintiff to say that the power of attorney dated 29th November, 1961 (Exhibit D) was ready for execution. The plaintiff asked the 1st defendant to send him the power of attorney which he did. When it was brought to him, the plaintiff signed the power of attorney without reading the contents, but still believing that it was for the purpose of mortgaging or leasing his interest in the properties. In actual fact, the power of attorney gave the 1st defendant the power to sell the two properties at any price which he might deem fit, to complete such sale, and to receive all monies arising therefrom. For some inexplicable reason, the 1st defendant was in the same document also given the power-

“to rescind or agree to the modification or cancellation of any such contract of sale of the premises aforesaid.”

Pursuant to this power of attorney, the 1st defendant by a deed dated 21st November, 1962 (Exhibit E), assigned the plaintiffs undivided share of the leasehold interest in No. 194 Broad Street, Lagos, to the 2nd defendant for 2,500(pounds). The 2nd defendant, it will be recalled, is the nephew and employee of the 1st defendant. Within four months of the purported assignment to the 2nd defendant, the 1st defendant obtained from the second defendant another power of attorney dated 14th March, 1963 (Exhibit F), which gave the 1st defendant wide and absolute powers of disposition of the said leasehold interest of the 2nd defendant in the said property. Three months after the grant, that is on 5th July, 1963 and purporting to act under this second power of attorney (Exhibit F) which he had obtained from the 2nd defendant, the 1st defendant, for himself as the owner of one half undivided share and for the 2nd defendant as owner of the other half, granted a sublease of the property at No. 194 Broad Street, Lagos, to one Edward Bouari (3rd P/W) for a term of five years from 1st June, 1963 at a yearly rent of 2,500(pounds).

When the plaintiff did not receive any notificaiton from the Lands Registry regarding the lease to Bouari, he became suspicious. As a result, he went to the Lands Registry where he discovered, for the first time, that his half share in 194 Broad Street, Lagos, had been transferred to the 2nd defendant. He thereupon commenced proceedings in the Lagos High Court in Suit No. LD/241/68 wherein he claimed against the defendants in his amended writ of summons:-

“(i) an order rectifying the Register of Titles No. LO 1704 by deleting therefrom the name of the 2nd defendant as proprietor of one half undivided share in the leasehold interest originally owned by the plaintiff and substituting therefor the name of the plaintiff;

(ii) an order setting aside the deed of transfer dated the 21st day of November, 1962 and registered under Title No. LO 1704;

(iii) an order setting aside the power of attorney dated 29th day of November, 1961 and registered as No. 45 at page 45 in Volume 1187 and directing the 1st defendant to deliver the same up for cancellation.”

In his amended statement of claim, the plaintiff averred in paragraph 10 thereof that his signature to the power of attorney was obtained by “false and fraudulent representation of fact” and that it was therefore void. He further averred in paragraphs 12, 13, 15 and 16 of the amended statement of claim as follows:-