Cedric Moss & Ors Vs Kenrow (Nigeria) Limited & Ors (1992)

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U. 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.