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10TH MARCH, 1959

F.S.C. 155/1958






LIONEL BRETT, F.J. (Read the Judgment of the Court)









Mr. Balonwu, M.O. -for the Appellant.

Mr. Okorodudu, M.E.R. -for the Respondents.



REAL ESTATE/LAND LAW – CONVEYANCE:– Power of attorney – When not under seal – Con­veyance in exercise of power – Ratification by executors of donor of power – Effect.

REAL ESTATE/LAND LAW – BREACH OF COVENANT:- Waiver of breach of covenant – Onus of proof thereof – Where it lay.

REAL ESTATE/LAND LAW -LANDLORD AND TENANT – Landlord with defective title serving notice of breach of covenant – Validity of notice.

REAL ESTATE/LAND LAW -LANDLORD AND TENANT- Lease – Covenant to fence demised premises – Where onerous – Relief against Forfeiture – Notice by purchaser to ten­ant of breach of covenant to fence – Validity of notice.

COMMERCIAL LAW – AGENCY – POWER OF ATTORNEY:- When not under seal – Validity thereof

ESTATE ADMINISTRATION – PROBATE:- Will – Executors of – Conveyance of deceased’s property before admission to probate – Whether permissible.

INTERPRETATION OF STATUTES:– Recovery of Premises Ordinance, Section 19(2) – Rent Restric­tion Ordinance, Section 12.







BRETT, F.J. (Delivering the Judgment of the Court):

This is an appeal by the plaintiff from a decision of the High Court of the Eastern Region, non-suiting his claim for possession of a piece of land at Onitsha of which the first respondent was tenant and the second respondent in occupation as a licensee. The first respondent company is a wholly owned subsidiary to the second.

The facts are hardly in dispute. On the 21st December, 1945, the first respondent was granted a lease of the land for 21 years at an annual rent of £40, by one Moses Nezianya, the owner in fee simple. The lease required, and received, the approval of the Governor under the Native Lands Acquis­ition Ordinance (Cap. 144) and while not precisely following any of the Forms in the First Schedule to the regulations made under section 6 of that Ordinance, it is in all essentials the same as Form B, and contains the stock covenant “to fence off the said piece of land to the satisfaction of the lessor and the Governor and to keep the same so fenced off.” By a subsequent deed entered into on the 18th February, 1955, between the first respondent and Moses Nezianya, the term was extended to one of sixty years from the 7th April, 1960, and the rent was increased to £200 per annum; the deed acknowledged the payment of £920 advance of rent for the period 1958 to 1964 inclusive. On the 12th March, 1956, Moses Nezianya executed a docu­ment under his hand entitled Power of Attorney, empowering his son. Samuel Adolphus Chike Nezianya, inter alia, to “sell, transfer, lease and re­gister in my name all my landed properties situate in Onitsha ……. and for that purpose to appear before land registries, courts and government of­fices, sign applications, deeds and other documents …..,” and this document was registered in the Land Registry in Enugu after the stamp duty approp­riate to a deed had-been paid on it. On the 18th June, 1956, in purported exercise of the authority conferred by the power of attorney, Samuel Nezianya executed a conveyance under seal in the name of his father, con­veying the land to the plaintiff for £800.

On the 7th November, 1956, the plaintiff served on the first defendant notice of the assignment of the reversion, together with a notice under sec­tion 14 of the Conveyance and Law of Property Act, 1881, calling on the first defendant to remedy the breach of the covenant to fence off the land and keep it fenced by building walls of cement blocks along the eastern and west­ern boundaries within three months. The first defendant replied through its solicitor, pointing out that the power of attorney under which the con­veyance to the plaintiff purported to be executed was not given under seal, and could not empower the holder to execute any document required to be under seal; it might have been added that even if the power itself had been under seal it only empowered the holder to sign deeds, not to “execute” or “seal” them. On this ground it was disputed that the plaintiff had any authority to give the notice dated 7th November. This protest was evidently re­garded by the plaintiff and his advisers as having some force, since on the 18th January, 1957, two persons describing themselves as the executors of the will of the late Moses Adolphus Nezianya executed a document under seal ratifying the conveyance to the plaintiff, and this document was also re­gistered in the Land Registry. After the execution of the ratification the plaintiff addressed further notices by registered post to the first defendants, but the letters were returned undelivered. On the 9th April, 1957, the plain­tiff applied for the summons which instituted the present proceedings, claiming possession on the ground of failure to comply with notice of breach of covenant, denial of the plaintiff’s title, and a further breach of covenant in that the first defendant parted with possession to the second defendant. The defendants in their statement of defence disputed the validity of the con­veyance to the plaintiff and of the ratification, denied a breach of the coven­ant to fence, and in the alternative pleaded acquiscence, or alleged that the breach had been remedied. They further denied (correctly) the existence of any covenant not to part with possession, and by an amendment allowed at the trial they pleaded the Statute of Limitations.


The first ground of appeal was that the Judge erred in law in holding that the conveyance to the plaintiff was invalid in law, and the appellant re­lied in the first place on section 126 of the Evidence Ordinance, which pro­vides that:­


“When any document purporting to be, and stamped as, a deed, appears or is proved to have been signed and duly attested, it is presumed to have been sealed and delivered although no impre­ssion of a seal appears thereon.”


and argued that this raised a presumption that the power of attorney was sea­led. The short answer to this is that the power of attorney does not purport to be a deed: it is expressed as having been signed by the donor, but not as hav­ing been sealed, and it contains no expressions indicating an intention to enter into a deed under seal, indeed the bare reference to signing deeds suggests that the donor, or whoever drafted the document, was unaware that a deed was required to be under seal.


In the alternative, the appellant relied on the decisions in Ball v Dunsterville (1791) 4 T.R. 313 and R. v Longnor (1833) 4 B. & Ad. 647 and submitted that as the conveyance was executed in the presence of the donor of the power his authority under seal was not necessary. Neither of those cases is an exact parallel, since in each of them it was sufficiently proved that the intention of entering personally into a deed was in the mind of the per­sons on whose behalf someone else went through the physical processes. In the present case, although the conveyance is in the name of the donor of the power of attorney, the holder of the power has executed it in his own name and in professed reliance on the authority conferred by the power of attor­ney; furthermore, the appellant’s own evidence was that the donor of the power was aged about ninety, and I am not prepared to assume that every­thing done in his presence was done with his knowledge and consent.


The requirements of the common law relating to the execution of docu­ments under seal might not unreasonably be described as highly technical. It may be that the affixing of a seal is not regarded by the ordinary man in Nigeria today as conferring any greater force on a document than the signing of his name, and there is some indication in this case that the donor of the power of attorney intended to give as ample an authority as possible to the grantee, but it is not for the Court to relax the rules of law which govern the subject and in my opinion the Court below was right in holding that the con­veyance was invalid in law. As regards the ratification given by the executors, we were informed that even at the date of the hearing of the ap­peal the will appointing them executors had not been admitted to probate. The purported conveyance, coupled with the payment of the purchase money, had undoubtedly conferred an equitable interest on the appellant, and the executors could themselves have conveyed the property even before probate; see Land Transfer Act, 1897, section 2(2).In my view, they also had whatever powers the testator himself possessed of ratifying the act of his agent. Before probate, however, I do not consider that the Court should give any final judgment which involves treating anything done by them as if it had been done by the personal representatives of the deceased, and if the case turned on the validity of the plaintiff’s title after the deed of ratification was entered into, the correct course would, in my view, have been to ad­journ the hearing until the application for probate had been determined. See Meyappa Chetty v Supramanian Chetty (1916) 1 A. C. 603, 608-9. However, so far as the plaintiff’s case depends on the failure to comply with the notice of breach of covenant, it is his title in November, 1956, that is important, and for the purpose of the other grounds on which he claims possession it is also unnecessary on the view which I take of them to consider the effect of the deed of ratification.


The second ground of appeal was that the Judge erred in law in holding in effect that the first defendant did not deny the plaintiff’s title. As to this, if I am right in holding that the conveyance did not confer a good title on the appellant, his notice of assignment of the reversion in November, 1956, was based on a bad title, and nothing done in denial of that title could cause a for­feiture. After the defendants had been informed of the deed of ratification – it was submitted that they must be deemed to have known of it as soon as it was registered, but I am unable to accept that submission – their solicitor did, it is true, write to deny that it validated the appellant’s title, and in the pro­ceedings in the Court below and in this Court they have continued to dispute the legal effect of the various documents which are in question. This, in my opinion, they are entitled to do without incurring a forfeiture. The facts here are quite different from those in Vivian v Moat (1881) 16 Ch.D.730, on which the appellant relies, and I do not regard anything the respondents have done as amounting to an act of forfeiture. In my view, therefore, the appellant fails on this ground also.


The third and fourth grounds of appeal concerned breach of the coven­ant to fence the land and keep it fenced, and were argued together. Since the applicant relied on the notice to repair the breach given in November, 1956, when he had no valid title to the land, the question, whether there was a breach, and, if so whether it was waived, does not, strictly speaking, arise, but I shall express my opinion on it. It is common ground that at the eastern end of the piece of land, which adjoins another piece of land occupied by the respondents, or one of them, there is no kind of fence, and that on the other sides it is, at best, incompletely fenced. The respondents say that if there has been a breach it was of the covenant to fence within three months and took place in 1945, and that that breach having been waived the appellant cannot rely on a breach of the covenant to keep fenced, and they cite Stephens v Junior Army and Navy Stores (1914) 2 Ch. 516. The appellant says that there is no evidence of a breach of the covenant to fence in the first place, or, if there was such a breach, that his predecessor in title knew of it. It is true that the evidence one way or the other is extremely scanty, and that the onus of proving a waiver, or of establishing a defence under the Statute of Limita­tions, rests on the respondents, and we cannot act solely on assumptions. We may, however, take cognisance of the fact that the covenant to fence was in­serted as a matter of course to fulfil a statutory requirement, and we may use our own knowledge to found a doubt whether the original lessor or the Gov­ernor cared if it was complied with or not; it is in evidence that the west side of the land abutted on the street, and the south side on the market, in a town where Moses Nezianya was a trader and at the time of his death held a chief­taincy title, and that the appellant himself knew there was no fence there be­fore he agreed to purchase the reversion. To me the conclusion is irresistible that Moses Nezianya knew of and waived the breach.


Even if I had not come to this conclusion, I should have been prepared, in the circumstances, to grant a relief from forfeiture on terms. The appel­lant’s demand for the erection of wall fences of cement blocks five or six feet high, and without a gate on the eastern side, was wholly unreasonable, and it would be the negation of equity to enforce a forfeiture for failure to comply with it.


On every ground, therefore, the appeal fails, in my opinion, and I would dismiss it. It remains to consider the notice given by the respondents, asking that the judgment be varied by substituting a dismissal of the appel­lant’s claim for the non-suit. The respondents based this application on sec­tion 19(2) of the Recovery of Premises Ordinance, (Cap. 193), which pro­vides that where a claim for possession under that Ordinance fails it is to be dismissed. The claim in the present case did not purport to be brought under the Recovery of Premises Ordinance, and in my opinion was not so brought. Where the Increase of Rent (Restriction) Ordinance (Cap.93) applies, the effect of section 12 of that Ordinance is that possession of controlled pre­mises can only be obtained by an order under the Recovery of Premises Or­dinance, but there is nothing in the latter Ordinance to say that it provides the only means by which possession may be obtained in the ordinary case and section 8, which deals with the length of notice to be given, is clearly in­applicable to a lease for a term of years or to a claim for forfeiture. Section 10 of the High Court Law, 1955, of the Eastern Region gives the High Court all the jurisdiction, powers and authorities vested in the High Court of Justice in England, and the Sheriffs and Civil Process Ordinance (Cap.205) and the rules of court made thereunder provide for the enforcement of a judgment for possession given otherwise than under the Recovery of Premises Ordinance. In my view this was the basis of jurisdiction in this case, and I would, therefore, hold that the respondents have no statutory right to a dismissal of the action. However, on the view I take of the various grounds on which pos­session was claimed the proper judgment would be a dismissal of the action and I would vary the judgment accordingly.


The appellant having failed in his appeal and the respondents having succeeded in their application, though not on the grounds relied on, I would award the respondents, who were represented jointly, costs assessed at 30 guineas.


ADEMOLA, F.C.J.: I concur.


MBANEFO, F.J.: I concur.


Appeal Dismissed



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