MOSS V. KENROW (NIGERIA) LIMITED (1992)

Background

Noel Wilfred Moss died on 1956-05-28, leaving a will under which his landed property, including premises at No. 125A Apapa Road, Lagos, was to be conveyed to his beneficiaries when the youngest child attained the age of eighteen. Probate was initially granted to two of his children, but they were removed from the administration of the estate by court order on 1966-11-07 following proceedings concerning mismanagement. The Federal Administrator-General then assumed control, and the Administrator-General of Lagos State subsequently continued the administration.

On 1971-09-23, a deed of lease was executed in favour of Kenrow (Nigeria) Limited for a term of thirty years, with an option to renew for a further ten years. The deed was executed by the Public Trustee, although the estate was under the administration of the Administrator-General. The lease concerned part of the testator’s property, described in the proceedings as No. 14 Brickfield Road, forming part of the Apapa Road estate. The beneficiaries challenged the lease, contending that it was void because all beneficiaries had not consented and because the Public Trustee lacked authority to execute it.

The High Court, Lagos, declared the lease a nullity, ordered the Administrator-General to convey the premises to the devisees and granted an injunction restraining trespass. The Court of Appeal, by a majority, reversed that decision and dismissed the beneficiaries’ claims. The beneficiaries appealed to the Supreme Court.

Issues

1. Whether Exhibit C, the deed of lease, was void because all beneficiaries had not consented to the transaction.
2. Whether the lease was void because it was executed by the Public Trustee rather than the Administrator-General.
3. Whether the beneficiaries were prevented by consent, receipt of rent, laches or acquiescence from challenging the lease.
4. Whether the presumption of regularity under section 149 of the Evidence Act validated or protected the transaction.
5. Whether the order directing conveyance of the property to the beneficiaries should be postponed until the expiry of the purported thirty-year lease.

Ratio Decidendi

The Supreme Court unanimously allowed the appeal. The Court held that once the property had become due for devise under the will, the Administrator-General occupied the position of a bare or passive trustee. Although the beneficiaries could require the Administrator-General to grant an interest in the property to a third party for consideration, such a grant could only be validly made with the consent of all beneficiaries. The evidence established that only some beneficiaries had been consulted or had consented. In particular, a beneficiary resident abroad was unaware of the transaction, and the company’s own evidence showed that it dealt principally with Sidney Moss.

The Court further held that the offices of Administrator-General and Public Trustee were legally distinct. The Administrator-General’s office was created under the Administrator-General Law of the Western Region, while the Public Trustee’s office was governed by the Public Trustee Law. Section 6 of the latter statute empowered the Public Trustee to act as an ordinary trustee, custodian trustee or trustee appointed by the court; it did not confer the functions of an Administrator-General. Consequently, the Public Trustee had no locus to execute the lease and Exhibit C was defective and void.

The Court rejected reliance on section 149 of the Evidence Act. The presumption that official acts have been regularly performed is rebuttable and cannot validate an ultra vires act. It was particularly inappropriate where the parties stood in a fiduciary relationship or where the third party knew, or could reasonably have discovered, the relevant facts. Kenrow failed to obtain legal advice to verify the authority of the signatory and bore the consequences of signing a defective document. A document executed by a person without authority does not become valid merely because the parties acted upon it.

Court Findings

The alleged estoppel based on the consent of former executors was unsupported by the evidence. The former executors had been removed from office years before the lease and had no demonstrated authority to represent all beneficiaries. The Court also found that the respondents failed to prove that the appellants received or shared rent paid under Exhibit C. The Administrator-General, who could have clarified the accounting, did not testify.

The defences of laches and acquiescence were both inadequately pleaded and factually unproven. Equitable defences must be pleaded fully and with particularity. Moreover, there can be no laches without delay. The Administrator-General had promptly warned Kenrow in a letter dated 1979-09-06 to stop construction because it had breached the lease. Kenrow nevertheless continued building. The necessary elements of laches and acquiescence—including mistake as to rights, expenditure in reliance on that mistake, knowledge by the plaintiffs of the mistake and encouragement of the expenditure—were not established.

The Court also held that the beneficiaries’ right to have the property conveyed to them arose in 1967, when the youngest child attained eighteen. That right could not properly be postponed until the alleged lease expired in 2001. The order of the High Court was therefore restored, with the word “convey” substituted for “vest” in the relevant relief.

Conclusion

The appeal was allowed. The majority judgment of the Court of Appeal was set aside, and the judgment of the High Court was restored subject to the amendment concerning conveyance. The appellants were awarded costs of N700 in the Court of Appeal and N1,000 in the Supreme Court.

Significance

Moss v. Kenrow is an important Nigerian authority on the limits of administrative authority in estate management. It confirms that the Administrator-General and Public Trustee are separate statutory offices and that a person acting without the necessary legal authority cannot confer a valid title or lease. The decision also explains that presumptions of official regularity are rebuttable and cannot cure substantive want of authority. In addition, it provides a clear statement of the pleading and evidential requirements for relying on laches and acquiescence, particularly where a party knowingly continues construction after receiving a warning that its occupation or development is disputed.