MURPHIS BURGER LIMITED & ANOR v. AKIN PETER THOMAS & ORS (2019)

MURPHIS BURGER LIMITED & ANOR v. AKIN PETER THOMAS & ORS

(2019)LCN/13117(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of April, 2019

CA/L/213M/2011

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

1. MURPHIS BURGER LTD
2. MURPHY OKOJIE Appellant(s)

AND

1. AKIN PETER THOMAS
2. LT. COL (MRS.) CHRISTIANA ADEREMI SMITH
3. MRS. ADJU LAWRENCE
4. MRS. HELEN OYE Respondent(s)

RATIO

PRINCIPLES OF LAW RELATING TO POWER OF ATTORNEY TO CONVEY AN INTEREST IN LAND

When dealing with the Principles of law relating to power of attorney to convey an interest in land, the Court held in the case of FARMERS SUPPLY CO (KDS) v MOHAMMED (2009) LPELR -8196 (CA) thus;
“I agree; the Respondent himself conceded that a Power of Attorney is not an instrument that transfers or alienates any title. It is merely an instrument that delegates powers to the donee to stand in the position of the donor and do the things he can do – see Ude V. Nwara (supra) where the Supreme Court held as follows- “A Power of Attorney – is not an instrument which confers, transfers limits, charges or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is alienation.” (Highlight mine) See also Ndukauba V. Kolomo & Anor (supra) where Pats-Acholonu, JCA (as he then was) elucidated on this as follows -“It is erroneously believed in not very enlightened circles particularly amongst the generality of Nigerians that a Power of Attorney is as good as a lease or an assignment. It is not whether or not it is coupled with interest. It may eventually lead to execution of an instrument for the complete alienation of land after the consent of the requisite authority has been obtained.” PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT THE ISSUANCE OF A OWER OF ATTORNEY BY ITSELF TRANSFERS THE RIGHT AND TITLE OVER A LAND TO THE DONEE

Thus, the issuance of a Power of Attorney does not by itself transfer the title or rights over the land to the donee, it is only after the donee may have utilized the Power of Attorney to convey the land to any person including himself that there will be alienation. As Pats-Acholonu, JCA (as he then was) pointed out in Ndukauba V. Kolomo (supra), the Power of Attorney may lead to the execution of the required instrument “after the consent of the requisite authority has been obtained”, which brings us to Issue 3.”
per AUGIE, J.S.C ( PP. 14-15, PARAS. B-F)
See also OKPE v UMUKORO (2013) LPELR – 21999 (CA)
“An ordinary power of attorney is revocable and automatically terminates upon the death or incapacity of the principal (donor). A look at Exhibit “A” clearly shows that it is a power of attorney which authorizes the donee to transact the specific business of developing and managing the property, warding off trespassers and affirming or defending the interest of the donor in the landed property be it in a Court of law. The donee cannot exceed the powers specifically granted by the donor. PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT GENERAL DENIAL IS SUFFICIENT TRAVERSE OF SPECIFIC AVERMENTS

In BAUCHI STATE HOUSE OF ASSEMBLY & ORS v GUYABA (2017) LPELR (CA) on whether general denial is sufficient traverse of specific averment; this Court ?held that; “A proper traverse must be a specific denial or specific admission. See Lewis Peat (NRL) v. Akhimien (1976) 1 ENR 80, Akintola v Solano (1986) 2 NWLR (Pt. 598). It is trite law that averments which are general denials, in situations where specific are required, do not amount to a proper traverse of the case of the other party and they rather amount to an admission of the case of the other party. For a traverse in pleadings to amount to a denial, it must be explicit; unequivocal and should not leave any one in doubt as to the intention sought to be portrayed. See Union Bank of Nigeria PLC v Chimaeze (2014) 9 NWLR (Pt. 1411) 166. In Kosile v Folarin (supra) the Supreme Court per Nnaemeka Agu J.S.C held that: “Where the plaintiff pleads special damages and gives necessary particulars and adduce some evidence of it without the defendant challenging or contradicting the evidence, he has discharged the onus of proof placed on him and unless the evidence adduced is of such a quality that no reasonable Tribunal can accept, it ought to be accepted. The reason is that where evidence called by the plaintiff in a civil case is neither challenged nor contradicted, his onus of proof is discharged on a minimal of proof.” See S.O Nwabuoku v P.N Ottih, (1961) 1 All NLR 487, Ugwe Ukoha & Ors. v Golden Okoronkwo (1972)1 All NLR 100 at 105. In another related case of Oando (Nig) Plc v Adijere (W/A) Ltd (2013) 115 NWLR (Pt.1377) the apex Court per Aka’ahs JSC at page 403 opined thus: “Although the evidence of the value of the burnt down truck is based on the ipse dixit of PW5, since the claim was not specifically denied and the defence did not suggest a contrary figure, minimal evidence is needed to sustain this head of claim.”
per MSHELIA, J.C.A ( PP. 34-35, PARAS. C-F). PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal flowing from the decision of the High Court of Lagos delivered on 30th January, 2002, per B ADENIJI, J against the Appellants, wherein he appealed against the judgement.

The Appellant filed brief on 7/2/14 deemed on 6/3/14 settled by Olusola Okutubo of SOLA OKUTUBO PRACTITIONERS, wherein he formulated 9 issues for determination, wit;
(1) Whether the learned trial Judge was right to hold that the averments in paragraphs 1-7 of the Amended Statement of Claim are deemed to be admitted and so need no further proof, when the Appellants specifically denied the said paragraphs?
(2) Whether the learned trial Judge was right to clothe the Respondents with Locus Standi to institute the High Court case when there was no iota of evidence in support of their claims to be children of Maria Aiyedun Samuel.
(3) Whether the learned trial Judge was right in raising the issue of validity of the Will of Jogn Menges suo moto and making a determination on it, without allowing parties to address him on the issue?
?(4) Whether the learned trial

Judge was right in raising the issue of Privity of Contract suo moto and making a determination on it, without allowing parties to address him on the issue?
(5) Whether the learned trial Judge erred in law when he held that the failure to produce the Will referred to in the recital of the Power of Attorney makes the said Power of Attorney defective when it has been duly registered according to Law and especially since the validity of the Power of Attorney was not in dispute?
(6) Whether the learned trial Judge was right in holding that the Appellants were trespassers in the property when it was clear that they were in possession and the suit was instituted before the Lease expired.
(7) Whether the learned trial Judge was right in granting full possession to the Respondents when it was clear from the evidence that the property was partly leasehold and partly Freehold and jointly owned by Maria Aiyedun Samuel and John Menges.
(8) Whether the learned trial Judge was right in awarding the sum of N250, 000.00 till judgment without basing same on any criteria?
(9) Whether the learned trial Judge reached his judgment against the

excruciating weight of evidence of the Appellants and lack of evidence of the Respondent?

The Respondents brief filed 20/7/16 deemed on 9/4/18 settled by O. A. A. Idida (Mrs) of N. ABIODUN DARIRI & CO wherein she formulated three issues;
(1) Whether the learned trial Judge was right to hold that the averments in paragraphs 1-7 of the Amended Statement of claim are deemed to be admitted and so no need no further proof, when the Appellants specifically denied the said paragraphs.
(2) Whether the learned trial Judge was right to clothe the Respondents with Locus Standi to institute the High Court case when there was no iota of evidence in support of their claims to be children of Maria Ayiedun Samuel.
(3) Whether the trial Judge did raise and address issues in his judgment which were not canvassed and addressed by the parties.

APPELLANTS ARGUMENTS
On issue 1, he referred to the amended claim of the claimant in the lower Court in paragraphs 1-7 and paragraphs 1-3 of the statement of 1st Defendant and paragraphs 1-3 of 2nd Defendant?s Statement of Defence submitted that when pleadings are traversed then the onus is on the

claimant to prove them and the only proof is documentary. That no death certificate was exhibited, no will or letters of administration to prove any kind of relationship to the said Maria.

Appellant submitted that they did not prove that they were Maria?s children and even if assumed that they are, proof of such is by certificate of death. Therefore, he submitted that, in this absence they were busybodies and they lacked the right to sue.
He urged that the issue be resolved in their favour.

The Appellant further in issue 2, queried the locus of the appellant to file the suit he relied on ALHAJI SUARA YUSUFF v YETUNDE DADA & ORS (1990) 4 NWLR (PT 146) PG 657.

He submitted further that by virtue of Section 10 of the Administration Estate Law Cap 3 Lagos State Law, 1994 the property would be deemed to be have been vested in the Chief Judge from the death until of letter administration is granted.

He argued that the trial judge invoked the principle of EXECUTOR DE SON TORT to clothe the plaintiff with locus standi to institute the case is a grave error of law. He cited YUSUFF v DADA (Supra).

The Appellants contended that it?s in issue that Maria Samuel is dead and that these were her children, and therefore needed certificate of birth, will or Letters of Administrations. He relied on Section 148 (d) of Evidence Act, LFN 1990, and now Section 167(d) of the Evidence Act, 2011. See JAMES CHIBUEZE UNOKA & ORS v MRS VICTORIA KANWULIA OFFLI AGILI & ORS (2007) 43 WRN PG 168; AUGUSTINE UDENSI v ALICE MOGBO (1976) 7 SC 1 at 20.
He urged the Court to overturn the judgement.

The Appellants? counsel contended that the lower Court was wrong in raising the validity and determination of the will suo moto.
He relied on NWANA v FCDA (2007) 26 WRN 1 SC.

He argued that the statement of claim did not mention it, although it was mentioned at address stage when he adopted the issue 2 of defence that the plaintiff also did not mention and even if he did, it went to no issue. He cited C. N. ONUSELOGU ENTERPRISES LTD v AFRIBANK (NIG) PLC (2005) NWLR (PT 940) 577 and also urged that it be resolved in its favour.
?
On the privity of contract raised, he contended that it did not arise from the pleadings or in evidence nor did it come in the evidence.

He cited EDUN v PROVOST LACOED (1998) 13 NWLR (PT 580) at 52; REAN LTD v SANGOYELE (2000) 4 NWLR (PT 653) at 468.

On the other hand, he submitted that the Appellants derived their powers from a power of Attorney given by the children of Late John Menges, who are themselves entitled to the un expired residue of the leasehold. In addition, he opined that the Appellants are valid legal representative of the John Menges.

On whether the learned Judge erred in law in holding that failure to produce the will makes the power of Attorney defective, Appellants submitted that the powers of Attorneys Exhibits E & F were duly registered in accordance with Nigerian law which stipulates that any document dealing in land in Nigeria must be by deed and registered,ALHAJI A. B. ABUBAKAR v ALHAJI A.D.WAZIRI & 3 ORS (2008) 50 WRN 164 at 186.

The Appellants submitted that there is a presumption that it was done properly and can be properly rebutted upon production of a contrary will or letters of administration showing that it was not valid, and that the Power of Attorney was registered in Nigeria. The registered power of Attorney speaks for itself and does not need

the will in the recital to be valid. He relied on Section 118 of Evidence Act.
On issue six, he submitted that it is incontrovertible that the Appellants were in possession of the property as at the time the suit was filed and the evidence of PW1 at page 76 referred to Murphy?s Burger and that any cause of action must be grounded on a cause of action as prescribed by law, he relied on SAVAGE & ORS v UWECHIA (1972) 1 ANLR (PT 1) 251 at 257.

The Appellants contend that no statutory notices was issued to the defendants as agents of John Menges. In addition, that by Exhibit E2 the supplemental deed, the consent of the Head lessor for the sublease is not needed.

On issue 7, he submitted that the plaintiffs knew that the Maria Aiyedun Samuel?s property consists of only; No. 2 Market street and 3 Williams street, they also knew that No. 5 Williams street is owned by John Menges and a building was built by him, and that judgement would give them the whole property would be one given in error, he relied onSUNDAY OLOGUN v JOHNSON FATAYO (2013) 1 NWLR (PT 1335) PG 303 at 319. He said the lower Court ought to have delineated the land based

on Exhibit D1, and referred to evidence of DW1 at page 100, which corroborated PW1?s admission and was not impeached by any contrary evidence.

Finally, he challenged the damages in the sum of N250,000 per annum till judgement, that the special damages contemplated in the form of special damages, which needs to be proved at trial .He contended that there was no evidence on record, and therefore the claim was not proved, he referred to SAIDU H. AHMED & ORS v CENTRAL BANK OF NIG (2013) 2 NWLR (PT. 1339) PG 524 at 530; OSHINJINRIN v ELIAS (1970) 1 ANLR 153; ODULAJA v HADDAD (1973) 1 ANLR 191; OLADEHIN v CTML (1978) 2 SC 23.

The Appellants contended on issue 9 in summary that, the judgement is against the weight of evidence of the Appellants based on all the issues above.

RESPONDENTS ARGUMENTS
The Respondents in opposition, submitted on the preliminary objection that the Appellants cannot maintain the appeal because the Court lacked jurisdiction, on the ground that the Appellants have no locus standi, and that the Notice of Appeal filed in 2002 was struck out as being incompetent, and that several notices have been filed before but the

latest notice upon which the brief and action is based is dated 23rd January 2013.

The Respondents submitted that the crux of the matter is that, as at the date of filing of the above notices of appeal, the Appellants were not proper parties before the Court, the notices of appeal were filed at the time the lease had expired and that as at then the Appellants had no equitable right to sue on the land.

In addition, he submitted that the Appellants were not parties to the head lease dated 12/7/1999 and came into the land by way of power of attorney donated in their favour by the executors of the late John Menges, who was a party to the Head lease. The Appellants not being parties to head lease cannot claim under the said lease especially as the subject matter of the power of attorney had ceased to exist. Counsel submitted that the trial judge was right in holding that the Appellants are not parties to the head lease and had no right to enforce or claim under same.MAKWE v NWUKOR (2001) 14 NWLR PT 733 356; AFRICAN INSURANCE DEVELOPMENT CORPORATION v NIGERIA LNG LTD (2000) 2 SC 7; TAIWO v ADEGBENRO (2011) 11 NWLR (PT 1259). He urged the Court to uphold the preliminary objection.

On the merits of the Appeal, he formulated 3 issues for determination. On issue 1, paragraph 1-7 averments of the statement of claim are deemed to be admitted and need no proof. He relied on Order 15 Rule 5 (1) & (2) of the High Court of Lagos State (Civil Procedure) Rules, 1994 but now Order 15 Rule 5 (1)& (2) of the High Court of Lagos State (Civil Procedure) Rules, 2012 and the averments did not deny the averment contained paragraph 1 – 7 that the pleading should be sufficient, comprehensive and accurate. The defendants did not specifically denial the facts in paragraph 1-7 and therefore were under no obligation to prove, he relied on OBODO v OGBA (1987) 2 NWLR 1.

On issue 2, on locus standi, he submitted that flowing from the admission of the averments in paragraph 1 ? 7 of the Respondent?s Amended statement of claim, the lower Court was correct in invoking Section 10 of Administration of Estate Law, Cap Laws of Federation of Nigeria, 1994 in favour of the Respondent, that any member of the family can bring an action to protect the family land he referred to ADEBAMBO v OLOWOSAGO (1985) 3 NWLR

(PT. 11) 207 CA; BALOGUN v AKANJI (1992) 2 NWLR CA 591; ANYADUBA v NRTC LTD (1992) 5 NWLR (PT. 243) 535; TAIWO v ADEGBORO (Supra). He relied on EDOZIEN v AMADI (1961) ANLR, where the Court defined an ?administrator de sort? tort as someone who inter – meddles with the estate of deceased person and in this case they are the children of Aiyedun Samuel Maria and had to protect the property.

On issue 3, 4 & 5 the respondents submitted that the parties had raised it in their pleadings and written address, and the lower Court had raised the issues properly without the impute of parties. Furthermore, he stated that they were points of law to be raised only at address stage and the Appellants had right of reply and not having exercised it could not complain, he referred to DUKE v ADMIN GEN CRS (2010) 15 NWLR (PT 1217) PG 442.

He contended that it was the will that linked the property to the donors of the power of attorney.

On issue 5, he submitted that from the pleadings and evidence before the trial Court, the Appellants were in possession, of the property therefore, the order for trespass was in order.

He further submitted that the Appellant derived their claim to usage of the property from the head lease and were not in themselves the owner of any part of the property, the trial Court was right. He urged the Court to uphold preliminary objection.
The Respondents on the merits of the case raised three issues as highlighted above.

On Issue 1, he argued that the Plaintiffs in the lower Court pleaded paragraphs 1-7 of the statement of claim and the Appellant/defendant in its Amended Statement of Defence in paragraphs 1-3 together with 2nd defendant?s defence in page 51 of the records reproduced below;
1. The 1st Defendant denies paragraphs 1 and 4 of the claim and puts the Plaintiffs to strict proof of the averments therein.
2. The 1st Defendant admits paragraph 2, 3 and 4 of the claim.
3. That 1st Defendant denies paragraphs 6 and 7 of the claim and puts the Plaintiffs to the strictest proof.
4. In further answer to the said paragraph to the 1st Defendant denied the existence of any such transaction as alleged at all or that consent was ever obtained or even required from the lease.
5. In answer to paragraph 2 of the said claim the 1st Defendant

avers that prior to the lease dated 13th July, 1949 the 1st Defendant avers that there were two adjoining plots of land, one fee simple of a measure known and called 3, Williams Street belonging to Late Maria Samuel and the other ………. belonging to Manguissoglou Limited. The 1st Defendant shall rely on title deed dated 10/11/90 at the trial of this suit.
6. In further answer to the said paragraph of the claim, the 1st Defendant avers that John Manguissoglou Limited assigned to the benefit in the lease dated 13/7/49 to John Manguissoglou Limited during the continuance of the terms thereby created. The 1st Defendant shall rely on a deed of assignment dated 19/9/1990 at the trial of this suit.
7. The 1st Defendant further that it was after John Manguissoglou Limited entered into a lease agreement for 50 years with Madam Maria Samuel commencing from 13/7/49 that the said company erected a building on both the leasehold and on its own freehold now known and called No 5 Williams Street, Lagos without a proper demarcation between the leasehold and freeholds.
8. In answer to paragraph 8 of the said claim the Defendant avers that the

executors of the WILL of John Manguissoglou Limited donated a power to it to manage and superintend the building now known and called No. 5 Williams Street. The 1st Defendant shall rely on the power of attorney given to it dated 23rd December, 1991 at the trial of this suit
9. In further answer to the said paragraph 7, the 1st Defendant avers that it is on the premises as a Lawful Attorney thereof and that it had no obligation to obtain consent of any one, the lessor and the Plaintiffs inclusive. The 1st Defendant shall rely on a supplemental deed to a lease entered into between Madam Maria Samuel and John Manguissoglou Limited dated 18th September, 1953.
10. The 1st Defendant denies paragraphs 8, 9 and 10 of the claim and shall put the Plaintiffs to the strictest proof thereof. Furthermore, the 1st Defendant denies receiving any such letter or at all as are mentioned in the said paragraphs 8 and 9 or altering the structure of any building as averred in paragraph 10 of the claim.
11. The 1st Defendant denies paragraphs 11,12, 13 and 14 of the claim and puts the Plaintiffs to the strictest proof thereof. The 1st Defendant further avers that no

such notice as is mentioned in the said paragraphs 12 and 13 was ever served on or received by it.
12. The 1st Defendant shall at the trial found upon and rely on various documents deeds, leases, supplemental leases, power of Attorney, agreements, contracts indentures etcetera, concerning or in any way relating to the subject matter of this suit.

The Respondents contended that they did not deny the specific averments of respondent but did a general denial which in law is deemed to be admitted. He referred to Order 15 Rule 5 (1) & 2 of the Lagos state High Court Rules, 1994 now Order 15 Rule 5 (1) & 2 of 2012, rules clearly states that general averment in a defence amounts to an admission of facts, therefore, issues have not been joined on the facts therein he referred to ATTORNEY GENERAL OF ANAMBRA STATE v C. N. ONUSELOGU ENT LTD (1987) ANLR 579; OBODO v OGBA (1987) NWLR 1.

The Respondents submitted that by giving a general denial to the averment of respondents, herein that they were children of the late Maria Aiyedun Samuel, the facts were not in issue, and therefore the learned trial judge was right.

On issue 2, he submitted that flowing from above the learned trial judge was correct in invoking Section 10 of Administration of Estate law cap 3 LFN 1994 in favour of Respondent because the major facts of being children of late Maria was no longer in issue, having admitted the facts as between the parties automatically places the respondent to institute an action before the trial Court in respect of family property. He relied on ADEBAMBO v OLOWOSAGO (1985) 3 NWLR (PT 11) 207 C; BALOGUN v AKANJI (1992) 2 NWLR CA 591 ANYADUBA v NRTC LTD (1992)5 NWLR (PT 243) 535 SC to the effect that a family member can bring an action to protect the family land.

Respondent further relied on EDOZIEN v AMADI 1961 ANLR where the Court defined an executor de sort, and that they were children of the late Maria and had the right to bring to file an action in the High Court.

The respondent further submitted on issues 3, 4 & 5 that the a judge has the power to raise issues suo moto that he feels needs to be addressed by parties, but where it can be clearly seen by from the case of the parties, their pleadings, evidence and addresses the Court is under no obligation to call parties to address on it before delivery of judgement.

He posited that the appellants had agreed that the respondents raised the issues at address stage and these were points of law which could be so raised at any stage, the appellant having failed to reply cannot complain about the findings of the Court, he referred to DUKE v ADMIN GEN CRS (2010) 15 NWLR (PT. 1217) at 442.

The Respondents also stated that the will was never in issue before the trial Court and it was referred to in course of judgement that the appellant failed to prove their root of title. In addition, the respondents posited that it fell on the Appellants to show that they were named as executors of the will and it was registered and properly admitted to probate since they as donors claimed their powers from that will.

He urged the Court to hold that the Appellants having not taken advantage of their right of reply cannot now complain.

Finally, he submitted that from the pleadings and evidence before the Court there is no doubt that the Appellants are in possession of the property hence, the Court made an order for trespass since at the time of concluding the case at the lower Court the head lease

from which Appellant?s Donor derived title had expired, he no longer had a right to title/obligation on the property.
He urged the Court to uphold the preliminary objection and dismiss the appeal.

The Appellants has 9 issues broken into smaller subjects while the respondent has three issues, the appellants issues are wide but can be compressed to match the respondents which will be subsumed in the appellant?s issues.

Therefore, I have put issues 1, 2, & 4 under one issue, while issues 3, 5, 6 & 7 into issue 2 and issues 8 & 9 are under issue 3. The appeal shall be resolved under three broad issues accordingly.

At the hearing of this appeal on 27/2/19 ,the respondent was not represented by counsel even though he was present on the last date of adjournment, the Appellant adopted its brief although they did not file any reply brief and the respondent?s brief was deemed argued under the rules of Court Of Appeal, 2016.

I shall resolve the preliminary issue raised by the Respondents in paragraphs 2.0 of their brief first.

PRELIMINARY OBJECTION
The Respondents contend that the Court lacks jurisdiction

to entertain the appeal as the Appellants lacks locus standi to prosecute this appeal and therefore have no right to exercise before this Honourable Court.

On the ground that the head lease from which the power of attorney granted to them has expired by effluxion of time on 12th July, 1999 and consequently, the Court lacks requisite jurisdiction to hear the appeal and same would amount to futility/academic exercise. The Appellants did not file any reply brief hence, did not respond to this preliminary objection.

It?s against this back drop that the preliminary objection shall be considered. The Respondents mother granted a fifty year lease of her property at no 3 Market street to one Mr John Menges (formerly John Meguissoglou) by a lease dated 13th July, 1949 which is about as at today 70 years. The lease has since expired on 12th July, 2001.
?
The said Menges upon his demised is claimed that his executors donated to the Appellants a power of attorney to manage the said property now known as No 5 Williams Street Lagos. The respondents sued the Appellants at the high Court in suit no LD/264/98 to recover possession of the said premises. The

Respondent contended that there were no parties before the appeal Court as there is no lease in existence and therefore the power of attorney automatically lapses.

In resolving the issues herein, it is not in doubt that the suit at the High Court as at the time of filing, had competent parties, the writ was filed on 13/7/1998 therefore the Court was clothed with jurisdiction, but by the time of Trial (taking evidence) and judgements the parties had changed, in that the locus standi had been withdrawn from the Appellants by virtue of expiration of the term in the head lease, which no power of attorney can enlarge or expand.

Attorney – is not an instrument which confers, transfers limits, charges or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is alienation.” (Highlight mine) See also Ndukauba V. Kolomo & Anor (supra) where Pats-Acholonu, JCA (as he then was) elucidated on this as follows -“It is erroneously believed in not very enlightened circles particularly amongst the generality of Nigerians that a Power of Attorney is as good as a lease or an assignment. It is not whether or not it is coupled with interest. It may eventually lead to execution of an instrument for the complete alienation of land after the consent of the requisite authority has been obtained.”

“A” is that the donor did not give any right to the donee in relation to title or possession of the land. That is to say, there is no power vested in the donee by Exhibit “A” to alienate title in the land. In fact the intendment of the donor was clearly stated which was to hand over the management or development of the property to the donee. In Abu v. Kuyabana supra, a case which is almost on all fours with the facts of this case, this Court held per Muntaka-Coomassie JCA (as he then was) as follows at Pg. 1156 of the FWLR: “In the instant case, the main purpose of Exhibit CA1 (the power of attorney) is to show that the attorney has the authority to initiate and conduct this case on behalf of the plaintiff. It has nothing to do with interest on the land. It is quite unnecessary for same to be registered under the Act and it is always admissible without registration.”
per OGUNWUMIJU, J.C.A (PP. 14-15, PARAS. F-E)
The terms of the attorney are at page 42 of record; thus;
?To manage and superintend the management of our property situate, lying at and known as no 5 Williams Street Lagos Nigeria.
To commence, prosecute defend answer or

oppose all actions and other legal proceedings and demands touching on the said property.
And generally to act as our attorney in relation to the property and on our behalf to execute and do all acts and things as fully and effectually in all respects, we ourselves or any of us could do if personally present.”
?The decisions cited above are that the power of attorney does not confer title, therefore the deed of indenture (assignment) at page 43 of the record between Maria Samuel and John Menguissoglou in its fourth paragraph is for 50 years from September 19, 1953 having leased no. 3 Williams Street and 2 market street to the assignor for 50 years rent of 72 pounds from 13/7/1949, at page 45 of the records.

At page 49, is the supplemental to the lease of 50 years wherein permission was granted to the said John Menguissoglou to lease the land at an increase of 864 pounds for 10 years rent payable in advance allowing them erect buildings partly on the land and partly on the adjoining land at no. 5 Williams Street.
?
It is undisputable that the head lease/assignment has now expired, and the power of attorney is no longer active and

alive, having died a natural death. In that case, can the Appellants maintain the appeal in the light of its terms of attorney? In this case no, it has ceased to have requisite authority to sue, defend and answer over the property so to speak and can longer have requisite locus which has now terminated. The Power of attorney terminated with the end of the assignment. In BALA & ORS v HASSAN (2014) LPELR-2399 (CA), it was held thus;
“It must be stated that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do certain acts specified therein, on behalf of the grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless made irrevocable in a manner known to law. Even an irrevocable power of attorney does not have the effect of transferring title to the grantee. So, power of attorney does not convey ownership. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney

and convey title on behalf of the grantor. In Innocent Obiora Nwankwo V. Comfort Agwuna (2007) LPELR-8445 (Ca), Ogebe, J.C.A., (as he then was) opined that: “.. a Power of Attorney cannot confer title on a donee. It is a mere delegation of the powers of the donor to the donee. In the case of Ude v. Nwara (1993) 2 NWLR (Pt.277) 638 at page 665 the Supreme Court had this to say on defining power of attorney: “A power of attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers limits, charges or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession…….. Also, OKORO, J.C.A, (as he then was) stated it is the duty of a Plaintiff in his suit to show by his averments in the statement of claim that he has locus standi to institute the action; else, the statement of claim will be struck out. See

Chief Irene Thomas & Ors. V. Olufosoye (1986) 1 N.W.L.R. Part 18 page 669.”
per ORJI-ABADUA, J.C.A (PP. 54-59, PARAS. B-A).
The power of attorney here is not a deed of ownership, after the head lease ceases to exist automatically the tenure of the power of attorney ends.
In JEN v LAU (2014) LPELR 24167 (CA) – This Court held on the question of who are the proper parties to an appeal?
”The appropriate parties who can exercise the right of appeal to the Court of Appeal must be the ones named in the record or who with leave of the Court are having an interest in the proceedings see the following cases:- – HARRY AKANDE & ORS VS. GENERAL ELECTRIC CO & ORS (1979) 3-4 SC PAGE 115 AT 125. – JADESIMI VS. OKOTIE EBOH IN RE-LASSEY (1989) 4 NWLR PART 113 AT PAGE 113. In view of the fact that the Appellant has failed to bring the parties on record at the lower Court before this Court and since he has not obtained the leave of the Court to discountenance the presence of the Plaintiffs at the lower Court in this appeal, therefore as the proper parties are not before this Court, the power of this Court to hear and determine this appeal is

crippled by the apparent incompetence of the Notice of Appeal and the Appellant’s Brief of Argument. See:- SAUDE VS. ABDULLAHI (1989) 4 NWLR PART 116 PAGE 387 – OMOKHODION VS. F.R.N. NO: 2 (2005) 10 NWLR PART 934 PAGE 581 AT 594 RATION 11. – P.P.A. VS. INEC (SUPRA) AT PAGES 222- 223 RATIO 4 – N.I.W.A. VS. S.P.D.C. NIG. LTD. (SUPRA) AT 314 RATIO 8.”
per BADA, J.C.A (PP. 15-16, PARAS. E-D)
Therefore, the Appellants have no interest or authority to persecute this appeal, the subject matter from which he derives title having expired; he has no locus to bring this appeal.
The preliminary objection is upheld.
Ordinarily, this should end this appeal but I shall resolve the issues on the merit.

ISSUES (1, 2, 3 & 4) 1
On the issue of whether the Appellant admitted the averments in paragraphs 1 -7 of the statement of claim, I have reproduced same below;
1. The Plaintiffs are the children of one Late Maria Aiyedun Samuel who died intestate in Lagos on the 29th day of June, 1990.
2. The said late Maria Aiyedun Samuel was seised in fee simple of a measuage known and called 3, Williams Street, Lagos and registered as LO.0987.

3. By a lease dated 13th July, 1949 and registered no LO.1815, the said late Maria Aiyedun Samuel let the same to one John Menguissoglou Limited for a term of 50 years from 13th day of July, 1949.
4. The said Maria Aiyedun Samuel died intestate on the 29th day of June, 1990 leaving surviving her the Plaintiffs who are the persons entitled to the administration of her estate on intestacy to the exclusion of any other persons under Yoruba Native Law and Custom.
5. The Leasee, John Menguissoglou Limited a company incorporated under the laws of the Federal Republic of Nigeria, has since become dormant and in no longer operating and doing any business in Nigeria.
6. Prior to the liquidation of the said John Menguissoglou Limited the said company made transaction on the property by way of assignment subleases to diverse people and companies for consideration with the consent of the Head Leasor the said Maria Aiyedun Samuel (Deceased).
7. After the death of the said Maria Aiyedun Samuel, the Plaintiffs discovered that the Defendant moved into the premises i.e No. 3, Williams Street, Lagos without the consent of the Head-Lessors or

the Plaintiffs who are the successors-in-title and Beneficiaries of the Estate intestate.
8. The Plaintiff instructed their Solicitors to write a warning letter to the Defendant warning her of the consequences of trespassing on the Plaintiffs? property.
9. The Plaintiffs solicitors wrote a letter dated 24th February, 1993 to the Defendant which the Defendant refused to acknowledge; the Plaintiffs? Solicitor also wrote a reminder dated 15th April, 1993 to the Defendant and has refused to vacate possession of the property.
10. The Defendant has altered the structure of the building by renovating it for its food and confectionary business despite the Plaintiffs? protest and warning.
11. The Plaintiffs are seized of the reversion of the property at No. 3, William Street, Lagos and are the people entitle to protect the interest accruing or pertaining to the property.
12. The Plaintiffs thought their Solicitors issued SEVEN DAYS NOTICE IN WRITING OF …….. INTENTION TO RECOVER POSSESSION
13. Notwithstanding the said Notice the said Defendant refusal to deliver possession of the said premises and still detains same.

14. WHEREOF the Plaintiffs claim possession and N500.000.00 damages for loss of use and occupation until possession is given up.
Dated the 2nd day of December, 1998
The Appellant stated thus;
?The 1st Defendant denies paragraph 1 & 4 of the claim and puts the Plaintiff to the strictest proof of the averment therein.
The 1st Defendant admits paragraphs 2, 3 & 5 of the claim.
The 1st Defendant denies paragraphs 6, and 7 of the claim and puts the plaintiff to the strictest proof.
2nd defendant Appellant at page 51 stated;
The 2nd defendant denies paragraphs 1, 4 and 11 of the Plaintiff amended statement of claim.
2. The 2nd defendant admits paragraphs 2 & 3 of the amended statement of claim.
3. The 2nd defendant is not in a position to admit or deny paragraph 5 of the plaintiff?s Amended statement of claim.

From the above, it can be seen that the defendants/Appellants were being evasive and generally traversed the pleading.

In BAUCHI STATE HOUSE OF ASSEMBLY & ORS v GUYABA (2017) LPELR (CA) on whether general denial is sufficient traverse of specific averment; this Court ?held that;

“A proper traverse must be a specific denial or specific admission. See Lewis Peat (NRL) v. Akhimien (1976) 1 ENR 80, Akintola v Solano (1986) 2 NWLR (Pt. 598). It is trite law that averments which are general denials, in situations where specific are required, do not amount to a proper traverse of the case of the other party and they rather amount to an admission of the case of the other party. For a traverse in pleadings to amount to a denial, it must be explicit; unequivocal and should not leave any one in doubt as to the intention sought to be portrayed. See Union Bank of Nigeria PLC v Chimaeze (2014) 9 NWLR (Pt. 1411) 166. In Kosile v Folarin (supra) the Supreme Court per Nnaemeka Agu J.S.C held that: “Where the plaintiff pleads special damages and gives necessary particulars and adduce some evidence of it without the defendant challenging or contradicting the evidence, he has discharged the onus of proof placed on him and unless the evidence adduced is of such a quality that no reasonable Tribunal can accept, it ought to be accepted. The reason is that where evidence called by the plaintiff in a civil case is neither challenged nor

contradicted, his onus of proof is discharged on a minimal of proof.” See S.O Nwabuoku v P.N Ottih, (1961) 1 All NLR 487, Ugwe Ukoha & Ors. v Golden Okoronkwo (1972)1 All NLR 100 at 105. In another related case of Oando (Nig) Plc v Adijere (W/A) Ltd (2013) 115 NWLR (Pt.1377) the apex Court per Aka’ahs JSC at page 403 opined thus: “Although the evidence of the value of the burnt down truck is based on the ipse dixit of PW5, since the claim was not specifically denied and the defence did not suggest a contrary figure, minimal evidence is needed to sustain this head of claim.”
per MSHELIA, J.C.A ( PP. 34-35, PARAS. C-F)
By virtue of Order 15(5)(1) of the High Court of Lagos State (civil procedure) Rules, 1994 the general traverses is deemed as admitted, therefore the appellants are deemed as having admitted the averments having not put forward a contrary position.

Furthermore, I have read his evidence, he did not question the interest of the respondents instead he harped on the power of attorney granted to him.
In the light of the above, the learned trial judge was correct.

Closely following is the invocation of executor de sort, by the lower Court, I have read the provision of Section 10 of The Administration of Estate Law L.F.N,1994 which confers right to bring an action to protect an estate or property of a deceased member from a stranger.
The respondents were not notified, even if consent was not obtained but they have an interest in the unexpired residue in the estate and seeing the appellants move to take over, they rightly challenged their authority.
The contract of lease was between their mother and the said john Menguissoglou and the appellants not being the heir or beneficiary has a duty to prove how he came into possession, by actually showing/proving that he took title from the assignee or the heirs to the assignee, the burden is on he who asserts, which is in this case the appellants, who says he needed no consent from the said family of Maria Samuel in whom lies a reversionary interest. Section 131 of Evidence Act, applies here.
On whether he who asserts possession of a land must prove same the Court in AKERELE v ATUNRASE (1969) LPELR ? 25546 (SC) held thus;
“The possession envisaged in this con must be such as would oust the title of the

original owners of the land and also such as, in the opinion of the Court, is so obvious that the owners must be taken as having accepted the claims of the possessor: (See Williams Bros. Direct Supply Ltd. v. Raftery [1958] 1 Q. B. 159). If such possession is found in the respondents in this case or in their predecessors in title, the Court must act on the law as settled that such possession would not be disturbed at the instance even of an original owner. Of course, the burden of proving such possession is on the person who asserts it …”
per FATAYI-WILLIAMS, J.S.C (P. 19, PARAS. C-F)
Therefore, it behoves on the Appellants to show how he got into possession in the light of indentures and assignments between Maria Samuel and Mr Menguissoglou.
Therefore, the Court properly clothed the respondents with locus standi in the circumstance.
Also in MOZIE & ORS v MBAMALU & ORS (2006) LPELR -1972 (SC) on whether any member of a family has the capacity to sue to protect family property without consent of other family members;
“It is good law that members of a family can sue in respect of family property. This was the position of the two

Courts below and they are right. In Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12, this Court held that a member of a family has capacity to sue to protect family property. Similarly in Babayeju v. Chief Ashamu (1998) 9 NWLR (Pt. 567) 546, this Court also held that any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest whether with the consent or without the consent of the other members of the family, for if he does not act he may find himself being held to be standing by when his ‘rights were being taken away. See also Ugwu v. Agbo (1977) 10 SC 27, Melifonwu v. Egbuji (1982) 9 SC 145; Orogan v. Soremekun (1986) 5 NWLR (pt. 44) 688; Olowosago v. Adebanjo (1988) 4 NWLR (pt. 88) 275; Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 618.”
per TOBI, J.S.C ( P. 16, PARAS. A-E)
Also on the Section 3(1), (2) and (3) of the Administration of Estates Law of Lagos State, which is similar to the Administration of Estates Law LFN, 1994 in AIRTEL NETWORKS LTD v GEORGE & 7 ORS (2014) LPELR ? 2298 (CA) the Court held;
“The starting point here is Section 3

(1), (2) and (3) of the Administration of Estates Law of Lagos State which provides thus:- (1) Real Estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this law chattels real devolved on the personal representative from time to time of a deceased person. (2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers. (3) The personal representatives shall be the representative of the deceased in regard to his personal property. Section 2(1) of the said law also defined “Personal Representative “as the executor, original or by representation or Administrator for the time being of a deceased person” What is more a similar provision of the above law was expounded and given clear interpretation in the case of OKONYIA v. IKENGAH (2001) FWLR (Pt 53) 158 AT 186 also cited by the Respondent, wherein the Court while citing with approval the case of

JOHNSON V. OGUNBI (1980) 4 C A 277 at 2999, held inter alia as follows:- “Relying on the decision of Johnson supra, having regard to the provision of Section 3 of the Administration of Estate Law, Bendel State 1976. I hold that the Respondents, as personal representatives of late George Onyechi Ikengah have capacity to institute an action in respect of the Real estate to which the deceased in this case is entitled by the operation of law, even where the letters of Administration have not been obtained. Assuming the letters of Administration are invalid, I believe they are not, the suit cannot merely be defeated for that reason alone as the law has cured the situation as rightly argued, in my view, by the learned counsel for the Respondents.”
per OSEJI, J.C.A ( PP. 23-24, PARAS. D-G)

In dealing with the issue of the lower Court raising issues suo moto, I have perused the record and find that the issue of the will was raised by the Respondents/Plaintiffs in their addresses before judgement but the appellants failed to file a reply on points of law and now cries ?wolf? at the finding of the Court. See page 116 of records under issues 2 in

the written address of the plaintiffs on privity of contract and that appellants cannot take benefit, also in issue 3 wherein the issue of will and no probate were raised, since the power of attorney is linked to them it?s the foundation of their authority, therefore, the appellants are misconceived, in querying why addresses were not called for.
Therefore I resolve issues 1, 2, 3 & 4 against the appellants.

ISSUES (5, 6, 7, 8 & 9) 2
On issue 5, the appellants relied heavily on the power of attorney issued to him by the heirs of the assignee in Exhibit E, it is expected that he would link the power given to the donor of the power to provide the link which is the will which names them as the proper heirs to the estate of the Mr. John Menguissoglou. The possession is to be proved by documents the respondents relied on documents between their mother and him therefore, to properly found his power of attorney this must be before the Court. The executors of the Will of Menges, gave the Estate to the children, this link of the Will has to be proved exhibited to show the stream of authority to enter into power of Attorney conferred on the

appellants, in the absence of these they are all strangers to the Deed of Assignment of the lease.

The effect of failure to comply with the conditions/requirements of the law on the validity of a will was laid to rest in the case of DAWODU V ISIKALU & ANOR (2019) LPELR 404633(SC);
“By the provisions of Section 1 of the Wills Law of Lagos State: “It shall be lawful for every person to bequeath or dispose by his will executed in accordance with the provisions of this law, all property by which he is entitled to either in law or equity, or at the time of his death.” This means that a person who desires to make a Will must satisfy the requirements of law for the Will to be valid, else it will be invalid. The burden, however, for the proof of validity of a document (will), the genuiness or authenticity thereof lies on the person propounding it and once this is satisfied, the burden is cast upon those attacking it: see ITA v. DADZIE (2000) 4 NWLR pt. 652 page 168. In the instant case, the respondents have made a claim in respect of their entitlements pertaining to the property on the ground that it is family property – the subject matter covered by

Exhibit TD1. Appellant denied the entitlement and asserted that there was no such entitlement, as there was a Will which had bequeathed the said property to her mother solely and with her mother’s death, she was now a sole beneficiary. It is therefore a case of communal (family) ownership against personal/individual ownership of property. Respondents therefore denied the validity of the Will, Exhibit TD1, while appellant said it was valid. It is trite law that for a will or testamentary intention of a deceased person which ought to be respected, to be given effect to, there must be absolute compliance with the requirements of the Wills law. The provisions of the Wills Law, as in all laws, where they are clear and unambiguous, must be given their ordinary and literal meaning: See Attorney General of the Federation v. The Guardian Newspaper (1999) 1 NWLR (part 618) at 187 in the case aforesaid, IGUH, JSC at page 264 had this to say: “And where the words used or the provisions of any section of the law are clear and unambiguous, they must be given their ordinary meaning unless of course, this would lead to absurdity or be in conflict with other provisions of the

law.”…..
per ONNOGHEN, J.S.C ( PP. 7-10, PARAS. F-B)
In the absence of the validity of a will, can a power of attorney be hinged on it? The answer is No. The validity of the will comes into play once an act touching on an unexpired lease is involved.
The Appellants contended that the entire property cannot be given to the Respondents.

It?s pertinent to state that a glance at the power of attorneys Exhibits E & F does not recognize or acknowledge the head lease/owner of the property and that there is a reversion at the end of the term. The term in Exhibits E & F is unlimited (see page 39 & 47 of records) contrary to Original lease in Exhibit D, D1, which made no mention of the Maria Samuel and her Estate, Heirs. It is defective in that it cannot exceed the term of the lease, granted to John Menges.
?
Flowing from the above, at this stage having found that the power of attorney is defective, it cannot stand and also cannot exceed the term created in the lease, it does not lie in the mouth of the Appellants/defendants, who therefore has no authority to claim/assert anything instead of the executors or the heirs of the will of Mr. Menges.

From the supplementary lease, it is clear they both agreed for a consideration that No. 3 Williams street and 2 Market street made up of two plots belonging to the Respondents? mother was merged with no. 5 Williams street, together as one and the said John Menges built one building on them as seen page 43 and page 45 of the records.

In addition, the Appellants did not counterclaim for the portion of the said Menges nor have they proof of heir?s authority and consent to do so. More interestingly, at the time of delivery of the judgement it was 9/7/2002, proper trial taking of evidence began in the year 11/4/2000 by which time the 50years lease between Maria Samuel and John Menguissoglou Limited had expired and therefore the appellants had nothing to urge.

Whether a power of attorney can confer title on a donee, the Court held in NWANKWO v AGWUNA (2007) LPELR 8445 (CA) thus;
“Moverover, a Power of Attorney cannot confer title on a donee. It is a mere delegation of the powers of the donor to the donee. In the case of Ude v. Nwara (1993) 2 NWLR (pt 277) 638 at page 665 the Supreme Court had this to say on

defining power of attorney: “A power of attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers limits, charges or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is an alienation. See also the cases of Abu v. Kuyabana (2002) 4 NWLR (Pt. 758) 599, Olorunfemi v. Nig. Bank Ltd. (2003) 5 NWLR (pt 812) 1 and Amadi v. Nsirim (2004) 17 NWLR (Pt. 901) 111.”
per OGEBE ,J.S.C ( PP. 4-5, PARA F)
I resolve this issue in favour of the respondents.

On the quantum of N250, 000.00 awarded as damages till judgement.

The claim of the respondents in the lower Court is for possession and N500,000.00 as damages for use and occupation of the property at No. 3 Williams Street, Lagos which is unlawfully occupied by Appellants/defendants without their consent or authority. The lower Court in its judgement awarded N 250,000.00 per annum from 30th January, 1998.

On how to calculate damages for use and occupation, the duty of the Court was stated in AP LTD v OWODUNNI (1991) LPELR -213(SC);
“In calculating the damages for use and occupation, the period is reckoned from the date of the holding over of the property. The duty of the Court is to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. The previous rent is merely a guide but is not necessarily conclusive. Where standard rent has been fixed, for a period, for two years, as in the instant case, such rent will be conclusive. After such period rent commensurate with similar premises in the same location will be a guide.”
per KARIBI-WHYTE, J.S.C ( P. 39, PARAS. B-D).
The initial rent was paid 10 years upfront in the sum of 72 pounds and later increased by a supplemental deed

in 18th July, 1959 to 86.6pounds per annum see page 49 of records, the appellants moved into the premises in about 1993, and the appellants had leased same to others but he only had about 6years of unexpired lease years before reversion.
There is no dispute that the appellants has been in occupation till date. Its trite that the loss of use and occupation is a term used in special damages which is strictly proved. In this case, the lease is to expire on July 1999, therefore the issue of loss of use and occupation has not arisen legally the lease of John Menegs was in operation and the respondent cannot claim for what was presumed paid for by Menegs. The lower Court was in error even if the appellant?s title was defective.
Legally such a claim should run from the expiry date of the lease which is July, 1999 the rent having been in Pounds and the currency has since changed to the Naira, which has taken over and effects of inflation, therefore, on the authority of AP v OWODUNNI (Supra) the Court took a reasonable figure which is N250,000.00 per annum which needs no proof. In the circumstances of the case, most of the variables have not been

disputed, the only dispute is whether the occupation of appellants was legal or not, having held that it?s not legal the law must take its course, its pleading and evidence is clear and the deeds are in evidence. The lower Court used a reasonable standard which in his view will be reasonable. It is important to note that, this was a lease entered over 50 years ago and the appellants had testified that he had been collecting rents from corporate tenants. I take judicial notice of the commercial nature of the area and Lagos in general even the appellants had his business there. I cannot tamper with the rate the appellants want to occupy for free which is not justifiable and not equitable, having not surrendered the property till date.

Therefore in this case, the award shall be N250, 000.00 per annum from 12th July, 1999 till possession is given. I resolve this partly in favour of the appellants.
?
Lastly, flowing from the analysis above the judgement is not against the weight of evidence. In the light of resolutions in favour of the Respondent, the appeal fails and lacks merit and the judgement of ADENIJI, J of Lagos high Court is affirmed, except for the award which has been varied thus; ?

I make an order as for possession to be given up on or before 12th July, 2002 and damages of N250,000 per annum from 1st August, 2002 for loss of use and occupation until possession of the property is given up. 10% post judgment interest on the said sum from the date of judgment of 13th July, 2001.
I award N500, 000.00 as cost of the action.

MOHAMMED LAWAL GARBA, J.C.A.: My Learned brother Abimbola Osarugue Obaseki-Adejwno, JCA, has fully considered the germane issues which require determination in this appeal, in the lead judgement, a draft of which I read before now. I agree that since the Appellants? lawful possession was to expire in 1999 when the lease of John Menegs was to end, the Respondents are entitled to mesne profit or rents from them for holding over the property beyond that year and that the sum awarded by the Lwer Court is reasonable. See Abeke v. Odunsi (2013) 13 NWLR (1370) 1; Ruthlinz Int. Invt. Ltd v. Igbokwe (2016) 11 NWLR (1523) 335.
I dismiss the appeal too for reasons set out and in terms of the lead judgement.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.

Appearances:

Olusola Okutubo with him, O. K. BrightFor Appellant(s)

For Respondent(s)

Appearances

Olusola Okutubo with him, O. K. BrightFor Appellant

AND

For Respondent

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