Saturday, 7 September 2019


(Lexadvocatus Electronic Law Report (LELR)

16TH MARCH,1951
The respondet sued as Attorney to the landlord for arrears of rent and recovery of possession. Objections was taken to his power of attorney. It was arrested by a solicitor's clerk who was not a notary public but the magistrate rules that it was admissible.
Another ground of appeal is that the notice to quit was served  on him by a solicitor on oral instructions.

The respondent had no standing to bring the action as in view of s.117 of the Evidence Ordinance, Cap,63, his power of attorney ought to have been rejected.

A solicitor, unless specially authorised in writing, can not serve a statutory notice to quit under s.7 of the Recovery of Premises Ordinance Cap, 193.
 (1) Bailey v Hookway, 1945,1 K.B.266
 (2) Mandilas and and Karabaris v Michael Olaoye, Lagos M.3736,25th November, 1949  (an appeal to supreme Court) reported in 19 NLR.
 (3) Enigbonkan and others v Ade. Olansinjo, judgement of Reece, J., on 23-6-50, not reported ( a Lagos case).

This is an appeal from the learned magistrate, Lagos. The action was for recovery of Premises at 26A Glover Street, Lagos, from the defendant, tenant. The suit was under the recovery of Premises Ordinance, Cap 193, and it was instituted by one HADJI AKOREDE, attorney for Adekantu agboola, who was the landlord. The learned magistrate gave judgement for
£35 arrears of rent and for possession by the 31st December, 1950.

Mr. Rotimi Williams for the Appellant has got two good point upon either of the appeal must be allowed.

The first is the first ground of appeal: the learned magistrate erred in law in holding that the power of attorney is admissible in Evidence". The woman Adekantu Agboola was residing at Kumasi, Ashanti in the Gold coast and she gave full powers to the Hadji Akorede to deal with this property and so it was that action brought by Hadji Akorede, Attorney for Adekantu Agboola". At the trial, at the beginning of his, he produced the power and Mr. Williams objected to its admissibility on the ground that its execution must be properly proved. There were arguments on both sides and it was agreed that the case should proceed and a ruling be given at the close of the Evidence: in due course the learned magistrate rules that it was admissible and gave judgement in favour of the respondent on the rest of the evidence. But if in fact the document is inadmissible (no further or better proof of it was given) then the respondent had no standing to bring the case at all. Looking at the power of Attorney it is seen the it was prepared by a solicitor at Kumasi, it is properly stamped with 10s which in in accordance with the Gold coast commissioners of stamp duties opinion was the proper amount and there is an attestation clause signed by a law clerk to the effect that the content had been read over and she seemed perfectly to understand the content before putting in her left thumb impression in its favour: s.133 et seq. If the evidence Ordinance, Cap. 63 deals with presumptions as to documents.
s.117 is concerned with the power of Attorney. "The court shall presume that every document purporting to be a power of Attorney, and to have been executed before and authenticated by a Notary Public, or any court, judge magistrate, consul it representative of His Magesty, was so executed and authenticated".

The object of that presumption is to help persons in like circumstances to this case when the instrument is executed abroad. It means that the court can presume proper execution without further proof. Section 133,114,116 also show presumption in favour of documents authenticated by it executed by a public Officer of the official standing. An officer of the court, i.e.,a member of the Bar or a solicitor, unless he is also a Notary Public, is not enough. A solicitor clerk is certainly not  enough. I see therefore no presumption in favour of this power of attorney and as is due execution had not been proved by any of the recognized ways. see Phipson, page 406 is it ought to have been rejected.

Mr. Williams' second good point is in the second ground of appeal, that the magistrate erred in law in holding that the plaintiff's solicitor was a proper person within the Ordinance to serve defendant with statutory Notices to quit. This point can only arise if it is assumed, for the purpose of it, that it had been proved that the Attorney has standing because the evidence showed that the verbally instructed his solicitor Mr. Adeola to proceed with serving the statutory Notices. By s.7 of Cap 193 the proper person to serve the notice is the land lord or his agent and "agents" in s.2 is defined as any person specifically authorised to act in a particular manner by  writing under the hand of the landlord". In this case there was nothing in writing, only verbal instruction, and therefore Mr. Adeoba was not a proper person and the noticed are valuesless. It is the duty of the court to interpret the law as it stands: it is the duty of the legislature to make law that  fit local conditions both the grantor and grantee of the P/A are illiterate.

Counsel referred to an English case,Bailey v Hookway (1945) 1 K.B. 266, for the proposition that solicitors, unless they are specially authorised in writing cannot serve statutory Notices under small Tenement Recovery Act 1838 which Act is very much the same as Cap.193. Also he referred to two unreported judgements one by Ames,J. And the other by Reece, J., both of which are relevant: suit M.3736 Mandilas and Karaberis v Michael Olaoye, judgement was given in the 25th November, 1949, Civil judgement Book 213 page 116. This judgement deals with proof of service or Notices and the principles in awarding possession. It was cited with reference to grounds of appeal with which I have not dealt.

The other judgement by Reece, J. Is the case of Enigbonkan and others v Ade. Olasinbo given on 23-6-50 and to be found in Civil book 216. Page 417-it deals with the service of notice by solicitors and other interesting points

The Appeal must be allowed with cost here and in the court below

Appeal allowed.

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