DR CURTIS C. ADENIYI-JONES
V.
JOSEPHINE MARTINS

JELR 80526 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1943 9 WACA 100-103
CORAM
COR. KINGDON, PETRIDES AND GRAHAM PAUL, C.JJ.
Core Terms Beta
defendant
executrix de son tort
plaintiff
real estate
part of the personal estate
real property
ordinance
personal estate
purposes of administration
iron house
nigeria
english law
mr. da rocha
native law
small estates
such real property
administrator shows
character of personal property
effect of section
medical practitioner
part of his estate
admitted fact
brother dr moyses da rocha
deceased person's estate
estate of dr. moyses da rocha
following terms
gold coast
house of decease
juana da rocha
judgment of the court
leave of the court
plaintiff's claim
pounds sterling
relevant parts
said dr. moyses da rocha
such action
time of his death
tion of the court
title of evidence
tort of the estate of the deceased
trial judge
unauthorised interference
writ

KINGDON, C.J., NIGERIA. The writ issued by the plaintiff was in the following terms:- “The plaintiff's claim is against the defendant as executrix of the “estate of Dr. Moyses da Rocha deceased for the sum of one hundred “and five pounds sterling (£105) being money due and payable to “the plaintiff for work done and services rendered by the plaintiff “'as a medical practitioner for the said Dr. Moyses da Rocha during “his lifetime in Lagos at his request from November, 1937 up to the “time of his death in 1942.”

The defendant was sued as executrix de son tort. The defence was that she was not executrix de son tort.

To establish that she was the plaintiff relied upon the admitted fact that defendant had after the death intestate of her brother Dr Moyses da Rocha collected from his real property rents becoming due after his death. It is clear that up to 1925 by English Law such action would not have constituted the defendant an executrix de son tort, because the real estate would have passed direct to the heir-at-law and her action would not amount to an intrusion upon the functions of an executor.

Since the law in Nigeria is that in force in England on the 1st January, 1900, subject to modification by local Ordinance, the action must fail unless there is a local enactment to alter the position. Josephine.

It is necessary to consider the effect of section 2 of the Administration (Real Estate and Small Estates) Ordinance (Cap. 13) the relevant parts of which read:- “Then any person shall die intestate after the commence- “ment of this Ordinance leaving any real pro petty of “whatsoever nature of which the intestate might have disposed “by will, such real property shall for the purposes of “administration be deemed to be part of the personal estate “of the said intestate and shall be administered accordingly.” “Provided also that the real estate shall not be “administered unless the administrator shows to the aatisfac- “tion of the Court that the personal estate is insufficient to “pay the intestate’s debts and the expenses of his funeral, and “of taking out administration.”

I am of opinion that the effect of that section is to place real property left on intestacy in the same position as personal estate for the purpose of the points that arise in this case, notwithstanding the provision that the real property can only be actually administered in certain circumstance. What matters, in my view, is not the circumstances in which real property can be administered, but, what is its character? What is it, or what is it deemed to be? The section enacts that for the purposes of administration it shall be deemed to be part of the personal estate, i.e. it gives it the character of personal property. Therefore any unauthorised interference with it is a usurpation of the rights and functions of an administrator, and the person so interfering becomes an executor or executrix de son tort.

It follows that, in my view, the judgment of the Court below was right and the appeal should be dismissed.

PETRIDES, C.J., GOLD COAST, In the Court below the plaintiff sued defendant as executrix of the estate of Dr. Moyses da Rocha, deceased, for £105 0s 0d due for work done and services rendered by the plaintiff as Medical Practitioner to the deceased from November, 1937 until his death in 1942.

The trial Judge held that defendant had rendered herself liable as an executrix de so tort of the estate of the deceased and as she had not pleaded plene administravit and had admitted that at least half the house of decease valued at £9,000 was then in her possession he gave judgment against her for the amount claimed and costs. Mr. da Rocha, father of the appellant died leaving four children. After his death his property was partitioned among these four children. Juana da Rocha and Dr. Moyses da Rocha received “Iron House” as their share and Candido and the defendant got “Water House” as theirs.

Juana died in 1941 and Dr. da Rocha in 1942. Defendant in her evidence in the Court below stated that, on the death of Dr. da Rocha, Iron House became the property of her brother Candido and herself. She contended herself with that bare assertion and did not allege that they were so entitled to the property under Native Law and Custom or by English law. There is not a title of evidence that they were entitled to the property by Native Law and Custom. In this Court it was admitted that Mr. da Rocha and his children were Brazilians and there was a suggestion, as to which there is no evidence, that the family had gone to Brazil from Nigeria.

There being no evidence that Mr. da Rocha or any of his children were natives of Nigeria it is clear that on the death of Dr. da Rocha, “Iron House” formed part of his estate according English law in force on 1st January, 1900, which applies in the circumstance on this point subject to modifications made by local enactment. On the death of Dr. da Rocha defendant collected the rents of “Iron House” from the tenants, on the, assumption that the house belonged to her and her brother.

The principal question that has to be decided on thi8 appeal is whether the defendant by collecting the rents of Iron House constituted herself an executrix de son tort. This term is defined by Swinburne Godolphin, and Wentworth as “ He who takes upon himself the office of executor by intrusion, not being so constituted by the deceased, nor, for want of such constitution, substituted by the Court to administer.”

No executor having been appointed by the deceased the question then arises has the defendant done anything which might have been done by an administrator appointed by the Court. In England as stated in paragraphs 27G-277 of 14 Halsbury 2nd edition at pages 175 and 176 the administrator derives his title entirely from the grant of letters of administration, and the property of the deceased does not vest in him until such grant. In order to prevent injury being done to a deceased person's estate without remedy the Courts have adopted the doctrine that upon the grant being made the title of the administrator relates back to the time of death. This doctrine is also applicable against a person dealing wrongfully with the deceased’s real estate.

In Nigeria it is provided by Chapter 13, section 2 “When any person shall die intestate after the “commencement of this Ordinance leaving any real property

“of whatsoever nature of which the intestate might have “disposed by will, such real property shall for the purposes of “administration be deemed to be part of the personal estate of “the said intestate and shall be administered accordingly.”

“Provided. ..that the real estate shall not be adminis- “tered unless the administrator shows to the satisfaction of “the Court that the personal estate is insufficient to pay the “intestate’s debts and the expenses of his funeral, and of “taking out administration.”

It is clear therefore that the Court might in certain circumstances have directed that the estate of the deceased both real and personal should be administered by a person appointed by the Court with power to administer both the personality and the realty. In such an event the whole of the estate of the deceased both real and personal would have devolved on the administrator appointed by the Court.

In my opinion the disposable real estate of an intestate passed to the heir-at-law until the passing of Cap. 13. That Ordinance expressly provided that the real estate shall be deemed part of the personal estate for the purpose of administration and may be administered as such by the administrator with the sanction of the Court if the personal estate does not suffice to pay the debts of deceased the funeral expenses and the costs of administration. It is quite clear that the Court would be deprived of its powers of ordering the real estate to be administered if the heir-at-law took possession of the real estate, sold it and absconded with the proceeds. As however that Ordinance provides that for the purposes of administration the disposable real estate of an.. intestate shall be deemed part of the personal estate the heir-at-law has no power to take possession of it any more than he has of personality to which he may be entitled as next-of-kin, until the estate of the deceased was been administered.

In my opinion the defendant having intermeddled with the real estate of the deceased (which for the purposes of administration must be deemed part of the personal estate) without having obtained the leave of the Court has constituted herself an executrix de son tort.

It has been contended that the defendant had a colorable title to the property on the ground that she and her brother were entitled to it under native law and custom. It is quite clear that there is no evidence that she had such a title. In my opinion the appeal should be dismissed with costs.

GRAHAM PAUL, C.J., SIERRA LEONE. I concur.

ORDER The appeal is dismissed with costs assessed at fifteen guineas.