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MRS. F. BAMGBOYE AND OTHERS
V.
THE ADMINISTRATOR-GENERAL AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
26TH DAY OF OCTOBER, 1954
APPEAL NO. No. 49/1954
2PLR/1954/56 (WACA)
OTHER CITATION(S)
2PLR/1954/56 (WACA)
(1954) XIV WACA PP. 616-620
LEX (1954) – XIV WACA 616-620
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
JIBOWU, AG. S.P.J., NIGERIA
BAIRAMIAN, J.
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BETWEEN:
IN THE MATTER OF THE ESTATE OF JOHN ST. MATTHEW DANIEL, DECEASED
AND
In re AN APPLICATION BY THE ADMINISTRATOR-GENERAL
MRS. F. BAMGBOYE AND OTHERS – Appellants
AND
THE ADMINISTRATOR-GENERAL AND ANOTHER – Respondents
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ORIGINATING COURT(S)
Appeal by persons interested in the estate by special leave, the order appealed from having been obtained without notice to them of the application
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REPRESENTATION
Kayode — for the Appellants
Fatayi Williams, Crown Counsel — for the Administrator-General
Ferguson — for the other Respondent, the purchaser
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATOR AND PLANNING:- Executors and Administrators — To what extent real estate may be administered — Administration (Real Estate) Ordinance of 1917 (Cap. 2), section 2 and the second proviso — The Administrator-General’s Ordinance of 1938 (Cap. 4), section 30(1)
REAL ESTATE AND PROPERTY LAW:- Sale of land under administration by the Administrator-General — Failure to show statutory basis empowering such sale — Whether dispositive of the question even if sale would otherwise be reasonable
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CASE SUMMARY
Section 2 of Cap. 2, the Administration (Real Estate) Ordinance of 1917. provides that “real property of whatsoever nature of which the intestate might have disposed by will … shall for the purposes of administration be deemed to be part of the personal estate … and be administered accordingly”; but the second proviso imposes these limitations:-
“…Provided also that the real estate shall not be administered 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.”
By section 2 of the Administrator-General’s Ordinance of 1931 (Cap. 4), “assets” are defined to include (besides movables) certain immovable property and “estate” (besides goods, etc.) all interests in land and chattels real. And section 30 (1) of Cap. 4 provides that “the Court on the application of the Administrator-General or of any person interested in the assets of an estate or in the due administration thereof, may give to the Administrator-General directions as to any estate in his charge in regard to the administration of any such estate.” (Mention is also made in the judgment of section 16 (1) of Cap. 4, but Crown Counsel conceded that the order under appeal could not be protected by section 16 (1).)
The above-named deceased died intestate and his estate was being administered by the Administrator-General under a grant to him of letters of administration. The estate included an area of land, and the Administrator-General applied for leave to sell a portion stating in his affidavit that the price offered was reasonable, that the would-be purchaser intended to create a building estate, and that this would enhance the value of the remaining land; and, in a further affidavit, that the liquid cash in his hands was running short as some children had withdrawn much for education under orders of the Court, that other children were contemplating applying for similar advances, and that the proposed sale of a portion of the land would make more ready cash available.
The note of the Judge making the order prayed for stated that, “It is more than likely that more money will be wanted for the education of the children and it is therefore not unwise to realise some liquid assets now when a reasonable price can be obtained”.
For the appellants it was argued, on the basis of the second proviso to section 2 of the Administration (Real Estate) Ordinance of 1917 (Cap. 2), that there was nothing in the affidavits to show that there was a case for the sale of land. Counsel for the Administrator-General did not rely on that Ordinance but on section 30(1) of the Administrator-General’s Ordinance of 1938 (Cap. 4). (The attitude of counsel for the other respondent, the purchaser, seemed to be that his client’s conveyance was protected by some statutory provision; which was not relevant to the question whether the order giving leave to sell was valid.)
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal allowed; order set aside) that:
The administration of an intestate’s real estate is governed by the special provision in section 2 of the Administration (Real Estate) Ordinance of 1917, there being nothing in the later general provision in section 30(1) of the Administrator-General’s Ordinance of 1938 to affect that special provision; the order appealed from had been made per incuriam and could not be supported.
Cases cited:-
(1) Seward v. “Vera Cruz” (1884). A .C. 59, at 68.
(2) Dryden v. The Overseers of Putney (1876), 1 Exch. 223, at 232.
(Note: No. (1) is on a special provision in one Act and a general provision in a later Act; No. (2) is on a special provision and a general one in the same Act.)
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MAIN JUDGMENT
The following judgment was delivered:
BAIRAMIAN J.
This is an appeal from an Order made on the 23rd December, 1953, “that the Administrator-General as the Administrator of the estate of John St. Matthew Daniel deceased do dispose of 52.11 acres of land forming part of the landed property of the deceased.”
The notice of motion was accompanied by an affidavit of the Administrator-General which, after stating that the deceased had died intestate and that letters of administration were granted to the Administrator-General, continued as follows:-
“That the estate of the said deceased is still under administration.
“That the said deceased died possessed of both personal and real property including a landed property on the west side of the Ikorodu Road at Mile 6 known as Ilupeju or Daniel’s Village comprising about 165 acres and registered as No. 34 at Page 34, Vol. 968 in the Lands Registry at Lagos.
“That I have received an application for the purchase of 52.11 acres of the said landed property for which an offer of £200 per acre has been made and that I consider this offer to be fair and reasonable.
“That the purpose and use to which the intending purchasers intend to put the said land is to create a building estate and thereby relieve housing congestion in Lagos.
“That the area is already ripe for development as it lies between the already built-up areas of Yaba, lgbobi and Ikeja.
“That I am informed that a plan for the development of the area has been drawn and has been approved by the Lagos Executive Development Board.
“That by developing this area, the value of the remaining adjoining land will be greatly enhanced.
“That it will definitely be in the interest of the estate if the proposed sale is affected.”
The note made at the hearing reads as follows:-
“Court asks counsel whether it would have been possible to state purchase price paid for neighbouring land recently. Mr. Sagoe explains that he had thought of inserting such information in the affidavit but had finally been prevented upon (prevailed upon) to leave it out. He explained that in 1947, £40 per acre was paid for land nearby. He added that he had got the figure £200 from the Valuation Officer and that it must not be forgotten that the purchaser has to lay out roads thus losing an appreciable portion of the area bought by him.
“After reading the affidavit and hearing Mr. Sagoe, Court desires further information in view of the provisions of Cap. 2.”
The further affidavit of the Administrator-General is in these terms:-
“That on the hearing of my motion on the 22nd day of December, 1953, the Court ordered me to file a further affidavit.
“That the price offered by Government when it acquired part of the area in question for the construction of the Lagos-Ikorodu Road in 1947 was £40 per acre.
“That out of the total area to be sold, only a small portion may be considered developed where it adjoins the Ikorodu Road.
“That the liquid cash in my hand for this estate is running short as some of the children of the deceased have withdrawn over £14,000 for further education in accordance with various orders of this Honourable Court.
“That I am informed others are contemplating applying to the Court for similar advances.
“That by carrying out this sale more ready cash will be available.”
And this is the Court’s note in making the order:-
“Further affidavit has been filed. After hearing Mr. Sagoe I have reached the opinion that the order prayed for may be granted. It is more than likely that more money will be wanted for the education of the children and it is therefore not unwise to realise some liquid assets now when a reasonable price can be obtained.”
It appears that the lower Court’s attention was drawn to the Administration (Real Estate) Ordinance (Cap. 2) (Vol. 1 of the 1948 Laws, at p. 148). The relevant provision is in section 2, which reads as follows:-
“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 always that the real property the succession of which cannot by native law and custom be affected by testamentary disposition shall descend in accordance with the provisions of such native law or custom anything herein contained to the contrary notwithstanding:
“Provided also that the real estate shall not be administered 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.”
Mr. Kayode for the appellants has argued, on the basis of the second proviso, that there was nothing in the affidavits to show that there was a case for the sale of land. Mr. Fatayi Williams, who appeared on behalf of the Administrator-General, does not rely on the above Ordinance but on section 30(1) of the Administrator-General’s Ordinance (Cap. 4), which provides that:-
“30(1) The Court on the application of the Administrator-General or of any person interested in the assets of an estate or in the due administration thereof, may give to the Administrator-General directions as to any estate in his charge in regard to the administration of any such estate.”
The word “assets” is defined in section 2 to include immovable property and the word “estate” all interests in land and chattels real.
Section 30 is in Part IV-Administration, which begins with section 28 and ends with section 37. Part IV is silent on the question of selling land, but it is clear from section 39 that land may be sold in the course of administration: for section 39 begins with these words:
“When after winding-up an estate any real property remains undisposed of.”
Thus the question remains whether the legislature intended in section 30(1) of the Administrator-General’s Ordinance to empower the sale of land in circumstances other than those specified in section 2 of the Administration (Real Estate) Ordinance.
It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; the general provision does not apply. In the words of Lord Selborne, C., in Seward v. “Vera Crus” (1), “Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold the earlier and special legislation indirectly repealed altered or derogated from merely by force of such general words, without any indication of a particular intention so to do”. It follows that the matter in hand is governed by section 2 of Cap. 2, which remains unaffected, and that section 30(1) of Cap. 4 cannot be invoked in support of the order under appeal.
The above rule of construction applies equally, of course, when the special and the general provision are enacted in the same piece of legislation: see Dryden v. The Overseers of Putney (2)
Here it may be noted that the Court may, under section 16(1) of Cap. 4, direct the Administrator-General to realise and dispose of assets in the circumstances set out in that sub-section, of which (a) reads as follows:-
“Whenever:-
“(a) any person dies leaving assets within Nigeria and the Court is not satisfied that there is any person immediately available who is legally entitled to succession to such assets, or that danger is to be apprehended of misappropriation, deterioration, or waste of such assets before it can be determined who is legally entitled to the succession thereto, or whether the Administrator-General is entitled to a grant of probate or of letters of administration of the estate of such person in respect thereof; “
The learned Crown counsel has conceded that the order under appeal could not be protected by section 16(1). And here it may be observed that the learned Judge, as his note at the first hearing of the motion indicates, was considering the application for the order as a matter under the Administration (Real Estate) Ordinance (Cap. 2). The application was filed on the 21st December; it came up before him on the 22nd December, and as the note states, “After reading the affidavit and hearing Mr. Sagoe, Court desires further information in view of the provisions of Cap. 2”. The further affidavit was filed on the 22nd December and the matter came up again on the 23rd December, on which day the order to sell was made. It would seem that the second proviso to section 2 of Cap. 2 was overlooked and that the order to sell was made per incuriam, It is not suggested for the Administrator-General that the order could have been made under section 2 of Cap. 2; learned counsel for him relies on section 30(1) of Cap. 4. On the view above taken that section 30(1) of Cap. 4 does not apply, the order cannot be supported — there is no suggestion that it can be supported otherwise — and it must be set aside. There is therefore no need to consider whether on the material before the learned Judge the making of the order was reasonable.
I would therefore allow the appeal and set aside the order to sell land made on 23rd December, 1953.
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FOSTER-SUTTON, P.
I concur.
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JIBOWU, AG. S. P. J.
I concur.
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Appeal allowed; order set aside.
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