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A. M. AGORO
V.
CHRISTIANA ADE ABON AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
23RD DAY OF OCTOBER, 1944
2PLR/1944/30 (WACA)
OTHER CITATION(S)
2PLR/1944/30 (WACA)
(1944) X WACA PP. 257 – 258
LEX (1944) – WACA PP. 257 – 258
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
FRANCIS, J.
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BETWEEN:
A. M. AGORO — Plaintiff-Appellant
AND
1. CHRISTIANA ADE ABON
2. RACHAEL ADE ABON
3. SOLOMON EGUNJOBI
4. NATHANIEL AKINLEYE — Defendants-Respondents
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ORIGINATING COURT(S)
APPEAL BY PLAINTIFF FROM JUDGMENT OF SUPREME COURT
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REPRESENTATION
J. I. C. Taylo — for Appellant
A. Soetan — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Family property — Judgment against Executor de son tort — Legal effect
ESTATE ADMINISTRATION AND PLANNING:- Executor de son tort — Judgment debt in his personal capacity attached against family property — Extent of liability where judgment debtor isn’t family head/sole successor — How determined
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CASE SUMMARY
Plaintiff (Appellant herein) sued Defendants for damages for trespass on land at Egunoniye Ojokoro, claiming as owner in possession against them for demolishing the building on the land and removing the iron sheets of the roof. The 1st and 2nd Defendants were members of the Abon family, the 3rd and 4th, carpenters.
There had been a suit (No. 57/1934) between A. J. Sijuwade and Adelakun Abon, in which Sijuwade was successful; a sale was made on 15th November, 1941, at which Agoro (Appellant herein) was the purchaser; and Agoro claimed that he bought the land at that sale.
Respondents 1 and 2 herein pleaded that the land in question had been the property of their late father, and became family property; that Adelakun Abon (one of his children) was not sued by Sijuwade as head of the family; that that sale was merely of Adelakun’s interest, and did not affect the rights of the other children.
In fact Sijuwade sued Adelakun Abon as executor de son tort for £45 odd advanced to John Abon deceased (the father), and obtained judgment for that amount.
In the judgment under appeal the trial Judge was of opinion that there was nothing to show that Adelakun had been administering the estate before letters of administration were granted to another person, and that after such grant he could only be personally liable for assets which had come into his hands; that Sijuwade’s judgment was personal as against Adelakun and all that was sold was his right title and interest; and that the interest of the other members of the family was not affected. And the trial Judge dismissed the Appellant’s claim. On appeal:-
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal with costs):
1. Held, that as all that in fact was sold was the personal right title and interest of Adelakun Abon in the land in question, the sale did not affect the 1st and 2nd Respondents’ rights and they were not trespassers.
2. Held also, that a judgment against an executor de son tort is not a judgment against the estate, and only binds its assets to the extent of the assets already in his hands.
Quares: whether section 2 of the Administration (Real Estate and Small Estates) Ordinance (Cap. 13) affected the questions at issue in the case.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:—
It is quite obvious that this appeal cannot succeed. Apart from any question of law as to what could or could not be sold to satisfy the judgment obtained by A. J. Sijuwade against Adelakun Abon in Suit No. 57/1934, it is clear that all that was in fact sold was the personal right title and interest of Adelakun Abon in the property on which the alleged trespass by the Defendants took place. The rights of the Defendants to go upon and deal with the property were not affected and they cannot be held liable in trespass.
But since a question of law was propounded in the Court below on which it was agreed (wrongly in our opinion) that the whole case turned, we think it right to state what in our view is the correct answer to it. The question was-
“whether a judgment against an executor de son tort is a judgment against the estate”.
The answer to this question is that it is not a judgment against the estate and that it binds the assets of the estate only to the extent of the assets already in the hands of the executor de son tort. We think that this is what the learned Judge in the Court below intended to express, though he did not put in exactly these words.
We may add that the possible effect of section 2 of the Administration (Real Estate and Small Estates) Ordinance (Cap. 13) upon the questions at issue in this case appears to have been overlooked by both parties in the Court below.
The appeal is dismissed with costs assessed at 15 guineas.
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