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THEODORE TAYLOR
V.
BERNARD TSEVI AGBANAVOR
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
18TH DAY OF MARCH, 1954
W.A.C.A. NO. 13/53
2PLR/1953/97 (WACA)
OTHER CITATION(S)
2PLR/1953/97 (WACA)
(1954) XIV WACA PP. 470-471
LEX (1954) – XIV WACA 470-471
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
1. THEODORE TAYLOR AS ADMINISTRATOR OF THE ESTATE OF WILLIAM TAYLOR OF ACCRA
2. THEODORE TAYLOR IN HIS PERSONAL CAPACITY – Appellant
AND
BERNARD TSEVI AGBANAVOR – Respondent
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ORIGINATING COURT(S)
Appeal by the defendant
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REPRESENTATION
Koi Larbi — for Appellant
Lokko — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Administration — Administrator selling land ultra vires — Rights of purchaser against administrator personally
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases — Amending judgment on appeal — W.A.C.A. Rules, 1950, rule 36.
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CASE SUMMARY
The above rule provides that “The Court (of Appeal) shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require, etc.”
The appellant sold land as administrator to the respondent; but he had earlier conveyed the land, as attorney to the owner, to one S.K.O., who sued the respondent claiming the land. The respondent, rightly, submitted to judgment and then sued the appellant for compensation, and was given judgment against the appellant as administrator, who now appealed.
(In the Gold Coast only the personal estate vests in an administrator; as such the appellant could not sell land. He did, however, and entered into the usual covenants for title and quiet enjoyment.)
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal; and amending the Judgment) that:
The appellant had purported to have authority to sell land and the respondent having suffered loss on the faith thereof was entitled to compensation; but the judgment ought to have been against the appellant personally and would be amended accordingly under rule 36 of the W.A.C.A. Rules, 1950.
(Editor’s Note: In Nigeria real property may be administered within certain limits: see The Administration (Real Estate) Ordinance (Cap. 2) in the Laws of 1948, and the case of Bamgboye v. Administrator-General decided in the Court of Appeal on 26th October, 1954.)
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MAIN JUDGMENT
The following judgment was delivered:
WINDSOR-AUBREY, J.
This is an appeal against the judgment of the Land Court which, as counsel agree, gave judgment against the appellant in his representative capacity as the administrator of the estate of William Taylor, deceased, late of Accra. The suit concerns the sale to the respondent of a piece of land situate at Adabraka, Accra.
In the Gold Coast, only the personal estate of a deceased persons vests in an administrator, consequently in that capacity the appellant had no power to effect a sale.
Shortly put, the facts as found by the trial Judge, the correctness of which has not been seriously challenged, are as follows:-
By an indenture of conveyance dated the 20th July, 1935, the appellant, acting under a power of attorney granted to him by A. B. Taylor sold the land to one S. K. Ollennu for the sum of £55.
The appellant on the ground that the full purchase money had not been paid appeared to treat the conveyance as of no legal effect, and subsequently as the administrator of the personal estate of W. Taylor sold the same property to the respondent for the sum of £180 by an indenture of conveyance dated the 1st July, 1949.
The respondent erected a fence round the property, which led to the institution of proceedings against him by the original purchaser, S. K. Ollennu. In those proceedings the said S. K. Ollennu produced a receipt for the full purchase price of the property, and therefore the respondent, acting on the very proper advice of his counsel, consented to judgment against himself with costs.
In the proceedings now on appeal the said S. K. Ollennu was called on behalf of the respondent and again produced the receipt for £55. The appellant gave no evidence at all, and naturally the trial Judge accepted the receipt at its face value and gave judgment for the respondent for £362 1s. 0d., being the purchase price of £180 and sundry expenses including the costs of the former action in which respondent had consented to judgment.
It is argued on behalf of the appellant that as an administrator of personal estate he was acting outside the scope of his authority in purporting to convey real estate and, therefore, that judgment against him in his representative capacity cannot be upheld.
This seems to me to be correct, but it remains to consider whether judgment could have been given against him personally as under rule 36 of W.A.C.A. Rules, 1950, this Court has power to make an order within the competence of the trial Court.
The defendant as administrator entered into the usual covenants for title and peaceful and quiet enjoyment.
In the 20th edition of Chitty on contracts at page 1122 the following proposition of law is set out:-
“One who expressly or impliedly warrants that he has the authority of another is liable for breach of warranty of authority to any person to whom the warranty is made and who suffers damage by acting on the faith thereof if in fact he had no such authority.”
This exactly covers the circumstances of this case, and I consider the Land Court should have given judgment against the defendant personally. In the circumstances I would dismiss this appeal, but in exercise of the powers conferred on this Court to which I have already referred I would amend the judgment of the Land Court by giving judgment against the appellant personally instead of against him as administrator of the estate of William Taylor of Accra. As the respondent has been substantially successful on this appeal I would award him the costs thereof.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
Appeal dismissed; Judgment amended.
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