Mrs. F. Bamgboye & Ors V. The Administrator-General & Anor (1954)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Executors and Administrators—To what extentreal estate may he 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).

Facts

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remaining land; and, in a further affidavit, that the liquid cash in his hands was running short as some children had withdrawn much for education under orders of the Court, that other children were contemplating applying for similar advances, and that the proposed sale of a portion of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 affidavitsto 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.)

Held

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.

Appeal allowed; order set aside.