A. M. Agoro V. Christiana Ade Abon & Ors (1945)

LawGlobal Hub Judgment Report – West African Court of Appeal

Family property—Judgment against Executor de son tort.

Facts

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 :—

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 am, they were not trespassers.

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.

The appeal is dismissed with costs assessed at 15 guineas.