Dr. Edozien Vs E.A. Amadi (1961)

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ADEMOLA, C.J.F.

The appellant was the defendant in a claim for the sum of £100 made against him in the Magistrates Court in Lagos. The basis of the claim was that the appellant by his conduct in removing the personal belongings of his deceased brother Dr. T.N.O. Edozien from the last abode of the deceased at No.4 St. Agnes Street, Yaba, has constituted himself as executor de-son-tort on the ground that he has intermeddled with the deceased’s goods and was therefore liable to pay the debts of the deceased.

Judgment was entered in default against the appellant. Application for a rehearing on merits was refused by the learned Magistrate notwithstanding the reasons given by the appellant why he was unable to be present in Court at the hearing. The judgment was then the subject matter of an appeal in the High Court of Lagos. The appeal failed. This is a second appeal.

The main argument at the hearing of the appeal with which we are concerned is that the evidence before the learned Magistrate does not support the finding that the appellant was an executor de son tort.

The relevant portion of the judgment of the Judge of appeal on this point reads:-

The evidence was that the appellant visited the house of the deceased about a month after his death, and took away all the deceased’s property. The respondent met him there and informed him of his claim. He however refused to refund to the respondent the £100 which the latter deposited with the deceased and ignored his subsequent letters of claim. In my view, in the absence of any explanation by the appellant there was evidence upon which the learned Magistrate could reasonably hold that the appellant had intermeddled with the deceased’s estate in such away as to make him an executor de son tort. There is nothing to show that he was merely acting as an agent of necessity.

Now, an executor de son tort is one who intermeddles with the estate of a deceased person. The slightest circumstance may make a person executor de son tort if he intermeddles with the assets in such a way as to denote an assumption of the authority or an intention to exercise the functions of an executor-Peter v. Leader (1878) 47 L.J.Q.13. 573.

It appears to me, however, that it was not enough for the respondent to prove that he saw the appellant packing the deceased’s goods away. He must, in my view, establish by evidence what goods of the deceased the appellant packed away. The learned Judge of appeal, in his judgment, stated that the appellant took away all the deceased’s property’. Evidence led on the point by the respondent is this:-

He (the deceased) died on 18/2/59 as a result of motor accident………………………………………………….On 14/3/59 the defendant (appellant) came to the house of the deceased at 4 St. Agnes Street, Yaba. There I met him. He was packing his brother’s property………….

There was no evidence that he packed all the goods or that he took them away. No evidence was given of what the goods were which were packed. It is only a conjecture that all the goods in the house which the appellant was found packing belonged to the deceased nor was there evidence of what goods were in the House. In my view, to succeed the respondent must establish by evidence which goods actually were taken away by the appellant since an executor de son tort is not liable for more than that portion of the deceased’s property which has come to his hands: see Lowry v. Fulton (1839) 9 Sim. 115; Yardley v. Arnold (1842) Car. & M. 434.

The amount claimed by the respondent is £100. Again, to succeed, it must be established that the value of goods which passed into the appellant’s hands were worth £100. There was no evidence before the learned Magistrate as to the value of the deceased’s goods or that part of it which passed into the appellant’s hands.

I am, therefore, of the opinion that on the evidence before the learned Magistrate no prima facie case was made by the plaintiff/respondent to entitle him to judgment and the learned Magistrate was wrong to have allowed his claim.

The learned Judge of appeal should have allowed the appellant’s appeal.

This appeal will be allowed; the judgment of the learned Magistrate is hereby set aside. The case will be sent back to the learned Magistrate for retrial. Costs to the appellant in the High Court is assessed at 17 guineas. Costs in the Magistrates Court should abide the event, but as the respondent has written to the Court to say that he has been paid a sum of £100 by the appellant, the latter will be entitled to costs in the Magistrates Court assessed at 10 guineas.

The appellant is also entitled to the costs of this appeal assessed at thirty-five guineas.

Other Citation: (1961) LCN/0924(SC)