E. T. Otoo Obuobi V. Yar Borley & Anor (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Administratrix sued for debt of deceased—consequent execution against real property of estate—Judgment Creditor cannot attach interest in property not vested in Judgment Debtor—Letters of Admittistration at date of action only vested deceased’s personal property in Administratrix.

The facts are stated in the judgment.

byHeld: Court below was right in finding for claimant

Supreme

CourtE. C. Quist for Appellant.

exercisingR. E. Phipps for Respondent.

Appellate

jurudiction•The following joint judgment was delivered:—

KINGDON, C.J., NIGERIA, YATES, ACTING CJ., GOLD COAST, AND GRAHAM PAUL, J.

This matter came before the Divisional Court (Aitken, X.) by way of appeal from a decision of the Police Magistrate, Accra.

The facts are quite short and simple.

The plaintiff obtained a judgment against the defendant as administratrix of the estate of Bismark Abbey-Quartey (deceased). The judgment was for payment of a debt due to ‘the plaintiff by the deceased. The plaintiff issued execution under his judgment and certain real property of the deceased debtor was attached thereunder.

An Interpleader Summons was issued by the claimant in regard to the real property attached. The Police Magistrate decided on the Interpleader Summons in favour of the claimant, and the execution creditor appealed to the Divisional Court which has referred to this Court for consideration a question of law involved in the appeal, namely, whether, under a judgment against this administratrix only for a debt due by the deceased, execution can issue against the real estate of the deceased.

Counsel for the judgment creditor argued before this Court that under section 16 of the Supreme Court Ordinance the Probate law and practice for the time being in force in England applied in this Colony, and that under such law and practice, at the date

when the Letters of Administration in this case were granted, the administratrix could have applied for and obtained a grant of Letters of Administration covering the real as well as the peraonal estate of the deceased. However that may be, the Letters of Administration in this case were in fact granted only to the personal estate of the deceased. This is in accordance with the form of grant given in the Schedule to the Supreme Court Ordinance. There is no form provided for a grant dealing with real estate.

By the terms of her Letters of Administration the administratrix as such is the representative of the deceased only so far as his personal estate is concerned. She was not sued in any other capacity than in that of administratrix.

Counsel for the appellant urged that the terms of the Supreme Court Ordinance Schedule II Order 44 rule 8 were sufficiently general to justify execution under the judgment obtained against the administratrix by attachment and sale of the real property of the deceased, but I am unable to accept that contention. It is impossible to read the whole of rule 8 without realising that it is intended to apply, and does apply, only to property which the representative of the deceased has a right to take possession of, and duly apply.

A judgment creditor cannot take by attachment in execution any higher or other right title or interest in property than is in the judgment debtor. The judgment debtor here is the administratrix and she has, as such, under the Letters of Administration granted to her, no right title or interest, to or in, the real property of the deceased. It follows therefore that there is in her no such right title or interest in the real property of the deceased attachable under a judgment against her as administratrix.

The question whether or not the Supreme Court can now, by virtue of section 16 of the Supreme Court Ordinance and of recent English legislation, grant Probate and Letters of Administration covering real estate does not arise in this appeal but it may be tested by appropriate proceedings. If such power does exist in the Supreme Court it is clear that considerable amendment of the Rules of Court and forms would be necessary in order to bring them into line with the English law and practice in Probate matters.

In our opinion the learned Judge was right on the point he raised at the outset of the appeal before him so far se this particular administratrix and her particular Letters of A dministration are concerned; he was right in dismissing the appeal before him on that point; and we should confirm his order dismissing the appeal.