Madam Christiana Ugu V. Andrew Ebinni Tabi (1997)
LAWGLOBAL HUB Lead Judgment Report
M. A. BELGORE, J.S.C.
The respondent, Andrew Ebinni Tabi, claiming to be the brother of one Patrick Bissong Tanyi, who died intestate on 12th day of April, 1971 took out a writ against the appellant and claimed as follows:
(1) “A true and full account of all monies, rents and profits received by the defendant as a result of her administering or intermeddling with the Estate of Patrick Bissong Tanyi (deceased) who died in Lagos on 12th April, 1971 intestate.
(2) Payment over to the plaintiff of what is found due to the plaintiff on the taking of such account.
(3) Possession of a piece of land together with the house therein situate lying and being at 28/44 Ijaiye Street, Layinka, Ajegunle, Apapa in the Lagos State.
(4) N10,000.00 special and general damages.
(5) Perpetual injunction restraining the defendant, her agents, privies and/or servants from further actions or trespass on the said land.”
The defendant/appellant was the only wife of Patrick Bissong Tanyi, having married under native law and custom; this much learned trial Judge found on the overwhelming evidence before him. There was no appeal against this finding and therefore it is not an issue in this Court. Patrick Tanyi (hereinafter referred to as “the deceased”), died without any issue and intestate. The plaintiff/respondent, claiming to be a brother of the deceased applied for and was granted Letters of Administration by the Probate Registrar, Lagos. The Letters of Administration read inter alia as follows:
“BE IT KNOWN that on the 24th day of August, 1971, Letters of Administration of the personal property of Patrick Bissong Tanyi, late of 44 Ijaiye Street, Ajegunle, Apapa, deceased, who died on the 12th day of April, 1971, at the General Hospital, Lagos, Intestate, and who had at the time of his death his fixed place of abode at 44 Ijaiye Street, Ajegunle within the jurisdiction of this Court, were granted by this Court to Andrew Ebinni Tabi of 44 Ijaiye Street, Ajegunle, Apapa, the brother of the said Intestate, he having been first duly sworn.
- Money in Bank
Barclays Bank Nigeria Limited, Apapa, Saving Account
No. 353049 (Dec. 4) for 16 pounds :13:5
J. A. OJOMO
Ag. Probate Registrar.”
The words “personal property” are italicized by me for emphasis. The endorsements at the back of the Letters of Administration concern fees paid for processing in the Registry amounting to 18 pounds: 17: 7, the personal property of the Intestate being under 25 pounds :0:0. Armed with this document, the respondent took over the entire estate of the deceased including the real estate, 44 Ijaiye Street, Ajegunle, Apapa. The house at 44 Ijaiye Street belonged to the deceased; he lived there with the appellant as his wife and was his abode at his death. Before and at the deceased’91s death the appellant lived at 44 Ijaiye Street as his wife. But now, after obtaining Letters of Administration for the personal estate of the deceased, the respondent went on the property claiming the right to administer it; he let out portions to tenants without the consent or authority of the deceased’s widow, the appellant. The appellant resisted the steps being taken by the respondent.
As a result of this situation, the appellant ejected the tenants put into the house by the respondent and put her own tenants inside collecting rents from them. It must be pointed out that the appellant remained all along on the property since the death of her husband. As I explained earlier in this judgment, the trial Judge held the appellant to be the widow of the deceased and that this has not been in issue.
The overwhelming evidence before the trial Court was reinforced on this point by an alleged donation of part of the land of her husband to her by the Tanyi family represented by the respondent in a document dated 8th June, 1978 which, for purpose of clarity, quote herein under as follows:
“28/44, Ijaiye Street,
Aiyetoro, Apapa.
8th June, 1978.
DONATION
I the undersigned on and behalf of late P. B. Tanyi Family, of the above address, donated a plot measured 50 x 100 at the adjacent wall by her late husband P. B. Tanyi house to his widow by name Christiana Ugu Tanyi for her meritorious service in the present and past.
The family of her late husband convened a summary meeting and all the members agreed unanimously before resolving to this decision and hereby authorised me as the entire representative to bestow her with this covering note of appreciation with confidence indicated and confirmed. This is an irrevocable note of her strenuous, loyalty and obedience tabulated and concorded by her matrimonial general services indicated to her late Tanyi and the family as a whole.
There is no detested or tainted mind in giving out this plot to her by the family than to show good appreciation so done by her and to develop it quickly and pack in as a Landlady forthwith.
Dated this 8th day of June 1978.
for: ON AND BEHALF OF, P. B. TANYI FAMILY
sgd.
ANDREW TABI”
As a result of the appellant’s take-over of the premises the respondent took a complaint to the Nigeria Police and reported the appellant as Christiana Ugwu Tanyi, her married name. She was tried on a five count charge ranging from breaking and entry, willful damage to doors and keys, removal of louvre frames and glasses and stealing; that was in the Magistrate Court, Ajegunle. She was convicted on three of the counts and was sentenced to imprisonment on each of the three counts with option of fine on each. She was also bound over to be of good behaviour for three months under S. 300 of Criminal Procedure Law of Lagos State. However in the writ taken out by the respondent in the High Court of Lagos she is named as “Madam Christiana Ugu”, her maiden name, as is clearly shown in the Statement of Claim dated 28th day of March, 1989. I have to go to this length to indicate that despite the suit and change of the appellant’s name to her maiden name there was no dispute that the appellant is the widow of Patrick Bissong Tanyi.
At the end of the High Court trial the learned Judge found as follows:
“1. The appellant was the wife of the deceased and therefore the deceased’s widow.
- The appellant lived during and after the lifetime of Patrick Bissong Tanyi as the wife and later the widow of the deceased.
- The respondent’s only authority was the Letters of Administration, Exhibit D, granted in respect of the personal estate of the deceased, Patrick Bissong Tanyi.
- The appellant got married to Patrick Bissong Tanyi (the deceased) under native law and custom and that the deceased died intestate.
The learned trial Judge, despite all the above findings went on to hold that the respondent, even though in possession of Letters of Administration limited to personal property only (in this case the sum of 16 pounds : 13:5d) in the bank, on savings account, had authority by virtue of the same Letters of Administration to administer all the estate of the deceased both personal and real. He relied on the “combined effect of section 2, 3 and 4 of the Administration of Estate Law Cap. 2 [Laws of Lagos State 1973]. It is instructive to set out these sections. Section 2 is the interpretation section and the following definitions are made inter alia therein:
“Administrator” means a person to whom administration is granted;
“personal representative” means the executor, original or by representation, or administrator for the time being of a deceased person;
“representation” means the probate of a will and administration, and the expression “taking out representation” refers to the obtaining of the probate of a will or of the grant of administration.”
As for section 3, it provides as follows:
“3(1) Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this Law chattels real devolved on the personal representative from time to time of a deceased person.
(2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers .
(3) The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.”
As for section 4 it states it is only relevant to quote subsection 1 thereof reading as follows:
“4(1) Subject to the provisions of this Law, all enactments and rules of law, and all jurisdiction of any court with respect to the appointment of administrators or to probate or letters of administration, or to dealings before probate in the case of chattels real, and with respect to costs and other matters in the administration of personal estate, in force before the commencement of this Law, and all powers, duties, rights, equities, obligations, and liabilities of a personal representative in force at the commencement of this Law with respect to chattels real, shall apply and attach to the personal representative and shall have effect with respect to real estate vested in him, and in particular all such powers of disposition and dealing as were before the commencement of this Law exercisable as respects chattels real by the survivor or survivors of two or more personal representatives, as well as by a single personal representative, or by all the personal representatives together, shall be exercisable by the personal representatives or representative of the deceased with respect to his real estate.”
Upon this decision of the trial Court an appeal went to the Court of Appeal which upheld the trial Court and further relied on the case of Shobogun v. Sanni (1974) 11 SC 35 to hold that the respondent even though had Letters of Administration to administer personal property only, he could by virtue of the same grant administer real property. The Learned justices of Court of Appeal in affirming the decision of the trial Court went further and held as follows in dismissing the notion that the grant of Letters of Administration to the respondent was limited in scope:
“I have also read Sections 10, 22 and 42 of the Law and I do not see anything in any of them which indicated that the respondent as a personal representative of the deceased cannot administer real estate of the deceased. Admittedly, Section 22 of the law gives the court wide powers in granting any type of probate or administration in regard to real or personal property of the deceased person.”
Upon this decision of the Court of Appeal, this appeal has come to this Court.
Based on the grounds of appeal the appellant has formulated the following issues for determination:
“(i) Whether a person granted Letters of Administration limited only to personal property can administer the real property of a deceased person.
(ii) Whether the appellant was not entitled in the circumstance to a declaratory order that the respondent had trespassed upon the property the subject matter of the action and to consequent award of damages.”
The respondent raised in his brief the same issue 1 above but for his issue 2, he formulated as follows:
“Whether the appellant had abandoned her counter-claim and that there were no materials upon which the Court can act to sustain the counter-claim. ”
The respondent concedes that the applicable law is the Administration of Estates Law, Cap 2, Laws of Lagos State 1973 and alludes to S. 2 thereof the definition part of that Law. The submission of the respondent is that Administration of Estates Law of Lagos State 1973 was a result of adoption of a similar Law of former Western State of Nigeria and was so adopted by Lagos State (Applicable Laws) Edict of 1968 and that since then the Administration of Estates Law came into force on 23rd April 1958. The contention therefore is that the case of Alhaji Ajao v. Mrs. Sonola & Ors. (1973) 1 NMLR 355 and others like it holding that an administrator can deal with personality and not realty unless with special order of Court, would no more apply to Lagos State. However, in the same breath, learned counsel for respondent posited that S.3 Administration of Estates Law 1973 (supra) gives the administrator power to administer real as well as personal estate and went on to cite s.3(I) of the law (supra). In short the respondent’s brief was replete with attempt by learned counsel to bring in history of the enactments. To me this is unnecessary. Since it is conceded that the enabling and relevant statute applicable is Administration of Estates Law, 1973 [Laws of Lagos State 1973 Cap 2] and its words and intendments are clear there is no need to revert to history for aid to its construction. Whenever there is ambiguity and the intention of the legislators is unclear as to the mischief the law is supposed to obviate, the Court can look outside the statute for aid to construction. The previous legislation repealed or amended, the mischief in the previous law sought to be cured by legislature or law maker, the history of the social, economic or political changes that the legislature sought to address, will come in handily as aid to construction. But when the words of the statute, looked as a whole are clear, devoid of any ambiguity, the statute must be construed to reflect its clear true meaning and no extrinsic aid to construction will be needed.
It must be pointed out that the facts of this case are very clear and every court below addressed the facts correctly but erroneously applied wrong principles of law to those facts. The Court of Appeal relied greatly on the case of Madam B. O. Shobogun v. Sanni and Ors. (1974) 1 All NLR (Pt.2) 311, especially as per Elias CJN (as he then was) at p. 317 where he held:
“We may now consider whether the applicant as an administrator can apply to be registered. While it is true that the letters of administration relate only to the personal estate of the deceased, we think that the administrator can also deal with the real estate. Section 2 of the Administration (Real Estate) Act, Cap 2, Laws of the Federation and Lagos provides:
“When any person shall die intestate after the commencement of this Act leaving any real property of whatsoever nature of which intestate might have disposed by will, such real property shall for the purposes of administration be deemed to be part of personal estate of the said intestate and shall be administered accordingly.”
With greatest respect their lordships were in error and S.2 of Cap 2 Laws of the Federation of Nigeria and Lagos 1958, which they relied upon, is totally at variance with S.3(1), (2) and (3) of the Administration of Estates Law of 1973 (Laws of Lagos State 1973, Cap 2), already quoted earlier in this judgment. The 1958 Act has nothing to do with this case, the applicable law is Cap. 2 of the Laws of Lagos State 1973 (supra) whose meaning is very clear. The definition part of the legislation defining “personal representative” as “executor”, or “administrator” is to connote by implication the words “whichever applicable.” If letters of probate are in issue the word “executor” is applicable, in the case of Letters of Administration the word “administrator” is applicable. The definition does not in the least allow interchangeability of the words which will obviously defeat the meaning of the statute. So there is no ambiguity in sections 2, 3 and 4 of Administration of Estates Law (Laws of Lagos State, Cap 2 of 1973).
The present respondent deliberately applied for letters of administration in respect of personal estate of the intestate and was granted. He paid the appropriate fees. It is clear in evidence at the trial Court that the appellant, who is the widow of the intestate, during his life lived at 44 Ijaiye Street, Ajegunle, Apapa, and continued to reside there at his death as her matrimonial home. The house belonged to her deceased husband. The respondent obtained the letters of administration simply because he claimed to be a brother of the deceased and this was in respect of the personal estate. He was aware of the house in issue as part of the deceased’91s estate, he never applied for it. Could it be said that he applied for personal estate of under ‘a320 (twenty pounds) so as to administer the money in the savings account as well as the house, real property, situate at 44 Ijaiye Street, Ajegunle, Apapa This is not convincing except fraud would be allowed to flourish! I therefore hold that a grant of letters of administration in respect of personal estate does not cover the administration of the real property of the intestate. It is too late in the face of the decision in Ademola, Ejiwumi and Williams v. Probate Registrar (1971) 1 All NLR 155, 162 to resort to classification obtained in English law regarding real property, the situation in this country is not analogous to that. In English law, classification is not limited to real property and personal property, there is another category known as “chattels real”, difficult to explain in our own limited classification but defined in S. 5 Administration of Estate Law (supra) as follows:
“5(1)(i) Chattels real, and land in possession, remainder, or reversion, and every interest in or over land to which a deceased person was entitled at the time of his death.”
But this much I shall hold in this case: the intestate, in all evidence before the trial Court, owned the property at 44 Ijaiye Street, Ajegunle, Apapa, Lagos and that the appellant was his only wife and now widow. What interest the intestate held in the land is not clearly explained as no document of title was exhibited other than a piece of paper from Ojora family that the property was sold to the intestate. The presumption is what the parties based their dispute upon is right; that is to say, the intestate owned the land and the building erected upon it. Thus the land is real property and therefore not covered by the letters of administration granted the respondent. The answer to the first issue in the brief of argument by each party in this appeal is in the negative.
As for the second issue for determination in the appellant’s brief of argument, the respondent’s arrogation of power to administer the estate now in issue by virtue of Exhibit D, i.e. the letters of administration on personal property of the intestate is false and not supported by law, he was therefore a trespasser ab initio to the property situate at 44 Ijaiye Street, Ajegunle, Apapa, Lagos. The judgment of the Court of Appeal affirming the decision of the trial High Court is hereby set aside. In its stead, a verdict of dismissal of the claim of the respondent, as plaintiff, is entered. I award N1,000.00 as costs in this Court, N500.00 as costs in the Court of Appeal and N300.00 as costs in the trial court. If costs in the courts below have been paid, the appellant should be refunded the same by the respondent.
The respondent in his brief of argument raised a second issue of counterclaim of the appellant as having been abandoned. The argument forcefully advanced by Jide Oki, Esqr. for the respondent, is that the grant of letters of administration ipso facto conferred on the respondent the right of personal representative under the law with authority to administer both personal property and real property. This point has been exhaustively addressed in the earlier part of this judgment against the respondent and needs not be repeated. It is true that no fraud has been proved but it is clear that the respondent virtually arrogated to himself title rather than administrator de son tort of the disputed property, a situation vigorously challenged by the appellant resulting in the suit ending in this appeal. The case of Shelle v. Asajon (1957) SCNLR 286; (1957) 2 FSC 65 does not apply as the respondent had no personal occupational right under any law as shown by the evidence before the court. There is no evidence to impugn the letters of administration granted the respondent, but that document has limited applicability to personal property and cannot by stretching the law in any wise apply to real estate.
The appellant, it can now be asserted, succeeded only in establishing that the letters of administration do not apply to 44 Ijaiye Street, Ajegunle, that the respondent wanted to administer the property and that she resisted all along the assertion of the respondent in administering the property. The case for trespass is fully made out. The two issues for determination in the appellant’s brief of argument are limited to her grounds of appeal and the second issue in the respondent’s brief of argument does not really call for determination.
This appeal therefore succeeds and order is made as explained hereinbefore.
SC.241/1992
