Ronald Ayodele Ajayi & Anor V. A. W. B. Abina & Ors (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Devise of real property in Wiltpowers of executors and trustee,under English Act of 1925 not applicable to Nigeria—applicatio) of Land Transfer .Act 1897 to Nigeria—valid Mortgage bi executors.

Facts

The material facts set out in the judgment were not in dispute.. There was a devise in a Will of real property to A the father of the plaintiffs upon trust to ” hold the same as family property for the use and benefit of all his relatives ” Sale of partition was forbidden. The testatrix in her lifetime granted a Mortgage which was subsisting. A fresh Mortgage was granted to B by her Executors after her death. A granted to B now deceased, whose personal representatives the lot four defendants are, a conveyance. The Court below made an Order setting aside the conveyance, and granted a declaration that the land was held as family property in the terms of the Will but refused an account.

Held

that In re Sholu 9 N.L.R. 37 was wrongly decided and that the Land Transfer Act of 1897 is a statute of general application ; that the executors and trustees had power to dispose of the property by mortgage or sale ; that in the circumstances of this case there was no question of native law or custom and section 20 of the Supreme Court Ordinance did not apply : on the ground that as an equitable mortgagee in possession granting a lease is liable to account for rents and the first four defendants were the personal representatives an account was ordered to be filed.