Safuratu Taylor V. Edgar Durojaiye Taylor & Anor (1935)

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AppealClaim, for Debts due by an Estate—Motion for payment out offrom Inter-Court of deposited ‘moneys refused—Application: or otherwiselocutoryof English Administration of Estates Act 1925 under sectionjudgment16 of Supreme Court Ordinance (Cap. 3).

Held: Present matter not included in term “

Courtprobate camas and

.

proceedings.” Appeal allowed.

The facts of this case are sufficiently set out in the judgment. A. L. Johnson for Applant.

Philip Oddie for Respondents.

The following judgment was delivered :—

KINGDON, C.J., NIGERIA.

This is an appeal from an interlocutory judgment of Graham Paul, J. sitting in the Supreme Court at Lagos.

The defendants-respondents are administrators, under Letters of Administration granted by the Court below, of the estate of their father David Augustus Taylor, deceased. The plaintiff-appellant’s claim was for a debt due at the said D. A. Taylor’s death, being rents collected by him as executor of plaintiff-appellant’s father Alexander Taylor. On the 3rd December, 1934, judgment by consent was entered for the plaintiff-appellant for the sum of £450 and costs. At that time there was a sum of money amounting to £1,358 8s. 7d. deposited in Court to the credit of the estate being money realised by a sale of part of the assets. The greater part of this sum still remains on deposit in Court.

There are other judgments against the estate and the figures

show that the estate will almost certainly be insolvent.

On the 4th December, 1934, a motion was filed on behalf of the plaintiff-appellant for an order that the judgment debt and costs be paid out of the amount deposited in Court, and on the 10th December, 1934, a writ of Fi Fa for the same judgment debt and costa was issued on the plaintiff-appellant’s application and on the 17th December, 1934, a motion was filed on behalf of the plaintiff-appellant for an order that certain farm land outside the jurisdiction of this Court be attached under the writ of Fi Fa.

Both these motionA, which were opposed by the defendants-respondents, were heard together and in each case the order prayed was refused. The plaintiff-appellant’s counsel has informed this Court that if she gets the order for payment out of moneys in Court she does not require the order for service outside the jurisdiction. The basis of the refusal to grant the application was the holding that the appliCable law in force in Nigeria is the Administration of Estates Act, 1925, particularly section 34 thereof.

The whole of this appeal turns upon the question of whether that holding was correct or not.

If section 34 of the 1925 Act applies then the judgment creditors rank pari passe and both, applications were properly refused. If the section is not in force then the practice hitherto followed in Nigeria based on priority is to be followed and both applications should have been granted.

The contention that the 1925 Act applied to Nigeria rests upon section 16 of the Supreme Court Ordinance (Cap. 3) which reads as follows :—

16. The jurisdiction hereby conferred upon the Court ” in probate, divorce, and matrimonial causes and ” proceedings may, subject to the provisions of this

Ordinance, and especially of section 20, and to ” Rules of Court, be exercised by the Court in ” conformity with the law and practice for the time ” being in force in England “

From this it is clear that in probate causes and proceedings the law and practice in Nigeria change as the law and practice in England change.

Is the present matter included in the term ” probate causes and proceedings “? The appellant says “No ” The Court below and the respondent say ” Yes “.

Admittedly the grant of Letters of Administration is a probate matter, but the present matter has nothing to do with the grant, it relates to a dispute as to distribution of assets.

To my mind the test to be applied is ” would this matter in England be dealt with in the Probate Division or in the Chancery Division ” ? If in the former it is a probate matter, if in the latter it is not a probate matter.

Counsel for the appellant contended, and counsel for respondent was forced to admit, that in England this would be dealt with in the Chancery Division. I agree, and that seems to me to settle the issue ; the matter is not included in the term ” probate causes and proceedings ” Section 16 of Chapter 3 therefore cannot be invoked to bring in, the application of the 1925 Act to Nigeria. This being so, that Act does not apply and the l

aw and practice obtaining here up till the date of the judgment

Taylornow appealed against is still the correct law and practice to be

V.followed.

In my opinion, this appeal should be allowed and the

plaintiff-appellant should be granted an Order as prayed in her

motion of the 4th December, 1934.

Kingdon, WEBBER, C.J., SIERRA LEONE. C.J.,

I agree.

BUTLER-LLOYD, J. I agree.