Appeal Court, 19th May, 1938.  Appeal from judgment of Supreme Court.

Declaration that Plaintiff is entitled to live on Estate Property for life and Injunction restraining Executors from selling such property obtained-No evidence (a) of conformity by Executors with their duty or (b) of consideration.

Held: Appeal allowed on grounds (a) and (b) and judgment of non­ suit entered.

There is no need to set out the facts.

E. J. Alex Taylor (with him A. Latunde Johnson) for the Appellants.

O. Alakija (with him Wells Palmer) for the Respondent.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, J.

The plaintiff in this case sought in the Court below and obtained against the defendants as Executors an order declaring that he is entitled to live on a property, which is part of the estate of which the defendants are Executors, during his lifetime. He has also obtained an injunction restraining the Executors from selling the said property. Both the declaration and the injunction were claimed, and by the Court below granted, without any quali­fication or condition whatsoever.

The plaintiff based his claim on a letter dated 10th August, 1935, addressed to him by the Secretary of the Board of Executors on behalf of the defendants.

That letter is in the following terms:-

"69, Bamgbose Street, "

P.O. Box 499,

                                " Lagos, Nigeria.

                                       " 10th August, 1995.

" DEAR, Sirs,

"I am directed by the Board of Executors to inform you that the "Board has decided to dispose of all the properties mortgaged by you, " excepting your property No. 23, Bamgbose Street, which the Board has " decided to reserve for your occupation, to remain in, all your life time.

                                           "Yours faithfully,

                         " (Sgd.) ALBERT E. CARRENA, "

                              Secretary to the Board.

"L. A. Cardoso, Esq.,

 " Bamgbose Street,

           " Lagos.

Pleadings were ordered and in regard to that letter the plaintiff's case on his statement of claim was and still is as  follows: -

" (4) The plaintiff during the lifetime of the said J. H. Doherty " was a personal friend and in consideration of favours done by him " obtained this loan on the understanding that he would be allowed to "reside in the premises Nos. 21 and 23 Bamgbose Street in Lagos " until his death.

" (5) That the late J. H. Doherty never during his lifetime "disturbed the plaintiff, and the Executors in consideration of the "wishes of the deceased confirmed the same by letter of the 10th "August, 1935, when they decided to realise on the mortgage."

In their statement of defence the defendants pleaded in regard to this letter as follows:-

" The plaintiff has always acknowledged in writing his indebtedness "under the Deed of Mortgage and has given no consideration for the " letter written to him on the l0th August, 1935, to make such letter " binding in law. The Statute of Limitation does not therefore apply " in the circumstances."

The learned Judge in the Court below held that valuable consideration (namely the forbearance by the plaintiff to press for accounts of sales effected by the defendants of other properties) was given for that letter and that plaintiff was therefore entitled to the declaration and injunction claimed.

Against that judgment the defendants have appealed to this Court, the main ground of appeal being that the Court below was wrong in holding that valuable consideration was given for the promise contained in the letter of 10th August, 1935.

Apart altogether from that ground of appeal or any other point raised by appellants' counsel in his appeal it seems to us that it is the duty of this Court to set aside the judgment of the Court below on another and more fundamental ground not raised by the appellants.

In our view when a plaintiff seeks from the Court an order upon Executors to do, or abstain from doing, a particular thing in the course of their administration as Executors there is upon the plaintiff the onus of proving, and upon the Court the plain duty of being satisfied, that the order sought is consistent with the faithful performance by the Executors of their fiduciary duties. That onus on the plaintiff and that duty on the part of the Court in our opinion exist, whatever consideration the Executors may have receive?, and whether the Executors resist the order sought or not. 1£ It were otherwise the Court might find itself ordering Executors to commit what might be a grave breach of trust. It would be highly improper for a Court to take that risk.

In the present case the evidence in the Court below leaves the Court entirely in the dark as to whether the order sought is consistent or inconsistent with the Executors' duties in their fiduciary capacity. The plaintiff did not put before the Court below the terms of the will or the facts as to the financial position of the estate. For aught that the Court knows the failure of the Executors to sell the property in question during the lifetime of the plaintiff may involve now, or under conditions which may emerge at some future date, a gross breach of duty on the part of the Executors and yet the Court granted the declaration and injunction claimed.

To our mind it is clear that this Court must set aside the judgment of the Court below on this ground even though it was not raised as a ground of appeal by the appellants. This being a fundamental matter going right to the root of the issue between j he parties it is perhaps not strictly necessary to deal with the grounds of appeal raised by the appellant but we think it fair to the appellant that we should do so.

lt is clear upon the plaintiff's statement of claim that his case before the Court below was not based on any valuable consideration having passed from him in regard to the letter of 10th August, 1935. In paragraph 5 he specifically states that it was in consideration of the wishes of the deceased that the Executors wrote the letter on which he founds. That is not in law a valuable consideration. The letter itself contains no mention of any consideration. lt was only in the cross-examination of the plaintiff that for the first time it was alleged that the Executors agreed to let the plaintiff stay in the house in consideration of his not bothering them for the account sales. The defendants in their statement of defence expressly pleaded (paragraph 10) no valuable consideration for the letter of 10th August, 1935, but the plaintiff continued his case to the end without seeking any amendment of his statement of claim and in our opinion he ought not t() have been allowed by the learned trial Judge to make a case which was contrary to his pleadings. Upon that ground the appellant would in any case have been entitled to succeed in this Court as we do not consider that this is a case in which this Court should exercise its discretionary power to amend the statement of claim at this stage.

The judgment of the Court below is set aside in toto and a judgment of non-suit is substituted therefor. The appellants are entitled to costs in this Court assessed at thirty guineas and to costs in the Court below assessed at fifteen guineas.