Respondents. Devise of real
property in Will-powers of
executors and trustees. lender
English Act of
1925 not applicable to
Nigeria-applicant of Land
Transfer .Act 1897 to
Nigeria-valid Mortgage
executors.
The material facts set out in
the judgment were not in dispute
.. There w devise in a Will of
real property to A the father of
the plaintiffs upon trust to"
the same as family property for
the use and benefit of all his
relatives": Sale partition was
forbidden. The testatrix in her
lifetime granted a Mortgage w
was subsisting. A fresh Mortgage
was granted to B by her
Executors alter death. A granted
to B now deceased. whose
personal representatives the 1st
Ii defendants are, a conveyance.
The Court bellow made an Order
setting the conveyance, and
granted a declaration that the
land was held as I, 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 Transfer Act of 1897 is a
statute of general application;
that the executors trustees had
power to dispose of the property
by mortgage or sale; that in
circumstances of this case there
was no question of native law or
custom and see 20 of the Supreme
Court Ordinance did not apply:
on the ground that as equitable
mortgagee in possession granting
a lease is liable to account for
rents the first four defendants
were the personal
representatives an account was
ordered· to be filed.
The facts of the case are
sufficiently set out in the
judgment.
A. L. Johnson
(J
Martin
with him) for Appellants.
E.
J. Alex-Taylor (with him
O. Coker) for 1st four
Respondent
Ayo
Williams for 5th Respondent
..
The following joint judgment was
delivered :KINGDON, C.J.,
NIGERIA, PETRIDES, C.J., GOLD
COST. GRAHAM PAUL, C.J., SIERRA
LEO:NE.
This case arose out of a devise
in a Will by one Elizabeth John
(deceased). The devise was of a
certain real property in Balogu.
Street, Lagos to one Benjamin
Young .. his heirs executors and
administrators upon trust to
hold the same as family property
for the use and benefit of all
his relatives and the same
should on no account be sold or
partitioned by him them or any
of them."
The Plaintiffs are the children
of the said Benjamin Young
Benjamin Young is still alive.
He was sued as a defendant
however appeared or took any
part in the suit. of the other
Defendant the tint four are the
personal representative of
Badaru Abina who died on 4t~
May, 1937 intestate. The fifth
Defendant Dr. A. Oyejola is the
surviving Executor of the said
Elizabeth John (deceased) under
her said Will.
There was another Defendant G.
L. Gaiser but he has disappeared
from the suit as he was called
only as a tenant of the premises
in question under a lease which
has now expired.
The material facts of this case
are not in dispute and may be
shortly stated. In her lifetime
the Testatrix on 2]st August,
1915 granted a mortgage over the
property in question in this
case and at her death the
mortgage was still subsisting.
The Testatrix appointed three
Executors and Trustees under her
Will. Of these, two obtained
Probate, Dr. Oyejola the fifth
defendant and one Mr. Cole now
deceased. After they took
Probate the two Executors on 1st
September, 1917 granted a fresh
mortgage to the said Badaru
Abina over this same property
for £4(10. They used the £400 in
part to payoff the principal and
interest due under the
subsisting mortgage but there
was no reconveyance in regard to
the first mortgage. The amount
of principal and interest so
paid off was £291. The balance
of the £400 was used for general
purposes of the administration
of the deceased's estate.
On 22nd August, 1924 Benjamin
Young granted to Badaru Abina a
conveyance of the property in
question. In that conveyance he
narrated that the deceased
Elizabeth John by her Will "
gave and devised to the said
vendor amongst other things the
saiid hereditaments and
premises" and he granted and
conveyed the property in
question expressly" as
Beneficial Owner." The
conveyance bears to be in
consideration of the payment by
Badaru Abina to Benjamin Young
of .£1,700 and there is in
evidence a receipt for that
amount by Messrs. Irving and
Bonnar as Solicitors for
Benjamin Young dated three days
before the date of the
conveyance.
In regard to that conveyance the
first four defendants (Badaru
Abina's personal
representatives) pleaded in
their amended Statement of
Defence" that the conveyance
referred to was a piece of
mistaken conveyancing and
inoperative to pass any estate
in the property and was
therefore a nullity."
The Plaintiffs' claim in this
suit is :-
•. An order setting aside the
Mortgage, Conveyance, or any
other instrument having the
effect of disposing by sale,
mortgage or otherwise dealing
with the House and landed
property known as 28 Balogun
Street, Lagos formerly the
property of one Elizabeth John
of Lagos (deceased) .
•. Declaration that the said
property is by virtue of the
Will of the said Elizabeth John
(deceased) dated the 19th June,
1915 the property of the
plaintiffs was against all the
defendants .
•. A full account of the rents
and mesne profits of the said
property or what might have been
so received but for the wilful
default of the defendants as
from the 22nd August, 1924 to
the 31st March, 1938 or the date
of payment of what shall be
found due and payable to the
plaintiffs on the taking of the
said account.
" Further or
otter relief as is meet ",
The court below made an Order
setting aside the conveyance by
Benjarnin Young and granted a
declaration that the property in
question is held as family
property in terms of the
Will. On other points the Court
below gave judgment for the
Defendants.
There was another action taken
by the same Plaintiffs
aft judgment in the Court below,
and there was an unsuccessful
application to the Court below
to review its judgment but these
not directly affect the issues
now before this Court and must
be ignored.
The Plaintiffs-Appellants have~
appealed to this Court again ..
the judgment of the Court below,
except as to that portion
thereof which relates to the
setting aside of the conveyance
and t declaration asked for in
the Writ of Summons.
The grounds of appeal are as
follows :-
" 1. The Learned Trial Judge was
wrong in not setting aside the
mortgage along with the
conveyance made thereon in spite
of his definite findings_ that
the property in dispute was the
plaintiffs-appellants' family
property and also in not
ordering the 1st four
defendants-respondent to render
an account of their dealings
with the said property.
" 2. The learned Trial Judge
having found that the late
Badaru Abina was Mortgagee in
possession and as such an
accounting party has error, in
Law in refusing to order the
first four
defendants-respondents render an
account of their dealings with
the property in dispute.
"3. The judgment is against the
weight of evidence."
It is manifest from the terms of
the Will that under the
Will. the Executors and Trustees
received no express title or
power' grant a mortgage of this
particular property which was
the subject of the specific
devise already quoted. It is
contended for the Appellants
that the statutory powers which
Executors and Trustee now have
in England under the 192))
legislation are not available to
Executors and Trustees in
Nigeria. It is clear that
English legislation of 192))
does not apply to Nigeria under
section 14 of the Supreme Court
Ordinance. It has been held in
the Divisional Court that the
earlier English Statute ad
hoc the Land Transfer Act 0
1897 is not a Statute of general
application and sc not
applicable in Nigeria (see In
re Sholu XI N.L.R.37).
Counsel for t Respondents
contends that the Land Transfer
Act of 1897 ~ applicable in
Nigeria and that under that Act
the Executors ha, power to grant
the mortgage for £400. Counsel
for the Respondent agreed that
the Executors had no power to
grant the Mortgagee unless the]
897 Act applicable to
Nigeria.
If the 1897 Act applied to the
facts of this case would give
the two proving Executors power
to grant the mortgage it is
clear that, this Court would
have to consider in this appeal
the question whether the 897 Act
applied to Nigeria.
It is quite clear that the 1897
Act does give Executors and
Trustees under a Will
.practically the same rights and
powers t deal with real estate
as they had prior to the Act to
deal wit personal estate or
chattels real-section (1) (i) of
the Act is quite dear on that
point :-
"Where real estate is vested in
any person without a right in
any other person to take by
survivorship it shall, on his
death, notwithstanding any
testamentary disposition,
devolve to, and become vested in
his personal representatives or
representative from time to time
as if it were a chattel real
vesting in them or him."
The effect of section 1 (i) of
the Act if applied to the
property in question in this
case is to devolve that property
on and vest it in the Executors
and Trustees under the Will.
Under section 2 (1) Of the Act
the Executors and Trustees"
shall hold the real Estate as
trustees for the persons by law
beneficially entitled thereto,"
that is to say in this case for
the devisees under the Will.
Under section ? (3) of the Act
the real estate is to be
administered in the same manner
and with the same incidents as
if it were personal estate.
The Executors and Trustees as
the personal representatives of
the. deceased have complete and
absolute control over the
personal property of the
deceased a:1d can dispose of it
by mortgage or sale
"notwithstanding that the
property disposed be
specifically bequeathed or
limited in trust by the Will."
Furthermore the mortgagee or
purchaser from the personal
representative of the deceased "
has the right to infer that the
representative is acting fairly
in the execution of his duty and
is not found to enquire as to
the debts or legacies or the
application of the money."
(See Halsbury's Laws of
England 1st Edition Vol. XIV
page 296 paragraph 685). It
follows therefore if the Land
Transfer Act of 1897 applies to
Nigeria that the mortgage
granted in this case by the
Executors and Trustees was
within their powers to grant and
quite valid. If the Act does not
apply, the Executors and
Trustees had no power to grant
the mortgage and it is invalid.
It is necessary therefore to
decide in this appeal whether
the Act does apply to Nigeria.
This question depends upon the
terms of section 14 of the
Supreme Court Ordinance which is
in the following terms :-
" Subject to the terms of this
or any other Ordinance, the
common law, the doctrines of
equity, and the statutes of
general application which were
in force in England on 1st
January, 1900 shall be in force
within the jurisdiction of the
Court."
In the Divisional Court of
Nigeria it has been held that
the Land Transfer Act of ] 897
cannot be considered to be an
Act of general application and
that it therefore does not apply
to Nigeria (see judgment
of Webber J. In re Estate of
james·Sholu XI N.L.R. page
37). With all respect to the
learned and experienced Judge
who decided this point in the
Divisional Court we are unable
to agree with his decision.
The Land Transfer Act of 1897
applied quite generally to all
estates in England of persons
dying after 1st January, 1898.
It is difficult to see how a
statute could be of more"
general application" in England
than that, and it was in force
in England on 1st January, 1900.
We find ourselves unable to
follow the reasoning of Web J.
in holding that the Land
Transfer Act was" even more
restricted than several
others .... and does not apply
to Nigeria." would appear that
the basis of this reasoning was
that the L Transfer Act applied
to England only and not to
Scotland or Ireland We are
unable to agree with this view.
It seems to us that t words "of
general application" are used
with reference to matter of the
statutes and not only
geographically. Also it Seem to
us that under section 14 England
is the test of geographic
generality. This is borne out by
the general trend of the
judgment' of distinguished West
African Judges quoted by Webber
J. in judgment in Chief Young
Dede v. African Association
Limited (i. N.L.R. p.13).
In the facts and circumstances
of the present appeal we think
it would be quite wrong to hold
that the Land Transfer Act did
apply. Here we have no question
of native law or custom. have as
Exhibits in this case a Will,
two Indentures of Mortgage. and
a conveyance on sale, all of
them couched in the jargon of t
English conveyance, all of them
highly specialised document to
which the Land Transfer Act was
designed to apply generally.
It is our view that the decision
In re Estate of James Sholu
was wrong and that the Land
Transfer Act of ] 897 does apply
in Nice subject of ·course to
the terms of section 20 of the
Supreme Co Ordinance which
safeguards native law or custom
in suitable ca Section 20 has in
our view no application to the
facts and circumstances of this
appeal
Applying these conclusions to
this appeal we find that the Co
below was right in holding that
the Mortgage by the Executors w:
valid and is subsisting, and
that no reason has been shown
for setting it aside.
As regards the claim by the
Appellants against the first
four Respondents for an account
of rents and mesne profits
question of some difficulty
arise. On 15th July, 1924 the
late Badaru Abina granted an
Indenture of Lease to G. L.
Gaiser. In that Indenture the
devised premises are expressly
referred to as " the property
the lessor" but at that time the
only estate which Badaru Abina
had in the premises was that
which he obtained as Mortgagee
under the Indenture of Mortgage
granted by the Executors. Under
that
Indenture of Mortgage Badaru
Abina was only an equitable
Mortgagee as in regard to the
previous Mortgage, though it had
paid off in full, there had been
no reconveyance of the legal
estate to the Executors. The
subsequent conveyance to Badarn
Abina by Benjamin Young
has been held to be invalid, and
it was not effectual to convey
any estate whatever to Badaru
Abina. Indenture of Lease
therefore could only be granted
by Ba Abina as equitable
Mortgagee in possession, and
as such he co validly grant the
Indenture of Lease. A Mortgagee
in possess'ranting an Indenture
of Lease is undoubtedly liable
to account for rents but after
being in possession for 12 years
without accounting he may plead
the Real Property Limitation Act
1874, as against his Mortgagor
