Claim for Debts due by an
Estate-Motion for payment out of
Court of deposited moneys
refused-Application or otherwise
of English Administration of
Estates Act
1925 under section 16 of
Supreme Court Ordinance (Cap.
3).
Held: Present matter not
included in term "probate causes
and proceedings." Appeal
all-owed.
The facts of this case are
sufficiently set out in the
judgment.
A. L. Johnson
for Appellant.
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
costs was issued on the
plaintiff-appellant's
application and on the 17th
December, 1£)34, 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 motion~, 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 passu
and both, applications were
properly refused. 1£ 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 law and
practice obtaining here up till
the date of the judgment now
appealed against is still the
correct law and practice to be
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.
WEBBER, C.J., SIERRA LEONE.
I agree.
BUTLER-LIOYD, J.
I agree.
