Admor.-Gen. v Biakieu, 1972-73 ALR S.L. 310

5 10 SECTION 39 THE ~FRICj\.N LA,W RE~OR TS, ADMINISTRATOR-GENERAL v. BIAKIEU Supreme Court (Cole, C.J., Betts, J.S.C., Bridges, C.J. (Gambia), Luke, J.S.C. and Browne-Marke, J.A.): July 3rd, 1973 (Civil App. No. 2/72) ( 1] Civil Procedure-appeals-appeal against award of costs-error of law affecting costs justifies allowing appeal on costs: The general rule that costs are in the discretion of the court is subject to certain exceptions and to the overriding principle that the discretion must be exercised judicially; an error on a point of law affecting costs is a sufficient ground for allowing an appeal as to costs (page 319, lines 38-41; page 320, lines 32-35). [ 2] Civil Procedure-costs-Administrator-General-irregularity in appoint· ment of Administrator-General does not render him personally liable: The holder of the office of Administrator-General cannot be made 15 personally liable for costs in a suit in which he appears in his official capacity, simply because there was an irregularity in his appointment (page 319, lines 16-21). [ 3] Civil Procedure--costs-appeals-error of law affecting costs justifies allowing appeal on costs: See [ 1] above. 20 [ 4] Civil Procedure-costs-discretion of court-discretion to be exercised 25 30 judicially: See [1] above. · [ 5] Succession- Administrator-General-costs-irregularity in appointment of Administrator-General does not render him personally liable for costs of suit: See [2] above. [6] Succession-Administrator-General-entry of caveat-caveat justified if desirable that court should decide on claimant's entitlement to grant: The Administrator-General is justified in entering a caveat to a grant of letters of administration to the next-of-kin of a deceased, if he thinks it necessary that the next-of-kin should prove to the satisfaction of the court that he is entitled to the grant (page 317, lines 23-31). [ 7] Succession- Administrator-General-grants of administration-no duty to investigate application for grant if applicant has no entitlement ex facie: The Administrator-General is not guilty of culpable neglect of duty if he fails to investigate a claim of entitlement to a grant of letters of administration, where on its face it appears that the claim, even if 35 proved, would not entitle the claimant to a grant of administration (page 317, line 32- page 318, line 2). 40 [ 8] Succession- Administrator-General-liability for actions-liability limited to illegal acts done wilfully or with gross negligence: The effect of s.6 of the Administration of Estates Act (cap. 45) is that the Administrator­ General is not liable for any act done bona fide in performance of his duties unless such act is illegal and done either wilfully or with gross negligence (page 318, line 41- page 319, line 5). 310 ADMOR.-GEN. v. BIAKIEU, 1972-73 ALR S.L. 310 J. _. _. ' : J _. S.C. [9] Succession-probate and letters of administration-persons entitled to letters of administration under Mohammedan law-under Mohammedan Marriage Act (cap. 96), s.9(2)(b), claimant must show he was eldest brother of deceased, not merely brother: To be entitled to a grant of letters of administration based on s.9(2)(b) of the Mohammedan Marriage Act (cap. 96), the claimant must prove not merely that he was the 5 "lawful brother" of the deceased, but also that he was the "eldest brother" (page 316, line 40- page 317, line 3). The respondent applied to the High Court for a grant of letters of administration of the estate of his deceased sister who died intestate. 10 The daughter of the deceased gave written information to the Administrator-General of the death of her mother intestate, and upon the respondent's applying for letters of administration, the Administrator-General entered a caveat without investigating the claim. The respondent relied on s.9(2)(b) of the Mohammedan 15 Marriage Act (cap. 96) under which the eldest brother of the intestate is entitled to a grant of letters of administration in preference to the Administrator-General. The High Court (During, J .) found only that the respondent was the lawful elder brother of the deceased and ordered that letters of administration of the 20 estate be granted to the Administrator-General on application to the High Court. On appeal by the present respondent the Court of Appeal allowed the appeal and ordered that the costs should be paid by the Administrator-General personally. The Court of Appeal 25 referred to "a series of errors for which [it held] the [appellant] officially liable," but did not enumerate them in detail. It also drew attention to its belief that the common assumption of the parties that the Administrator-General was the "Offical Admin- istrator" referred to in the original Administration of Estates 30 Ordinance was errroneous at that time since the legislation creating the office of Administrator-General did not abolish that of Official Administrator, and although it appointed the then holder of that office as Administrator-General, this did not mean that subsequent holders of the office of Administrator-General could automatically 35 assume the responsibilities of the "Official Administrator." The position had since been regularised by the Administration of Estates (Amendment) Act, 1972. The Administrator-General appealed against the order as to costs. In reply the respondent contended that: (a) the appellant 40 had acted male fide, wilfully and with gross negligence and that 311 THE AFRICAN LAW REPORTS he could therefore be held personally liable for costs; (b) the appellant should be held personally liable for costs because of an irregularity in his appointment as "Official Administrator"; (c) the Court of Appeal had exercised its discretion in ordering 5 the appellant to pay the costs personally and that the court should not interfere with that decision; and (d) the order was justified on the ground that the appellant was guilty of culpable negligence by his failure to investigate the respondent's claim or entitlement to a grant. In this context the court considered the respondent's 10 contention in the lower courts that he was entitled to letters of administration under Mohammedan law, being the lawful brother of the deceased, and also the action of the appellant in entering a caveat to the grant of letters of administration without first having investigated the respondent's claim. 15 The appeal was allowed. 20 25 30 35 Cases referred to: (1) Biakieu v. Sankoh, 1970-71 ALR S.L. 47. (2) Donald Campbell & Co. Ltd. v. Pollak, [1927] A.C. 732; (1927), 137 L.T. 656. Legislation construed: Administration of Estates Act (Laws of Sierra Leone, 1960, cap. 45), s.6: The relevant tenns of this section are set out at page 318, lines 26-35. s.15: The relevant terms of this section are set out at page 320, lines 6-9. Mohammedan Marriage Act (Laws of Sierra Leone, 1960, cap. 96), s.9: The relevant terms of this section are set out at page 316, lines 29-36. High Court [formerly Supreme Court] Rules (Laws of Sierra Leone, 1960, cap. 7), O.XLVI, r.1: The relevant terms of this rule are set out at page 320, lines 11-21. C.N. Rogers-Wright for the appellant; Marcus.Jones for the respondent. LUKE, J.S.C., delivering the judgment of the court: This is an appeal against an order as to costs only. It will how­ ever be convenient at the outset of this judgment to give a brief history of this case. 40 Kultimi Abayeh died intestate on December 23rd, 1954, seised in fee simple in possession of a house and land situate and known 312 ~DMO,R.-GE~. v. BI,AKIEl}.l972-73,ALR ~.L. 31() S.C. as 27 Dan Street, Freetown, and survived by a legitimate and an only child Zainabu Fatmatta Sankoh. Kultimu Abayeh (herein­ after referred to as "the deceased") was a Mohammedan. At the time of the death of the deceased, Zainabu Fatmatta Sankoh was an infant. The respondent in this appeal, Alhaji Abdul Wahid 5 Biakieu, is the brother of the deceased and on the death of the deceased he became the guardian of Zainabu Fatmatta Sankoh and he took possession of the property. Some time after Zainabu Fatmatta Sankoh had attained her majority, she asked the respon- dent to give her possession of the property but he refused. There- 10 after, some time in 1969, Zainabu Fatmatta Sankoh issued a writ of summons against the respondent claiming, inter alia, a declara- tion that the deceased died seised of the said property in fee simple in possession, and possession of the said property. In his defence the respondent denied that the deceased died seised of 15 the said property in fee simple and alleged that the deceased had sold the property to him some time in 1951, and he counter­ claimed for a declaration that he was the fee simple owner of the property, having bought it from the deceased for £800 (Le1600). The trial judge dismissed the claim of Zainabu Fatmatta 20 Sankoh on the ground that the property of the deceased vested in the Administrator-General by virtue of s.9(1) of the Admin­ istration of Estates Act (cap. 45 ), and not in Zainabu Fatmatta Sankoh and therefore she was not entitled to sue for recovery of possession. The trial judge also dismissed the counterclaim 25 on the ground that the respondent had failed to prove the alleged sale of the property to him. Both Zainabu Fatmatta Sankoh and the respondent appealed to the Court of Appeal against that decision. The Court of Appeal, consisting of Dove-Edwin, Ag. P., Marcus-Jones, J.A. and Tambiah, 30 J .A., delivered judgment on April 23rd, 1970 dismissing both appeals. Dealing with the appeal of Zainabu Fatmatta Sankoh, Dove-Edwin, Ag. P., said inter alia (1970-71 ALR S.L. at 51): "I agree with the learned judge's decision. This matter should have gone to the Administrator-General in the first place and 35 the plaintiff was wrong in suing as she did. The fact that she is a Mohammedan did not alter the position in my opinion. I would dismiss her appeal, holding that the matter be taken up by the Administrator-General." And dealing with the respondent's appeal he said inter alia (1970- 40 71 ALR S.L. at 51): 313 THE AFRICAN LAW REPORTS "In my view, the defendant's counterclaim must fail on the evidence which he has produced. He relies to a great extent on a document marked Exhibit B5. This document is a receipt which the defendant/claimant suggests he got from the 5 deceased when he bought the property in Dan St. It was supposed to be signed by the deceased who made her thumb mark on it. The judge believed that at the time the receipt was made the deceased could sign her name. An important witness whose name appears on the document and who was 10 said to be alive and somewhere in Sierra Leone, was not called .... He [i.e. the respondent] was in the position after the plaintiff's mother died to take over all her properties available, that is deeds, etc. and no one was in a position to challenge him. There is evidence that he took more than 15 decent advantage of his power over his own niece by his relationship with her.'' In his judgment, Tambiah, J .A. said inter alia (1970-71 ALR S.L. at 54): "The learned judge, in a careful judgment, has chosen not to 20 accept the defendant's version that there was a sale of this property to him by Kultumi Abayeh. He has held that the property forms part of the estate of the deceased . . . . In other words the learned judge held that the receipt was a forgery although he used euphemistic language.'' 25 It would appear that in the same month that the Court of Appeal judgment just referred to was delivered (i.e. April 1970), Zainabu Fatmatta Sankoh gave written information to the Admin­ istrator-General, in accordance with s.10(1) of the Administration of Estates Act (cap. 45), that her mother Kultumi Abayeh (the 30 deceased) had died intestate leaving estate within the jurisdiction of the court. Some time thereafter (the records do not disclose when) the respondent applied to the Master and Registrar of the High Court for the grant of letters of administration of the estate of Kultumi 35 Abayeh. The Administrator-General thereupon entered a caveat. As a result of the entry of the caveat, the respondent issued a writ of summons against the Administrator-General on November 5th, 1970, claiming a grant of letters of administration of the estate of Kultumi Abayeh. In his statement of claim the respondent 40 averred that he was the lawful brother of the deceased according to Mohammedan law and that Zainabu Fatmatta Sankoh was the 314 ADM<;>R.-GEN. v. BIAKIEU, 1972-7~ ALR ,S.L. 3~0 S.C. illegitimate daughter of the deceased and therefore that she had no interest in the estate. In his defence the Administrator-General disputed these averments and denied that the respondent had any right or prior right of administration to him. The Administrator- General also counterclaimed for a grant to him of letters of 5 administration to administer the estate of the deceased. The administration action was tried by During, J. The judgments of the Court of Appeal delivered on April 23rd, 1970 were tendered in evidence at the trial. The learned judge delivered judgment on November 30th, 1971. In his judgment the learned judge found 10 that the respondent "was the lawful elder brother of the deceased." The learned judge held that "the court had a discretion in granting letters of administration of the estate of the· deceased, in law, equity, inherently and on the ground of public policy." In exercise of that discretion he refused a grant of letters of administration 15 to the respondent and ordered that letters of administration of the estate be granted to the Administrator--General on application to the High Court. In the result the learned judge dismissed the respondent's action with costs and ordered that the respondent pay the costs of the counterclaim. 20 On February 24th, 1972 the respondent lodged an appeal against the decision of During, J. The appeal was heard by the Court of Appeal on June 13th and 14th, 1972. At the close of argument by counsel, the court, there and then, made an order allowing the appeal and adding "the court will give its reasons 25 later when counsel will be heard on costs." The Court of Appeal gave its reasons for its decision on June 23rd, 1972 and also made an order in these terms: "Costs are to be paid by the Administrator-General personally on a solicitor and client basis here and in the court below." It is against that order " 30 that the Administrator-General has appealed to this court. On October 10th, 1972 the Court of Appeal granted the appellant conditional leave to appeal and on November 3rd, 1972 that court granted him final leave to appeal. The main issue in this appeal is whether the Court of Appeal was 35 right in ordering the appellant to pay costs personally instead of out of the estate. In their judgment the Court of Appeal said inter alia: "In the process of the administration of the estate of an intestate deceased of the Mohammedan faith, one Kultumi Deen (nee Abayeh), there arose a series of errors for which 40 we hold the respondent officially liable." 315 THE AFRICAN LAW REPORTS The person there referred to as respondent is the present appellant. I have searched the record for any evidence to support this state­ ment by the Court of Appeal. I regret to say, with respect, that my search has been in vain and that there is no evidence to support 5 or warrant such a bold assertion by the Court of Appeal. Indeed, in my opinion, the evidence is to the contrary. It is pertinent to recall that the appellant was informed by Zainabu Fatmatta Sankoh that Kultumi Abayeh had died intestate leaving estate within the jurisdiction of the court. The machinery for obtaining 10 an order for a grant of letters of administration of the estate of the deceased was thus set in motion. Section 10 of the Admin­ istration of Estate Act (cap 45 ), sets out the steps to be taken by the Administrator-General after receiving the prescribed infor­ mation. It is not necessary for the purposes of this judgment to 15 reproduce the section, but suffice it to say that it provides that ~ (i) the Administrator-General shall serve notice on the widow or widower, next-of-kin and others and publish the notice in the Gazette and any other public paper calling upon the widow or widower and next-of-kin etc. within one month of such service 20 or publication to show cause why an order should not be made for him to administer the estate, and (ii) if no cause is shown to the satisfaction of the High Court within one month the Administrator-General shall petition the High Court for an order granting him letters of administration 25 of the estate. It was after the appellant had received the said written infor­ mation and the machinery for obtaining a grant by him had been put in motion, that the respondent applied for a grant to him of letters of administration of the estate of the deceased. According 30 to s.9(2) of the Mohammedan Marriage Act (cap. 96), the respon­ dent was only entitled to a grant of letters of administration in preference to the appellant if he was: "(a) The eldest son of the intestate, if of full age according to Mohammedan law, or 35 (b) The eldest brother of the intestate, if of full age accord- ing to Mohammedan law." The respondent claimed to be the lawful brother of the deceased according to Mohammedan law. It is patently clear that such a claim by the respondent did not entitle him to a grant of 40 letters of administration of the estate of the deceased. According to s.9(2) of the Mohammedan Marriage Act (cap. 96), to be 316 ADMOR.-GEN. u. BIAKIEU,1972-73 ALR S.L. 310 ' ' 0 S.C. entitled to a grant of letters of administration, the respondent had to prove that he was the "eldest brother" of the deceased and not merely that he was the "lawful brother of the deceased." There­ fore in my opinion, on the basis of the claim of the respondent alone, if on no other ground, the appellant was entitled and 5 justified to dispute and oppose the grant of letters of administra- tion of the estate of the deceased to the respondent. And in addition the Court of Appeal had said in a considered judgment delivered on April 23rd, 1970 inter alia (1970-71 ALR S.L. at 51): . 10 "This matter should have gone to the Administrator-General in the first place and the plaintiff was wrong in suing as she did. The fact that she is a Mohammedan did not alter the position in my opinion. I would dismiss her appeal, holding that the matter be taken up by the Administrator-General." 15 Without going into the question of whether or not the judgment of the Court of Appeal constituted sufficient written information under s.lO(l) of the Administration of Estates Act (cap. 45 ), the Court of Appeal by the above-quoted statement and other state­ ments in the judgments, had clearly indicated that the appellant 20 was entitled to letters of administration of the estate of the deceased in preference to the respondent. In the circumstances I am of the opinion that the appellant was justified in entering a caveat to a grant of letters of administration to the respondent, if for no other reason but for the respondent 25 to prove to the satisfaction of the court that he was not only the lawful brother of the deceased according to Mohammedan law but was also the eldest brother of the deceased according to Mohammedan law and thereby entitled to a grant of letters of administration of the estate of the deceased in preference to the 30 appellant. It was contended by counsel for the respondent that the order appealed against is justifiable on the ground that the appellant was guilty of culpable neglect of duty by his failure to investigate adequately or at all the respondent's claim or entitlement to a 35 grant. But what was the respondent's status which ·he claimed entitled him to a grant? It was, as stated in para. 1 of his state- ment of claim, that he was the lawful brother of the deceased according to Mohammedan law and one of the persons entitled to share in the estate of Kultumi Deen (nee Abayeh) etc. Is this 40 a claim that deserves investigation? In my opinion, it is not, for 317 , THE AFR~CAN LAW REPORTS the simple reason that the proof of such a claim would not entitle the respondent to a grant of letters of administration under s.9(2) of the Mohammedan Marriage Act (cap. 96). And even assuming that the appellant investigated the claim and found it to 5 be true, the appellant would still be justified in resisting the claim to a grant of letters of administration because, as I have said before, the proof of such a claim would not entitle the respondent to a grant of letters of administration. In my judgment the finding of the learned trial judge that the respondent was "the elder 10 brother" and not the eldest brother of the deceased vindicated the appellant's action in challenging the claim of grant of letters of administration by the respondent. Indeed there was no evidence before the learned judge that the respondent was the eldest brother of the deceased and Dr. Marcus-Jones, learned counsel 15 for the respondent, conceded that before us. In view of the foregoing I am of the opinion that the appellant was not liable officially or otherwise for errors, if indeed there were any, which might have been committed in the administration of the estate of the deceased. 20 But even if the appellant had been guilty of errors in connection with the administration of the estate of the deceased, could he be held personally liable? Counsel for the respondent answered this question in the affirmative relying on s.6 of the Administration of Estates Act (cap. 45), the relevant part of which (as amended) 25 provides: "Neither the Administrator and Registrar-General nor any agent shall be personally liable to any person in respect of assets in the possession at the time of his death of any person, whose estate shall be administered by the Admin- 30 istrator and Registrar-General ... and generally neither the Administrator and Registrar-General nor any agent shall be liable for any act done bona fide in the supposed and intended performance of their duties, unless it shall be shown that such act was done not only illegally but wilfully or with 35 gross negligence." Dr. Marcus-Jones submitted that the appellant had acted mala fide, wilfully and with gross negligence. I, for my part, do not think that this submission has any merit because there is no evidence that the appellant acted "mala fide or wilfully or with 40 gross negligence." The submission also ignores the very important words in the section "not only illegally." In my judgment, if the 318 , ADMOR.-GEN. v. BIAKIEU, 1972-73 ALR S.L. 310 S.C. Administrator-General has done any act wilfully or with gross negligence but bona fide in the supposed and intended performance of his duties, he is not personally liable unless he had also acted illegally. Similarly, if he has acted illegally he is not personally liable unless he has also acted wilfully or with gross negligence. 5 There is no evidence, and indeed no suggestion by counsel for the respondent, that the appellant acted illegally. In my opinion, s.6 of the Administration of Estates Act (cap. 45 ), and similar statutory provisions are for the protection of public officers in the public interest. The appellant was indisputably a public 10 officer and public policy dictates that such officers acting bona fide and in the honest performance of their duties should act without any fear or threat of being made personally liable for their actions. To ignore this principle would be putting public officers in an intolerable and unenviable position. 15 It was suggested on behalf of the respondent that the appellant should be made personally liable for the costs because there was some irregularity in his appointment as "Official Administrator." But with respect, the appellant did not appoint himself and I do not think that there is any principle of law or justice which would 20 make him personally liable in such circumstances. If indeed there was any irregularity in his appointment, and we are not called upon to decide that issue, it has been rectified by the Administra- tion of Estates (Amendment) Act, 197 2, which was made retro­ spective to May 14th, 1964. The Amendment Act substituted 25 the words "Administrator and Registrar-General" for the words "Official Administrator" wherever the latter words appear in the Administration of Estates Act (cap. 45), and made the Admin­ istrator and Registrar-General a corporation sole. In my opinion the manifestly erroneous view of the Court of 30 Appeal that the appellant was "officially liable" for certain errors in the administration of the estate of the deceased, which pre­ sumably was the basis for the order for costs, is a sufficient ground for disposing of the appeal in favour of the appellant. But Dr. Marcus-Jones further contended that the Court of Appeal had 35 exercised a discretion in ordering the appellant to pay the costs personally and that in the circumstances, this court should not interfere. I agree that as a general rule costs are in the discretion of the court. But this rule is subject to certain well-established exceptions and to the overriding principle that the discretion must 40 be exercised judicially. Mr. Rogers-Wright submitted that by virtue 319 THE AFRICAN LAW REPORTS of s.15 of the Administration of Estates Act (cap. 45), the appel­ lant is a trustee and that he is thereby entitled to the payment of his costs out of the estate by virtue of 0.46, r.1 of the High Court Rules. Section 15 of the Administration of Estates Act (cap. 45), 5 as amended, provides as follows: "The Administrator and Registrar-General and every admin­ istrator appointed under this Act shall be deemed a trustee within the meaning of any Imperial Statute or local Act, now or hereafter to be in force, relating to trusts and trustees." 10 and the relevant part of 0.46, r.l reads: "Subject to the provisions of any Act and these rules, the costs of and incident to all proceedings in the High Court including the administration of estates and trusts, shall be in the discretion of the court: 15 Provided that nothing herein contained shall deprive an executor, administrator, trustee or mortgagee who has not unreasonably instituted or carried on or resisted any pro­ ceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules 20 hitherto acted upon in the High Court of Justice in England. " I do not think that it is disputed that the Rules of the High Court have statutory effect. Dr. Marcus-Jones' contention was that the appellant acted unreasonably in resisting the claim by the 25 respondent for a grant of letters of administration. With respect, I do not agree that the appellant acted unreasonably. In my opinion all the evidence points unequivocally to the conclusion that the appellant acted reasonably in resisting the respondent's claim. In my judgment therefore the Court of Appeal acted 30 erroneously in depriving the appellant of his costs out of the estate. I share the view that when it is shown that the Court of Appeal in dealing with costs has fallen into error on a point of law which governs or affects costs, that is sufficient ground for allowing an 35 appeal as to costs (see Donald Campbell & Co. Ltd. v. Pollak (3)). For the foregoing reasons I would allow the appeal and set aside the order of the Court of Appeal relating to costs. I would order that the appellant's costs in this court and the courts below be paid out of the estate. 40 With regard to the respondent's costs, I think that the learned trial judge had ample justification, on the basis of the evidence 320 SECTION 40 MENDEKIA v. BERESFORD-COLE, 1972-73 ALR S.L. 321 C.A. before him, for depriving him of his costs out of the estate. A piece of the respondent's evidence referred to by the learned judge in his judgment is not only curious but telling. The respon­ dent said: "I am of the opinion that it is desirable for letters of admin- 5 istration to be gran ted to me instead of the Administrator- General in the light of previous court proceedings I have referred to. It is because although I bought property from the deceased she did not transfer the same to me, that I am of the opinion that. it is desirable for letters of administra- 10 tion to be granted to me." I, for my part, taking all the circumstances into consideration, would deprive the respondent of his costs out of the estate and order that he bears his own costs in this court and the courts b~ow. 15 Order accordingly. MENDE KIA v. BERESFORD-COLE Court of Appeal (Percy Davies and Tejan, JJ. A. and Rowland Harding, J.): July 11th, 1973 (Civil App. No. 12/72) [ 1] Agency-characteristics of relationship-relationship exists when ''principal" authorises "agent" to represent him and affect his legal relations with third parties: The relationship of agency exists between two persons when one, the principal, expressly or impliedly authorises the other, the agent, to represent him and affect his legal relations with third parties (page 329, line 27- page 330, line 5). [ 2] Building Contracts, Architects and Engineers-damages-measure of damages-difference between agreed price and actual cost of completing contract work: The measure of damages for failure by a contractor to complete a building or engineering contract is the difference between the agreed contract price and the actual cost of completing the contract work (page 334, lines 15-20). [ 3] Building Contracts, Architects and Engineers-implied terms-time of performance-time not of essence in absence of contrary express words­ if not of essence, employer's remedy for late completion damages not repudiation: In the absence of express words making time of the essence of a building contract the contractor's failure to complete work within the time specified will not amount to such a breach as would release the employer from the contract although it may entitle him to damages (page 332, lines 15-20). 321 20 25 30 35 40