Alfred Olukutun Williams & Ii. C. Dankole-bright [1923] SLCA 6 (28 January 1923)

28t1~ January, 1923. !J-1 ALFRED OLUKUTUN '\VILLLUIS - Appellant. v. II. C. DANKOLE-DRIGII'l' - Reszwndent . Privity between part1"es 11etessary to a contract-Consent Order-­ Effect of su pe?•(l(]rl£ny conwwml of a J ud ye 11pon a contract. The facts of this case are sufficiently set out in the judgment. Appeal hom a juclgment of Purcell, C.J., in the Supreme Court of the Colony of Sierra Leone. TVright £or Appellant cites:- Anson, on Contracts, 12th I~d., p. 249. Leake, on Contracts, 6th Eel., p. 29G. Annual Practice, 1905, Part II, p. 356. Price 1'. }~aston, 4 B. & A., p. 433. T weddrl1.• .• \.tkinson, 30 L.J., Q.B., p. 265. Eley t:. The Positive Government Security Co., 1 Exch . Div., p. 89. In re Engli><h and Colonial Produc-e Co. (1906), 2 Ch., p. 435. N.J . P . M. Boston for Respondent cites:­ ""'~illiams, on Executors, p. 1,081. Clegg v . Rowland, L.R (1867), 3 Eq., pp. 368, 372, 374. PURCEL L , C.J. This is an appeal from the judg-ment of the Chief Justice deli,ered on 4th October, 1922. There has been considerable litigation with regard to t11e estate of Benja1nin Richard \Yilliams (deceased), and in order to understand this matter right1:, it will be necec;sary, as briefly as possible, to review the \arious step<> taken which culminated in the present action. Benjamin Richard Williams cliecl as long ago as the 4th o£ November, 1913, and "by an Order of this Court, bearing elate the 7th day of October, 1920, macle in the matter of the estate o£ the said B enjamin Rirhard ""Williams (deceac:ecl), the !:aid Court ordered (amongst othe1 thin~?s) that the Curator of I ntestate Estates should administer and ;.;ell the real and persona l estate o£ the said B<'njamin Rirharcl \Yilli:um (cl<>ceas<>d) left unndmin­ istered, and that afh·r satisfying certain payments in the saicl 95 Order mentioned, the said Curator of I nt<'state Estates should distribute ihe residue of the purcha:;e money amongst the perso1'" beneficially interesied in the said <'"late, and pay into Court llw shares of such of the said per<:ons as were infants. Robert Claudius Percv ·wminm:> was one of the natural and lawful children and next-~f-kin of the said deceased, and a party beneficially entitlt'd to a di,-tribulive share in the estate of the said Benjamin Richard "~illiams (deceased). Robert Clau(lius Perr·y Williams, by tleed bearing date the 12th day of December, HH9, in consideration of the love, good­ will and affection which he, the <>aid Rolwrt Claudius Perc~· ·williams had and bore for, and towards the Appellant, his nephew, and also in consideration of the sum of £150 paid to the said Robert C'laudius Percy ".illiams, granted and conveyed to the Appellant, his l1eirs and assigns, all his interest in the estate of the saitl Benjamin Richard \Villiams (deceased). This deed was proved and registered on the lOth day of August, 1920, and the Appellant's ~olicitor applied to the Curator o£ I ntestate Estates for payment of the distributive share of Robert Claudius Percy \Yilliam!; in the estate of Benjamin Richard \Villiams (deceased), amounting to about £500. On 14th .Tul~·. 1!)21, Mr. C. E. Wright (Appellant's solicitor) received i he following letter from the Curator: - " Sir, " EsTATE OF B. R. \ VILUA:us-DECEASED. " I have the honour to acknowledge receipt of your letter " of yesterday's date, and to inform you that ] have with ­ " held acting on the Indenture, dated the 12th December, " 1919, for the reason that I ha>e recei>ed a letter from a " Ur. Eldred \"\Tilliams, a beneficiary in the above estate im­ " pugning the docUlll(lnt, though prima facie it appears to " me a >alid one. It is intended by me, in order to remove " all doubts, lo take the opinion of the Court as to the validity " of the document, but owing to pressure of other business, " I have as yet been unable to do so. " 2. If, however, you intend making an application to " the Court, I can have no objection. "I have the honour to be, Sir, " Your obedient Servant, " J . R. WRI GHT, "C'urator of Intestate Estates," W ILLt.A.MS v. B ANKOLE ­ BRIOHT. PtraCELL, C.J. WILLIAXS tl. RANKOLT · BRIGJJT. ['unCFI.T., C.J. 96 Stepg were takc>n in clue c>ourse to te<:i tl1e >alidity of the deed of gift, and !lit> matter was referred hy tht> L.\din~ Chief Justice to the 1Iastc>r of thi::- Comt pir. F::nn·ett), wl10 dealt with the matter and uHi mately- macl(' lhe following report : - " In pursuanre of direetions given to me by His Tionour, ")Iichael Franci;; .Joseph :\f("Donnell, Acting Chief Ju;;tice, " I hereby certify that the rc>sult of the enquiriec:: which have " been taken and made in pursuance of the Order made in " this matter, dated the 2Hth <lay of Oc·tober, 1921, is as '' follows :- " The Petitioner ancl Re<;pondent ha;e attended by " their re<:pectiw :;olicitor~. "1. The Deed clatc><l 12th Dc>rc>mber, 1919, and " made between Robc>rt C'laudius Pc>rry "Williams of " the one pnrt nnd thc> Prtitioner of the other part, was " duly exeruted by tlw -;aid Robert C'lnndiuc:: Percy " Williams. " 2. The suid Dec>d was not exN·uted under any "undue influence of the said Petition<'r. " The evidence produrecl in this enquiry consists of: ­ " I .. etters of Adminic::tration under the sc>nl of the e<;tate of " the sairl Roh<>ri f'l::mdiu.; P"l'ry Willianl"; the Df'Nl of " 00J1>Cyanre elated the 12th cb)' of Dercmher, 191!), allCl " made betWN'Il the <;aid RohPri Clnudiu<; PPrry "\Villinm~'> of " the one part and the ~ai1l Pt>titioner of tl1c other pnrt; a " number of nrrounts due from the ec;tate of the c;aid Rohert " Perry Clau1lius "\\illimns, deceased; and .-m·ious doeu ­ " meuts purpol'fing to hP ~ig-necl by the f;aid Robert Perc~· " C'laudius \Yillinms. mHl the oral eYicle11re 1'l't'a-rort> of "Eldred B!!f'''lon Willi~nh. Randolph Roberts, J\lfJ'Nl " Ellinton Olukutun \Yilli:Jms, Rylnmu" .Tuxon ~mifh, "Peter Ahdiel Nirolls and C'lau:le Bc>njnmin D:n·ic>~'> . "Dated ihil'> 4th day of April, 1922." Ultimately, on -Tune last, the ~\ppellant pP.tiiioned the Court nc: follo''""s :- "Your Pf'titionPr therc>forr humbly rrays :- " 1. That thc> Curntor of Inte,;tni<' E~'>tates rny to " ~·our Petitionc>r all sum or sums of monc>y clue to thc> said "Robert Claucliu" Perey ~'illinm-<. derf'n.;f'd, as his distrihu- 11 tiY<> <;hare and intt>re·d in lh!' estate of thr late 13f'njnmin "Hichard \Yilliams, clecc>ascd. 97 " 2. Or that such further Oriler may be made in tlw " premises n~ to this Honourable Court may seem meet. " And your Petitioner as in duty bound will ever pray . " Dated 21th day of July, 1921." And the matter was subsequently settled between the parties, the following consent Order was made:- "The 26th day of June, 1922. " Upon the further hearing of the petition of Alfred ·' Olukutuu \Villinms, of Freetown, in the Colony of Siena " Leone, at present residing at Boia, in the Protectorate o[ " the Colony aforesaid, Ci'il Service Officer, on the 27th day "o£ July, 1921, preferred to this Honourable Court, and " upon hearing llh. Claude Emile \Vright, Counsel for the " Petitioner, and nir. Claudiu s Dyonisius Hotobah During, " of Counsel for Eldred Egerton \Y.illiams, the administrator " of the personal estate of Robert Claudius Percy Williams, " deceased, and upon reading the said petition, the Order " made on the original hearing thereof dated the 26th day " o£ October, 1921, the :Master's certificate dated the 4tb " day of April, 1922, and the l)etitioner, by his Counsel " undertaking to pay all valid claims against the estate of " the said Robert Claudius Percy "Williams and all partiP;; " by their Counsel consenting to the following Order, this " Court doth order that the Curat01· of Intestate Estates " do pay to the said Petitioner, Alfred Olukutun Williams, " all sum or sums of money due to the said Robert Claudiu::: " Percy Williams, deceased, as his dish·ibutive share aud " interest in the estate of the late J~enjamin Richaul " ·williams, deceased, in the hands of the said Curator of " I ntestate Estates, and that the said Petitioner do pay to " the said Eldred Egerton Williams, as administrator, as " aforesaid, the sum of £92. 19s. 6d., and the further Stllll " of £30 for his Solicitor's costs, as agreed upon, making " together the sum o£ £122. 19s. 6d." In consequence of one of the terms o£ this Consent Order­ that is, by reason of the fact that Appellant undertook to pay all valid claims against the estate o£ Ro'bert Claudius Percy Williams-the Respondent brought the present action, and tl1e sole question for decision here is whether in law such an action i ~o maintainable against the Appellaut. In view of the facts ''hich I haYe just recited, I am very doubtful indeed whether tl1is £:)00 waf' really OYer part o£ the WILLI.uis ­ tl. BANK OLE · BRIGHT. PuRCELL, C.J. 98 WILLIAKS estate of Robert Claudius Pt>n·y ".illia111". I :un inclined to v. B ANXOL• · BBIG B'l' . Pl:llCBLL, C.J, agree with the view taken by the Curator, as expressed in his letter of .July 14th, 1921, already referred to. Be that as it may, I am quite rlear, now that all the facts are fully before me, that in law uo ad ion is maintainable agaim;t the Appellant by reason of tllt' und(•rlakiu~ given to the Court, but that the administrator is the proper per~Orl to sue with regard to any claims set up as agaiJlsl this dcceas<.>d man's estate . At the !'ame time I regret that at the time ,,.l1en this Consent Order -was drawn up. this fad wa-.. nol made apparent to me, as, had it been so, I should not have allowed lhe order to sland in its present form . For these reasons I come to tho conclusion, and with con­ siderab le regret, lhal thi:; appeal must be allow('d, -with costs, and as a consequence the jud~ment of the Court below should be set aside, wit h costs. McDONNE LL, Acting J. The contract in this case was between Robert Claudius Percy W illiams, deceased, and Dr. Bright, the Respondent . There has ne~er been any pri>ity between .Alfred Olukutun Williams, the Appellant, an(l the Respondent. The Jud ge's Order of ~Gth June, 1922, cannot create a contractual relation­ ship between Appellant and Respondent. I am of opinion that judgment must be given for the .Appellant, with costs. SA WREY -COOKSON, J . I wish only to say that it at once became clear to me, from the argume nts advanced by 1\Il'. ·wright, that there was no such privity to any agr·eement in this cac:e as would render the present Defendant liable to be sued thereon, and for that reason alone this appeal must be allowed, with costs.