In re Jones (dcd.), 1972-73 ALR S.L. 122

5 10 15 20 25 30 35 40 SECTION 19 THE AFRICAN LAW REPORTS IN THE ESTATE OF JONES (DECEASED), JONES and JONES v. ADMINISTRATOR-GENERAL Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): June 23rd, 1972 (Civ. App. No. 23/71) (1] Succession-administration of assets-realisation of assets-court order for sale of land-sale by public auction unless otherwise specified-sale by private treaty only if judge making order specifically sanctions: When, in response to an application by the Administrator-General for an order empowering him to administer the unadministered portion of an intes­ tate's estate, a court order is made directing property to be sold without specifying the manner of its sale, it should be sold by public auction under conditions of sale approved by the judge making the order; if the property fails to sell at auction it can then only be sold by private treaty with the sanction of the judge who made the order (page 129, lines 1-23). [ 2] Succession- Administrator-General-grants of administration-adminis· tration de bonis non-grant not invalid because applied for and obtained under s.10 not s.16 of Administration of Estates Act (cap. 45): Although the Administrator-General should properly apply to the court under s.16 of the Administration of Estates Act (cap. 45) that letters of adminis­ tration be granted to him to administer the unadministered portion of an intestate's estate, the fact that he has applied for and obtained letters under s.10 of the same Act does not invalidate the grant (page 127, line 32- page 128, line 12). [ 3] Succession-probate and letters of administration~administration de bonis non-grant to Administrator-General not invalid because applied for and obtained under s.10 not s.16 of Administration of Estates Act (cap. 45): See [2] above. The Administrator-General applied to the Supreme Court (now High Court) for a grant of letters of administration in respect of the unadministered portion of the estate of the appellants' father. The appellants' father died intestate, survived by his wife and four children, including the two appellants. He died possessed of two properties one of which was sold by the widow who had been granted letters of administration. The other property was left unadministered when she died. The intestate's children, the beneficiaries, asked the Administrator-General to administer the unadministered portion of the estate, and the Administrator­ General accordingly petitioned the Supreme Court for the requisite order, under s.10 of the Administration of Estates Act (cap. 45), so as to sell the unadministered property and distribute the pro­ ceeds among the beneficiaries. The court (Massally, J.) made the 122 ~ ' • IN RE JONES (DCD.), 1972-73 ALR S.L. 122 C.A. order and the Administrator-General proceeded to find a purchaser for the property to whom he sold it by private treaty. This he did in spite of assurances from the second appellant that she would buy the property herself. Upon being informed that the Administrator-General had sold 5 the property against her wishes and without the authority of all the beneficiaries, the second appellant supported the first appel- lant in applying to the Supreme Court for an order to have (a) the order of court made by Massally, J. set aside; (b) the sale of the property purported to have been made under the order of court 10 declared void; (c) letters of administration of the unadministered estate granted to the first appellant; (d) the unsold property sold to any one of the beneficiaries within one month or thereafter by public auction, the proceeds to be distributed among the benefici- aries. The court (Browne-Marke, J.) reserved its decision for over 15 two years and then held that the Administrator-General was empowered to execute a conveyance of the property and that the purported sale of the property was therefore valid. The appellants appealed, inter alia, on the grounds that (a) the Administrator-General should have applied for letters of adminis- 20 tration of the unadministered portion of the intestate's estate by motion under s.16 of the Administration of Estates Act (cap. 45), and not by petition under s.10 of the same Act, so that the order made by Massally, J. was invalid; and (b) the Administrator-General sold the property without directions from the court or the consent 25 of the beneficiaries as he was statutorily required to do. The appeal was allowed. Cases referred to; (1) Barlow v. Osborne (1858), 6 H.L. Cas. 556; 10 E.R. 1412. 30 (2) Berry v. Gibbons (1872), L.R. 15 Eq. 150; 42 L.J. Ch. 231, applied. Fewry for the appellants. The Administrator-General appeared in person. PERCY DAVIES, J.A., delivering the judgment of the court: This appeal arises out of an order dated March 26th, 1969 (hereinafter referred to as "the order") made by Massally, J. (now deceased) on an application made by the Administrator­ General (hereinafter referred to as "the Administrator") by petition under s.l 0 of the Administration of Estates Act (cap. 45) (hereinafter referred to as "the Act"). The order is in the 123 35 40 THE AFRICAN LAW REPORTS following terms: "Upon Reading the Petition of Dunstan Emanuel Modupeh Williams, Acting Administrator-General, the petitioner herein, dated 5 March 18th, 1969 and the affidavit of the said Dunstan Emanuel Modupeh Williams sworn on March 19th, 1969 and filed herein: And Upon Hearing what was said by the said Mr. Dunstan Emanuel Modupeh Williams, acting Administrator-General, 10 It is Ordered that the Administrator-General do administer the unadministered portion of the estate of the said Havagar A. Jones, deceased. It is Further Ordered that the properties No. 7 Pultney Street and No. 56 Camp bell Street both in Freetown afore- 15 said be sold and after administration expenses to divide the residue amonst persons thereto entitled." The facts of the case are set out in the notice of appeal filed by the appellants and I hereby transcribe them in extenso: 1. The appellants are the lawful children of the said late Havagar 20 Archibald Jones and two of the persons entitled to benefit in the estate of the said intestate. 2. The second appellant supported her elder brother Benjamin M.O. Jones in applying to the court on June 2nd, 1969 for an order that- 2 5 ( i) the order of court made by Mr. Justice A.J. Massally, on March 26th, 1969 and filed on April 15th, 1969, be rescinded, cancelled and set aside ab initio; (ii) any sale of property known as 7 Pultney Street, Freetown purported to be made by virtue of the aforementioned order 30 of court be void and of no effect; (iii) the indenture of conveyance dated May 5th, 1969 and ex­ pressed to be made between Dunstan Emanuel Modupeh Williams, therein described as Administrator-General of the one part, and Abdul Osman Thomas herein also described as 35 of the other part, and registered as No. 225 in Vol. 235 of p. 95 of the Record Book of Conveyances kept in the office of the Registrar-General, Freetown, be delivered up to court for rescission and cancellation, and for rectification of the Register; 40 (iv) letters of administration of the unadministered estate be granted to the eldest brother, Benjamin M.O. Jones; 124 l IN RE JONES (DCD.), 1972-73 ALR S.L. 122 C.A. (v) the property known as 7 Pultney Street, Freetown be sold in the following mode and time: (a) to any one of the beneficiaries entitled thereto at the price of LelO,OOO within a period of one month; or (b) in the alternative and after a period of one month by 5 public auction at not less than a reserve price of LelO,OOO, and the proceeds paid into the estate of the late Havagar Archibald Jones for distribution to the beneficiaries lawfully entitled thereto; (vi) liberty to apply. 10 3. The learned trial judge received evidence between July 1st, 1969 and July 16th, 1969 when the learned trial judge reserved his decision. 4. Between July 16th, 1969 and September 2nd, 1971, that is to say, a period of over 25 months, the learned trial judge did not 15 give any decision in the matter. 5. The learned trial judge erred in holding that the order made by Mr. Justice Massally (since deceased) was a valid order. 6. Without prejudice to ground 5 above, the order made by Mr. Justice Massally (since deceased) was unintelligible and had 20 not been perfected and should be set aside. 7. Without prejudice to ground 5 above, the Administrator­ General, purporting to apply to the court to administer any unadministered estate, should have proceeded by motion under s.16(1), (2), and (3) of the Administration of Estates Act (cap. 25 45 ), and not by petition, and the learned trial judge should have so held. 8. Further, without prejudice to ground 5 above, if the Admin­ istrator-General purported to act under s.10 of the Act, then the Administrator-General should have obtained a grant of letters of 30 administration as his authority, and the learned trial judge should have so held. 9. The Administrator-General not having at any time obtained any grant of letters of administration did not have the property of the intestate vested in him, and so could not have dealt with the 35 estate, and the learned trial judge should have so held. 10. The learned trial judge in his judgment extensively dealt with No. 56 Campbell Street, Freetown and based his decision on the alleged way in which the first applicant, Benjamin M.O. Jones, had handled 56 Campbell Street when the Administrator-General 40 himself had stated that 56 Campbell Street was not part of the 125 THE AFRICAN LAW REPORTS estate to be administered by him. 11. The Administrator-General had not taken out any grant of letters of administration of the estate left unadministered of the late Havagar Archibald Jones, deceased, and this fact came in 5 evidence before the learned trial judge who nevertheless held that the appointment of the Administrator-General as administrator for the unadministered portion of the said estate should stand and that he had power to execute a conveyance without a grant of letters. 10 12. Without prejudice to grounds 10 and 11, the evidence before the trial judge was that the Administrator-General purported to sell the said property without directions from the court in spite of common knowledge that all the beneficiaries had agreed to post­ pone the sale thereof and nevertheless the learned trial judge held 15 that the purported sale was valid. 13. The evidence before the learned trial judge was that nowhere did the Administrator-General recite in the conveyance that he had a grant of letters of administration, and yet the learned trial judge held that in his view the conveyance was a valid conveyance. 20 14. The learned trial judge misdirected himself that s.16 of the Administration of Estates Act (cap. 45) could not apply in this matter because the administratrix had died before . filing the petition. 15. The learned trial judge misdirected himself in holding that 25 the Administrator-General had acted under s.23 of the Act, where­ as the original petition was patently made before Mr. Justice A.J. Massally (since deceased) on March 26th, 1969, under s.10, as apparent in the record. The relief sought from the Sierra Leone Court of Appeal was: 30 1. That the judgment and order of the Honourable Mr. Justice Browne-Marke, made on September 2nd, 1971 be set aside. 2. That the order of Mr. Justice A.J. Massally made on March 26th, 1969 be rescinded, cancelled and set aside ab initio. 3. That the sale of No. 7 Pultney Street, Freetown be declared 35 void and of no effect. 4. That the indenture of conveyance purported to have been made in respect of the said sale be delivered up for cancellation and recission. 5. That letters of administration of the unadministered part of the 40 estate of the late Havagar Archibald Jones be granted to the first appellant herein or to the second appellant herein. 126 4 IN RE JONES (DCD.), 1972-73 ALR S.L. 122 C.A. The appeal is against the judgment and order of Browne-Marke, J., as he then was, dated September 2nd, 1971. I shall now proceed to deal with the order, and consider ground 5 of the grounds of appeal. Havagar Archibald Jones, deceased (hereinafter referred to as "the intestate") married Priscilla Zep- 5 porah (hereinafter called "the widow") and by the union they had four children, viz., Benjamin, Priscilla, Princess (married Coker) and Havagar (junior) (all hereinafter referred to as "the benefici­ aries"). The intestate died on November 26th, 1951, and was survived by the widow and the beneficiaries. He died possessed of 10 real property at No. 7 Pultney Street and No. 56 Campbell Street, both in Freetown. Letters of administration were granted to the widow, who in the course of administering the estate realised the property at No. 56 Campbell Street, and the proceeds arising therefrom she distributed according to law, i.e., one-third to 15 herself and the remaining two-thirds to the beneficiaries in equal shares. The widow died on December 4th, 1963 without having completely administered the estate. The only asset left unadmin­ istered was No. 7 Pultney Street. The beneficiaries moved the Administrator to take up the administration of the unadministered 20 portion of the estate and on March 18th, 1969 the Administrator applied to the court for an order empowering him to administer the estate in the following terms: "(a) That the Administrator-General administer the unadministered portion of the estate of Havagar Archibald 25 Jones (deceased) and (b) That the properties No. 7 Pultney Street and No. 56 Campbell Street, both in Freetown, be sold and the proceeds thereof paid into the said estate for the benefit of the ben- eficiaries as aforesaid." 30 The order already referred to was made on March 26th, 1969. The question I now have to consider is this: was the Adminis- trator right in proceeding under s.l 0 in the case of administration de bonis non? Section 16 of the Act provides that where letters of administration of the estate of any deceased person have been 35 granted to any person and for some reason the estate has not been completely administered,then the Administrator or any interested person may apply by motion to the court or a judge thereof that letters of administration of the estate left unadministered of such deceased may be granted to the Administrator or any other person 40 on the ground that it would be beneficial to all persons interested 127 THE AFRICAN LAW REPORTS that the estate be administered by the Administrator or such other person. It follows therefore that the Administrator should properly have proceeded under s.l6 and not under s.lO of the Act as he has 5 done. The question arises: Is his failure to proceed under s.16 a sufficient reason to revoke the order made under s.lO? I hold that what the Administrator wanted was an order to administer the unadministered portion of the estate of the deceased and whether he approached the court by means of a motion or a petition was 10 immaterial. The material thing was to obtain the order to admin­ ister which he got. I therefore hold that the order obtained under s.10 is not invalid. I now come to ground 6 which states that "the order made by Mr. Justice Massally (now deceased) is unintelligible and has not 15 been perfected and should be set aside." The order made by the late judge was drawn up and filed. The filed order appears on p. 8 of the records. I am therefore at a loss to understand in what way the order has not been perfected so as to cause it to be set aside. I am also equally at a loss to understand in what way the order as 20 drawn up is unintelligible. I transcribe below the relevant portion of the order as drawn up: "It is ordered that the Administrator-General do administer the unadministered portion of the estate of Havagar A. Jones, deceased. 25 It is further ordered that the properties No. 7 Pultney Street and No. 56 Campbell Street both in Freetown afore­ said be sold and after administration expenses to divide the residue amongst persons thereto entitled." Although the second paragraph of the order is not couched in 30 the best language, and is not syntactically perfect, I can under­ stand what it means. In my view the order is by no means unintel­ ligible and therefore this ground fails. I now come to ground 12 which, to me, is the most important of all the grounds of appeal. It reads: 35 " ... the evidence before the trial judge was that the Admin­ istrator-General purported to sell the said property without directions from the court in spite of common knowledge that all beneficiaries had agreed to postpone the sale thereof and nevertheless the learned trial judge held that the purported 40 sale was valid.'' The order is that No. 7 Pultney Street be sold. It is not stated in 128 IN RE JONES (DCD.), 1972-73 ALR S.L. 122 C.A. what manner the property is to be sold. Where a judgment or order is given or made, whether in court or in chambers directing anY property to be sold, unless otherwise ordered, the same must be sold with the approbation of the judge to whom the cause or matter is assigned to the best purchaser that can be got for the 5 same. The judge ordinarily directs that real and leasehold estates shall be sold by public auction under particulars and conditions of sale approved by him (Barlow v. Osborne (1); see also Daniell's Chancery Practice, 8th ed., at 941 (1914). I hold that when the order states that "No. 7 Pultney Street be sold," it means that 10 No.7 Pultney Street should be sold by public auction. The ques- tion now is: Has the Administrator any authority to sell under the order No. 7 Pultney Street by private treaty? In Berry v. Gibbons (2) the head-note states that it was held that- "When the Court has made an order for the sale of property 15 by public auction, and the sale has proved abortive, the parties cannot make a valid contract for sale of the property under the order by private tender · without the personal sanction of the judge who made the order." In other words, proposals for the purchase by private treaty 20 must be put to the court and the court may direct such property to be offered for sale by private treaty or otherwise to the highest bidder. I therefore hold that the Administrator had no authority whatsoever to sell, as he did, No. 7 Pultney Street, by private treaty. 25 I shall now inquire into the circumstances leading to the sale of No. 7 Pultney Street by private treaty. [The learned Justice of Appeal then reviewed the evidence which disclosed that at the beginning of April 1969 the Adminis­ trator-General informed the second appellant that her younger 30 brother had brought a purchaser for the property to him and that the purchaser was offering LelO,OOO for it. The second appellant, who attached great sentimental value to the house, told the Administrator-General not to sell it to an outsider and reminded him that she herself was willing to buy it for Le10,000. When she 35 arrived at the Administrator-General's office on the following day for further discussions, he informed her that the purchaser had already paid the purchase price and that nothing could now be done about it. The learned Justice of Appeal continued:] I cannot but agree with counsel for the applicant in the court 40 below when he submitted that the sale was void for the following 129 THE AFRICAN LAW REPORTS reasons: "(a) The Administrator-General had knowledge that all the beneficiaries had not agreed to the said sale; (b) The Administrator-General acted with undue haste even 5 to the extent of unconsciously misleading the court .... " From the record of appeal it is evident that the Administrator himself knew of the efforts being made by Priscilla to raise the necessary amount to buy out the other beneficiaries. I now come to the question as to when the Administrator can 10 extract a grant of letters of administration. Section 9 of the Act notionally vests the estate of every person dying intestate in the Administrator. Upon the grant of letters of administration under the provisions of the Act, the estate is divested from the Adminis­ trator and is vested in the person or persons to whom letters of 15 administration are granted. No obligations fall on the Administrator. It is a mere matter of necessary convenience and protection which has led to the intro­ duction of s.9 of the Act. The whole operation of the section is that where the condition is fulfilled of a person dying intestate 20 his estate, real and personal, vests in the Administrator and that property remains vested in him until the second condition is fulfilled, namely, that administration is granted in respect of the property. When the Administrator has been moved to administer the 25 estate of an intestate under s.1 0 of the Act, his first duty is to obtain an order of court ordering that letters of administration be granted to him to administer the estate. Thereafter he, amongst other things, brings in the assets so as to enable him to determine the quantum of the estate he is administering on which stamp 30 duty, estate duty, administrator's fees, etc. are determined. In the course of this drill, he may dispose of or realise any of the assets in accordance with the directions of the court. In some cases he may even sell without the direction of the court, as in the case of perishables and livestock. Being a trustee, the Administrator must 35 act in the best interests of the beneficiaries. After having gone through this exercise, then and then only does he extract a grant of letters of administration which relates back to the date when the owner of the estate died as if there had been no interval of time between the death and the grant of letters of administration 40 (see s.14 of the Act). I therefore find no substance in the argu­ ment that the Administrator did not extract a grant before embar- 130 4 IN RE JONES (DCD.), 1972-73 ALR S.L.122 C.A. king on the administration of the estate of the intestate. In order to prevent injury being done to a deceased person's estate without remedy, the courts have adopted the doctrine that upon the grant being made the title of the Administrator relates back to the time of death. 5 Finally, I would now deal with ground 4 of the grounds of appeal which reads: "Between July 16th, 1969, and September 2nd, 1971, that is to say a period of over 25 months the learned trial judge did not give any decision in the matter." 10 I find it difficult to appreciate whether this is really a ground of appeal or a protest that the learned trial judge took an inordi­ nately long time in giving a decision in the matter. If it is a protest, then the Court of Appeal is not the proper authority to which such protest can be made. If it is a ground of appeal, then all I 15 need say is that justice delayed is justice denied. Counsel for the wpellants has suggested that because of the inordinate delay' the trial judge took into consideration facts touching on property No. 56 Campbell Street even though the Administrator had told the GQ'-lrt in plain and unmistakable language that this property 20 did not form part of the unadministered portion of the estate of the intestate. The result is that the appeal succeeds in regard to the sale of property No. 7 Pultney Street by private treaty and I therefore order that- 25 1. The sale by the Administrator of No. 7 Pultney Street by private treaty is void and of no effect. 2. The indenture of conveyance purported to have been made in respect of the said sale dated May 5th, 1969, and expressed to be made between the Administrator and Abdul Osman Thomas 30 and registered as No. 225 in Vol. 235 at p. 95 of the Record Book of Conveyances kept in the office of the Registrar-General be delivered up to the Master and Registrar for rescission, cancel­ lation, and subsequent rectification of the Register. 3. The Administrator do sell the property No. 7 Pultney Street to 35 the beneficiary Priscilla Jones at the price of Le10,000 within the period of three months from the date of this judgment; failing which, to any of the other beneficiaries within a further one month; failing which, by public auction at a price of not less than a reserved price of Lel 0,00: the proceeds of sale to be paid to the 40 Administrator for distribution amongst the beneficiaries according 131 5 SECTION 20 THE AFRICAN LAW REPORTS to law after deducting any necessary fees and stamp duty. The appellants are entitled to costs, such costs to be taxed and paid by the Administrator. Order accordingly. BULL and OTHERS v. KALIL High Court (Tejan, J.): September 19th, 1972 10 (Civil Case No. 205/71) [ 1] Estoppel-record-res judicata-parties estopped from denying not only facts and issues fundamental to decision in previous proceedings but also all matters which could have formed part of case if pleaded: Parties to litigation on a given matter should plead the whole of their case at that 15 time and once final judgment has been given are estopped in subsequent proceedings from denying not only facts and issues which were funda­ mental to that decision but also all those matters which could reasonably have formed part of the case had they been pleaded (page 136, lines 6-24; page 136, line 28- page 137, line 5; page 137, lines 9-25). 20 The plaintiffs brought an action against the defendant to recover certain property. The plaintiffs were beneficiaries under the will of a testator who died in 1920. The property in question was devised to his widow as tenant for life and after her death or remarriage to the plaintiffs 25 as tenants in common. In 1951 the tenant for life executed a building lease in favour of the defendant and in 1956 she executed a supplemental lease in his favour extending the term to 91 years. She died in 1957. In 1958 the plaintiffs brought an action against the defendant 30 to recover the property on the ground that the tenant for life had exceeded her power in granting the lease. By their pleadings both parties assumed that the settlement was valid but in the course of the proceedings it appeared from the documents exhibited that the tenant for life had been one of the attesting witnesses to the 35 will creating the settlement. The Supreme Court (Bankole Jones, Ag.J.) held that the devise to the widow as tenant for life failed for this reason and that the leases were consequently invalid. The proceedings are reported at 1957-60 ALR S.L. 336. On appeal, however, the Court of Appeal held that the trial 40 judge misdirected himself in deciding the issue on facts which had not been pleaded, and upheld the lease as valid. The proceedings in the Court of Appeal are reported at 1 S.L.L.R. 167. 132 l