Administration of Estate

• Pages: 429-470

ADMINISTRATION OF ESTATE

(1) ACTIONS INVOLVING ISSUE OF TITLE

901. Action involving issue of title, which survives against deceased’s es-

tate.

(1) “It is therefore abundantly clear from the pleadings, that title to the land in dispute

is very much in question. Since the defendant is now dead, that portion of the land in

dispute which he claimed definitely becomes part of the assets of his estate. The

maxim actio personalis moritur cum persona in this case, therefore, can have no

application whatever to nullify the action in the appeal proceedings and the learned

justices of the Court of Appeal were in error when they held that the maxim was

applicable and could be invoked to defeat the action and therefore created a bar to

substitution of the respondent to carry on the proceedings. The action survives against

the estate of Y. O. Sanusi (deceased).” - Per Obaseki, J.S.C. in Eyesan v. Sanusi

Suit No. S.C. 107/1982; (1984) 15 N.S.C.C. 271 at 282.

(2) “If the cause of action is one that survives the death of either party, appointment

of a person or persons to carry on the proceedings in place of the deceased party is

a necessary function of the Court either of first instance or of appeal on application

by the person representative of the deceased or the beneficiaries of the estate or on

application by represented parties or on application by the other party so that the

proceedings can be brought to a close. Tesi Opebiyi v. Shittu Oshoboja & Anor.

(1976) 10 S.C. 195.” - Per Obaseki, J.S.C. in Eyesan v. Sanusi Suit No. S.C. 107/

1982; (1984) 15 N.S.C.C. 271 at 283.

(3) “Section 15 of the Administration of Estates Law also ensures and protects the

survival of the proceedings on appeal.” - Per Obaseki, J.S.C. in Eyesan v. Sanusi

Suit No. S.C. 107/1982; (1984) 15 N.S.C.C. 271 at 282.

(4) “The very expression used in the section, i.e. ‘all causes of action subsisting

against or vested in him shall survive against, or as the case may be for the benefit of

his estate’ implies that the beneficiaries of the estate against which an action survives

inherit the litigation. The respondents cannot therefore be heard to contend that the

appellants herein did not obtain the consent of the respondents who are beneficiaries

of the estate to be joined to carry on the defence on behalf of their deceased father’s

estate.” - Per Obaseki, J.S.C. in Eyesan v. Sanusi Suit No. S.C. 107/1982; (1984)

15 N.S.C.C. 271 at 283.

Actions involving issue of tittle Para. 901

429

(2) ADMINISTRATION AND DISTRIRIBUTION OF ESTATE

902. Distinction between administration of an estate and distribution of the

estate.

(1) “It is in my view a serious mistake on the part of the trial Judge to have equated

the administration of an estate with its distribution. This error in my view is reflected

by the remarks of the trial Judge that it would be unfair to the defendants to stop them

from collecting rents. The notion of unfairness could only come in if the Court had

believed that the defendants could collect rents and spend for themselves before

being granted letters of administration on the estate of the deceased. The necessity

to comply with the law may in some cases work hardship or inconvenience. But that

is not an excuse to break the law.

The trial Judge would appear to have unwarily supported the position that persons

who had not been granted letters of administration in respect of an estate could go

into the estate and start distributing it. If the trial Judge believed that the defendants

were merely engaged in protecting the estate by collecting rents for handing over to

the persons later appointed as administrators of the estate, he would not have found

it unfair to appoint an officer of Court or the Administrator-General a receiver of

such rents pending the determination of the suit before the Court? In paragraphs 23,

26 and 27 of her counter-affidavit, the 1st defendant deposed thus: - “23. That the

plaintiff/respondent had tried to blackmail the respondent to pay over to her some

money to enable her tidy herself from her finances now that the deceased is no

longer alive to assist her which was turned down. 26. That the applicant has no issue

with the deceased as against six legitimate Children the first defendant has for the

deceased. 27. That the estate finances should at the most be for the children of the

deceased who at all times are entitled to the estate.

From the position taken in the above depositions, it is quiet clear that the

defendants believed that they were entitled to go into the deceased’s estate to collect

rents and spend the same without obtaining letters of administration. I do not take the

view that the wife and children of the deceased should be left to suffer. Nor do I think

that the defendants should be allowed to intermeddle with the estate without obtain-

ing letters of administration. It would in my view have been quite proper to appoint

the administrator-general to take over the estate while the dispute was raging. The

Administrator-General would then be placed to pay out in the interim such amounts

as are needed to maintain the immediate dependants of the deceased.” – Per Oguntade,

J.C.A. in Anowo v. Anowo Suit No. CA/E/40/91; (1991) 7 N.W.L.R. (Pt. 201) 58 at

75 - 76.

(2) “The distinction between the administration of the estate of a deceased person

and the distribution of the properties comprised in the estate. The person or persons

who administer an estate do not necessarily have to be the beneficiaries of the es-

tate. The plaintiff’s case is that the defendants have not recognised her as a wife of

the deceased and that therefore it would be prejudicial to her interest in the distribu-

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Vol. 1: ADMINISTRATION OF ESTATE

Para. 902

tion of the estate if the defendants were allowed to administer the estate. She further

said that the defendants were engaged in collecting the rents from the deceased’s

properties and appropriating such rents to their own use without caring for her own

needs. In such a situation it would be a barren consolation to the plaintiff even if the

defendants are able to render an account at the end of the case. What can such

accounts show? They may show that rents collected from the deceased’s properties

have been used for the maintenance of the defendants. But they will not show that

some of such rents have been paid to the plaintiff for her maintenance. The truth of

course is that while the present position remains, the plaintiff will be denied the main-

tenance which the deceased who acknowledged her as his wife gave her.” – Per

Oguntade, J.C.A. in Anowo v. Anowo Suit No. CA/E/40/91; (1991) 7 N.W.L.R. (Pt.

201) 58 at 75 - 76.

903. Suing as administrator of an estate before grant of probate or letter of

administration.

(1) “That case, in my view is the authority for the proposition, inter alia, that a person

has no locus standi and lacks competence to bring an action in a representative

capacity as an Administrator of the Estate of a deceased person until he has been

granted the Letters of Administration. If he brought such action before the grant,

such grant has no retroactive validity to make the statue of limitation run through the

time the action was filed. Thus by the time of the grant, if the limitation period had

expired, any action pending will be statute barred.”- Per Ogundare, J.C.A. in Mallam

v. Mairiga Suit No. CA/K/164/90; (1991) 5 N.W.L.R (Pt. 189) 114 at 127.

(2) “It is trite law that the joinder of a party is an amendment, of the writ of summons

and the statement of claim, and those processes as amended should be served on all

parties, which amendment relates back to the time the writ or statement of claim was

filed, not the time of amendment. Rotimi v. McGregor (1974) 11 S.C. 133, 152; The

Government of Midwest State v. Mid Motors Nigeria Co. Ltd. (1977) 10. S.C 43,

56 It is however conceded that when the bringing of an action is governed by a

limitation law, filing of an application for the ioinder of a party involving the amend-

ment of the writ of summons and statement of claim should fall within the limitation

period not outside it.” - Per Ogundare, J.S.C. in Mallam v. Mairiga Suit No. CA/K/

164/90; (1991) 5 N.W.L.R (Pt. 189) 114 at 127-128.

904. Vesting of estate of deceased under Section 10 Administration of Es-

tates Law of Oyo State.

(1) “So, it appears that in England an executor de son tort cannot, because of the

estate of a person who dies intestate being vested in the probate Judge pending grant

of letters of administration to that estate, make any valid disposition of the deceased’s

431 Paras. 902-904

Administration and distribution of estate