EDOZIEN V. AMADI
| Pages | 180-182 |
180
NIGERIAN SUPREME COURT CASES
[1962] N.S.C.C.
EDOZIEN V. AMADI
5
DR. EDOZIEN
APPELLANT
V
E. A. AMADI
RESPONDENT
10
SUIT NO. FSC 91/1961
FEDERAL SUPREME COURT
ADEMOLA,
C.J.F.
UNSWORTH,
F.J.
BAIRAMIAN,
F.J.
15
30th April, 1962.
Civil Procedure - Wills - Executors and Administrators - Executors de- son-tort -
Assumption of authority of Executor - Intermeddling with goods of deceased
- Taking of goods from deceased's residence - Effect of - Proofs - Plaintiff
20
must prove that goods intenneddled with belonged to the deceased - Value
of goods.
ISSUES:
1.
What is the effect of an executor intermeddling with assets of a deceased
25
person?
2.
What must be proved to make a person an Executor
de-son-tort.
FACTS:
The Respondent claimed from the appellant £100 for constituting himself into
an executor
de-son-tort
by intermeddling with the property of his deceased brother. 30
Evidence showed that the appellant had packed and taken away goods belonging
to the deceased but no evidence was given as to the specific goods taken nor their
identity. Judgment was given against the appellant for failure to enter appearance.
He appealed to the High Court which dismissed the appeal and hence this appeal
to the Federal Supreme Court.
35
HELD:
1.
A person who intermeddles with the assets of a deceased person in such a way
as to denote an assumption of the authority or an intention to exercise the
functions of an executor is an executor
de-son-tort.
2.
To succeed in a claim against an Executor
de-son- tort,
plaintiff must establish
40
what goods were actually taken as the executor
de-son-tort
is only liable for
that portion of the deceased's property which he has taken. Evidence must also
be led to show the exact value of the goods.
3.
The Respondent was therefore held to have failed to establish a
prima facie
case against the appellant.
45
CASES REFERRED TO IN JUDGMENT:
1.
Peters v. Leeder: Peters v. Borguet(1878),
47, L.J.Q.B. 573; 43 J.P. 37.
2.
Lowry v. Fulton
(1939, 9 Sim, 115; 8 L.J. Ch. 314; 3 Jur. 454; 59
298.
3.
Yardley v. Arnold
(1842) Car & M. 434; 10 M. & W. 141; 2 Dowl. N. S. 311;
50
11
L.J.
Ex. 413; 6 Jur. 718; 158 E.R. 416.
Davis
for the Appellant.
Onyekwere
for the Respondent.
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