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30TH MARCH, 1972

S.C. 83/1969.

3PLR/1972/74  (SC)



(1972) All N.L.R 264

(1972) 3 S.C. 165







  1. A. Lardner for the appellant.
  2. O. Akpedeye for the respondent.




LEWIS, J.S.C. (delivering the judgment of the Court): In Suit No. W/71/61 in the Warri High Court the plaintiff’s writ issued on the 8th November, 1961 read:-


Agharimuayire Imiko (Next-of-kin) of Uruetsone Emoefe (deceased) Plaintiff

  1. KafeneJeddo 1 .
  2. Robert Jeddo ‘.. Defendants


The plaintiff claims against the defendants:


(1)     Possession of the piece or parcel of land known and described as ‘Egodo Uruetsone’ (Uruetsone’s Compound) at Ukpokiti Quarters, Agbassa, Warri. The extent and limit of the said piece or parcel of land will be shown on a plan to be filed in court in this action.


(2)     An injunction restraining the defendants, their servants and/or agents from trespassing unto the plaintiff’s said piece or parcel of land at Agbassa aforesaid.”,


and paragraph 20 of the statement of claim read:-


“This action is brought by the plaintiff as the next-of-kin of Uruetsone Emoefe (deceased) as the said premises was his bona fide property at his death.”


After the hearing of the action began the plaintiff brought a motion asking leave of the court:-


“To amend the title of the action to read “AGHARIMUAYIRE IMIKO Administratix of the Estate of Uruetsone Emoefe (deceased)” and to file an amended statement of claim and for such further order or orders as to this Honourable Court may appear just and proper to make in the circumstances.”, and paragraphs 3 to 6 of the affidavit in support read:-


“3.     That at the time I instituted the action I had a certificate of inheritance from the then Warri Division Grade B Customary Court, Warri in respect of the estate of Uruetsone Emoefe (deceased).


  1. That the said certificate was later set aside by an order of certiorari made by this Honourable Court against me.


  1. That thereafter I proceeded to apply for letters of administration of the estate and this was granted to me-a copy of the said letters of administration for the estate of Uruetsone Emoefe (deceased) is exhibited and marked A.


  1. That I want to change the capacity in which this action is brought against the defendants, and also to amend my statement of claim in the case.”,


and letters of administration were also annexed showing the grant to the plaintiff on the 16th December, 1966, the deceased having died on the 22nd October, 1960. That motion was granted by Obaseki J. on the 20th October, 1968 and in accordance with this direction on amended statement of claim was filed on the 21st September, 1968 in which the heading and paragraphs 1, 19 and 20 read:-


“BETWEEN: Agharimuayire Imiko (Administratrix of the Estate of Uruetsone Emoefe (deceased))


  1. KafeneJeddo 2. Robert Jeddo






  1. The plaintiff is Urhobo, and a trader, residing at Agbassa, Warri, and she brings this action as the administratrix and personal representative of the estate of Uruetsone Emoefe (deceased).


  1. As the position did not improve the plaintiff applied to the Warri Division Grade B Customary Court for a certificate of inheritance where she was granted the said certificate. At the time Uruetsone Emoefe died he was within the jurisdiction of the said Customary Court, and the property was also within the Court’s jurisdiction, and the value of the landed property was not more than one hundred pounds. Before the certificate of inheritance was given to plaintiff the Customary Court heard the defendants, but the said certificate was later set aside by the High Court, Warri.


  1. The plaintiff then applied for and was granted letters of administration by the Probate Registrar, High Court, Benin City. The said letters of administration have been verified by an affidavit and deposited in court. The letters of administration were in respect of the estate of Uruetsone Emoefe (deceased) and the estate includes the land in dispute in this case.”


The hearing then proceeded on that basis and on the 5th December, 1968 the learned trial judge gave judgment for the plaintiff for the relief sought concluding his judgment with the words:-


“The plaintiff by her appointment as administratrix is entitled to take possession of the compound and manage it for administration purposes. The defendants have no legal right to interfere with the management of the compound or collect rents from the tenants therein without the authority or consent and permission of the plaintiff. As it is clear that they, the defendants, have seized the property known as Uruetsone’s compound as their late father’s property, they are liable to deliver up possession of the Uruetsone’s compound to the plaintiff.


I do not decide the question of the person to whom the beneficial interest devolves. However, since 16th December, 1966 when letters of administration exhibit B were granted to the plaintiff, the legal title to the deceased’s property devolved on the plaintiff. She holds the property in the right of the deceased. It is the plaintiff’s case that the deceased puts 1st defendant on the premises. Consequently, by disputing the title of the deceased, the defendants lost their licence to be on the premises and plaintiff is entitled to judgment.


The order for recovery of possession and the order for injunction are hereby granted.


The defendants are to deliver up possession of Uruetsone’s compound to the plaintiff forthwith for administration purposes.”


The short point taken in this appeal by Mr. Lardner for the defendants as appellants is that the plaintiff’s claim as amended should have been dismissed as, according to the ground of appeal argued:


“Although the plaintiff recovered judgment as administratrix she had no cause of action as such at the date of issue of the writ of summons.”


Mr. Lardner’s point was that once the plaintiff got leave of the court to amend the claim and sue not as next of kin but as administratrix, then, as she did not sue in that capacity when the action was commenced by the issue of the writ, it must be dismissed as an administrator or administratrix could not commence an action till letters of administration were issued though he submitted that a person likely to become such an administrator could obtain from the court the appointment of a receiver pendente grant as was shown by Luxmoore L.J. in Ingall v. Moran [194411 All E.R. 97 when at page 101 he said:


“It is true that a person who ultimately becomes an administrator may start proceedings in the Chancery Division for the protection of an intestate’s estate and can obtain in proper case interim relief by the appointment of a receiver pendente grant, but in all such cases the person who institutes such proceedings has a beneficial interest in the intestate’s estate for he would not obtain a grant unless he had such an interest either as heir at law or as one of the next of kin or as a creditor. In such cases the well recognised practice in the Chancery Division is to indorse the writ in the first instance for the only relief then obtainable, namely the appointment of a receiver pendente grant, and to apply to amend the writ after the grant has been obtained, if further relief is required, by adding a claim for administration of the estate with or without specific directions with regard to any special relief required.”


In that case the father of the deceased intestate brought an action under the Law Reform (Miscellaneous Provisions) Act, 1934, for loss of expectation of life in which the writ was endorsed describing the father as administrator of the deceased son’s estate when he did not in fact get a grant of letters of administration until two months later, and it was held that the original writ was a nullity and could not be converted into a valid one by the subsequent issue of letters of administration as Scott L.J. at page 99 indicated when he said:


“As the writ was issued on 17th September, 1942, and there was no grant till 13th November, it follows necessarily that at the time of the writ issued the father had no shadow of title to his son’s surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Order III, rule 4, an action, in which he confessed, first, that he was not suing in his own right; and secondly, that he had no right in that action to prosecute any claim except in his representative capacity. The defendant could have demanded production of the non-existent letters of administration, and on the plaintiff’s failure to produce them the action would, on the defendant’s application, automatically have been struck out. Such an action was, in my opinion, incapable of conversion by amendment into a valid action … The old writ was in truth incurably a nullity; it was born dead, and could not be revived.”


Mr. Lardner also relied on Hilton v. Sutton Steam Laundry [1945] 2 All E.R. 425 as showing the same applied in an action a widow brought under the Fatal Accidents Acts as well as under the Law Reform (Miscellaneous Provisions) Act, 1934 “as administratrix of the deceased’s estate for the benefit of such estate” when at the time of the issue of the writ she had not been granted letters of administration and it was held that the original action was invalid and could not be validated by amendment. Finally, Mr. Lardner referred us to the Rules of the English Supreme Court in the 1970 Supreme Court Practice (The White Book) where at page 199 when dealing with Order 15, rule 14 it said:


“Suits before Probate or Grant of Administration.-Under the old law executors might sue before probate, but they had to allege probate, and could not go beyond the stage at which they had to prove their title: see Williams, Executors, pages 190, 192; D.C.P. 348, 349; Re Masonic, etc. Co., 32 Ch. D. 373. The court might stay proceedings until production of probate. (Tarn v. Commercial, etc., Co., 12 Q.B.D. 294). It appears that the law has not been altered in this respect by Ad. of E. Act, 1925. Quaere whether executors can continue existing proceedings before probate.


An action commenced by an administrator in his capacity as such before English grant of administration is a nullity, and any subsequent grant does not relate back so as to cure the defective title of the plaintiff (Ingall v. Moran) [1944] K.B. 160, C.A.; Hilton v. Sutton Steam Laundry [1946] K.B. 65, C.A.; Burns v. Campbell [1952] 1 K.B. 15, C.A.; Finnegan v. Cementation Co. Ltd. [1953] 1 Q.B. 688.”


Mr. Akpedeye for his part for the plaintiff/respondent relied on section 13 of the Administration of Estates Law (Cap. 1 of the Laws of the Western Region of Nigeria, 1959) applicable in the Mid-West which reads:-


“13.   Every person to whom administration of the real and personal estate of a deceased person is granted, shall, subject to the limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.”, and submitted that by virtue of that an administrator had the same rights as an executor once he was appointed and an executor could sue before probate as was shown by Williams and Mortimer on Executors Administrators and Probate (15th Edition of Williams on Executors) at page 82, though he conceded when it was put to him by this Court that section 13 of the Administration of Estates Law was in pari materia with section 21 of the English Administration of Estates Act, 1925 and on the very next page of Williams and Mortimer that is on page 83 it was stated:-


“What administrator may do before grant:-


It has been shown that an executor may perform most of the acts appertaining to his office, before probate. But for an administrator, the general rule is that a party entitled to administration can do nothing as administrator before letters of administration are granted to him, inasmuch as he derives his authority entirely from the appointment of the court. He then has the same rights and liabilities and is accountable as if he were the executor.


Thus, at law, letters of administration must issue before the commencement of legal proceedings by an administrator; for he has no right of action until he had obtained them, and even if he obtains a grant afterwards, it does not relate back.”


That the courts even in England do their best to avoid the harshness and hardship arising from the rulings in Ingall v. Moran (supra) and Hilton v. Sutton Steam Laundry (supra) is shown by Stebbings v. Holst and Co. Ltd. [195311 W.L.R. 603 where an endorsement by a widow of a writ as widow and administratrix in a claim under the Fatal Accidents Acts and the Law Reform (Miscellaneous Provisions), Act, 1934 when at that time she had not got letters of administration was held valid as the endorsement either only described the plaintiff’s personal status and not the capacity in which she brought the action or as the claim under the Fatal Accidents Acts could be brought by the widow then the words “as administratrix” could be disregarded, See also Bowler v. John Mowlem and Co., [1954] 1 W.L.R. 1445 where the writ was properly endorsed but in the title of the action and the statement of claim the plaintiff was wrongly described as “administratrix” when she was not and it was held that the form of the writ was the vital issue when suing in a representative capacity and the writ was in order.


Finally we would refer to Finnegan v. Cementation Co. Ltd. [1953] 1 Q.B. 688 where a wrong endorsement in the writ as administratrix had to be held invalid but Singleton L.J. showed how the courts wished to avoid hardship if they could when at page 699 he said:


“I would add that these technicalities are a blot upon the administration of the law, and everyone except the successful party dislikes them. They decrease in numbers as the years go on, and I wish that I could see a way around this one. I do not know why the Fatal Accidents Act of 1846 contained a provision that the action must be brought within a year of the death. There is no such limiting period in the case of an injury, however serious. This action commenced well within the 12 months period, but it was brought by one who sued as an administratrix of the estate of her husband. She was not administratrix within the terms of the Acts, for no letters of administration in this country had been granted to her. It was thought that as she had been granted letters of administration in Eire she was a person who was entitled to sue as administratrix in this country. If she had sued merely as the widow of her husband, the point which is now raised could not have been taken. There is no prejudice of any sort towards the defendants. The action was commenced in due time, but it was in the wrong form. The plaintiff sued in the wrong capacity, and time had run before the point was raised by the defendants. She cannot now raise an action in a new capacity. I should like to say that she can do so, but this court is bound by authority …”


Now to our mind an examination of the English cases shows that, when the only wrong description in a writ of the plaintiff was as administrator or administratrix, the action was a nullity as it was invalid ab initio since the plaintiff had not got the representative status claimed at the time of the issue of the writ and the doctrine of “relation back” to the death of the intestate (see In the Goods of Pryse [1904] P. 301 at 305) did not help when the original action was wrongly constituted. When however we look at the present action it is to be noted that the claim was for possession and an injunction restraining the defendants from trespassing and the plaintiff claimed in her writ as next of kin of the deceased. This was not a wrong statement and she could so sue and therefore when letters of administration were granted on the 16th December, 1966 we think the doctrine of “relation back” could apply and she could then act as from the time of the death of the intestate and as the action was originally properly constituted it was perfectly in order for the court to allow an amendment for her to sue as administratrix which she then was. In other words this case is clearly distinguishable from those where the original action was improperly constituted as was the position in every case in England to which we have referred where letters of administration were subsequently granted and the plaintiff had endorsed the writ solely as administratrix of the intestate. Here the plaintiff did not sue when the action was commenced and we accordingly think the objection of Mr. Lardner fails.


We would only add that we do not see any force in the point of Mr. Akpedeye that section 13 of the Administration of Estates Law allowed this as such, as section 13 is, as we have said, in pari materia to section 21 of the Administration of Estates Act, 1925 applicable in the English cases to which we have referred. Section 13 does help here, but only because the original action was properly constituted whilst in the cases relied on by Mr. Lardner the original actions were not.


We therefore hold that the learned trial judge was entitled to find for the plaintiff as administratrix as he did and the appeal is accordingly dismissed with 40 guineas costs to the plaintiff/respondent.


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