Court name
High Court
Case number
CC 226 of 70

Attorney-General v Wilson (CC 226 of 70) [1972] SLHC 1277 (10 April 1972);

Law report citations
1972-1973 ALR SL 079
Media neutral citation
[1972] SLHC 1277
Case summary:

Succession—Administrator-General—right to maintain proceedings—must obtain letters of administration before commencing declaratory action:

Coram
During, JSC

ADMINISTRATOR-GENERAL v. WILSON

High Court (During, J.): April 10th, 1972
(Civil Case No. 226/70)

[1] Succession—Administrator-General—right to maintain proceedings—must obtain letters of administration before commencing declaratory action: 25 Before the Administrator-General can commence a declaratory action in respect of property devolving upon him at the death of an intestate he must obtain a grant of letters of administration, as required by s.10 of the Administration of Estates Act (cap. 45) (page 81, line 24 — page 82, line 4; page 82, lines 14—32).

The plaintiff sought a declaration that certain property formed 30 part of an intestate’s estate, and all consequential orders and directions.

At the hearing the plaintiff, the Administrator-General, admitted that he had not applied for, nor been granted, letters of admin­istration in respect of the intestate’s estate which he was adminis- 35 tering. The defendant contended that the action was improperly brought before the court since the plaintiff had not obtained letters of administration before commencing his action as he was required to do under s.10 of the Administration of Estates Act (cap. 45). He maintained that while an executor derived his title 40 from the will of a testator and could therefore commence an

action before probate, an administrator derived title solely from the grant of letters of administration. The plaintiff contended that, unlike an ordinary administrator’s, his function as Admin­istrator-General was that of an executor who could institute an action without a prior grant of letters of administration, and he stated that he believed there had been instances when similar actions brought by the Administrator-General without a grant of letters of administration had been entertained by the court.

The plaintiff’s claim was dismissed.

Cases referred to:

  1. Ingall v. Moran, [1944] K.B. 160; [1944] 1 All E.R. 97, applied.
  2. Meyappa Chetty v. Supramanian Chetty, [1916] 1 A.C. 603; (1916), 114 L.T. 1002, applied.

Legislation construed:

Administration of Estates Act (Laws of Sierra Leone, 1960, cap. 45), s.9(l): “The estate of every person dying intestate after the date of the oper­ation of this Ordinance shall devolve upon the Administrator-General:

Provided that, upon the grant of letters of administration under the provisions of this Ordinance, the estate shall be divested from the Ad­ministrator-General and be vested in the person or persons to whom letters of administration have been granted as aforesaid.”

s.10: “(1) Whenever the Administrator-General has received information .. . that any person has died ... leaving estate within the jurisdiction of the Court... the Administrator-General shall.. . call upon ... to show cause why an order should not be made for him to administer such estate

* • •

(2) If at the expiration of the period of one month cause shall not be shown . .. why the order should not be made ... the Administrator- General shall petition the Court. . . and the Court shall upon being satis­fied that it is a proper case make an order for the grant of letters of ad­ministration ... to the Administrator-General.”

s.14: “The title of the Administrator-General and of any administrator appointed under this Ordinance shall upon such appointment being made, relate back to, and be deemed to have arisen upon the death of the owner of such estate as if there had been no interval of time between such death and appointment.”

Mrs. Christine Harding for the plaintiff;

Rogers-Wright for the defendant.

DURING, J.:

This action is one taken out by the plaintiff against the defend­ant for a declaration that the premises at 7 Collier Street, Goderich Village, in the Western Area of Sierra Leone are part of the estate of the late Joshua Onesimus Harding in fee simple absolute, and for all necessary and proper consequential orders and directions.

H.C.

The action came up for hearing on March 17th, 1972 before this court and after Mrs. Christine Harding had opened the case for the plaintiff, the plaintiff gave evidence on oath before the court. Under cross-examination by Mr. Cyrus Rogers-Wright, the plaintiff said that he had up to then not applied for nor had letters 5 of administration been granted to him in respect of the estate of the late Joshua Onesimus Harding. Before the case was adjourned to March 24th, 1972, counsel on either side agreed to argue a point of law, to wit, whether the action was properly brought before this court in that the plaintiff, the Administrator-General, 10 had not applied for, nor obtained, letters of administration in respect of the estate of the said Joshua Onesimus Harding, de­ceased. On March 24th, 1972 counsel on either side argued the point of law before this court.

In support of his argument that the plaintiff must apply for and 15 obtain a grant of letters of administration before instituting this action, learned counsel, Mr. Cyrus Rogers-Wright, referred to ss. 9, 10 and 14 of the Administration of Estates Act (cap. 45). He also referred to s.9 of the English Administration of Estates Act, 1925 by way of comparison. Learned counsel submitted that the position                                                                                 20

of an executor is completely distinct from that of an administrator, including the Administrator-General of Sierra Leone. He referred the court to I Halsbury’s Laws of England, 3rd ed., at 17 where the learned editor had this to say: “An executor derives his title from the will and may therefore commence an action before 25 probate; but an administrator derives title solely from the grant of letters of administration and cannot commence an action before obtaining the grant.”

Learned counsel also referred the court to the case of Meyappa Chetty v. Supramanian Chetty (2), and to the judgment of Lord 30 Parker of Waddington, where the learned Law Lord stated that the law on the point was well settled ([1916] 1 A.C. at 609; 114 L.T. at 1003): “An administrator... derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant.”                                                                                 35

In the case of Ingall v. Moran (1) the plaintiff issued a writ in an action brought by him under the Law Reform (Miscellaneous Provisions) Act, 1934, claiming to sue in a representative capacity as administrator of his son’s estate, but he had no letters of administration until about two months after the date of the writ. 40 It was held that the action was incompetent at the date of its

inception by the issue of the writ, and that the doctrine of the relation back of an administrator’s title, on obtaining a grant of letters of administration, to the date of the intestate’s death, could not be invoked so as to render the action competent.

Mrs. Christine Harding argued that the action before this court was competent and submitted that a distinction should be made in the case of an Administrator-General, and that what was said by Lord Parker of Waddington in Chetty’s case would only apply to an administrator and not to her client, the Administrator-General and plaintiff in this action. She further submitted that her client was in the same position as an executor who could institute such an action without first obtaining a grant of probate from this court. In argument before me reference was made to s.9(l) of the Administration of Estates Act (cap. 45). The office of the Admin­istrator-General for Sierra Leone is a creature of statute. I could not find in any section of the Act, nor in our High Court Rules, nor in the English High Court Rules any provision which gives the Administrator-General or his counterpart in England any right, power or privilege whatsoever to institute an action of this kind without first obtaining letters of administration. In my opinion s.14 of the Administration of Estates Act (cap. 45) on a proper interpretation and in the light of well-settled authorities does not empower or give the Administrator-General of Sierra Leone the right to institute the action before this court without first ob­taining letters of administration. I disagree with respect with learned counsel for the plaintiff that our Administrator-General should be regarded as an executor who could institute such a proceeding without obtaining probate. In my considered judg­ment s.10 of our Administration of Estates Act is mandatory in so far as the Administrator-General is concerned and this court ought not to lend its aid to the bypassing of such an important mandatory provision. Regard ought seriously to be paid to the fact that where the Administrator-General applies for a grant of letters of administration and alleges that real property forms part of the estate of an intestate a declaration should be made to the court stating that such property belongs to the estate of the intestate and the required stamp duty must be paid before the grant of letters of administration.

In the course of her argument before me learned counsel for the plaintiff stated that she had been informed that there had been instances when actions similar or on all fours have been

 

H.C. entertained by this court, actions brought by the Administrator- General without his first obtaining a grant. If that was so, in my judgment that was wrong and without authority and indeed contrary to a well-settled point of law that a grant should first be obtained. I hold that this action was incompetent at the date of 5 the issue of the writ.

I dismiss the action without prejudice to the plaintiff or any administrator appointed by the court bringing a competent action. I order that the plaintiff do pay to the defendant the costs of this action up to this stage which I assess at Lei00. I also order that 10 the plaintiff do pay to the defendant the costs I have ordered before the institution of any fresh proceedings for the declaration and consequential orders sought in this action which I have held incompetent.

Suit dismissed. 15