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KINGDON, C. J., NIGERIA, PETRIDES, C. J., GOLD COSAT AND GRAHAM PAUL, C.,J., SIERRA LEONE. The following case has been stated for the opinion of this Court by Butler Lloyd, J.
Case Stated
In this case the Probate Registrar sues the Administrators of “D. M. Elliott and their sureties for £24, additional fees payable in Maurice “respect of real property left by deceased. “The facts are set out as hereunder: - “1. Daniel Maurice Elliott died on the 27th May, 1939. “intestate.
“2. Letters of Administration were granted to Maurice “Elliott and Gladys Wey on the 19th September, 1939.
“3. The said estate has been fully administered.
“4. Daniel Maurice Elliott contracted a marriage under the “Marriage Ordinance, Chapter 68 of the Laws of Nigeria.
“5. The estate of the deceased comprised of personal and “real property.
“6. The real property of the deceased was No. 178 at “Clifford Street, in Ebute Metta, Nigeria, and was “valued at £600.
“7. Daniel Maurice Elliott was survived by four children, “issues of the marriage. “On the above facts I am asked to decide whether in view of the “provisions of section 36 of the Marriage Ordinance, Chapter 68, and “of section 2 of the Administration (Real Estates and Small Estates) “Ordinance, Chapter 13, the value of the real estate is to be taken into “account in assessing the fees payable on the grant of Letters of “Administration. “I am of the opinion that in the present case the real property “is chargeable. But before giving judgment to this effect in view “of the importance of the principle involved, and the fact that my “decision will involve a departure from the long standing practice “of this Court, I have at the request of the parties agreed to state “a case for the opinion of the West African Court of Appeal. “Question “Whether on the facts set out above the fee prescribed by the “Rules of Court is chargeable on the real estate ?” In addition to the facts set out in the case stated the following additional facts are common ground:-
1. Daniel Maurice Elliott was a person who was subject to native law and custom.
2. The personal estate of the deceased intestate was sufficient to pay his debts and the expenses of his funeral, and of taking out administration. In order to answer the question we have first to ascertain on what property the Rules provide that the fee shall be charged. The relative item in Schedule IV to the Rules of Court (Laws of Nigeria Vol. I I I p. 186) reads
“On probate and letters of administration where the value of the property in respect of which grant is made: -“
The question then is “Is the real estate of the deceased included in the property in respect of which the grant of letters of administration was made?”
To answer this question we must turn to section 2 of the Administration (Real Estate and Small Estates) Ordinance (Cap, 13), the relative parts of which read
“When any person shall die intestate after the commencement “of this Ordinance leaving any real property of whatsoe nature of “which the intestate might have disposed by will, such real property shall “for the purposes of administration be deemed to be part of the “personal estate of the said intestate and shall be administered “accordingly. “Provided also that the real estate shall not be administered unless “the Administrator shows to the satisfaction of the court that the “personal estate is insufficient to pay the intestate’s debts and the “expenses of his funeral, and of taking out administration”.
It appears then that in the present case, since the personal estate was sufficient to pay the deceased's debts, etc the administration of the real estate by the Administrator is barred by the section.
In our opinion property the administration of which is statute barred could not form part of the property in respect of which letters of administration were granted. It follows that the fee is not chargeable on such property, namely, the real estate.
We accordingly answer the question submitted for our opinion in the negative.