SARAH BLANKSON V. JOSEPH EMMANUEL

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

By order of Strother-Stewart, J., of the 12th April, 1939, J. E. was appointed Receiver and Manager of the estate of Joseph Edward Mettle, deceased, late of Accra, to receive all and singular the rents and profits accruing in respect of the said estate.

On the 5th July, 1939, J. E. Odoi borrowed £50 from the plaintiff. The amount borrowed was to be repaid with £25 interest. J. E. Odoi gave a promissory note in the following terms:-

“In consideration of Madam Sarah Blankson of Accra having “advanced me the undersigned Joseph Emmanuel Odoi of Accra as “Receiver and Manager of the Estate of Joseph Edward Mettle, “deceased, the sum of Seventy-five pounds (£75 0s 0d) being loan “including interest for the use of the said Estate towards payment of “labourers on the Cocoa Farms at Adeiso and elsewhere belonging to “the above-named deceased, I hereby faithfully promise to repay the “said sum of Seventy-five pounds (£75 0s 0d) within (5) months from “the date hereof. “I hereby further promise to settle the said sum of £75 0s 0d “(Seventy-five pounds) without any disappointment whatsoever, and in “default of any payment, I hold myself liable as Receiver and Manager “of the above-named Estate for legal action against the said Estate “of the said Joseph Edward Mettle, deceased, for recovery of whatever “amount that shall be due and owing by the said Estate. “Dated at Accra this 5th day of July, 1939. (sgd.) J. Emml. Odoi,

“Receiver and Manager of the Estate of Joseph

“Edward Mettle, Deceased.” The plaintiff obtained judgment against the defendant for the unpaid balance and caused a property of the late Joseph Edward Mettle to be seized by Fi. Fa.

The claimant, by interpleader summons, claimed this property on behalf of herself and all the beneficiaries under the will of the late Joseph Edward Mettle.

At the hearing the only person to give evidence was the defendant. He stated -that he gave the promissory note as Receiver and Manager of the estate-he did not get the authority from the Court nor obtain the consent of the beneficiaries before he received the loan-he did not use the money in the interest of the estate-he used the money for his own private purpose. In cross- examination he said that it was as a result of representations he made to the creditor that he required the loan on behalf of the estate that the woman (Miss Sarah Blankson) parted with the money and that he had the money for his personal use.

The learned trial Judge dismissed the interpleader summons. He held that the judgment-creditor was entitled to sell the property Blankson in satisfaction of her debt. The reasons for that decision appear to be that plaintiff gave the loan to Odoi on the representations of the latter that, in his capacity as Receiver and Manager, he required the loan to meet certain expenses in connection with the estate and that Odoi in that capacity was entitled to borrow the money without first obtaining the authority of the Court.

From this judgment the claimant has appealed on the following grounds:- “1. That the Court was wrong in deciding that property belonging “to the Estate of J. E. Mettle (deceased) was liable to attachment for “debts allegedly incurred by the Receiver and Manager appointed by “the Court, without the sanction of the Court.

2. That on the evidence before the Court, the Court was wrong “in deciding that the property attached was liable to be sold for the “debt alleged due.

3. That the Judgment was contrary to the weight of the evidence.”

It will be seen that Odoi in his evidence frankly admitted he borrowed the money as Receiver and Manager, ostensibly because he required the loan to meet certain expenses in connection with the estate, but that he did not use the money in the interest of the estate but for his own private purpose.

It appearing from the arguments in this and the Court below that there is a misapprehension as to the position of a Receiver and Manager appointed by the Court we think it desirable to state that a Receiver and Manager is not an agent but a principal and in consequence is prima facie personally liable on all contracts entered into by him (28 Halsbury 2nd Edition p. 79, para: 149). Where a Receiver and Manager has properly incurred liabilities in the discharge of his duties, his creditors, in the event of his failure to pay them, are entitled by subrogation to claim against the estate direct, and can resort to funds carried to the separate account of a legatee of the testator in the administration of whose estate the order appointing a Receiver was made. (Kerr on Receivers, 8th Edition, p. 295).

It is not, and in view of Odoi’s evidence, cannot be suggested that Odoi properly incurred the debt of £75 0s 0d the evidence is all to the contrary.

In our opinion the decision in this case should follow the decision of the Court of Appeal in England in the case of Jennings v. Mather (1902) 1 K.B. p. 1 in which at page 5 Collins M.R. said : -

“The execution creditor, Jennings, having obtained judgment “against Mather for a debt due from him was only entitled to have “taken in execution of that judgment goods of which Mather was the “beneficial owner, and not good which, like those in question, were “only his subject to a trust.”

In this case Sarah Blankson, Execution Creditor, having Blankson obtained judgment against Odoi for a debt due from him, was Joseph only entitled to have taken in execution of that judgment property of which Odoi was the beneficial owner, and not property which like the land seized was only his subject to the trust.

We accordingly allow the appeal and annul the order of the Graham Court below, including the order as to costs, which if paid must be refunded. We order that the property seized be released from attachment and award the Claimant her taxed costs in the Court below and costs in this Court assessed at £30 13s 6d.