⦿ CASE SUMMARY OF:
Rickett v. Bank Of West Africa (1960) – SC
⦿ LITE HOLDING
⦿AREA OF LAW
– Executor de son tort.
Bank Of West Africa
(1960) JELR 80317 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
Hubbard, AG. F.J
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
This is an appeal by Mr. R.C. Rickett against a judgment of the High Court of the Northern Region sitting at Jos by which he was ordered to pay to the Bank of West Africa Ltd. in respect of an overdraft on a current account and interest thereon the sum of £3,871-15s-7d. That the account was overdrawn is not disputed, but the appellant denies any liability for the overdraft. The re-spondent bank has cross – appealed on the question of the interest allowed by the learned Judge.
1. Whether the contract was valid?
2. Was the appellant in law an executor de son tort, and did he act as agent for the beneficiaries under the intestacy of the deceased?
3. Was the bank entitled to charge interest on the overdraft at the rate of 8 per cent with monthly rests?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE RESPONDENT.
i. I am of opinion, therefore, that although the opening of the new account did assist the appellant in intermeddling in the testator’s estate and the fact that he was so intermeddling was known to the bank, the contract between the parties was valid and subject, to the question of agency, the appellant was liable on the overdraft.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The remaining questions are – was the appellant in law an executor de son tort, and did he act as agent for the beneficiaries under the intestacy of the deceased? To these questions the answers appear to me to be those given by the learned Judge. He said: “The defendant has admitted that he inter-meddled in the estate of the late Mr. F.J. Wilson; and on the evidence there is no doubt that he did. He said that he acted as agent for the beneficiaries and they ratified what he did. Each of the next of kin (who are also the be-neficiaries) knew the defendant was continuing to run the mining business of the late Mr. F.J. Wilson…… But assuming, as the defendant alleges, he ran the mining business and incurred the overdraft with the full knowledge and consent of the next of kin, what is the legal position as between the defendant and the next of kin? Mr. Wilson and Mr. W.A. Wilson by purporting to act as managers of the deceased’s mines have intermeddled in the estate. Mrs. Pidgeon by participating in the appointment and dismissal of managers has also intermeddled. The defendant has intermeddled. Each of them is an executor de son tort. It has long been settled law that the relationship of agent and principal has no application in the case of a wrongdoer (Sharland v. Mildon, 1846, 5 Hale 469; 67 Eng. Rep. 997).” [one] would point out here, with respect to the learned Judge, that the intermeddling of the beneficiaries themselves is not strictly necessary for the application of the principle to which he refers. Clearly, if the appellant himself is an executor de son tort, he can have no principal, since the principal would then also be a wrong-doer, and where they are both wrongdoers there is no agency. I am of opinion, therefore, that the learned Judge correctly found that the appellant was an executor de son tort that he was not the agent of the beneficiaries, and that he was liable on the overdraft.
3. ISSUE 3 WAS RESOLVED IN APPELLANT’S FAVOUR.
i. The learned Judge said: “There is no evidence of an express agreement between the parties that interest should be charged at this rate with monthly rests; nor is there evidence from which I can infer that the defendant acquiesced in interest being charged in this way.” The learned Judge was clearly right as to an express agreement, and, in my view, he was right also in the second fording. The appellant himself was never cross-examined as to the receipt of monthly statements, which, over a period of three and half years would, I think, have been some evidence of aquiescence, and all that the bank’s manager, Mr. Mus-grove, said, was, at one place: “Interest on overdrafts is calculated monthly and entered in the account, and shown in the monthly statement,” and at another place, in reference to certain cheques signed “J. C. Ticehurst Estate of F.J. Wilson” which the bank had cashed on the written authority of the appellant: “Statements have been sent out. No queries have been received on these cheques.” In my view, such evidence is quite insufficient to establish acquiescence.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Melliss v. Shirley Local Board (1885, 16 Q.B.D. 446, 451) Lord Esher M.R. said: “Although a statute contains no express words making void a contract which it prohibits, yet, when it inflicts a penalty for the breach of the prohibition, you must consider the whole Act as well as the particular enactment in question, and come to a decision, either from the context or the subject matter, whether the penalty is imposed with intent merely to deter persons from entering into the contract, or for the purposes of revenue, or whether it is intended that the contract shall not be entered into so as to be valid at law.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
An executor de son tort can properly do for the benefit of the estate anything which a legal personal representative can do (Williams, 13th ed. 34) and although the general rule is that a personal representative has no authority to carry on the business of the deceased (Williams, 13th ed. 1036), yet where the business is a valuable asset, he is entitled to carry it on for such reasonable time as may be necessary to enable him to sell it to the best advantage of the estate (ibid. 1037). – Hubbard FJ. Rickett v. Bank (1960)
Compound interest on an overdraft is chargeable only where the customer has agreed to it or where he is shown or must be taken to have acquiesced in the account being kept on that basis. – Hubbard FJ. Rickett v. Bank (1960)