Andre Zachariah V Zaida Zachariah & ORS (CIV APP 55 of 2013) [2015] SLCA 1125 (14 July 2015)

oF # CIV.APP 55/2013 IN THE COURT OF APPEAL OF SIERRA LEONE : : BETWEEN: ANDRE ZACHARIAH 18" DEFENDANT/APPELLANT. ’ AND ZAIDA ZACHARIAH PLAINTIFF/RESPONDENT MICHAEL BENJAMIN ZACHARIAH —_ 2"° DEFENDANT/RESPONDENT (Through his Next Friend Maimag G. Seckey) ECOBANKMICROFINANCE(SL)LTD. _Intervener/Applicant/respondent

Coram

‘THE HONOURABLE MR JUSTICE P.O.HAMILTON, JSC. THE HONOURABLE MRS JUSTICE NYAWO MATTURI JONES, JA. THE HONOURABLE MR. JUSTICE DEEN-TARAWALLY, JA. JUDGMENT DELIVERED ane loa OF JULY 2015

The Appeal

This appeal was filed on behalf of the 1" Defendant/Respondent/Appellant who is dissatisfied with the decision of the High Court presided over by Hon. Mr. Justice N.C Browne-Marke, JSC (Sitting as High Court judge) and the judgment is dated the 22™ July 2013.

is ‘The appeal is based on the following grounds: PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF

¥ Paragraph 31 of the judgment: “I find on the facts of the ease that the property which remains undisposed of, presently situate at and known as 28 Sir Samuel Lewis Road forms part of the residue devised by M. E. Zachariah to his sons Richard and Elias Zachariah in equal shares. Since both of them are now deceased, the persons now entitled to share in the residue are the Plaintiff who is entitled to 50% thereof and the 1" and 2nd Defendants who are together entitled to the remaining 50% thereof. The 2" defendant comes in because his father died after the passage into law of The Devolution of Estates Act 2007, which does not discriminate against children born out of wedlock. It seems unlikely that partitioning would be a workable option. The likelihood is that a sale of the property and distribution of the proceeds of sale to the beneficiaries would be more appropriate. And Orders following the findings as contained in paragraph 32 of the judgment “32 The Orders of the Court below are as follows: i This Honourable Court declares that the remainder of the land and hereditaments situate at and known as 28 Sir Samuel Lewis Road Freetown in the Western Area of the Republic of Sierra Leone, form part of the residue devised in the last Will and Testament of Michael Elias Zachariah dated 6" January 1987 to Richard Zachariah and Elias Zachariah in equal shares. This Honourable Court declares that the remainder of the land and hereditaments situate at and known as 28 Sir Samuel Lewis Road Freetown in the Western Area of the Republic of Sierra Leone, form part of the residue devised in the last Will and Testament of Michael Elias Zachariah dated 6" January 1987 to Richard Zachariah and Elias Zachariah in equal shares. ii.In the premises this Honourable court declares that the persons entitled to the said residue fare, as 10 $0% the Plaintiff Mrs ZAIDA ZACHARIAH and as to the remaining 50% thereof ANDRE ZACHARIAH and MICHEL BENJAMIN ZACHARIAH. iii This Honourable court declares that the Plaintiff ZAIDA ZACHARIAH and the I“ Defendant ANDRE ZACHARIAH are jointly entitled to a Grant of Letters of Administration with the Will annexed (o administer the estate of MCHEL Elias Zachariah, provided of course that he is now deceased. If the I Defendant declines to do so this Honourable court Grants leave to the Plaintiff

z to obtain the said Grant alone.

a4

. iv. As soon as such grant has been obtained, the Solicitors responsible for obtaining the Grant shall file a Notice in this court to that effect so that this

7 Honorable court will be able to proceed to the next stage which is to Order the partition or sale of the said property.

¥ ¥. There shall be liberty to apply. vi. No order as to costs at this stage.

Grounds of Appeal

LHIS LORDSHIP COMPLETELY IGNORED THE GUIDELINES IN DECIDING MATTERS OF THIS NATURE AS LAID DOWN IN THE COURT OF APPEAL DECISION OF SC. CIV/APP.8/79 BETWEEN WILLIAM COKER = APPELLANT AND JOSEPH WALKER ~ RESPONDENT. JUDGMENT OF ‘THE 27"! APRIL 1981 HENCE ARRIVING AT AN ERRONEOUS DECISION

2. THE DECISION OF HIS LORDSHIP WITH RESPECT IS FRAUGHT WITH LAPSES AND IMPRECISIONS THEREFORE MAKING THE SAID DECISION UNSAFE TO STAND. In paragraph (7) of the judgment, his lordship had this to say: “in her affidavit the plaintiff deposed that she was the daughter in-law of ME. Zachariah. This is of some importance because M.E Zachariah it appears died intestate in Freetown on the 12* August 1971 seised of the property at Murray Town which he had bought from Benjamin Lewis in 1943 whether or not he became the sole beneficial owner of the properties in the estate of E. M. Zachariah would depend on whether he had siblings alive at the date of the death of E.M. Zachariah.” In paragraph 8 of the judgment his lordship said “in 1988 E.M.Zachariah left Sierra Leone for London as he was seriously ill. He executed the Power of Attorney referred to above. The Plaintiff does not in this affidavit state whether or not her father in law died, Her husband died on the 6" January 2011.”

- In paragraph 11 of the judgment his lordship continued in his analysis of the evidence “on the 12" June 2013 the I defendant in opposition to the Plaintiff's : claim. He deposed that he is unaware that the property at No 28 forms part of the . residue of his late grandfather E. M. ZACHARIAH’S estate” In paragraph 13 his lordship said “on the 12" June 2013 the 2" Defendant . appearance to the Originating Summons through Jenkins Johnstone & Co. He has not filed any affidavit in opposition. At the hearing of the 28" June 2013 Mr D. R. Pratt Counsel of the absent 2"! Defendant informed the court that the 24 Defendant and his next friend were not opposing the Plaintiff's application to this court. I am satisfied based on this statement made by Mr. Pratt that in court that his instructions are that there is a residue which ought (0 be sold as this is what in a nutshell the Plaintiff is claiming.” At paragraph 14 of the Judgment continuing, his lordship said “on the 17 June 2013 the Plaintiff filed an Affidavit in reply deposed and sworn by her on that same day. The Deed recites the purchase of the property by E. M. Zachariah in 1945, the grant made to EM. Zachariah in 1987, and the last Will of EM. Zachariah without even stating the date this will was made. It does not state whether E.M. Zachariah was dead as of that date. E. Zachariah could not sell if his father M.E, Zachariah was alive. In the 3rd preamble the conveyance recited that by the last Will and Testament of Michael Zachariah he devised his house in Freetown Sierra Leone to his son Elias Zachariah...” At paragraph (16) continuing his lordship said “on 11th July, 2013 ....I¢ purports to depict two houses or perhaps one house and an annex. Accordingly to the valuer Mr. Kenny, there are presently four houses on the land also the plan purported to cover an area of 5.2059 acre. The 1943 survey plan in exhibit 22 stated the area to be five (5) acres more or less” In paragraph (18) thereof, his lordship referring to the memorandum Exhibit A27 7 said “ this merely confirms the Plaintiff's contention that all that was given to E.

The pages read for this report end here. The judgment continues in the PDF.