Charlie Inniss & Another v Ayodele A. Wray (CC 356 of 1962) [1963] SLSC 32 (5 July 1963)

s. c. 1963 KAMARA v. BULL. Bankole Jon"s Ag.C.J. Freetown July 5, 1963 Bankole Jones Ag.C . .J. for his medical examination and report to the surgeon specialist. The total ot these sums, namely, £401 Ss., constitutes the only special damages proved and which has not been disputed. As regards general damages, the plaintiff suffered serious injuries which are set out in the evidence of the senior surgeon specialist, and it is unnecessary for me to go through that evidence again or the treatment of the case and the pain and suffering undergone by the plaintiff as well as the permanent disabilities with which he has to go through life. Now, notwithstanding the serious injuries and disabilities, the plaintiff has fortunately made a remarkable recovery and the medical findings are that he can carry out the normal functions of a man, without weight bearing on the head. He could also find employment. The plaintiff has decided to give up his vocation of motor driving because, among other things, he says he suffers from cramps on his right foot and intermittent pains on his neck. He has started farming on a small scale in his home-town. Taking into consideration the pain and discomfort suffered by the plaintiff and especially during the period of his stay as an in-patient in hospital and the permanent disabilities sustained, I think I will award the sum of £2,500. In the result the plaintiff is entitled to the following: (a) General damages (b) Special da1nages £2,500 Os. Od. £401 Ss. Od. £2,901 5s. Od. The defendant is to pay the taxed costs of these proceedings. [SUPREME COURT] CHARUE INNISS At-~TI GIFfY E. STEVENS v. AYODELE A. WRAY . [C.C. 356/62] Plaintiffs Defendant Wills--Testamentary capacity-Burden of proof on party pcopqunding will-Will prepared by nephew who took benefits-At most creates suspicion which must be removed by persons propounding will-Effect of burning of previous will by testator prior to execution of another will. The testator made two wills while he was m. The first was dated November 4, 1961, and the second January 10, 1962. The second will was prepared by the testator's nephew, who took benefits Uinder it. Before executing the second will, he burnt the first, and later said vvith reference to it: " They think I am a fool. They went and drew up a vvill and no provision was made for my twin sister and my relations." The executors of the second will (the plaintiffs) sought to propound it in solemn form of law. The testator's widow (the defendant) objected to this will on the following grounds: (1) that the testator did not give instructions for its preparation; (2) that the testator neither read the will over to himself nor was it read or explained to him at the time 44 , ·ts execution; (3) that he was not aware of its nature and effect and was of 1 . f sound mind, memory and understanding when he executed it. The ~~~ 0 ~ asked the court to pronounce in favour of the first wilL Wl Held for the plaintiffs, (1) the party propounding a win has the burden of sati:ryin~ the court that the document propounded is the last will of a free and apable testator. c (Z) If a person prepa:e~ a will under which he takes benefits, this. at once ought to excite the suspiCIOn of t~e court,. and the burden of removmg such spicion is on the party propoundmg the w1U. su (3) The burning of the first will by the testator coupled with his words with reference to it showed an animus revocandi on his part. Cases referred to; Barry v. Butlin (1838) 12 E.R. 1089; In re R., deed. !1950] 2 All E.R. 117; Wintle v. Nye (1959] 1 All E.R. 552; Rattan Singh and ~thers v. Amirchand and others [1948] 1 All E.R. 152. Mrs. Ursula D. Khan for the plaintiffs. A1elville C. Marke for the defendant. Note: This decision was affirmed by the Court of Appeal on March 20, 1964 (Civil Appeal 22/63). B&"'K.OLE Jo!'<"ES Ao.C.J. In this action two of the three executors named in a will dated January 10, 1962, of Llewellyn Philemon Modupe Okoro Wray (deceased), hereafter referred to as the "deceased," who died on March l, l962, are asking this court to pronounce in favour of the said will in solemn form of law. The third executor, not a party to the action, was responsible for the preparation of the will and took benefits under it. The defendant is the widow of the deceased and is disputing the will on the grounds, first, that the deceased did not give instructions for its preparation, which at the time of its execution was not read over and explained to him ; secondly, that the deceased did not read the will over himself before he executed it, nor was he aware of its nature and effect and, thirdly, that the deceased was not of sound mind, memory and understanding at the time he purported to have executed it. The 8Ubstance of this third allegation is stated in the defendant's statement of defence as follows: " At the time the above-named deceased executed the said alleged wili he was suffering from, among other forms of iilness, chronic nephritis complicated by arteriosclerosis. His memory was defective and untrust­ worthy and progressively exhibited signs of disorientation and stupor and marked and increasing disability to evaluate matters in their true and proper perspective. The mind and memory of the said deceased at the time of the execution of the said alleged will were in such condition that the said deceased could not possibly understand the nature of the act and its effects, the property of which he was disposing or comprehend and appreciate the claims to which he ought to give effect." The defendant has also counterclaimed that another will dated November 4, 1961, in which she was appointed executrix, be pronounced in solemn form of law and that the court pronounce against the will propounded by the plaintiffs. I think it is necessary at the very outset to state the rules governing cases ~f this kind. The first is that the onus probandi lies upon the party propound­ mg a will, and he must satisfy the conscience of the court that the instrument ~ propounded is the last will of a free and capable testator. This onus is 45 s. c. 1963 lNNISS AND STEVE..l'.IS v. WRAY. Bankole Jones Ag.C.J. s. c. 1963 INN! SS AND STEVEi'iS v. WRAY. Bankole Jones Ag.C.J. in general discharged by proof of capacity and the fact of execution from which the knowledge of and assent to its contents by the testator will be assumed. The second is that if a party writes or prepares a will under Which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased-see Barry v. Butlin (1838) 12 E.R. 1089 and Wintle v. Nye [1959] 1 All E.R. 552, 557. In the present case it is said that the deceased did not give instructions for the preparation of the will sought to be propounded by the plaintiffs and that at the time of its execution it was not read over and explained to him, nor did he read it himself before executing it. I accept unreservedly the evidence of Mr. Williams, the person who prepared the will, that not only did the deceased instruct him to prepare the will but that it was read to him in its final form and that the deceased himself read it before he executed it and at his request invited the attesting witnesses to sign it in his presence and in the presence of each other. I reject the evidence of Mr. Smith, one of the attesting witnesses called by the defence, to the effect that when he appended his signature to the will he was not told what he was signing; nor did he inquire. Mr. Smith's admitted experience of over 20 years as a solicitor's clerk does him no credit. He was clearly and palpably an interested partisan on behalf of the defendant. Was the deceased of sound mind and memory when he executed the will of January 10, 1962? I find that he was. The evidence of Mr. Inniss, Mr. Marsh and pre-eminently that of Mr. Johnson, the Deputy Registrar-General, all disinterested persons, leaves me in no doubt about this. But if any con­ firmation is required, the evidence of the deceased's own doctor supports the conclusion I have arrived at. Dr. Pratt swore that around January 10, 1962, the date of the execution of the will, the deceased "was able to evaluate matters in their true perspective." Again, he swore as follows: "Round about January 10, 1962, if the deceased was given a document written in simple English, he would have been able to understand the contents .... " Mr. Inniss and Mr. Williams, who were present at the execution, said that the deceased was able to understand that he was executing his will, which it is not disputed was written in simple English. I am, therefore, satisfied that the deceased was of competent testamentary capacity not Gnly at the time he gave instructions for his will to be prepared, but also at the time he executed it. Now, did the deceased know and approve of the contents of the will prepared by his nephew, a layman who took benefits under it? Mr. Marke has not suggested, and in fact could not have, that because of these circum­ stances the will should be pronounced against. His contention is that the second rule which I have stated earlier should be applied to these circumstances. He is quite right. I find Viscount Simonds, in the Wintle v. Nye case referred to above, at page 557, saying: "It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion which must be removed by the persons pro, pounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may 46 . _1. ht and easily dispelled. It may, on the other hand, be so grave that ne ~ng d., ( h · li d) , ~an hardly be remove · emp as1s supp e . ,t ~the present case, the suspicious circumstances on which Mr. Marke . In ~ th"' following: Mr. Williams is a beneficiary entitled to the sun1 of :el!es ar~ fi;st charge in priority to other monetary gifts. He is entitled to a 1;.~~ ::oice in deceased's wearing apparel and personal effects. He is gi_ven fh . th of the property, 40, Rawdon Street, as well as a further one-sixth or:e-sitXhe death or remarriage of the defendant, and finally he is the residuary af,er N f b d . • . ; ee and legatee. ow, apart rom monetary equests, etc., and evmes aev.s ed h" 1 · f I h" · · h d by the deceas to Is re at10ns, or examp e, IS twm s1ster, anot er :.~ ... :ew, a niece, a daughter and a son of his, grandchildren, lawful or unlawful, :;.v·deceased bequeathed and devised to his "dear wife," the defendant, the ~ ·~lowing: The sum of £200, his land at Wilberforce Village at the back of ;~e military barracks, all his household furniture, one-sixth share of 40, Rawdon .:~e.et " for her lifetime or her remarriage, whichever event comes first." lt ~ quite clear that the deceased did not, so to speak, " cut off " the defendant ;n his will. She is provided for, and it was within the deceased's competence to have known that his dear wife was the owner of several other properties in Freetown and was in receipt of a good salary which was pensionable. Be that as it may, however, I have come to the conclusion that the scrupulous pains with which the deceased personally saw to it that his will should be kept and pre­ served in the office of the Registrar-General, especially the sealing of it in an envelope in his presence for which he expressed satisfaction, coupled with the evidence that earlier on the day of the execution of this will, a previous will said to have been executed by him on November 4, 1961, was burnt, a matter admitted by the defence, all point to the irresistible conclusion that the deceased not only knew what he was doing but also knew and approved of the contents of his later will dated January 10, 1962. In the circumstances, I hold that the plaintiffs have discharged the burden placed upon them, albeit, in all the circumstances, not a heavy burden, of removing every suspicion that the testator did not know and approve of the contents of the will. He knew and approved. As to the defendant's counterclaim, I find no merit whatever in it. In her affidavit of script, it was made to appear that there actually existed a will executed by the deceased dated November 4, 1961. The evidence discloses that there is no such will in existence. If there was such a will, on the admitted evidence, as has been pointed out, it was burnt on the day the deceased executed the will of January 10, 1962, and burnt by the deceased himself and l'Js daughter before the execution of the said will of January 10, 1962. After execution of this will, the deceased's daughter told Mr. Inniss of the of the earlier will on that day and showed him the spot on the verandah where the will had been burnt. The deceased, hearing this, said: " They think I am a fool. They went and drew up a will and no provision made for my twin sister and my relations." The will of January 10, 1962, made provisions for the deceased's twin sister and relations. These circum­ stances, to my mind, clearly showed an animus revocandi on the part of the deceased. An attempt was made to produce and tender a draft copy of the l:m~t Will prepared by a solicitor. That attempt was foiled by my ruhng agamst its production. There is, therefore, no will of the kind described by the defence before this court. 47 s. c. 1963 L"'NISS M'D STEVENS V. WRAY. Bankole Jone• Ag.C.J . s. c. 1963 lNNISS AND STEVENS v. WRAY. Free town July 20, 1963 Dobbs J. The plaintiffs succeed and I therefore pronounce in solemn form of law in favour of the will dated January 10, 1962, propounded by them, as the deceased's last will and testament. I dismiss the defendant's counterclaim. I order that the costs of this action be paid out of the estate. [SUPREME COURT] WILLIE ROBERTS Appellant V. LAURA MASON . Respondent [Magistrate Appeal 32/62] Landiord and Tenant-Summary Ejectment-Whether raiSing of question of title bar to proceedings--Summary Ejectment Act (Cap. 49, Laws of Sierra Leone, 1960), ss. 2, 3, 6, 7, 11-Small Tenements Recovery Act, 1838 (l & 2 Vict. c. 74). Appellant was the tenant of premises at No. 2, Goree Street, Freetown. Respondent, who was appellant's aunt, commenced ejectment proceedings against appellant in a magistrate's court. At the hearing, appellant laid claim to the whole or part of the premises through his mother, respondent's sister, who died in February, 1961. On May 16, 1962, the magistrates made an order for immediate possession, against which appellant appealed. The first ground of appeal was that " The evidence raised a question of title and therefore the justices had no jurisdiction in the matter and were wrong to make the order." Section 7 of the Summary Ejectment Act provides in part: " At the hearing of the summons, and upon proof of the following facts­ (1) the tenancy and the determination •hereof; (2) notice as hereinbefore provided; (3) the neglect or: refusal of the tenant to compiy with the notice; (4) the service or posting up of the summons as aforesaid; the magistrate may, notwithstanding any alleged claim of right or title, issue a warrant to the constables of the Colony, in the form set out in the Fourth Schedule hereto, commanding them, within a period named therein, to enter (by force if needful) into the premises. and give possession of the same to the landlord or person who shaH have proved his right to the reversion of the tenancy as aforesaid. . Held, dismissing the appeal, that, since some questions of title must be decided by a magistrate in dealing with a case under the Summary Ejectment Act, the raising of a question of title does not oust the jurisdiction of the magistrate. Case referred to: Dudley and District Benefit Building Society v. Gordon [19291 2 K.B. 105. Claudius Doe-Smith for the appellant. Rowland E. A. Harding for the respondent. 48