DR. Nathalie Koto Eleady-Cole & ANOR V Rose Marie Marke & ORS (CIV APP 41 of 2012) [2012] SLCA 27 (10 July 2012)

cIv APP 41/E2 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: DRNATHALIE KOTO ELEADY-COLE 197 APPELLANT ROSE NINI CHAMPION ~ 2% APPELLANT. > AND ROSE MARIE MARKE - RESPONDENTS NATHANIEL MARKE MARIETTA MARKE-QUINN FERNAND MARKE, SAMUEL MARKE MOIRA MURRAY COUNSEL: YH WILLIAMS ESQ for Appellant I SOURIE ESQ for 1" and 2” Respondents RB KOWA ESQ for 3%, 4", 5", 6" and 7 Respondents

Coram

THE HONOURABLE MR JUSTICE N C BROWNE-MARKE, JUSTICE OF APPEAL THE HONOURABLE MR JUSTICE E E ROBERTS, JUSTICE OF APPEAL THE HONOURABLE MS JUSTICE VIVIAN SOLOMON, JUSTICE OF APPEAL JUDGMENT DELIVERED THE Ss OF JULY,2012 1, This is an appeal brought against the Judgment of SHOWERS,JA dated 7 October, 2010, by Dr Nathalie Koto Eleady-Cole, in her own personal capacity, and, together with Rose Nini Champion as Administratices of the estate of Rosetta Harris, The 1* Respondent Rose Marie Marke, is also the 2" Respondent in her capacity as Administratrix of the estate of her late mother, Jeanne Rosemarie Marke, The substance of the. eppeal is that the trial Judge, SHOWERS,JA was wrong in holding that the Appellants had not instituted the proceedings in the Court below by the proper method, viz: by Writ of Summons, as there were several * contentious issues which could not be dealt with adequately by Originating Summons. At the end of her Judgment the Learned Trial Judge had this to say: *....I” the light of the above, I agree with the

# submission of Counsel for the £* Defendant that there are contentious issues here necessitating that the proceedings should be begun by writ. The Application is therefore struck out with Costs to be taxed" It seems tous, the Learried Trial Judge was here saying that she had no jurisdiction to try the action because it was begun by the wrong method. . She did not decide any of the contentious issues which she said had arisen, This is why perhaps, she struck out the Plaintiffs’ claim, and did not dismiss the same. She was saying in effect, you were wrong to use this procedure; you must use the correct procedure. We shall therefore confine ourselves to this issue alone in our Judgment, notwithstanding the weighty written submissions filed by Counsel representing the several interest groups. This case concerned the respective estates of Rosetta Harris and Jeanne Rosemarie Marke, It also concerned, to a certain extent, the estate of John Harris, though, as the Learned Trial Judge commented at the end of her Judgment, the Grant made in respect of his estate had not, before arguments closed, been exhibited in Court. But that was an omission which was not fatal, as it could have been made good simply by exhibiting it to another af fidavit. But, in the result, SHOWERS,JA did not decide whether she should grant the reliefs sought in the Originating Summons, and this is why she merely struck it out.

2. This Court has to determine also, whether she was right to strike out the Originating Summons, The circumstances in which a pleading could be stuck out, are circumscribed by and in Order 21 Rule 17(1) of the High Court Rules,2007 (hereafter HCR,2007). Sub-Rule (2) reserves the inherent jurisdiction of the Court to strike out pleadings, And Sub-Rule (3) applies this Rule to Originating Summonses. But none of these Rules would apply in this case, as no Application was made by the 1** and 2" Respondent to the Court for the Originating Summons to be struck out.

3. One of the arguments canvassed by the 1" and 2% Respondents’ Counsel is that the Originating Summons did not bear in its title any statute

~ pursuant to which the Application was being made, This, we surmise, is a reference to Order 5 Rule 4(2)(a) HCR,2007 which states that “Proceedings- (a) in which the sole or principle question a* issue is or is likely to be one of the construction of an enactment or of any deed, will, contract or other document or some other question of law.....a°e

ae

~ appropriate to be begun by originating summons..." Since the

proceedings were instituted by the 1* Plaintiff both in her personal

capacity, and in her capacity as one of the Administrices of the estate of

Rosetta Harris; and 1 and 2" Respondent was sued both in her personal 4 capacity, and in her capacity as Administratrix of her late mother's

estate, one may safely assume, no one was fooled, or deceived or misled

by the absence of a reference to any statute in the title of the action.

No prejudice was caused to any other party.

4, Aswe have stated above, SHOWERS,JA did not go into the merits of the contesting claims made principally by the Plaintiffs on the one hand, and the 1* and 2" Defendant on the other. She recognised and acknowledged that there were contentious issues between them, and this recognition ‘and acknowledgement formed the basis of her decision. Our duty is to decide whether she was right in striking out the Originating Summons for the reasons she gave.

5. Dr Marcus-Jones argued in the Court below that the Plaintiffs had not produced any Grant made to any person in respect of the estate of John Harris. The 1** Plaintiff did say, in her answer to one of the interrogatories posed by Dr Marcus-Jones - page 96 of the Record, that he died intestate in 1934 and that Letters of Administration in respect of his estate were granted to her mother Rosetta Harris, by the High Court of Sierra Leone in its Probate jurisdiction on 31 May,1934. She did not have a copy of the Grant. Since neither Dr Marcus-Jones nor any other party has produced, in the Court below, or in this Court a Will, or

Probate of a Will, we can assume for present purposes that John Harris did die intestate, If Dr Marcus-Jones had a will in his possession, or had knowledge of a Will made by John Harris, it was his duty, in our view, to have made this known to the Court, as he owed a duty to the Court to make known all facts in his possession, a duty he roundly reminded Mr Williams of at page 109.

6. Tf we accept therefore, that there was no evidence before the Court = below that John Harris died testate, then he must be taken to have died intestate. If no Grant was obtained to his estate, that is an omission which could be corrected by the persons «1.,itled to a Grant. It is not an incurable omission. And if he died intestate, the disposition of his estate would have been governed in 1934 by the Intestates Estates Ordinance, a

* Chapter 104 of the Laws of Sierra Leone,1925 which provided that the Curator of Intestates Estate, the precursor of the Official ‘Administrator in The Administration of Estates Act, Chapter 45 of the Laws of Sierra Leone,1960, (hereafter, Cap 45) passed into Law in'i946, and the Administrator and Registrar-General in 1972, by the 2 Administration of Estates (Amendment) Act, 1972 - Act No 19 of 1972. Section 11 of the then Cop.104 provided that: " Whenever any person shall hereafter die, being at the time of his decease seised or possessed of, or otherwise entitled t0, any land within the colony, and shall noBy his will lhe have disposed of such land, then such land shall, instead of descending to is heir-at-law as heretofore, pass to, and become vested in the curator of intestate estates." The estate was divested, as is the case in Section 9 of Cap. 45, when the next-of-kin obtained a Grant from the Court. Of course, at the time both Rosetta Harris died in 1963 and Jeanne Marie Marke in 1981, the governing Act, was Cap.45.

7. It follows that the absence in the title of a reference to Cap.45 did not mislead anyone, nor did it deprive the action of its being described as one ° in which, in the words of Order 5 Rule4(2)(a), "..the principal question at issue is or is likely to be one of the construction of an enactment." Our view is that the omission did not render the proceedings void nor voideble: nor was it an incurable irregularity. We have moved away a long way from the days when the omission of a particular word or phrase, or ‘the wrong spelling of a name could result in the dismissal of a litigant’s claim,

8. The manner in which contentious Probate proceedings may be brought is well established in Order 55 HCR,2007: they must be begun by writ of summons, This was not a contentious probate matter in the terms of that Order, This action was brought pursuant to Section 21 of Cap.45. It states that: "No land forming part of the estate of an intestate shall be sold by the Administrator and Registrar-General or any administrator without the consent of all persons beneficially interested, or the order of

x the Court or Judge thereof for that purpose first obtained” It is clear that ‘in Court’in any legislation usually means by Notice of Motion, and sot “Judge usually means by Summons in chambers, unless the contrary i= stated, So, as fer as the sale of the property was concerned, an Order in this respect could be sought by way of Summons in chambers. Also, as

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