Friday v Conteh (CIV APP 13 of 1972) [1973] SLCA 2 (3 April 1973)

SECTION 35 THE AFRICAN LAW REPORTS Caramba-Coker and registered in vol. 197 at p.115 of the Record of Conveyances kept in the office of the Registrar-General shall be expunged from the said record by the Registrar-General. 5. The costs of this appeal and of the hearing in the court 5 below shall be taxed and paid to the appellant. 10 15 20 25 30 35 40 Order accordingly. FRIDAY v. CONTEH Court of Appeal (Percy Davies and Tejan, JJ. A. and Rowland Harding, J.): April3rd, 1973 (Civil Appeal No. 13/72) [ 1] Succession-probate and letters of administration-persons entitled to letters of administration-next of kin-no concept of "next of kin" in Kroo customary law-grant of letters of administration to "only next of kin" of deceased Krooman invalid: Kroo customary law does not recognise the concept of "next of kin" and so a grant of letters of administration of the estate of a Krooman to his brother as "only next of kin" is invalid; in these circumstances the estate should be administered by the Administrator-General in accordance with the Administration of Estates Act (cap. 45) (page 290, lines 19-24; page 290, line 37- page 291, line 3). The respondents brought an action against the appellants in the High Court claiming possession of certain premises. The appellants were in possession of premises within the Kroo Reservation which had belonged to one William Tieh Dembo, alias Nah Dembo, alias Nenneh Nah, a member of the Kroo tribe, who died intestate in 1951. In January 1971 letters of administration of his estate were granted to his brother, Nah Dembo alias Nenneh as "lawful brother and only next-of-kin of the deceased.'' In March 1971 the deceased's brother sold the property to the respondents who brought the present proceedings seeking pos­ session from the appellants. The High Court (During, J.) gave judgment for the respondents and the appellants appealed. On appeal the court considered as a preliminary point whether the grant of letters of administration to the deceased's brother was valid according to the customary law of the Kroo tribe, of which the deceased was a member, and whether, in consequence, the brother had any title to sell the property to the respondents. The court held that the grant of administration had been improper, allowed the appeal and ordered a new trial. 288 FRIDAY v. CONTEH.1972-73 ALR S.L. 288 C.A. Legislation construed: Administration of Estates Act (Laws of Sierra Leone, 1960, cap. 45), s.43(1): The relevant terms of this sub-section are set out at page 290, lines 32-36. Kroo Reservation Act (Laws of Sierra Leone, 1960, cap. 127), s.6: The relevant terms of this section are set out at page 290, lines 5-9. Doe-Smith for the appellants; Carew for the respondents. 5 PERCY DAVIES, J .A., delivering the judgment of the court: 10 This is an appeal against the judgment of During, J. dated May 31st, 1972, in which he ordered that each and every one of the appellants should give up possession of premises shown as 4 7 Victoria Street in Freetown in the Western Area of Sierra Leone within seven days from the date of judgment. 15 In his statement of claim the respondent averred that he was the agent of Marie Bangura of 25 Cole Street, Freetown and that the appellants were either tenants of the late William Tieh Dembo, alias Nah Dembo, alias Nenneh Nah, at 4 7 Victoria Street, Free­ town, or lived in the said premises with and by the consent of the 20 said William Tieh Dembo. In their statement of defence the first and second appellants averred that they were in possession of 4 7 Victoria Street and that the third and fifth appellants, were the tenants of the first and second appellants, and the fourth appellant was the wife of the 25 third appellant. By a deed of indenture made on June 29th, 1944, Elizabeth John conveyed 47 Victoria Street to William Tieh Dembo and Kpee Juah Karjai alias Tieh Koh in consideration of the sum of £210 paid by the purchasers to the vendor. By the said deed the 30 property in question was conveyed to the purchasers in fee simple. By Exhibit E dated January 26th, 1971, letters of administra­ tion of the estate of William Tieh Dembo alias Nenneh Nah late of 47 Victoria Street, Freetown, who died on December 5th, 1951, were granted to Nah Dembo alias Nenneh, the lawful brother and 35 only next-of-kin of the said deceased. By a deed of indenture made on March 18th, 1971, Nah Dembo alias Nenneh conveyed 47 Victoria Street to the second respon- dent in consideration of the sum of Le2 ,000 paid by the second respondent to him on or before the execution of the said deed 40 of indenture. 289 THE AFRICAN LAW REPORTS The appellants have filed six grounds of appeal but it appears that there is a fundamental error which goes to the root of the matter and which this court is obliged to point out. The appellants in this case are all members of the Kroo tribe. 5 The Kroo Reservation Act (cap. 127), s.6 provides that- "the Kroo Reservation shall be maintained as a place of settlement for the Kroo people only and no person other than a Krooman shall be permitted to build or acquire or occupy a house within the said Reservation .... " There are a few exceptions to this section. 10 The Tribal Administration (Colony) (Kroo and Bassa Tribes) Rules (cap. 7 8) apply only to members of the Kroo and Bassa tribes who are or may be resident or staying in Freetown. The affairs of the Kroo tribe are managed by the Tribal Headman duly elected and advised by a committee also duly appointed under the 15 Act, and no unauthorised person shall interfere with him in the exercise of his power or the performance of his duties under the Act or the Rules made thereunder or shall disturb any meeting convened by him. It was a fatal mistake when letters of administration of the 20 estate of William Tieh Dembo alias Nenneh Nah late of 4 7, Victoria Street, Freetown, who died on December 5th, 1951, were granted to Nah Dembo alias Nenneh who was described in Exhibit E as "the lawful brother and only next-of-kin'' of the deceased. Native law and custom does not know of "next-of-kin". It should be 25 stated that the property, 4 7 Victoria Street comes within the ambit of the Kroo Reservation Act. If Nah Dembo alias Nenneh had not been granted letters of administration he would not have been in a position to part with 4 7 Victoria Street as he did but rather it would have devolved according to Kroo law and custom. 30 The Administration of Estates Act (cap. 45 ), s.43(1) provides that- " ... where any native dies intestate leaving assets in Sierra Leone which are not within the jurisdiction of any Native Court the distribution of such assets after payment of the 35 debts of the deceased and the costs of administration shall be according to native law and custom." It follows therefore that a Kroo estate must be administered by the Administrator and Registrar-General under the Administration of Estates Act (cap. 45) and when he administers such estate he 40 shall request the Kroo Tribal Headman to ascertain from the Kroo Tribal Court the names of persons entitled to the residue of the 290 SECTION 36 SA WYERR v. WILLIAMS, 1972-73 ALR S.L. 291 C.A. estate and on such names being certified to him by the Kroo Tribal Headman shall pay the residue to the person or persons so named. In the circumstances, the appeal is bound to succeed and it succeeds accordingly. This court orders that the case be remitted 5 to the lower court for retrial. Appeal allowed, new trial ordered. SAWYERR v. WILLIAMS Court of Appeal (Percy Davies and Tejan, JJ. A. and Rowland Harding, J.): April 3rd, 1973 (Civil App. No. 5/73) 10 [ 1] Succession-intestate succession-order of succession-children of de· 15 ceased brothers and sisters of intestate under Administration of Estates Act (cap. 45), Second Schedule, rr. 6(2) and 8 take per stirpes-right to claim does not extend to grandchildren: Under the Second Schedule to the Administration of Estates Act (cap. 45) rr. 6(2) and 8, the children of deceased brothers and sisters of an intestate deceased may stand in loco parentis and claim a share of the intestate's estate, taking per stirpes, 20 but the rule must be interpreted strictly as applying only to children and does not extend the right to claim to grandchildren (page 295, lines 12....,.. 14, lines 16-25). The appellant brought an action against the respondent in the High Court claiming a share in the estate of an intestate as one of 25 the next of kin. The respondent was the sister of the intestate and letters of administration were granted to her. The appellant was the grand­ son of one of the sisters of the intestate, the sister having pre- deceased the intestate, and the only other surviving relative. 30 The appellant brought the present proceedings claiming one half of the estate of the intestate. The High Court (During, J.) dismissed his claim on the ground that the Second Schedule to the Administration of Estates Act (cap. 45), r.6 limited the right to claim to children of the deceased's brothers and sisters and not 35 grandchildren. On appeal the appellant contended that the Second Schedule to the Administration of Estates Act, r.6, by allowing children of deceased brothers or sisters to share in the estate of a deceased intestate "in loco parentis," included within the latter phrase 40 those persons who may represent acestors and that the trial judge 291