Hajah Fatmatta Katah v Ibrahim Momordu Allie (Administrator of the Estate of Alhaji Antumani Allie, Decd.) (CIV APP 8 of 1961) [1961] SLCA 6 (14 April 1961)

C. A. 1961 KALIL V. JoHN. Ames P. Freetown April 14, 1961 Ames P. Benka-Coker C.J. Marke J. The other fact is that they have accepted rent from the appellant. We have before us a receipt by Mrs. Bull on behalf of herself and the other remainder­ men. The receipt is somewhat naively headed "without prejudice," but it is in evidence. To my mind these facts make this case very different from those cited. The second clause of the enactment of the Act of 1849 which I have already referred to ended up with the following proviso : " Provided always that no lessee under any such invalid lease as afore­ said, his heirs, executors, administrators, or assigns, shall be entitled by virtue of any such equitable contract as aforesaid to obtain any variation of such lease, where the persons who would have been bound by such contract are willing to confirm such lease without variation." Then there follows : "3. And be it enacted that the acceptance of rent under any such invalid lease as aforesaid shall as against the person so accepting the same be deemed a confirmation of such lease." I think that, in these circumstances, this lease should be confirmed, subject to the following variation, namely, that the period for re-entry on non-payment of rent should be reduced to 30 days and the covenant for renewal should be deleted. For these reasons, I would allow the appeal, and set aside the judgment in the court below and order the variation of the lease accordingly. [COURT OF APPEAL] HAJAH FATMATTA KATAH . Appellant v. IBRAHIM MOMORDU ALLIE (ADMINISTRATOR OF THE ESTATE OF ALHAJI ANTUMANI ALLIE, DECD.) . Respondent [Civil Appeal 8/61] Real property-Testator bequeathed property to wife for life, remainder to minor son-Official Administrator of Estates conveyed property to wife in fee simple relying on "Deed of Family Arrangement "-Whether sufficient evidence that "Deed of Family Arrangement" approved by court. Testator bequeathed property at No. 2 Kissy Road to wife for life, remainder to minor son-Purchase price not fully paid at time of testator's death-Unpaid purchase price charge on property unless contrary intention in will-Whether there was contrary intention-Whether proper for Official Administrator to convey property to wife if she pays unpaid purchase price-Real Estate Charges Acts, 1854-1877 (Locke-Kings Acts). Momordu Allie (the testator) died testate on January 22, 1948. By his will, he bequeathed certain properties to his wife, Rajah Fatmatta Allie, for life, with remainder to his son, Alhaji Antumani Allie. The executors appointed in the will having renounced probate, the Official Administrator of Estates, Ahmed Alhadi, was appointed administrator of testator's estate. In July 1948, the Official Administrator conveyed all the properties to Rajah Fatmatta Allie (the 172 appellant). At that time, Alhaji Antumani Allie was 18 years of age. Alhaji Antumani Allie died on May 4, 1959, and on August 6, 1960, the administrator of his estate (the respondent) issued a writ against appellant claiming a declaration that all the cbnveyances should be set aside as having been obtained from Alhaji Antumani Allie against his interest and by undue influence. Appellant sought to justify the conveyances on the basis of an alleged " Deed of Family Arrangement," which she claimed had been approved by an order of court. At the trial before the Supreme Court, the order of court could not be found, and secondary evidence was introduced. Jones J. held that this evidence was insufficient, and set aside the conveyances. From this decision appellant appealed. Regarding the property at No. 2 Kissy Road, it appeared that only part of the purchase price had been paid when testator died and that appellant paid the unpaid portion of the purchase price before the Official Administrator conveyed the property to her. Held, allowing the appeal, (1) that there was sufficient evidence that the deed of family arrangement was approved by a judge's order dated July 14, 1948; and (2) that since appellant paid the unpaid portion of the purchase price for the property at No. 2 Kissy Road, it was rightly conveyed to her. Note. This decision was reversed by the Judicial Committee of the Privy Council on January 17, 1963 (Privy Council Appeal No. 37 of 1961). Melville C. Marke (Edward J. McCormack with him) for the appellant. Cyrus Rogers-Wright for the respondent. MARKE J. This is an appeal from a decision in two actions in the Supreme Court numbered 310/60 and 311/60 which were by order made on November 22, 1960, consolidated and tried together. In the action numbered 310/60 the plaintiff claimed to have set aside conveyances of certain hereditaments executed by Ahmed Alhadi in purported pursuance of a deed of family arrangement and made in favour of the appellant in this court. The hereditaments, the subject of the conveyances, were enumerated in paragraph 7 of the statement of claim and were as follows: (1) No. 46 East Street, (2) No. 6 Magazine Cut, (3) No. 48 East Street, (4) No. 23 East Street, (5) No. 50 East Street, (6) No. 2 Kissy Road, all in Freetown. The plaintiff I respondent in his statement of claim alleged: " Ahmed Alhadi mala fide and in collusion with the defendant conveyed all the above-mentioned properties unto and to the use of the said defendant in fee simple absolute in possession and by the exercise of undue influence over the said Alhaji Antumani Allie (deed.) obtained his execution thereto as beneficiary under the will of Momordu Allie (deed.)." Paragraph 8 of the statement of claim alleged that the effect of the said conveyances was to denude Alhaji Antumani of his entire patrimony and inheritance and at a time when he was an infant and unable to affect the nature and effect of the document he was executing. This paragraph also went on to allege undue influence by the defendant over Alhaji Antumani Allie, her son. In paragraph 9 of the statement of claim the plaintiff alleged that the alleged deed of family arrangement did not exist and if it did exist (which the plaintiff denied) put the defendant to strict proof that its purported execution by Alhaji Antumani Allie was free and voluntary and done after he had obtained free and independent advice. 173 c. A. 1961 KATAH v. AILIE. C. A. 1961 KATAH v. ALLIE. Marke J. The plaintiff further put the defendant to prove that there was an order of the Supreme Court approving the deed of family arrangement dated June 14, 1948. The defendant in her defence put the plaintiff to strict proof of the allega. tion contained in the plaintiff's statement of claim alleging mala fides collusion and the non-existence of the deed of family arrangement and of an order of the Supreme Court approving the same. The indorsement in the writ of summons for action C. C. 310/60 did not contain mention of the hereditaments at No. 48 East Street and though para­ graph 7 of the statement of claim in that action mentioned those hereditaments there was no detailed reference to it in the plaintiff/ respondent's pleading. To cure that omission the plaintiff/respondent adopted the rather unusual proceeding of issuing another writ of summons numbered 311/60, on the same day as the writ of summons numbered 310 I 60 and filed a statement of claim in respect of No. 48 East Street in substantially the same terms as regards mala fides collusion and undue influence as the statement of claim in action numbered 311/60. The defendant/ appellant did not file a statement of defence in respect of the action numbered 311 I 60. The facts may be briefly stated as follows. Momordu Allie (hereinafter called the testator) a professing Mohammedan having duly made his will dated August 20, 1946, and a codicil thereto dated July 19, 1947, died in Freetown on January 22, 1948. The executors named in the said will having renounced Probate Ahmed Alhadi, who was then the Official Administrator, was appointed administrator of the estate of the testator with the will and codicil annexed. The testator was survived by the defendant/ appellant, Alhaji Antumani Allie a son born to the testator by the defendant/appellant, another widow and several other children. At the time of the death of the testator, his son Alhaji Antumani Allie was an infant and he also died intestate on May 14, 1959, leaving no issue. The plaintiff/ respondent is the administrator of the estate of Alhaji Antumani Allie (deed.). The testator by his will after divers devises devised the following heredita­ ments to the defendant/ appellant for life with remainder to Alhaji Antumani Allie his heirs and assigns as tenants-in-common in fee simple: that is to say: (1) 23 East Street, (2) 2 Kissy Road, (3) 6 Magazine Cut. Nos. 46 and 50 East Street, the testator devised to the defendant/ appellant for her life or until remarriage with remainder to her son Alhaji Antumani and any other child or children born to him by defendant/ appellant as tenant-in-common. No. 48 East Street the testator devised upon trust for Alhaji Antumani his heirs and assigns as tenants-in-common. It is part of the defendant/appellant's case that on July 14, 1948, a judge's order was obtained approving the terms of a deed of family arrangement of the same date and registered in the office of the Registrar-General and the parties to that deed were the defendant/appellant, Ahmed Alhadi, administrator with the will annexed of the testator's estate, and Alhaji Antumani Allie. That deed varied the trusts of testator's will so far as they affect Alhaji Antumani Allie and (1) vested in the defendant/appellant in fee simple the following hereditaments: 23, 46, 50 East Street respectively and 6 Magazine Cut; (2) it vested in Ahmed Alhadi in trust for Antumani the following hereditaments: · 6 Magazine Street, 17 and 17a Martin Street, 9 Walpole Street; and (3) pro­ vided for payment by defendant/appellant out of her own moneys to Antumani 174 a sum of £1,000 for reconditioning 9 Walpole Street and a further sum of £1,500 to provide the advancement in life of Antumani. Mr. Young, a witness for the defence at the trial, said that he had been unable to trace the file C. C. 1851 48-" In the matter of the Estate of Momordu Allie (deed.) and In the matter of the Trusts affecting Antumani (an infant)," containing the judge's order approving the deed of family arrangement ; but continuing his evidence, he said: " It once existed because there is a record of it in the Cause Book." The Cause Book was admitted in evidence and Mr. Young read the entries in the Cause Book relating to C. C. 185 I 48. The learned trial judge, after referring to arguments by both counsel on this point, said: " It is unfortunate and perhaps to be deprecated, that a file of our Supreme Court relating to a matter which appeared to have come before it could not be traced. However, it is, I think, the law that orders and pro­ ceedings of the Supreme Court are proved by the originals and office copies. Neither has been forthcoming in this case due to no fault of the parties concerned. . . . Now the Cause Book shows that a summons was issued in June 1948 for the approval of a deed of family arrangement, " In the matter of the Estate of Momordu Allie (deed.) and in the matter of the Trusts affecting Alhadi Antumani an infant." Three solicitors, all alive, appear to have taken part in this case, namely, Messrs. E. A. C. John, C. 0. E. Cote, C. Rogers-Wright. The Cause Book shows that Mr. C. B. Rogers-Wright on July 22 filed an affidavit in opposition to the application, etc. . . . None of the solicitors was called to produce an office copy of this order, that is of course if they have any in their possession, nor to give such other evidence as may have assisted this court. " In the circumstances it is difficult for the court to come to the con­ elusion that the terms recited in the alleged deed of family arrangement were in fact those approved of in the judge's order on which the defendant relies." The appellant has brought this appeal on 11 grounds but for the purpose of this decision, we need only consider grounds 2, 3, 4, 5 and 6, which are as follows: (2) " The court below was not competent to set aside the deed of family arrangement dated July 14, 1948, or the deeds of conveyance made in pursuance of the said deed, relating to the properties situate at 23 East Street, 46 East Street, 6 Magazine Cut and 2 Kissy Road, all being in Freetown executed by Ahmed Alhadi, then Official Administrator, as administrator of the estate of Momordu Allie (deed.) with his will and confirming codicil annexed in favour of the defendant. (3) "The learned trial judge was wrong in law in holding that the said deed of family arrangement was not a valid deed of family arrangement. (4) "That the learned trial judge was wrong in holding that the said deeds of conveyance made in pursuance of the terms in the deed of family arrangement relating to 23 East Street, 46 East Street, 48 East Street and 50 East Street could be set aside. (5) " The learned trial judge erred in law in not holding that the saxd deed of family arrangement could not be set aside as the parties thereto could not be restored to their respective position. 175 C. A. 1961 KATAH v. All. I E. Marke J. c. A. 1961 KATAH v. ALLIB. Marke J. (6) "The finding of the learned trial judge that inadequacy of con­ sideration invalidated the deed of family arrangement could not be supported in law in the circumstances of the case." It seems to us, nevertheless, that the first if not the main ground to be deter­ mined on this appeal is whether there is evidence from which it can be said that a judge's order was in fact made on July 14. 1948, approving the terms of the deed of family arrangement. It is not disputed that the best evidence in proof of this judge's order was not available despite search thereof by the acting Master and Registrar. That at once opens the way for the admission of secondary evidence and there being no degrees of secondary evidence, such secondary evidence might pro­ perly be the Cause Book that was admitted in evidence, or office copies of the order if available or, to quote from the judgment of the learned judge: "Such other evidence as may have assisted the court." It seems to us that the proper consideration in cases where recourse has been had to secondary evidence is to consider the weight which such secondary evidence together with other evidence adduced, bears on the matter in issue. At the trial three indentures of conveyance were admitted in evidence and marked K, L, M, respectively. Exh. L, which was the first in time was dated September 14, 1954, and expressed to be made between Percy Richmond Davies described ·as Official Administrator of Estate in Sierra Leone of the one part and Alhaji Antumani of the other part, which was a conveyance of hereditaments and premises at 8 Magazine Street. The second in time of those conveyances marked K at the trial, was dated September 18, 1954, and expressed to be made between Alhaji Antumani of the one part and Boie Kamara of the other part being a conveyance of a piece of land in Martin Street. The third conveyance, marked M at the trial, was dated April 5, 1956, and expressed to be made between Alhaji Antumani of the one part and Muctarr Kallay of the other part being a conveyance of No. 8 Magazine Street. It seems to us of particular significance that the conveyances marked K and L and made about six years after the judge's order dated July 14, 1948, should each of them have recited that order and the deed of family arrange­ ment. If, as suggested by the plaintiff/respondent, the deed of family arrangement did not exist, it would be difficult to account for this recital in the conveyances marked K and L, which were not made by the same solicitor who made the deed of family arrangement. The learned trial judge in dealing with the exhibits marked K, L and M said- "Mr. Marke said that the facts show that when Antumani attained majority, he did nothing to repudiate the deed and in fact Ahmed Alhadi in 1954 conveyed to him in fee simple the properties 17 and 17a Martin Street and 8 Magazine Street respectively in pursuance of the deed of family arrangement." When in September 1954 Ahmed Alhadi conveyed to him 17 and 17a Martin Street and 8 Magazine Street and when he sold these properties, he had passed his majority. From the judge's notes of the address of Mr. Marke, there is no note that Mr. Marke said that Ahmed Alhadi conveyed the hereditaments referred to in Exhs. K. L and M to Antumani and if he did say so it was obvious from an 176 r inspection of the exhibits that Ahmed Alhadi did not convey the hereditaments referred to in Exhibits K, L, M : and it is not unlikely that the incorrect premise as to who did in fact convey the hereditaments referred to in Exhs. K, L and M, might have misled the trial judge in properly directing his mind to the evidence before him. The evidence of the Cause Book and of the recitals in Exhibits K, L, M, irresistibly draw us to the conclusion that the deed of family arrangement was approved by a judge's order dated July 14, 1948. Having so held, it follows that the Supreme Court was not competent to renew the judge's order dated July 14, 1948. No. 2 Kissy Road, however, was not included in the deed of family arrange­ ment. The facts are that the testator at the time of his death had not fully paid the price for these premises. By his will he devised No. 2 Kissy Road to the defendant/ appellant for the term of her life or until remarriage with remainder to Antumani his heirs and assigns in fee simple and as tenants in common. The learned trial judge described the conveyance of these premises to the defendant/ appellant as a flagrant breach of trust and contrary to the expressed provision of the testator's will. It is clear that on testator's death part of the purchase price on No. 2 Kissy Road was unpaid. That unpaid purchase price became a charge on No. 2 Kissy Road and unless there was a contrary intention in the will the provisions of the Real Estate Charges Acts, 1854-1877 (Locke Kings Acts), should apply. We can find no contrary intention in the will. The premises No. 2 Kissy Road are charged with the payment of the unpaid purchase money and the administrator cannot apply moneys from the estate to pay off this charge. The defendant/ appellant who is residuary devisee and legatee under the will paid off the charge and the hereditaments were in our opinion rightly conveyed to her. For the reasons already stated we will allow this appeal and set aside the judgment (including the order as to costs) of the learned trial judge. On the question of costs the defendant/ appellant will have her taxed costs in this court and in the court below. (COURT OF APPEAL] THOMAS GODWIN Appellant v. REGINA Respondent [Cr. App. 3/61] Criminal law-Procedure-Trial-Evidence-Deposition-condition to be satisfied before deposition may be put in evidence-criminal Procedure Ordinance (Cap. 39, Laws of Sierra Leone, 1960), s. 58-Whether defendant would have been convicted on evidence other than deposition. Appellant was convicted of stealing a welding machine. The most important witness for the prosecution, one Alhusine Kamara, was not present at the trial, and his deposition, taken by the committing magistrate, was put in evidence. 177 1 S.L.-12 c. A. 1961 KATAH v. ALL I E. Marke 1. Free town July 3, 1961 Ames P. Benka-Coker C.J. Bankole Jones J.