Ibrahim Momordu Allie v Hajah Fatmatta Katah (311 of 1960; CC 310 of 1960) [1961] SLSC 14 (23 February 1961)

The learned magistrate in his written judgment states: " The question to be determined is did the accused disperse or distribute the newspaper by selling a copy at his shop? To my mind, the offence would seem to be committed if the accused took part in distributing copies of the paper. In my view it would be straining the meaning of the word ' disperse ' were I to hold that by selling a copy of the paper the accused 'dispersed' the paper or assisted in dispersing the paper." I find the learned magistrate has rightly applied his mind to the main point in the case before him and can see no ground for upsetting his decision. This appeal therefore fails, and I confirm the decision of the learned trial magistrate. (SUPREME COURT] IBRAHIM MOMORDU ALLIE (ADMINISTRATOR OF THE ESTATE OF ALHAJI ANfuMANI ALLIE, DECD.) . v. HAJAH FATMATTA KATAH . [C. C. 310/60 and 311/60] Plan tiff Defendant Real property-Bequest of property to wife for life, remainder to minor son-con veyance of property by Official Administrator to wife in fee simple relying on "Deed of Family Arrangement "-Whether deed was "Deed of Family Arrange ment "-Whether wife exercised undue influence over son-Whether sufficient evidence that deed approved by court-Whether Official Administrator acted male fide and in collusion with wife. Bequest of property to wife for life, remainder to minor son-Purchase price not fully paid at time of testator's death-Official Administrator paid unpaid purchase price out of Testator's estate-Whether proper for Official Administrator to convey property to wife. Momordu Allie (the testator) died on January 22, 1948. By his will he bequeathed certain properties to his wife, Rajah Fatmatta Katah (defendant), for life, with remainder to his son, Alhaji Antumani Allie (Antumani). The executors appointed in the will having renounced probate, the Official Adminis trator of Estates was appointed administrator of testator's estate. In July 1948, when Antumani was 18 years of age, the Official Administrator conveyed all the properties to defendant. In doing so, he relied on a " Deed of Family Arrange ment," dated July 14, 1948, entered into by the Official Administrator, defendant and Antumani. Under this deed, it was agreed that some of the property in question, worth over £20,000, should be conveyed outright to defendant, w:hile other property, worth £1,740, should be conveyed to Antumani. Defendant also agreed to pay Antumani £2,500 cash. Antumani died on May 4, 1959. On August 6, 1960, the administrator of his estate issued a writ against defendant claiming a declaration that all the con veyances to defendant should be set aside as having been obtained from the infant Antumani against his interest and by undue influence. Defendant alleged that the deed of family arrangement had been approved by an order of court on July 14, 1948.

1 S.L.-3 s. c.

ATTORNE~ GENERAL v. LUCAN Marke Ag.C.J. Freetown Feb. 23,

Bankole Jones J. s. c.

ALLIE v. KATAH Held, for the plaintiff, (1) the deed dated July 14, 1948, was not a deed of family arrangement.

(2) The " Deed of Family Arrangement " (so-called) was invalid, because, both at the time when the deed was executed and at the time when Antumani, though of full age, took benefits under it, he was under the influence and dominion of the defendant.

(3) There was not sufficient evidence to establish that the " Deed of Family Arrangement " was approved by an order of court.

(4) The conveyances executed by the Official Administrator in favour of the defendant were executed by him male fide and in collusion with the defendant. Note: This decision was reversed by the Sierra Leone and Gambia Court of Appeal on April 14, 1961. The Court of Appeal decision was reversed by the Judicial Committee of the Privy Council on January 17, 1963 and the Supreme Court decision restored. Cases referred to: Talbot v. Staniforth (1861) 70 E.R. 837; Playford v. Playford (1845) 67 E.R. 764; Wycherley v. Wycherley (1763) 28 E.R. 864; Hoghton v. Hoghton (1852) 15 Beav. 278, 51 E.R. 545; Wright v. Vanderplank (1856) 44 E.R. 340; Elliston v. Reacher [1908] 2 Ch. 665; Chambers v. Randa/1 [1923] 1 Ch. 149; Pitman v. Ewing [1911] A.C. 217; In re Weston [1900] 2 Ch. 164; Edwards v. Carter [1893] A.C. 360., Cyrus B. Rogers-Wright for the plaintiff. Melville C. Marke for the defendant. BANKOLE JoNES J. Two actions entitled C.C. 310/60 and C.C. 311/60 respectively were on November 22, 1960, ordered by this court to be con solidated, and the hearing of this consolidated action commenced on January 3, 1961, and was concluded on February 2, 1961. The plaintiff is the administrator of the estate of one Alhaji Antumani Allie deceased, who died at Freetown on May 14, 1959, intestate, and is also the eldest lawful brother of full age according to Mohammedan law and custom of the said Alhaji Antumani Allie deceased (hereinafter referred to as Antumani). The plaintiff in his writs asks for a declaration that various conveyances executed between Antumani and the defendant and one Ahmed Alhadi affect ing certain properties devised in the will of one Momordu Allie deceased to the defendant for life and thereafter to the use of Antumani his heirs and assigns in fee simple, be set aside as being void and of no effect having been obtained from an infant and against his interest and by undue influence. The properties enumerated in the writs are as follows : 23 East Street, 2 Fourah Bay Road, 2 Kissy Road, 5 and 5A Kissy Road, 21 Fisher Street, 6 Magazine Cut, 46 East Street, 50 East Street and 48 East Street, all situate in Freetown. However in his statements of claim the plaintiff contented him self with asking for the declaration sought only as regards the following properties, namely, 23, 46, 48 and 50 East Street respectively, 6 Magazine Cut and 2 Kissy Road. The facts in this case are as follows: Momordu Allie was the father of Antumani and the husband according to Mohammedan law and custom of the defendant. He died on January 22, 1948, leaving a will dated August 30, 1946, which was confirmed by a codicil dated July 19, 1947. The defendant was one

l

of his widows and Antumani her only son. Both the defendant and Antumam, then an infant, survived the deceased. The executors and trustees of the will included the defendant and Antumani, all of whom renounced probate, and on March 10, 1948, letters of administration with the will annexed were granted to Ahmed Alhadi who was then the Official Administrator and the Master and Registrar of the Supreme Court. It is said that on July 14th, 1948, a judge's order was obtained approving the terms of a deed of family arrangement alleged to have been made between the defendant, Antumani and Ahmed Alhadi, acting as trustee of the trusts created under the will, wherein the defendant agreed with Antumani and with . the consent of Ahmed Alhadi to vary the trusts of the will as they affected Antumani so that the defendant should become seised in fee simple of the following properties, that is to say, 23, 46, 48 and 50 East Street respectively and 6 Magazine Cut, and that the following properties, namely, 8 Magazine Street, 17 and 17A Martin Street and 9 Walpole Street should become vested in Ahmed Alhadi in trust for Antumani and that the defendant from her own moneys should provide in favour of Antumani a sum not exceeding £1,000 for the purpose of reconditioning, restoring and securing the dwelling-house at 9 Walpole Street, and a further sum of £1,500 to promote his advancement in life. Now the properties 23 East Street and 6 Magazine Cut were by the will of Momordu Allie (hereinafter called the " testator ") devised to the defendant for her life and after her death or re-marriage to Antumani in fee simple. The properties 46 and 50 East Street respectively were devised to the defendant for life and after her death or re-marriage upon trust for Antumani and any other child or children of the testator who were then living or who may here after be born to the defendant. It is not disputed that no other child of the defendant by the testator was living at the date of the testator's death, nor was there any other child born to the testator by the defendant after his death. The property 48 East Street was devised by the testator in trust for Antumani, his heirs and assigns as tenants in common with no interest whatever created in favour of the defendant. All these were the properties to be con veyed in fee simple absolute to the defendant under the terms of the Deed of Family Arrangement. On the other hand under the same deed, the following properties were vested in Ahmed Alhadi in trust for Antumani, namely, 8 Magazine Street, 17 and 17 A Martin Street and 9 Walpole Street. Under the will the testator devised 9 Walpole Street upon trust for Antumani his heirs and assigns as tenants in common. The defendant had no interest whatever created in her favour in this property. No. 8 Magazine Street was devised to the defendant for her lifetime and after her death or re-marriage to Antumani in fee simple. Nos. 17 and 17 A Martin Street were devised to the defendant absolutely. As to 2 Kissy Road which formed no part of the family arrange ment, this was devised to the defendant for life and after her death or re-marriage to Antumani in fee simple. Yet on July 12, 1948, Ahmed Alhadi as Official Administrator by a registered deed of conveyance conveyed the entire fee simple to the defendant contrary to the provision of the will and without an order of court and described this property as forming part of the residue of the estate of the testator, which it clearly was not. The deed of family arrangement was executed on the same day on which it is said the judge's order was obtained. The parties recited in this deed

s. c.

ALLIE V. KATAH Bankole Jones J. s. c.

ALLIE V. KATAH Bankole Jones J. were the defendant, Antumani and Ahmed Alhadi. The parties to the execu tion were only the defendant and Ahmed Alhadi. Before the execution, the defendant handed to Antumani the sum of £1,000 and after the execution a further sum of £1,500. Both amounts were paid, it is said, in pursuance of certain terms in the deed. Neither of these sums was paid to Ahmed Alhadi as trustee, for the benefit of Antumani but to Antumani himself. On the very next day five conveyances were executed by Ahmed Alhadi as Official Adminis trator conveying the fee simple absolute of the following properties to the defendant, namely, 23, 46, 48 and 50 East Street respectively and 6 Magazine I Cut. After Antumani came of age, Ahmed Alhadi in 1954 conveyed to him in fee simple the properties situate at 17 and 17 A Martin Street and at 8 Magazine Street in pursuance of the terms of the deed of family arrangement. Before his death in 1959, Antumani sold these properties and in each of the conveyances of sale was a recital of the terms of the Deed of Family Arrangement. Now the plaintiff in his statements of claim alleges that Ahmed Alhadi male fide and in collusion with the defendant conveyed all the properties the subject matter of this action unto and to the use of the defendant in fee simple absolute in possession, and by the exercise of undue influence on the part of the defendant obtained from Antumani his execution of the conveyances relating to these properties. As to the deed of family arrangement, the plaintiff says that this does not exist, but that if it did and was executed by Antumani, the judge's order approving of its terms was obtained by collusion between the defendant and Ahmed Alhadi and by misrepresentation and without due and proper notice to the other parties and next-of-kin of Antumani and at a time when he was an infant and against his interest. The evidence however clearly shows that Antumani took no part either in the execution of the deed of family arrangement or in that of the conveyances referred to. At the close of the case for the defence, counsel for the plaintiff intimated that he would in his argument abandon those portions of his statements of claim which allege that Antumani was a party to the execution of the deed of family arrangement and the conveyances. Counsel for the defence submitted that this amounted to an application to amend his pleadings, and that it was too late in the day to make such an application, and it should be refused. I held that I did not think that counsel for the plaintiff was making an applica tion to amend his pleadings. In fact he said so himself. I expressed the view that this could be a matter for comment, if at all, on the part of counsel for the defence. Before considering the arguments advanced by counsel, there is one matter which I think needs special mention. The witness Young, the Acting Master and Registrar of the Supreme Court deposed, that after making search in his office, he could not find in his custody the file which purported to contain the order of court approving the terms of the deed of family arrangement. He, however, produced and tendered in evidence a Cause Book which purported to show that applications were made to the court for such an order to be made. The relevant portions of this Cause Book-Exh. J. are as follows. It is in the first place headed : " In the Matter of the Estate of Momordu Allie deceased. In the Matter of the Trusts affecting Alhadi Antumani an Infant."

Then follows these items : Solicitor E. A. C. John

C.

0. E. Cole

No. Documents

1. Affidavit in support

2. Summons to approve of Deed of Family

Arrangement Judge's order approving of Deed of Family Arrangement Affidavit in support Summons Summons Affidavit Judge's order approving Deed of Family Arrangement Date

On the opposite page which also dealt with this same matter is recorded one item, namely: Solicito1' C. B. Rogers Wright No.

D.ocuments Affidavit in opposition to application, etc. Date

I intend later in this judgment to deal with the question whether there has been legal proof that a judge's order was made and if so how it can affect the issues raised in this case. It is conceded on both sides that on the respective dates of the execution of the deed of family arrangement on the one hand, and the conveyances referred to above on the other hand, Antumani was an infant. However quite a lot of evidence was led as to when he was born. Three birth certificates were pro duced and tendered on this question. I really do not find these very helpful. The defendant swore that her son, Antumani, was born in October 1927 and caused to be produced a birth certificate-Exh. G which showed that a male child was born to one Fatmatta (Madingo) at Crook Street on October 16, 1927. If this certificate referred to the birth of Antumani, then he was about three months short of reaching his majority on the dates of the execution of the deed of family arrangement and the conveyances respectively. On the other hand two witnesses for the plaintiff swore otherwise. Soknah Tarawali, the eldest widow of the testator, said that Antumani was born about eight or nine months after she gave birth at Rawdon Street to a daughter by name Kadia. She also caused to be produced a birth certificate-Exh. D which showed that a female child was born to one Sokonah Tarawally on December 6, 1929, at Rawdon Street. She said that the defendant gave birth to Antumani at No. 1 Elba Street, the defendant's mother's house where she visited her after birth. Mucktarr Kallay, another witness for the plaintiff, and brother of the defendant, swore that the defendant gave birth to Antumani at No. 1 Elba Street and not at Crook Street. He said he was present in the house when Antumani was born. If all this is true then Antumani was born late in 1930 and was almost 18 years of age when the deed of family arrangement and the conveyances were executed. The question as to the date or time of a child's birth is a matter which ought to be peculiarly within the knowledge of the mother. In this case how ever I regret I cannot accept the defendant's version. She is illiterate but swore that her son was born in October 1927, the month mentioned in E:xh. G, yet

s. c.

ALLIE v. KATAH Bankole Jones J. s. c.

ALLIE v. KATAH Bankole Jones J. she could not remember the year her first husband died, nor the year she got married to the testator. She swore she got two children by the testator (which is denied by the plaintiff and his witnesses), yet she could not remember what year the second child was born. She could not produce either the birth certificate or the death certificate of this child. Apart from all this the defendant was a most unsatisfactory witness throughout this case, and I find it difficult to place much reliance upon her evidence. I accept the version of the witnesses for the plaintiff and find that Antumani was born in late 1930 and was about 18 years old when the deed of family arrangement and the conveyances were executed. As to the deed of family arrangement, Mr. Marke submitted that this deed was valid in law and that, effect having been given to its terms, the plaintiff cannot now question its validity. He said that Ahmed Alhadi as Official Administrator was appointed administrator of the estate of the testator and stood in the shoes of the trustees of the will and in that capacity executed the deed on behalf of Antumani who was then an infant, and also by virtue of a discretionary power contained in paragraph 36 of the will. This paragraph reads as follows : "I further direct that my trustees shall have the fullest power generally of determining all matters as to which any doubt difficulty or question may arise under or in relation to the execution of the trusts of this my will. And I further declare that any determination of my trustees in relation to any of the matters aforesaid whether made upon a question formerly or actually raised or implied in any of the acts or proceedings in relation to the premises shall bind all parties interested under this my will and shall not be objected to or questioned upon any ground whatsoever." The fact, therefore, Mr. Marke urged, that Antumani though recited as a party to the deed did not in fact execute it, would not invalidate it. In the deed is recited the following: " And whereas the name of Alhadi Antumani has been inserted as a party hereto to the intent that he may be bound by these presents .... " Mr. Rogers-Wright, on the other hand, argued that even if the deed fulfilled all the legal conditions of execution, yet by its very terms it ought not to stand because it is in the first place not a family arrangement and in the second place its terms are unreasonable. As to whether the deed is a family arrangement, reference was made to Vol. 15, Halsbury's Laws of England, 2nd ed. (Hailsham), at p. 2, para. 2, for the definition of the expression " family arrangement." A family arrangement is there defined as " a transaction between members of the same family which is for the benefit of the family generally, as, for example, one which tends to the preservation of the family property, to the peace or security of the family and the avoidance of family disputes and litigation or to the saving of the honour of the family." In the case of Talbot v. Staniforth (1861) 70 E.R. 837, it was held that a purchase by a tenant for life from a reversioner although the object is the laudable one of preventing the estate being sold out of the family is not a family arrangement. The Vice-Chancellor in delivering the judgment of the court said, inter alia, at p. 847: "Persons who deal with expectant heirs must be taken to know the law, and must take the consequences of their own act."