In re Turay, 1972-73 ALR S.L. 177

SECTION 27 IN RE TURAY, 1972-73 ALR S.L. 177 IN THE ESTATE OF TURA Y, TURA Y v. CAREW High Court (Tejan, J.): November 29th, 1972 (Civil Case No. 395/70) H.C. ( 1] Civil Procedure-hearing-order of hearing parties-caveat proceedings­ person propounding will should first give evidence of due execution but non-compliance with procedure does not vitiate proceedings: In caveat proceedings the party propounding the will should first give evidence showing that the will conforms to all the requirements of the Wills Act, 1837 but non-compliance with this procedure does not vitiate the proceedings (page 181, lines 14-22). (2] Civil Procedure-witnesses-court may call witness in civil case without consent of parties if in interests of justice: When hearing a civil case the court may call a witness or require fresh evidence to be adduced with- out the consent of the parties if it thinks it necessary to do so in the interests of justice (page 182, lines 9-32). [ 3] Estoppel-record-res judicata-parties estopped from denying not only facts and issues fundamental to decision in previous proceedings but also all matters which could have formed part of case if pleaded-plea not applicable to matter raised but not adjudicated upon: Parties to litigation on a given matter are estopped in subsequent proceedings from denying not only facts and issues which were fundamental to that decision but also all those matters which could reasonably have formed part of the case had they been pleaded, but the plea of res judicata is not applicable to a matter raised but not adjudicated upon (page 189, line 38- page 190, line 17). [ 4] Evidence-burden of proof-wills-knowledge and approval-when circumstances surrounding preparation and execution of will suspicious, burden of proving testator knew and approved of will lies on party propounding it-once established that will prima facie valid burden of proving invalidity on party attacking it: The presumption of due execution of a will regular on its face applies to a will executed by the mark of a testator who is unable to write; if, however, a testator who is capable of signing his name has instead apparently executed his will by making a mark or if the circumstances surrounding the preparation and execution of the will give rise to suspicion for other reasons, such as when a person who prepares a will receives a legacy under it, then the burden of proving that the testator knew and approved of the contents of the will lies on the party propounding it; a suspicion engendered by extraneous circumstances arising subsequent to the execution of the will is not sufficient to rebut the presumption (page 183, lines 6-10; page 184, lines 3-11; page 185, lines 6-9; page 186, lines 13-19, lines 23-28). 5 10 15 20 25 30 35 [ 5] Evidence-judicial notice-customary law-to be proved by evidence 40 until notorious then judicial notice-but if within judge's personal knowlege no further proof needed-if notorious but outside judge's 177 5 10 THE AFRICAN LAW REPORTS knowledge he may consult reference books: Customary law should usually be proved in the first instance by calling witnesses until by frequent proof in the courts it has become so notorious that the courts will take judicial notice of it, although a judge who is called upon to take judicial notice of a fact that is not within his personal knowledge may refuse to do so until he has consulted a reference book; however, a judge with personal knowledge of the relevant customary law may take judicial notice of it without further proof (page 187, lines 29-40; page 188, lines 26-41). [ 6] Evidence-judicial notice-matters within judge's knowledge-if judge has personal knowledge of relevant customary law may take judicial notice without further proof: See [ 5] above. ( 7] Evidence-presumptions-presumptions of law-omnia praesumuntur rite esse acta-will ref{Ular on its face presumed duly executed: See [ 4] consulted: See [ 5] above. 15 [ 8] Evidence-presumptions-presumptions of law-omnia praesumntur rite 20 25 30 35 40 esse acta-will regular on its face presumed duly executed: See [ 4] above. [ 9] Evidence-witnesses-civil cases-court may call witness in civil case if in interests of justice: See [2] above. [10] Jurisprudence-customary law-Mohammedan law is customary law applicable to those who profess Moslem faith: Mohammedan law is the customary law applicable to those who profess the Moslem faith (page 188, lines 37-39). [ 11] Jurisprudence-customary law-proof of customary law-by evidence until notorious by frequent proof then judicial notice-but if within judge's personal knowledge no further proof needed-if notorious but outside judge's knowledge he may consult reference books: See [ 5] above. [12] Succession-family provision-Mohammedan law limits power of testa­ mentary disposition-power limited to one-third of estate in favour of stranger--disposition invalid if exceeds one-third or made in favour of legal heir: Mohammedan law restricts the power of a Moslem to make a testamentary disposition to one-third of the estate and a disposition may be made only in favour of a stranger; any gift which exceeds one­ third of the estate or is made in favour of a legal heir is invalid (page 189, lines 15-21, lines 27-31). [13] Succession-probate and letters of administration-person entitled to letters of administration under Mohammedan law-under Mohammedan Marriage Act (cap. 96), s.9(2)(a) claimant entitled if eldest living son of full age at time of application: Under the Mohammedan Marriage Act (cap. 96), s.9(2)(a) a person may be granted letters of administration of the estate of an intestate if he is the eldest living son of the deceased and is of full age according to Mohammedan law at the date of his 178 r IN RE TURAY, 1972-73 ALR S.L. 177 H.C. application (page 191, lines 30-40). [ 14] Succession-wills-caveat proceedings-order of hearing parties-party propounding will should first give evidence of due execution but non­ compliance with procedure does not vitiate proceedings: See [ 1] above. [15] Succession-wills-execution-signature-mark of testator unable to write sufficient-mark by testator capable of signing raises suspicion to be dispelled by person propounding will: See [ 4] above. [16] Succession-wills-execution-will regular on its face presumed duly executed: See [ 4] above. [17] Succession-wills-knowledge and approval by testator-when circum­ stances surrounding preparation and execution of will suspicious, burden of proving testator knew and approved of will lies on party propounding it-once established that will prima facie valid burden of proving invalidity on party attacking it: See [ 4] above. [18] Succession-wills-restriction on freedom of testamentary disposition­ Mohammedan law limits disposition to one-third of estate in favour of stranger-disposition invalid if exceeds one-third or made in favour of legal heir; See [12] above. The plaintiffs brought caveat proceedings against the defendant, their sister, calling upon her to propound the will of their deceased father. The first plaintiff also sought a grant of letters of adminis­ tration of his father's estate. The deceased did not apparently suffer from any disability before his sudden death in May 1952. Six months after he died a will dated March 1951 was produced by a person known only to the defendant, under the terms of which the defendant was to receive more than one-third of the deceased's property. The suspicions of the plaintiffs were aroused by the fact that the will was apparently executed by the deceased making his mark instead of signing his name. The deceased, though not literate in English, was an Arabic scholar who always prepared and signed his docu­ ments in Arabic. It was alleged that the attesting witnesses had since died. The deceased's eldest son subsequently died and his second and third sons, the plaintiffs, took proceedings concerning their father's property against the defendant in 1956 and 1966. Although the validity of the will was challenged in these proceedings the matter was not adjudicated upon since the will was not before the court. The plaintiffs brought the present proceedings contending that the will was invalid and that since the circumstances surrounding the execution of the will were suspicious it was for the defendant 179 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS to prove that the testator knew and approved of the will. They also contended that since the devise to the defendant exceeded one-third of the deceased's estate, it was invalid according to Mohammedan law, which was the personal law of the deceased. 5 The first plaintiff sought a grant of letters of administration of the estate under s.9(2) of the Mohammedan Marriage Act (cap. 96). In reply the defendant contended that (a) the will was valid and alleged that the deceased had executed it with his mark instead of his signature because his eyesight was affected; (b) Mohammedan 10 law could not be applied since it was foreign law and had not been proved; (c) the plaintiffs were estopped from instituting the present proceedings since the matter had been finally determined in previous proceedings; and (d) the first plaintiff was not entitled to a grant of letters of administration as the eldest son of the deceased 15 under s.9(2) of the Mohammedan Marriage Act (cap. 96) since he had had an older brother (now deceased) and the Act gave no power to a younger son to take the place of a deceased elder son. During the trial, counsel for the plaintiff applied to call a certain witness, to whom counsel for the defendant objected. The court 20 ruled that the witness should be called and considered in some detail its power to call witnesses without the parties' consent. The will was declared invalid and letters of administration were granted to the first plain tiff. 25 Cases referred to: 30 35 40 (1) Amissah v. Krabah (1936), 2 W.A.C.A. 30. (2) Angu v. Attah (1916), P.C. '74-'28 43. (3) Baker v. Dening (1838), 8 Ad. & EI. 94; 112 E.R. 771, distinguished. (4) Barry v. Butlin (1838), 2 Moo. P.C.C.; 12 E.R. 1089. (5) Dawodu v. Danmole, [1962] 1 All N.L.R. 702; [1962] 1 W.L.R. 1053, applied. (6) In re Finn (Dcd.), [ 1935] All E.R. Rep. 419; (1935), 52 T.L.R. 153. (7) Henderson v. Henderson (1843), 3 Hare 100; 67 E.R. 613. (8) Johnson v. Maja (1951), 13 W.A.C.A. 297. (9) Kimani v. Gikanga, [1965] E.A. 735. (10) Macaulay v. P.C. Bongay (1930), 2 S.L. Law Rec. 28. (11) In re Musgrove, Davis v. Mayhew, [1927] P. 264; (1927), 137 L.T. 612. (12) In re R. (Dcd.), [1950] 2 All E.R. 117; (1950), 66 T.L.R. 26. 180 r IN RE TURAY. 1972-73 ALR S.L. 177 H.C. (13) In re Spain (1915), 31 T.L.R. 435; distinguished. (14) Tyrrell v. Painton, [1894] P. 151; (1894), 70 L.T. 453, applied. Legislation construed: Mohammedan Marriage Act (Laws of Sierra Leone, 1960, cap. 96), s.9: The relevant terms of this section are set out at page 191, lines 23-29. Marcus-Jones for the plaintiff; Minah for the defendant. TEJAN, J.: This is a caveat proceeding in which the plaintiffs have called upon the defendant to propound the will of the late Kabba Turay of 40 Goderich Street, Freetown. This being a caveat proceeding, the procedure is that the person called upon to propound the will is to give evidence first showing that the will complies with all the requirements of the Wills Act, 1837. But this onus is sometimes shifted after the person pro­ pounding the will has led evidence to show that the will was properly executed. Unfortunately in this case, the plaintiffs were called upon to give evidence first, and this was not the proper course. However, this unintentional irregularity does not affect the proceedings in this case in any way. I realise that it is the duty of the court to conduct the hearing of cases, but the court cannot interfere in the manner in which solicitors concerned propose to present their cases. Now, on March lOth, 1951, the late Kabba Turay made his will. Kabba Turay died on May 3rd, 1952, leaving four sons and a daughter. The two plaintiffs are among the four sons who survived the late Kabba Turay. The eldest son Muctar Turay died after the death of his father, leaving no issue. The first plaintiff is now the eldest surviving son. The second plaintiff is the next son, and there is a third son, Allie Turay, who is out of Sierra Leone. The only daughter of the late Kabba Turay is the defendant in this case. The late Kabba Turay, before his death, was a businessman and an Arabic teacher. He was not literate in English but he always prepared his documents in Arabic and signed them in Arabic. [The learned judge reviewed the evidence which stressed the literacy of the deceased and he referred to the evidence of the second plaintiff who had said that in 1956 and 1966 the plaintiffs had taken proceedings against the defendant, he continued:] At this stage, Dr. Marcus-Jones applied to call the Master and 181 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS Registrar, and Mr. Minah objected to the application. The court, however, ruled that the Master and Registrar should be called. Mr. Woode was then called and put in evidence Exhibits A1 to 8. He was then cross-examined by Mr. Minah and he put in evidence 5 Exhibit B. The next time the case came up for hearing Mr. Minah applied for Mr. Woode to be recalled, and his application having been granted, Mr. Woode produced and tendered in evidence Exhibit D. I think I shall have to deal with the impression created by some 10 solicitors that without the consent of the parties in a civil case, the court cannot call a witness. With regard to Dr. Marcus-Jones' appli­ cation, Mr. Minah availed himself of the opportunity of cross­ examining the witness. When the case came up for hearing the next time, he even made application to recall the witness. His 15 application was granted and he put questions to the witness. It seems to me that by his conduct he has waived his objection. However, I still think that a court can call a witness in a civil case if it thinks it necessary in the cause of justice. I shall refer to the case of Dawodu v. Dan mole ( 5 ), a Nigerian case which went to the 20 Privy Council. In their judgment their lordships quoted the Rules of the Federal Supreme Court as follows ([1962] All N.L.R. at 708; [1962] 1 W.L.R. at 1057): " 'It is not open as of right to any party to an appeal to adduce new evidence in support of his original case; but, for 25 the furtherance of justice, the Court may, where it thinks fit, allow or require new evidence to be adduced: such evidence to be either by oral examination in Court by affidavit or by deposition taken before an examiner or commissioner as the Court may direct. A party may, by leave of the Court allege 30 any facts essential to the issue that have come to his knowl­ edge after the decision of the Court below and adduce evidence in support of such allegations' " It seems to me from this quotation that a court can call a witness in a civil suit in the furtherance of justice before judgment. 35 Having disposed of the above issue, I shall now proceed with the case before me. It is not in dispute that the deceased in this case was an Arabic scholar and that he used to sign documents in Arabic. Even the defendant herself said that the deceased used to sign, but that when one of his eyes was affected he ceased to sign. 40 I must say that I do not believe the defendant that at any time one of the deceased's eyes was affected. I watched her very carefully 182 IN RE TURAY. 1972-73 ALR S.L. 177 H.C. when she was giving evidence, and I am certain that her story that one of the deceased's eyes was affected was untrue. Assuming that one of the deceased's eyes was affected, what could have prevented him from signing documents when the defendant herself said that nothing was wrong with the deceased's hands? 5 In cases of this kind, the onus of proof of due execution of a will lies on the person setting up the will. In this case, the plaintiffs have called upon the defendant to propound the will. It is for the defendant to show either by evidence or presumption that the will was duly executed. On the face of it, the deceased signed it by a 10 cross. The plaintiffs are saying that the deceased had no knowl- edge of the will or at least never approved of it. They also say that the cross is inconsistent with the character of the deceased who had always signed documents in Arabic. There is evidence that the deceased was quite well, and that he became ill on a Saturday and 15 died the following morning. The will was made in 1951 and the testator died in 1952. There is no evidence that any particular person prepared the will. The will was simply produced by a Mr. Jarrett about whom nobody was able to give any definite evidence. There is no evidence that any of the plaintiffs knew Mr. Jarrett. 20 Looking at the facts in this case, I have great suspicion about this will. This suspicion is to be removed by the defendant, but what evidence has she led to remove the suspicion? I am afraid she has adduced no evidence in this respect. The testator undoubtedly was an able Arabic scholar. There is evidence, which I accept, that he 25 always signed his documents in Arabic. One of the witnesses to the will signed his name in Arabic. I ask myself the question whether it is feasible or reasonable regarding the circumstances that have been brought up by the evidence, that the testator would make his mark on a document even though one of the 30 witnesses signed in Arabic? My answer is in the negative. No man with reason or commonsense would imagine such a state of affairs to have existed. There are several authorities with reference to wills and to which the maxim omnia praesumuntur rite esse acta has been applied. 3 5 In the case of In re Spain (13) a will was lost. There was evidence that the executor had read the will before it was lost, and a witness produced a letter showing that the will was lost. The court pro­ nounced in favour of the rewritten will. The present case is different. No witness, whether in the capacity of an executor or an attestator, 40 gave evidence that the testator made the will. Of course, there is 183 THE AFRICAN LAW REPORTS evidence that Mr. Jarrett has since died, but there is no evidence as to his date of death. The case of Baker v. Dening (3) ruled that the making of a mark by the devisor to a will is a sufficient signing. But in this case, the 5 testator could not write, and Lord Denman, C.J. said (8 Ad. & El. at 97; 112 E.R. at 772): "The mark of a person who is not capable of writing is allowed to be sufficient." In the case before me, there is abundant evidence that the testator was able to write Arabic and that in fact he signed all his documents in Arabic. It is not a 10 question whether the testator was capable of writing. There is no evidence that he was so sick that he could not write. In the case of In re Finn (Dcd.) (6) it was held that where an illiterate testator signified his intention of signing his will by pressing his thumb smeared with ink in the place where a testator's 15 signature usually appeared, and such signature was duly attested, the will was held to be duly executed although that method did not commend itself to the court. In this case, one of the attesting witnesses was a clergyman who was a chaplain in India for many years gave evidence. According to the report in the Times Law 20 Reports (52 T.L.R. at 153): "Mr. Justice Langton, in granting probate, said that illiterates were formerly much more common than nowadays, but if a mark was the only way a testator had of making his signature it came within the meaning of the statute. The 25 thumbmark in the present case was no worse than a cross, but the method adopted did not commend itself to him at all." Again, the late Kabba Turay was literate in Arabic, and he died in 1952 in the Republic of Sierra Leone. The facts in this case are 30 different. In the case of Re Musgrove, Davis v. Mayhew (11) according to the headnote in the Law Times (137 L.T. at 612), it was held that- "where a will is proved to have been properly executed and 35 attested it is valid and will be pronounced for, although the executrix into whose custody it was placed and whose illegitimate daughter was the sole beneficiary kept it for twenty years and died without disclosing its existence, as no suspicion attached to the will itself, but the only suspicion 40 arose after its due execution and attestation owing to the conduct of the executrix in concealing its existence, but that 184 IN RE TURAY, 1972-73 ALR S.L. 177 H.C. was insufficient to affect the validity of the will; the presump­ tion where a will is properly executed being omnia praesum­ untur rite esse acta." Lord Hanworth, M.R. in his judgment said ([1927] P. at 276; 137 L.T. at 614): 5 "It is clear, first, that the onus of proving a will lies upon the party propounding it, and, secondly, that he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator." His Lordship then went on to mention the case of Barry v. ButZin 10 (4) in which Parke, B. said ([1927] P. at 276; 137 L.T. at 614): " 'The strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burthen is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding a will, it is in 15 general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed.' " The defendant in this case has put forward Exhibit E as a will duly executed by the late Kabba Turay. But no evidence has been 20 adduced to show that the late Kabba Turay knew and approved of it as his testament and intended it to be such. His lordship went on to say that before a paper executed is entitled to probate, the court must be satisfied that the testator knew and approved of the contents at the time he signed it. His 25 lordship further said, after citing several authorities ([1927] P. at 278; 137 L.T. at 615) that-" 'if the attesting witnesses were both dead, then, on proof of their handwriting, the codicil would, if there were no other evidence, be admitted to probate .... ' " In the case of In re R. (Dcd.) (12), Willmer, J. in delivering 30 judgment referred to the rule in Barry v. Butlin ( 4) as follows ([1950] 2 All E.R. at 121; 66 T.L.R. at 30): "'There is one rule which has always been laid down by the courts having to deal with wills, and that is, that a person who is instrumental in the framing of a will, as these two 35 persons undoubtedly were, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will was read over to the testator 40 and that he was of sound mind and memory, and capable of 185 THE AFRICAN LAW REPORTS comprehending it. But there is a farther onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining the will. They have thrown upon them the onus of shewing the righteousness of the transaction.' " 5 The case of Tyrrell v. Painton (14) illustrates the following rule according to the headnote in the Law Reports ([1894] P. at 151): "The rule throwing upon the party propounding a will prepared by a person who takes a benefit under it the burden of shewing that the paper propounded expresses the true will 10 of the deceased, is not confined to cases where the will is prepared by a person taking a benefit under it, the true rule to be deduced from Barry v. ButZin . .. Fulton v. Andrew . .. and Brown v. Fisher ... being, that wherever a will is pre­ pared and executed under circumstances which raise the 15 suspicion of the Court, it ought not to be pronounced for unless the party propounding it adduces evidence which removes such suspicion, and satisfies the Court that the testator knew and approved of the contents of the instru­ ment." 20 In the case of Johnson v. Maja (8) it was held, according to the headnote in the West African Court of Appeal Reports (13 W.A.C. A. at 290), that- "the onus of proof shifts. In the first stage, where there is a dispute as to a will, those who propound it must clearly 25 show by evidence that prima facie all is in order: Thereafter, the burden is cast upon those who attack the will and they are required to substantiate by evidence the allegations they have made.'' In the case of In re R. (Dcd.) (12) ([1950] 2 All E.R. at 121; 66 30 T.L.R. at 30): "The conclusion which I draw from these authorities is that in dealing with a question of knowledge and approval of the contents of a will the circumstances which are held to excite the suspicions of the court must be circumstances attending, 35 or at least relevant to, the preparation and execution of the will itself. This view is, I think, confirmed by the decision of the Court of Appeal in In the Estate of Musgrove . .. where it was held that a suspicion engendered by extraneous circum­ stances, arising subsequent to the execution of the will, was 40 not a sufficient reason for rebutting the presumption of due execution of a will regular on its face." 186 IN RE TURAY, 1972-73 ALR S.L. 177 H.C. In the present case, there is undisputed evidence that the testator was an Arabic scholar; there is evidence that he usually signed documents and letters in Arabic; there is the evidence that even one of the attesting witnesses signed the will in Arabic. I am bound to say that these alone are sufficient circumstances to 5 excite the suspicion the authorities referred to. There is no evi­ dence to remove this suspicion. Moreover I do not believe the defendant that the testator ceased to sign when one of his eyes was affected. In fact, I do not believe that the testator's eye was affected. There is no evidence that the testator was rendered 10 incapable of signing by illness. On the other hand, there is the evidence which I accept, that the testator became ill only a day before his death. Neither of the attesting witnesses was called and I was made to understand that they were both dead. No witness was called to say that the signatures of the attesting witnesses 15 were theirs or to say that he was present when the attesting witnesses signed the will. There is no evidence that any particular person prepared the will except that the will was produced and read by one Mr. Jarrett, whom nobody seemed to know. These overwhelming circumstances are sufficient not only to excite 20 suspicion but to permit one to say that the testator did not make the will. The defendant said that she did not know Mr. Jarrett. I saw the defendant in the witness box and I watched her carefully when she was giving evidence. I am convinced that she knew Mr. Jarrett. 25 Having considered the entire evidence carefully, I believe that the testator did not authorise the preparation of the will or if he did, he had no knowledge of the contents of the will. Mr. Minah has submitted that Mohammedan Law is a foreign law, and that being a foreign law, it must be proved. With respect 30 to Mr. Minah, I disagree that Mohammedan Law is a foreign law. I think that it is a customary law and being such proof of it is necessary. The case on this point, I think is Angu v. Attah (2), a case tried in the then Gold Coast. This case went to the Privy Council in 1916, and their lordships laid it down (P.C. '74-'28 at 35 44) that-" as in the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent proof in the courts, become so notorious that the courts take judicial notice of them." This dictum was followed in the case of 40 Amissah v. Krabah (1). It was also followed in the case of Macauley 187 THE AFRICAN LAW REPORTS v. P.C. Bongay (10). In the case of Kimani v. Gikanga (9) Crabbe, J.A., one of the judges of the East African Court of Appeal said ( [ 1965] E.A. at 742): 5 "Proof of a particular customary law in one previous decision only was not considered to be 'frequent proof in the courts' so that the courts could take judicial notice of the alleged customary law rule. But this rule which was applied only in the 'British Courts' originated from the fact that most of 10 the early judges in the British Colonial territories in West Africa were Europeans, who were unacquainted with the various rules of the customary law. The courts therefore insisted on the proof of rules of the customary law. The rule was not however always followed, for in deciding questions 15 of native law and custom, the existence or content of any rule of customary law was in some cases determined by reference to any book or manuscript recognised as a legal authority, and the court could also call to its assistance chiefs or other persons whom the court considered to have 20 special knowledge of native law and custom. The rule in itself is fast becoming out-of--date, and I think it is too late in the day to extend its application to East Africa." Crabbe, J.A. then went on to refer to Stephen's Digest of the Law of Evidence, 12th ed., art. 62 (1936), as follows ([1965] E.A. at 25 742): "'No evidence of any fact of which the court will take judicial notice need be given by the party alleging its exist­ ence; but the judge, upon being called upon to take judicial notice thereof, may, if he is unacquainted with such fact, 30 refer to any person or to any document or book of reference for his satisfaction in relation thereto, or may refuse to take judicial notice thereof unless and until the party calling upon him to take such notice produces any such document or book of reference.' " 35 It should be noted that the cases referred to were cases dealing with native law and native custom. Is Mohammedan law then a native law? I do not regard Mohammedan law as a native law. I think it is a customary law applicable to those who profess the Moslem faith. However, I happen to be acquainted with Moham- 40 medan law and I do not think that I require any special proof of its existence. In any case, I shall refer to 2 The Religion of Islam, 188 • IN RE TURAY, 1972-73 ALR S.L. 177 H.C. 3rd ed., at 65-66 by Dr. Ahmad A. Galwash. Referring to the 11th verse of chapter 4 of the Koran, Dr. Gal wash says: "During his lifetime a Muslim has absolute power over his property. He may dispose of it in whatever way he likes. But such dispositions, in order to be valid and effective, are 5 required to have operation given to them during the lifetime of the owner. If a gift be made, the subject of the gift must be made over to the donee during the lifetime of the donor; he must, in fact, divest himself of all proprietary rights in it and place the donee in possession. To make the operation of 10 the gift dependent upon the donor's death would invalidate the donation. So also in the case of endowments for charitable or religious purposes. A disposition in favour of charity, in order to be valid, should be accompanied by the complete divestment of all proprietary rights. As regards testamentary 15 dispositions, the power is limited to one-third of the property, provided that it is not in favour of one who is entitled to share in the inheritance. For example, the proprietor may devise by will one-third of his property to a stranger; should the device, however relate to more than one-third, or should 20 it be in favour of a legal heir, it would be invalid." According to the will of the testator in this case, his property comprises a house at 40 Goderich Street and a piece of land at Race Course Road. Paragraph 3 of the said will devised the house at 40 Goderich Street to the defendant while para. 4 of the will 25 devised the piece of land at Race Course Road to his four sons including the plaintiffs. This devise is in contravention of verse 11 of chapter 4 of the Koran since the devise to the defendant is more than one-third of the property and moreover the defendant is a person entitled to share in the inheritance. It seems to me that 30 the gift to the defendant fails. Mr. Minah has also submitted that the plaintiffs are estopped from instituting this proceeding since the matter has been finally determined by a court of competent jurisdiction. The object of the plea of res judicata is stated in the case of Henderson v. 35 Henderson (7) by Wigram, V.C. as follows (3 Hare at 114; 67 E.R. at 319): "I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, 40 the Court requires the party to that litigation to bring forward 189 THE AFRICAN LAW REPORTS their whole case, and will not (except under special circum­ stances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not 5 brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, 10 but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." From the authorities on the plea of res judicata, it seems to me that the plea is available when a matter has been finally adjudicated 15 upon irrespective of whether certain points which should have been raised, have not been brought forward. I do not think that the plea is applicable to a matter raised but not adjudicated upon. I have read the judgment in the previous action and the con­ clusion of the judgment is as follows: 20 "Taking the evidence as a whole, I hold that the plaintiffs have failed to prove their claim and it is hereby dismissed. The will is not before the court and para. 17 of the defence cannot be considered." Paragraph 17 of the defence referred to in the judgment is as 25 follows: "The first defendant therefore asks - (1) That the will be declared valid and the Administrator-General be requested to administer the estate according to the will dated March lOth, 1952." It is clear from the judgment of Browne-Marke, J. that the 30 learned judge did not adjudicate upon the validity or invalidity of the will. This point was no doubt observed by the Court of Appeal when the matter went before that court. In his judgment, Sir Samuel Bank ole Jones, P. said: "We have given consideration to this matter and we have 35 come to the conclusion that as Dr. Marcus-Jones has in effect abandoned his appeal the judgment of the court below must stand. On the question of costs, it seems to us as the real issue was never decided, namely, whether the will said to have been executed by the father of all the parties in this suit 40 was valid, and there being more than a likelihood that this same issue may be brought up again before the same court 190 IN RE TURA Y, 19 72-7 3 ALR S.L. 1 77 H.C. for final determination, it would be in the interest of the parties if we were to set aside the order as to costs, and order instead that each party pay his own costs in the court below. There will be no order as to costs." Browne-Marke, J. made it quite clear in his judgment that he did 5 not determine the question of validity of the will although the question was raised in the pleadings. In such event, I think, the plea of res judicata fails. The defendant says that the plaintiffs have benefited under the will with regard to the piece of land at Race Course Road. There is 10 .no evidence that the plaintiffs derived any benefit apart from the fact that they naturally and reasonably prevented a squatter from erecting a building on their father's property. The defendant also says that she has been in possession of the house at 40 Goderich Street since 1952. I have no doubt that she was in possession of 15 the premises since she was collecting the rents and paying the rates. But her possession has not been a quiet possession because the plaintiffs got Mr. Solomon Pratt to enter a caveat calling upon the defendant to propound the will upon which she claimed possession of the property. 20 Mr. Minah referred me to s.9(2), as amended, of the Moham­ medan Marriage Act (cap. 96). This sub-section states that- "the following persons shall be entitled to take out letters of administration in the order named, viz.- (a) The eldest son of the intestate, if of full age according 25 to Mohammedan law; (b) The eldest brother of the intestate, if of full age according to Mohammedan law; (c) The Administrator and Registrar-General .... " In his argument, Mr. Minah submitted that in the event of the 30 will being declared invalid, Lamin Turay could not take out letters of administration since Muctar Turay, who was the eldest son, had died. His argument was that s.9(2) does not empower the next eldest son to step into the shoes of the eldest son. Much as I admire the forcefulness and ingeniousness of this 35 argument, I must with some reluctance disagree with Mr. Minah. I think that the object of the section or at least the legislature is to confer the right to take out letters of administration on any son who is the eldest and of full age at the time of application for letters of administration. 40 Considering the entire evidence in this case with particular 191 SECTION 28 THE AFRICAN LAW REPORTS reference to the cases cited, I will give judgment for the plaintiff, and I make the following order: (a) that the will dated March lOth, 1952 and produced in this case be declared invalid; (b) that letters of administration be granted to the first plaintiff to administer the 5 estate of the late Kabba Turay (deceased) late of 40 Goderich Street, Freetown, and (c) that each party pay his or her own costs. 10 15 20 25 30 35 Order accordingly. SILLAH v. S.C.O.A. LIMITED High Court (Tejan, J.): April 14th, 1972 (Civil Case No. 365/70) [ 1] Contract-damages-hire-purchase-breach of agreement by owner­ hirer's loss of right to possession and option to purchase-deposit and instalments paid constitute measure of damages but additional loss to hirer by resale of goods may justify larger award: The damages for the loss sustained by the hirer under a hire-purchase agreement in conse­ quence of a breach of the agreement which defeats his right to pos­ session of the goods and prevents him from exercising his option to purchase, are the amount of the deposit and instalments he has paid, but any additional loss caused to the hirer by the owner's resale of the goods may justify a larger award (page 202, line 36- page 203, line 4; page 203, lines 11-17). [2] Contract-damages-measure of damages-hire-purchase-hirer's loss of right to possession and option to purchase by owner's breach of agree­ ment-deposit and instalments paid constitute measure of damages but additional loss to hirer by resale of goods may justify larger award: See [1] above. [ 3] Contract-modification-modification by acquiescence-owner's accept· ance of several irregular instalments under hire-purchase agreement is acquiescence in variation and prevents enforcement of unperformed balance of original agreement: If an owner accepts an instalment under a hire-purchase agreement after the hirer has defaulted in an earlier payment he waives his right to exercise his option to terminate for breach of the agreement; if he accepts several irregular payments then he is deemed to acquiesce in a variation of the contract so that he can- not subsequently insist upon strict performance of the original agree­ ment (page 200, lines 16-22, lines 28-32). [ 4] Contract-waiver-nature and effect of waiver-acceptance of instalment payment under hire-purchase contract waives right to terminate for earlier default: See [ 3] above. 40 [ 5] Documents-interpretation-document to be interpreted as a whole- intention of parties clearly expressed on face of instrument prevails over ordinary meaning of words used: The words of a written contract 192