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 without 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] 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

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

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

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

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:

(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.

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

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

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 knowledge 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