Keturah Williams & Cassandra Macfoy [1922] SLCA 13 (14 February 1922)

Gl KETUR.UT WT.LLIA~IS 'V. CASSANDRA MACFOY - Re.~ponde7i t. Supreme Cow·t in its swnnwr.IJ j'ttrisdiction-·No jurisdiction to try Probate matters-Rerocation of Probate on ground of fraud. The facts of this case arc sufficiently set out in the judgments. Appeal from a judgment of Purcell, C .• T., in the Supreme Court of the Colony of Sierra Leone. 1Vright for the Appellant cites :- The Supreme Court Ordinanre, 1904 (No. 14 of 1904/ section 74. 'fhe Administration of .Justiee Ot·dinance, 1876, sec- tion 11. Ordinance No. ij o£ 1866, section 6. Tialsbury, Laws of England, Vol. 1., p. 32. hla ::nn'll on Statutes, 3rd Edition, p. 185. The Alina, 5 Ex. D. , p. 227. I>itt Lewis County Court Practice, \ol. II., p. 855. Court of Pro'bate Art, 1858. Fisher v . Tulley, L.R., ~3 .\.C., p. 627. lialsbury, Vol. 14, p. 213. The Intestate Eslates Ordinance, 1887 (No. 8 o£ 1887), c;E'ctions 1 and 11.2 Williams 't'. Pott, hR., 12 Eq., p. 149. In re hory Hankin v . Turner, L.R. , 10 Ch. D., p. 37'2. Boston for the Respondent cites:- Griffith's :Married \Vomen's Property Act, 4th Ed., passim. PURCELl.~, C.J. This action was originally tried hefore me and eventually was taken to the Court of Appeal. The judgment of the Court of Appeal delivered on the 23rd January, 1920, was as follows:- " This is an appeal from the judgment of the Chief " Justice dismissing the plaintiff's adion for the revoca­ " tion of Letters of .\dministration granted to the defendant . 1 Now Cap. 205, sec. 76, Vol. II. p. 1434. • X ow Cap. 10-1, sees. 2 and 11, Vol. 1, p. 72i. 5 14/hFebrt.ary, 1922. ..LIAMS v. cFoY. IlL!., ('.J. 62 " After hearing the evidence for the plaintifi, the ]earned " Judge informed counsel for the defendant that, in his " opinion, he had no case to an wer. " After reading the evidenre, I am of opinion that there "was a case for the defendant to answer. I think that the " judgment of the Court below should be set aside and the " case sent back to the Court below for the DefeJHlant to " make her defence . Costs of this appeal to the Plaintiff." The case ha~ been re-opened, evidence has been called on behalf of the Defendant, Yoluminous argument has been addressed to me O(·cupying sewral <lays, and as a result T could only say again that I ~ee uo rea,on to alter the judgment I ga'e when this ca~e was prcviou~]y hefore me. J u the circumstances it is perhaps a~ well that I should amplify thi" statement a little. In m~· opinion it i-; to he regreited that <'ertnin i hings have been omitted to be done, hy thE> pariies to this litigation, which, had they been done. woultl haYe eonsi<lcrahly !'limplified the matter and made it easier to try. I refer to the fact that l)lainliff took no :,tep-; "hnte,er to get her mother's will admitted to Probate. IIad thi-< will heen proYed h~·lH'r . in either common form or solenm form, lwr position lo-dn~· would l1ave been a ~astly different one. At the -,arne time, had this course been followed, and had the Defendant desired to challenge the P laintiff's position, proper machiner~· would he put in motion, and tl1at, too, at a period of time about fifteen years nearer the elate of the happPnings of theRe events. Again, it is to be regrettetl that, when the Defendant took the necesc;ary stepc:; to obtain Letters o£ Administration, the Plaintiff did not enter a cavent; had she done this, the proper procedure could hrrve heen followed, and, in my opinion, there ic:; no e-s:cu~e for h€'r not doing ,;o, a<1 apart from the Defendant's visit to her, Mr. Boston's letter was quite sufficient notice of what was almo-,t certain to happen. The question of fact inTolved here is simply this. Did the Defendant swear a false statement that her father, tl1e late Joseph Lewis, was lawfully possessed or entitled to the property in question, No. 11, Guy Street? I l'ntertain no doubt, i11 fact I am absolutely clear on the point, that on the E>Yidence g-i,en before me it would be impossible to .find that, in ~<O swearing, Defendant had sworn falsely . All these thing~ happened a long time ago, and must be surrounded nece~saril~· with a certain amount of doubt, but on the balance oi probabilities, nnd such probabilities are all in fayour of Defendant's statement being true. Gur mate a sm or in that matt so h: nt la that rent~ the~ obtai c;mal fligh quit< folio prep: matt pr<>b: cac;e. deal Cour ihnt _\lth my , right was 1 V1Z., StPw rulec matt whic matt that Smu­ whol ><ectit Cour sect it Sum: To a you Olfl ~fro;. Grac-e Lewis nen•r lin•d in the houc;e at ~o. 11. Gu~· Strert, hut rl'sided at Ascension 'l'own, and, I believe, ulti ­ mately 11ied ther<'. .Toseph Lewis wac; a eoop<'r, a poor man in a small way, who, I think, ver:v probably supported his mother, or in a way eontrihuted to her ~upport, out of hi" meagre income; tlH\t he became the owner of this house h? operation of law is a matte1 "hich even lfr. Saw~·err c-annot dispute, and he has been so hard pre«~ed in th<' couJ·c;e of the argument that be actually at Jnst had to take rrfuge in putting forward tl1e proposition thaI Joseph T,ewi.; acted a« hie:; moth<'r's agent in rollerting the rent;:; from the tenants of 11, Gu~· Strcc•t, a11d thrreb~, caused the statute to run in l1er favour. by whiC'h his mother ultimately obtained prescriptive Iitle t.o this proprrty . I have not the smalle<:t objPdion to )!r. Rawyc•rr indulging in these fantastie flights of fanc·y, hut T am sure he will pardon me when I say quite frankly that my natural hump of raulion forbids me to follow him thitlH•r. J can only :<ay once again tl1at I am not prepared to find that the Defpndant's !>worn ;;;tatement in this ma!!er was fal«e, anrl in point of fad I think it is more than prohabl<' that it is true . '!'hat of itself would dispose of this case. But there j,; one other matter that I think it my duty to deal with in this judgment. When ihi~ ease fir"t rnme h<>fore the Court, )fr. Boston took a preliminary objcc·tion, and argued tl1al tlH• Summary Court. had no jul'i~didion in Prohate matters. A..lthou~h at the time I overruled thE' objt>clion, I stated that, in my opini.on, the point "'a<; not free from doubt. It is only right to say that the point wn~ not fully argued then, and I was infot·mecl, ao;; inclcPcl ·wn~ th(' fad, that in f wo pre.ious cases, 'iz., Wal ter Ha"(';;t r. )1atthe" During-, C. A. I1mi s 1' . J. W. Stewart and another, my l('arn('d precleC'e,sor. Sir Philip Smyly, ruled that tl1c Summary ('ourt hnd jurisdirtion i11 P robate maHer". With profound r<'<iped fot· an~· jud~ment of his from wl1ich I should alwnys reg-ret lo difl'er, having ronsidered this matter very fully from ewry o;;tandpoint. I cannot a~ree with thnt dec•ision, as I have eome rlearl~, io the opinion that the Summar~· Court l1a~ no jurisdic·tion in Probate matters. This whole question really turns on the f'Onstruction to be placed on sections 70, 1~. suh-sedions 1 to G, ancl sedion 14 .of the RuprE'me Court Ordinanc e, No. 14 of 190-P. Rertions 10 to 73. sub­ section;:; 1 to 6, tell us exactl~· wl1at the juri~;cliction of the Summary Court i:<, ancl this cannot he insisted on too strongly. To ascertain what the jurisdirti.on of the Summary Court is, you mu"t rely on th<>se two sC'ctionc; and various sub-sections 1 Now Cap. 205, sees. 72, 75 & 76, Vol. II, pp. 1433 and 1434, fi.\ WILLLUt1 t•. ~fAOFOY PUl\CILJ, C.J. 1 WILLLUIS 11. MAOFOY. PU)10~LL, C.J, 64 and no others. Section 74 really supplies the practice of the Court, and the language of ~ection 74 must be very carefully looked into, and it is clear that the Statutes in force in the County Courts in Euglaud on the first day o£ J anunry, 1880, shall be applied in all suits, matters and proceedings in which the Supreme Court shall exercise a Summary Juri~diction. Now, in what suits, matters and p1·oeeecliugs does the ::>upreme Court in this Colony exercise a Summary Jurisdic-tion? To ascertain that fact, you do not have recourse to thr County Court Statutes in force in England on tlu~ first day o1 .January, 1880, but you do have recourse to ~ections 70 and 71), wl1 ich give you that information in the plain<·~t and dearest terms . It has been argued by )Ir. Sawyerr that, looking ul the p1·oviso of sec lion 74, the Summary Court has jnrisdirtion in Probate matters by implication; carefully regarding the languagP of :;ection 7-J, and bearing in mind what I have just slated, I can dispose of that argument in four words, " The pnn·iso i~ redundant," an<l that is 1·eally the conclusion 'o£ the whole matter. It is not the first redundant pro>iso I ha>e seen in a Colonial Ordinance, nor have I any reason to suppose it will be 1he lnRt; but that it is absolutely redundant, I am well a~sUI' l'll. It only remains fol' me to ~ay that on either of these g-rounds, namely :- 1. That I am not satisfied that the defendant swore falsely regarding: her father's owncr,;hip of the property . 2. That the Summary Court has no jurisdiction iH Probate. I dismiss this action with costs. Addendum: It appears I was in error in stating in this juclgment that tiH· decisions in Havcst t'. During and Innis v. Stewart and anothel' were both g:ive11 by Sir P. C. Smyly-it seems tha.t one of the:><' decisions (I am unaware which it was, but it 1cas one of them) was given by the late Mr. Stallard, when Chief Justice. PURC ELL, C.J. (Sgd.) G. K. T. PURCELlJ. 22/4/21. This is an appeal from the judgment of the Chief Ju«tice, u:\ted April 6th, 1921. The history of thi:; litigation may ll<'re appropriately l'l' summarised :- 1'h e oriooinal Writ of Rum mons in this :wtion was is,;urd a.; "' luug ago as January, 1918, over four years ag:o. 'l'he action "i\:l' 65 heard before me durin~ February am11.Iarch, 1918, and on March 18th, 1918, without calling upon the Defendant, I dismissed the Plaintiff's action with costs. The Plaintiff appealed, such appeal CQming- before the Court of Appeal which sat at Freetown in ,January, 1920, when, by a majority (I dissenting), the following judgment was delivered :- " This is an appeal from the judgment of the Chief " J ustice, dismissing- tl1e l)lainiiff's action for t.he revoca­ " tion o£ Letters of Administration granted to Defendant . " After hearing the evidence for the Plaintiff, the learned "Judge informed Counsel for the Defendant that, in his " opinion, he had no case to ansi\er. After reading the " evidence, I am of opinion that there was a case for the "Defendant to answer. J think that tbe judgment o£ the " Court below should be set aside and the case senl bac k " to the Court below £or Defendant to make her defence . " Costs .of this Appeal to the Plainiiff ." The action was accordingly re-opened, and Defendant made her defence, and I subsequently delivered judgment on April 6th, 1921, again dismissing the Plaintiff's action with costs, nnd from that judgment the Plnintiff appeals to this Court. It seems to me, after all that has happened, unnecessary to deal at any length with the facts of this case, which are fully set out in the judgment of Apri l 6th, 1921-I will here only refer to them as briefly as may be. There appear to me to be two matters raised in this Appeal, V IZ.: - (1) Was the judgment delivered in the Court below aga inst the weight of the evidence? (2) Has the Supreme Court, sitting in its Summary Juris dict ion, jurisdiction in Probate matters? As regards point (1). As I myself was the trial Judge, I can hardl y be expected to say that the judgment was against the weight o£ the evidence. And, inasmuch as I have set out very clearly and very fully in my jullgment which was delivered on 6th Apri l, 1921, the reasons which induced me to come to the conclusion I did-I do not consider it necessary to again refer to them . It has been said that most men have learned that articu ­ late speech, as a means of communicating ideas, is at best an imperfect makeshift. It is a degree better tban the language o£ signs, and we believe it, on very slender ~rounds, to be severa l degrees superior to the thought transmission o£ insects or o£ bir ds. But it is quite inadequate to expre ss anything so elus ive and so impa lpable as truth . The formula has yet to be inve nted WILLIAM .S t!. 1\L.oFoY. l:'UitC'ltLL , C.J . \\'u .. r.wiil v. blAOFOY. I"URCY.LL, C.J, (j(.j by which one human being can convey to another the certain knowledge that he is not lying. 'l'he ear has yet to be created which can detect t11e dissonance of falsehood. With regard to point (:2). That qut•stion ha!': also 1H'en very fully discu~sed in my judgment of .April 6th, 1921. ~o argu­ ment that ha~ been addressed lo me in this Court has in auy ''ay shaken my opinion. It was submitt<'d that under the provic:ion!> of f;ection 74 of 0l'din anC'e :No. H of 190-J:l, an Imperial .. \ct o£ Pal'liament had conferred l>robate Jurisdiction on the County Courts of England . The Act in que~tion does so, hut only to certain speeified County Courts contained in the P.chedule, a11d ohdousl~- su<·h an Act cannot, and does not, confe1· Probate Jur isdiction on the Court sitting in its Summary J Ul'isdiction in Sierra L eone . In conclusion I have only to expres~ my regret with rega)'(l to two facts: the first is, tl1at under the law as it stands at present in this Colony, I shoulcl he compelled to preside in this Court when a case such as this for the second time comes before it-when I ha>e been the trial Judge on each occasion . R es ipsa loguit11r. Verb. sap . The second is the severe illnes::. of )r r. Sa" yen (Counsel for the Appellant), which has caused l1is absence; we all hope that he will soon be completely l't".:tored to h('alth. .At the same time the Appellant has not suffered, a:< ::.he has hau lhe adYantagc of :Mr. ·wri ght's ve1-y able ad>ocacy. I also regret that several of the witnes:-.e::-who g-aYe e>iden<:e before me in this <'ase ha,·e pa!'l.,ed to '' where b('yond these ,-oices there is peace," at lea;;;t "0 we an> often told. I might almost exclaim:- " All, all are gone, the old familiar faces . " I feel like one '' ho t l'ead:-; alone " Some banquet hall d('serted, '· \Yh o::-e guests are fled, wbo!>e garlands dead, "..ind all but he departed." In my judgment, this appeal must be dismissed with costs here and below. :McDONNELL, Acting J. I concur. SA WREY -COOKS ON, J. I concur. 1 Now Cap. 205, sec. 76, Vol. II, p. 1434.