Morlai Turay v Alusine Sumah & 4 Ors (CIV APP 25 of 2007) [2011] SLCA 37 (14 February 2011)

Civ. App. 25/2007 IN THE COURT OF APPEAL OF SIERRA LEONE IN THE MATTER OF THE ESTATE OF MAKALAY TURAY (DECD) TESTATE AND IN THE MATTER OF THE ESTATE OF ALWALION NABIE TURAY (DECD) INTESTATE AND IN THE MATTER OF ADMINISTRATION OF ESTATE ACT CAP. 45 LAWS OF SIERRA LEONE BETWEEN: ' MORLAI TURAY BY HIS ATTORNEY KANDEH YANSANEH - APPELLANT AND IBRAHIM KAMARA AS ATTORNEY FOR IBRAHIM TURAY AND ALUSINE SUMAH ALHASSAN SUMAH JENEBA FOFANAH NGADIE SUMAH AND THE ADMINISTRATOR & REGISTRAR-GENERAL -RESPONDENTS

Coram

HON. JUSTICE S. KOROMA, - 38.C. HON. MR JUSTICE P.O. HAMILTON - IS.C. HON. MR. JUSTTICE EE. ROBERTS - JA. SOLICITORS: V.V. THOMAS ESQ. FOR THE APPELLANT E.E.C. SHEARS-MOSES ESQ. FOR THE PLAINTIFFS/RESPONDENTS AE. MANLY-SPAIN ESQ. FOR ‘THE 15" RESPONDENT

JUDGMENT DELIVERED ON THE DAY OF __2011 ROBERTS, J.A.

My Lords, by Notice of Appeal dated 20" June 2007 the Appellant, that is Morlai Turay who was the 2" Defendant in the court below, appealed to this court against the decision of the Hon. Justice S, Bash-Tagi contained in the Judgment dated 8 June 2007 on the grounds and for the reliefS contained in the said Notice of ‘Appeal.

For ease of reference I shall here reproduce the grounds of appeal as contained in the Notice of Appeal dated 20" June 2007 which are as follows:

1. The learned Triat Judge erred in Law and came to the wrong conclusion when ‘she held that the 1" defendant is the most competent person to take out a grant de bonis non to the estate of Makalay Turay (Deceased Intestate) in that:

a) Ske totally ignored the fact that the 2 defendant had already taken out a grant of Letters of Administration (de bonis non) in the estate of Makalay Turay (Deceased Intestate) which was exhibited as “E” in she affidavit in support of the Originating Summons and sworn to on 4 October 2005. See p 25 of Records.

4) The said Leters of Administration (de bonis non) granted by the High Court of Sierra Leone on she 9* July 2003 had not been called in and/or set aside by the High Court of Sierra Leone.

©) There is no legal basis upon which the I" defendant as administrator of the estate of Alwalion Nabie Turay isthe person to take out a grant of Letters of “Administration (de bonis non) in the estate of Makalay Turay (Deceased Intestate) as averred inthe affidavit of the 1" defendant sworn 10 on the 23 October 2006 fled in opposition to the affidavit ofthe Plaintiffs, as the chain of representation applicable in the case of proving executors does not apply 10 administrators.

2, The Learned Trial Judge erred in law and came to the wrong conclusion when she held that itis for the 1" defendant to determine the beneficiaries of the Estate of Makalay Turay after the said I" Defendant has taken out a grant de bonis non in that the administrator of any estate is not the person who determines the beneficiaries entitled oan estate but the provistons of the appticabie law.

4. The Learned Trial Judge erred in Law and acted on wrong principles when “she held thatthe [Plaintiffs can be considered on equitable and moral grounds as persons beneficially interested in the Estate of Makalay Turay (Deceased Inzestate) in that: a) There is no basis in law for any such entitlement. 4) Such a conclusion is inconsistent with her earlier opinion that they cannot claim to be beneficiaries of the estate.

4. That the judgment is against the weight ofthe evidenc

Background

One Makalay Toray died on the 31% August 1981. The said Makalay Turay was survived by the Plaintiffs in this ation (which was commenced in the court below) who claimed they were her wards and that during her lifetime she had held and treated them as her children, she having none of her own- ‘According to the Plain tiffs the said Makalay Turay before her death and in appreciation of their services, made a will dated 3" January 1981 and then a Deed of Gift dated 18" July 1981 effectively leaving property situate at 12 Free Street Freetown fo them (the Plaintiffs). However onthe 37 of February 1981 Alwalion Nabie Turay who claimed to be the brother of Makaley Turay deceased took out Letters of Administration respect of her estate according to Mohammedan Law.He then commenced an action in the High Court praying for the setting aside ofthe said Deed of Gift and the Will as well as a declaration thet the said property situate at 12 Free Street Freetown formed part of the ‘estate of Makalay Turay. On the 31" December 1981 the High Court gave judgment in favour of Alwalion Nabie Turay setting aside the said Will and Deed of Gift, and

ordered that the property at 12 Free Street Freetown which formed part of the estate of Mackalay Turay be administered on an intestacy. The High court also ordered that the Letters of Administration. granted to the said Alwalion Nabie Turay then i the possession and custody of the Master and Registrar of the High Court by reason of its having been called in, be released to him. The plaintifis (the defendants in that action) appealed to the Court of Appeal and by judgment dated 16° July 1991 the

Court of Appeal confirmed the decision of the High Court. On the 6" March 2003 the

said Alwalion Nabie Turay died intestate, On the 7 July 2003 Ibrahim Sory Turay

claiming to be the lawful son and next of kin according to Mohammedan Law of the said Alwalion Nabieu Turay took out Letters of Administration in respect of the deceased's estate.

On the 9" of July 2003 the 2" defendant the appellant herein also obtained Letters of Administration in respect of Estate of Makalay Turay claiming to be her son under Susu Customary Law. The Plaintiffs then commenced this action in the High Court by Originating Summons dated October 2005 praying for the reliefs ‘answer to the several questions or issues contained therein.

‘On the 8* June 2007 the High Court gave judgment in the action which said judgment contained the following answers othe issues raised in said Originating Summons:

1. Onthe facts and circumstances in the case the Adminstrator and Registrar General isnot competent take over the management and control of Makalay Turay’s estate;

2 Inthe light ofthe conclusion above the Administrator and Registrar General ‘should have nothing to do with the said estate;

4 Asto who are the beneficiaries ofthe Estate of Makalay Turay. this isa matter tobe left tothe 1" defendant after he has taken the grant De bonis non. Inmy opinion the Plaintiffs not being the natural children of Makalay Turay cannot claim tobe beneficiaries ofthe Estate. I hold that they can be considered on equitable and moral grounds as persons beneficially interested in the Estate.

4. Theconclusions Ihave reached have disposed of the issues raised in 4 and 5.

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