Rahman Davies v JArratu Davies Tumah v Marie Davies [1924] SLSC 2 (1 December 1924)

l~t Eec•miJer, 1924. IH RAHMAN DAVIES - Appellant. "'· J.ARRATU DAVIES, TU:\IAII D.A VIES, MARIE DAVIES (WIDOWS ) - R espondent s. Action for r&Vocation of Letter~ of Administration--Onus on grantee to show interest--Legitimacy . The facts of this case are sufficiently set out in the judgment . • \ ppPal hom a juclgmeni of Pur<'ell, C .. T., in the Supreme Court of the Colony of Sierra Leone. Barlatt for Appellant cites:- .. Williams on Executors, lOth Ed ., pp . 41l2, 456,

458. In?'(' ITeslop. 1 Roberts, Errl. Reps., p.

457. In the good-.; of Reid, 11 Prob .. p.

70. Mohammedan 'Marriage Orrlinance, 1D05 (No. 20 of 1905), Sec. 9.1 Best on E>idence, lOth Ed., pp. 245, 247,

302. Broom, Legal ~hxims, 7th l~d . , p .

724. F,,·ersley, I1aw of Domestic Relations, 2nd Ed., p.

516. W right for Respon1lents cites:- Tristram & Coote, Probate Practice. 1!'ith Ed., p.

371. Hahbury, Laws of England, Vol. 14, p.

215. Crosbie v. Norton, 16 L .T. (X.S.), p.

153. TJarlatt in reply cites:- Dobbs v. Cheeseman, 1 Phil.. p.

155. Hibben r. C'alenhC'rg. ihid., p. J6G. B1T1'LER LLOYD, ,J. In this case an action was brought by four widows of a deceased )fohammedan against the Defendant, who alleges that he is thC' eldc»t ~on of deceased, and who took out Letters of Administration to hi~ estate in October, 1923. The d!'cea!':ed diecl ill F ebruary, 1921, and thC' ufl'airs of the estate had been managed in the meantime by the "Jama," which appears to bP. a sort of committee of the ~fohammednn community . 1 Now Cap. 128, sec. 9, 'i·ol. I, p. 898. 145 The statement of claim denied that Defendant was the lawful son of deceased, and asked the Court to revoke the grant of Letters of .A dminislration and to grant them to one of the Plaintiffs or '>Uch other per:;;on as the Court should think proper. The defenC'e, i11ter alia, asserted the legitimacy of the Defendant, which thus became the main issue to be decided . I will not refer to the unfortunate misunderstanding at the close of the case in the Court below, as a result of which an order "as made with "hiC'll Plaintifl's' Counsel wa;:; not satisfied, though he would have accepted it as a compromise, and which Defendant'!> Counsel a,..;wrts that he neYcr, in fact, agreed to, further than to say that I think it a pity that the Appellant found himself unable to accept an order which would have ensured the proper administration of the estate without prej u dicinp; his right to establish his claim to an elder son's share according to Moham medan law. This Court is now asked to decide the question of the legiti macy oi .. \ppellnnt. and nR a corollary, his right to take out Letters of .Administration, since by section nine of Ordin ance X 0 . 20 or 1005. 1 tlH' elclest son of a deceased }lollammedan is the first person entitled to take out I1etters of Administration . T may sny here thai I l'eg-rrt thai. Appellant's Counsel should ha'e relied on what he calls the presumption of law in favour o£ marriage an<l legitimaC'y as supporting his case. It is, of course, obvious, that thrse presumptions only arise from a state of :facts from which the~· can be presumed, i.e ., that the man and woman are, or W"ere, at the critiral time, living together as man and wife. A great deal of tl1e argument in this case turned on the I")Uestion of, on which of the parties the onus of proof lies, but it seems to me clear, from the pas,ages quoted by Respondent's Counsel in Tristram and Coote, at p. 3G8 (11th edition) . and Ingp en, p. 157 (2nd edition), that when a suit for revocation has been brought, it is for the person who has obtained the grant to show his interest, and the reason for this is obvious, when it is remembered that letters are granted without further formality to any person prepared to swear that he is the person entitled to the grant. Appellant's Coumel ritecl certain passages in Williams on Executors and Administrators, pp. 412, 450 and 458 of the lOth edition, but I am unable to find in these passages any support ·--- -- ------ --- --- 1 X ow Cap. 12$, sec. 9, Vol. I, p. S!JS. DAVIES t}. DAVIES .L~D OTHERS . BCTLER LLOYD, J. D.6-VI1!8 v. D.6-VU:.S ANl> OTJl&R8. DCrLER LLOYD, J. 146 for the proposition that the onus of proving non-interest in the person to whom letters have been granted is on the party askiug for revocation. Dut even aparl from the question of onus of proof, I am of opinion that there is ample e>idence before the Court to enable it to decide in the sense asked for by the Respondents, namely, lhat the o1·iginal granlee is not the }('gilimate son of deceased, and that therefore the letters granted to him must be revoked . .Apart from lh<> unanimou-. evident:(' of the fou1· widows, H. would be hard to imagine more cogent proof than the certificate of birth (exhibit "A"), which records the birth of .Appellant in 1902 of a father unknown. It cannot be argued that the father did not know of this or disapprove of it. as he subsequently made a declaration, now attached to the certificate, that he acknow ledged the Appellant as his son, and this evidence is supported in a remarkable way by the letter from Appellant's mother to one of the Respondents, referring to the death of "your dear husband " and re:fening to " Abdu Rahman my son." Again~t this we have only the certificate o:f marriage, dated after the commencement of these proc•eedings, and sworn to by persons who, on their own showing, were mere boys at the time oi the alleged marriage, and the vaguest allegations that Appellant was always regarded as legitimate (one witne;;s said " he was a son to him," and another, "I take him to be his son"), and had specially favourable treatment in the matter of education, which is not remarkable, when it is remembered that the only other son we know of, the witness Hollist, was not a Mohammedan. On this evidence I have no difficulty in coming to the con clusion that Appellant was not the legitimate son of deceased, and that, he having failed to show his interest in the estate, the letters granted to him must be revoked. This appeal will therefore be dismissed with costs. McDONNELL, Acting C.J. I agree. 8A WREY-COOKSON, J. I agree.