William S. M. Perry v Mrs. Admira Smith (MISC APP 283 of 2014) [2015] SLCA 1134 (10 November 2015)

r ( fel Civ. App. IN THE MATTER OF A CASE MARKE. JUSTICE OF THE SUPREME COURT SON ENE BROWN arin Gone /PREME COURT SITTING AS A JUDGE OF THE HIGH COURT IN THE MATTER OF WILLIAM SENAMI MAGNUS PERRY Vs.

(1) MRS aoe NENA DEMISS ONIKE PERRY,

(3) MR. ARNOLD SNELL.

(4) MR PURSUANT TO SECTION 56

(4) OF THE COURTS ACT 1965. AND IN THE MATTER OF: MISC. APP, 283/14 2014 Pp NOS IN THE HIGH COURT OF SIERRA LEONE (LAND AND PROPERTY DIVISION) IN THE MATTER OF ‘THE ESTATE OF MRS. ONIKE REMISA PERRY ( DECEASED) INTESTATE AND IN THE MATTER OF AN APPLICATION FOR THE SALE OF PROPERTY SITUATE LYING AND BEING AT 74 CAMPBELL STREET, FREETOWN BETWEEN: WILLIAM SENAMI MAGNUS PERRY = APPLICANT. (Administrator of the Estate of Mrs.Onike Remisa Perry (Deceased). AND 1, MRS. ADMIRA SMITH

2. MRS. ONIKE PERRY

3. MR. ARNOLD SNELL

4. MR. KELVIN SNELL = RESPONDENTS

Coram

HON. MRS. JUSTICE N.F. MATTURI JONES - J& HON. MRS. JUSTICE A. SHOWERS “JA HON. MR. JUSTICE AS. FOFANAH JA COUNSEL: LIcANT PLICAI a _ J.B, JENKINS-JOHNSTON, ESQ. _FOR APPLICANT 15" ND 2"? RESPONDENTS

C.C.V. TAYLOR, ESQ. FOR THE a AND 4™ RESPONDENTS woomenrpenivereotiis IO pavora|pveuher ans N. F. MATTURI-JONES, JA. This 1 has been te Mig dae ke Sewer in ema fed ye Hen MJ $, 56(4) of the Courts Act 1965:

“In addition and without prejudice tw the right of appeal conferred by this or any

other enactment, a judge of the High Court may reserve for consideration by the Court of Appeal on a case to be stated by him, any question of law which may arise in any suit or matter, and may give his judgment or make his order subject othe opinion of the Court of ‘Appeal, and the Court of appeal shall have jurisdiction to hear and determine any such question.” Hon, Justice Browne-Marke JSC’s question arose from an Originating Notice of Motion dated 16" June 2014 which was before him. WILLIAM SENAMI MAGNUS SNELL (the Applicant) applied to the High Court for several Orders, orders including the sale of property at No. 74 Campbell Street Freetown

‘The application was supported by an affidavit swom by the Applicant, Mr. Perry deposed that he was the eldest surviving child of Mrs Onike Remisa Perry, (the pranion) who died in Freetown and Letters of Administration were granted, He claims thatthe property at 74 Campbell Street belonged to his mother and that it was necessary to sell the property. He exhibited his grant of Letters (Exhibit "A°) and his mother's title deed as (Exhibit °B"). A copy of Valuation Certificate is exhibited as °C CCV Taylor Esq entered appearance for the 3° and 4° — as beneficiaries of Elizabeth Perry, (the grantee), and daughter of the grantor. The 4” Respondent ~ Kelvin Snell is also the Administrator of the said Elizabeth Perry.

ae Taylor on behalf of he jr and 4 Respondent applied by motion dated 26" June

; von, ‘There were several orders prayed for in the interlocutory 2014 objecting to the Application. dy dealt with them fully in his judgment; Aoplication, The feared Jue Me vein raised by Me. Taylor was that the property (paragraphs 15, 16, 17 and 18). The 3" ° ject vot Elizabeth Per. the grate, and not >the Applicant applied to sell belonged 10.6 = z re had Geika Pe, esas anaes SSS

74 Campbell Street. Hes te cout determines the question of cement of

‘The application is further ,

‘Administrator of the estate of frandar te ne iminipacaconeremaa the 13 January 2010. The Grant of Letters ecteluaticlasioaesacoaniedes es

of Administration and papers are exhibited as KS 1, He deposed further that the 74 Campbell Street was owned by the estate of the late Elizabeth Perry as evidenced in the Deed dated 2“ May 1991 and duly registered as No. 107/91 at page 106 in Volume 78 of the Record Book of Voluntary Conveyances. (Exhibit “KS 2°; The operative clause reads as follows:

“Now this Indenture Witnesseth that in pursuance of the premises and in

consideration of the natural love and affection which the Donor hath and beareth for

and towards the Donee and for...... diverse other causes the Donor as Beneficial

Owner hereby Grants and Conveys Unto and to the Use of the Donee All that Piece or

Parcel of Land and hereditaments situate lying and being at No. 74 Campbell Street

Freetown..-..:-s-T0 HOLD the same UPON TRUST UNTO AND TO THE USE

OF THE DONOR for and during the term of her natural life and after her death

UNTO AND TO THE USE of the Donee in fe simple absolute forever.”

“The Applicant argues that express words used in the Deed mean that Mrs. Perry conveyed the property 10 herself for her lifetime, and after her demise to her daughter, Elizabeth Mr, Perry argues further that as Elizabeth predeceased hher mother the grant to her did not vest in interest or in possession and ‘could not therefore pass to her children (3° and 4 Respondents) at her death. The ‘Applicant argues that the property reverted to the estate of her mother Mrs Onike Perry. The 3% and 4% Respondents disagree with the applicant's contention.

Arguments

Both solicitors presented synopsis and argued tee casein the High Court and in this Court. Solicitor for the applicant, Mr. JB: Jenkins-Johnstone submits that:

4 ———er—e eee |

| i es OC a A a+ “where in an iner vivos transaction, propery is conveyed by mother at that point in time as she is sll alive, and lies wth her until she dies, oF docs it devolve at the time of the daugher's death. w» the danmghter’s neo wns? Further at present in whom dacs the beneficial imerest le, and whe are the persons entitled to sell the property?” The Applicant argues that according to words used in the Deed, Mrs. Perry conveyed the property to herself for her lifetime and after her demise, to her daughter Elizabeth. That since Elizabeth died before the grantor, the grant to her did not vest either in interest, or in possession and could not therefore pass to her children at her death. Further,that the property reverted to the estate of her mother Mrs. Perry, Solicitor for the 3” and 4" Respondent disagrees with the above interpretation of the deed of transfer. Mr. Taylor's argument is first, that Mrs. Perry conveyed the property to her daughter for her lifetime and after her demise, to her daughter Elizabeth in fee simple absolute forever. I note here that both Solicitors suggest each of the two ways in which inter vivos trusts are usually created. The issue is, which method was actually used by Mrs Perry in this case?. The Hon Mr, Justice N.C, Browne-Marke JSC, presiding as justice of The High Court writes in paragraph 8 of his judgement thus: “The Deed is exhibited as” KS2”. It is a voluntary conveyance executed by Mrs Onike Perry to her daughter". (Same View as Solicitor for the 3 and 4% Respondents). I also note that the question referred to this court for our consideration and determination concer the other method , ie where the grantor transfers the Property to herself on trust for her lifetime and after to the grantee. 1 do not think that it makes a great deal of difference to our answer in terms of ownership of 74 Campbell Street. | shall therefore continue with the arguments as presented on behalf ofthe parties, Mr Taylor submitted that prior to her death The Property had vested in interest and in possession in Elizabeth Perry and tha at her death the property devolved f0 the "and 4* Respondents and did not revert fo the estate of her mother Onike Perry. i int of the applicant, | say so because it se The question Posed oaainnpite is conveyed by the grantor to herself ays that “where in an inter Vi ee “Terie an thereat to er dager abe

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