MISC APP 206/08                    2008               K No. 35

IN THE HIGH COURT OF SIERRA LEONE

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF SORIE KAMARA (DECEASED TESTATE)

AND

IN THE MATTER OF CLAUSE 4 OF THE LAST WILL AND TESTAMENT DATED 10th NOVEMBER,,1987

AND

IN THE MATTER OF THE LETTERS OF ADMINISTRATION WITH WILL ANNEXED DATED 28th FEBRUARY,2007

AND

IN THE MATTER OF CAP 45 OF THE LAWS OF SIERRA LEONE,1960

BETWEEN:          ARNOLD KAMARA                               - PLAINTIFF

(Sues as Administrator of the estate of Sorie Kamara (Deceased) Testate

AND

HANNAH SCOTT                                  -DEFENDANT

M A BELOKU SESAY Esq for the Plaintiff R. JOHNSON Esq for the Defendant DECISION

1. The Plaintiff brings this Action against the Defendant, by way of Originating Summons dated 9 April,2008. The questions posed, and the reliefs sought, are as follows: whether on a true construction of clause 4 of the Will of Sorie Kamara (deceased) dated 10th November,1987 the Defendant is entitled to dwelling-houses, numbered 1A, 1B and 1E Thunder Hill Road, Kissy Freetown absolutely. If the answer to this question is in the negative, that a Declaration be made by this Court that (i) the dwelling house No. 1A Thunder Hill Road Kissy is the property of DAVID KAMARA in fee simple absolute

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(ii) the dwelling-house No 1B Thunder Hill Road, Kissy is to be shared equally between Arnold N Kamara and the next of kin of Mary Kamara (deceased) Intestate.

(iii) the dwelling house No 1E Thunder Hill Road, Kissy, be shared equally between Bai Kamara and Samuel Kamara

2.  Another relief sought from this Court, is that the Defendant accounts for all rents collected from tenants in respect of dwelling-houses Nos. 1A Thunder Hill Road, Kissy and 1E Thunder Hill Road, Kissy from 1st

July,2004 to date. The Plaintiff also asks for the Costs of the action.

3.  The Originating Summons is supported by the affidavit of the Plaintiff himself, ARNOLD KAMARA deposed and sworn to on 9 April,2008. Exhibited to the affidavit are "A", a copy of the Will of Sorie Kamara deceased testate: "B" is a copy of the Letters of Administration dated 28 February,2007 granted to the Plaintiff

4.  The Plaintiff deposes in the affidavit that he is eldest brother of Sorie kamara, deceased testate, and one of the beneficiaries under clause 4 of the will of the testator, dated 10 November,1987. On 28 February,2007 he obtained Letters of Administration with the will annexed in respect of the Testator's estate, as the named Executors had failed to take out Probate, and their whereabouts were unknown to him. He says the Defendant has persisted in claiming that Nos 1A, 1B and 1C Thunder Hill Road, Kissy belong to her by virtue of a will made by MADAM Hannah Yainkain Kamara. She has evicted relatives of the Plaintiff's father from the said premises, has rented out the same, and is collecting rent from the present tenants as of 1 July,2004.

5.  He deposes further that he is the uncle of the Defendant, but that the Defendant has been trying to evict him from the said premises. He says that on 1st June,1999 (he may have meant January,1999) rebels burnt down house No IB, and the Defendant and himself were sheltered by his sister, Mary Kamara, Deceased, and his brother David Kamara. He says Nos 1A and 1E are in state of disrepair,, and that his brother in the USA, David Kamara proposes to renovate the property, but has been put off by the Respondent's behaviour. He has assured the Defendant that she and her sister EKU will be entitled to a half share of No. 1B, after the estate has been distributed, but that the Defendant is insisting that she is solely entitled to all the dwelling-houses under the terms of the will.

6. The Will, exhibit "A" was made by the Testator SORIE KAMARA on 10 November,1987. He appointed the Plaintiff, and one ANORLD AYODELE

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GEORGE, his Executors and Trustees. Clause 4 is the relevant clause in these proceedings. There, the Testator devises the property situate at and known as 1A, 1B and 1E Thunder Hill Road, Kissy to his Trustees upon trust to permit his wife to have use of these respective properties during her lifetime or widowhood, so long as she desires to occupy any of these houses, subject to certain provisos; and that after her demise or remarriage, or upon giving notice to the Trustees of her desire "to vacate such of the dwelling-houses UPON TRUST as follows: "1A....for my son DAVID KAMARA in fee simple. 1B.......for my children ARNOLD N KAMARA and MARY KAMARA as Tenants in Common. 1E......for my sons BAI KAMARA and SAMUEL KAMARA as tenants in common."

7.  I find the Plaintiff's case a bit confusing at this stage, because he claims in paragraph 3 of his affidavit that he took out Letters of Administration with the Will annexed because the Executors and trustees had failed to take out Probate. But in the Grant, he describes himself as the son of the Testator and a beneficiary named in his Will. If he was not the Executor named in the Will, who then was that ARNOLD KAMARA?

8.  The Defendant filed an affidavit in opposition to the Plaintiff's claim. It was deposed and sworn to by herself on 23 Aprl,2008. She deposes that she is one of the two children of MARY KAMARA, deceased, mentioned in the Will of SORIE KAMARA; that she has never claimed to be the owner of 1A and 1E Thunder Hill Road, Kissy; nor has she any interest in them; that she knows she has a half-share with her sister EBU COLE holding the other share, in the property situate at and known as 1B Thunder Hill Road, Kissy; that she has not evicted any relative of her grandfather; that she was born and grew up at 1B Thunder Hill Road; that she has always lived, and continues to live, on that property together with her

husband, PETER SCOTT, and the rest of her family; and that the property is still in existence.

9.  She deposes further, that SORIE KAMARA lived at 1B Thunder Hill Road until his death in 1997; her grandmother, YAINKAIN KAMARA also lived there until her death on 23 July,2007. She says that during the lifetime of her grandmother, who had a life interest in the properties at 1A, 1B and 1E respectively, she used to manage 1B and 1E respectively. She has not collected any rents in respect of 1A, 1B and 1E since the death of her grandmother; she denies evicting the Plaintiff from the property he now occupies. More importantly, she denies, as alleged by the Plaintiff in paragraph 7 of his affidavit, that the property at 1B was burnt down in

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January,1999. She claims it was the property at 1A which was burnt down by rebels in January,1999. But most importantly, she claims that the Plaintiff and her brother, DAVID KAMARA forcibly attempted to substitute the number 1A for 1B on the house where she was, and is still living. She exhibits a picture, "HS1" as evidence of the attempt. She also exhibits letters as "HS2-7" showing that the Plaintiff well knew that she was occupying 1B and not 1A. She also exhibits a receipt in respect of insurance premium paid, and City Rate Demand Notes in respect of the property at 1B. She concludes by saying that the Plaintiff himself resides on part of 1B.

10. "HS2" is a copy of letter dated 27th July,2005 addressed by ELVIS KARGBO Esq to JUNIOR PETER SCOTT giving him Notice to quit the property at 1B Thunder Hill Road before 1 September,2005. The Defendant say PETER SCOTT is her husband. Presumably, the addressee in this letter is related to her somehow. "HS3" is a copy of 1 4 day ejectment notice issued by MR KARGBO, against JUNIOR PETER SCOTT pursuant to the said Notice to Quit. "HS4" is a copy of a letter dated 7 September,2006 addressed by MR BELOKU 5ESAV, acting on behalf of REV ARNOLD KAMARA, to the Defendant, at 1B Thunder Hill Road. It seeks the Defendant's cooperation in ensuring that the properties at 1A, 1B, and 1E are refurbished. It seems strange to me, that MR BELOKU SESAY should have addressed a letter to the Defendant at 1B Thunder Hill Road, while at the same time, his client, the Plaintiff, deposes in paragraph 7 of his affidavit that"..on 1st June,1999 rebels burnt down premises No. 1B under the will belonging to me and my sister Mary Kamara ...and my brother David Kamara and on compassionate grounds accommodated the Defendant and myself in premises No1A ..." If premises at 1A had been burnt down in 1999, why address a letter to the Defendant at that address in 2006? The clear inference to be drawn is that 1B is still in existence, and it is the property occupied by the Defendant.

11. On 30 May,2008 the Plaintiff deposed to another affidavit in reply to that filed on behalf of the Defendant. For some inexplicable reason, and without leave of the Court, his Solicitor changed the description of the parties from Plaintiff to Plaintiff/Applicant; and from Defendant, to Defendant/Respondent respectively. It appears to me that Plaintiff Solicitor could not make up his mind whether, what he had filed was an Action, or an Application. Nevertheless, I permitted him to use it. The

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affidavit has 19 paragraphs. There are several exhibits attached to it, numbering "A" to F1&2". I do not propose, save for those numbered "A" and B1-6, to deal with all of them, because they would not assist me in answering the questions posed by the Plaintiff in his Summons. The earlier affidavit deposed to by the Plaintiff, and that deposed to by the Defendant, contain sufficient facts to ground any decision this Court may come to. Besides, the ponderous arguments put up by the Plaintiff as to who managed, or who had a right to manage, 1A, after the Testator's death, have little or no bearing, on who has a right to 1B.

12. "A" is a copy of an ejectment warrant. It is clearly in respect of 1B. If Defendant has a right to 1B, it follows that she has a right to evict tenants from 1B. The Plaintiff, being a part owner, has the same rights in respect of those persons who are his tenants.

13.  The receipts exhibited as "B1-6" show that the Defendant collected rents from MR SAIDU BAH between 2004 and 2005. The property in respect of which rent was so collected is not stated; nor has the Deponent enlightened this Court. Since the Defendant was authorised, according to her, (and this has not been seriously disputed by the Plaintiff) to collect rents on behalf of her now deceased grandmother, who was during her lifetime entitled to the "use and enjoyment" of Nos. 1A, 1B and 1E, this Court cannot Declare that she should account for such rents collected up to 23 July,2007. She deposes in her affidavit, and I accept, as there is no evidence to the contrary shown to me, that she has not collected rents in respect of Nos. 1A, 1B and 1E since the death of her grandmother. I may add that if the Plaintiff or some other person was the person entitled to collect rents during the lifetime of the Testator's widow, the Plaintiff's mother, it is strange that neither the Plaintiff, nor that person did anything about it during the widow's lifetime, but waited until after her demise to bring up the issue.

14.  I have scrutinised Exh "D2", the affidavit in support of a Default Summons in the Magistrate's Court, exhibited to the Plaintiff's additional affidavit. I accept that it states that the Defendant claims therein to be residing at No 1A; and that the claim for arrears of rent is brought in respect of No.1A. The Defendant has said that she was authorised by her grandmother to collect rent on her behalf; the grandmother died in July,2007. The Defendant therefore had a right to collect rent, and to sue for arrears of rent, up to that date. I have not been shown evidence that she did so after the date of her grandmother's death. I note also

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that that affidavit is said to have been prepared by Plaintiff-in-person, which is usually an indication that the clerks in the Magistrate's Court office, have been busy playing Lawyers.

15. As regards "E" the most I can say about it, is that it says nothing. I certainly do not accept the Plaintiff's contention in paragraph 11 of his 2nd affidavit, that this picture provides conclusive evidence that the undeveloped piece of land depicted therein, is 1B. There is nothing on, or in the picture, to indicate that this is so, as opposed to the picture exhibited by the Defendant as "HS1".

16. In addition to the affidavits filed, I heard oral arguments from both Counsel, MR BELOKU SESAY, and MR RANSFORD JOHNSON, respectively on 14 July,2008 and 2 .October,2008. Judgment was reserved on the latter date. Because of the number of Judgments and decisions I have had to render since the beginning of this Law Term, there has been a delay in delivering this Judgment.

17. The arguments of both Counsel, in the main, reiterated the positions taken by their respective clients, in the affidavits filed.

18. In the result, I intend to answer the questions posed by the Plaintiff in this wise:

(i) Is the Defendant entitled to the dwelling-houses at 1A, 1B and 1E Thunder Hill Road, Kissy, on a true construction of the Testator's Will dated 10 November,1987? The answer is that the Defendant is entitled to part of a half-share in the dwelling house situate and known as 1B Thunder Hill Road, Kissy, she being the daughter of MARY KAMARA; the other half-share in the property belongs to the Plaintiff, ARNOLD N KAMARA. That property was devised to the Plaintiff and the Defendant's mother, respectively, as Tenants-in-Common. On the mother's death, her one-half share passed on to her heirs and next-of-kin.

(ii) The only Declaration this Court can make, on the facts

presented, is that ARNOLD N KAMARA and the children of MARY KAMARA, deceased are respectively entitled to half-share each in the property at 1A Thunder Hill Road. This fact was already well-known to the Plaintiff before the commencement of this action, and he did not need the full panoply and paraphernalia of a Common Law Court Room, to tell him that this was so.

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(iii) This Court cannot make any Declaration in respect of the properties at 1A and 1E respectively, as any such Declaration, would affect the rights of persons who have not been made parties to this action. In Probate actions or matters, all parties who might be interested, in the estate of the deceased Testate or intestate, must be made parties.

(iv) As regards the Declaration sought, that the Defendant should account for rents collected from Tenants since 1 July,2004 this the Court cannot do for the reasons stated in paragraph 11 above. The Defendant has deposed that she was authorized by her grandmother to collect rents, and that she did so until her death last year.

(v) As the Plaintiff has not asked for any other or further relief or Order, and as I do not think there is any other Order or Relief I can make or Grant, I make no further Order.

(vi) The Plaintiff has asked that the Costs of the Action be provided for. I shall certainly make such provision. This action was pointless. The Plaintiff should therefore bear the full brunt of his folly. He shall pay Costs to the Defendant, assessed by this Court, in the sum of Le3,500,000.

N. C. BROWNE-MARKE Justice of Appeal 5 December,2008.

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