IN THE SUPREME COURT OF SIERRA LEONE SUP. CT. CIV. APP. NO.1/76

HILDA PRATT - APPELLANT

AND ANITA JOHN & ORS. - RESPONDENTS

Berthan Macauley Q.C. with him Dr. W. S. Marcus Jones, M.J. Clinton and Berthan Macaulay Jr.        for the Appellant.

S. Hodson Harding                                                                                                                               for the Respondents.

JUDGMENT:

LIVESEY. LUKE J.S.C.

Hilda Pratt and Anita O. John are sisters by the same toother Mabel Ijorma Nicols. The former is a legitimate daughter and the latter an illegitimate daughter of their mother.

Mabel Ijorma. Nicols died testate in Freetown on 2nd September 1970. Probate of her Will dated 25th August,1970 was granted by the High Court on 1st January, 1971 to Anita 0. John and William B.G. Faux (the executers named in the Will). Mabel Ijerma Nicols (hereafter referred to as "the testatrix") was survived by inter alias Anita O. John and Hilda Pratt both of when are beneficiaries under the Will. The testatrix was predeceased by a natural daughter Helen Marks who died intestate in Freetown on 25th August, 1969. The only specific devise in the Will of the testatrix is in the following terms

"I give and device my house and land situate at King Street, the Maze, the property of my late natural daughter Helen Marks which devolved upon me on her death intestated, to my natural daughter Anita Oseh John for the term of her natural life and after her death to her children Filinda Olabisi John and Beverly Olujara John for the term of their natural lives as tenants in common and after their death to their children as tenants in common absolutely."

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According to this device the testatrix claimed that the property of Helen Marke at the Maze devolved upon her on the death of Helen Marke. Indeed, that property was among the assets in respect of which probate was granted to the executors of the testatrix. According to the evidence sometimes after the death of Helen Marke, Hilda Pratt moved the Administrator General administer the estate of Helen Marke . The date on which the Administrator General was moved was not given in evidence nor was it disclosed whether it was before or after the death of the testatrix. But in my opinion that does not affect the position. What is      significant, is that on 17th March , 1972 the Administrator General wrote to Dr. W.S. marcus Jones, Solicitor for Hilda Pratt in the following terms:-

"Dear Sir,

ESTATE OF HELEN MARKE ( DECEASED

I have to refer to previous correspondence on the above subject-matter and to inform you that Anita John has preduced a Deed of Conveyance dated 28th February, 1972 executed by the Government of Sierra Leone (Minister of Lands and Mines) convey the freehold of property No. S King Street, The Maze, Wilberforce Village to her. This Deed is registered as No. 134/72 at Page 77 Volume 251 of the Books of Conveyances in my Registry.

It would therefore now appear that this property cannot form part of the estate of the above named deceased.

Would you let me have full particulars of the car allegedly belonging to the deceased so that I can investigate its whereabouts.

Yours faithfully,

(Sgd) Williams

Presumably acting under Section 10 of the Administration of Estates Act, Cap. 45, the Administrator General published a Citation in the Cazette on 13th April, 1972 in respect of the estate of Helen Marke.

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So it would appear that the Administrator General proposed to proceed with the administration of the estate of Helen Marke but that as far as he was concerned the property at the Maze did not form part of that estate. The Administrator General's letter seems to have prompted Hilda Prutt (hereafter called "the Appellant") to take Court action. On 7th July, 1972 she took out an Original Summons asking for the determination of the following questions : -

" 1 . Whether on a true construction of Section 9 and 10 of the Administration of Estates Act Cap.45 of the Laws of Sierra Leone, 1960, the allowing house and premises standing on plot 8, at King Street, the Maze, Wilberforce, belonging to Helen B. Marke, deceased, Intestate, now devolve upon the Administrator-General, the third defendant herein.

2. If the answer to 1 above is in the affirmative, whether the same property without mere, can form part of the Estate of Mabel Ijorma Nicols,

3. Further, whether it was competent far the said Mabel Ijorma Nicols deceased, to devise the same property by her Will to Anita Oseh John, the first do defent for life, with remainder ever to her children as tenant-in-common.

4. How the costs of this application are to be provided for  AND for all necessary and proper consequential Directions and Orders as in the circumstances may The defendants to the Original Summons were Anita O. John and Williams B.G. Faux (as Executors and Trustees of the Will of Mabel Ijorma Nicols)and the Administrator General (representing the Estate of Helen Marke deceased and as Administrator thereat). It is important to state chat the Originating Summons was taken out in the estate of Mabel Ijorma Nicols.

The Summons was supported by an affidavit sworn by the appellant asposing certain material facts and exhibiting the Will of the testatrix, the Probate and the letter of the Administrator General dated 17th March, 1972.

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Anita John (hereafter called ''the respondent" ) aware to and filed an affidavit in opposition in which she deposed inter alia, that she was the fee simple owner of this property at the Maze by virtue of the conveyance referred to in the letter of the Administrator-General and exhibiting her Conveyance. The appellant swore to and filled an affidavit in reply, inter a.lia exhibiting a lease of the property at the Maze from the Governor of Sierra Leone to Helen Marke.

The action was tried by Lawrence-Hume Ag. J. Both the appellant and the respondent gave oral evidence, notices of intention to cross examine having been previously served by their respective Solicitors on the other side. In a considered judgment the Learned Judge answered the first question on the Summons in the affirmative, the second and third questi»ns in the negative, and made the following consequential prenouncements directions and orders :-

"1. I hereby pronounce that the purported Conveyance plot No.8, the Maze Wilberforce to Mrs. Anita Oseh John by the Goverment of Sierra Leone on the 28th day of February, 1972 is null and void and of no legal effect whatsoever.

2. I hereby order that the records kept by the Surveys and Lands Department be corrected and amended to show that the piece or parcel of land known as Plat 8, the Maze, Signall Hill in Wilberforce Rural Area in the Western Area of the Republic of Sierra Leone, leased by the Government of Sierra Leone to Miss Helen Bertha Marke, deceased, first day of January, 1961 is new held by implication as a lease from year to year as from the first day of January, 1964, until the fee simple in the said plot of land shall have been conveyed to the Administrator and Registrar General for the benefit of the estate of Miss Helen Berths Marke, deceased, as hereinafter ordered.

3. I further order that Mrs. Anita Oseh John do forfeit to the Government of Sierra Leone and for and on account of the estate of the late Miss Helen Bertha Marke all moneys duly paid by her (the former) to the said Government in respect of and in connection with the parported. purchase of this property.

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4. I also further order that all moneys already paid by Mrs. Anita Oseh John, the first " * defendent herein, to the Government of Sierra Leone in respect of and in connection with this property pursuant to having the same conveyed to her in fee simple do stand and continue to remain in the records of the Surveys and Lands Department, and be made to appear as if the same had been paid by the Administrator and Registrar General, the third defendant herein, for the purpose of having such fee the estate of Miss Helen Bertha Marke, deceased.

5. I order that the Administrator and Registrar General, the third defendant herein, do take immediate steps to obtain in the usual manner a grant of letter of Administration in respect of the estate of Miss Helen Bertha Marke, deceased, who died intestate on the 26th day of August, 1969, leaving property.

6. I hereby direct that in accordance with Clause 3(2) of the lease and for the purpose of administering in its fullest entirety the estate of the late Miss Helen Bertha Marke, the Administrator and Registrator-General, the third defendant herein, do apply to the Government of Sierra Leone(Minister of lands and Mines) to have the fee simple in the demised premises conveyed to him for the benefit of the estate of Miss Helen Bertha Marke, deceased, in consideration of the arrears of rent and the stipulated sum of Le.54 which have been duly paid by Mrs. Anita Oseh John and which now stand forfeited to the Government of Sierra Leone for and on account of the estate tf the late Miss Helen Bertha Marks as herein before ordered.

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7. I further order that Mrs. Anita Oseh John, the first defendant herein, not later than the 28th day of February, 1973, do prepare and submit to the Administrator and Registrar-General the third defendant herein a full and. comprehensive account of all moneys received, by her as rent and profits • prior to , if any, and from the 28th day of February, 1972, in respect of the said property less any lawful and reasonable outgoing, and also to pay over the balance therefrom in full to the said Administrator and Registrar-General for and on account of the estate of Helen Bertha Marke deceased."

And he made the following order as regards costs:—

"I finally order that the first defendant herein, namely, Mrs. Anita Oseh John do personally pay the plaintiff's costs, to be taxed. That the second named defendant herein William L.G. Faux, be not called upon to pay any costs in these proceedings. That the Third defendant's costs be borne by the estate of Miss Helen Bertha Marke deceased." The respondent appealed to the Court of Appeal against the decision of the Learned Judge on the following grounds:-

1. That the Learned trial judge erred in law in deciding issues not before him and made orders on matters not in issue before him.

2. That there is no evidence to support the Learned trial Judge's finding that the property in question belongs to the estate of Helen Marke.

3. That the Learned trial Judge's finding that the Government of Sierra Leone had no legal right to convey the freehold of the property to Anita John offends the rules of Natural Justice.

4. That in any event, the Learned trial Judge's order directing the Director of Surveys and Lands to correct their Records to the effect "That the land is now held on yearly lease as from 1964 until the freehold thereof is conveyed to the Administrator-General far the benefit of Helen Marke's estate" is impossible of performance legally.

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It should be noted that neither the Administrator General nor William G.B. Faux appealed to the Court of Appeal.

The Appeal was heard by the Court of Appeal in the 16th and 17th days of October, 1973. Judgement was delivered n the 28th day of January, 1976 allowing the appeal, setting aside the ordering made by the Learned trial Judge and dismissing the Originating Summons.

The main issues raised in this Appeal may be formulated onus:-

(i) Whether action by Originating Summons was the proper procedure to adopt to determine the questions raised by the Appellant in the Originating Summsns.

(ii) Whether the Learned trial Judge was right in making the Consequential Orders he made.

Before dealing with these issues it is pertinent to state that the Court of Appeal based their decision on the view that the precedure adopted by the appellant in the circumstances of the case was not proper and that the action should have been commerced by Writ of Summons and not by Originating Summons. Which regarding to the first issue, the Court of Appeal said inter alia "An Originating Summons is the appropriate procedure to be used where the main point at issue is one of construction of a document or statute and declarations of the right of the person interested thereto, or is one of pure law. It is inappropriate to commence precceedings by such a. procedure where there is likely to be a substantial dispute of facts — unless it is abligatory to do so under the provisions of some rule or an set it was among where there is any choice in the matter to bring procedings by Originating Summons if it is known that the facts are disputed.

The issue of ownership is disputed and is a complicated and which cannot be determined merely on the basis of affidavit filed by the parties.

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Order XLII(10) provides for the determination of any question arsing under a deed, Will or other written instrument and declaration of the rights of the persons interested, but there is an important provise viz:

"Provise that a Judge shall not be bound to determine any such question of construction if, in his opinion, it ought not to be determined on Originating Summons." It ought to have been abundantly apparent to the Learned Judge who heard the Summons that there are substantial dispute as to facts and that it was most desirable far the matter to have game on trial."

Mr. Berthan Macaulay Q.C. Learned Counsel for the appellant submitted that the Court of Appeal erred in holding that the method by which the High Court was approached i.e. Originating Summons, was wrong. He submitted further that the method of approaching the High Court are various and none of them is mandatory except in these cases where one or other tf the methods is specified. Learned Counsel referred to various rules of the High Court Rules starting with Order 1 Rule 1 where "action" in defined as meaning "decivil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, but does not include a criminal proceeding by the State."

He submitted that a civil proceeding commenced by Originating Summons is one "such other manner" prescribed by the Rules of The High Court, referring to Orders 41,42 and 45 of the High Court Rules.

It is important to note that the respondent did not complain in her Grounds of Appeal to the Court of Appeal about the procedure adopted in commencing the proceedings. Learned Counsel for the respondent conceded that before us. Indeed Learned Counsel for the respondent candidly stated that he bad no complaint against the answers given to the four questions raised in the Originating Sumrnons. He said that his complaint before the Court of Appeal and before this Court is against the consequential orders made by the Learned Judge. But the Court of Appeal nevertheless dismissed the Originating Summons holding in effect that the four questions raised could not be determined in a proceeding commenced by Originating Summons. So the question is whether the Court of Appeal was right in this view.

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Learned Counsel for the Appellant, in my opinion, rightly submitted that civil proceedings in the High Court may be commenced by writ of Summons or by other method prescribed by the rules of Court, including on Originating Summons. Hence an Originating summons is defined in Order . 1 Rule 1 of the High Court Rules as:

"every Summons other than a Summons in a pending cause or matter."

An Originating Summons initiates or originates proceedings whilst what is known as a "Judges Summons" is issued in proceedings which are already pending. In this connection the wards of Cotton L.J. in Re Faweitt (1885) 30 Ch. D.231 are relevant. He said at p. 233:-

"I do not understand that as saying that no proceedings but what are mentioned in that rule are to be called actions. But even if that were the case, an Originating Summons is a civil proceeding and a civil proceeding commenced otherwise than by writ in manner prescribed by the rules is an action. I read Order II Rule 1 as meaning that every action is to be commenced by writ of Summons except otherwise provided by the rules. Then we have rule 3 of Order LV, providing that certain civil proceeding shall be commenced by Originating Summons instead of by writ of summons; and we final in Rule 1 of Orders LXX1 ,an Originating Summons defined as a summons by which proceedings are commenced without writ. Taking that definition in connection with Section 100 [ of the Judicature Act , 1873 ] we must treat an Originating Summons as a civil proceedings commenced otherwise than by writ in manner prescribed by the one of the rules of court, and consequently as falling within the definition of an action."

The High Court Rules prescribe many matters which may be commenced by Originating Summons. It is not necessary to refer to all of them. A reference to a few should suffice.

Order XLII provides

"The business to be disposed of in Chambers by Judges, shall consist of the following matters, in addition to the matters which under any other rule or by statute (1) applications for payments or transfer to any person of any cash or securities standing to the credit of any case or matter has been a judgement or order declaring the rights or where the title depends only upon proof of the identity or the birth, or death of any person;

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(2)- - - - - - - - - - - -

(3) - - - - - - - - - - - - - - - -

(4) 

(5)

(6)

(7) applications connected with the management of property

(8)

(9) Such other matters as the Judge may think fit to dispose of in Chambers;

(10) the determination of any question of construction arising under a deed, will, or other written instrument and declarations of the rights of the persons interested:

Provided that a Judge shall as it be bound to determine any such question of constructed if, in his opinion, it ought not to be determined on Originating Summons."

In my opinion this Order provides for the issue of an Originating Summons or an Ordinary Summons depending whether there is a pending action or not. If there is a pending action then a Judges Summons can be issued, but if there is no pending action, then an Originating Summons is the proper method, to employ. 1 shall return to this Order later.

Order XIV. so far as relevant, provides as follows:-

" 1 . The executors or administrators of a deceased person or any of them, and the trustees under a deed or instrument or any of them, and any person claiming to be interested in the relief ought as creditor, devisee, legatee, next of kin or heir - at - law or' customary heir of a deceased person or as cestai que trust under the trust of any deed or instrument, or is claiming by assignment or otherwise under any such creditor or other person aforesaid, may take out, as of course, an Originating Summons retornable in Chambers far such relief of the mature or kind following, as may by the Summons be specified and as the circumstances of the case may require (that is to say) the determination, without an adminiatration of the estate or trust, of any of the following questions or matters:-

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interest of the person claiming to be creditee, devisee, legatee next - of – kin or heir- at - law or cestui que trust;

(e) directing the executors or administrators or trustees to do or abstein from doing any particular act in their character as such executors or administrators or

(g) the determination of any question arising in the administration of the estate or trust."

The Court of Appeal based their decision on Order XLII(10) emphasising that that rule provided for the determination of any question of construction arising under a deed, will or other written instrument and declarations of the rights of the persons interested."

With respect, that was not the relevant rule. A reading of the questions raised for determination in the Originating Summons shows quite clearly that no question of construction of the Will of the testatrix or of any deed or other instrument was raised. Put simply the questions raised are what having regard to the previsions of Section 9 & 10 of Cap. 45, whether the property at the Maze which was stated in the Will to belong to Helen Marke devolved upon the Adminstrator General on the death of Helen Marke, or whether it devolved upon the testatrix upon the death of Helen Marke (as claimed in the Will) and therefore formed part of the testatrix's estate and whether it was in the power of the testatrix to devise the said property. In my opinion none of these questions raised any question relating to the construction of the Will. In the final analysis the simple issue was whether the property devolved upon the Administrator General or upon the estate of testatrix on the death Helen Marke. It was important before the executors of the testatrix proceeded with the administration of of the estate and distribute property at the Maze formed part of the estate of the testatrix.

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If it was part of the estate, then the executers could distribute it in accordance with the Will. But if it was not, they could not deal with it. In my opinion these were questions arising in the administration of the estate of the testatrix and therefore in ray judgment questions filling within the scope of Order 45 Rule 4(g) (already quoted).

The competence of the appellant to take out an Originating Summons under Order 45 rule 1 has not been questioned. She is a legatee under the Will of the testatrix and as such she was entitled to take out "as of course" an Originating Summons for the determination of any question or matter falling within any of the sub-heads (a) to (g) of the Rule: See Re Davies (1888) 38 Ch. D.210.

Another reason given by the Court of Appeal for allowing the appeal was that it is wrong where there is any choice in the matter to bring proceedings by Originating; Summons if it is known that the facts are disputed. That may be so. Support for this view can be found in some reported cases. In Re Sutcliffe (1942) 3 All E.R. 296 Bennett J said at p.298

"[B]ut there is this further objection against proceedings by Originating Summons against persons who are said to have become legal personal representatives de sen tart, that they may give rise to a disputed question of fact, and an Originating Summons is not The procedure by which decision on disputed questions of fact ought to be obtained." In Re Helloway (1894) 2 Q.B. 163, Lord Esher M.R. referred to the history and stated the object of Originating Summons. He said at p. 166:

"It was found that the old mode of commencing a suit in the Court of Chancery by a bill gave many opportunities for delay and expense, and in order to avoid this delay and expense the system was devised of a summons originating proceedings in Chambers, which in the course of time came to be called an "Originating; Summons". The procedure was invented for the purpose of quickly determining; simple points."

So the questions arise was there any dispute as to the facts, were any complicated issues raised in the Summon?

From the facts recited earlier it is quite clear that there was no dispute as to the facts. There was no dispute that Helen Marke was she illegitimate daughter of the testatrix, that Helen Marke had a leasehold property from Government at the Maze on which she had built a house,

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that Helen Marke died in Freetown intestate without issue in August, 1969, that letters of Administration of the estate of Helen Marke has not been granted to anyone, that the testatrix died in Freetown in September, 1970, that the testatrix made a Will dated 25th August, 1970, that in her Will the testatrix stated that the property at the Maze belonged to Helen Marke, that in her Will the testatrix claimed that the property at the Maze devolved upon her on the death of Helen Marke intestate, that the respondent and William G.B.Faux were the executors named in the Will and that they had taken out probate of the estate of the testatrix. In view of those undisputed facts the simple but important question that the appellant bought an answer to was whether having regard to Sections 9 and 10 of Cap.45, the property at the Maze devolved upon the Administrator-C-tij'icral or upon the testatrix on the death of Helen Marke intestate. In my opinion there was nothing complicated about that question, and a reference to Section 9 of Cap.45 should demonstrate that point.

Section 9 provides as follows:-

"9(1) The estate of every person dying intestate after the date of the operation  of this Act shall devolve upon the official Administrator:

Provided that,upon the grant letters of administration under the provisions of the Act, the estate shall devolved upon the Administrator General:

Provided that, upon the grant of letters of administration under the previsions of this Act, the estate shall be diverted from the Administrator General and be vested in the person or persons to " with letters of administration have been granted as aforesaid.

All the assets of a deceased person shall be administered for the payment of all just debts of such person whether he died testate or intestate."

There could be no argument that according to the provisions of this Section the estate of Helen Marke devolved on the Administrator-General on the death of Helen Marke and not on any other person or authority including the testatrix. And according to the undisputed facts no other person including the testatrix has taken out a grant of Letters of Administration of the estate of Helen Marke which by virtue of the Summons provise to the Section would have divested the administrator General of the estate of Helen Marke. So Helen Marke*s estate still remains where it was on her death i.e. vested in the administrator General, and at no time has it been vested in the

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Indeed Counsel for the respondent conceded that in his address jn the High Court and he made the same Concession before us. In my judgement therefore the questions raised in the Originating Summons could properly be determined in proceedings commenced by Originating Summons. The Court of Appeal therefore erred in administrating the Originating Summons .

with regard to the Second issue formulated above on the subject of the nonsequential orders made by the Trial Judge, the Court of Appeal expressed the view that the Learned Judge made pronouncements on issues he was not called upon to determine by the Originating Summons and concerning parties not before him. I share that view so far as mast of the consequential orders are concerned. indeed Mr. Berthan Macaulay readily conceded that the Learned Judge erred in making the consequential orders numbered 2, 3 and 4.

In my opinion with the exception of the Order numbered 5, all the consequential orders made are objectionable on several grounds.

In the first place, it must be conceded that a judge who had tried an Originating Summons has power to give any directions relative to, or consequential on, the matter of such application: See order 41 rule 13. But in my opinion Orders 1, 2, 3, 4, 6 and 7 could not be said to be relative to or consequential on the matter of the application which related to the simple question of the Revelation of the estate of Helen Marke on her death. For instance, pronouncing the conveyance of the respondent null and valid for the Learned Judge purported to do in his Order I, could not be said to be consequential on his decision that Helen

Marke has a leasehold interest in the property at her death and hold that leasehold interest devolved upon the Administrator-General upon her death. I must not however be understood to be saying that the respondents conveyance was valid. All I am saying is that the learned Trial Judge should not have adjudicated en the vadility or otherwise of the conveyance in the proceedings before

Secondry the order effected persons who were not parties of the action i. e . -The Government of Sierra Leone, and the Surveys & Lands Department. Quite clearly these orders could not bind the Government or the Surveys and Lands Department. In my judgement therefore the Court of Appeal was right in setting aside orders 1, 2, 3, 4, 6 and 7.

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I now turn to the Order numbered 5 which, reads as follows :-

"I order that the Administrator and Registrar-Genersl, the Third defendant herein, do take immediate stops to obtain in the usual manner a grant of Letters of Administration in respect of the estate of miss Helen Bertha Marks, deceased, who died intestate on the 26th day of August, 1969 leaving

It is pertinent to recall that the Administrator General had been moved to administer the estate of Helen Marke and that he had in fact published a Citation in the Gazette an 13th April,1972. It should also be mentioned that on 17th March, 1972 the Administra-tai- General had written a letter to the effect that the properly could not form part of the estate of Helen Marke.

It should also be recalled that the Learned Judge found that Helen Marke had a leasehold interest in the property at the time of her death and held that her estate devolved on the Administrator General. It should be noted that according to the definition of estate in Section 2 of Cap.45, a leasehold interest is an estate with the meaning of Section 9 of the Act. In my opinion, in view of the answer given to the first three questions raised in the Originating Summons, the evidence and the findings of the Judge, it was necessary to order the Administrator General to proceed with the administration of the estate of Helen Marke. This, in ray view, is a consequence flowing from the answer to the first question raised in the Originating Summons. in my judgment therefore, Order 5 (quoted above) is a consequential order and should stand, and the Court of Appeal was wrong in setting it aside.

For these reasons, I would allow the appeal. I agree

I agree

I agree