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CC 292/2006       2006      E NO 10

IN THE HIGH COURT OF SIERRA LEONE BETWEEN:

SUNNY EDUWU (By his Attorney

ARTHUR JONES-DOVE)                                    PLAINTIFF

AND

BANKOLE COX                                                  DEFENDANT

R. Johnson Esq. for the Plaintiff

E. E. Shears-Moses Esq. for the Defendant

JUDGMENT DELIVERED ON 13th OF JULY 2007

S. Bash-Taqi, J. A: - The proceedings in this matter commenced by Originating Summons filed on 27th October 2006 by the Plaintiff in which he seeks the determination of the following questions:

1) Whether Sunny Eduwu, the widower, next-of-kin and sole beneficiary of the estate of Cynthia Eduwu (nee Cox-Balogun). the daughter and next-of-kin and sole beneficiary of the Estate of Mabel Cox is not entitled before the Respondent herein to take out Letters of Administration of the Estate of Mabel Cox deceased intestate;

2) Whether the Letters of Administration granted to the Defendant on the basis that there was no other person entitled before him to take out Letters of Administration of the Estate of Mabel Cox deceased should not be revoked and/or transferred to the Plaintiff;

3) Whether the Defendant ought to be removed as Administrator of the Estate of Mabel Cox deceased for failing to include in the Letters of Administration granted to him in respect of the said Estate, property situated at 35H Old Railway Line Tengbeh Town, Freetown which he knows belonged to the Mabel Cox deceased and is laying claim to it;

4) Whether upon the administration of the respective estates of Cynthia Eduwu (nee Cox-Balogun) deceased and Mabel Cox, the Plaintiff is not automatically entitled to all properties belonging to the estates of both deceased persons.

5) And if the answers to questions 1, 2. and 4 above are in the affirmative, the Plaintiff seeks the following Orders:

a) That Bankole Cox be removed as Administrator of the estate of Mabel Cox (decd) intestate on the grounds of (1) and (3) above.

b) That Sunny Eduwu, being the sole beneficiary of the estate of Cynthia Eduwu (nee Cox-Balogun), is also the sole beneficiary of the estate of Mabel Cox) under the provisions of Cap 45 of the Laws of Sierra Leone 1900.

c) That Sunny Eduwu be substituted as Administrator of the estate of Mabel Cox;

d) That Bankole Cox provides an account of all properties (real and personal) including cash from the Bank which he received or which came into his possession whilst he was Administrator of the Estate of Mabel Cox;

The Originating Summons is supported by the Affidavits of Arthur Jones Dove, Attorney for the Plaintiff, and the Supplemental Affidavit of Alexander Coker both sworn on 27th October 2006 and 15th December 2006 respectively, to which are attached several exhibits, viz Exhibits "AJD 1 - "AJD7" in the Affidavit of Arthur Jones Dove and "A, B, C, D & E" in the Affidavit of Alexander Coker.

The Defendant opposed the application by filing an Affidavit in Opposition and two Supplemental Affidavits sworn on 24th November 2006, 18th January 2007 and 16th February 2007 respectively, to which he attached exhibits: "A, B, C, D, E and "F1, F2, G1,G2, &H"

The Affidavit evidence revealed that Mabel Cox died intestate on 26th September 2005 in Freetown leaving surviving her Cynthia Eduwu nee Cox-Balogun (hereinafter referred to as Cynthia Eduwu) her daughter and sole beneficiary; that Cynthia Eduwu was for some time declared mentally incapable of managing her affairs, which led the Court on 10th October 2005, to appoint the plaintiff's Attorney, to manage her affairs until further Order, (Exh "D" in Defendant's affidavit). Arthur Jones Dove later resigned from the ppsition, (Exh. "E") due to alleged complaints by the Defendant to the Administrator & Reg. General, (Exhs. "C" & "F1"- Defendant's Affidavit). By November 2005, Cynthia Eduwu was declared fit again to take over the management of her affairs, (Exh. "F 2"), which included the administration of Mabel Cox's estate. At the time of her death, Mabel Cox, was seised of property at No. 4 Nurse Horton Drive Brookfields, and a half share of No. 35H Old Railway Line Tengbch Town, which claim is disputed by the Defendant in these proceedings; she also left Personalty in the form of two cars as well as monies in the Bank. Before she could obtain a grant to administer Mabel Cox's estate, Cynthia Eduwu herself died intestate on 18th December 2005. She is survived by her spouse, the Plaintiff, as the sole beneficiary of her estate. The Defendant, on 24th August 2006 then obtained Letters of Administration in respect of Mabel Cox's estate, Mabel Cox, being his sister. On 24th October 2006, the Plaintiff instructed his Attorney, to obtain Letters of Administration in respect of Cynthia Eduwu's estate.

The issues which emerged for determination from the Affidavit evidence and the arguments of Counsel are, (a) Cynthia Eduwu, the lawful daughter and next-of-kin and the sole beneficiary of Mabel Cox, having died intestate, who is the competent person to

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take out Letters of Administration of the Estate of Mabel Cox, and (b) whether the property at 35H Old Railway Line Tengbeh Town forms part of the Estate of Mabel Cox.

In his argument. Mr. R. Johnson for the Plaintiff submitted that Mabel Cox having died without a Spouse, Cynthia Eduwu, her daughter was her closest relative and next-of-kin and sole beneficiary. Therefore, on the death of Mabel Cox, Cynthia Eduwu, being the sole beneficiary was the proper person to have taken a grant to administer the Estate of Mabel Cox. Therefore on the death of Cynthia Eduwu, her husband, the Plaintiff, as the Administrator of Cynthia Eduwu's estate, is the first person entitled in priority against all others, including the Defendant, to obtain Letters of Administration of Mabel Cox's Estate He disagreed that the Defendant, as the brother of Mabel Cox, has priority over the daughter of Mabel Cox or the Plaintiff, as the spouse of the daughter. Counsel relies on Rule 21 of the English Non-Contentious Probate Rules 1954 with reference to Sec. 74 of the Court's Act No 31 of 1965 and Order 52 Rule 3 of the High Court Rules as amended by Act No 3 of 2006, as there are no provisions in our High Court Rules regarding the order of priority of persons beneficially entitled on an intestacy. Rule 21 of the Non-Contentious Probate Rules 1954, gives the order of priority of persons beneficially interested in the estate of any one who dies wholly intestate, and who are entitled to a grant of administration of the deceased's intestate estate. Counsel cited IN RE QREILLY (deed) vs Morcomarck 1950-56 ALR S/L series at page 58, where Section 160 of the Supreme Court of Judicature Consolidation Act 1925 was applied in a similar manner. He argued that on the strength of his argument, the Letters of Administration obtained by the Defendant in respect of the Estate of Mabel Cox ought to be revoked or alternatively, transferred to the Plaintiff. Counsel submitted further that the Defendant having obtained Letters of Administrator of Mabel Cox's Estate, he is a Trustee of the Estate by virtue of Sec 15 of CAP 45; and when he failed to include in his grant, the property at 35H Old Railway Line, Tengbeh Town belonging to the deceased Mabel Cox and claimed it for himself, he allowed his personal interest to conflict with his duties as Trustee of the estate. For that reason, he stressed he ought be removed as Administrator. Counsel cited Halsbury's Laws of England 3rd Ed. Vol. 38 paragraph 1656 at page 957 under the Rubric "Avoidance of Conflict between Trustees Interest" and to Kitting on the Law of Trust 7th Ed at page 329.." Mr. Johnson argued further that in Exh "AJD6", Alice Cox-Leigh (hereinafter referred to as "Alice Cox"), effectively conveyed 35H Old Railway Line Tengbeh Town to Mabel Cox and Anna Alice Cox, and as such the Defendant has no legitimate claim to the property. He argued further, that Alice Cox bought the property at Old Railway Line EU-ookfields, from Braham Macarthy on 15th April 1967, (Exhs. "C", & "D" in the Affidavit of Alexander Coker), and it was the same property that she conveyed by Deed of Gift to Anna Alice Cox and Mabel Cox on 3rd October 1972, (Exh. "AJD6"). He relied for this submission on the evidence of Alexander Coker, his Surveyor, and the Composite Plan of the property prepared by him.

The Defendant's case on the other hand, submitted that the property at 35H Old Railway Line Tengbeh Town forms part of his mother, Alice Cox's Estate; that when Alice Cox died intestate, the property became jointly theirs as beneficiaries of Alice Cox on intestacy (see Exh; "B ). Therefore when his two sisters died intestate, the Defendant said he became wholly entitled to that property and others to which his mother was entitled before she died. Mr. E. E. C. Shears-Moses for the Defendant further argued, that the Plaintiff's Power of Attorney and Letters of Administration contain irregularities which deprive him of locus standi in these proceedings. He summarised the irregularities as being (a) the absence of Sunny Eduwu's full address on the Power of Attorney; (b) the death certificate attached to the grant describing the deceased as Mrs. Cynthia Cox-B/logun, not as Cynthia Eduwu; (c) the grant "Exh. "AJD 2" states that the deceased died on 23rd August 2004 in the USA (d) whereas the information on the Death Certificate states that she died on 18th December 2005 in Freetown; (e) the deceased is said to be late of 39J Wilkinson Road Freetown on the grant, (f) whereas the death certificate gave the deceased usual address as being New York USA (g) the Notice of Intention to apply for letters of administration dated 3rd October 2006, states that the deceased was late of N,o 4 Nurse Horton Drive Congo Cross and that she died in Freetown on 18th December 2005. Counsel submitted that the above conflicting information render the documents highly suspicious, and urged the Court to reject the Power of Attorney and the Letter of Administration. He cited the decision of Ishmail Kamara v Michael Aki-Jones- Civ App. 66/95. With regards to the Deed of Gift Counsel submitted that the alleged Deed relied on is in respect of property at No11 Old Railway Line Brookfields, and not 35H Qld Railway Line Tengbeh Town. He argued that the property at 35H Old Railway Line Tengbeh Town Freetown has always been that of Alice E. Cox and that she did not at any time convey it to any one, as she exercise control over the property until she died. Finally, Counsel submitted that Sunny Eduwu being a Nigerian Citizen is not entitled in law to hold property in Sierra Leone by virtue of the provisions of S 3 of the None-Oitizens (Interest in Land) Act 1966. For the above reasons Counsel urged the Court to dismiss the plaintiff's application.

Before coming substantive issues in these proceedings, I must first decide whether the plaintiff's Power of Attorney and the Letters of Administration deprived him and his Attorney of locus standi in these proceedings. I have perused the alleged irregularities in Exhs. "AJD 1" & "AJD 2", highlighted by Counsel for the Defendant, and have come to the conclusion that the omission of the plaintiff's full address on the Power of Attorney does not invalidate the document. It is not disputed that the Plaintiff is residing in the USA. With regards to his signature on the Power of Attorney, Counsel for the Defendant has observed that it is suspicious, however in the absence of any evidence or document showing what the plaintiff's signature should look like, I cannot conclusively say that the signature on Exhibit "AJD2" is not that of the Plaintiff. The Power of Attorney was signed before a Notary Public; it would be reasonable to assume in the circumstances that it was a regular document having been signed before the Notary as required by law. I am satisfied that Sunny Eduwu's address on the Power of Attorney that he is residing in the United States of America, is sufficient for the purposes of the grant. As to the alleged irregularities regarding the name, and the conflict in the date of death and address of Cynthia Eduwu on Exhibit "AJD2", although on the face of the grant it is stated that Cynthia Eduwu was late of 39J Wilkinson Road Freetown and that she died in the United States of America on 23rd August 2004, yet the declaration at the bottom of the same document refers to Cynthia Eduwu as having "died on the 18th day of December 2005 in Freetown Sierra Leone"; further the Notice of Intention to apply for Letters in Exh

" AJD2" also contains the correct information as to the date and place of death of Cynthia Eduwu. I am satisfied that the conflicting information on the document could be amended so as to provide consistency of the information on the document. I am also satisfied that the errors here were either typographical or accidental. I note especially on looking at the various documents that Cynthia Eduwu was sometimes referred to as "Mrs. Cynthia Cox-Balogun". I refer especially to Exhs. "F1" & "F2" letters attached to the Defendant's Affidavit, where the Defendant's then Solicitor A. E. Manly-Spain Esq. and later the Administrator & Reg. General respectively referred to the deceased as "Mrs. Cynthia Cox-Balogun". Furthermore, that Cynthia Eduwu was normally resident in New York USA is not disputed and the reference in her death certificate to her normal place of residence as being "New York USA", does not render the grant void. The affidavit evidence disclosed that Cynthia Eduwu arrived in Freetown from the USA following the death of her mother Mabel Cox on 26th September 2005. Three months later Cynthia Eduwu herself died in Freetown on 18th December 2005.I am satisfied that the Letters of Administration granted to the Plaintiff through his Attorney was a valid grant in respect of the estate of Cynthia Eduwu. The errors and inconsistencies on the documents are minor and do not relate to or affect the competency of the Plaintiff to take out the grant or his Attorney to bring these proceedings; they could be amended. I rely for this conclusion on "Tristam & Cootes Probate Practice 23 Ed. Chapter 16 at page 441 which states: "Amendments of a grant may be allowed where the error was in the Christian name, address, status, date of death, or place of death of the deceased."... "Minor errors or omissions in the address given in the grant may be corrected by amendment".

In this respect the case of Ismaila Kamara is distinguishable from the instant case. I will order that the Letters of Administration be amended accordingly.

I now have to decide, (1) whether the Plaintiff, the lawful widower and sole beneficiary of the estate of Cynthia Eduwu is entitled in law to administer the estates of both Cynthia Eduwu and Mabel Cox in priority to the Defendant. To answer this question, I call in aid the Rules of distribution under the English Non-Contentious Probate Rules 1954 cited by Counsel Mr. R. Johnson, in the absence of specific provisions in our High Court Rules, and to the Second Schedule to CAP 45, on the order of distribution on intestacy. The Second Schedule CAP 45 reads:

"If woman dies intestate leaving a husband the whole of her estate shall go to him."

Adopting the above rule, when Cynthia Eduwu died intestate, leaving her spouse, Sunny Eduwu, the whole of Cynthia Eduwu's estate goes to Sunny Eduwu, her spouse as the only person entitled to her estate and to a grant of administration of her intestate estate. Sec 21 of the Non-Contentious Probate Rules provides:

"(1) Where the deceased died on or after the lst January 1926, wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following order of priority, namely :-

(i) The surviving spouse;

(ii) The children of the deceased.......................

(iii) ...................................

Again applying the above Rule, when Mabel Cox died intestate, without a spouse, the only person having a beneficial interest in her estate and who was entitled to a grant of administration of her estate was her daughter Cynthia Eduwu. Therefore on the deaths of Mabel Cox and Cynthia Eduwu, the Administrator of Cynthia Eduwu's estate is entitled in priority to administer the intestate estates of both Mabel Cox and Cynthia Eduwu. This must be so because Cynthia Eduwu, before she died in December 2005, was entitled to the whole of Mabel Cox's real estate on the latter's death on 26th September 2005. It makes no difference in the order of priority that Cynthia Eduwu died without obtaining a grant of administration of her mother's estate Her interest in Mabel Cox's Estate did not cease nor was it extinguished on her death so that on her death, the real estate to which she was entitled during her life devolves on her surviving Spouse. I therefore hold that Sunny Eduwu the administrator of Cynthia Eduwu's intestate estate is entitled to the whole of the estates of Mabel Cox deceased and Cynthia Eduwu including all the properties belonging to the said estates. My conclusion is further strengthened by Exh. "F 2" letter from the Admin. & Registrar General which I have reproduced below:

"Mr. A. E. Manly Spain                                                     21st November 2005

37 Percival Street

Freetown

Cc.

Mrs. Cynthia Cox Balogun

4 Nurse Morton Drive

Brookfields

Freetown

Dear Sit

ESTATE OF MABEL IYATUNDE COX (DECEASED)

I refer to your letters dated 10th October 2005 and 19th October 2005 respectively on the above estate.

As you are aware the above deceased died intestate and her estate vests in me until such time that a grant of letters of administration is obtained.

Events have over taken the points raised in your letter of 19th and I will only deal with your client's appeal she in the letter of the 19th October 2005.

The mental condition of Mrs. Cynthia Cox Balogun has been re-evaluated by Dr. Nahim and she appears to have regained her sanity.

This means that Mrs. Cox-Balogun can now take control of her affairs, which include the administration of her late mother's estate. Court Order dated 21st October 2005 vacated Court Order of 10th October 2005 which appointed Mr. Arthur Jones Dove to manage her affairs during her mental incapacity, (emphasis added)

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Monies belonging to Ms. Cox Balogun which were withheld for safekeeping have been returned to her. It is my view that your client at this point in time need not concerned himself with the affairs of his sister's estate. The daughter and only beneficiary Ms Cox Balogun after appropriate treatment is now in charge of the estate which she assured me that she intends administering as soon as possible, (emphasis added).

Yours faithfully, S. KOROMA

Administrator & Reg. General".

By the contents of the above letter, the Defendant knew that on the death of Mabel Cox, Cynthia Eduwu, her surviving daughter was the closest and nearest relative to obtain a grant of administration of Mabel Cox's estate; this knowledge should have prevented him from interfering with Mabel Cox's Estate. From the above findings, the answer to the Plaintiff s first question is that Sunny Eduwu the lawful widower and next-of-kin and sole beneficiary of the estate of Cynthia Eduwu is entitled before the Defendant to apply for and take out Letters of Administration of the Estate of Mabel Cox, deceased. Hollowing the conclusion to question (1) the answer to the second question is that the Letters of Administration granted to the Defendant should be transferred to the Plaintiff, in priority to the defendant.

The answer to the third question brings me to the next issue, which is whether the. property at 35H Old Railway Line Tengbeh Town was the property conveyed by Alice Cox to Mabel Cox and Anna Alice Cox in Exh. "AJD 6". I must therefore first of all determine whether 35H Old Railway Line Tengbeh Town is the same property described as 11 Old Railway Line Brookfields. The answer to that question will also assist me in determining whether the Defendant should be removed as Administrator of the Estate of Mabel Cox on the ground that he had laid claim to that property.

Counsel for the Defendant submitted that the purported Deed of Gift conveyed property described as being No 11 Old Railway Line Tengbeh Brookfields. This issue was first raised in a letter dated 3rd March 1992 (Exh "B" in the Defendant's Affidavit) from J. B. Jenkins-Johnston Esq. Solicitor for the Defendant in which the Defendant claimed to be entitled to 35H Old Railway Line Tengbeh Town together with Mabel Cox and Anna Alice Cox, and denied that Mabel Cox was entitled alone to the property. Counsel referred to the Surestman Consultancy Identification Report attached to that letter and which is again relied on in these proceedings. In his argument, citing the Surestman Identification Report, Counsel submitted that this Report indicates that the property at 11 Old Railway Line Brookfields is well away from the location of 35H Old Railway Line Tengbeh Town; that Old Railway Line could be any area along the 3 or more mile road from St. John Roundabout to Wilberforce; further that 35H Old Railway Line is off Buckley Lane Tengbeh Town. He argued further that the Plan L. S. 1415/68 does not bear the same description as the Schedule regarding its location, in that the acreage of the property shown on Survey Plan L. S. 262/67 ("Exh. "C") is not the same as that shown on L.S. 415/68 or that on L. S. 1415168; the acreage of the land on Survey Plan, L.S.267/67, Exh "C" being 0.1310 Acres, and that shown on L. S. 415/68 (Exh, "D"), and LS.

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1415/68, as 0.113 Acres. He pointed out that the area of the property bought by Alice Cox shown in broken Red lines on the Composite Plan, and it does not compare with the area of the same land shown in "AJD6" (Deed of Gift, which is shown with broad unbroken Red Line. For these reasons Counsel submitted that the properties are not the same.

Mr. Johnson, on the other hand submitted that subsequent to Exh. "C" the original conveyance, Mr Joseph Braham Macarthy, Alice Cox's Vendor, executed a Supplemental Deed on 6th June 1968, to correct certain mistakes pertaining to the dimensions of the property in Exh."C". He submitted that the recitals in Exh. "D" clearly indicate that the original land conveyed to Alice Cox in the Principal Deed Exh "C" was altered to reflect the amendments made in Exh. "C", to the present dimension in the Supplemental Conveyance Exh "D" It was this latter measurement which was later conveyed the Deed of Gift Exh "E", hence the difference in acreage and shape between the land in Exh."C", and that in Exh. " D, and Exh. "E". Regarding the Defendant's next contention that Alice Cox continued to exercise control over the property at 35H Old Railway Line even after the alleged Deed of Gift, therefore she could not have conveyed it by Deed of Gift to Mabel Cox and Anna Alice Cox, the submission is based on two letters exhibited in the defendant's affidavit, written by Alice Cox, to one Harold Morgan, dated 12th June 1990, Exh "G1", instructing him to rent one room in the said property to one Mr. Clemence Conteh and to collect rents from one Mr. James Fowler, another tenant; and a second letter dated 14th January 1992, "Exh "G2", from H. Golly-Morgan to one Ayo Taylor terminating her tenancy of the said property. The argument is that by these letters, Alice Cox never relinquished control of the property and it has always remained part of her intestate estate, therefore she could not have conveyed the property by Deed of Gift to her two daughters as alleged, or even if she did execute the Deed of Gift, that Deed was in respect of a different property other than 35H Old Railway Line Tengbeh Town. It is my view that the fact that Alice Cox continued to show interest in the property even after the alleged Deed of Gift to Anna Alice Cox and Mabel Cox, is not enough to deprive them ownership of the property. It may be that their mother did not inform them of the Gift or that Alice Cox, was making sure that the property would secured for her daughters. My reason for the above conclusion is that the Affidavit evidence shows that all three ladies, were living in the USA at some point in time; so were their off-springs, Cynthia Cox and Glynis Cox-Zubairu. In fact, it is deposed by the Adminstratrix of Anna Alice Cox in Exh "A" that Anna Alice Cox died in the USA. From this point of view, it would not be strange or unusual for the mother, the Donor of the Gift to continue to seek the interests of her daughters in the property. In Exh "G1", Alice Cox informed Harold Morgan that "Anna will then collect all monies from you from time to time. She is the only person I have asked you to give money to". I find the letters not helpful to the Defendant's contention that Alice Cox did not convey the property at 35 Old Railway Line to the two recipients in the Deed of Gift.

My conclusion is further buttressed by inconsistencies in the affidavit evidence and the papers submitted by the Defendant. In his original application for Letters of Administration, granted on 17th March 1994, (Exh. "AJD7") the Defendant declared Alice Cox's intestate estate as: "Realty = Nil; Personalty = Nil".

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However, on 24th August 2006 after the death of Cynthia Eduwu, the Defendant applied for a Supplemental granted claiming that the property at 35H Old Railway Line Tengbeh Town belonged to Alice Cox, his mother. At paragraphs 2 & 3 of his Affidavit stating the reasons for the Supplemental Grant, the Defendant deposed:

"2. That at the time of the said Grant (i.e. the first grant dated 17th March 1994), I declared the Estate to be;

Realty                                   -          Nil

Personalty                             -          Nil

"3. That subsequent to the said grant I discovered the House and Land and Hereditaments situate lying and being at 35H Old Railway Line, Tengbeh Town, Freetown in the Western Area of the Republic of Sierra Leone, she having acquired same by a Deed of Conveyance dated 15th April 1968 registered at Page 57 in Volume 226 in the Books of Conveyances. A copy thereof is exhibited hereto and marked "B".

Why did it take him 12 years to find out that the property at 35H Old Railway Line was his mother? Especially, as he had given as his mother's last address in Exh. "AJD7, the address of property at 35H Old Railway Line Tengbeh Town? Furthermore, if I accept Defendant's submission that 35H Old Railway Line Tengbeh is part of the estate of Alice Cox, it would mean that the property would belong to all three children on her death, in which case, the Defendant and his two sisters, as beneficiaries of Alice Cox's estate, would each have been entitled to one third share the intestate's estate, including the property at 35H Old Railway Line Tengbeh Town. On the other hand in the Declaration of Estate contained in the Letters of Administration granted to Madina Jalloh, Attorney for Glynis Cox-Zubairu, daughter of Anna Alice Cox, (Exh "A" in the Defendant's Affidavit), the intestate estate of Anna Alice Cox was declared as including a "half share" of the property at 35H Old Railway Line Tengbeh Town, not one third share. The only document in evidence that could have given Anna Alice Cox that half share in the property at 35H Old Railway Line Tengbeh Town is the Deed of Gift. It follows therefore that the other half share of 35H Old Railway Line belongs to Mabel Cox under "Exhibit AJD6".

In addition to the above findings, I carefully perused "AJD 6", I find that the description of the property as "No.11 Old Railway Line Brookfields", Freetown appears on the backing of the document. The Recitals and Schedule in the Deed of Gift, as well as the Survey Plan, described the properly only as being Old Railway Line Freetown; this same description is given in the Schedule to the Principal Conveyance, Exh. "C", and the Supplemental Conveyance, Exh. "D" both executed by Joseph Braham Macarthy in favour of Alice Cox. From the above observations, it cannot be said that the property, subject matter of the Deed of Gift is conclusively numbered "11 Old Railway Line Brookfields". I am satisfied that the number "11" appearing on the back of the Deed of Gift is an accidental mistake. I find that No 11 Old Railway Line has no bearing in these proceedings, save that the original owner of the property, one Ephram Francis Christian Babs-Thompson, who subsequently sold the property to Joseph Braham Macarthy, Alice Cox's vendor is said to reside at 11 Old Railway Line (Refer to para 2 in Exhibit "C") This is further confirmed by the Composite Plan which I find helpful in the identification

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of the property. The fact that there is gap in the heading between the words "Line and Freetown" in the Survey Plan, reported in the Surestman Identification Report, does not thrown light on the issue whether the property in Exh. "D" and "E" are the same. A careful perusal of all three Survey Plans, including that pertaining to the property which the Defendant is claiming, are all shown to have lines drawn between the words "Railway Line and Freetown. The Surestman Identification Report has not stated the significance of this finding to these proceedings. The Report admits that the numberings of the properties in these area appear to be very irregular, therefore it cannot be said that the Report is conclusive as to the respective locations of No 35H Old Railway Line Tengbeh Town and 11 Old Railway Line Brookfields.

From my evaluation of the evidence, I hold the 35H Old Railway Line Tengbeh Town is the same property that was described as "11 Old Railway Line Brookfieds. I find that Mabel Cox in entitled to a half share of the property at 35H Old Railway Line Tengbeh Town Freetown, and on her death, that share devolved on her surviving daughter Cynthia Eduwu. In view of my findings, and Exh. "AJD6", I am satisfied that the Defendant has no beneficial interest in the property at 35H Old Railway Line Tengbeh Town Freetown, either alone or with others. I hold that by claiming this property whether alone or with others, the Defendant has allowed his personal interest to conflict with his duties as Trustee of Mabel Cox's estate, and on the authority cited by Mr. Johnson, the defendant should be removed as Administrator, and I so hold.

This brings me to the issue whether Sunny Eduwu can hold freehold land in the Western Area. It has submitted on behalf of the Defendant, that Sunny Eduwu being a Nigeria is not entitled to hold property in Sierra Leone under the provisions of Sec 3 of the Non-Citizen (Interest in Land) Act of 1966; this provides:

"No non-citizen shall purchase or receive in exchange or as a gift any freehold land in the Western Area."

There is no evidence before me that Sunny Eduwu is a Nigerian citizen. The reference to Nigeria in the marriage certificate is as to the place of birth of Sunny Eduwu; it states only that Sunny Eduwu was born in September 1942 in Benin City, Nigeria. This statement by itself does not confer Nigerian citizenship on the Plaintiff; the Defendant has not provided any evidence that the Plaintiff is a Nigerian Citizen. Merely being born in a particular country does not make that person a citizen of the particular country. In the circumstances, I am satisfied that Sunny Eduwu is not a Nigerian Citizen.

In conclusion, I find for the Plaintiff and will enter Judgment for the Plaintiff as follows:

1. That Sunny Eduwu, the widower and next of kin and sole beneficiary of the Estate of Cynthia Eduwu is the proper person to apply for and take out Letters of Administration of the intestate Estates of Cynthia Eduwu and Mabel Cox deceased in priority to the Defendant;

2. That in view of the above conclusion, the Letters of Administration granted to the Defendant in respect of the Estate of Mabel Cox be transferred to the Plaintiff as the Administrator of the Estate of Cynthia Eduwu deceased;

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3.  That one half share of the property at 35H Old Railway Line Tengbeh Town forms part of the Estate of Mabel Cox deceased in addition to any other property comprising her estate;

4, That the Plaintiff as Administrator of the Estates of both Cynthia Eduwu and Mabel Cox is entitled to all the properties belonging to both the Estates;

5, That the Defendant gives an account of all the properties, real and personal, including rents and profits collected therefrom and monies in the Bank, which he received while he is acting as Administrator of the Estate of Mabel Cox deceased;

6,Under any further or other relief, I will grant an injunction restraining the Defendant by himself, his servants and or agents from further interfering with the properties forming part of the Estates of Mabel Cox and Cynthia Eduwu;

7, I Order that the plaintiff's grant of Letters be amended in accordance with the findings regarding the errors on the document;                                     

8, That the cost of this application be paid by the Defendant

S. BASH-TAQI, J.A

9, The account in(5) above to be given within one month agree date of

the Rules

13/07/07