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SOCKNA MORMORDU ALLIE AND OTHERS
V.
AHMED ALHADI (2)
THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
27TH DAY OF NOVEMBER, 1952
PRIVY COUNCIL APPEAL NO 22 OF 1951
2PLR/1952/98 (P.C)
OTHER CITATION(S)
2PLR/1952/98 (P.C)
(1952) P. C. 22/1951
(1952) XII WACA PP. 320-322
LEX (1952) – XIII WACA 320-322
BEFORE THEIR LORDSHIPS:
LORD PORTER
LORD NORMAND
LORD COHEN
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BETWEEN:
SOCKNA MORMORDU ALLIE AND OTHERS – Plaintiffs-Appellants
AND
AHMED ALHADI (THE OFFICIAL ADMINISTRATOR) – Defendant-Respondent
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ORIGINATING COURT(S)
Appeal from the West African Court of Appeal, W.A.C.A (Civil Appeal No 8 of 1950, 13 W.A.C.A. 317)
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ISSUE(S) FROM THE CAUSE(S) OF THE ACTION
ESTATE ADMINISTRATION AND PLANNING:- Claim for revocation of will – Proceedings wrongly stayed and sent to Attorney General to consider criminal prosecution – Where no Prosecution instituted – Influence on Judge’s mind of conclusion reached by Attorney-General – How treated
ESTATE ADMINISTRATION AND PLANNING:- Claim for revocation of will – Estate of testator married to two wife – Where will deposited in Registry – Where will recovered by a third party authorised by all parties and given to one of the wife who kept same without communicating to co-wife and family members until 40 days mourning over – Where will when eventually produced was found to be largely in favour of wife who kept same and to have disinherited other wife – How treated
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CASE SUMMARY
The facts are fully set out in the judgment. The plaintiffs were the appellants and appealed against the concurrent findings of the trial Court and the West African Court of Appeal dismissing their claim to have a will revoked.
Appellants’ counsel argued that the decision was against the weight of evidence and that the proceedings were wrongly stayed and the Judge’s mind was influenced by the decision of the Attorney-General not to prosecute.
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DECISION(S) OF THE PRIVY COUNCIL
Held (dismissing the Appeal) that:
1. The Board did not determine anything with regard to the principle under which, in England, it is essential that a prosecution should take place before a civil action is taken. It assumed for the purpose of its decision that it was not necessary or not even proper that this case should have been sent to the Attorney-General.
2. It was abundantly clear that the Judge with great care drove from his mind any suggestions that the Attorney-General’s decision influenced him.
3. There was ample evidence to support the Judge’s finding although it was quite true there was sample evidence on which he could have found the other way. In such circumstances the Board does not interfere with concurrent findings of fact of the trial Court and of the Court of Appeal of the Colony itself.
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MAIN JUDGMENT
The following judgment was delivered:
LORD PORTER.
This action was brought by the executors of a will executed in 1939 against the Official Administrator, and it arose in the following way. The testator, who was the owner of a considerable amount of property, amounting to some £60,000, had died in 1948. When he died there were known to be in existence two wills, one being a will made in 1939, and another being a will made in 1946.
There was, then unknown to the parties, so far as their Lordships are able to ascertain, a third will which had been made in 1942, but their Lordships are not concerned with that will. If they were minded to accede to the argument which Mr. Wilberforce has so forcibly placed before them, they might have to send the case back to the Court of Appeal to have ascertained what the rights of the parties were, having regard to the existence of both the will of 1939, and an admittedly genuine will of 1942.
The testator died on the 22nd January, 1948, and there being this question of the two known wills, a dispute arose as to the genuineness of the second. Apparently in Sierra Leone there is a regulation under which a will may be deposited with the registrar. In fact, in this case, the will of 1946 was so deposited. Their Lordships understand that the 1939 will was also deposited with the Registrar, but that has not been clearly established. What has been established is that the will of 1946 and a codicil of 1947 were deposited with the registrar. The codicil is admitted to be a genuine document and therefore their Lordships will say nothing further about it. The only question which arises is with regard to the 1946 will.
The circumstances which happened after the death of the testator were that a gentleman called Wurie, who was probably a friend of both parties and presumably disinterested, was given authority to recover the will and the codicil so deposited, and bring them back to the parties concerned, and he did recover them. Though there is a regulation, their Lordships are not sure whether this is essential or not, probably not, which makes it proper that the registrar should peruse the will before giving it back. In fact nothing of that kind was done in this case; it was given to Mr. Wurie and returned by him to the younger widow of the deceased man.
The deceased man had two wives and – it is not material to be exact about this – the elder wife had had a number of children, but their Lordships have no knowledge of what the family of the younger wife may have been.
Before handing over the will Mr. Wurie, in the presence of one Ibrahim, who was a son of the elder widow, read the document to the younger widow. The latter kept the document and went into mourning for 40 days. During that period she and the elder widow lived together in the same house and in the same room, so that there was ample opportunity of communication between them, but the younger widow did not communicate the contents of the will or have the will read to the elder or to any of the family.
At a later stage it was discovered that the will, when produced, was very favourable to the younger widow; it cut out, as far as their Lordships are able to understand, the elder widow altogether, and finally left the residue to the younger widow.
In those circumstances, perhaps not unnaturally, the elder widow contested the will. The son, Ibrahim, who was called as a witness, also alleged that be had been or ought to have been left a larger portion of the property. Though the claim was not originally very artistically framed, eventually it was claimed that somebody had suppressed the 1946 will as originally drafted, and had substituted for it another will.
If their Lordships were minded to send the case back, they are not sure what the result of that would be, because it might be possible to say that the 1942 will was still in existence; at any rate it does not get rid of the difficulty to say that the 1946 will has been suppressed and that therefore the 1939 will comes into force, because there was the intermediary will in 1942 which, even if the 1946 will was suppressed, might quite well supersede the 1939 will. However that may be, it was alleged that somebody had substituted a will which was not the will of the testator for the will which he had executed.
The parties who were called to deal with this matter were, first of all, the two witnesses to the 1946 will, and, secondly, the two persons to whom the will was read over. Substantially there were the two groups, and there was one witness with regard to handwriting.
Their Lordships do not propose to go through the evidence at length, or indeed to say more about it than that there was ample evidence upon which the judge could find that the will of 1946 was the will which had been made by the testator. It is quite true that there was ample evidence upon which he could have found the other way. It may be, and their Lordships are prepared to assume, without deciding, that the evidence in favour of the rejection of the will was supported by a larger body of evidence than the evidence asserting that the will produced was the document originally signed.
However that may be, it is not a matter upon which their Lordships could, or ever do, interfere, when the matter has been not only to the Court of First Instance but to the Court of Appeal in the Colony itself. It comes under the rule that concurrent findings of fact are not set aside and indeed the learned judges’ decisions in the present case are much less open to attack than were those of the judges in the latest case decided by their Lordships with regard to the Indian Rajah, in which a great deal more could have been said than can be said in this case in derogation of the findings of the Court of Appeal.
It is admitted by Mr Wilberforce on behalf of the appellants that the concurrent finding of the two Courts would finally establish his opponent’s case were it not for an unfortunate incident which occurred in the course of the hearing. Their Lordships do not propose to determine anything with regard to the principle under which, in England, it is essential that a prosecution should take place before property can be recovered in a civil action. They will assume for the purposes of their decision that it is in no sense necessary or not even proper that this case should be first of all sent to the Attorney General to discover whether a prosecution should take place or not. Though that assumption be made the question still arises whether the conclusion arrived at by the Attorney General had any influence on the learned Judge’s mind in the decision to which he came.
Their Lordships have read, and had read to them, the whole of the careful, learned and accurate judgment by the learned judge dealing with the law in the matter. It is quite true, if any question of onus arose, one might spell out of his judgment a tendency to regard the onus as being on the side of the respondent rather than of the appellant. In their Lordships’ view, however, onus does not arise at all in a case of this kind, where the whole matter has been gone into and the Court is satisfied on the balance of evidence, even though it may not be that the balance of evidence is to a considerable degree more favourable to the one side rather than to the other.
These being the facts, one goes to the learned Judge’s judgment to find out whether he formed his own view of the truthfulness of the witnesses or whether he felt himself guided, influenced or affected by the decision of the Attorney General not to prosecute.
Their Lordships think it is abundantly clear that the learned Judge with great care drove from his mind any suggestions that the Attorney General’s determination had influenced him. He quotes correctly the cases bearing upon the point and therefore in their Lordships’ view it cannot be said that he in any way departed from the principles upon which his decision ought to be made.
The Court of Appeal in the same way, seeing that the learned Judge had had an opportunity of hearing the witnesses, and that his must be the deciding voice in the matter, accepted the same view, though at the same time they expressed the view that he was wrong in sending the papers to the Public Prosecutor before the case was determined.
In those circumstances, having regard to the fact that there are concurrent findings of fact, that there was ample evidence to justify them, and that in their Lordships’ view the learned judge was in no way influenced by the decision of the Attorney General, it only remains for them to say that they will humbly advise Her Majesty that the appeal should be dismissed.
In their Lordships’ opinion, the respondent is entitled to his costs.
Appeal dismissed.
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