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SAFIATU SAVAGE-JOHN
V.
DOUDU JOBE AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL (GAMBIA CASE HEARD AT FREETOWN)
29TH DAY OF MARCH, 1944
2PLR/1944/35 (WACA)
OTHER CITATION(S)
2PLR/1944/35 (WACA)
(1994) X WACA PP. 144 – 147
LEX (1944) – X WACA PP. 144 – 147
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J.,
DOORLY, J.
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BETWEEN:
SAFIATU SAVAGE-JOHN – Appellant (Plaintiff)
AND
DOUDU JOBE AND N’GAGN JOHN (ADMINISTRATORS OF THE ESTATE OF MALICK JOHN, DECEASED) –Respondents (Defendants)
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ORIGINATING COURT(S)
Appeal by Plaintiff from the judgment of the Supreme Court.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Contract for consideration to devise land to promisee — Bequest to another — Promisee’s rights — Onus of proof of repayment or falsity of document — Need to join devisee in proceedings
DEBTOR AND CREDITOR:- Contract of loan — What does not constitute — Money ‘lent’ by wife to husband to undertake a project on consideration said project would be bequeathed to her upon his death — Proper treatment of –Relevant considerations
FAMILY LAW:- Agreement backed by consideration between husband and wife during pendency of marriage — Agreement for husband to device property to wife in his will which was built with money ‘borrowed’ from wife — Nature of agreement — Whether contract of loan or contract relating to land — Where couple divorces before death of husband — Failure of wife to bring up matter of agreement during divorce proceedings — Whether raises presumption against validity/enforceability of agreement
ESTATE ADMINISTRATION AND PLANNING:- Bequests of property already promised to another via a memorandum of agreement — Suit to enforce agreement in order to invalidate the bequest — Failure to join devisee as a party to the suit — Proper order for court to make
WOMEN AND CHILDREN LAW:- Women and Justice Administration — Divorce of woman from husband — Written agreement for husband to bequeath certain property to wife in consideration of a certain sum ‘lent’ by wife to husband during pendency of marriage — Failure of woman to raise issue of agreement during subsequent divorce proceedings — Whether fatal to action to enforce agreement where deceased husband in will bequeaths property to a third party
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CASE SUMMARY
Plaintiff’s claim was (a) for the premises known as No. 32 Primet Street, Bathurst, and (b) the value of 16 cows. The judgment on claim (b) was not attacked; this note relates to claim (a).
This claim rested on a document executed in 1921 in which the deceased acknowledged the receipt of £105 10s. from Plaintiff, with which to erect a building at No. 32 Primet Street, on condition that he would bequeath the premises to her for that amount on his death. He left a Will in which the premises were bequeathed to his daughter Sophi.
Defendants pleaded that the document was false. The Judge did not hold it was, but thought that if money was lent; it must have been repaid long ago in all probability, and disallowed the claim. Hence the appeal on this branch of the case.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
1. The Judge was wrong in regarding the transaction as a loan; it was a contract for valuable consideration to devise land in a particular way and as such specifically enforceable against the testator’s heir-at-law.
2. The onus of proving that the document was false, or that the money had been repaid, lay on the Defendants, but was not discharged.
3. No decree could be mad e without the devisee (the daughter Sophie) being joined as a defendant, as her interest was affected.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Plaintiff’s claim against the Defendants in the Supreme Court of the Colony of the Gambia was as follows:-
“The Plaintiff claims the hereditaments and premises situate at and known as No. 32, Primet Street, Bathurst, by virtue of a promise made by the above-named deceased in writing dated the 30th October, 1921, to the Plaintiff then being the lawful wife of the said deceased in consideration of the sum of £105 10s. lent by the Plaintiff to the deceased at his request for the building of a shop and room in the said premises .
and
“The value of 16 cows now in the South Bank Province belonging to the said Plaintiff but declared to be the property of the said deceased. The value being £120.”
For the first of these two claims the Plaintiff relied upon a document (wrongly described as a “contract as to loan”) which became Exhibit “A” in this case and is in the following terms:
“EXTRACT COPY OF RECEIPT AND PROMISSORY NOTE MADE BY MALICK JOEN (DECD.)
Bathurst Gambia,
30th October, 1921.
“I, Malick John of Bathurst received this 30th of October 1921 the sum of £106 10s. (One hundred and five pounds ten shillings) from my wife Safiatu John to erect a building of shop and room at No. 32 Primet Street on condition that I will bequeath the said property to her for the said amount on my death,
Signature in Arabic”
“(Sgd.) Malick John
“Witnesses
“(Sgd.) M. Cole
“Baboucar John
“(In Arabic)
Written by “Lancaster St., Bathurst. (Sgd.) O. Jallow.”
She stated that the two witnesses to the document M. Cole and Baboucar John were both dead and subsequently gave evidence that the writer of the document, O. Jallow, was also dead.
The Defendants relied upon pleading that the document was false.
The issue was joined in the following terms:
“Did the Plaintiff loan £1065 10s. to deceased by contract in writing with consideration set out thereon?”
After hearing the evidence the learned trial Judge gave the following judgment:-
“My finding in this case can be briefly expressed. I disallow the Plaintiff’s claim on the Note or Memorandum of loan. I do not say it is a false document or a forgery but I am inclined to the belief that if the money passed, that loan must have been repaid in some other manner, to the Plaintiff’s satisfaction, many years ago. It is significantly adverse to the Plaintiff that from the date of the alleged loan down to the date of this suit both the document and the circumstances of the alleged transaction which allegedly produced it have remained a secret known only to the Plaintiff. It is my belief that if the loan had been made, some living person to-day, other than the Plaintiff could testify to, at least, having heard the Plaintiff or her former husband or someone else mention the matter in some connection or other. I therefore admit the possibility that the note itself is not a false document but I am compelled through regard for the probabilities of human conduct, to take the view that the debt as an existing debt cannot be regarded as proved or at all probable. After all these years something more than this document is necessary to establish this part of the Plaintiff’s claim and there is nothing more. Plaintiff’s husband died testate. Before his death he discussed his affairs with an independent witness Mr. Joof. The Plaintiff’s name was not mentioned. Some time ago Plaintiff’s husband divorced her before the Cadi. If her evidence is true, she at that time also had this document in her possession and her debt unsatisfied. If ever there was an occasion in the Plaintiff’s life for mention of her claim against her husband, it was this occasion, on the dissolution of her marriage, her departure from her husband’s roof, care and companionship. Yet, not a word to anybody. This portion of the Plaintiff’s claim must fail. Her evidence is just insufficient to support it.”
It is against that Judgment that the present appeal is brought. Judgment was also given, in respect of the claim for value of cows, for the transfer to the Plaintiff of twelve head of cattle but there is no appeal in respect of that part of the Judgment and we are not concerned with it except so far as it affects costs. The order as to costs was:
“In regard to costs I order that the Plaintiff upon her costs being ascertained, will be entitled to receive one-fourth of the total so ascertained from the defendants.”
We are of opinion that the Judgment of the Court below upon the claim to the premises No. 32, Primet Street cannot be allowed to stand, because the learned trial Judge clearly misunderstood the nature of the document Exhibit “A” and the effect of his finding “I do not say it is a false document or a forgery”. He repeatedly refers to the transaction as a loan, whereas, in fact, it was not a loan at all, it was a contract for valuable consideration to devise land in a particular way. There was no question of any sum being repayable or repaid by Malick John and there was no reason for the Plaintiff to produce the document or talk about it until after the death of Malick John when it transpired that he had broken his part of the contract and instead of bequeathing the property 32, Primet Street to the Plaintiff had devised it to his daughter Sophie John in the following terms:-
“I devise my freehold lot of land with the buildings and fixtures thereon situate at and known as No. 32 Primet Street Bathurst unto my daughter SOPHIE JOHN and her heirs upon condition that she the said SOPHIE JOHN and her heirs shall at all times hold use and enjoy the said land and that they shall on no account pledge sell exchange or otherwise part with the possession thereof or any part thereof.”
Further the learned trial Judge seems to have overlooked the question of onus of proof. As regards the document the onus of proof was on Defendants to prove it false; they failed to discharge that onus; as to this not only was there the Plaintiff’s evidence as to execution of the document, but there was the Cadi’s evidence that the signature to it was Malick John’s and that the signature of one of the witnesses was also authentic. No evidence was led as to the authenticity of the signatures of the other witness or of the writer.
If there had been (which there was not) any contention by Defendants that the sum of £105 10s. had been repaid, the onus was upon them to prove the repayment. There was nothing to support the Judge’s suggestion of possible repayment, and the fact that repayment was not in contemplation by the contract strongly rebuts such suggestion. The Judge’s reference to “the debt as an existing debt” clearly shows his misconception of the position, for there was no debt, but only an obligation by contract to devise the property 32, Primet Street in a particular way. Such a contract for valuable consideration can be specifically enforced against the testator’s heir-at-law (Jarman on Wills 7th Ed., p. 30): Goylmer v. Paddiston 86 Eng. Rep. p. 482; Coverdale v. Eastwood (1872) L.R. 15 Eq. 121).
But we find ourselves unable to order any decree in Plaintiff’s favour upon these proceedings, because we are of opinion that no such decree can be made without the devisee, Sophie John, being made a party to the proceedings and having an opportunity of defending her rights under the Will, so also that if a decree is eventually made it will operate against her as well as against the present Defendants. We can see no alternative but to order a new trial with Sophie John joined as a Defendant.
The appeal is accordingly allowed, that part of the Judgment of the lower Court disallowing the first of the Plaintiff’s two claims is set aside, and it is ordered that the case be remitted to the Court below for that first claim to be tried de novo the devisee, Sophie John, being first joined as a Defendant.
The part of the Judgment dealing with the claim as to cattle stands good. As to costs, the order that the Plaintiff shall receive one-fourth of her total costs stands good, without prejudice to the possibility of her receiving more than that proportion at the retrial. Apart from that one-fourth part the remaining costs both of the previous trial and of the retrial will be in the discretion of the trial Judge at the retrial. The Appellant is awarded her taxed costs of this appeal to be paid out of the estate of the testator Malick John.
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