COURT: SUPREME COURT OF SIERRA LEONE
CORAM:
The Honourable Livesey Luke J.S.C
SC. Civ. App. No. 12/72
BETWEEN
THE ADMINISTRATOR- GENERAL - APPELLANT
AND
ALHAJI ABDUL WAHID BIAKIEU - RESPONDENT
REPRESENTATION
Cyrus Rogers- Wright Esq. for the Appellant
Dr. W. S. Marcus Jones for the Respondent
JUDGMENT DELIVERED ON THE 3RD DAY OF JULY 1973
APPEAL:
This is an appeal against an order as to costs only.
FACTS:
The appeal emanated from the Court of Appeal’s decision against the Appellant as to order for cost. Zainabu Fatmata Sankoh issued a writ against the Respondent in this appeal to recover possession of the house and land situate and known as 27 Dan Street, Freetown seised by her mother in fee simple who died intestate. The respondent who took possession of the said property when Zainabu was an infant subsequently in his defence claimed that the property belonged to him by virtue of a contract between him and the deceased and also counterclaimed for a declaration that he was the fee simple owner of the property. Both claims of the appellant and Respondent were dismissed by the trial judge. The Trial Judge dismissed the claim of Zainabu on the ground that the property of the deceased vested in the Administrator- General by virtue of Section 8(1) of the Administration of Estates Act, Cap 45 and not in Zainabu Fatmata Sankoh and therefore she was not entitled to sue for recovery of possession. The counterclaim of the respondent was also dismissed on the ground that he failed to prove the alleged sale of the property to him. They appealed but the appeal was dismissed on the same grounds. Zainabu then secured an Official Administrator who prevented the respondent through a caveat from obtaining a letter of administration. As a result of the caveat, the respondent sued the Administrator-General (hereinafter referred to as the Appellant in this matter) claiming that he was the lawful brother of the deceased and according to Mohammedan Law was entitled to be the administrator of the estate of the deceased. The dispute arose as to who has a better right to the power of administration. The administration action was brought before Ken-During J who ordered that the letter of Administration be granted to the appellant. The Respondent appealed to the Court of Appeal which made decisions and ordered cost to be paid by the appellant herein. It is against this that the appeal was made before the Supreme Court.
FINDINGS/ANALYSIS
The issues for determination were whether the Court of Appeal was right to order cost on the Appellant and whether the Appellant followed due process for a grant of the letter of administration. The Supreme Court refused the application of Mohammedan Law claimed by the Respondent as the process to be used by the Appellant and held that the process for obtaining grant of letter of Administration of estate of a deceased is captured in section 10 of Cap 45. The Supreme Court also found that it was after the Appellant had obtained a letter of Administration that the Respondent applied for grant of letter of Administration. A further finding of the Court was that according to Mohammedan law, section 9 (2) of Cap 96 the Respondent was only entitled to a grant of Letters of Administration. The section required the Respondent to prove that he was the oldest brother and not merely to show that he was the lawful brother of the deceased. The court also found that section 10 (1) of Cap 45 was fulfilled by the Appellant and therefore he should be preferred over the Respondent for the grant of the letter of administration. The court refused the argument of the Respondent that the Appellant was liable for cost for his negligence in failing to follow Mohammedan law in obtaining letter of administration and stated that the Appellant was justified in entering a caveat and was not liable officially and personally for any errors if indeed there were which have been committed in the administration of estate of the deceased by virtue of section 6 of Cap 45 as amended. The argument of counsel for the Appellant was that the Appellant was a trustee and is not liable to pay cost by virtue of order 46 rule 1 of the High Court Rules and section 15 of Cap 45 and was thereby entitled to cost out of the estate of the deceased. The Court found that the Court of Appeal acted erroneously in depriving the Appellant of his cost out of the estate. The court by reason of the decision in Donald Campbell & Co. Ltd V Pollak (1927) maintained that it is a sufficient ground for allowing an appeal as to cost when it is shown that the Court of Appeal in dealing with cost has fallen into error on a point of law which governs or affects cost. The court therefore allowed the appeal as to cost and set aside the order of the Court of Appeal and the courts below.
DECISION OF THE COURT
In consideration of all the circumstances, the court deprived the Respondent of his cost out of the estate and ordered that he bears his own costs in this court and the courts below.
Written by:
Mohamed Amin Gbla and Lauretta Macauley
Edited by: Frederick Ishmael Bockarie Esq.