Court name
HC: Family and Probate Division
Case number
MISC APP 92 of 2021
Case name
Gibril Mansaray v Abibatu Mansaray
Media neutral citation
[2021] SLHCFPD 23
Case summary:

An application by way of Originating Summons for answers to the questions concerning the execution of a will 

Judge
Samba, JA

Ruling

  1. On file is an application by way of Originating Summons dated the 25th day of February 2021 for answers to the following questions:
  1. Whether monies collected by and/or paid to the 1st Defendant/Respondent as a result of her wrongly (sic) taking out Letters of Administration dated the 17th day of September 2017 should be refunded to the estate in full.
  2. Whether Gibril Adebayo Mansaray and Abdul Rashid Mansaray, the executors and trustees of the Will of Mohamed Lamin Mansaray have breached their fiduciary duties.
  1. Whether by failure to discharge their duties as executors and trustees of the Will of Mohamed Lamin Mansaray, Gibril Adebayo Mansaray and Abdul Rashid Mansaray can be removed from their positions.
  2. Whether the 2,,d and 3rd Defendants/Respondents are liable for breach of their fiduciary duties as executors and trustees of the Will of Mohamed Lamin Mansaray.
  1. If all the questions above are answered in the affirmative, Counsel asks this Court to grant the following orders:
  1. That the 1st Defendant/Respondent refunds to the newly appointed executor and trustee the sum of Le. 1,210,800,000.00 in full less Lc. 740,000,000.00 she has already transferred to the present executors and trustees.
  2. That the 2’d and 3 d Defendants/Respondents gives (sic) an account of all monies received by them in respect of the estate of Mohamed Lamin Mansaray in theor position as executors and trustees of the Will of the said Mohamed Lamin Mansaray.
  3. That both the 2nd and 3 d Defendants/Respondents be removed as executors and trustees of the Will of Mohamed Lamin Mansaray and be replace (sic) by Mr. Gibril Mansaray, the Plaintiff/Applicant herein.
  4. ThatthesaidGibrilMansaraybe ordered to complete the administration of the estate of Mohamed Lamin Mansaray aforesaid within two months.
  5. Any further order this honourable Court deems fit and just.
  6. Costs to be borne by the Defendant/Respondents.
  1. The application is supported by the Affidavit of Gibril Mansaray sworn toon the 25th day of February 2021 with several Exhibits attached.
  1. Before the above referred application could be moved, Counsel for the Defendants referred the Court to a Notice of Motion filed for and on behalf of the Defendants praying that the Originating Summons hereinbefore referred to be struck off for reason that I will hereinafter elucidate upon. Counsel application is supported by the Affidavit of Boniface Sidikic Kamara Esq sworn to on the 12'” day of March 2021 with Exhibits attached.
    1. Counsel refers to Order 52R2(1) of the High Court Rules of Sierra Leone, 2007 and to the case of Aiah Momoh iz Sahr Samuel Nyandemoh and submits that the application by way of Originating Summons be struck out for reason of none compliance with the said Order 52R2( 1). It is Counsel's submission that the Plaintiff is before this Court is to deal with a contentious probate matter which will need to be probed and that the proper method of commencement of the matter herein is by way of a Writ of Summons and not by an Originating Summons.
  2. On file is an Affidavit in Opposition sworn to by Gassim M. Conteh on the 24d’ day of March 2021. Counsel argues that the Originating Summons, though touching on properties in probate, does not does not actually deal with the probate itself. Counsel refers the Court to Order 51 Rl(2) and argues that the relief sought has nothing to do with the granting of a Will or Letters of Administration or their revocation. He submits that the Plaintiff's application docs not fall within the definition of a probate action and therefore, the Plaintiff is not obliged to commence the action herein by way of a Writ of Summons. With reference to the Momoh v Nyandemoh case, Counsel submits that the Plaintiff is not in violation of any statutory provision.
  1. The Court refers to Orders 55 Rule 2(1) relied upon by Counsel for the Defendants/Applicants which reads 'A probate action shall be begun by writI refer to the title in Order 55 applications to wit: “Contentious Probate Proceedings" and more especially to Order 55 Rule 1 which provides for the application of the Order and interpretation of 'probate actions'. By Order 52(2), 'probate action' means an action for the grant of probate of the will, or letters of administration of the estate of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business'. It is my view that Order 52 Rule 2(1) must be read with Order 52 Rulel and its sub-rules to determine the applicability of the said Order in respect of compliance with originating processes of this nature.
  2. I have read the substantive application exhibited in the Affidavit of Boniface S. Kamara Fsq hereinbefore referred to, as in Fxhibit BSK1 with its Supporting Affidavit sworn hy Gibril Mansaray with its attached Exhibits. It is clear from paragraphs 2, 3 and 4 of Gibril Mansarays' Affidavit and from Exhibits GM 2 and 3 referred to in the said paragraphs, that a Letters of Administration taken out by the 1st Defendant for the estate of Mohamed Lamin Mansaray (Deceased) was revoked by this Honourable Court. It is also clear from paragraph 1 of the said Affidavit and Exhibit GM1 attached thereto that the said Mohamed Lamin Mansaray died testate making his last will and testament before his death. There is no contention as to the validity of the Will and it is clear to the Court that probate of the last Will and Testament of the said Mohamed Lamin Mansaray was taken out by his executors Gibril Adcbayo Mansaray and Abdul Rashid Mansaray of the said deceased Testator,
    1. Referring to the interpretation section of Order 55 Rule 1(1) & (2) therefore, it does not appear to me that the application before this Court is in any way contentious even though it is a probate matter. There is no contention as to who the beneficiaries are; there is no contention as to the validity of the Will herein; there is no contention as to whether or not Letters of Administration ought to have been taken out and by whom because there is in existence a valid Will and there is no evidence that there is any other property not referenced in the Will herein.
      1. Suffice it to say that where probate matters are contentious, which it is not in the instant case, the manner of commencement must be by Writ of Summons because there will be need to probe further into issues and to cross examine witnesses so as to lay before the Court what the contentions may be that the Court ought to look into and determine. Counsel has not shown me any single contentious issue in respect of the substantive application before the Court.

5.2. My position is that even if there was any minor contention, which I do not see in the instant case, such minor contention could be dealt with by way of Affidavit evidence. Upholding the application herein will mean that the whole process, which I must reiterate is uncontentious, must be commenced de novo, thereby causing unnecessary delay. I see no 'major' contention of fact as said. I therefore invoke the spirit behind the provisions of Order 2 especially Order 2 Rule 3 of the High Court Rules of Sierra Leone, 2007 which provides that:

[he Court shall not wholly set aside any proceedings ar the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by originating process other than the one employed.

IT IS THEREFORE ORDERS AS FOLLOWS:

  1. That the application made on behalf of the Defendants to strike out the Originating Summons dated the 25n' day of February 2021 is refused.
  2. That the Defendants file or cause to be filed an Affidavit in Opposition of the Originating Summons dated 25’’’ day of February 2021 if they so desire within 5 working days of this Order.
  3. Costs shall remain in the cause.