Court name
HC: Family and Probate Division
Case number
MISC APP 154 of 2020

Charles Bola Cardew-Cole v Elizabeth Koroma (MISC APP 154 of 2020) [2021] SLHCFPD 3 (18 January 2021);

Media neutral citation
[2021] SLHCFPD 3
Case summary:

An application by way of an Originating summons for certain orders to the court- judgment was granted in favor of the plaintiff- the cost of the application was to be borne by the defendant.

Coram
Miatta Samba, J

MISC.APP. 154/20                          2020                    C.                                                          NO. 3

IN THE HIGH COURT OF SIERRA LEONE
(FAMILY AND PROBATE DIVISION)

IN THE MATTER OF ORDERS (5)(4) AND 37(1) OF THE HIGH COURT RULES CONSTITUTIONAL
INSTRUMENT NO. 8 OF 2007

AND
IN THE MATTER OF THE DEVOLUTION OF ESTATES ACT 2007

AND
IN THE MATTER OF THE ADMINISTRATION OF ESTATES ACT, CAP 45 OF THE LAWS OF SIERRA
LEONE

AND

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF ISHMAEL JOHN CARDEW-COLE

DATED THE 9th DAY OF OCTOBER 1948

AND

IN THE MATTER OF THE YEYETTE OLUFEMI HARDING (NEE COLE) (DECEASED)
AND

IN THE MATTER OF THE DISENTAILING DEED DATED 7th JULY 1936 OF MRS. IAYATUNDE
SELINA JUDITH MACAULEY COLE

AND
IN THE MATTER OF THE WILL DATED
4th NOVEMBER 1971 OF IYATUNDE SELINA JUDITH
CARDEW-COLE

AND

IN TH EMATTER OF LETTERS OF ADMINISTRATION DATED THE 19th AUGUST 2019 WITH A
DECLARATION OF FURTHER ESTATE

AND

IN THE MATTER OF THE WILLS ACT 1937

BETWEEN:

CHARLES BOLA CARDEW-COLE                                                             -PLAINTIFF/RESPONDENT

(BENEFICIARY OF THE ESTATE OF

IYATUNDE CARDEW-COLE (DECEASED) TESTATE)

BY HIS ATTORNEY, BELMONT CLARKSON

(NEE CARDEW-COLE)

NO. 3 LAMINA SANKOH STREET

FREETOWN

AND ELIZABETH KOROMA           -DEFENDANT/APPLICANT

NO. 3 LAMINA SANKOH STREET

FREETOWN

BEFORE THE HONOURABLE JUSTICE MIATTA MARIA SAMBA, J.A DATED THE 18th DAY OF JANUARY 2020

Bfl£f<amara Esq for the Defendant/Applicant

H.K Allen Esq for the Plaintiff/Respondent

 

Ruling

1- On file is an application by way of an Originating Summons dated the 6th day of March 2020 filed for and on behalf of the Plaintiff/Applicant for the following orders:

a- To call off Letters of Administration of the Estate of Yeyette Harding with its Declaration of Additional Estate granted to the Defendant/Respondent on the 19th August 2019 by the High Court of Sierra Leone in its Probate Jurisdiction.

  1. A Declaration that the said grant is null and void.
  2. An order for the revocation of the said grant.

d- An order that the said grant referred to above was irregularly/illegally obtained.

  1. An order that the said Letters of Administration dated the 19th August 2019 referred to above be expunged from the records in the Probate Jurisdiction of the High Court of Sierra Leone.
  2. In the instance order 'e' is granted, an order for the Administratrix of the expunged Letters of Administration (the Defendant/Respondent) gives an account of all the assets and everything relating to the deceased's estate to this Honourable Court, for the period August 2019 to the date of Judgment.
  3. An injunction restraining the Defendant/Respondent and/or any person(s) whomsoever, whether by themselves, their employees, relations, servants, agents, privies from intermeddling with the Estate of the late Yeyette Harding (Deceased intestate).
  4. An injunction restraining the Defendant/Respondent and/or any person(s) whomsoever, whether by themselves, their employees, relations, servants, agents, privies from intermeddling with the Estate of lyatunde Judith Selina Cardew-Cole.
  5. An order for the sole surviving brother and next of kin to the late Yeyette Harding (Deceased intestate), Charles Cole the Plaintiff/Applicant herein to be the lawful next- of-kin entitled to take out Letters of Administration of the Deceased's Estate.
  6. Any other or further relief that this Honourable Court may deem fit.

.1.1. The application is supported by the Affidavit of Belmont Clarkson (Nee Cardew-Cole) sworn to on the 6th day of March 2020 with Exhibits attached.

  1. Exhibits BC1 and 2 are copies of the birth certificate of Duro Semi Yeyette Belmont lyatunde, first child of the Plaintiff's Attorney and a copy of a Power of Attorney made on the 19th day of August 2019.
  2. Exhibit BC3 is a copy of the birth certificate of Charles Cardew-Cole, the Plaintiff herein born to lyatunde Cardew-Cole and Ishmael Cardew-Cole.
  3. Exhibit BC4A and B are copies referred to a baptismal certificates for Cornelius Johannes Adaebishola, Yeyette Abigail Selina Olufemi and Charles Magnus Samuel Adebola, children of Ishmael John Cardew-Cole and lyatunde Judith Selina Cardew-Cole.
  4. Exhibit BC5 is a copy of a Conveyance dated 15th August 1935 for property situate at Trelawney Street, Freetown (now known as Lamina Sankoh Street).
  5. Exhibit BC6 is the Last Will and Testament of Ishmael John Cardew-Cole executed on the 9th day of October 1948.

 

  1. Exhibit BC7 is a copy of a Double Probate dated the 12th day of June 1990 taken out by Mrs. lyatunde Judith Selina Cardew-Cole for the Will of her husband, Ishmael John Cardew-Cole.
  2. Exhibit BC8 is a copy of a Disentailing Deed dated the 7th July 1936 in the name of Mrs. lyatunde Cardew-Cole in respect of property situate at Wallace Johnson Street, Freetown from her father, Mr. Magnus Johannes Macauley.
  3. Exhibit BC9 is a copy of a Fire Renewal Notice dated the 10th day of April 2019 in respect of property situate at Trelawney Street, Freetown.
  4. Exhibit BC10 is a copy of the death certificate of Mrs. Yeyette Olufemi Harding (Nee Cardew-Cole) dated the 17th June 2019.
  5. Exhibit BC11 is a copy of a letter dated the 8th August 2019 by the Defendant/Respondent, referring to herself therein as Administratrix and lawful next-of-kin, to one of the tenants at property on No. 3b Lamina Sankoh Street, Freetown.
  6. Exhibit BC12 is a copy of Letters of Administration for the Estate of Yeyette Harding (Nee Cardew-Cole) dated the 19th day of August 2019 taken out by the Defendant/Respondent herein, for all moneys held in the ban for the deceased, Yeyette Harding, in excess of Le. 15,000,000,000.00 (Fifteen Million Leones).
  7. Exhibit BC13 and 14 are copies of an Additional Declaration of Estate in respect of property situate at Wallace Johnson Street dated September 2019 taken out by the Defendant/Respondent and the Last Will and Testament of lyatunde Judith Cardew-Cole executed on 4th November 1971.
  8. Exhibit BC15 is a copy of letter dated 25th February 2020 written on the instructions of the Plaintiff herein to the Rokel Commercial Bank in respect of the status of the Bank Account in the name of the deceased, Yeyette Harding (Nee Cardew-Cole) (Deceased Intestate).
  1. On file is a Supplemental Affidavit in support of the application herein sworn to by Belmont Clarkson (Nee Cardew-Cole} on the 16th day of November 2020 with Exhibit BC16, a Certificate of Registration                                                       and Citizenship for                                                   the

Defendant/Respondent herein,                    exhibiting         the names                                                                               of                       the

Defendant/Respondent's biological parents as Boima Koroma and James Koroma.

  1. Basically, Counsel for the Applicant's application is for the Court to grant an order expunging the Letters of Administration dated 19th August 2019 and Additional Letters of Administration taken out by the Defendant/Respondent in respect of the Estate of Yeyette Harding Nee Cardew-Cole, (Deceased Intestate) and for an injunction against the Defendant from dealing in any way, shape or form with the said Estate.

2-1. Counsel refers to Exhibit BC1-2 and submits that the Plaintiff's siblings are deceased. He submits that the Plaintiff/Applicant is the sole surviving child of the late Mrs. lyatunde Cardew-Cole and Ishmael John Cardew-Cole and the brother of the deceased, Yeyette Harding, (Nee Cardew-Cole) which Counsel argues, makes him the lawful next-of-kin to take out Letters of Administration in respect of the Estate of Yeyette Harding, and not the Defendant.

 

  1. Counsel refers to Exhibit BC8, a Disentailing Deed dated 7th July 1936 and argues that the property at No. 16 Wallace Johnson Street forms part of the Estate of the Cardew-Cole family which Counsel contends, the Defendant has laid claim to through Letters of Administration.
  2. He refers to Exhibit BC14, the Last Will and Testament of Mrs. lyatunde Cardew- Cole executed on the 4th day of November 1991, paragraph 4 thereof and submits that the said property was bequeathed to the Plaintiff/Applicant's sister, Yeyette Harding Nee Cardew-Cole, absolutely. Counsel refers to paragraph 8, a proviso to paragraph 4 hereinbefore referred to, that the property will only vest in Yeyette Harding absolutely if she gets a child or children, legitimately or naturally, failing which the property must be vested in the sole surviving child of the Cardew-Cole family or the children of the siblings.
  3. Counsel submits that the Plaintiff's siblings, Shola, Ade and Yeyette died without issue. Counsel submits that the Plaintiff, Charles Bola Cardew-Cole is the only surviving child with two children, the Attorney herein and her brother Lenox Cardew-Cole.
  4. Counsel refers to Cap 45, Laws of Sierra Leone 1960 and to the Devolution of Estates Act, 2007 for the definition of the legal term, 'next-of-kin'. He refers also to Black's Law Dictionary which defines next-of-kin as 'a person declared to be the nearest of kindred to the declarant'. He argues that the term next-of-kin refers to one's closest relation and submits that this can be a spouse or a child or one who is the closest living blood relative. Counsel therefore submits that the beneficiaries to the properties of the Cardew-Cole family and that of Yeyette Harding (Nee Cardew-Cole) must be the Plaintiff and his two children hereinbefore mentioned, being that the Defendant is neither a biological nor a legitimate or adopted child of the deceased Yeyette Harding.
  5. Counsel's submits that because the Plaintiff/Applicant's siblings died without any issue and that, by the provisions of paragraph 8 of the Will, the property must devolve on the Plaintiff/Applicant as the sole surviving child of lyatunde and Ishmael Cardew-Cole; he submits that the Plaintiff is the lawful next-of-kin to Yeyette Harding, his sister. The Plaintiff/Applicant, it is submitted, is the right and lawful person to take out Letters of Administration for his mother's Estate, including 16 Wallace Johnson Street, Freetown and his sister's Estate including moneys in her bank account.
  6. Counsel prays for an order that the Letters of Administration dated the 19th day of August 2019 taken out by the Defendant be expunged from the records because the Defendant, not being a biological nor adopted child of Yeyette Harding could not have lawfully taken out Letters of Administration for the Estate of Yeyette Harding during the life time of the Plaintiff, Charles Bola Cardew-Cole, the only surviving brother of the said Yeyette Harding and only surviving son of their parents, lyatunde and Ishmael Cardew-Cole. Counsel also prays for an order that the rent collected by the Defendant for property situate at No. 16 Wallace Johnson Street, Freetown from August 2019 to date of this judgment be accounted for and that the money in the Estate of Yeyette Harding kept at the Rokel Commercial Bank received by the Defendant be accounted for.
  1. On file is an Affidavit in Opposition sworn to by the Defendant/Respondent herein, Elizabeth Koroma on the 29th September 2020 with Exhibits attached and a Supplemental Affidavit sworn to by the said Defendant/Respondent, Elizabeth Koroma on the 6th day of November 2020. To the Affidavit of 29th September 2020 are the following Exhibits:
  1. Exhibit EK1 is a copy of the Originating Summons dated the 6th day of March 2020 which commenced this action.
  2. Exhibit EK2 A&B are copies of a Memorandum and Notice of Appearance filed for and on behalf of the Defendant/Respondent.
  3. Exhibit EK3 is a copy of a Notice of Motion dated 30th March 2020 filed for and on behalf of the Defendant/Respondent asking that the Originating Summons dated the 6th day of March 2020 be struck out on the grounds that the procedure adopted offends the Rules.
  4. Exhibit EK4 is a copy of the Ruling of this Court dated 29th July 2020 refusing the application on Notice of Motion dated 30th March 2020.

xviii.        Exhibit   EK5 is a copy of the birth certificate of the Defendant's son.

  1. Exhibit    EK6 (A-E) are copies of letters of authorisation and payment slips.
  2. Exhibit    EK7 is  a copy of the death certificate of Yeyette Olufemi Harding.
  3. Exhibit    EK8 is  a copy the last Will and Testament of lyatunde Judith Selina Cardew-

Cole.

  1. Exhibit EK9 (A, B and C) are copies of Lease Agreements in respect of property at 16 Wallace Johnson Street.

xxiii. Exhibit EK10 are copies of a Notice of intention to do repairs to a dwelling house at 3 Lamina Sankoh Street, dated 29th August 1978; a response to an application for permission to develop land at 3 Lamina Sankoh Street, Freetown dated 30th August 1978 and an approval from the Ministry of Housing and Planning for the application for repairs and/or development referred to herein.

  1. Exhibit EK11 is a copy of a letter dated 8th August 2019 from the Defendant's Solicitors to a tenant at No. 3 Lamina Sankoh Street, demanding payment of rent to the said Defendant through her Solicitors.
  2. Exhibit EK12 are copies of the following documents from West End Clinic: receipt dated the 16* June 2019 for Le. 250,000; admission bill and receipt dated 17th June 2019 for Le. 725,000.00.
  3. Exhibits EK13 and 14 are copies of a letter dated 19th July 2019 from Solicitors for the Defendant/Respondent, enquiring into the banking activities of Yeyette Harding (Deceased Intestate) and a response thereto from the Rokel Commercial Bank.

xxvii. Exhibit EK15 is a copy of Letters of Administration taken out by the Defendant/Respondent on the 19th day of August 2019 in respect of the deceased Yeyette Hardings personalty of Le. 15,351,831.10 as referenced by the Bank's Legal Officer in Exhibit EK14.

 

xxviii. Exhibit EK16 is a copy of receipt of rent of Le. 36,000,000.00 (Thirty Six Million Leones), dated 16th April 2020 collected by the Defendant for property situate at 16 Wallace Johnson Street, Freetown for the period 1st February 2020 to 31st January 2021, having taken out an Additional Grant in respect of property situate at 16 Wallace Johnson Street, Freetown.

  1. Exhibit EK 17 is a Zenith Bank Savings Account ID card in the name of the Estate of Yeyette Harding signed by Defendant herein.
  2. Exhibit EK 18 is a copy of a Deed of Gift from Yeyette Olufemi Selina Abigail Harding to Elizabeth Koroma with a Survey Plan showing Plot 1 as property therein conveyed to the said Elizabeth Koroma.
  3. Exhibit EK 19 are copies of a Lease Agreement between the deceased Yeyette Harding and Musa Mansaray dated 1 June 2005 for the ground floor of property situate at No. 3 Lamina Sankoh Street for a term of 3 years certain effective 1st June 2005 to 30* May 2008 and copies of receipts of payment of rent for a shop on property at 3 Lamina Sankoh Street, Freetown by Mr. Joseph Quarteno, issued by the said deceased Yeyette Harding upon receipt of moneys therein stated for the period September 2016 and August 2017 and September 2018 and August 2019.

To the Affidavit of 6th November 2020 are the following Exhibits:

xxxii. Exhibit EK20, are copies of receipts for what the Defendant deposed to as settlement of debts for the deceased Yeyette Harding.

  1. Further, there are on file two Affidavits sworn to by Jacquinetta Cornelia Odefumi Crowther-Bowlyn and Mrs. Millicent Fumi Cole, a cousin and niece of the late Yeyette Harding both sworn to on the 29th day of September 2020 much to the effect that the Defendant was the only child of the deceased Yeyette Harding and that the Defendant has, even after the demise of Yeyette Harding, been giving a share each of the rent the Defendant collected for the property at 16 Wallace Johnson Street.
  1. Counsel for the Defendant submits that the Estates of the Cardew-Cole comprise among others, properties at Nos. 3, 3a, 3b and 3c Lamina Sankoh Street, Freetown and No. 16 Wallace Johnson Street, Freetown. Counsel refers to Exhibit EK8 Last Will and Testament of lyatunde Judith Selina Cardew-Cole, paragraph 4 thereof and submits that the property at No. 16 Wallace Johnson Street, Freetown was bequeathed to Yeyette Harding, personally.
    1. Counsel refers to Section 2 of the Devolution of Estates Act, 2007 and submits that the Defendant qualifies as a child of the late Yeyette Harding. For this submission, Counsel refers to paragraphs 8-13 of the Affidavit of Jacquinetta Cornelia Odefumi Crowther-Bowlyn and to paragraphs 9-13 of the Affidavit of Mrs. Millicent Fumi Cole, both of which were sworn to on the 29th day of September 2020.
      1. In support of the above paragraph, Counsel submits that the Defendant was customarily adopted by Yeyette Harding, who is the only person, he argues, the Defendant knows as her mother. Counsel contends that the Defendant was in control of the properties including the property at No. 16 Wallace Johnson Street, Freetown, when the said Yeyette Harding was on her sick bed before her demise. Counsel submits that the Defendant's case is that there was an equitable adoption by estoppel which he argues precludes the Estate of Yeyette Harding from denying the Defendant an adoption status. Counsel submits that the deceased, Yeyette Harding had all the intention to take and treat the Defendant as her child, which he argues, she did, till her demise.
      1. Counsel refers to Exhibit EK15, the Letters of Administration taken out by the Defendant and submits pursuant to the Devolution of Estates Act, 2007 and Black's Law Dictionary, 10th Edn, that a next-of-kin can include any person other than a blood relation or surviving spouse; that a next-of-kin can be any person(s) most closely related to a deceased by blood or affinity.
      2. Counsel submits that the Defendant took out Letters of Administration to carry out the wishes of the deceased Yeyette Harding to wit: that because the deceased, in her life time use to give proceeds of rent collected for 16 Wallace Johnson Street to her relations, specifically the deponents, Jacquinetta Cornelia 0. Crowther- Bowlyn and Mrs. Millicent Fumi Harding, she, the Defendant distributed the rent collected to the said deponents and used Le. 8,000,000.00 (Eight Million Leones) for the burial rites.
      3. Counsel submits that if the grant of Letters of Administration taken out by the defendant is revoked, the wishes of the deceased, Yeyette Harding and people who depend on her Estate will be put to ruin as that will occasion great hardship on these said persons.
      4. Counsel's submissions in summary are that based on affinity and closeness of the Defendant to Yeyette Harding and being that the Defendant was accepted by the deceased as her child throughout her lifetime, there exists a next-of-kin relationship between the Defendant and Yeyette Harding (Deceased Intestate).
  1. By way of a final reply, Counsel for the Plaintiff drew the Court's attention to the Supplemental Affidavit of Belmont Clarkson (Nee Cardew-Cole) sworn to on the 16th day of November 2020 hereinbefore referred to with Exhibit BC16, a copy of the Defendant's Certificate of Registration and Citizenship, attached. He submits that the Defendant knows that she has a biological mother in the person of Boima Koroma and that she was never adopted by Yeyette Harding. He argues that equitable doctrines like equitable estoppel relied upon by Counsel for the Defendant follow the law and do not supersede the law, including the law as it relates to adoption. He refers to paragraphs 14 and 15 of the Plaintiff's Supporting Affidavit and submits that the Defendant was a Ward to Yeyette Harding but that that does not entitle her to take out Letters of Administration even if she is not satisfied with her gift conveyed to her by Yeyette Harding.

 

    1. Counsel refers to the Additional Grant taken out by the Defendant in respect of the properties of the Cardew-Cole family during the life time of the Plaintiff, a lawful blood beneficiary.
  1. I have read the Originating Summons and Supporting Affidavits and Exhibits in respect of the application herein. I have also read the Affidavits in Opposition to the application herein together with Exhibits attached. I have listened to both Counsel for the Applicant and Respondent and read the authorities referred to by both Counsel.
    1. The issues are basically whether the Defendant was legally entitled to take out Letters of Administration for the Estates of the Cardew-Cole family and Yeyette Harding (Nee Cardew-Cole) during the life time of the Plaintiff and whether the Defendant is entitled to the properties of the Cardew-Cole family by reason that she is a 'daughter' of Yeyette Harding. If the answer to these general questions is in the affirmative, then the application must be refused. If the answers are in the negative, then the application must be upheld. I shall first deal with the relationship between the Defendant and Yeyette Harding Nee Cardew-Cole (Deceased Intestate).
  2. It is clear to the Court that the Defendant is not the biological daughter of Yeyette Harding. The Defendant has not submitted nor has she produced any certificate of adoption to the Court to suppose that the Defendant was adopted by the said Yeyette Harding. Indeed, she agrees, by her documents, that she is neither the biological nor the adopted child of the said Yeyette Harding.
    1. Counsel for the Defendant refers and relies on paragraphs 8-13 and 91-3 of the Affidavit of Jacquinetta Cornelia Odefumi Crowther-Bowlyn and Mrs. Millicent Fumi Cole respectively and to Section 2 of the Devolution of Estates Act, 2007 for his submission that the Defendant is a child of the late Yeyette Harding by reason of the fact that Yeyette Harding cared for and therefore customarily adopted the Defendant.
  3. I refer to Section 2 of the Devolution of Estates Act, 2007 which defines 'a child' to include:

(a) any child born to the deceased while the deceased was unmarried and recognized by the deceased as his child;

  • (b) any child born to the deceased while the deceased was married and the other

parent of the child was or is the lawful spouse of the deceased;

(c) any child born to the deceased while the deceased was married and the child in question was recognized by the deceased and his spouse as the child of the deceased; and

  • (d) any child adopted by the deceased under any applicable law;

 

  1. Counsel argues that the Defendant knew only the deceased Yeyette Harding as her mother yet in Exhibit BC 16 (a copy of the Defendant's Certificate of Registration and Citizenship), attached to the Affidavit of Belmont Clarkson (Nee Cardew-Cole), the Defendant identifies one Boima Koroma as her mother. Counsel's argument that the Defendant was in control of properties when Yeyette Harding was on her sick bed does not qualify the Defendant as a child of Yeyette Harding. It is my opinion that had Yeyette Harding intended to adopt the Defendant as Counsel submits, she would have done so using the legal means like she did in conveying her property to the Defendant by way of Deed of Gift as in Exhibit EK 18 attached to the Affidavit of Elizabeth Koroma sworn to on the 29th day of September 2020, from which citation it is clear, was property personally owned by the said Yeyette Harding.
    1. It is the Court's position therefore that the Defendant does not qualify as a child of Yeyette Harding (Nee Cardew-Cole) under Section 2 of the Devolution of Estates Act, 2007. I also hold that it will be a dangerous precedent to set for me to hold that the Defendant was a child of the deceased Yeyette Harding by reason that she, the Defendant, considers she is and by reason of Affidavit evidence, with no substantiated proof.
  2. I shall now consider the issue of whether it was lawful for the Defendant, Elizabeth Koroma, to take out Letters of Administration for the Estate of Yeyette Harding during the life time of her brother, Charles Bola Cardew-Cole, the Plaintiff herein. I refer to the interpretation section of the Devolution of Estates Act, 2007 which defines as next-of-kin to include:

'Any person other than a surviving spouse of a deceased person who by law would be entitled to Letters of Administration in preference to a Creditor".

    1. So, I agree with the Defendant's Counsel that a next-of-kin can include any other person who is not a blood relation of the deceased. In fact, that reasoning is associated with the provisions of Section 16 of the Act which provides that 'Where an intestate is not survived by a spouse, children, next-of-kin or other persons to whom his estate may devolve under this Act, his estate shall be bona vacantia and shall devolve to the State'. But then the Section 16 provision is where there is no such persons who could rightly be said to be a next-of-kin. What happens where there is a surviving brother of the Estate as in the instant case? Why didn't the Defendant make her intention to take out Letters of Administration for the Estate of Yeyette Harding known to the Plaintiff who she no doubt knows, is the only surviving blood brother of the said Yeyette Harding? The Defendant has not told the Court that the Plaintiff, the last surviving brother of the said Yeyette Harding is deceased. In fact, the evidence before the Court is that he is alive. It is my holding that with knowledge that the Plaintiff and his children are alive, it was unlawful of the Defendant to have taken out Letters of Administration for the Plaintiff's sister, Yeyette Harding.

10.2.

 

  1. I shall now look at the Will of lyatude Judith Selina Cardew-Cole as in Exhibit EK 8 attached to the Affidavit in Opposition sworn to by the Defendant on 29th September 2020.
  2. It is the Defendant's deposition in paragraph 11 of her Affidavit in Opposition to the application herein that Mrs, lyatunde Cardew-Cole (Deceased Testate), the mother of the Plaintiff and his siblings including Yeyette Harding, devised the property situated at No. 16 Wallace Johnson Street personally to the said Yeyette Harding.
    1. I have looked at the Last Will and Testament of lyatunde Judith Selina Cardew-Cole as in Exhibit EK8 attached to the Defendant's Affidavit in Opposition aforesaid, paragraph 4 of which reads:   ''Subject to my directions and instructions contained in paragraph 8 I GIVE to my daughter Yeyette Abigail Selina Olufemi Harding my house and land at 16, Lightfoot Boston Street, Freetown aforesaid ... for the term of her natural life, free from all marital control and after her death to her child or children".
      1. The Testator was very clear and deliberate as to what she wanted in all her provisions in her Will. Paragraph 8 must be read in context with all other provisions as necessary including paragraph 4 of the said Will. Paragraph 8 reads:

"I direct that should any of my sons ... or daughter Yeyette die without leaving any child, children or issue legitimate and or natural him or her surviving, the property aforesaid devolving upon or vesting in him or her or of or to which he or she may be possessed or become entitled under and or by virtue of this my Will should pass to the survivor or survivors of my said sons and daughter absolutely as tenants in common".

  1. I have held that the Defendant is neither a legitimate nor a natural child of Yeyette Harding. The evidence before this Court is that Yeyette, Shola and Ade Cardew-Cole died leaving no issue, legitimate nor natural. The only child of lyatunde Cardew-Cole with children, according to the evidence before this Court, is the Plaintiff, Bola Cardew-Cole who the Court notes is still alive.
    1. To show the deliberate intent of the Testator lyatunde Cardew-Cole, I refer to specific provisions of her Will including paragraphs 2, 3 and 4, which opens with her reference to the provisions of paragraph 8 hereinbefore referred to; her use of the words "Subject to my directions and instructions in paragraph 8 ..." This, to my mind shows the importance of how the Testator wants her property to be dealt with in the event that her children have no children, legitimate or natural of their own. As said the Defendant is not a child of Yeyette Harding within the meaning of the Devolution of Estates Act, 2007. There is a living son and grand-children of the deceased Testator, lyatunde Cardew-Cole in the person of the Plaintiff and his children.
  1. It is pertinent that I deal with the properties of the Cardew-Cole family referred to in the Will of lyatunde Cardew-Cole as referenced by the Defendant including also properties at 15 Howe Street, Freetown, bequeathed by the Testator to her 3 sons for life; land at Pasonage Street, Waterloo bequeath to her 4 children including Yeyette Harding; 16 Lightfoot Boston Street, Freetown bequeath to her 4 children for life; all as in paragraphs 2, 3 and 4 of the said Will, with proviso under paragraph 8 of the Will. I also refer to properties at Nos. 3, 3a, 3b and 3c Lamina Sankoh Street, formerly Trelawney Street, bequeath to her 4 children, then to their child or children in equal shares. An interesting provision of the Will is paragraph 11, the reversion clause which gives the Testator's real and or personal property in reversion to her 4 children, Ade, Shola, Yeyette and Bola. The Court reiterates that only Bola, the Plaintiff herein is still living.
    1. Hopefully, it is clear to the Defendant that based on Exhibits EK8 and BC14, the Last Will and Testament of lyatunde Judith Cardew-Cole, that the properties at Nos. 3, 3a, 3b and 3c and No. 16 Wallace Johnson Street, Freetown are in fact properties of the Cardew-Cole family. It must be also clear, it is hoped, that the Plaintiff is the lawful next-of-kin of Yeyette Harding who ought to have taken out Letters of Administration in respect of personalty including moneys in the account of Yeyette Harding kept at the Rokel Commercial Bank.
    2. Counsel for the Defendant contends that Yeyette Harding in her life time, gave proceeds of rent collected in respect of property situate at No. 16 Wallace Johnson Street to her relations especially Jacquinetta C. 0 Crowther-Bowlyn and Mrs. Millicent Fumi Harding. The Court notes that during her life time, the said property was hers. Appreciating the provisions of paragraph 8 of the Will hereinbefore referred, the said persons cannot continue benefitting from the said property because they are not beneficiaries under the said Will.
    3. I refer to paragraph 34 of the Defendant's Affidavit in Opposition where she deposed as follows:

"... what I have done is what the late Yeyette 0. Harding instructed me to do with the property which she told me belongs to her. In respect of the ground floor shop af 3 Lamina Sankoh Street, I wrote to the tenant because my deceased mother had always collected the rent and instructed me to continue same for my maintenance and the grandson".

  1. I have said the Defendant by now knows the property at Nos. 3, 3a, 3b and 3c Lamina Sankoh Street was bequeathed to the brothers and sister referred to in paragraph 7 of the Last Will and Testament of lyatunde Judith Cardew-Cole with proper instructions on use of the proceeds of rent.

I refer to the following legal documents:

  1. Exhibit BC14 and EK8, the Last Will and Testament of lyatunde Judith S. Cardew-Cole;
  2. Exhibits EK9A, an amended Lease Agreement of 15th June 1981 and receipt for payment of rent to Yeyette Harding for 16 Wallace Johnson Street of 26th September 1985;
  3. Exhibit         EK9B, a Lease Agreement made on 8th   May 2017 for 5 years certain;
  4. Exhibit EK9C, a Lease Agreement made on 28th January 1991;
  5. Exhibit            EK19, a Lease Agreement with Musa   Mansaray dated 1st June 2005                                                                           for   the

Ground Floor of 3 Lamina Sankoh Street for a          term of 3 years beginning                                                                                       1st June 2005

through 30th May 2008 with receipt attached. Lease Agreement, receipts for rent and bills as in Exhibit EK 19 attached to the Affidavit in Opposition of the Defendant and I am hopeful that the Defendant now sees why Yeyette Harding leased and paid the bills in respect of rates and taxes and other outgoings payable in respect of those properties. Paragraph 7 of the said Will reads in part:

"And I further direct that ane-fourth of the income of the rents collected from the properties should be utilised by my Trustees for the paying of all rates and taxes and other outgoings payable in respect of the same in good repair and condition ... and insuring ond keeping insured the property against lass or damage by fire and such other risks as my Trustees shall from time to time direct".

  1. The Defendant may want to know who the Trustees referred to above are. I direct the Defendant's attention to the second opening paragraph of the Will herein stating:

"I appoint my daughter Yeyette Selina Abigail Olufemi Harding, my sons Ade Don Cole and Bola Charles Cole to be my Executors and Trustees".

  1. The Defendant did not think it important that the property, as per the Testator lyatunde Cardew-Cole's Will, must be insured against fire. Rather, she argues that the proceeds of rent must be distributed to persons, including herself, her son, Jacquinetta Crowther-Bowlyn and Millicent Fumi Cole who are clearly not beneficiaries to the Estate of lyatunde Cardew-Cole and Yeyette Harding. I refer the Defendant to paragraph 7 of the said Will which in part reads:

".... And I further direct that... the income of the rents collected from the properties should be utilised by my Trustees for the paying of all rates and taxes and ... insuring and keeping insured the property against loss or damage by fire and such other risks as my Trustees shall from time to time direct".

  1. The Defendant must now have seen reason why Yeyette used the rents collected in the manner she did and why Yeyette could not have told her to continue collecting the rent upon her demise for her benefit and for the benefit of her, the Defendant's son and Jacquinetta Crother-Bowlyn and Millicent Fumi Cole as deposed in her Affidavit in Opposition. She must by now appreciate Exhibit BC9, a Fire Renewal Notice of 10th April 2019 for the property at 3, 3a, 3b and 3c Lamina Sankoh Street taken out in compliance with paragraph 7 of the said Will.
  1. Exhibit EK11, letter dated 8th August 2019 from the Defendant's Solicitors in respect of payment of rent for property situate at 3 Lamina Sankoh Street. I have said that Exhibit EK8 which is the same as Exhibit BC14, the Will herein is clear that the property at 3, 3a, 3b and 3c Lamina Sankoh Street Freetown are properties of the Cardew-Cole family, not the Defendant. I consider it a deception that the Defendant would collect rent through her Solicitors for that said property with full knowledge of the Will and the Plaintiff's entitlement.
  2. I refer to the Defendant's Supplemental Affidavit sworn on the 6th day of June 2020 where at paragraphs 43 and 44 she deposed as follows:

"... that I collected the bank balance left by the deceased Yeyette Harding and also one year rent for the property at 16 Wallace Johnson Street, Freetown";

"... I used the said sums of money to settle the debts incurred in carrying out the funeral expenses of Yeyette Harding, paid legal fees and shared among the cousins of the deceased...."

    1. The Court's understanding is that the Defendant in paragraphs 43 and 44 of her Supplemental Affidavit is referring to Le.15,000,000.00 (Fifteen Million Leones) in the deceased Yeyette Harding's account at the Rokel Commercial Bank for which she took out Letters of Administration and for rent she collected for No. 16 Wallace Johnson Street, Freetown as in Exhibit EK16. The Defendant deposes that she used these moneys for settlement of debts in carrying out the funeral expenses of Yeyette Harding and other expenses herein stated, including payment of lesson fees for her (the Defendant's) son as per on receipt No. 390 of 1st April (no year stated) and receipt No. 143 of 28th August 2020 for purchase of text and exercise books for her son with no thought of offering a penny to the legal beneficiary of Yeyette Harding and lyatunde Cardew-Cole's Estate.
    2. The Court notes that this action was commenced by Originating Summons dated 6th day of March 2019 and that with full knowledge of this action and the Will and its content hereinbefore referred showing properties as at Nos. 3, 3a, 3b and 3c Lamina Sankoh Street and No. 16 Wallace Johnson Street as properties belonging to the Cardew-Cole family, the Defendant deliberately collected Le. 36,000,000.00 (Thirty- Six Million Leones) on the 16th April 2020 as in Exhibit EK16, as rent for property at No. 16 Wallace Johnson Street, Freetown. Not a single penny did she give to the legal beneficiary, the Plaintiff herein. At the risk of repeating myself, I will again state that the Defendant had no business intermeddling with the properties of the Cardew-Cole family.
  1. I have held that the Defendant is not a child within the meaning of the Devolution of Estates Act, 2007 and that she took out Letters of Administration of the Estate of Yeyette Harding (Nee Cardew-Cole) unlawfully. I have also said she is not a beneficiary of the Cardew-Cole Estate and that therefore, moneys collected for the property at No. 16 Wallace Johnson Street, Freetown could not be for her benefit, nor her son nor any other person save the Plaintiff, the lawful sole survivor of the Cardew-Cole family. I have also held that the properties at 16 Wallace Johnson Street and Nos. 3, 3a, 3b and 3c Lamina Sankoh Street, Freetown are properties of the Cardew-Cole family. In light of the above,

IT IS ORDERED AS FOLLOWS:

  1. That the Letters of Administration of the Estate of Yeyette Harding with its Declaration of Additional Estate granted to the Defendant/Respondent on the 19th August 2019 by the High Court of Sierra Leone in its Probate Jurisdiction was irregularly obtained and is accordingly called off, declared null and void and revoked.
  2. That the said Letters of Administration dated the 19th August 2019 referred to in 'a' above be expunged from the records in the Probate Jurisdiction of the High Court of Sierra Leone.
  3. That the Administratrix of the expunged Letters of Administration (the Defendant/Respondent herein) gives an account of all the assets and everything relating to the deceased's Estate to this Honourable Court, for the period August 2019 to the date of Judgment.
  4. An injunction restraining the Defendant/Respondent and/or any person(s) whomsoever, whether by themselves, their employees, relations, servants, agents, privies from intermeddling with the Estate of the late Yeyette Harding (Deceased intestate).
  5. An injunction restraining the Defendant/Respondent and/or any person(s) whomsoever, whether by themselves, their employees, relations, servants, agents, privies from intermeddling with the Estate of lyatunde Judith Selina Cardew-Cole.
  6. That the sole surviving brother and next-of-kin to the late Yeyette Harding (Deceased intestate), Charles Cardew-Cole, the Plaintiff/Applicant herein is the lawful next-of-kin entitled to take out Letters of Administration of the Deceased's Estate.
  7. Costs of this application to be borne by the Defendant at Le.50,000,000.00 (Fifty Million Leones).

 

Hon. Jst. Miatta Maria Samba, J.A