(COURT OF APPEAL)*

HANNA KATTAN vs. JOHN Y. KATTAN

(AC/REV/47/1957)

Revision

Principles

·  Evidence, admission of new evidence in appeal court. Evidence of character when inadmissible.

·  Appeal, whether appeal court can disturb finding of fact at trial.

·  Wills, onus of proof of authenticity — Execution, effect of unsigned alterations.

·  Conflict of Laws: Wills, rules applicable where testator died domiciled abroad: rules to determine nature of property. Construction of Statutes: effect of re-enactment: ordinary meaning of words.

·  Personal Law, meaning of — Customary Law, meaning of. Judgments, how far binding.

An appeal court will not admit new evidence, not brought forward at the trial, unless the evidence before it is manifestly defective. Even at first instance, evidence of character of a party or witness is not admissible unless such character is actually in issue.

An appeal court will not disturb a finding of fact, save in the most exceptional circumstances of manifest error.

The onus of proof of due execution of a will lies with its propounders. If suspicion is aroused by the proof of execution, they must clear it up, but when after proof of execution fraud is alleged, the onus of proving it lies with the party alleging it.

The validity of a will is to be tested by the legal system indicated by the Private International Law rules of the Sudan. These are
a) as to testamentary capacity, in relation to movables the law of the testator’s domicile at the time of execution of the will; in relation to immovable the lex situs.
b) As to the essential validity of the will, as to movables, the lex domicili and as to immovables the lex situs.
c) As to the formalities of execution, the same rules as in (b.).
It is for Sudan law to classify property in the Sudan as movable or immovable. A reference by Private International Law to Sudan Law as the lex situs is one to Sudan domestic (internal) law.
An enactment which modifies an earlier Ordinance may still have that effect, even though the earlier Ordinance is re-enacted at a later date that than of the enactment in question. Enactments must be interpreted so that words are given their ordinary meaning, unless very special indications to the contrary are found.
Previous decisions must be treated with great respect, but remarks. of judges made obiter are not binding in subsequent cases.

Meaning of the terms “Personal Law” and “Customary Law” in the Sudan discussed. Bamboulis v. Bamboulis should be cited with great reserve. Abdullah Chercheflia v. Maria Bekryarellis is authoritative as regards persons dying domiciled in the Sudan.
(*) Court: M.A. Abu Rannat C.J. ; B. Awadalla and R. elAmin, JJ.
Where an unsigned alteration has been made to a will, probate will be granted of the will as a whole, but not to such alteration, unless it is proved to have been made before execution.

Judgment

The case related to the validity of the will of a testator, who died domiciled in Jordan, leaving property, movable and immovable, in the Sudan. The will was executed in the presence of two witnesses. The law of Jordan referred the matter to the customs of the Latin Patriarchate of Jerusalem, to which the deceased belonged. These customs required three witnesses of the same communion. An unsigned alteration appeared on the face of the will.

Advocates.: Mohammed Ibrahim Khalil………….. for the applicant.

Ali Mohammed Ibrahim…………………………. for the respondent.

B. Awadalla 7. This is an application for revision against the judgment and orders made by the Honourable the Judge of the High Court, Khartoum on 6 March 1957, dismissing an application for revision against the judgment and orders made by the learned District Judge on HC/EST/8/1955  on 9 April, 1956. The dispute relates to a devise by will of property, movable and immovable, alleged to have been made by the deceased, Salih Mubarak Kattan, in favour of the Respondent (Caveator in the estate proceedings), John Y. Kattan. The proceedings originated in an application for letters of administration made by Hanna George Kattan on behalf of the heirs of the Deceased, whose description as one of the Deceased’s heirs in the judgment of the Honourable the Judge of the High Court is no doubt incorrect. The steps taken in estate proceedings are clearly set out in the judgment of the Honourable the Judge of the High Court and there is no need to restate them here.

The grounds of the application, as set out in the memorandum of appeal dated 14 March, 1957 and supplements thereto are as follows

a) that the Honourable the Judge of the High Court was wrong in refusing to disturb the findings of fact of the learned District Judge concerning the genuineness of the will in question;

b) that the Honourable the Judge of the High Court was wrong in law in assuming that the onus of proof of a forgery lay on the Applicants, in disregard of the rule that the onus of proof of genuineness of a will is on the party propounding it;

c) that the Honourable the Judge of the High Court was wrong in holding that the effects of section 6 (1) (b) of the Wills and Administration Ordinance is to render valid a will which was not made with such formalities as would render it valid under the testator’s personal law;

d) that the Honourable the Judge of the High Court was wrong in coming to the conclusion that the will was a valid will in view of certain obliterations, erasures and alterations thereon, which do not bear the signature of the testator, as required by section 6 (2) (b) of the Wills arid Administration Ordinance, 1928.

This application was adjourned, to the Court of Appeal under section 176 of the Civil Justice Ordinance and an opportunity of addressing the Court was afforded to counsel for both the Applicants and the Respondent.

In substantiation of their attack on the genuineness of the will the Applicants produced a copy of the judgment purporting to have been issued by the District Court at Haifa against the Re for obtaining money by false pretences and sought at the opening of the hearing to have this piece of evidence admitted in support of their case. No mention whatsoever was made either in the District Court or before the Honou rable the Judge of the High Court that such conviction existed. This Court rejected the admission of such evidence, because the admission of new evidence is contrary to Order XI, rule 21. The criterion for accepting new evidence is not that it is required to patch up the weak points in the Appellants’ case, but that the Appellate Court requires it (i.e. the evidence) to enable it to pronounce judgment when the evidence before it is inherently defective. Furthermore — and on grounds of public policy — not even a Court of first instance is entitled to accept evidence of the character of a party where it is not in issue, since its admission tends to “surprise arid prejudice the parties by raking up the whole of their careers”. (phipson, Evidence, 9 Edition, page 189). In Goodright v. Hicks (1801) 4 Esp. 50 it was held that where a will was impeached for fraud the Defendant was not allowed to prove his good character in answer. It is pertinent here to mention that the Respondent has not put himself up as a witness to the execution of the alleged will; nonetheless, he was heard by the District Court in support of his application and the Applicants’ counsel had full opportunity to cross-examine him on the point.

We will now deal with the grounds of appeal in the above order and in the light of the arguments put forward by the learned counsel

1. Genuiness

Before Applicants could induce this Court to go into the question of the genuineness of this will, they have first to convince us that the finding of fact as decided by the District Judge is manifestly incorrect; if — for example — the Court failed to give consideration to material evidence put before it. The Applicants are attacking the refusal by the Honourable the Judge of the High Court, acting on the authority of Orrington’s  v. Griff Fender (Swansea) Ltd. (1953) 1 W.L.R. 69o, at page 692, to intervene on the finding of fact on the ground that the said case was an authority for the opposite view, namely that the Court of Appeal is entitled to intervene on a question of fact. It is true that in Dorrington’s case the finding of fact was returned for reconsideration, but this was a case in which the trial Judge failed to put to himself a material question relative to the issue and on which there was sufficient evidence before him, viz, whether the Defendant— in a case of negligent driving — could have avoided the a by the use of reasonable care. The opinion of the learned counsel about the ratio decidendi in that case is — in our view — incorrect. It was not a case of intervention on a finding of fact, as the learned counsel submits, but it is an application of the principle that the Appellate authority can correct a trial Judge when he does not give consideration to vital evidence necessary for the just determination of the case, in other words, a case of manifest error. Sir Raymond Evershed M.R. stated (p. 693)

“In all the circumstances of the case, I cannot myself be satisfied that the essential point, viz, the question whether the Defendant was to some extent at fault in passing where he did, was put to himself by the Judge. It is not here a question of departure from a Judge’s finding of fact”.

We entirely agree with the remarks of Birkett L.J. (at p. 694) in the authority referred to and cited by the Honourable the Judge of the High Court and which in our view set out clearly and concisely the principle of non-intervention.

The learned counsel cited in support of his argument Professor Good hart’s remarks on Harrison v. MVEC [ I W.L.R. 324 (L.Q.R. Vol. 70 p. 154). Professor Good hart’s remarks are an authority

against and not in favour of the Applicants, for there he clearly distinguishes between questions of fact in the true sense and inferences to be drawn from the facts; in other words a distinction between the functions of perception and evaluation. He says “Although an Appellate Court obviously cannot as a general rule differ from the conclusions reached by the trial Judge concerning the weight to be given to the evidence of any particular witness, as it has not itself heard the witness, there would seem to be no similar reason why it should regard itself as bound by the Judge’s conclusions that the facts as found by him did or did not constitute negligence. That is a question of opinion and not a finding of fact”. Latimer v. AEC (1953) 2 All E.R. 449, and Dunster v. Abbott (1953) 2 All E.R. 1572 — a cursory mention of which was made by Professor Goodhart at the end of his note referred to — were also cited before us in support of the contention that the Appellate Authority can intervene on a question of fact. In the distinction mentioned above between perception and evaluation of evidence and after a careful examination of these two cases, we are of the opinion that they in no way support the view taken by the learned counsel. In Latimer v. AEC Ltd., the facts were as follows : “A factory was flooded with surface water due to heavy rain, which water became mixed with an oily liquid used as a cooling agent for the machines, which was normally collected in channels in the floor. When the water drained away from the floor which was level and structurally perfect, it left an oily film on the surface which was slippery. The Respondent spread saw-dust on the floor, but owing to unprecedented force of the storm and the consequently large area to be covered, there was insufficient saw-dust to cover the whole floor. In the course of his duty the Appellant slipped on a portion of the floor not covered with saw-dust, fell and was injured”. The trial Judge held on the facts — inter alia — that the Defendants were guilty of common law negligence, but the Court of Appeal reversed him on this point. In Dunster v. Abbott, the Defendant’s house was separated from the road by a bridge which crossed a ditch, and by a short path. The Plaintiff; a canvasser, called on the Defendant at night and after having failed to obtain an order, he walked down the path in the dark and fell off the bridge into the ditch. He alleged that the Defendant had been negligent in switching off too soon the outside electric lamp Which to some extent lighted the path. The Judge found for the Plaintiff but the Court of Appeal reversed his judgment on the ground that there was not sufficient evidence to warrant a finding of negligence.

In both these cases, the specific facts as found by the trial Judges

were not at all in doubt by the Court of Appeal, nevertheless the said Court reversed the finding on the ground of improper evaluation of the evidence.

In our view, the statement of Professor Goodhart that these two cases were reversed on a question of fact, should be read in the light of the final paragraph of his note cited by-the learned counsel, which reads

“If a distinction was drawn between questions of fact which are questions of fact in the true sense and questions of fact which are really questions of opinion, then some of the confusion in this branch of the law might be avoided”.

Before considering the Sudan cases cited on the point, we would like to point out that the sanctity of findings of fact in the Sudan has always been regarded with similar respect. A highly persuasive opinion on the matter is to be found in Comings J’s. notes on the Civil Justice Ordinance, s. 172, where he says

“The Court of Appeal deals with objections on matters of. law against the judgment of the Court below in the same manner as the English Appeal Court and often corrects the law of the Judge below. As to decisions of fact, it deals with them in the same way as an English Court of Appeal, hearing an appeal from a Judge sitting without a jury i.e. it puts the burden on the Appellant to satisfy it that the decision below was wrong. There must be shown by him some balance in his favour to justify the alteration of the judgment. But the Court of Appeal always remembers that it had not the opportunity which the Judges below have of observing the demeanour of the witness and will not put aside his view of the credibility of the witness on a mere calculation of probability. The party seeking such an interference with findings of fact takes a substantial burden on himself, though not nearly as heavy a burden as the English Appellant against a finding of fact by a jury”.

In Hellenic Community v. Petit Bazaar (1956) S.L.J.R. 4 the dispute was between landlord and tenant as to whether the tenancy continued up to the time of demolition by the landlord of the premises. The Honourable the Judge of the High Court found for the tenant on the ground inter alia — that the tenant had retained the keys until the time of demolition. Reversing this finding, the Court of Appeal acted on the authority of Benmax v. Austin Motor Co. (1955) 2 W.L.R. 418

and held that the Judge was wrong in the-inferences drawn from the facts specifically found by him. It was therefore a case of evaluation and not perception.

In HC/REV/85/1956 the Honourable the Judge of the High Court reversed the decision of the District Judge, not on a question of fact, but because the learned District Judge was wrong in law in accepting oral testimony that the transaction was not a sale by sample contrary to a specific term in the written agreement that it was.

AC/REV/112/1956 was a case for rectification of the register of a house at Omdurman on the ground that it was bought by the Defendant’s predecessor-in-title out of the partnership money belonging to Plaintiff and Defendant’s predecessor-in-title. The partnership was denied and the main issues framed were

a) Whether there was a partnership at the time of the alleged purchase;

b) Whether the house was purchased out of the partnership money.

In finding for the Plaintiff the learned District Judge based his decision not only on an affirmative answer to the said issues, but also on prescription. This decision was affirmed by the Honourable the Judge of the High Court on revision, but the Court of Appeal reversed him on the grounds (a) as regards prescription because it was not pleaded, and (b) as regards the existence of the partnership, because there was no evidence to justify the inference that it did exist. So the decision was partly based on the presence of a procedural irregularity and partly on improper evaluation of evidence.

It remains to consider whether a case of manifest error was established in this case. This matter was sufficiently dealt with by the Honourable the Judge of the High Court and we entirely agree with him that there was evidence before the learned District Judge justifying a finding for the Respondent.

2. Onus of Proof:

This is the second point raised by the Applicants. They contend that the Honourable the Judge of the High Court was wrong in law in stating that’ ‘Applicants strongly knocked at the door but unfortunately failed to enter or invade the case of the Caveator” and thereby assuming that the burden of proof of due execution of the will lay upon their shoulders. On this point, the learned counsel argues ‘that the onus of

proof of the genuineness and authenticity of a will lies on the party propounding it and that if the conscience of the Judge is not satisfied on these points, he is bound to refuse probate”. (Jarman on Wills, p. 16; Baker v. Batt (1838) 2 Moo. 317; Eng. & Emp. Digest Vol. 23, p. 130; Tyrrel v. Painton (1894) P. 151. fulton v. Andrew (1875) L.R. 7 App. Cas., 448).

It is clear from the record of the trial Judge that the onus of proof of due execution of the will in question was correctly laid on the shoulders of the Caveator (cp. Issue 4) and that the learned Judge was satisfied on the evidence before him that the Caveator did discharge that onus. The Honourable the Judge of the High Court gave this point very careful consideration. It is needless to say that the burden in such cases is discharged by proof of capacity and the fact of execution, of which evidence in this case was found by the Honourable the Judge of the High Court to have been neither rebutted nor shaken. It is true that the ratio decidendi in Tyrrel v. Painton is that “whenever a will is prepared and executed under circumstances which raise the suspicion of the Court, it ought not to be pronounced for unless the party propounding it adduces evidence which removes such suspicion”. But the facts of the cases cited on this point disclose that in Tyrrel v. Painton and its fore-runners the propounders could not prove due execution of the wills and testamentary capacity in the testators without disclosing some sort of fraud practiced on the deceased or some suspicious circumstance concomitant with execution. In all those three cases the fraud was — so to speak — part of the propounder’s case. But in the case before us the allegation is not that there was a fraudulent execution, but that there was no execution whatsoever; in other words, that the whole transaction was bogus and that what in the opinion of the Court was sufficient proof of execution and testamentary capacity was in fact no proof at all. To make the distinction between this case and the cases cited clear, let us look into the facts of those cases.

The earliest of the three cases was Baker v Batt (1838) 2 Moo. 317; Eng. & Emp. Digest Vol. 23, p. 13o; in which a will of a married woman possessed of a separate estate with a power of appointment having been prepared by her husband’s solicitor, unknown to testatrix, from instructions given by the husband by which he was appointed sole executor and residuary legatee and executed by testatrix under the influence and control of her husband on her death bed was declared void and probate refused; it being, according to the evidence in the case, contrary to the intentions previously expressed by the testatrix.

Then followed Fulton v. Andrew (1875) L.R. 7 App. Cas. p. 448 in which the facts as reported are of some length, but so far as material to the point under consideration are that the will as executed was in the handwriting of one of the executors and residuary legatees thereunder and prepared on instructions emanating from him to his brother, a solicitor, in circumstances suggesting that the testator was of unsound mind.

Lastly came Tyrrel v. Painton (1894) P. 151 in which the testatrix, who had been a widow for some years and had no issue, made wills in 1880 and 1884 in favour of the Defendant, with whom she was then on friendly terms, and who was a trustee of her marriage settlement. These wills were prepared by her solicitor. Subsequently the testatrix became dissatisfied with the conduct of the Defendant and in 1891 and 1892 she wrote several letters to her solicitor in which she made complaints about Defendant’s conduct as such trustee. On 17 October, 1892 the testatrix — who was then ill — wrote to her solicitor asking him to come and see her about making a fresh will. Subsequently the illness of testatrix in-creased and on 7 November, 1892 her solicitor went to her house and from her instructions prepared a fresh will by which she devised and bequeathed the bulk of her property to the Plaintiff, her cousin, whom she appointed sole executor. This will — which was the will propounded by the Plaintiff was executed by the testatrix on the same day and was attested by the vicar of the parish, who was her medical attendant and by her solicitor. On 9 November, 1892 a son of the Defendant brought to the testatrix another will — which was in his hand-writing — by which the testatrix purported to devise and bequeath nearly the whole of her property to the Defendant absolutely. This will was signed by the testatrix on 9 November, 1892, and purported to have been attested by the son and a friend of his. No one else was present at the time, and the will — after the alleged execution was taken away by Defendant’s son and remained in his possession until after the death of the testatrix on 23 November, 1892.

From the above, it will be seen that the suspicious circumstances arose from and not dehors execution and that the burden of removing such suspicion was rightly placed on the propounders. But when after proof of the will fraud is alleged dehors execution, then the onus of proving it is on him who sets it up. To ask a propounder not only to prove due execution, but also to prove the negative of a fraud would not only be Contrary to rudimentary rules of evidence but would also be opposed to accepted canons of equity and common sense.

3. Validity:

We now come to the question of validity of the will, a matter which in our opinion affords the most difficult and vital part of the case. In this respect it is worth mentioning that counsel, both for Applicants and Respondent, agreed at the inception of the proceedings that the form of the will is governed by section 6 (1) of the Wills and Administration Ordinance, 1928, and the issue in the case for ascertainment of the personal law was only relevant to the question of essential validity. Nonetheless, the submissions of the learned counsel for the Applicants before the District Judge were inconsistent with such agreement, for he tried to show that section 6 (1) (a) and (b) are mutually exclusive and the trial Judge proceeded on the assumption that the matter was in dispute and found for the Respondent. On this he was upheld by the Honourable the Judge of the High Court. To agree on the law on a point of such nicety and complication without any argument what’s-over was ——in our opinion — most unfair to the interests of the parties in litigation.

In finding for the Respondent, the Honourable the Judge of the High Court proceeded on the assumption that the law on this case is to be found in the Wills & Administration Ordinance, 1928. In view of the finding that the testator was domiciled outside the Sudan, we think that this finding is not only contrary to established precedent on the point but is diametrically opposed to the principles of equity, justice and good conscience which the Courts of the Sudan have always been applying under section 9 of the Civil Justice Ordinance. In matters of personal status involving a foreign domicile these Courts have always applied the rules of Private International Law as conforming to the principles underlying that section. That this is the law of the Sudan can be seen from a perusal of the decision of the Court of Appeal in AC/20/1931 (O.A. v. The Anba Bola Convent), the facts of which are as follows:

The Deceased was a Coptic monk attached to the anba Bola monastery of Esneh who at the time of his death in Cairo left property in the Sudan where he had resided, which was being administered by the Advocate-General in his capacity as Advocate-General of unrepresented non-Mohammedan estates. The monastery claimed that property under what they alleged to be the personal law regulating the devolution on intestacy of the estates of Coptic monks

on the ground that as he died ‘of their communion’ the monastery

becomes solely entitled to the exclusion of the next-of-kin”.

The claim was contested by the Advocate-General, but the honourable the Judge of the High Court found for the claimants on the ground that the word “persons” in section 4 of the Wills and Administration Ordinance, 1928, includes -—- by the definition in the Ordinance — “an association or body of persons”, and cannot be restricted — as submitted by the Advocate-General — to the next-of-kin. In disagreeing with this view Owen, C.J. (at p. 5 of his judgment) said:

“Section 4 is an expression of the local or internal law of this country. It does not and cannot apply to those whose personal law has been administered during their lifetime by the Courts of another country, Courts which have acquired jurisdiction by reason of domicile or nationality. Devolution by reference to personal law is necessary in this country to enable our Courts to apply to those non-Moslems domiciled in it the rules of the personal law of their religion, community or nationality. It has its counterpart in few other countries and its necessity is brought about by reason of the settlement here of many foreigners of different nationalities and religions and for whom it has been found inexpedient or impossible to provide a universal rule. The expression according to his personal law or according to any valid custom which may be shown to apply to the deceased” seems to me plainly enough to be nothing more than a statement of our local or internal law, but the Judge of the High Court seems to have thought and the learned Advocate- General sought to argue that it is more, that it is also a statement of the Sudan rule of the choice or conflict of law and that we are entitled to apply his personal law or any valid custom in the devolution of his estate whether an intestate be domiciled in the Sudan at the time of his death or not, or whether he had ever been near the country at all in the course of his life.”

Gorman J. who was in agreement with the Chief Justice on the point, said (at p. 5 of his judgment):

“According to the Advocate-General we are to give full effect to the generality of the language used in this section and we must read it as legislating for every case in which the Sudan Courts have jurisdiction to determine the succession on intestacy and that it would be wrong to read the section and the Ordinance as declaratory

merely of the territorial law of the Sudan and as such to be applied by the Sudan Courts not in every case in which they have jurisdiction to pronounce as to the succession but only in those cases in which by the accepted principles of private international law, the law of the Sudan is the proper law by which the rights of succession are to be determined, i.e. only whether the deceased was domiciled in the Sudan at the date of his death.”

And the said Judge, in disagreeing with the Advocate-General on this point, said (at p. 6):

“If we seek to apply section 4 to the case of a person domiciled abroad at the date of his death and give the words ‘personal law’ the meaning contended for, we should have an Ordinance which ran counter to the principles of international law as understood in England and the Sudan. The only alternative is to hold — if possible — that the Ordinance has no application save in respect of persons dying domiciled in the Sudan”.

As this will disposes not only of movables, but also of immovables in the Sudan the right to distinguish between what is a movable and what is not, belongs exclusively to the Sudan Courts and on this we see no reason, to depart from the rule of conflict of laws recognized by English Law that Leaseholds are immovable (Freke v. Carbery (1873) L.R. 16 Ex. 461).

In the light of the above, we will now turn to consider the relevant points considered by the Court below and from which a decision as to validity can be arrived at.

a) Testamentary Capacity:

This means personal and not proprietary capacity, and as regards movables such capacity is determined by the law of the testator’s domicile at the time of execution of the will : In bonis Maraver (1828) I Hagg. Eccl. 498; Dicey’s Conflict of Laws, p. 818 (6th Edition); Cheshire, Private International Law, p. 519 (4th  Edition).

There is no doubt about the correctness of the conclusion as to the Deceased’s domicile arrived at by the Honourable the Judge of the High Court by which the Honourable Judge found that the testator had a Jordanian domicile at Bethlehem at time of his death. There is no appeal against his decision on that point and the proper law to look to therefore is that of West Jordan. Reference to the law of Palestine in

the judgment of the Honourable the Judge of the High Court and in the evidence of the plaintiff’s witness must be taken to mean the laws of West Jordan. There is no doubt from the evidence given by Elia George Alie that this law refers the question of testamentary capacity to the rules of the Latin Patriarchate of Jerusalem of the Roman Catholic Church. According to these rules as given by the said witness, a testator has capacity to make a will, provided that he is in possession of mental capacity and not in death sickness. There is therefore no doubt that Deceased in this case had full capacity to dispose of the movable property claimed to have been bequeathed under the will.

As regards immovables, this point is governed by the lex situs. (Bank of Africa v. Cohen (1909) Ch. 129; Dicey’s Conflict of Laws, p. 531.

p. 531; Cheshire, op. cit., p. 551.). Whatever ramifications there may be in the process of ascertaining the meaning of this term when the cause relates to property outside England, it means, when applied to land in England, domestic English Law (Theobald on Wills, ,11th Edition, p. 14). In the case before us, therefore, it would simply mean Sudan domestic or territorial Law. This is contained in s. 6 (1) (c) of the Wills and Administration Ordinance, 1928, which reads:

“A written will shall be valid if it be made voluntarily by a person who is not a minor or who, though according to his personal law a minor, has been married having full control of himself and having adequate understanding of the effect of the dispositions made thereby and of the persons who would in the case of intestacy partake in his estate”.

There is nothing in these proceedings to suggest that the testator did not appreciate the effect or purport of the will in question, and we can only find that he had full testamentary capacity to dispose of his immovable property situated in the Sudan.

b) Essential Validity:

In other words, proprietary capacity, i.e. whether the testator had unlimited or only a restricted power of disposition. Here also the rules of Private International Law distinguish between movables and Immovables. In movables we have to look to the lex domicilii at the time of death; Thornton v. Curling (1824) 8 Sim. 310 Dicey, p. 827; Cheshire,

P. 532. The law of domicile in this case is that of West Jordan which refers to the rules of the Latin Patriarchate. One of the plaintiff’s

witnesses says “If the deceased……… has no ascendants nor descendants nor spouse alive it is my opinion that he can devise all his property by will to whom he likes”. In so far as the will disposes of movables in the Sudan, it is intra vires the testator and essentially valid.

As regards immovables, the rule is that it is governed by the lex situs:Nelson v. Bridport (1846) 8 Beav. 47; Dicey, p. 547 Cheshire, p. 534. The Sudan law on this point is contained, in so far as non Mohammedans are concerned, in the Wills and Administration Ordinance, section 7, as explained in our case law. In the Anba Bola case above cited Owen, C.J. says:

“Devolution by reference to personal law is necessary in this country to enable our Courts to apply to those non-Moslems domiciled in it the rules of the personal law of their religion, community or nationality”.

We have therefore simply to look straight to the rules of the Latin Patriarchate, which would have applied had the testator been domiciled in the Sudan and according to these rules the disposition regarding the immovables is certainly intra vires the testator.

c) Formal Validity of Will:

Here again the rules of Private International Law distinguish between movables and immovables. In movables the formal validity of a will is governed by the lex domicilii at the time of death. (Bremer v. Freeman (1857) 10 Moo. P.C. 306; Dicey, p. 821; Cheshire, p. 523). i.e. in this case the law of Western Jordan, as applying the rules of the Latin Patriarchate Church. These rules are “that the will must be made before THREE witnesses and who must be of Latin faith or same communion”. As the will in controversy purports to dispose of movable property belonging to the testator in the Sudan and as it was only signed by two and NOT three witnesses it is no dot invalid — at least to the extent of that disposition — in accordance with the rules of the Latin Patriarchate or the lex domicilii.

As regards immovables, formal validity is governed by the lex situs. (In re Hernando 27 Ch. D. 284; Dicey, p.533 Cheshire, p. 560). In so far as the will in question disposes of immovables in the Sudan this means Sudan Domestic Law. In the Sudan we look to the Wills and Administration Ordinance, section 6. This section so far as relevant reads as follows

‘6 (1) A written will shall be valid if

a) It be in such form and be made with such formalities if any

as would be necessary to enable it to be recognized as valid under the testator’s personal law,

OR

b) it be signed at the foot or end thereof by the testator or by some other person on his behalf in his presence and by his direction and such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time who shall sign the will as such witnesses in the presence of the testator and of each other”.

Section 6 (1) (b) is clear and calls for no comment. As regards (a)

‘Personal Law” is determinable by the rule laid down in O.A. v. anba Bola Convent cited above, and the rules of the Latin Patriarchate apply. Here again “three witnesses” are essential ard, were personal law alone applicable, the will would certainly have been invalid, but sub-section (b) — the Sudan form proper — requires only two witnesses as in this will there were, and therefore the will is saved by that sub-section.

The learned counsel for the Applicants reiterated the argument which he made before the Honourable the Judge of the High Court that sub-sections (a) and (b) of section 6 (1) are mutually exclusive and that a will which is invalid under sub-rule (a) cannot be saved by sub-rule (b.) In support of this he contends that the words “in case there are no formalities” should be implied after the word “or” at the end of sub-rule a). He argues in favour of this contention that sometimes “or” is used in bequests as synonymous with “in case of”; in other words, that because in testamentary documents this word could be given a meaning other than its plain literal sense, then in its interpretation of section 6 of the Wills and Administration Ordinance, 1928, this Court should adopt a similar course. Otherwise — he says — We would be interpreting this part of the Ordinance in a manner which would be inconsistent with sub-section 6 ( 2) (d) and 6 (3) of the same Ordinance, in other words, because the methods of revocation contained in the sub-sections last mentioned are not alternative, so the methods of execution must have been intended by the legislature to be equally uninterchangeable.

The fallacy of this argument calls for no acumen. The first and most rudimentary rule of construction of statutes is that words must be given

their ordinary and natural meaning and that no departure from that meaning is allowed unless adequate grounds are found either in the history or cause of the enactment or in the content or the consequences which would result from the literal interpretation (Maxwell, Interpretation of Statutes, p. 4). The word “or” is defined in the Shorter Oxford Dictionary as an article co-ordinating two words, phrases or clauses between which there is an alternative, and “alternative” is therein defined as “of two things such that one or the other may be chosen, the choice of either involving the rejection of the other”. There is nothing in the Ordinance which makes this meaning absurd or suggests an inconsistency with the other parts of the Ordinance. The methods of revocation are determinable only after the choice of execution is made, and if a will is made in conformity with the personal law, it can only be revoked in the manner provided in that law. The learned counsel also argued that the words “if any” in sub-section 6 (1) (a) indicate that the second alternative is not applicable unless the testator’s personal law does not recognize a specific form; but the Ordinance itself speaks of the manners specified in section 6 as alternatives and any other interpretation would be a disregard of the intention of the legislature as indicated by plain language. The learned counsel has however suggested that the word “alternative” does not necessarily suggest a “choice”, because, if it did, then its use in the Rent Restriction Ordinance, s. 11 would have been meaningless, for the tenant has no choice but must accept such accommodation if offered. Here again the fallacy of the argument is obvious because it is the landlord who has the choice either to leave the tenant in occupation or to offer him some other accommodation in its stead. This section is not intended to deal with the rights of the tenant, but it is simply a restriction on the right of the landlord to recover possession and the tenant does not come into the picture at all before the landlord makes up his mind.

We now come to the last and in our view most important part of the argument of the learned counsel on the point, viz. that this interpretation which would make a testator adopt a form proscribed by his own personal law would be contrary to section 5 of the Civil Justice Ordinance as interpreted by this court in Abdullah Chercheflia v. Maria Bekryarellis (AC /APP /12 /1934. Section 5 of the Ordinance says, so far as relevant:

“Where in any suit or other proceeding in a Civil Court any question arises regarding succession, inheritance, wills, legacies,

gifts, marriage, divorce, family relations or the constitution of wakfs, the rule of decision shall be

a) Any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished and has not been declared void by the decision of a competent Court”.

Abdullah chercheflia v. Maria Bekryarellis was an appeal against an order of separation in which both husband and wife were domiciled in the Sudan. In the course of his judgment Gorman J. said page 3)

“It has been decided in this Court that where parties are domiciled in a country other than the Sudan which processes a national law of personal status that such law is to be regarded as a body of customs applicable to the parties within the meaning of section 5 : the law of the domicile is in these matters adopted by the law of the Sudan as their personal law. But where the parties are domiciled in the Sudan or in a country with no national law of personal status then, it has been held, it is the customs of the religious community to which they belong which are to be looked to and comprise their personal law”.

The learned Judge’s statement as regards persons domiciled in a country other than the Su an was of course obiter. It was only necessary for the Court in that case to decide the particular cause before it, which was contested by persons domiciled in the Sudan arid it was not essential for it to venture on an exhaustive statement of the law and therefore it can only be taken as binding in so far as it does not go beyond the occasion or lay down a rule that was irrelevant to the purpose in hand. But such a statement — though not authoritative — will be accorded the greatest respect by this Court and will not be disregarded unless it runs counter to previous and binding decisions governing the point in controversy. The first statement as to persons not domiciled in the Sudan — whatever its relevance to questions of family relations — cannot, in view of the decision of this Court in O.A. v. Anba Bob Convent be said to apply to questions regarding succession, inheritance, wills or legacies. As regards persons domiciled in the Sudan we will assume — for the sake of argument — that it was intended to cover these questions and then consider to what extent it is repugnant to the Wills and Administration Ordinance, as interpreted in O.A. v. Anba Bola Convent. Section 5 of the Civil Justice Ordinance adopts such customs unless —

inter alia — they have been altered by enactment, and we believe that the Wills and Administration Ordinance in section 6 (1) (b) incorporated a universal alteration of all customs applicable to parties domiciled in the Sudan whose personal laws do not recognize this form in so far as wills are concerned. This leads us to the learned counsel’s argument (at p. 5 of his memorandum of appeal) that the Wills and Administration Ordinance which came into force on  15 July, 1928, cannot repeal the Civil Justice Ordinance, which came into force on I May, 1929. It is needless to mention that section 5 of the latter Ordinance is simply a re-enactment of section 3 of the Civil Justice Ordinance 1900, and we do not think the learned counsel seriously submits that when an Act or Ordinance, the scope of which is restricted by later enactments, is re-moulded in a manner not interfering with its relation to later Acts, then all those later Acts have either themselves to be re-enacted or else cease to have their intended effect. Even if the 1929 Ordinance was not a re-enactment of the 1900 Act, the rule in Seward v. Vera Cruz (1884) 10 App. Cas 59, cited by the learned counsel for the Respondent no doubt prevents such construction. This interpretation will of course bring us face to face with Bamboulis v. Bamboulis1  which was cited before us by the learned counsel for the Respondent and also relied upon by the Honourable the Judge of the High Court as an authority against the suggestion that the word “custom” in section 5 of the Civil Justice Ordinance can be interpreted to mean personal law. The Honourable the Judge of the High Court quoted Lindsay, C.J. where he says:

“Custom is established usage which by recognition in a Sudan Court of Law acquires the force of law. The section envisages that such custom can be altered or even abolished or declared void. The Ecclesiastical rules of a church and Civil Law offoreign countries are in my view incapable of being altered, abolished or declared void, and clearly not contemplated by the wording of the section to be within the meaning of the word “custom”. “Custom” in its context refers to local custom originating by usage in the Sudan, and is not applicable to imported rules of laws of foreign origin”.

We believe that the matter before us does not justify a detailed consideration of the conflict between the ratio decidendi in Abdullah Chercheflia v. Maria Bekryarellis and Bamboulis v. Bamboulis or to argue

--------------------------------------------

(1) Cases in the High Court and Court of Appeal p. 76.

in favour of either view, but we feel the occasion justifies the statement that this restrictive interpretation of s. 5 adopted in Bamboulis v. Bamboulis is no doubt novel and is certainly not the view which has always been taken by the Sudan Courts with regard to this section. In doing suggestion for an amendment of the section in question before the Judges’ meeting in 1945 Bennett, C.J. said:

“The section had been interpreted as to a large extent letting in the church law of the parties where there was no appropriate lex domicilii or national law”.

Abdullah Chercheflia v. Maria Bekryarellis was considered in Bamboulis v. Bamboulis on the question whether the Sudan Courts have jurisdiction in matters of judicial separation and matrimonial causes generally, but no consideration was given in the latter case to the authoritative effect of Abdullah Chercheflih v. Maria Bakryarellis on the law to be administered so far as persons domiciled in the Sudan are concerned. Bamboulis v. Bamboulis thought to lay down a principle of its own, the efficacy of which it is not for us to consider in this case, and it is our respectful opinion that until an opportunity for an exhaustive analysis of the principles underlying it arises, this case should be cited with great reserve.

4. Invalidity Under Section 6 (2) (b)

This is the last of the arguments in support of the Applicant’s case. The learned counsel contends that because of certain alterations and/or erasures on the face of the will, which were not signed by the testator and witnesses in the margin etc., as required by that section, the will is completely invalid. Section 6 (2) (b) reads as follows:

“No obliteration, interlineation or other alteration made in any will after the execution thereof shall have any effect unless such alteration shall be executed in like manner as hereinbefore required for the execution of the will, save that the will as so altered shall be deemed to be duly executed if the signature of the testator and the witnesses be made in the margin or on some other part of the will opposite or near to such alteration or at the foot or end or opposite to a memorandum referring to such alteration and written at the end or some other part of the will”.

An examination of the will reveals that the two words after banking*  were super-imposed over words previously erased in a manner making

it impossible to read the words first written, and we assume that that would be an alteration within the meaning of the section referred to, if it were proved to have been made AFTER execution. However this is the first time that this particular point has been raised. It was not taken at all in the District Court or before the Honourable the Judge of the High Court. There is always a presumption that alteration in wills are made AFFER execution (Phipson, 9th Edition, p. 553) so if the matter had been raised in time, the onus would have been on the Respondent to show that such alteration was made BEFORE execution. However — and for the sake of argument — we are going to assume that it was made AFTER execution. The learned counsel contends that the effect of the alteration in such a case would be to invalidate the whole will because the words “as so altered” simply mean “as it stands”. This argument is not only unsupported by any authority, but also disregards the very plain words of the section. The English Law rule about this point is obvious and according to this rule if there is evidence that the alteration was made before execution then “probate is granted of the will as it stood before the alteration, provided that the original words are still apparent. In this event the original words remain in force contrary to the obvious intention of the testator. If

however — they are not apparent, probate is granted with the altered part of the will left blank”. (Cheshire, Modern Real Property, p. 729). S. 6 (2) (b) was simply intended to adopt this rule.

As the words super-imposed are simply synonymous with the word the alteration would have been immaterial even if we were

to hold in favour of the essential validity of this part of the will; as however we found against the Respondent on this point, the matter merits no further consideration.

Accordingly this appeal is allowed and the judgment of the Honourable the Judge of the High Court finding in favour of the validity of the disposition of movables is hereby reversed, and to that extent the testator shall be deemed to have died intestate.

Court fees in the District Court shall be borne by the Caveator assessed on the basis of the value of the whole estate in the Sudan. Revision fees in the High Court shall be borne by the Applicant. Revision fees in this Court shall be equally apportioned. No order as to Advocates’ costs.

M.A. Abu Rannat, C.J. : I concur.

El Rayah El Amin, 3. : I concur.

Appeal Allowed.