(COURT OF APPEAL)*

MIHRAN BIDJIKIAN AND OTHERS v. ESTATE OF HAGO PIEPH

AC-REV-437-1966

Principles

·  Conflict of L of choice be abandoned both intention and the act of residence must be of proof lies upon those who allege abandonment

·  Con flict of LaWS_WjlJs_ applicable where testator died domiciled in the Sudan_Wills and Administration Ordinance ss. 6 and 7— person law is applicable

·  Personal Law—_wills_V made under SU5pid circums must be proved genuine by those propounding it

·  Civil Procedure_r of evidence taken on commissjo with out cross.examination_ Justice Ordinance Ord. VIII, r. 2 (2)—May render such evidence inadmissible

(i) To establish the abandonment of domicile of choice from one countr}’ to another, it must be proved by those who allege the abandonment that, both, the fact of residence and the intention are unequjv
(ii) If a person died domiciled in the Sudan, the law, which should govern his estates, is the law of the domicile, i.e., the Sudan, Accor to the Wills and Administration Ordinance, ss. 6 and 7, the personal law of a testator is applic able to decide the ‘alidjtv and interpretation of a will he made.

(iii) Whenever a will is made under suspicious circumstances it must be proved that it is a genuine one by those propounding it, in accordance with the testator’s personal law,
(iv) Evidence taken on commission under Civil Justice Ordinance Ord. VIII, r. 2 (2), without cross.examjflatjon may be rendered inadnhj

Judgment

Advocate Ahmed Orabi for applicant in the Court of Appeal

Candiogipu, Au Mohamed Ibrahim and

Habib Sorial for applicants in the high Court

Salah E. Hassan J. HC V-I HC-REV-17-1961 and HC-R.EV-46-1961. August 16, 1966: —These are three applicatj for revision dealing with the same estate; that of Hagop Stephanjan deceased They are against the one Judgment and decree respecting the same estate passed by District Judge, High Court, Khartoum dated December 29, 196o, in favour of the Armenian Community of Khartoum. In the circumstances I am going to pass one single judgment disposing of the three appljcatj for revision the three applications are as follows:

(a) HC-REV-23-1961 Submitted by idvocate Candioglou on behalf of group No. 1 in HC-EST-31-1953. The Union General Armenanne of Paris.

(b) HC-REV-46-1961. Submitted by advocate Mi Mohamed Ibrahim on behalf of group No. 3 in HC-EST-31-1953.

Mihran Bidjikian.

(c) HC-REV-17-1961. By advocate Sorial on behalf of Roza Hanna Mikhail—group No. 4 in HC-EST-31-1953.

Written submissions have been mutually exchanged on the four sides, including the Armenian Community of Khartoum, who is represented by advocate Kronfli.

The testator died in July 1953 and proceedings in respect of his estate commenced ever since to this very day. It must have been a crusade as one of the claimants died and one of the advocates representing one of the groups also died. The whole dspute in a nutshell is as follows:

Hagop Stephanian died in Cairo on July 19. 1953. Four different groups of claimants came forward claiming part of the whole of the estate movables and immovables. The estate is worth £S.10.000.000m/ms. All situate in the Sudan. These groups are:

1. L’Union Generali Arenicanne de BeinfaSance of Paris—they claim the whole of the estate by virtue of a will dated July 8, (Exhibit W.t), made in Khartoum and deposited with the official administrator. Formal validity of this will is not in dispute.

2. The Armenian Community of the Sudan. They claim the whole estate by virtue of a vill dated November 17,1952 (Ex. K.B.I), made in Khartoum.

3. Doctor Mihran Bidjikian of Khartoum. He claims £S.10, ooo.ooom/ ms. on the basis of a will dated June 20, 1953 (Ex. M.B.I), made in Cairo, and bequeathing the said sum to his mother, Mrs. Haiganouch Bidjikian, who died during the proceedings, he being the only son and heir of his mother.

4. Roza Hanna Mikhail of Cairo—she claims two-thirds of the estate on the ground that she is the grand-daughter of the deceased aunt and as such entitled as the sole heir of the deceased to the said share in accordance with the Sharia law, which is the law governing the question of succession in this estate,

The District Judge must have taken great pains in compiling this formidable record comprising the evidence he has taken and that which was taken on commission, in addition to the bundle of documents upon which the claims were based. He is surely to be commended for the accuracy he has shown and for his correct exposition and application of the law to the various facts of this case.

The findings of the District Judge, High Court, were briefly these:

1. The testator Hagop Stephanian domiciled in the Sudan and was so domiciled long before 1934.

2. He left two wills, both correct as to formal and essential validity. The 1934 will in favour of (Group No.1) and the 1952 will in favour of (Group No. 2). In each of these two wills he purported to bequeath the whole of his property in the Sudan.

3. The law, which should govern the estate of deceased, is the law of his domicile, which is the Sudan. The relevant part of the Sudan law is the Wills and Administration Ordinance in addition to the judicial precedents thereon.

4. According to section 7 of the said Ordinance any question as to the validity r effect of any will or of any provision in any will or as to the proper interpretation and meaning of any will shall be determined according to the testator’s personal law or any valid custom which may be shown to apply to the testator.

5. The personal law of deceased is the “Armenian Testamentary and

Inheritance Law according to Mekhitar Kosh” (a monk who belongs to the twelfth century and wrote the Law-Book of the Armenians.

Since the nineteenth century the Seat of the Supreme Head of the Armenian Church (The Synod of Etchmiatzin) adopted his Law-Book. The Religious Courts applied same, inside and outside Armenia).

6. According to this law (Mekhitar Kosh) the deceased has unrestricted freedom to bequeath the whole of his property by will to any person or persons; even to the exclusion of his legal heirs.

7. According to the Wills and Administration Ordinance, s. 6 (2) (e), the 1952 will revokes the 1934 will.

8. The alleged will dated June 20, 1953, in favour of Haiganoush Bidjikian is not genuine and the signature of deceased is forged.

9. Having already decided that the law applicable to this situation Is the Armenian Testamentary and Inheritance Law of Mikhitar Kosh and not the Sharia law; the deceased is entitled to bequeath the whole of his estate to the exclusion of his legal heirs. He has done so in this case and so nothing is left to group (4), to devolve as on intestacy.

This is the gist of the learned District Judge’s decision. After giving it thoughtful consideration, having perused the whole record and what has been submitted by the various groups in these revisions I have decided to uphold both the judgment and decree of the court below.

The mere fact that deceased is an Armenian and therefore of foreign origin calls at once for the operation of the rules of private international law, in order to decide the choice of law, i.e., by what system of law generally shall the specific issue be decided or in other words “What system of law shall this court apply in order to do justice in this particular case. Shall we apply the Sudan law, the Armenian law or the law of Egypt where the testator died?”

In order to answer these questions we have first to classify the issue involved into its correct legal category. In this case the classification is easy as it is a claim for testamentary succession by three groups and intestate succession by one group. Both claims are in respect of movables and immovables. The next step is to select the appropriate connecting factor, i.e., that particular fact of the case, which is decisive in determining the choice of law. In doing this we have always been guided by the rules of the English Private International Law. Some of these rules had been accepted in our courts and embodied in some of our leading Court of Appeal cases like Hanna Kattan v. John Kattan (i S.L.J.R. 3 accordingly they have become part of our own conflict of law rules. Some of these rules which are relevant to these revisions are:

(a) Succession to movables; whether testate or intestate is governed by the law of the testator’s domicile.

(b) Succession to imrr t or intestate is governed by the (lex citus), i.e., the law of the place where the property is situate.

From these rules it is manifestly clear that the fixing of the testator’s domicile at the date of h death and at other material times is vital to the decision of this case. The issue of domicile ought to have been framed in the court below as one of the main issues but unfortunately this was not done; but no harm ensued because the learned District judge who conducted the hearing dealt with this point at length in his judgment and good enough there was ample evidence in the record to enable him to make the decision that the testator died domiciled in the Sudan and has continued to be so domiciled long before 1934 the date of his first will.

I am not going to repeat the lengthy analysis and authoritative argument of the learned District Judge of how he came to the conclusion that deceased acquired a domicile of choice in the Sudan and abandoned his domicile of origin in Armenia; but I shall make some slight touches. There is ample evidence that deceased’s domicile of origin was Armenia. It is also the accepted law as laid down in the leading case of Travers v. Halley [1953] P. 246, “That change of domicile particularly where the change is from the domicile of origin to a- domicile of choice (as distinct from a change from one domicile of choice to another) has always been regarded as a serious step which is only to be imputed to a person upon clear &nd unequivocal evidence.” No formal steps are necessary for the acquisition of a domicile of choice according to English law. The only requirements are:

(a) Residence in the country of choice; and

(b) An intention at the commencement or during the time of such residence to remain permanently in that country see (Udny v. Udny (1869) L.R. 1Sc. and D. 441).

The same principles have been reduced by the Private International Law Committee in its proposed draft Code of Domicile to the following:

“Subject to the provisions of this.cod the domicile of a person shall be in the country in which he has his home and intends to live permanently.”

It has been proved by ample evidence that deceased, since he came to the Sudan in z has established his home and carried on a prosperous business without even going to Armenia. The fact of residence and inten tion are unequivocally clear from the evidence-heard oral and documentary.

Group (No. 4) Roza 1-lanna Michail has been trying to establish that the domicile of origin of deceased was Egypt and that he did not abandon it till he died in Cairo. Although the evidence heard proves otherwise, I am going just for the sake of argument to accept the allegation that deceased’s domicile of origin was Egyptian. Nevertheless abundant evidence heard has proved that deceased acquired a domicile of choice in the Sudan long before 1934. The fact that he went to Egypt for treatment or that he died in Cairo; will not revive his domicile of origin as there is no evidence or any indication that he abandoned his acquired domicile of choice .in the Sudan. A case in point is (Re Lloyd Evans, decd. [1946] Ch.695).

“A testator having an English domicile of origin first acquired a domicile of choice in Java and subsequently in Belgium where he was living at the time of the German invasion of 1940. He then came to England, where he made a will in English form and died some years later. The court held that he has not lost his Belgian domicile of choice, despite the strong fact that he spent the last years of his life in the country of his domicile of origin, for the onus of proving that he had voluntarily abandoned his Belgian domicile, a burden of proof which lay on those who alleged the change, has not been discharged.”

Having ascertained the domicile of deceased to be the Sudan: then Sudan Municipal Law applies to decide all the questions concerning the estate succession; testate and intestate; the Sudan being the law of deceased domicile as well as the law of the place where the immovables of deceased are situate. The relevant part of the Sudan law is the Wills and Administration Ordinance, s. 6 (1), which deals with the formal validity of wills and SectiOn 7 of the same Ordinance which governs the essential validity respecting capacity, etc.

In section 7 of this Ordinance we notice a modified move towards the doctrine of ren vol as our municipal law refers the matter to the testator’s personal law, but our courts put an end to the matter by applying the personal law in its very narrow meaning after it is proved by evidence.

Ample evidence has been produced which proved that the testator’s personal law is the “Armenian Testamentary and Inheritance Law according to Mekhitar Kosh.” This law gives the testator absolute free Dom to distribute all his wealth and property as he wishes without any restriction whatsoever to the extent of the entire exclusion of his legal heirs. The application of this law automatically disposes of HC-REV-I 1961 on behalf of Roza Hanna Michail who is relying on the application of Sharia law, which debars the deceased from disposing by, will of more than one-third of his property. In this case he has bequeathed the whole of his property, a thing which he is entitled to do according to his personal law and so nothing is left for Roza Hanna who alleges to be the only surviving legal heir. I hereby order her application for revision be dismissed.

The interpretation made by the learned District Judge of the Wills and Administration Ordinance, s. 6 (2) (e), in respect of the two competing wills of groups (1) and (2) is hereby upheld. The vital thing to 1ook for is the intention of the testator, which I believe, is very apparent in this case and supported by reliable evidence. Moreover, according to section 6 (z) (e), the latter will of 1952 should prevail, as it is very much incon sistent with the previous will of 1934. This also disposes of HC-REV-23- 1961 raised on behalf of the Armenian Community of Paris and I hereby order that it be dismissed.

Nothing remains to be discussed except the application of group No. 3. I am in full agreement with the decision of the learned District Judge, High Court, Khartoum. In Hanna Kattan v. John Kattan (t957) S.L.J.R. 35, it was laid down thus “The onus of proof of due execution of a will lies with its propounders. If suspicion is aroused by the proof of execu tion, they must clear it up.” In support of this we have an English authority Tyrrell V. Paintón [1894] P. 151, where it was laid down “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 the suspicion.” The underlined part, in my opinion, has never been done and the court below was justified in finding that this will is not genuine. This disposes of HC-REV-46-1961 and finalises this judgment which dismi the three applications for revision with no order as to costs In order to put the decree of the District Judge in sound and proper form it shall be rectified to read as follows:

Decree: This matter having come for final disposal before me in the presence of the advocates of the four groups of claimants to the estate, namely:

1. L’linion Generajj Armenienne de Bienfaisance of Paris (Group 1).

2. The Armenian Community of the Sudan (Group 2).

3. Dr. Mihran Bidjikian of Khartoum (Group 3).

4. Roza Hanna Mikhail of Cairo (Group 4).

It is hereby declared that the Armenian Community of the Sudan is the sole beneficiary to the whole Estate of Hagop Stephanian comprising of all his movable and immovable properties in the Sudan by virtue of the will dated November 17, 1952.

It is hereby ordered that the whole property in the said estate do vest in the Armenian Community of the Sudan, they being the sole beneficiary to the whole estat.

The other three claims of groups 1 3 and 4 are dismissed.

No order as to costs.

Osman El Tayeb J. December 4, 1966: —This application is presented on behalf of Dr. Mihran Bidjikian of Khartoum referred to in the proceedings as group 3. He claimed £S.10, 000.000m/ms on the basis of a will dated June 20, 1953, purporting to have been made in Cairo by the deceased, that allegedly bequeathed unto his mother the said sum. His mother died during the proceedings on October 10, 1957 and he is her only son and heir. The trial court decided that this will was not proved satisfactorily to be a genuine one, and dismissed the claim.

The case embraced two other wills, the first one was made and executed in favour of the Armenian Community of Paris in 1934, and the second one was made and executed in favour of the Armenjan Community of the Sudan in 1952. The decision of the trial court was each one of them was properly executed but, the latter, as it was inconsistent to the former, (each being as to the whole of the estate), revoked the former.

There was a claim by one Roza Hanna Mikhajl of Cairo to two-thirds of the estate, contending that the efficacy of the will was restricted to one- third of the estate, according to the Sharia law applicable to the parties. The court of first instance decided that according to Armenian law, which is applicable, as being the custom of the parties, the efficacy of the will is not restricted as was suggested. This claim was dismissed.

The final conclusion of the court of first instance was that the will of 1952 to the Armenian Community of the Sudan was the only valid will bequeathing the whole estate of deceased.

The three groups namely, the Armenian Community of Paris (group 1), Dr. Mihran Bidjikian (group 3) and Roza Hanna Mikhail (group 4), made separate applications for revisions that have been dismissed by Salah Eddin Hassan J.

Hence came the present application for revision from group 3 (no applications from the other groups), which I think has to be summarily dismissed.

The grounds of the application are that the learned District Judge was wrong in coming to the conclusion that the will of t9g was not sufficiently proved to be a genuine will of the deceased. Reliance is placed on the evidence of the two witnesses, namely. Mr. Garabed Sultanian and Mr. Stephan Kensseyan, whose evidence was taken on commission in Cairo. They purported to give evidence that the document produced as a will was made by deceased and that they attested it. It is argued that these two witnesses gave direct evidence as to the execution of the will, and that such evidence cannot be impeached by the circumstantial evidence that was before the court. I do not agree to this submission, because the circumstantial evidence may be so strong as to make the court disbelieve and reject, as untrue, the testimony of witnesses.

As the learned Acting Judge of the High Court commented in his judg ment on revision to him, I think the learned District Judge dealt with the case with thoroughness and acumen, particularly on this point relating to the weight of the evidence available as to the genuineness of the will in question. I agree with him that there was clear suspicion about its genuineness, which the applicant has failed to allay. To what was said in the judgment of the learned District Judge it may be useful to add a few words.

The evidence on commission of the two witnesses, relied upon by applicant to prove the genuineness of the will, was ordered and received under the Civil Justice Ordinance, Ord. VIII, r. i, and so its admissibility is as stated in r. 2 (2) of the same order as follows:

Where such party has not had the opportunity of cross-examining the witness the evidence shall not, except for any special reasons, be recorded by the court, be read as evidence in the suit or form part of the record.

The essence of the rule is the cross-examination of the witnesses, which is necessary for showing his integrity, veracity and truthfulness.

In this case the record of the evidence does not contain any cross- examination of the two witnesses, nor is there anything to show that the opposite parties were given any opportunity to so cross-examine. This may render the evidence of these two witnesses inadmissible, or in the least it cannot be given any s of value. Further, it was tersely recorded, there was no explanation as to how and in what circumstances the alleged will was written or made. One of them said that deceased wrote” the will and he signed it, the other said that deceased told him that he “made” a will and he signed it. I think the learned District Judge rightly rejected the evidence of the two witnesses, and on the circumstantial evidence before him rightly decided that the genuineness of the will was not proved.

This application is summarily dismissed.