(COURT OF APPEAL)*

SALOANS MAHROUS v. HEIRS OF JOHN ISKANDAR

AC-APP-27-1965

Principles

·  Conflict of Laws—Intestate succession—Rules applicable where a deceased died domiciled in the Sudan—Wills and Administration Ordinance, s. 4—Deceased’s personal law is applicable

·  Personal Law—Intestate succession—Deceased’s personal law means law of his r or valid customs applicable to him

If a person dies domiciled in the Sudan, the law which should govern his c is the law of his domicile, i.e., the Sudan law. Therefore according to the Wills and Administration Ordinance, s. 4, when a non.moslem who is domiciled in the Sudan, dies intestate leaving property in the Sudan, his pro perty shall devolve according to his personal law, i.e., the law of his religion, or a valid custom applicable to him

If a person dies domiciled in the Sudan, the law which should govern his c is the law of his domicile, i.e., the Sudan law. Therefore according to the Wills and Administration Ordinance, s. 4, when a non.moslem who is domiciled in the Sudan, dies intestate leaving property in the Sudan, his pro perty shall devolve according to his personal law, i.e., the law of his religion, or a valid custom applicable to him

Judgment

Advocates:  Henary Riad and Gerias Assad for applicant

Emil Kronfli for respondent

Babiker Awadalla C.J. January 22, 1967: —This is an appeal against the judgment and decree of His Honour the Province Judge, El Darner, dismissing a claim by appellant (plaintiff) that he is entitled by inheritance to one-quarter of the estate of his deceased nephew, the late John Iskandar of Atbara, who died intestate in Cairo on October 5,1963. John Iskandar was a Sudanese who at the time of his death was domiciled at Atbara and belonged to the Coptic Orthodox Church. He was married but he died leaving no issue and his estate consisting wholly of property in the Sudan is under administration by the Northern Province Court.

 

According to an 11am of heirship issued by the Bishop of the C Orthodox Church of Omdurman, the heirs of the deceased are his widow, his sister and his niece, daughter of Eziece Riad.

On December 4, 1963, appellant instituted proceedings before the Province Court, El Darner, attacking the above-mentioned 11am of heirship as null and void on the ground that it is based on a mistaken conception of the law and contrary to the rules of the personal law applicable to the estate.

Appellant contended that as the deceased was a Coptic Orthodox, he belonged to the Coptic Orthodox Patriarchate in Cairo and that in matters of personal status—including succession on Intestacy—he is subject to the law applicable in Egypt to the followers of the Coptic Orthodox faith.

According to that law, appellant contends that he is entitled to one- quarter of the estate of the deceased in preference; to the deceased’s niece.

The personal representative of the deceased—on behalf of respondents—denied that succession in this case is subject to any law but the law recognized by the Coptic Orthodox (lurch In the Sudan and that the 11am issued by the Patriarch of Omdurman is a corrected expression of the law applicable in this case.

His Honor the Province Judge framed the following issues:

1. What is the law applicable to this c

2. If it is the law of the Coptic Orthodox Church In the Sudan, is such law repugnant to justice, equity and good conscience?

At the hearing appellant called three witnesses, one of whom, viz., Zaki Andrawis Girgis appellant’s brother-in-law (P.W.1) who stated that he had written to the Coptic Bishopric at Luxor for advice on the rules applicable to succession to the estates of Coptic Orthodox and that he had obtained a written reply, viz., document P.1, which states that the law applicable is the Sharia law, i.e., the law of the State, the United Arab Republic.

Again this same witness contended that he had written to the Gina Bishopric stating the facts of the case in hand and asking for a ruling and that he received a reply contained in document DP.II. According to that ruling, the law applicable is that of the Coptic Orthodox Church the widow is entitled to one-half of the estate and the sister and uncle to the other half and nothing goes to the niece.

The learned advocate for respondents objected to the admission of those two documents on the grounds:

(a) That they are not duly authenticated in accordance with the rules governing the authentication of foreign documents,

(b) That they are not issued by an authority which is competent to pronounce on the matter in controversy, and lastly.

(c) That the two documents are inconsistent and irreconcilable, for while document DP.I states that the law applicable is the Sharia law, document DPII states that it is the law of the Coptic Orthodox Church.

His Honor the Province Judge overruled the objection.

The second witness for appellant was the Kadi of El Damer, High Sharia Court, who gave evidence that if the Sharia law were to be applied to this case, the widow would be entitled to one-quarter of the estate, the sister to one-half and the uncle (i.e., appellant to this case) to the remainder as a residuary heir or asaba.

The third witness was appellant himself who admitted that Atbara Town comes under the Omdurman Bishopric. The fourth witness was the priest of the Atbara Coptic Orthodox Church who testified that document DP.II (a booklet entitled (Personal Law for Coptic Orthodox)) contains the law laid down for the Coptic Orthodox on matters of personal status adding that the said document is immutable save by the Holy Council and Meglis Milli in Egypt. It is not clear from the evidence of this witness whether the Holy Council and the Meglis Milli are one and the same body or whether they are two independent bodies exercising concurrent jurisdictions. However, this witness, despite his testimony concerning document DPII, displayed deplorable ignorance as to what the law applicable to the Coptic Orthodox is, whether in Egypt or in the Sudan, and stated that the issue of hams of heirship is the province of the Bishop alone, in this case, the Bishop of Omdurman.

The learned advocate for respondents called no witnesses, but stated that he is satisfied with the affidavit sworn to by a priest of the Omdurman Coptic Orthodox Church and in which it is stated that the booklet on Personal Law (document DP.III) contains the law applicable in the Sudan to all Coptic Orthodox on matters of personal status. No objection was made by the learned advocate for appellant to the admission of this piece of evidence by a mere affidavit and I take it that as he had invoked it in his examination of P.W.4 its admissibility must have been tacitly approved by him.

In his submissions to the court on the applicability of the Egyptian law to the facts of this case, the learned advocate for appellant argues as follows:

(i) That the head of the Coptic Orthodox Church in Egypt and the Sudan is the Patriarch, who resides in Egypt,

(ii) That it is the said Patriarch who appoints the Bishops and defines their episcopal units. Such Bishops are responsible to the Patriarch and must be of Egyptian nationality.

(iii) That in so far as the Coptic Orthodox are concerned the Church in the Sudan is subordinate to the Head Church in Egypt, both spiritually and administratively,

(iv) That the Holy Council or the Meglis Milli in Egypt is the only authority that is empowered to issue laws on matters of Personal Status and to revoke or amend the same,

(v) That both in Egypt and the Sudan Bishops and priests are bound to follow those laws within their episcopal units.

As such, the learned advocate contends that the Coptic Orthodox cannot in the Sudan have any local custom or law applicable to them, which is not applicable in Egypt. He then goes on to argue that as in 1948 the Egyptian legislature had unified the laws of inheritance on intestacy, making the Sharia law applicable both to Christians and Moslems, and as the tribunals which used to apply Church law were abolished, then it follows automatically that the law applicable to the Coptic Orthodox community in the Sudan on matters of inheritance should be the Sharia law.

In the alternative, the learned advocate for applicant contends that document DP.III is not a true and correct statement of the relevant law as it contradicts the advice given by the Bishop of Gina in document DP.III.

According to that advice the niece is completely excluded from inheritance by the presence of the uncle (appellant) and the wife gets one-half of the estate and the other half is shared equally by the sister and uncle.

In the further alternative he contends that the law contained in document DP.III is contrary to justice, equity and good conscience and that according to the rule laid down in Bamboulis v. Bamboulis, AC-REV-58- 1953, there is no restriction on the liberty of the courts in the Sudan ‘to apply the principles of the law which are likely to secure the greatest measure of justice as between the parties.” In the opinion of the learned advocate for appellant, exclusion of the uncle by the niece is contrary to all canons of justice as an uncle is closer in his degree of relationship to the deceased than a niece.

The learned advocate for respondent in his submissions to the court below contends that the principle governing the disposal of this case is to be found in the Wills and Administration Ordinance, 1928, s. 4, and the Civil Justice Ordinance, s.5.

Following that principle the courts in the Sudan have—in the learned advocate’s contention—always applied to non-Mohammedans domiciled in the Sudan the personal or Church law of the deceased. In so far as Coptic Orthodox are concerned, the principles of that law contained in document DP.lll have consistently been applied to several estates of deceased Copts with no single imputation of repugnancy to justice, equity or good conscience on the part of anyone.His Honor the Province judge accepted the argument of the learned advocate for respondent that in so far as Christians are concerned the personal law of the deceased had always been decided by the Sudan courts in their interpretation of the Wills and Administration Ordinance, 1925, to mean “Church law.”

His Honor the Province Judge rejected the principle enunciated in Bamboulis v. Bamboulis, AC-REV- He also rejected the contention of the learned advocate for applicant that any change imported upon the rules of intestacy for Coptic Orthodox in Egypt should automatically apply to those Copts of the same faith residing in the Sudan. In the view of His Honor the Province Judge, it would be wrong to construe ecclesiastical supremacy of the Patriarchate in Egypt over the Coptic Orthodox Church in the Sudan as conferring any legislative authority over the subjects of that church.

He accordingly dismissed appellant’s claim with costs. Hence the present appeal.

Before the appeal came up for hearing appellant died and his personal representative was made a party and hearing of the appeal proceeded with.

The personal representative of appellant was represented by advocates Henry and Gireis and respondent by advocate Emil Kronfli. The same arguments put forward in the court below were reiterated here.

In my view this appeal cannot succeed. The Wills and Administration Ordinance, 7928, S. 4 provides that devolution on intestacy shall follow the personal law or any valid custom, which may be shown to apply to the deceased.

As had previously been declared by this court the application of ‘ 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—per Owen C.J. in the Anba BoJa Convent case, AC-APP-20-1931.

In the case of the Coptic Orthodox community the Church custom applicable to them as their personal law in the Sudan is, that which had always been freely recognized by the Patriarchate in Egypt and it, cannot seriously be contested that that custom is the one contained in document DP.III. If the secular authorities in Egypt thought fit—on grounds of public policy—to abrogate or modify that custom or to abolish the tribulans which used to apply it then that can in no way affect the position of the Coptic Community in the Sudan. Gorman J. in Abdalla Charchaflia v. Marie Bekyarellis. AC-APP-12-1934 commenting on the application of Church law in the Sudan under the Civil Justice Ordinance, s. 5, states:

“Where in accordance with the interpretation which has been put in this section the courts of this country have to consult Church custom it is the essential, universal and characteristic custom of that church to which regard is to be paid not that which it may have been forced to adopt in a particular locality at particular times.” Nor do I see anything repugnant to justice, equity or good conscience in this. The learned advocate for appellant thought to call to his aid a pronouncement made in Bamboulis’s case cited above. That case was decided under the Civil Justice Ordinance, s. 5, and it sought to import into that section an interpretation which ran counter to previous decisions of this court and its authority was accordingly doubted in a subsequent decision of this court (cf. Hanana Kattan v. John Kattan, AC-REV-47-1957, (1957) S.L.J.R. 35)

However, and irrespective of its highly doubtful authority in its own field, even Bamboulis’s case claims that the rule it purported to lay down is confined only to cases of divorce because in that field there is no enactment in force in the Sudan and therefore the courts can call to their aid the overriding principles of justice, equity and good conscience. It specifically stated that in matters concerning succession the rule is not applicable because the question of succession to estates of non-Mohammedans is specifically provided for by the Wills and Administration Ordinance, 1928, ss. 3 and 4.

In this respect Lindsay C.J. said: “Although matters of succession in the estates of non-Mohammedans are provided for by the Wills and Administration Ordinance, 1928, ss. 3 and 4, there is no express provision in our statutory legislation as to the choice of la relating to divorce. Accordingly it accords with justice, equity and good conscience for the reasons earlier stated to decide such matters according to English law, so far as it is appropriate to conditions in the Sudan.”

To seek therefore to apply to the Coptic Community in the Sudan, the Sharia law as being the law applicable to Copts in Egypt because that law is, in the opinion of the learned counsel for applicants, more in accordance with justice, equity and good conscience than the custom of the Coptic Orthodox Church would in my view be quite wrong so long as there is in force in the Sudan an enactment governing matters of succession between non-Mohammedans.

For the above reasons, I am of opinion that the decision of His Honour the Province Judge is correct and that this appeal should be and is hereby dismissed with Costs.

Hassan Abdel Rahim J. January 22, 1967: —I agree.

El Fatih Awouda J. January 22, 1967: —I concur.

The wills and Administration Ordinance, 1928. S.4, lays down that when a on-Moslem dies intestate leaving properties in the Sudan his property hall devolve according to his personal law or according to any salid custom which may be shown to apply to the deceased. As to what is the personal law of the deceased or the valid custom applicable to him is governed by the law of his domicile.

That the deceased died domiciled in the Sudan is not contested and consequently his personal law that governs succession to his estate is the law of the Sudan. What is that law? The Sudan courts have in all cases of intestate succession to the estate of a deceased of a Coptic Orthodox faith applied the custom of the Coptic Orthodox Church, i.e., the law of his religion is his personal law. To refuse to apply the Egyptian legislation is not because the Sudan law accords more with justice, equity and good conscience than the Egyptian law but because the former and not the latter is the law of domicile of the deceased.

 

* Court Babiker Awadalla C and Osman El Tayeb J.

 

* Court: Osman El Tayeb J, and Hassan Abdel Rahim J

* Court: Bahiker Aw C.J, and Osman El Tayeb J.

* Court: Babiker Awadalla C.J.                  

*court Babiber Awadalla C.J.and Osman ElTayeb J.

* Court: Babiker Awadalla C.J., El Fatih Awouda J, and Salah Eddin Shibeika P.J.

 

* Court: Babiker Awadalla C.J. and Osman El Tayeb J.

* Court: Babiker Awadalla C.J., El Rayah El Amin J, and Mohamed El Amin S. Gassouma J.

 

* Court: Osman El Tayeb J. and El Fatib Awouda J.

* Court: El Rayeb El Amia J, and El Farih Awouda J.

* Court: Babiker Awadalla C.J and Osman El Tayeb J.

 

* Court: El Rayah El A.nun J. and El Fotik. Awoudsi J..

* Court: Osman El Tayeb j.

* Court: Osman El Tayeb J, and Ea Fatih Awoucja J.

* Court: Osman El Tayeb J, and El Fatih Awouda J.

* Court: Osman El Tayeb J. and El Fatih Awouda J.

* Court: Bibjker Awadal C.J. and Osman El Tayeb J.

* Court: Osman El Tayeb J. and El Fatih Awouda J.

* Court: Osman El Tayeb J. and El Fatih Awouda J.

* Court: Osrnan El Tayeb J.

* Court :Osman El Tayeb J.and El Fatih Awouda J.

* Court: Osman El Tayeb J. and El Fatih Awouda J.

* Court: Osman El Tayeb J. and Saldh Eddin Hassan J.

*‘ Court: Osman El Tayeb J, and El Fatih Awouda J.

 

* Court: Osman El Tayeb J. and El Fatih Awouda J.

* ‘ Court: Osman El Tayeb J.and El Fatih Awcuda J.

 

* Court: Osrnan El Tayeb J.and El Fatih Awouda J.

* Court Osman El Tayeb J. and Salah Eddin Hassan J.

* Court: Osman El Tayeb J.and Salah Eddin Hassan J.

* Court: Osinan El Tayeb J. and El Fatih Awouda J.

* Court: Osman El Tayeb J, and El Fatih Awouda J.

* Court: Osman El Tayeb J. and El Fatih Awouda J.

* Court: Osman El Tayeb j.and Salah Eddin Hassan J.

* Court: Babiker Awadalla C.J. Hassan Abdel Rahim J. and El Fatih Awouda J.