Division: IN THE HIGH COURT, ACCRA
Date: 31 JANUARY 1964
Before: PREMPEH J
JUDGMENT OF PREMPEH J
The plaintiff is the brother of the late Sobhy Baksmaty who died in Accra on 19 April 1963 and the defendant is his widow by whom he had six children, five girls and one boy. By another marriage the deceased had a daughter called Fatma Salam, now living in the Lebanon, and she is a minor. The late Sobhy Baksmaty died leaving many properties in Ghana, which are shown in the statement of claim, and he left a will by which he appointed the defendant the sole executrix, and in which he directed the manner in which his estate should be distributed after his death. On 6 May 1963 the defendant applied for and was granted probate by this court of the will of the late Sobhy Baksmaty, and upon hearing this, the plaintiff instituted these proceedings against the defendant.
By his amended statement of claim, the plaintiff partly as elder brother and next-of-kin of the late Sobhy Baksmaty, deceased, partly in his capacity as guardian of the minor children of the defendant, and partly as attorney for Mrs. Sobhiah Said Baksmaty of Heddabeen Quarter, Tripoli, who is the guardian of Fatma Salam the other minor child of the deceased, applied against the defendant for an order of the court for the revocation of probate granted to the defendant of the said will on the following grounds: (a) that the will is a forgery and that it was not in fact made or attested by the deceased; and (b) in the alternative that the late Sobhy Baksmaty had no testamentary capacity according to Mohammedan law—which is the law of
his domicile—to make the said will, and that the said will is therefore invalid.
Apart from the original defence filed, the defendant filed an additional statement of defence by way of answer to the plaintiff’s amended statement of claim. In these defences, the defendant denies that the will is a forgery. She contends that the will is the true last will of the late Sobhy Baksmaty, and that he properly executed the said will in the presence of witnesses. She contends further that the deceased had testamentary capacity even according to Mohammedan law to make his will, whatever his domicile. The defendant maintains that although the plaintiff is brother of the deceased, yet he is not such a next-of-kin who is or can be entitled to any interest in the deceased’s estate and that therefore he cannot maintain an action against her in that capacity. She further claims that she is the mother and natural guardian of her six children and denies any claim on the plaintiff’s part to be the guardian of her children, and she claims generally that the plaintiff has no locus standi in this action.
The original will of the deceased and the probate granted thereto were admitted in evidence and marked respectively as exhibit A and exhibit 1. I think it is essential at this stage to determine whether or not the plaintiff has all or any of the capacities in bringing this action. Apart from the High Court registrar whom the plaintiff called to produce the will, the only other evidence which the plaintiff put forward in support of his case is that of himself. The plaintiff admitted in evidence that in accordance with Mohammedan law, since the deceased died leaving a son, he, the plaintiff cannot be entitled to any interest whatsoever in the deceased’s estate.
It has been settled on the authorities that where probate has already been granted to a will, a court will only entertain an action to revoke such probate and will make such an order for revocation only at the instance of a person who is entitled to succeed or inherit on an intestacy. So that since on his own showing the plaintiff cannot be entitled to any share of the deceased’s estate on an intestacy, the fact that he is a brother of the deceased is of no consequence, and it is my view that on that score he has no maintainable right of action against the defendant.
Having regard to the second capacity in which he sues, it is my view that the plaintiff failed to establish how he could be the guardian of the defendant’s children in the face of the defendant’s contention that she is the mother and natural guardian of her children, and it is my view that on this score also he has no locus standi in this action. Having regard however to the third capacity in which he sues, the plaintiff has tendered in evidence a power of attorney which he obtained from the guardian of Fatma Salam in the Lebanon. The plaintiff’s evidence is that on an intestacy the said Fatma Salam who is beneficiary under the will may be entitled to more than what was bequeathed to her by the said will, and so I consider that on this score the action is maintainable. But pausing here for a moment, I think it is pertinent to ask why the plaintiff should make such moves to set aside the wishes of his late brother as contained in the will when he is not by law entitled to any interest in the estate. Bearing in mind the plaintiff’s own evidence that since the deceased had a son he knew that he was not entitled to any share or interest in the deceased’s estate, one can hardly understand why it is that after the death of his brother, the plaintiff went to make improper suggestions to Dr. Hawe, physician specialist at the Ridge Hospital, Accra.
Now this Dr. Hawe was the physician who attended to the deceased during his illness, and according to his evidence on this point which stands unchallenged, and which I accept, the plaintiff accompanied by another Lebanese citizen went to Dr. Hawe’s bungalow some time after the death of the late Sobhy Baksmaty and the plaintiff there asked him to agree to a suggestion that the deceased was non compos mentis at the time that he was attending to him during the latter days of his life, and that therefore the deceased could not sign his name.
Not being satisfied with the refusal of Dr. Hawe to co-operate with him, the plaintiff quickly filed a writ of summons against the defendant in this court for the revocation of probate, and about the same time he proceeded to the Lebanon where from his own evidence he made all sorts of representations to various institutions all purporting to condemn the validity of the will of his late brother, and it is significant to note that it was there and at that time that he obtained a power of attorney from the guardian of Fatma Salam, and it was after he had obtained this power of attorney that he applied to amend his statement of claim.
I think it is convenient at this stage to refer to the evidence as to the state of health of the deceased some time before his death. The late Sobhy Baksmaty suffered from acute diabetes, and it is not in dispute that at the time of making the will and at the time of his death the deceased was totally blind. Further it is not in dispute that the deceased was paralysed of both legs, save that according to Dr. Hawe, if he was helped out of bed he was able to walk with some assistance. Having regard to the other aspect of his health I quote hereunder the relevant part of Dr. Hawe’s evidence which I accept:
“Physically he was suffering from diabetes. I saw him in January 1963. He had then returned from Lebanon. He was then completely blind. I know that he died at the Ridge Hospital. I attended the deceased in January 1963 and I continued to attend to him till April 1963. During this period his mental condition was perfectly normal until the day before he died when he became unconscious. I regard him during this period, and before this period, that he was a person perfectly capable of transacting any business. In my opinion the late Baksmaty was during this period a person perfectly capable of giving instructions for a will to be made for
him for the disposal of his properties. The late Baksmaty had until his death the full use of his hands and fingers and arms. I will say that he could write. He could sign his name assuming his hand was put on the paper.”
I shall now consider firstly the plaintiff’s claim that the will is a forgery and that it was not in fact made or executed by the deceased. There can be no doubt that the onus of proving these serious allegations rests strictly upon the plaintiff. See the case of Quarm v. Yankah II.1 I must here indicate that if the plaintiff had put forward the slightest evidence affecting any persons concerned with these proceedings in respect of the felonious act of forgery alleged by him, I would have considered adopting the course laid down in the case of Smith v. Selwyn2 and would have stayed further proceedings in the action until the person or persons against whom the act is alleged had been prosecuted.
But in this case there is not a tittle of evidence put forward by the plaintiff in support of the alleged felonious act, nor was there any evidence adduced by him or on his behalf that the will was not made by the deceased or that he did not execute it. In answer to cross-examination the plaintiff told the court that he alleged the will is a forgery because his brother did not inform him that he had made a will; but with only this as its foundation one can only conclude that such a claim cannot be anything else but frivolous.
On the part of the defence on the other hand, there is overwhelming evidence adduced as to the
circumstances of the making of the will and of its execution by the deceased. The defendant has
impressed me as a witness of truth and I accept her evidence as to the directions which she had from the deceased to instruct Messrs. Giles Hunt & Co. to prepare his will, and as to the rough draft prepared by Mr. Pollard, one of the partners of the firm, in his own handwriting which was read over to the deceased and of which he approved, and of the final making of the will by the said firm of solicitors. This rough draft was admitted in evidence and marked exhibit 4. The evidence of Mr. Dinsey, the defendant’s third witness, who has worked with Giles Hunt & Co. for the past 25 years as their chief clerk and who knows the handwriting of Mr. Pollard very well satisfies me that exhibit 4 is in Mr. Pollard’s handwriting.
I accept also the defendant’s evidence that after the defendant’s fourth witness Mr. Crayem, and the defendant’s fifth witness Dr. Salaby, had read over and explained the contents of the will to the deceased and after the deceased had expressed his approval of the correctness of its contents, she placed the will before him and gave the deceased a pen, and then guided his hand to that part of the will where he should sign, and that the deceased made his signature thereon in the presence of those witnesses and that Mr. Crayem and Dr. Salaby in the presence of each other also signed their names at witnesses to his signature.
I accept also the evidence of Mr. Crayem and that Dr. Salaby that after they had both read the contents of the will to the deceased and after the deceased had well understood and had had full knowledge of the contents thereof, the defendant guided his hand and the deceased signed the will in their presence, and that they then also each signed as witnesses in the presence of the other. I have considered the question of the guiding of the deceased’s hand by the defendant to the position where he had to sign his name on the will. In the English case of Wilson v. Beddard3 it was held that if a testator, who is unable from illness to sign his will, has his hand guided in making his mark, it is sufficient signature within the Statute of Frauds. In this case, since the testator was a blind man it is my view that it was perfectly in order for the defendant to have guided his hand to the position on the will where he had to sign it, and that the testator’s signature on the will was properly made. I have also considered the evidence of the defendant’s second witness and exhibits 2 and 3 put in evidence through him, and I can find no difference between the deceased’s signature on those exhibits and that on the will,
save for the shift which was explained to be due to the occasional shake of the deceased’s hand.
I am satisfied on the whole of the evidence and I do find that the late Sobhy Baksmaty well understood the contents of the will which were read over to him and put before him and which he signed, and that when he executed the said will on 23 February 1963 he knew what he was doing and wished to make his last will and testament, that he made his said signature in the presence of the witnesses Mr. Crayem and Dr. Salaby, who also signed as witnesses to his said signature in the presence of each other, and that therefore the said will is a good and valid will: see the opinion of the Judicial Committee of the Privy Council dated 14 December 1953 in Christian v. Intsiful.4 For these reasons the plaintiff’s claim on this ground must fail. I shall now pass on to the plaintiff’s alternative claim that the late Sobhy Baksmaty had no testamentary capacity according to Mohammedan law which is the law of his domicile to make the said will, which according to him is therefore invalid. In the fist place I must observe that the question of the domicile of the deceased was not sufficiently well canvassed, but even if it were, I can hardly find on the authorities and on the whole of the evidence that the deceased had abandoned his domicile of origin. The result therefore is that the deceased, according to the evidence, remained a Mohammedan, but as no special Mohammedan law has been shown by evidence to apply to the Lebanon by statute, it is my view that I must be guided in this matter by Mohammedan law as it applies generally.
The plaintiff by his evidence professes to be conversant with Mohammedan law, but how much of it he knows is difficult to assess. Having brought an action in which one of the main issues on which he relies is the capacity or incapacity of the deceased to do certain things under Mohammedan law, one can hardly understand the reason why he was unable to subpoena or call an expert on Mohammedan law to give evidence on his behalf. Although the plaintiff failed to do that, it is significant to observe that the defendant realised the importance of such expert evidence, and in order to assist the court in determining the point, she subpoenaed the Chief Imam of the Ghana Armed Forces, Alhaji Salah Sinare. His evidence on Mohammedan law as to bequests is that all Mohammedans can make their wills provided they did not bequeath more than one-third of their estate to strangers to the detriment of their heirs. His evidence goes on that if even a Mohammedan is travelling on a plane and he decides to make a will, he can do so even while on the plane provided he can get two persons to witness its execution.
He stated further that if a Lebanese Mohammedan leaves the Lebanon and comes to reside in Ghana for a number of years and acquires property here, he can make a will even though he has his home in the Lebanon, and that by his said will he can dispose of all of his properties to his wife and children even though he married the wife in the Lebanon, and that in all these cases the deceased’s brother has no right to interfere. Several questions were put to this witness to which in my view he gave satisfactory answers and among these questions were the following:
Q. Put to you that a Mohammedan cannot make a will⎯making dispositions to his own heirs?
A. The Koran does not say so. Hadeith who is a Jurist says so. His reasons are that a will is not necessary in so far as in any case the children will inherit. But Hadeith goes further and says that if a Mohammedan can foresee that after his death there will be trouble in regard to his properties, then he can make a will to his heirs in spite of Hadeith’s school of thought that a will is unnecessary.
Q. Put to you that if a Mohammedan makes a will to persons entitled to inherit him, except the beneficiaries consent to the dispositions, the will is invalid?
A. I do not agree with that as being the law.
Q. Have you heard of the maxim ‘No bequest to an heir’?
A. Have heard of it. It is so but it is not so.
Q. Can a person make a will to discriminate the shares the children will take?
A. He should not give one of the children less. At the same time he has a discretion to give one of the children more⎯having regard to the circumstances he may find the child placed.
To his children and heirs a testator can by will bequeath all his estate but to other people only one-third.”
Now this witness apart from being the Chief Imam of the Ghana Armed Forces is a graduate in Moslem law of the Ashar University in Cairo. Further than that, he is a lecturer in Mohammedan law in the Burma Camp, Accra, and is also a magistrate and arbitrator of the Ghana Moslem Council. I am of the opinion that his position as an expert in Mohammedan law has been quite sufficiently proved; the way in which he expounded the law and in which he answered question satisfied me of his professional skill and of his sound knowledge of the Mohammedan law, and I do accept his evidence.
In support of his contention as against this evidence, that is to say that the deceased had no testamentary capacity, counsel for the plaintiff has referred me to the book written by J.N.D. Anderson on Islamic Law in the Modern World, and to that written by Asaf A.A. Fyzee on the Outlines of Mohammedan Law. But it is significant to observe that in both these books as also in the book written by Kamila Tyabji on Limited Interests in Mohammedan Law, all these writers are agreed that Moslems can make wills to dispose of their properties and that wills are lawful on a favourable construction.
In his book on the Outline of Mohammedan Law (2nd ed.) Fyzee states at page 301 that “Bukari reports a tradition laying down that a Muslim who possesses property should not sleep even for two nights unless he has made a written will.” And at page 302 he writes, “The object of making a Will is well explained by M. Sautayra, a Jurist quoted by Amner Ali ‘A Will from the Mussulman’s point of view is a divine institution, since its exercise is regulated by the Koran . . .’.” Finally, at page 312 comes this passage, “A Will speaks, generally, from the date of the death of the testator, as in modern law. The Court will, as far as possible, give effect to the intention of the testator.”
In his on Limited Interests in Mohammedan Law, Kamila Tyabji writes at page 86:
“Nevertheless, [wills] are justified on the grounds of necessity, the testator’s right in the property being held to endure in the same way as with respect to funeral rites or the payment of debts; and because they are declared lawful in the Quran and the hadith and according to all authorities.”
The submission now raised by counsel is based on the maxim “No bequest to heirs.” He contends that according to that maxim a Muslim cannot make a bequest to an heir who is entitled to inherit, and that a bequest to an heir is not valid unless the heirs consent to it.
It is significant to observe that there are many schools of thought in Mohammedan law — this is postulated by counsel for the plaintiff himself by question put to the expert witness, but this rules as quoted by him is not accepted by all the schools of thought and cannot therefore be held to be absolutely binding law.
This rule quoted by plaintiff’s counsel is referred to in Fyzee’s Outlines of Mohammedan law at page 310 as being propounded by the Sunnite schools and the Fatmid school of thought — which give reasons for this rule, but at the same page of the book the contrary view of another school of thought appears:
“The one school which does not adopt this reasoning is the Ithna Ashari among the Shiites. Basing themselves on a Koranic text, they hold that so long as the legacy does not infringe the one-third rule, and is otherwise lawful, the fact that the legatee is an heir is immaterial.”
The same view is expressed in a passage at page 73 of Anderson’s Islamic Law in the Modern World. “But the Ithma ‘Ashari branch of the Shi’a wholly reject this tradition in its Sumni fora, and allow a testator to exercise his unfettered discretion in making bequests whether to heirs or non-heirs⎯provided he keeps within the bequestable third.”
It is quite clear and I do so find even from the references in the books referred to, that the plaintiff has not been able to displace the evidence of the expert, which I have already indicated that I accept, that even according to Mohammedan law the deceased had testamentary capacity to make his will which is in evidence as exhibit A, and in which he properly exercised his unfettered discretion in disposing of his properties.
It follows therefore that the plaintiff has failed to establish that the deceased had no testamentary capacity to make his will, and that his claim on this ground must also fail. There is one last observation. The plaintiff sought to contend that the deceased ought not to have directed that 18,000 Lebanese pounds should be paid to the defendant as amount due to her under the marriage contract—whereas in accordance with the said marriage contract—what is due to the defendant is 8,000 Lebanese pounds. It is true that the marriage contract stipulates a lesser amount, but since it is the express wish of the deceased by his will that the defendant should take 18,000 Lebanese pounds effect must be given to that intention. In the result I find that the plaintiff has failed on all grounds to establish his claim for the revocation of probate
granted by this court to the defendant in respect of the will of the late Sobhy Baksmaty, and accordingly I do dismiss his such claim and enter judgement for the defendant with 400 guineas costs inclusive of counsel’s costs.
I direct that 200 guineas out of these costs shall be paid from the estate in so far as the plaintiff’s right of action as attorney for Fatma Salam’s guardian is concerned, and that the remaining 200 guineas shall be paid by the plaintiff.
DECISION
Action dismissed.
S. A. B.
