Maharaj v Moses
| Jurisdiction | Trinidad & Tobago |
| Judge | Gopeesingh, J. |
| Judgment Date | 08 December 1989 |
| Neutral Citation | TT 1989 HC 140 |
| Docket Number | 1687 of 1981 |
| Court | High Court (Trinidad and Tobago) |
| Date | 08 December 1989 |
High Court
Gopeesingh, J.
1687 of 1981
Mrs. Lynette Maharaj for the plaintiff.
Mr. T. Guerra for defendant.
Will - Due execution — Plaintiff sought probate of will executed by testatrix in 1980 — Plaintiff instrumental in preparation of will and sole executor and beneficiary — Testatrix hospitalised at time of execution of will — Finding of court that there were circumstances which excited the conscience of the court which had not been removed by affirmative proof on the part of the plaintiff — Finding of the court that there was evidence that the 1975 will had been properly executed — Order that plaintiff's claim be dismissed — Judgment entered for defendant on counterclaim.
By an amended Writ of Summons and Statement of Claim, the plaintiff, as sole executrix named in alleged Will of Matilda Joseph, dated 6th September, 1980, who died on 10th September, 1980, seeks probate in solemn form of said Will.
By her defence and counterclaim, the defendant, who was, upon the application of the plaintiff, substituted as such in place of her deceased husband, Vernon Moses, who died on 9th March, 1985, contends that the alleged Will was a forgery in that it was not made or executed by the deceased testator, Matilda Joseph, either on the date thereon or at all. The defendant also denied that the said Will was duly executed as required by the Wills and Probate Ordinance, Chapter 8, No. 2. The defendant further contends that at the time the said alleged Will was purported to have been executed the deceased testator was not of sound mind, memory and understanding and has furnished particulars of these allegations. In the alternative, the defendant contends that the alleged Will was procured by the undue influence of the plaintiff and gives particulars thereof. Further, the defendant denied that the testator knew and approved of the contents of the said alleged Will. And by way of counterclaim, the defendant sets up a previous Will dated 23rd July, 1975, of which her deceased husband, Vernon Moses, was sole executor, and asks for probate thereof in solemn form.
Before going into the merits or demerits of the respective party's case I think I should firstly deal with four preliminary questions which were raised in the course of this matter.
Attorney for the defendant took a preliminary objection to this Court proceeding to hear this matter de novo on the ground that the matter had been part heard before Misir, J., who retired before completing same and submitted that the only authority for ordering that the matter be heard de novo lay in the hands of the Chief Justice and there is no evidence that such an order was mad by him. He relied upon the provisions of Order 4, rule 5(2) of the Supreme Court Practice in England in support of this proposition. He admitted, however, that there was no corresponding rule in the Rules of the Supreme Court of Trinidad and Tobago (1975).
On a perusal of the “Fly Sheet” the Court observed that on 6th October, 1986, there is indorsed thereon, in red “de novo trial”. Since this indorsement is in red and the Court was uncertain whether that indorsement was in fact part of the order made on that date by Mr. Justice Douglin, before whom the matter was called, or whether this indorsement was made by the Registrar, on the instruction of the Chief Justice, since it seemed that there had been corresponded with him by attorney acting on behalf of the plaintiff, the Court pointed out to both attorneys that such an indorsement appears, thereupon, attorney for the defendant intimated to this Court on 11th July, 1988, that he had no objection to the matter being heard de novo before this Court. Accordingly, a fresh order was made to this effect. However, on the adjourned date, 13th July, 1988, attorney for the defendant objected the matter proceeding de novo. In the Court's view, attorney for the defendant having intimated to the Court on 11th July, 1988, that he had no objections to the matter being heard de novo, and the Court having made an order to this effect, the defendant has submitted to the jurisdiction of this Court and accordingly, it was too late for such an objection to be taken. Moreover, the Court was of the view that, having regard to the provisions o section 16 of the Supreme Court of Judicature Act, Chapter 4:01, in view of the circumstances it was no longer “practicable or convenient” for the matter “to be heard, determined and disposed of” before Misir, J. Accordingly, the Court overruled this objection and proceeded with the matter afresh.
Another question which arose for determination was an application by attorney for the plaintiff that a certified copy of the routes of evidence taken before Misir, J., be admitted into evidence and read. This evidence comprised that of Harold Williams. Dr. Sam Persaud and the plaintiff – Poptee Maharaj, all of whom testified in support of the plaintiff's case before Misir, J.. This application was made day by way of a Notice dated and filed on 7th July, 1988. According to the notice, “Harold Williams could not be called as a witness at this trial because his is dead; Dr. Sam Persad cannot be and/or should not be called as a witness at this trial because he is beyond the seas and his whereabouts are unknown; and Poptee Maharaj cannot and/or should not be called as witness at this trial because of she is unfit by reason of her bodily and mental condition and cannot reasonably be expected to have any recollection of matters relevant to the accuracy or otherwise of the said statement.
Although attorney for the defendant did not dispute the grounds relied on by the plaintiff for the inability of these witnesses to attend, he nevertheless, objected to the leave sought being granted.
In Phipson on Evidence (12th ed.) at page 581, paragraph 1433 under the heading: “Depositions in Former Trials”, the following statement appears:
“At common law, depositions and oral testimony given by a witness were admissible in a civil case and are still in criminal proceedings in a subsequent (or in a later stage of the same) trial in proof of the facts stated, provided:
(1) that the proceedings are between the same parties or their privities;
(2) that the same issues are involved;
(3) that the party against whom, or whose privity, the evidence is tendered and on the former occasion a fully opportunity of cross-examination; and
(4) that the witness is incapable of being called on second trial.”
In the Court's view, all four provisions set out above were fulfilled in the instant matter and accordingly, saw no reason for denying the application. The Court was, however, cognisant that by not having the opportunity to see and hear these witness in person, it would be deprived of the opportunity of observing their demeanour and consequently, the weight which could be attached to their testimony will be affected by the loss of this opportunity.
Moreover, the Court considered the case of the Forest Lake (1968) p. 270, direct authority in favour of granting the application sought. The headnote to that case reads, in part:
“An admiralty action heard by a judge sitting without a jury was adjourned part-heard, but before the hearing could be resumed the judge retired through ill-health. The action having been ordered to be re-heard de novo, the question arose whether the evidence already given was admissible at the re-hearing without recalling the witnesses:–
Held that the evidence already given could be read at the re-hearing without the witnesses who had given it being recalled.”
Accordingly the Court granted the application.
The next question which arose for consideration was based upon a submission made by the plaintiff's attorney to the effect that in view of the evidence of the defendant, which was elicited under cross-examination, to the effect that her deceased husband had made a Will in her favour on February 24, 1978, when she was his common law wife, and that she subsequently married him on April 6, 1984, section 48 of the Wills and Probate Ordinance, Chapter 8, No. 2 applied thereby revoking the Will of the defendant's deceased husband and accordingly the grant of probate to her was a nullity. Accordingly, she was no longer a proper and necessary property and consequently, an order should be made that the defendant ceases to be a proper or necessary party, pursuant to the provisions of Order 15, rule 6 and as a result, the plaintiff's claim should be treated as being uncontested and judgment entered in her favour.
It is to be observed that although, in the summons dated and filed on 23rd October, 1985, the plaintiff sought an order that the defendant, as widow and sole executrix of her deceased husband, be substituted as defendants in the deceased's place and an order was made in terms of the summons, what appears on that title of the amended Writ of Summons and Statement of Claim is the name of the defendant in her personal capacity and the amended pleading does not state either that she has been joined in her property as the executrix of the deceased or as the administrator of his estate or as his personal representative. However, on the body of the amended Writ of Summons, it is stated: “This writ is issued against you because you are the personal representative of Vernon Moses, deceased, who had entered a caveat in the above estate.”
It seems plain therefore that the defendant was not joined either in her personal capacity or in her capacity as executrix or as administrator, but rather, as widow of the deceased, she was joined in her capacity as personal representative. Whether the defendant is the executrix under the Will of her deceased husband, therefore, or whether she is the administrator of his estate, assuming that his Will was in fact revoked by his subsequent marriage to her,...
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