Division: IN THE HIGH COURT, SEKONDI
Date: 17 DECEMBER 1964
Before: KORANTENG-ADDOW J
JUDGMENT OF KORANTENG-ADDOW J
The plaintiff brought this action in his capacity as heir and successor to the late L. T. C. Davies and as representing the other children of the said Davies, claiming: (i) a declaration that the deed of sale executed on 19 January 1953 between the first defendant and the administratrix, Fanny Margaret Davies, and also the subsequent lease executed between the first and second defendants are null and void; and (ii) £G1,500 as damages suffered as a result of the defendant’s trespass on the said land and the demolition of the buildings thereon. He elaborated on this claim by statement of claim filed with his writ on 24 February 1961 and which I quote in extenso hereunder:
“(1) On or about 16 September 1919, the late L.T.C. Davies bought all that piece or parcel of land situate at Sekondi, bounded on the north by a street running between it and on open space near the Lagoon Asamansu, on the south by Poasi Road, on the east by land running between it and Ajala’s house, on the west by Tenth Street which said piece or parcel of land was shown on a plan annexed to the relevant deed of conveyance registered in the deeds registry as No. 753/1919.
(2) The said L. T. C. Davies died intestate on 21 December 1919 and letters of administration were granted to his widow Fanny Margaret Davies on 6 September 1920.
(3) The said L. T. C. Davies was a native of Sierra Leone and, in accordance with the lex successionis, the plaintiff, being his eldest legitimate son, is his rightful heir and entitled to succeed to every landed property of the deceased on his death intestate and to control and manage same for the benefit of himself and all the other children plus the widow.
(4) Apart from the plaintiff the late L. T. C. Davies was survived by five other legitimate children viz:
(i) Lucy Davies who died later in 1948;
(ii) George Davies who died in 1921;
(iii) Fanny Davies who died in 1928;
(iv) Kwesi Dolphine who is still alive and
(v) Susana Davies who is, still alive.
(5) The first defendant, Europa Judith Randall, with full knowledge of the plaintiff’s claim but acting in collusion with the said administratrix Fanny Margaret Davies, purported to buy the property described in paragraph (1) supra from the administratrix and an indenture was executed on 19 January 1953 between them without the knowledge, consent and concurrence of the plaintiff and the other surviving children.
(6) The first defendant subsequently leased the said property to the second defendants BP (West Africa) Ltd. in spite of the plaintiff’s protest to the first defendant and a representative of the second defendants in the latter part of 1959 when both were seen inspecting the said land. Furthermore a letter of protest forwarded by the plaintiff’s solicitor to the second defendants was ignored by the latter who instead of desisting rather pulled down the buildings on the land and started erecting a petrol filling station on the land in dispute.
(7) Wherefore the plaintiff claims against the defendants jointly and severally:
(i) A declaration that the deed of sale executed on 19 January 1953 between the first defendant
and the administratrix, Fanny Margaret Davies, and also subsequent lease executed between
the first and second defendants are both null and void, and a rescission of both.
(ii) £G1,500 as damages suffered as a result of the defendants trespassing to the said land and, with the assistance of their servants and agents, demolishing the buildings thereon.”
The first defendant by her solicitor filed a defence on 8 March 1961, and the second defendants by the same solicitor on 18 March 1961 filed a defence which adopted “the statement of defence of the first defendant.” The defence of the first defendant which was adopted by the second defendant is not a defence on the facts at all. It only raised four major legal defences and I set them down in extenso:
“(a) Possession of the land claimed by the plaintiff by herself, her agents and tenants.
(b) That the claim of the plaintiff, if any, is barred by the Real Property Limitation Acts (1832-33) and the Civil Procedure Acts (1832-33).
(c) That she is a bona fide purchaser for value in possession without notice of any claim by the plaintiff.
(d) That the plaintiff and those on whose behalf the plaintiff instituted this action are not the lawful children of the late L. T. C. Davies.
(e) That the plaintiff is not entitled to any of the reliefs sought by him.”
The plaintiff replied to the defences of the two defendants and joined issue with them thereon. It would be
appropriate to quote the reply also:
“(1) The plaintiff joins issue with the defendants on their statements of defence.
(2) In further reply to paragraph 1(c) of the first defendant’s statement of defence, the plaintiff avers that the first defendant was present on two occasions when the plaintiff questioned or discussed with Mrs. Fanny Margaret Davies the question of the control and management of the property in dispute and as to what was going to happen to plaintiff’s interest or share in same. The plaintiff does not admit that the first defendant is a bona fide purchaser for value without notice of plaintiff ‘s claim.
(3) In further reply to paragraph 1(d) of the defendant’s statement of defence the plaintiff avers that his mother, Ekua Ahimbah, was the first to be married in accordance with customary law by plaintiff’s father L. T. C. Davies. The issues of the said marriage who survived their father are Lucy Davies, Fanny Davies, George Davies and plaintiff. Plaintiff’s father after divorcing plaintiff’s mother subsequently married one Efua Badua in accordance with native custom and Kwesi Dolphine was the issue of this second marriage. It was later on in his life after terminating this other customary marriage that plaintiff’s father married Fanny Margaret Davies under the ordinance and begat Susana Davies who is still alive.”
The plaintiff subsequently amended his pleadings on two occasions. He filed an amendment to his reply on 2 November 1961 and also an amendment to his statement of claim on 25 October 1961. The court granted the plaintiff leave to amend his reply on 2 November 1961 and paragraph (3) of the said reply was amended accordingly. It appeared to me just before counsel addressed me at the conclusion of the case that it had been assumed by counsel on both sides that the amendment of the statement of claim filed on 25 October 1961 had been dealt with by the court whereas in fact there is no note or order of the court allowing the said amendment. To avoid any irregularity that might arise as a result of the omission and also to bring out and determine the real issues between the parties I exercised my discretion under Order 28, r. 12 of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 and dealt with the said amendment.
The amendment added three new paragraphs to the statement of claim. It is of fundamental importance to this case and I reproduce the same hereunder:
“(7) Defendants’ title based as it is on a sale by the administratrix of the late L. T. C. Davies who had no control in law over real estate is bad and otherwise invalid.
(8) The title of the defendant is also invalid because it is based on a grant from an administratrix without the consent and knowledge of the co-administrator of the estate of the intestate, L. T. C. Davies (deceased) aforesaid.
(9) The letters of administration in respect of the estate of the said L. T. C. Davies deceased were, by the order of the court, granted to the widow, Fanny Margaret Davies and the registrar of the Divisional Court, Sekondi, jointly.”
Both counsel in this case were not sure whether or not the said amendment had been dealt with by the court. When I sought assistance from them, Mr. Hayfron-Benjamin said that the amendment was filed by Mr. Baidoo and that he was not sure, whether or not it had been dealt with by the court. Mr. Akainyah also told me that he was not in the case originally and was not in a position to say whether the amendment was dealt with by the court. I therefore granted the plaintiff leave to amend and also the defendants leave to plead to the said amendment.
Learned counsel for the defendants intimated to the court that he had filed an amendment to the defence of the two defendants on 16 November 1964 and that he did not require time to plead to plaintiff’s amended statement of claim. He, however, asked leave of the court to add a few words to the amendment he had already filed. I granted him leave and dealt also with his amendment. The original amendment filed by Mr. Akainyah read:
“(f) The first defendant denies paragraphs (3), (5) and (6) of the statement of claim and in particular denies any act of collusion in the purchase of the property and further says that in any case the plaintiff is neither a successor nor heir nor representative of the late L. T. C. Davies.”
Mr. Akainyah added the following words to paragraph (f), namely, “and further denies paragraph (9) of the amended statement of claim.” The averments in paragraph (9) of the amended statement of claim were that the letters of administration in respect of the estate of the said L. T. C. Davies were by the order of the court, granted to the widow, Fanny Margaret Davies and the registrar of the Divisional Court, Sekondi jointly. The original of the letters of administration were without objection put into evidence by the plaintiff and marked exhibit F.
When this came to be tried originally in December 1961, a preliminary point was taken by counsel for the defendants, Mr. Awoonor-Williams, challenging the capacity of the plaintiff to sue. The matter was argued and a ruling was given thereon on 8 January 1962. The court in that ruling2 held that the plaintiff had no locus standi and therefore dismissed the plaintiff’s claim. The plaintiff appealed against the said ruling and it was upset by the Supreme Court on 29 April 19633 The Supreme Court held, inter alia that, the plaintiff and the other children, on behalf of whom the plaintiff brought this action, are legitimate children of the late L. T. C. Davies, and that the plaintiff had capacity to sue and that as there is no evidence that the deceased has any relations in Ghana who could succeed, the children, including the plaintiff, were entitled to succeed to the estate of the deceased.
At the hearing of this matter the plaintiff gave evidence on his own behalf and tendered six documents. He called no other witness. The first defendant did not call witnesses either. She gave evidence for herself and presumably for the second defendants who did not appear at the trial. She also tendered in evidence the original deed of conveyance from the late Mrs. Fanny Margaret Davies to her (exhibit 1) and another document, the copy of an affidavit sworn to by a Mrs. Liverpool, the daughter of the late Mrs. Davies who was born out of wedlock, the father being the late L. T. C. Davies, and who deposed to the fact that she knew about the conveyance to the first defendant and consented to the same.
The circumstances and matrimonial history of the late L. T. C. Davies have been set out fully in the pleadings and statement of claim quoted above. I will not therefore repeat them here. The evidence of both the plaintiff and the first defendant is simple and need not be commented upon at length. The only controversial point is whether or not the first defendant bought the land in collusion with the administratrix, knowing full well that others beside the administratrix had an interest in the said property and also whether the plaintiff warned the defendants of the interest of the other beneficiaries and himself.
As far as I can see it the question of collusion is not important for the determination of this suit. I need not therefore comment on it. On the question of notice, although the plaintiff prevaricated about certain dates in his evidence, I believe that his evidence is substantially true. I believe that he warned the defendants when they purported to deal with the property. Exhibit D, the letter of warning, and the reply to it (exhibit A) bear eloquent testimony to this.
This case is one fought purely on law and I shall therefore proceed and discuss the questions of law involved. I shall first of all deal with the legal point raised in paragraph (a) of the defence, namely, the plea of possession and to say briefly that as the law applicable to this matter is Ghanaian law, then mere possession of the land, however long, cannot confer title on the first defendant. Her possession is neither of such duration nor is it of such quality as to make it contrary to the principles of equity to allow customary law to apply in its entirety. Even though the first defendant said in her evidence that she bought the land in 1948 from the late Mrs. Fanny Margaret Davies and obtained a conveyance in respect thereof on 29 January 1953, she led no evidence of occupation or possession. Nor is there any evidence that she did any visible thing thereon to put the plaintiff and the other interested parties on their mettle and to suggest she was in possession. With regard to the second defendants, according to the plaintiff, whose evidence on that score I believe, he warned them, together with the first defendant, as soon as he saw them on the land and he also caused exhibit D to be written on his behalf soon thereafter. The conduct of the defendants and the circumstances of the case do not therefore warrant the invocation of equity in their favour.
The plea in paragraph (b), namely, that this action is barred by the Real Property Limitation Act, 18834 and the Civil Procedure Act, 1883,5 I also dismiss on the ground that the laws cited are inapplicable to this case. A similar submission, as is being made here, was made by Mr. Awoonor-Williams in Payin II v. Anquandah.6 Verity C.J. (Nigeria) stated that the Real Property Limitation Act, 1883, was “a statute of very doubtful aid in relation to land held by native law and custom.”7
I shall deal in due course with the third legal defence raised, namely, that the first defendant being a bona fide purchaser for value in possession without notice of any claim by the plaintiff, is to be protected. The crucial question therefore in the case is whether or not the sale and conveyance to the first defendant by Mrs. Davies in 1953 was valid. If it was valid then it cannot be impeached at this stage. If on the other hand it was defective and therefore invalid then both the conveyance (exhibit 1) and the lease granted out of it to the second defendants are invalid. To be able to decide whether or not exhibit 1 is valid and effected a transfer of the land in respect of which this action has been brought, we have primarily to determine the rights Mrs. Davies had upon which she based her powers of sale. Mrs. Davies recites in exhibit 1 that she conveyed the land concerned herein in her capacity as administratrix of the estate of L. T. C. Davies.
Before discussing the question any further I would wish to state here that, as rightly submitted by learned counsel for the defendants, this matter involves conflict of laws. The late L. T. C. Davies was a native of Sierra Leone and was domiciled in Sierra Leone at the time of his death. However the property involved herein was situated in Ghana (then Gold Coast) and so the incidents to the said property, the right of alienating or limiting it, and the course of succession to it, depend entirely on the law of the country in which it is situated, in this case the law of Ghana. See Nelson v. Bridport.8
The law as to the powers of an administrator in Ghana prior to the passage of the recent Administration of Estates Act, 1961,9 was that the administrator of the estate of an intestate could only deal with the personal property of the said intestate. He could sell or mortgage the intestate’s personal property including leasehold property but not his freeholds. The position and powers of an administrator compared with those of an administrator in England on 24 July 1874. That is as far as the general law went. See Gorleku v. Gorleku10 and Obuobi v. Borley.11 The law however is different when the intestate had opted, by his marriage in English form, to let his affairs be governed by the provisions of the Marriage Ordinance12 By section 48 thereof the realty and personalty of the intestate were blended into one fund for the purposes of distribution. See In re Knutsford Avenue.13 By reason of the provisions of the Marriage Ordinance therefore, the properties of the deceased, both real and personal were vested in the
administrator. Among the powers of the administrator is the power to sell. Any sale by the administratrix of the property involved therein would have been valid. But the position in this matter is different. The letters of administration in respect of the estate were granted to the late Mrs. Davies, the vendor of the first defendant herein and the registrar of the Divisional Court, Sekondi jointly. I quote hereunder the full text text of the order of the court granting the letters of the administration from exhibit F:
“Letter of Administration Not with Will Annexed. In the Supreme Court of the Gold Coast Colony, Western Province, Seecondee. Be it known that on the 6th day of September 1920 letters of administration of the personal property of Lemuel Thomas Curtis Davies late of Seecondee deceased who died on the 21st day of December 1919 at Angu Station intestate, and who had at the time of his death his fixed place of abode at Seecondee within the jurisdiction of this Court were granted by this Court to Fanny Margaret Davies of Seecondee the lawful widow of the said intestate, she having been first duly sworn and it is ordered that the Registrar of the
Divisional Court Seecondee be joined as a Co-Administrator.
(Sgd.) J. Ernest Green
Sworn under £3000.00. and that the Intestator died on the 21st day of December 1919.”
Any sale of the property without the participation of the registrar of the court is therefore invalid and passed no title.
The position of executors is essentially different from that of administrators. When there are more than one executor each of the co-executors has full and complete power over the entire estate of the deceased and can deal validly with the properties individually without the participation of the other executor or executors who have taken probate. This is because executors receive all their power and interest from the testator and probate is only a declaration of the court that they are executors. In the case of administrators, what they obtain by the grant of letters of administration, is more than a bare authority. It is a private office of trust, but less than the interest of an executor. In Hudson v. Hudson14 Lord Hardwicke L.C., had to determine the question whether a release of a debt or conveyance of a term by one joint administrator would bind his companion when there was joint administration granted. The Lord Chancellor arrived at the determination by comparing the office of an executor with that of an administrator. He decided the question on this reasoning15:
“But the case of executors differs essentially from that of administrators; executors receive all their power and interest from the testator, and though before they can maintain an action they must prove the will (vide Wills v. Rich, post, 2 vol. 286, note 1), yet the probate is only a declaration of the proper court that they are executors, which by the law of Scotland is called confirming the executors to the testator, and is the same in effect as is done here, and still the interest arises not from the probate, but from the testator; therefore an executor may release a debt, or assign a term before probate (Dyer, 367 a, pl. 39. Mead v. Lord Orrery, post, 3 vol. 239), and if after probate he sues for the same, the precedent act done by him may be pleaded in bar: if an executor appoints another to be his executor, and dies, he is immediate representative to the first testator, but on the death of an administrator, his whole interest determines, and administration de bonis non, &c., must be granted.
So if a creditor makes his debtor his executor, the debt is totally extinguished, and cannot be revived, (1) though the executor should afterwards die intestate, and administration de bonis non, &c., of the first testator should be granted: but if a debtor be appointed administrator, that is no extinguishment of the debt, but a suspension of the action, and his representative on his death would be chargeable at the suit of the administrator de bonis non, &c., of the first intestate. Salk 229; 7 Co. 135. These cases evince the different foundations on which the rights of executors and administrators depend, the power of the latter arising wholly from the ordinary, of the former from the testator.
The right of an administrator is expressed so differently in the books, as if they were at a loss how to describe it. In 8 Co. 135 b, it is called an authority, because the administrator has nothing to his own use; in Vaughan, 182, it is with greater propriety called a private office of trust, for it is more than a bare authority, and less than the interest of an executor which seems to have been the foundation of Lord Cowper’s opinion in 2 Vern. 514.
If therefore an administration be in the nature of an office, what will the consequence be in the present case? for if an office is granted to two, they must join in the executing the acts of the office, and one cannot act unless in the name of both, and on this kind of reasoning the present case will depend.”
Learned counsel for the defendants has urged upon me in his address that even if Mrs. Davies (deceased) acted without the participation of her co-administrator what she did would only be defective and that such a defect is curable and could be remedied by the principle of protection of purchasers from personal representatives. He cited the case of Basset v. Nosworthy16 which has been reported in White & Tudor’s Equity Cases (8th ed.) at p. 164. He also referred me to Snell’s Principles of Equity (25th ed.) at p. 317. I do not, however, consider the case and the principle referred to, applicable to the present case. In England as regards personalty, including leaseholds, the rule had always been that a person dealing for value with an executor or administrator was not concerned to inquire whether the disposition was a proper one even
if a long time had elapsed since the death. The Land Transfer Act of 189717 which vested the realty in the executor or administrator made the rule applicable to realty also. The Administration of Estates Act, 1925,18 made certain far reaching changes in the position which I need not discuss here. But even before the passage of this last mentioned Act, a purchaser who knew that there was no valid reason for the executor selling (and no valid reason for selling has been given in evidence in this case) did not obtain a good title. See In re Verrell’s Contract.19
As I have indicated above, the law applicable to these transactions is that of the lex situs, that is, the law of Ghana not the law of England. Imperial laws of general application passed before 1874 are the only ones which are applicable to this country. Learned counsel for the defendants
agrees with me on this score. Both the Land Transfer Act, 1897, and the Administration of Estates Act, 1925, therefore, have no application to this case. Rather it is the principle of caveat emptor that is applicable. The purchaser had to investigate the genuineness of the title he intended to purchase. See Broom’s Legal Maxims (9th ed.) at p. 502, and also the case of Egbeyemi v. G. B. Ollivant & Co., Ltd.20
In the light of the foregoing and the state of the authorities I am bound to hold that the sale by the late Mrs. Davies to the first defendant is invalid and passed no title. The lease from the first defendant to the second defendants which is based on exhibit 1 is also invalid and passed no interest in the said property. There will therefore be judgment for the plaintiff and a declaration that the deed of sale executed between the first defendant and the administratrix, Fanny Margaret Davies, and also the subsequent lease executed between the first and second defendants are both null and void. I therefore order the said document to be delivered up within 30 days to be cancelled. As regards the second relief, namely, the claim for damages,
I shall award only £G400 damages, because the value of the land has, if anything at all, been enhanced by the trespass complained of. I also award 100 guineas costs in favour of the plaintiff.
DECISION
Judgment for the plaintiff.
T.G.K.
