COURT OF APPEAL, ACCRA
Date: 8 MARCH 1974
ANIN JA
CASES REFERRED TO
(1) British Bata Shoe Co., Ltd. v. Roura & Forgas Ltd. [1964] G.L.R. 190, S.C. reversing Roura Forgas Ltd. v. British Bata Shoe Co., Ltd. [1961] G.L.R, 339.
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| (2) | Fawcett v. Odamtten, Donkor (Claimant) (1929) F.C. ‘26-’29, 339. |
| (3) | Fynn v. Gardiner (1953) 14 W.A.C.A. 260. |
| (4) | Nyali Ltd. v. Attorney-General [1956] 1 Q.B. 1; [1955] 2 W.L.R. 649; [1955] 1 All E.R. 646, C.A |
| (5) | Lutterodt v. Lutterodt (1915) K.F. 1. |
| (6) | Shore v. Wilson (1842) 9 C1. & Fin. 355; 8 E.R. 450, H.L. |
| (7) | Quaye v. Mariamu [1961] G.L.R. 93, S.C. |
| (8) | Lewis v. Green [1905] 2 Ch. 340; 74 L.J. Ch. 682; 93 L.T. 303; 54 W.R. 93. |
| (9) | Siasoum v. Kyi [1971] 1 G.L.R. 483, C.A. |
| (10) | Mason v. Schuppisse (1899) 81 L.T. 147. |
| (11) | Amarfio v. Ayorkor (1954) 14 W.A.C.A. 554. |
| (12) | Santeng v. Darkwa (1940) 6 W.A.C.A. 52. |
| (13) | Agyeman v. Yamoah (1913) D. & F. ‘11-’16, 56. |
| (14) | Larkai v. Amorkor (1933) 1 W.A.C.A. 323 |
| (15) | Lartey v. Hausa [1961] G.L.R. (Pt. 11) 773. |
| (16) | Ehuran v. Atta [1960] G.L.R. 224, S.C. |
| (17) | Adu v. Kuma (1937) 3 W.A.C.A. 240. |
| (18) | Kojo v. Dadzie (1951) P.C. Appeal No. 61 of 1941, unreported. |
| (19) | Ansah v. Sackey (1958) 3 W.A.L.R. 325. |
| (20) | Tetteh v. Anang, High Court, 14 December 1957, unreported. |
| (21) | Owoo v. Owoo (1945) 11 W.A.C.A. 81. |
NATURE OF PROCEEDINGS
APPEAL AND CROSS-APPEAL by the defendant and the plaintiff respectively from a judgment of the High Court reported [1965] G.L.R. 619 on an originating summons for an interpretation, inter alia, of a deed of settlement made in English form. The facts are fully stated in the judgment of Anin J.A.
COUNSEL
P. A. Adjetey for the appellant.
Dr. E. V. C. de Graft-Johnson for the respondent.
JUDGMENT OF ANIN JA
The defendants-appellants appealed from only a part of the judgment of the Accra High Court dated 28 October 1965 and reported in [1965] G.L.R. 619, while the plaintiffs-respondents (who were substituted for the original plaintiff, now deceased) filed a notice of contention imploring that the said judgment should be varied. Since both parties have in the event cross-appealed from parts of the same judgment, I shall refer to them simply as the plaintiff and the defendants respectively.
The main facts of the case are as follows: The late Joseph Peter Oconnor Biney, who died in 1910, was the father of the plaintiff and grandfather of the defendants. By a deed of settlement dated 12 March 1901 (exhibit A), he conveyed his freehold land with building thereon measuring 100 ft. by 100 ft. situated on the Korlena, James Town, Accra (now numbered D.540/1 Bruce Road and popularly known as “Bineyville”) to his two brothers and a cousin, namely, Joseph Cobblah Biney, Charles Biney and Adolphus Joseph Ashun, as life tenants; thereafter to his four children as remaindermen, namely, the plaintiff, Claudius William Biney,
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Lily Mensimah Biney and Hendrick Frederick Bart Biney, “their heirs, and assigns” forever.
At the date of the plaintiff s originating summons, all the donees with life interests and the remaindermen under the deed of settlement bad died, with the exception of the plaintiff, who was the sole survivor of the remaindermen. It was undisputed by the parties that the settlor (J. P. O. Biney, deceased) acquired from the Sempe stool a tract of land adjoining the area of 100 ft. by 100 ft. specifically conveyed by the deed of settlement (exhibit A); that this extra land was subsequently integrated into and treated as one whole with the demised land; and that the entire area was popularly referred to as “Bineyville.”
In his evidence, the plaintiff alleged that Joseph Cobblah Biney, a former head of family, partitioned “Bineyville” into two parts and granted one part to the plaintiff and the other to the plaintiff ‘s brother Hendrick, the father of the defendants. Thereafter Joseph Cobblah Biney permitted the plaintiff to erect buildings on the portion granted him and to make extensions to the original building known as “Bineyville.”
After reviewing the relevant evidence, the learned trial judge held first, that upon the death intestate of J. P. O. Biney, the accretion to “Bineyville,” (which was not conveyed by exhibit A) became family property; and secondly, that the evidence adduced by the plaintiff in support of an alleged grant to him of a portion of the said accretion to the area covered by exhibit A was unsatisfactory and unconvincing. There was no evidence of the alleged grant of this land to the plaintiff by Joseph Cobblah Biney, the then head of family, with the concurrence of the principal members of the family. Thirdly, the learned judge held that the plaintiff failed to prove that the enlarged “Bineyville” had been partitioned between himself and his brother Hendrick by Joseph Cobblah Biney. The latter was a life tenant under exhibit A; and he collected rents from “Bineyville,” not as head of family but as a life tenant in his own right. The plaintiff chose to build on family land which still remains family property. By operation of customary law, the buildings put up by him on the vacant portion of “Bineyville” would become family property on his death. The plaintiff has only a life interest in these additional buildings.
Apart from the land conveyed by exhibit A (the deed of settlement), and the extra land appurtenant thereto acquired from the Sempe stool, there was a third lot of landed properties which formed the subject-matter of the plaintiff s originating summons. These were two houses, Nos. D.50/3 and D.51/3, Adedainkpo Street, Accra, which were held by the learned judge to have become family properties after the death of Lily Mensimah Biney alias Mrs. Lily Aikins, the plaintiff s sister. She had inherited two-thirds of these Adedainkpo houses on her husband’s death, while the remaining one-third vested in the family of her husband. On her death, Lily’s estate devolved on her mother and her two brothers, the plaintiff and Hendrick (the defendants’ father). By a family arrangement, the one-third share of the Aikins’ family in the two houses was bought to enable both houses to be in the ownership of the Biney family as family
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properties. The two brothers had successfully challenged in the Ga Native Court their mother’s testamentary disposition of these two houses and recovered them from her executors on the ground that they were family properties and could not therefore be devised by their mother as her self-acquired properties. The learned judge found as a fact that the rents accruing from both Adedainkpo houses had been shared between the plaintiff and Hendrick (the defendants’ father), and that since the latter’s death, his share had continued to be paid to his executors.
By his originating summons, the plaintiff sought a declaration that:
(i) the plaintiff and the defendants are “the only persons entitled to the properties” formerly belonging to Joseph Peter Oconnor Biney (deceased) and Lily Mensimah Biney (deceased);
(ii) the interest of the parties (in the said properties) are respectively one-half share for the plaintiff, and one-half share for the children of his late brother Hendrick Frederick Biney (i.e. defendants);
(iii) the properties of Joseph Peter Oconnor Biney should be apportioned in the manner proposed in an attached partition schedule or “as the court may direct.”
The plaintiff s action was occasioned by an alleged deterioration in the cordial relations previously existing between the two sections of the Biney family represented by the parties herein. According to the plaintiff, the third defendant had been abusing him and calling him a thief. His sisters and brothers had also been abusing him and causing wilful damage to his window panes; and they had unreasonably turned down his invitation to talk things over and resolve their differences with him before arbitrators. The defendants had been harassing him and had made it impossible for him to manage “Bineyville” with them jointly. The plaintiff ‘s allegations were denied by the defendants. The learned judge found no majority support among the members of the Biney family for the plaintiff s application for the partitioning of the family estate; and, as all members of the family have under customary law a joint interest in these family properties, the learned judge declined the plaintiff s invitation to order the partitioning of the Biney estate. By way of recapitulation, he concluded his judgment with four neat propositions summarising the legal and factual position vis-a-vis (a) the plaintiff s rights under exhibit A; (b) the accretions to the area conveyed by exhibit A; (c) the Adedainkpo houses; and (d) the court’s incompetence to order partition of family properties against the wishes of the principal members of the interested family.
The main complaint of the defendants with the judgment of the court below concerned the learned judge’s first proposition as set out at [1965] G.L.R.619 at pp. 628-629:
“That as the sole survivor of his late father’s children, and upon a true construction of exhibit A according to English law the plaintiff is now the absolute owner of the land and building thereon clearly described in the deed of conveyance executed in 1901 and tendered in evidence as exhibit A and furthermore that he has been absolute owner since the death of his brother, Hendrick, the defendant’s father.”
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In his construction of exhibit A and, in particular, the gift over to the four children of the settlor as remaindermen “their heirs and assigns,” the learned judge rejected the plea of the defendants’ counsel that the phrase “heirs and assigns” should be given a favourable construction since equity leans towards a tenancy in common in certain cases. On the evidence before him, be found no instance of any of the well-known cases where a tenancy in common is preferred in equity to a joint tenancy, e.g. either (a) where money is advanced on mortgage by two or more persons, or (b) where joint purchasers of land provide the purchase money in equal shares, or (c) where land is bought by partners. On the evidence, there was no voluntary partition by deed of the joint tenancy held by the named remaindermen; neither was there any severance of the joint tenancy by alienation by any of the remaindermen of his aliquot share. The common law rule of ius accrescendi therefore applied to the facts of the case: that is, on the death of one joint tenant, the whole estate belongs to the survivor and the representatives of the deceased joint tenants take nothing. Accordingly, the plaintiff, as the sole surviving joint tenant, became the absolute owner of the land demised under exhibit A.
The learned judge was fortified in the construction he placed on the operative words “their heirs and assigns” by such binding authorities as British Bata Shoe Co., Ltd. v. Roura & Forgas Ltd. [1964] G.L.R. 190, S.C. a decision of the former Supreme Court, (where the earlier authorities e.g. Fawcett v. Odamtten, Donkor (Claimant) (1929) F.C. ‘26-’29, 339 were exhaustively reviewed), and in particular by the clear and direct authority of Fynn v. Gardiner (1953) 14 W.A.C.A. 260, the facts of which were on all fours with those of the instant case. In the latter case, one R. A. Harrison by a deed of gift dated 16 August 1877, gave his self-acquired premises to his wife Amelia, his son Richard Samuel, and his sister Effuah Yarcomah “their heirs and assigns.” After his death, his widow survived the other two donees, and on her death intestate, her surviving daughter claimed the premises as her mother’s individual property which had devolved upon her. The plaintiffs, children of the donor’s sister Effuah Yarcomah, sued claiming in effect that the property was held under or by tenancy in common by the original donees. The native trial court upheld the plaintiff s claim, but on appeal the Land Court held the property was held under joint tenancy by which the surviving donees became individual or sole owners. On a further appeal, the West African Court of Appeal (Foster-Sutton P., Coussey J.A. and Korsah J. (as he then was)), unanimously confirmed the decision of the Land Court, the President holding as follows at p. 261:
“The learned Land Court Judge having held, rightly I think, that the Deed of Gift must be construed according to English law…
In my view there can be no doubt that the Deed of Gift created a joint tenancy in favour of the donees. I agree with the submission made by the appellants’ counsel that this is not one of those cases where in equity a tenancy in common should be preferred.
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The words ‘their heirs and assigns’ in the Deed of Gift are clearly words of limitation. Amelia Harrison as the surviving donee, therefore, took the property in question as a purchaser.”
In the instant case, the learned trial judge held the view, borne out by the above-cited cases, that as the grantor in exhibit A had chosen to convey land in terminology peculiar to English land law, the deed must be interpreted according to English law.
Learned counsel for the defendants has criticised the learned judge for construing the phrase “heirs and assigns” occurring after the gift over to the four named remaindermen in exhibit A so as to invoke the common law rule of joint tenancy with its odious and inequitable incident of survivorship. He maintained that by so doing, the learned judge fell into error; since, as he contended, the language and tenor of the deed showed clearly that the donor did not intend that the demised premises should become the absolute property of a sole surviving child to the exclusion of all his descendants. He drew attention to the fact that the donor acquired land adjacent to the area covered by exhibit A from the Sempe stool by customary process. In his submission, the true position was that, after this accretion to “Bineyville” and its integration into the original tract as one parcel of land, the whole of “Bineyville” was no longer held under a joint tenancy but under customary tenure; consequently, devolution of interests under exhibit A should be regulated under the customary law and not under English law. The acquisition of the contiguous Sempe land and its integration into “Bineyville” had, in the view of learned counsel for the defendants, not only destroyed the original character of the land demised under exhibit A, but also extinguished the common law rule of survivorship in a joint tenancy. By way of illustration of the alleged changed character of “Bineyville,” learned counsel referred to the oral partitioning of “Bineyville” between the plaintiff and his brother Hendrick; to the fact evidenced in exhibit E that two-thirds share of rents accruing from the rented portion of “Bineyville” went to J. C. Biney, then head of family, while the plaintiff retained one-third share only; and to pieces of the plaintiff s evidence which indicated that after the acquisition of the extra land from the Sempe stool, the whole of “Bineyville” was being developed and managed as one common family property under the control of the head of family for the time being, that is, J. C. Biney (deceased) and the plaintiff respectively.
Turning to the learned judge’s construction of the phrase “their heirs and assigns” in exhibit ‘ A, learned counsel for the defendants in fairness did not criticise the learned judge for applying the relevant binding authorities cited above. If I understood him correctly, the burden of his criticism was that the principles enunciated by the former Supreme Court in the 1964 case of Bata Shoe Co., Ltd. (supra) were, with respect, wrong, insular and retrograde. He strongly urged us to prefer the ratio decidendi of Ollennu J. (as he then was) sitting at first instance in the same case — see [1961] G.L.R. 339 —which had been reversed by the appellate tribunal. He invited us to hold with Ollennu J. (as he then was) that unlike English
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conveyancing practice the word “heir” is not necessary in Ghana for creating and passing a freehold estate of inheritance. All that is required is an intention, apparent on the face of the documents transferring title, to divest oneself of all one’s interest in the premises. The word “successor” in a Ghanaian conveyance is a term of art approximating to the word “heir” in an English conveyance.
In fairness to the former Supreme Court, it should be pointed out that they were neither oblivious of, nor insensitive to, what has been aptly described as the “awesome archaism and incongruity” of old English conveyancing forms. Blay J.S.C. (as he then was), whose ratio differed from that of the majority, actually shared Ollennu J.’s view. In a forthright judgment he stated in [1964] G.L.R. 190 at pp. 229-230:
“I agree with the learned trial judge that having regard to the kind of land tenure prevailing in this country a word like ‘heirs’ which has been described as ‘the magic word’ the use of which alone is capable of conveying an estate of inheritance under the common law of England is, as the learned trial judge clearly demonstrates in his judgment, a legacy from feudal times and the feudal system of land tenure prevailing in England cannot be imported into a country having an entirely different system of land tenure. And I am also not of the view that the mere fact that an English form of conveyance is used in dealing with sales of land in this country, necessarily implied that the transaction should be governed by the common law of England in its entirety and interpretation even where by such an interpretation the true intention of the parties would be defeated.”
Both Adumua-Bossman J.S.C. (who wrote the 25-page leading judgment with which Sarkodee-Adoo C.J. concurred) and Blay J.S.C. adopted an eloquent passage from Denning L.J.’s judgment in Nyali Ltd. v. Attorney-General [1956] 1 Q.B. 1 at pp. 16-17, C.A. where the learned English judge recognises the fact that the English common law cannot be applied in a foreign land without considerable qualification. But Adumua-Bossman J.S.C. was no advocate for piecemeal reform of obsolete law by individual judges. Conceding the awesome archaism and incongruity of old English conveyancing forms, he opined at p. 219 (supra) that:
“if their incongruity and technicality in the light of present local conditions seem now to be more conspicuous and intolerable than ever, it appears to me to be a plain case for legislative action to effect the necessary changes and improvements — as was effected by Conveyancing and Law of Property Act, 1881, in England — rather than the taking of piece-meal remedial measures by individual judges.”
In British Bata Shoe Co., Ltd. v. Roura & Forgas Ltd. (supra) the former Supreme Court per Adumua-Bossman J.S.C. stated the traditional attitude of the Ghanaian courts in the construction of documents after a far-ranging review of at least twenty local cases and the views of text-writers, including Redwar, on the issue thus at p. 212:
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“That attitude has been that the court has invariably construed or interpreted every document reasonably strictly, giving it such effect only as it is capable of having by the strict application of the principles or rules of (1) English law, where the document is relied on as constituting a transaction known and recognised by English law; or (2) customary law, where, the document is relied on as evidencing a transaction known and recognised only by customary law.”
Applying this ratio to the deed of settlement (exhibit A) in this case, it is clear that the transaction contemplated, a settlement, is known and recognised by English law. The terminology used therein is peculiar to English land law. The phrase “heirs and assigns” following the gift over to the remaindermen is a term of art, which, on the authority of cases like Fynn v, Gardiner (1953) 14 W.A.C.A. 260, invokes under the old English common law rule applicable to the Gold Coast at the date of the excution of the deed of settlement, the English common law concept of joint tenancy with its concomitant incident of ius accrescendi or right of survivorship. On the facts as found by the learned judge from which there has been no appeal, I am satisfied that there was no room for the application of the maxim of equity, “Equality is equity,” and for equity’s preference of a tenancy in common for a joint tenancy with right of survivorship. In my opinion, the learned judge was right in construing exhibit A (the deed of settlement) according to English law, having regard to the English nature of the transaction, and to the peculiarly technical English language in which it was couched. Apart from Fynn v. Gardiner (supra) which was relied upon, reference may also be made to Lutterodt v. Lutterodt (1915) K.F. 1 at pp. 6—9, where a deed of settlement executed on 10 January 1868, and which was English in form, was interpreted in accordance with English law in force on 24 July 1874.
The invitation extended to us by learned counsel for the defendants to declare the law as it ought to be and not as it was at the material time by refusing to follow such authorities as Fynn v. Gardiner (supra) ought, with regret, to be declined. Happily, Adumua-Bossman J.S.C.’s call for legislative action to effect desirable changes and improvements in our local laws of conveyancing — a call which was coincidentally echoed by Professor Bentsi-Enchill in his book Ghana Land Law at pp. 243 — 247 published in the very year of the Supreme Court’s judgment in the Bata Shoe Co., Ltd. case has been recently heeded. Section 14 (3) of the Conveyancing Decree, 1973 (N.R.C.D. 175), published upon the recommendations of the Law Reform Commission, has now reversed the common law presumption that a conveyance of an interest in land to two or more persons creates a joint tenancy of the legal estate unless there are words of severance or one of the unities is absent or some other indication that the grantees were intended to have separate and distinct shares. The purpose of the new law, as we gather from the memorandum to the Conveyancing Decree, 1973 (N.R.C.D. 175), which came into force on 1 January 1974, is to bring the presumption into conformity with the probable intentions of parties to such transactions in Ghana. The new section 14 (3) of the Conveyancing Decree, 1973 (N.R.C.D. 175), enacts that:
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“14. ( 3) A conveyance of an interest in land to two or more persons except a conveyance in trust, shall create an interest in common and not in joint tenancy, unless it is expressed in such conveyance that the transferees shall take jointly, or as joint tenants, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an interest in joint tenancy.”
Turning now to learned counsel for the defendants’ criticism of the learned judge’s construction of exhibit A based on the language and tenor which according to him showed an intention on the part of the settlor to exclude a joint tenancy with the incident of survivorship, it is necessary at the outset to recapitulate the object of interpretation of deeds and the basic relevant rules of interpretation or construction of deeds. In the first place,
“The object of all interpretation of a written instrument is to discover the intention of the author, the written declaration of whose mind it is always considered to be. Consequently, the construction must be as near to the minds and apparent intention of the parties as is possible, and as the law will permit.”
See Halsbury’s Laws of England (3rd ed.), Vol. 11, p. 381, para. 628. Coke expressed the same point thus in his Institutes: “as far as it may stand with the rules of law, it is honourable for all judges to judge according to the intention of the parties, and so they ought to do.” See Coke upon Littleton (8th ed.) Institute 314. The second basic rule is that the intention must be gathered from the written instrument itself. As Coleridge J. stated in Shore v. Wilson (1842) 9 C1. & Fin. 355 at p. 526, H.L.:
“This rule thus explained implies that it is not allowable in the case supposed to adduce any evidence, however strong, to prove an unexpressed intention varying from that which the words used import. This may be open no doubt to the remark, that, although we profess to be exploring the intention of the writer, we may be led in many cases to decide contrary to what can scarcely be doubted to have been the intention, rejecting evidence which may be most satisfactory in the particular instance to prove it. The answer is, that interpreters have to deal with the written expression of the writer’s intention, and Courts of Law to carry into effect what he has written, not what it may be surmised, on however probable grounds, that he intended only to have written.”
In the third place, technical words of limitation will have their strict legal effect: see British Bata Shoe Co., Ltd. v. Roura & Forgas Ltd. (supra) per Adumua-Bossman J.S.C. at p. 221 and the decisions in Lutterodt v. Lutterodt (supra) and Fynn v. Gardiner (supra).
Applying these basic rules to the deed of settlement in question, we find that the intention of the donor was clearly expressed in the preamble: “Whereas the said Joseph Peter Oconnor Biney (of Cape Coast) is desirous
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to make a settlement of the said land in favour of . . .” (the named beneficiaries). Furthermore, the fact that the donor gave only a life interest to his two uterine brothers and a cousin who are his “proper” successors (per Sarbah’s Fanti Customary Laws (3rd ed.) at p. 102) shows clearly that he did not intend his self-acquired property to be inherited in accordance with the matrilineal rules of succession. In addition to the life interest only given by him to his “proper” successors, the donor expressly made a gift over to his four named children as remaindermen, a class of beneficiaries who under the relevant matrilineal rule of succession are normally outside the pale of inheritance of their deceased father’s estate. As Sarbah put it, in his book (supra) at pp. 101—102 “The owner of self-acquired real property dying intestate, is not succeeded by his sons, they being outside the line of inheritance, but by his mother [real successor] and her issue [proper successors] according to seniority.”
Here, therefore, we find a deliberate intention on the donor’s part to vest his own property in his children upon a contingency. If the customary right of the owner of self-acquired property to dispose of it in any way he likes is recalled to mind, then it becomes apparent that the donor intentionally chose this English device of a deed of settlement in order, on the one hand, to reduce the quantum of estate of inheritance devolving on his proper successors, and, on the other hand, to bestow a joint tenancy in his self-acquired estate upon his children as remaindermen. Applying the maxim expressio unius est exclusio alterius (the mention of one thing is the exclusion of another), it can be inferred from the express gifts made in the deed of settlement (exhibit A), that the donor intended to exclude from any benefit in his self-acquired property his extended family, or to use Sarbah’s classification, his ordinary and extraordinary successors. To equate the word “heirs” with “successors,” as learned counsel for the defendants invited us to do on the authority of the reversed decision of Ollennu J. in the British Bata Shoe Co., Ltd. case, would in the circumstances of this case and having regard to the clearly expressed intentions and provisions of the deed of settlement, be opening the floodgate to the very mischief the donor most probably intended to shut out. If I may borrow the above-quoted words of Coleridge J. in Shore v. Wilson (supra) as interpreters of this deed of settlement, we have “to deal with the written expression of the writer’s intention … and to carry into effect what he has written.” On the strength of the binding authorities cited in support of his construction of exhibit A, the learned judge in my view was clearly right in giving the technical words of limitation used in the deed “their heirs and assigns,” their true meaning in pre-1881 English conveyancing law as importing a joint tenancy with the sole survivor (the plaintiff herein) enjoying the estate as absolute owner to the exclusion of others after the death of Hendrick F. Biney, the defendants’ father.
The other criticisms of learned counsel for the defendants of the construction placed by the learned trial judge on exhibit A may now be considered. In the first place, it is simply untenable to contend, as he did, that the character of the land specifically conveyed under exhibit A changed automatically with the donor’s subsequent acquisition of
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adjoining Sempe land and its integration with it as one whole. On principle, the subsequent accretion of land to the original “Bineyville” cannot derogate from the essential validity, effect, and meaning of the deed of settlement. As a deed, it is operative from the date of execution; and the donor’s two brothers and cousin as life tenants became vested in possession of the precise and well defined area of 100 ft. by 100 ft. granted to them by the deed upon its execution in 1901. In the second place, extrinsic evidence is not allowed to be adduced to vary or alter a deed which otherwise contains the clearly expressed wishes and intentions of its maker. There was no case of latent ambiguity on the facts of this case, the area covered by exhibit A having been well defined by meters and bounds and clearly expressed as measuring 100 ft. by 100 ft. Nor was there any evidence on record that the area conveyed by exhibit A was ever referred to by the donor as “Bineyville” in his lifetime. The available evidence would seem to suggest on the other hand that the name “Bineyville” for the enlarged area came into prominence during the possession of the children as remaindermen. The plaintiff s account of the extra land was as follows:
“I cannot remember when the additional land was bought from the Sempe stool. I do not know the area of land bought from the Sempe stool. There are no documents relating to this purchase. But we have always treated the land purchased as part of Bineyville since we came into possession after my father’s death.”
It would incidentally be seen from this passage that the only evidence adduced in the court below about the mode of acquisition, the extent and terms and nature of grant of this additional land was very vague and tenuous. It is difficult to imagine how this ill-defined extra land can be legitimately held to have derogated from, or else altered, the legal quality of the settled land measuring 100 ft. by 100 ft. which was purchased by the donor as a freehold from the Hansen sisters for the stated consideration of £G25 by a deed of indenture under seal dated 31 May 1898 (exhibit 1).
The learned trial judge held rightly, in my view, that all land at Bineyville not conveyed by exhibit A but subsequently acquired became family property upon the death of the plaintiff s father. As family property, the said land fell at one time under the management of J. C. Biney, a former family bead. His receipt of two-thirds share of rent accruing from the rented portion of “Bineyville” is explicable in my view on this basis of his position and customary rights as family bead for the time being, and not on account of any chameleon-like change in the true identity or status of the whole of “Bineyville” after the annexation of the adjoining Sempe land.
The next ground of appeal argued by learned counsel for the defendants in support of their appeal was that the learned judge erred in making his first declaration that the plaintiff was the absolute owner of “Bineyville” as described in exhibit A since the plaintiff did not ask for such a declaration in his originating summons or in his evidence. He submitted that the learned trial judge went outside the specific relief requested by the
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plaintiff, namely, an order of partition of stated properties formerly belonging to his uncle and aunt along lines suggested in an attached partition schedule. After the rejection of the claim for partition, it was contended, the learned judge ought to have dismissed the summons simpliciter. He became functus officio after dismissing the claim for an order of partition.
After due consideration of learned counsel for the defendants’ arguments in support of this ground and the arguments of learned counsel for the plaintiff in reply, I am satisfied that the court below was competent to make, not only the first declaration complained of, but indeed all four declarations on the plaintiff s originating summons. In the first place, the court’s competence flowed from the ample scope and essential nature of the jurisdiction conferred by Order 54A of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Order 54A, r. 1 of these rules empowers the High Court to determine any question or questions of construction arising under a deed or will or other written instrument, and also enables the court to make a declaration or declarations of the rights of the persons interested upon an application duty filed by originating summons for the purpose. Leaving out of the reckoning rule 2 which confers a like jurisdiction to determine legal or equitable rights claimed under a statute by persons claiming to be entitled thereto, we find that rule 4 confers a discretion on the trial judge to call for any such supporting evidence as it may require. In the instant case, the learned judge exercised his discretion under this rule 4 and ordered that each side may call not more than eight witnesses in support of its case in addition to the affidavits filed. In my view, the learned judge was in duty bound to make positive findings of facts on the evidence adduced by the parties and their witnesses; otherwise the trial would have been held to be unsatisfactory, on the authority of Quaye v. Mariamu [1961] G.L.R. 93, S.C. Finally Order 54A, r. 5 confers a discretion on the court. It can either entertain an application duly brought under the Order or direct that it be brought in the ordinary way, e.g. by writ of summons. The decision of the court on the question of construction is a matter of discretion. That is the true limit of the application of the Order.
Warrington L.J. made the following pertinent observations on the corresponding Order in the English Rules of the Supreme Court, Order 54A, r. 1 in Lewis v. Green [1905] 2 Ch. 340 at p. 343:
“In the first place, the order is confined to questions of construction. Of course, in a sense, every question of construction may involve some question of fact. It may be a question about which there is no dispute but in order to raise any question of construction some facts must be proved or admitted. But for all that the order is confined to enabling the Court to decide questions of construction and nothing else, and the order does not enable the Court to grant any relief; it can only determine the question of construction, and declare the rights of the parties.”
(The emphasis is mine.)
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This court in the recent case of Siasoum v. Kyi [1971] 1 G.L.R. 483 at p. 486, C.A. adopted the construction put on the word “interested” in Order 54A, r. 1 by Stirling J. in Mason v. Schuppisser (1899) 81 L.T. 147 at p. 148:
. . The word [interested] is a wide one, and ought to extend, . . . to the claim of any person who has an interest of any sort, whether vested or contingent, whether absolute or defeasible, whether in possession or reversion, under an instrument within the meaning of the rule.”
I am satisfied that the four declarations made at the end of the judgment of the court below were within the competence and discretionary powers of the court under Order 54A, since they defined the rights of persons interested under the deed of settlement; and that the proper construction of this deed of settlement (exhibit A) formed the real basis and substratum of the plaintiff s action, even if the summons was compendiously entitled “In the matter of partitioning etc.”
In the second place, it would be noticed from the originating summons that the first question posed for the court’s determination was for a declaration that the plaintiff and the defendants “are the only persons entitled” to certain stated properties. Obviously, the resolution of this question depended, as was clearly perceived by the learned trial judge, on a proper construction of the relevant deed (exhibit A). This inquiry in turn involved an examination of the respective rights of all persons “interested” in the said deed and in the “Bineyville” estate as a whole. The learned judge had perforce to construe the deed; to appraise and evaluate the evidence adduced; to reject any erroneous interpretation placed on the instrument by either party; and to determine the questions stated in accordance with his construction of the relevant deed, after due application of the relevant law and evidence.
In the third place, it was quite legitimate and competent for the court, on being asked to declare that two named parties “are the only persons entitled” to certain properties, to conclude on the law and evidence adduced that only one of them is so entitled, i.e. “interested,” as a matter of legal inference from proved facts.
Fourthly, the four declarations made constituted a definition of the total bundle of rights of the “interested” parties. The first, as has been pointed out, which declared the plaintiff to be absolute owner of the land defined in exhibit A since the death of his brother Hendrick, was the judge’s correct construction of the deed of settlement in accordance with the relevant English law. The remaining declarations appear to me to be but innocuous and sound pronouncements of customary law applicable to the facts found.
To sum up, I am satisfied that the first question set down in the originating summons inviting the court to declare that the parties named “are the only persons entitled to” the specified properties, coupled with the plaintiff s supporting affidavit, sufficed to bring the plaintiff ‘s summons within the ambit and scope of Order 54A, r. 1; since it invited the court
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to determine questions of construction of a deed of settlement and to declare the rights of the parties, all persons “interested” thereunder. In the circumstances, there is no merit in the defendants’ further ground of appeal and I would dismiss their appeal.
By a notice of contention that the judgment should be varied filed under rule 16 of the Supreme Court [Court of Appeal] Rules, 1962 (L.I. 218), the plaintiff sought leave to have expunged from the judgment of the court below the following passage as reported at [1965] G.L.R. 626:
“In the present case, therefore the plaintiff has only a life interest in these additional buildings put up by him on vacant land not covered by exhibit A. These houses which are now on family property will revert to the family as family property on his death.”
For the deleted part of the judgment, they invite us to substitute an order that the extra land adjoining “Bineyville” and not conveyed by exhibit A be assimilated as part of “Bineyville” and to be accordingly incorporated into exhibit A.
Learned counsel for the plaintiff first referred us to the scanty evidence about the donor’s acquisition of the extra land not conveyed by exhibit A from the Sempe stool; and then pointed out that up to the time of the donor’s death in 1910, this extra land was vacant and had not been built upon. According to the unchallenged evidence, the plaintiff built on it; let out the premises to tenants; collected, and enjoyed the accruing rent. Having conceded that the learned judge was right in holding that there was insufficient evidence to support a formal grant of the vacant land by the then family head to the plaintiff, learned counsel nevertheless submitted that the trial judge erred in holding that the plaintiff acquired only a life interest in the buildings he erected on his late father’s Sempe plot comprised in the premises at “Bineyville” but not conveyed by exhibit A. In support of his argument he relied on the cases of Amarfio v. Ayorkor (1954) 14 W.A.C.A. 554 and Santeng v. Darkwa (1940) 6 W.A.C.A. 52; and submitted that where a person constructs a building on family land, unaided by any member of his family but through his own exertions, either with or without the permission of the family, the building does not acquire the character of family property, but it becomes his self-acquired property.
Furthermore, he contended that where a person did not receive prior permission from the family before building on vacant family land, but entered, as it were, into adverse possession thereof, he acquires a better right to the land. If unchallenged for a reasonable length of time, he must be deemed to be the absolute owner of any building erected on the land by him. For this latter proposition, he again relied on Santeng v. Darkwa (supra). The gist of his argument, if I understood him correctly, was that the plaintiff, having been suffered to enter into adverse possession of vacant family land, he cannot be ousted from the house built by him on he said vacant land. The house built by him must be deemed in law to
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be his individual property. I am afraid I see no merit in this latter argument. At customary law, possession however long does not ripen into ownership; there is no such thing in native customary law as a prescriptive title, and the mere use and occupation for some time cannot of itself oust an original title: see per Watson J. in Agyeman v. Yamoah (1913) D. & F. ‘11-’16, 56; Larkai v. Amorkor (1933) 1 W.A.C.A. 323; Lartey v. Hausa [1961] G.L.R, (Pt. II) 773; Ehuran v. Atta [1960] G.L.R. 224, S.C.; Adu v. Kuma (1937) 3 W.A.C.A. 240 and the following dictum of the Privy Council in Kojo v. Dadzie (1951) P.C. Appeal No. 61 of 1941, unreported: “It is well established Native Law and Custom that rights of ownership of land are not extinguished by lapse of time.” On the facts as found by the learned judge, the vacant adjoining land acquired by the plaintiff s father from the Sempe stool became family property upon his death intestate. Consequently in the absence of any grant of that property by the family to the plaintiff, their title in it could not be ousted, notwithstanding the plaintiff s vested possessory interest in the buildings he erected thereon during his lifetime.
What, then, is the correct position of our customary law with regard to a building constructed by a member of a family on family land out of his private means or through his own independent effort? Sarbah in his Fanti Customary Laws (3rd ed.), p. 61 stated:
“In the coast towns a member of a family may make separate or private acquisitions, and dispose of them as he pleases in his lifetime, provided none of his family nor any part or portion of his ancestral or family property contributed to the acquisition of such property. But any property of his that remains undisposed of at his death, descends to his successors as ancestral property.”
The learned author elsewhere at p. 60 defined ancestral property to include, inter alia, “Property earned by a person with or by means of ancestral property or its accretions.”
In Ansah v. Sackey (1958) 3 W.A.L.R. 325 at pp. 329—330, Ollennu J. (as he then was) held, first, that the interest retained by a family member in buildings erected by him, using his own private resources, on bare family lands, that is family land which has no family buildings on it, is an interest limited to his own life. Although the life interest is fully alienable (e.g. it can be given as security for a loan) it is not open to the life tenant, unless he acts with the consent and concurrence of the head and principal members of the family, to alienate any greater interest or estate. On the death of the life tenant the interest in the property vests in the family and any disposition by the life tenant purporting to have any other effect is ineffective. Secondly where a family member, using his own resources, builds on family land by way of addition or extension to existing family property he acquires no special rights in the buildings he erects and these are deemed to constitute family property from the date of erection: see also Tetteh v. Anang, High Court, 14 December 1957, unreported, (cited in Ollennu, Customary Land Law p. 41) per Ollennu J. (as he then was) for the following relevant dictum:
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“The one difference between a house built by a member of a family on his self-acquired land which becomes family property upon his death intestate and a house which he builds on ancestral land, in which he thus has a life interest and which becomes family property upon his death, is that in the former case the property would be affected by the provisions of the Marriage Ordinance as to succession upon intestacy if the builder were married under the provisions of the Marriage Ordinance, or his children by Ga six-cloth marriage, if the deceased were an Accra man, would have an interest in it, whilst in the latter case neither the Marriage Ordinance nor the provisions of native custom as to [rights of] Ga six-cloth children would apply.”
(The emphasis is mine.) In the case of Owoo v. Owoo (1945) 11 W.A.C.A. 81, the West African Court of Appeal upheld the trial judge’s finding in accordance with the evidence of an expert witness who testified about the relevant Ga customary law that the testator, a former head of the Owoo family, had only a life interest in the building which he had been permitted by the members of his family to build upon their founder’s tomb and surrounding land, and which was financed from his own private resources and for his own use. It upheld his further decision that the building became family property upon his death, even though he had a life interest in it during his lifetime. His mortgages of the premises during his lifetime were consistent with that life interest. The land remained family property throughout. On this issue of customary law, both the appellate court and the learned judge held that Ga customary law tallied with the Fante customary law as expounded by Sarbah. They dissented from the opposite conclusion reached by the same appellate court in the earlier case of Santeng v. Darkwa (supra) in which Sarbah had not been referred to; and they even went to the extent of supporting the dictum of the lower court in Santeng v. Darkwa that the building site, i.e. the ruins on which the house was built are themselves family property (in respect of which the builder cannot make testamentary disposition).
In my view, the correct position of the law is as enunciated in the case of Ansah v. Sackey and Owoo v. Owoo (supra), and not in the inconsistent case of Santeng v. Darkwa, which in my respectful opinion was decided per incuriam, the relevant proposition of law in Sarbah not having been adverted to. In brief, where a family member builds on vacant family land by using his own private resources, unaided by the family, whether with or without prior permission from the family, he acquires only a life interest therein. Upon his death, his building remains family property, and is heritable by members of his immediate family. On the other hand, if such a family member secures a grant from the family of a portion of unoccupied land for his building in the proper customary manner, the house built by him on such a site, by his own effort and means, becomes his self-acquired property which he can alienate inter vivos or by testamentary disposition.
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That being the true state of the law, I see no merit whatsoever in the plaintiff s application for variation of the judgment in the manner suggested. The learned judge’s second proposition stated the relevant law accurately. On the authorities, the self-acquired adjoining vacant land not covered by exhibit A became family land upon the death intestate of the plaintiff s father. The plaintiff subsequently acquired only a life interest in the buildings he constructed thereon. His enjoyment of rents accruing therefrom during his lifetime is consistent and explicable on the basis of the life interest he held therein. For reasons copiously advanced in the judgment of the court below and in the first half of this judgment, the plot of land conveyed under exhibit A must be regulated in accordance with the relevant English law relating to joint tenancy with the incident of survivorship, while the devolution of interest in the extra adjacent land must follow the normal customary law. Whether the plaintiff may conceivably be regarded as a Fante man hailing from Cape Coast, or preferably as a James Town man (since on the evidence his mother came from James Town), in view of the authority of Owoo v. Owoo, the Fante customary law and the Ga customary law on this issue are identical. The plaintiff s self-acquired buildings on the said vacant family land became family property upon his death and now belong to his immediate family.
For the above reasons, I would dismiss both the appeal and cross-appeal and affirm the judgment of the court below. I would make no order as to costs.
JUDGMENT OF SOWAH J.A.
I agree.
JUDGMENT OF KINGSLEY-NYINAH J.A.
I also agree.
DECISION
Appeal and cross-appeal dismissed.
No order as to costs.
S.E.K.
