Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: SARKODEE-ADOO C.J., ADUMUA-BOSSMAN AND BLAY JJSC
JUDGMENT OF ADUMUA-BOSSMAN JSC
The incidents which led to the action resulting in this appeal are scarcely in dispute, and they are these: The parties entered into negotiation for the sale and purchase of a plot of land with the building thereon in Accra, and in connection with the transaction the appellants wrote to the respondents a letter dated 15 February 1960 which contained the following material passages:
“Re property at Corner Knutsford Avenue and Kwame Nkrumah Avenue, Accra
We thank you for ours of the 11th instant in which you confirm the Agreement reached between your Mr. Vischer and the Writer in respect of the above-mentioned property. For the sake of order we hereby confirm that we have agreed to pay you the sum of £G27,750, for the freehold property on completion of transfer of title by the agreed Solicitors.”
Subsequently, it appears that the title deeds were submitted to the solicitors of the appellants for investigation of the title to the property. The latter, after due examination of all the documents, advised the appellants that the legal freehold or fee simple estate in the property was not vested in respondents.
Upon that advice the respondents thereupon instituted the action resulting in this appeal.
For a clearer understanding of the issue of law which arose for decision in the case, it seems necessary to show how the title to the property was outlined or disclosed by the title deeds produced by the respondents, and this disclosure of the title was as follows. The title commenced with a certificate of purchase dated 5 July 1926 (exhibit D) under the hand of Crampton Smyly, Chief Justice of the Supreme Court of the Gold Coast, whereby, in a suit entitled C. A. Thompson; Administrator of the Estate of E. B. Thompson, deceased (Plaintiff) v. M. D. Adegbite (Defendant), two persons, N. Nassar and Joseph Kibelan, were declared the purchasers at a sale in execution by the sheriff of the said Supreme Court, of the right, title, and interest, of the said M. D. Adegbite in the property the subject-matter of this litigation. It has been assumed by all concerned for the purposes of this case that it was the legal freehold or fee
simple estate in the said property which the said M. D. Adegbite had, or was vested with, and which therefore passed to the co-purchasers by their purchase at the sale in execution.
The next stage is that by an agreement dated 24 July 1926 (which unfortunately is not available but is recited in all the title-deeds subsequent to the certificate of purchase) the joint title of the co-purchasers was apportioned or partitioned whereby each of them became entitled to one undivided equal half share or moiety in the said premises as tenants-in-common. The said agreement was followed by a conveyance dated 14 August 1926 made between Nicholas Nassar as vendor of the one part and John Mansour of Sekondi as purchaser of the other part (exhibit E) whereby the said Nicholas Nassar conveyed “the fee simple of one undivided half share of all that one undivided moiety of the said vendor (Nicholas Nassar) in All that premises. . . To hold unto and to the use of the purchaser his heirs and assigns in fee simple.” There is no dispute as to the effectiveness of this conveyance (exhibit E) in transferring a valid legal title. The conveyance (exhibit E) was followed by another conveyance dated 26 February 1943 made between Joseph Kibelan as vendor of the one part, and Anthony Massoud and Anis Massoud trading together and carrying on business under the firm name of K. Massoud & Sons as purchasers of the other part (exhibit A). It recited (1) the acquisition of the joint title as per the certificate of purchase; (2) the agreement dated 24 July 1926 whereby the joint title was apportioned and “the said Joseph Kibelan became entitled to one undivided moiety thereof”; and (3) the agreement for the sale and conveyance of the said vendor’s (Joseph Kibelan’s) one undivided equal half share or moiety. It then proceeded to “grant and convey unto the purchasers their successors and assigns the fee simple of the said vendor’s [Joseph Kibelan’s] one undivided equal half share or moiety in the aforesaid premises . . . To Hold . . . unto and
to the use of the said purchasers their successors and assigns in fee simple.” Exhibit A is the first of three conveyances which, in the contention of the solicitors of the appellants, did not operate to pass the legal freehold or fee simple estate in the undivided shares of the premises which they purported to convey.
Next followed a conveyance dated 26 March 1943 made between Nicholas Nassar as vendor of the one part and Anthony Massoud and Anis Massoud carrying on business under the firm name of K. Massoud & Sons as purchaser of the other part (exhibit B). This also recited (1) the joint title as per the certificate of purchase; (2) the agreement dated 24 July 1926 whereby the premises were apportioned and the co-purchasers became entitled each to one undivided equal half share or moiety thereof; (3) the conveyance dated 14 August 1926 whereby Nicholas Nassar conveyed one undivided half share of his moiety in the said premises to John Mansour; (4) an agreement for the sale and conveyance of the said Nicholas Nassar’s remaining one undivided half share of his moiety in the said premises; and it then proceeded to “grant and convey unto and to the use of the purchasers the remaining one undivided half share of all that undivided moiety of the said vendor (Nicholas Nassar) in the said premises. . . To hold . . . unto and to the use of the said purchasers in fee simple for ever.” Exhibit B is the second of the three conveyances to which the appellants’ solicitors have taken objection. Then followed a conveyance dated 31 March 1943 made between John Mansour of Sekondi as vendor of the one part and Anthony Massoud and Anis Massoud carrying on business under the firm name of K. Massoud & Sons as purchasers of the other part (exhibit C). This also recited (1) the joint title as per the certificate of purchase; (2) the agreement dated 24 July 1926 whereby the premises were apportioned and the co-purchasers became entitled each to one undivided equal share or moiety thereof; (3) the conveyance dated 14 August 1926 whereby Nicholas Nassar sold and conveyed to John Mansour “one undivided half share of his (the said Nicholas Nassar’s) one undivided moiety in the said premises”; and (4) the agreement for the sale and conveyance of the vendor’s (the said John Mansour’s) “one undivided half share of the said Nicholas Nassar’s one undivided moiety in the said premises.” It then proceeded to “grant and convey unto and to
the use of the said purchasers all that the one undivided half share of the said vendor [John Mansour] in all that one undivided moiety of the afore-mentioned Nicholas Nassar in the said premises… To hold the same unto and to the use of the said purchasers in fee simple for ever.” Exhibit C is the third of the three conveyances to which the appellants’ solicitors have taken objection.
At this juncture, it may be pointed out that by exhibit E, (conveyance dated 14 August 1926 Nicholas Nassar to John Mansour), exhibit A, conveyance dated 26 February 1943 Joseph Kibelan to K. Massoud & Sons), exhibit B, (conveyance dated 26 March 1943 Nicholas Nassar to K. Massoud & Sons) and exhibit C, (conveyance dated 31 March 1943 John Mansour to K. Massoud & Sons) the said firm of K. Massoud & Sons purported to acquire the sum total of the right, title or interest, which Nicholas Nassar and John Kibelan together acquired under the certificate of purchase dated 5 July 1926 exhibit D. Accordingly by a conveyance dated 19 October 1955 made between the said K. Massoud & Sons as vendors of the one part and Atlas Co. Ltd. as purchasers of the other part, (exhibit F) the said K. Massoud & Sons purported to transfer the whole interest and title which was originally outstanding under the certificate of purchase exhibit D to the said Atlas Co. Ltd. Finally by a conveyance dated 1 July 1958 made between Atlas Co. Ltd. as vendors of the one part and Roura & Forgas Ltd. as purchasers of the
other part, the latter, now the respondents in the action resulting in this appeal, claim to have acquired the whole interest, right and title which was outstanding under the certificate of purchase, exhibit D, and which title, for the purpose of this case, was assumed to be the legal freehold or fee simple estate in the said premises or property. There is no controversy as to the effect of exhibits F and G, that they would be legally operative to transfer the legal freehold, or fee simple estate in the property to the respondents in this appeal. The primary question raised for determination is whether exhibits A, B and C were effective to pass the legal freehold or fee simple estate in the shares of the premises which these three conveyances purported to grant and convey, according to the law of conveyancing in force in Ghana at the respective dates of their execution.
Having indicated the state of the title to the property as disclosed by the documents, and also the legal question which arose for determination, the next thing, it seems to me, is to direct attention to the respective contentions of the parties before the learned trial judge and his conclusions on them.
As to this, counsel for the respondents, arguing first, submitted as follows:
“It has been pleaded on behalf of the defendants that exhibits A, B and C served to grant a life interest only to Anthony Massoud and Anis Massoud by reason that the words, ‘and their heirs’ were omitted. That fact is not denied . . . I submit by the use of the deeds the parties must be deemed to have agreed that the common law should apply, by reason of section 17 of the Interpretation Act, 1960 (C.A. 4)—refer to subsection (4) of that section. Submit that the use of the words ‘and his heirs’ as necessary words of limitation for the passing of the whole interest arose from the historical development of tenure of land in a feudal country, and the words ‘fee simple’ arose from the same development. It is my submission that those words are only to be looked at to ascertain the intention of the parties to the transaction . . . In any case on the point of equitable interest, refer to In re Irwin; Irwin v. Parker ([1904] 2 Ch. 752 at 764). I submit in all the three deeds there are words which express that the grantee is to have all the estate which the grantor had; and even if this were not the case but the purchasers in each case paid the purchase money, that will entitle them in equity to the whole interest in the property. The doctrines of equity now having been incorporated in the common law in Ghana, there should be no differentiation between a legal estate and an equitable interest, because they are now one and the same thing … I submit on that, that plaintiffs are entitled to specific performance.”
Counsel for the appellants replied as follows:
“Refer exhibits A, B, and C. Submit the description of the purchaser in each document should have been followed with the words ‘which expression shall include his heirs executors administrators assigns where the context so admits’ . . . These documents are all dated 1943, and the law in force in Ghana then was the Courts Ordinance Cap. 4, section 83. One statute of general application at that time was the Real Property Act 1843, (8 & 9 Vict., c. 106), in the Schedule of which is a model conveyance in which the word ‘Heirs’ is used. It has been argued that in Ghana there is no such thing as ‘Heir’. Refer to Stroud’s Judicial Dictionary, 3rd edition, Volume 2, page 1295 as to the definition of the words ‘Heir’ and ‘Heirs’—as words of limitation. Refer to Redwar, Commentaries, page 22; refer Interpretation Act 1960 (C.A. 4), section 17 (3)
and the Courts Act, 1960 (C.A. 9), section 154. Refer to Megarry on Real Property, 1947 edition, page 33. Submit plaintiffs have not shown good title.”
In his judgment1 the learned trial judge conceded the accuracy of the argument of counsel for the appellants that strictly applying the principles of the common law in force in England on the prescribed date (i.e. 24 July 1874), the proper words of limitation which should have been used were ‘and his heirs,’ and he went on to observe that,2 “It is true that at common law the word ‘heirs’ has become a magic word which must be used in England to show that the quantum of estate conveyed to a grantee is the fee simple, freehold.” He went on further, however, to express the view that,3 “in considering its effect in conveyancing law and practice in Ghana, its historical significance cannot be overlooked.” He then proceeded to discuss briefly the English feudal system of tenure, citing passages from Halsbury’s Laws of England (1st ed.), Vol. 24, pp. 138-139 and 164, Cheshire’s Modern Real Property (6th ed.), page 108, and Pollock and Maitland’s History of English Law, Vol. 1, pp. 44, by way of illustrating his decision, and then observed as follows4:
“An estate in fee simple or a freehold is one capable of existing so long as there are heirs-at-law of the owner for the time being, and since the law does not expect that there will be a failure of heirs, the duration of the estate is, in theory, unlimited. (See Halsbury’s Laws of England (1st ed.), Vol. 24, p. 164, para. 315). For these reasons it was absolutely necessary in England that in conveying that estate in land, not only must words be used implying indefinite duration of the estate in the grantee, but also words which indicate that it is an estate of inheritance, one which will not fall into abeyance upon the death intestate of the grantee. Now under the common law, the person on whom real estates will devolve upon intestacy is the heir … Moreover, since there are other estate in land which may be granted short of the estate of inheritance, e.g. life estate, it was necessary that the conveyance of the estate of inheritance must be distinguished from the other estates by the use of words which clearly indicate the inheritable nature of the estate transferred otherwise the limitation will be void for uncertainty,
and the grantee would get only an estate for life: See Halsbury’s Laws of England (1st ed.), Vol. 24, page 165, note (n).”
He then expressed his opinion that5:
“The land tenure of any country is based upon its customary law, except in so far as the same is modified or replaced by statute … The land tenure of Ghana is governed by the customary law; it is the basic law which neither Ghanaians or [sic] non-Ghanaians may contract out of. A non-Ghanaian cannot by purchasing land from a Ghanaian, and having the land conveyed to him by deed, e.g. in English or Lebanese form, claim that the title he thereby acquired should be regulated by English or Lebanese land law. When section 83 of the Courts Ordinance (Cap. 4 (1951 Rev.)), now repealed, made the common law applicable to Ghana, it did not thereby replace the customary land tenure by the English common law relating to land. The Courts Act, 1960 (C.A. 9), has made it clear that the land law of Ghana is the customary law and no other law, whether the land be held by a Ghanaian or a non-Ghanaian. This is to be found in two Acts: The Interpretation Act, 1960 (C.A. 4), and the Courts Act, 1960 (C.A. 9). Section 17 of the Interpretation Act defines the common law which applies to Ghana, and section 66 (1), rule 4 of the Courts Act lays down the law applicable to land.”
He said further6:
“The ultimate root of title to any piece of land in Ghana is an individual, a family or a stool, subject to customary law. Consequently the law, which must be applied to land causes and matters must of necessity be the customary law. In the present case rule 4 (c) is the section applicable. Therefore the issue must be determined by the land law of Accra where the land is situate and that law is the customary law of land tenure.”
Proceeding then to apply customary law, he came to a final conclusion as follows7:
“Now in exhibit A we find the following words in the habendum: ‘and the estate right title interest claim and demand of the vendor into and upon the same To HAVE AND To HOLD the said undivided half share of the Vendor of and in the said hereditaments and premises thereby granted or expressed to be unto and to the use of the Purchasers their successors and assigns in fee simple.’ In each of exhibits B and C the ‘purchaser’ is defined as ‘which expression where the context so admits shall include their successors and assigns.’ The word ‘successor’ used in each of the said documents is a term of art in Ghana having the same legal significance in Ghana which the term ‘heirs’ has in England, and indicates an estate of indefinite duration
which is at the same time an estate of inheritance . . . I am of the opinion that the words used in each of the deeds exhibits A, B and C appropriately show that the quantum of the estate of the plaintiffs’ vendors is one of indefinite duration and of inheritance, in other words, the freehold; therefore the estate which the plaintiffs have in the property offered for sale is the freehold which the defendants contracted to buy. In my opinion the word ‘heirs’ is not necessary for passing the freehold estate or the whole estate which a person possesses in land here in Ghana.
There will therefore be judgment for the plaintiffs against the defendants for specific performance…”
His decision in terms as set out above is challenged on the following grounds:
(1) The learned trial judge misdirected himself when he held that “in the present case rule 4 (c) [of section 66 of the Courts Act 1960 (C.A. 9)] is the section applicable. Therefore the issue must be determined by the land law of Accra where the land is situate and that law is the customary law of land tenure.”
(2) The learned trial judge failed properly to apply section 66 of the Courts Act, 1960 (C.A. 9) (if
applicable at all) in that he should, pursuant to rule 2 of subsection (1) therefore, and having regard to the form and nature of the transactions affected by the said conveyances and the state of the parties thereto, have determined the issue for determination according to the common law.
(3) The learned trial judge erred in (a) not determining the true construction and effect of the three conveyances dated respectively 26 February, 26 March and 31 March 1943 (exhibits A, B and C) in accordance with the law as at those respective dates and (b) determining such true construction and effect by reference to subsequent legislation which was not expressed to be of retrospective effect.
(4) By article 40 (e) of the Ghana Constitution 1960, the common law is comprised in the Laws of Ghana; and by section 17 of the Interpretation Act, 1960 and section 66(1), rule 6 of the Courts Act, 1960, except in special cases were a particular customary law is shown to be applicable in a particular manner, the basic law in Ghana by which an issue can be determined is the common law. The learned judge misdirected himself in treating the common law as if it were foreign (English) law; and he was wrong also in holding that, “the law which must be applied to the land causes and matters must of necessity be the customary law.”
(5) The agreement between the parties for the sale by plaintiffs to the defendants of ‘freehold premises’ was an agreement for a transaction governed by the common law and not by the customary law, and the learned judge was wrong in applying the customary law to it.
(6) The judgment of the court below is against the weight of the evidence.
It may be observed firstly that the substantial ground of complaint is that the learned trial judge applied customary law, when having regard to the nature of the transaction out of which the litigation has arisen, he should have applied the common law; and secondly, that, that ground has been advanced, or put forward, from five different angles in the amended grounds set out supra.
Turning, however, to consider that substantial ground, it seems plain that the learned judge, with respect, was palpably in error in applying customary law to the construction or interpretation of transactions between non-indigenous residents of the country especially when those transactions were embodied in formal conveyances in English form. Even as between indigenous persons, it has been indisputably established from an early stage in the history of the former Supreme Court, and by a long line of cases, that the employment or use by them of documents in English form to effect or make their transactions, raises an almost conclusive presumption that they have adopted English law, to regulate their rights and obligations arising out of those contracts. (See Swanzy v. Bordoh8; Aradzie v. Yandor9; Dainsuah v. Cole10 Sei v. Ofori11; Quarshie v. Plange12; Fawcett v. Odamtten: Donkor (Claimant)13; Adjei v. Dabanka14; Koney v. U.T.C.15; Vanderpuye v. Plange16 Griffin v. Talabi 17; Kwesi-Johnston v. Effie18; Fynn v. Gardiner19).
The principle exemplified by this long line of cases was expressed in Fawcett v. Odamtten: Donkor (Claimant), mentioned supra, by Howes J. in these words, “This conveyance … is in the form usual to English conveyances, is written in English, and it must therefore be interpreted according to English Law,”20 and in Quarshie v. Plange, supra by Michelin J., in these words, “The parties to the various conveyances, having adopted the English method of sale, are bound by the principle of English Law.21“As therefore the controversial conveyances in the action resulting in this appeal were, in each case, made between parties all of whom were Lebanese merchants, it would seem to be too plain for argument that, a fortiori customary law can have no place whatsoever in the making of their respective contracts or transactions, or in the construction or interpretation of those contracts, whether verbal or written. Customary law is prescribed to come in only when, at least, one party to the transaction is an indigenous person, a “native,” as he is designated by successive ordinances constituting the superior courts from time to time and providing for their exercise of jurisdiction. At the material date of the three controversial conveyances, which was 1943, the relevant ordinance was the Courts Ordinance,22 by section 87 of which provision was made that customary law: “shall be deemed applicable in causes and matters where the parties thereto are natives . . . and also in causes and matters between natives and non-natives where it may appear to the Court that substantial injustice would be done to either party by a strict adherence to the rules of English law.”
After making provisions for those two instances, (1) the unconditional and mandatory application of customary law in the case where all the parties are natives, and (2) the conditional and qualified application of customary law where one of the parties is a non-native, section 87 went on to enact that:
“No party shall be entitled to claim the benefit of any local law or custom, if it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions should be regulated exclusively by English law.”
Having regard therefore to the circumstances that the three controversial conveyances were in the form usual and normal to English conveyances and also that they were between non-indigenous residents, or non-natives, of Ghana, i.e. Lebanese merchants, it seems sufficiently clear that it is this latter portion of section 87 which was strictly relevant to the determination of the legal issue of construction which arose in connection with the said conveyances; and it seems equally clear also that customary law had no application, but that it was rather the common law which was properly applicable.
The arguments of learned counsel for the appellants to that effect are therefore, in my view, undoubtedly unanswerable. Indeed, learned counsel for the respondents conceded the accuracy and soundness of this part of the arguments on behalf of the appellants when, upon rising to reply generally to the arguments on behalf of the appellants, he stated something in the following effect:
“I find myself in a somewhat difficult position, in that I am in agreement with many of the submissions of my learned friend for the appellants. I agree (1) that exhibits A, B and C should be interpreted in the light of the law in force in 1943. I agree (2) that it is the common law, not the customary law, which is applicable having regard to the provision of section 87 of Cap. 4; and I agree (3) that the learned trial judge misdirected himself as complained of in ground (4) of the grounds of appeal.”
He went on, however, to submit that by the application of the common law of Ghana, if the same be properly interpreted in the light of local conditions, it will appear sufficiently clear that, despite the omission to use the technical word of limitation, namely, “heirs,” which was undoubtedly formerly necessary to be used in England, the conveyances exhibits A, B and C clearly enough indicate, in each case, that it is the absolute interest or whole estate, of the vendor which was conveyed, and the respondents therefore have the absolute or whole interest of the vendor in the property. In any event, counsel continued, in In re Irwin; Irwin v. Parkes23 Buckley J. stated it as the law that:
“An equitable estate in fee simple will also pass without words of limitation if you find words that express that the grantee is to have all the estate and interest which the grantor had. It may further pass without words of limitation if the grantee has independently of the deed itself an equitable right to the fee simple, as, e.g., where he has paid the purchase money for the property.”
A reference to the conveyances exhibits A, B and C shows that both those conditions are satisfied, and therefore the respondents have the equitable fee simple. By the Interpretation Act, 1960,24 s. 17 (1), equity is made part of the common law of Ghana, learned counsel further submitted, and there is therefore no difference between legal estates and equitable estates, and the offer of the equitable fee simple is sufficient under the contract exhibit J as to entitle the respondents to judgment on their claim.
It falls therefore to examine these arguments of respondents’ counsel, beginning with that part of it that, although admittedly it is the common law which is applicable to the determination of the rights and obligations of the parties, it (i.e, the common law) should be construed or interpreted in the light of local circumstances and conditions before it is applied. It seems to me that learned counsel is undoubtedly entitled to make that submission, in view of section 85 of the relevant Courts Ordinance,25 which provided that: “All Imperial laws declared to extend or apply to the jurisdiction of the Courts shall be in force so far only as . . . local circumstances permit.” That provision is, of course, a standard one annexed to the applicability and operation of all imperial laws in almost, if not all, dependent territories of the British Crown. It is said to be a fundamental principle of rule of English law that: “English Colonists carry with them only so much of the English law as is applicable to their own condition as an infant Colony,” (see Tarring’s Law Relating to the Colonies (4th ed.), page five); and so, when in after years the infant “Colony” has grown to the stature of full manhood and becomes a state with its own legislature which by the appropriate legislation sets up a Supreme Court and provides for the adoption of imperial laws up to a certain date as the law in force within the territory, statutory recognition is then given to this principle or rule that the imperial law in force within the jurisdiction “shall be in force so far only as . . . local circumstances permit” or words of similar import.
As to the meaning and effect of that provision, Denning L.J. (as he then was,) in 1958, in the case of Nyali Ltd. v. Attorney-General26 has provided us with an instructive explanation. The material facts of that case were that, the plaintiff company built a pontoon bridge linking the island of Mombassa with the mainland at Nyali, both in the Protectorate of Kenya, a territory which, though under the sovereignty of the Sultan of Zanzibar, was being administered by British officials under the control of the Government f Kenya. An Order-in-Council of 1902 provided that jurisdiction within the Protectorate should be exercised “in conformity with the
substance of the Common law . . . subject to such qualifications as local circumstances render necessary.” The company built the bridge under an agreement with the Government of Kenya which entitled them to charge tolls for “(a) all passenger vehicles (persons limited to six) . . . or (d) foot passengers or persons in excess of six in number travelling in any vehicle,” but provided for exemption of “military on duty or their equipment, luggage or transport.” During the last World War, the Army authorities of the Kenya Government had a leave camp at Nyali from where soldiers on leave often crossed to Mombassa in army vehicles using the bridge, and although the Army authorities at first paid some tolls, they claimed exemption under the agreement and by virtue of the Royal Prerogative. The company obtained judgment, but the matter was brought on appeal to the Court of Appeal (Denning, Morris and Parker L.JJ.) which
allowed the appeal in favour of the Crown. Denning L.J. in the course of his speech, after referring to the Order-in-Council conferring jurisdiction, went on to refer to the provisos, and then proceeded to deal with and explain this standard condition annexed to the applicability of imperial law in British dependencies as follows27:
“There are, however, the provisos to be considered . . . The next proviso provides, however, that the common law is to apply ‘subject to such qualifications as local circumstances render necessary.’ This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending. So with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far-off lands the people must have a law which they understand and which they will respect. The common law cannot fulfil this role except with considerable qualifications. The task of making these qualifications is entrusted to the judges of these lands. It is a great task which calls for all their wisdom. So in this case, I think that the prerogative of the Crown to grant a franchise of tolls applies in the Kenya Protectorate, but with this qualification, that the grant need not be made by matter of record, such as a Charter of Letters Patent, nor does it need any formal enrolment. By cutting out these technicalities we are left for the protectorate with the simple principle that, if a person makes and maintains a bridge connecting two highways, he cannot of his own head impose a toll on the persons using it: but the governor and the Executive Council (that is, the government) can grant him the right to take a toll. They can grant him this right by agreement in writing without any formalities . . . Applying this principle, I am of opinion that the right of Nyali Ltd. to charge tolls is derived from the agreement made with them by the Government of Kenya; and this agreement in turn derives its authority from the common law as applied in the protectorate.”
Bearing in mind, then, this instructive explanation as to how or in what manner the application of imperial laws in a dependent territory, may, or can be affected by local circumstances or conditions, let us now turn to consider the history of the application of the English law of conveyancing in this country. Before considering that history, however it seems to me to be necessary to remind ourselves of the very significant fact that perhaps the most important of local circumstances calculated to, and which does factually, affect or influence the application of imperial laws in any dependency, is the existence there of local customary laws. Here in this country, as in many others, recognition has been expressly given to this modifying influence of local customary laws on the adopted imperial laws by provisions contained in the enactments conferring jurisdiction, whereby the conditions under which such imperial laws are to be
modified, and the general operation of the two sets of laws, are clearly prescribed. In this connection we have to remind ourselves of the reference already made to section 87 of the relevant Courts Ordinance, which regulates the operation of the two sets of laws, the English or imperial on the one hand and the local customary laws on the other. It is of interest to note that section 87 of the Courts Ordinance28 was substantially a reproduction of section 19 of the first Supreme Court Ordinance of 1876,29 which was the subject of Redwar J.’s invaluable Commentaries. Reference has already been partially made to some of the provisions of section 87 of the Courts Ordinance; but the provisions to which reference has not been made and which, however, are material to the point under discussion are these:
“Nothing in this Ordinance shall deprive the Courts of the right to observe and enforce the observance, or shall deprive any person of the benefit, of any native law or custom existing in the Gold Coast, . . . Such laws and customs shall be deemed applicable in causes and matters where the parties thereto are natives, and particularly, . . . in causes and matters relating to the tenure and transfer of real and personal property, and to inheritance and testamentary dispositions, and also in causes and matters between natives and non-natives where it may appear to the Court that substantial injustice would be done to either party by a strict adherence to the rules of English law.”
The singular importance and significance of this subsistence of local customary law as a modifying factor and influence on the adopted English law, and still more of the statutory recognition of the situation, cannot be over-emphasized.
Turning now to the history of the application, or development, of the English law of conveyancing here in this country, where, one may well ask, was the starting point? Before attempting to answer, let us call to mind the historical incident that this country together with Lagos were constituted one colonial territory, the Gold Coast Colony, by Letters Patent dated 24 July 1874, with a legislature which, by the Supreme Court Ordinance (supra), set up the first Supreme Court; and that this state of affairs remained till 1886 when the two territories were separated. We can, I think, conveniently take that date of the constitution of the Gold Coast Colony as the starting point of the history of the development of the law of conveyancing. By then, although in much earlier ages the concept of an outright transfer of land or sale or pledge had been virtually non-existent, a new concept had come to be prevailing whereby there were occasional transfers of lands or pledge or sale when the communal owners of such lands were
pressed with debts or for other reasons. So in Dr. Elias’s instructive book Nigerian Land Law and Custom (2nd ed.), pp. 173-174, learned author has stated:
“But strict as has been the traditional system of tenure against the principle of alienation, certain forces, economic no less than sociological, have for very long been at work to temper its rigour . . . With regard to the Colony and the adjoining areas, we have had occasion to note various judicial statements to the effect that the influx of slaves from Sierra Leone as well as European contacts have served to introduce the practice of alienation into Lagos. Thus, Osborn, C.J., in A. G. of Southern Nigeria v. John Holt & Co. (1910) 2 N.L.R. at p. 3 ascribed the new vogue of alienation to the abolition of the slave trade in 1852 and the consequent influx into Lagos of liberated slaves from Sierra Leone since that date.”
Redwar J. also in his invaluable Commentaries at p. 75, has stated that:
“According to the ancient Native Law (before alterations were brought about by the gradually solvent action of contact with European laws and usages) there was no such thing as the absolute alienation of land, and the mere usufruct was all that could be obtained, by the consent of the owner in the manner which has been mentioned above [i.e., the head of the community acting with the consent of his elders]. Gradually, however, verbal sales and mortgages or pledges of land in the presence of witnesses came into use, most probably under pressure from creditors of the Family to whom the Community was heavily indebted.”
It seems fairly clear that by the date of the constitution of the new dependency, the British and other European settlers of the period found themselves among indigenous communities, both here and in Nigeria, having well-established local customs and usages about their lands, particularly as to the forms of tenure and transfer thereof. What must have been the most striking of these customs and usages, one feels inclined to think, is the substantially non-individualistic but rather communal character of the ownership of the lands, although as has been herein before pointed out, the practice of alienations on sales and mortgages resulting in a certain amount of individual titles had commenced. The situation is portrayed in a report of land tenure in West Africa which Rayner C.J. published in 1898, from which the following extract was cited by Haldane L.C. in his judgment from the Board of the Privy Council, in
Amodu Tijani v. Secretary, Southern Nigeria30:
“‘The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the community or family. He has control of
it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger. This is a pure native custom along the whole length of this coast, and wherever we find, as in Lagos, individual owners, this is again due to the introduction of English ideas.”’
In this situation of things, when some of these settlers came from time to time to be requiring individual ownership of plots of land for building their trading establishments and residential premises from the communal owners of these lands, what is it which appears to have been the matter or question of pre-eminent concern and importance in the minds of their legal advisers and solicitors entrusted with the business of having proper legal documents drafted for execution for them?
From the evidence of many of the old documents which were registered and are now available for inspection in the books of the Deeds Registries in both Accra and Lagos, it appears that the primary concern was to adopt the English forms of conveyance to satisfy the most important requirement of customary law, namely, that the knowledge, concurrence and consent of the principal elders and members of the communal groups which were selling should be expressed on the face of the conveyances. Accordingly, a large number of the conveyances were so adopted as to indicate that the alienations were by the heads of the vending communal owners acting with the concurrence and consent of their principal elders and members. It seems doubtful if that which now appears to be a problem to us, namely, the incongruity of the English form of conveyance, its seemingly archaic and technical form, and the difficulties and subtleties of its language, in the atmosphere and setting of local conditions, ever presented itself to them (i.e., those legal practitioners of that period) as a problem at all. If it did, it was not an immediate or pressing problem, and was therefore shelved; and nothing whatsoever was done about it by way of modifying or adopting the form of the English conveyance in its language or basic requirements. The pressing need was to have communal owners execute such documents as would effectively transfer and vest valid individual titles in their clients, the purchasers, mortgagees, and other grantees; the English forms of conveyances were available, ready to be slightly modified in the manner stated and then put into use to achieve the desired end, and therefore that means of acquiring title was not only readily, but constantly resorted to; and this appears to be how the English conveyancing forms, i.e. the indentures of conveyance, mortgage, lease, assignments, re-conveyances, and other well-known forms, were launched on their voyage of development in the old Gold Coast Colony.
The start having been made in the manner suggested, we find that this new means of acquiring individual ownership slowly but surely gained in popularity. In 1891, when Mr. Justice Francis Smith at the request of the Gold Coast Government furnished the Government with his Written Opinion on the Native Land Tenure in the Gold Coast he wrote, inter alia, as follows:
“From the fact that property is a source of revenue to the stool-holder, absolute alienation of stool land is rarely, in the interior, made, and then under exceptional circumstances, such as to raise money to pay a stool debt. In these cases the king and his councillors or headmen are parties to the transaction . . . In the sea-coast towns, however, an absolute sale of stool property is of more frequent occurrence, and takes place when the king and his councillors desire to raise money for their own use. Stool property may also be mortgaged by the concurrence of the king or chief and his councillors . . . Of late, however, in imitation of English law, sales and mortgages of stool property are done by deed. The leasing of timber and mining rights is of recent growth, and is now made by deed, which regulates the rights of the contracting parties.”
See Sarbah’s Fanti Customary Laws (2nd ed.), pp. 272-273.
In 1895, Mr. Bruce Hindle, an administrative officer, in compliance with a governmental request “for a Report upon the customs of the non-Mohammedan African tribes in the Gold Coast Colony, in regard to the tenure of land,” furnished the report and stated, inter alia, as follows:
“Generally, if a person wishes to have the occupancy of any land for cultivation or for building purposes, he applies to the stool-holder for an allotment thereof . . . If a person wishes to acquire an allotment absolutely, he may do so much in the same way as he acquires the right of occupancy only. There is, however, a difference in the ceremony. This time a sheep is killed, and on the land the stool-holder and the allottee take hold of a leaf of some kind and pull it asunder. One name of this ceremony is ‘foyibah’ and without it a transfer would not be accomplished . . . Besides the methods of detaching lands from the stool by some such custom as that called ‘foyibah’ and the detachment in a way by allotment to communities, it has become a common custom to transfer land absolutely for a consideration by conveyancing forms. These conveyances are made at least as frequently to natives as to Europeans. Occasionally they are carefully drawn, but not as a general rule. They are generally held by the Courts to be valid instruments of title between natives, even if imperfect according to English law. The principal chiefs and headmen of the stool-holder in many cases sign as parties, or testify their consent by signing as witnesses, the document having first been interpreted to them. After execution the deed is stamped and registered, a list of these registered instruments being published from time to time in the Gazette. The same practice is followed with
regard to leases for terms of years before referred to . . . There is also the mortgage in ordinary form, executed, stamped, and registered in the same manner as other documents relating. In the large coast towns the land has for the most part become detached from the stools, and is dealt with by natives and Europeans according to the methods and forms of English conveyancing.”
See Sarbah’s Fanti Customary Laws (2nd ed.), pp. 277-279.
In 1898 Rayner C.J. (Nigeria) made his classic “Report on Land Tenure in West Africa”3⁄4which, unfortunately is not available locally. In so far as that report dealt with grants of individual ownership, or title, its contents are referred to in Balogun v. Oshodi31 by Webber J. (as he then was) when he stated that “ according to Rayner’s Memorandum the grantee [by deed in English form] was regarded as having something like a fee simple and the original grantor’s reversion disappeared and the grantee was [also] regarded as holding exclusively according to the rules of English law.” From Rayner C.J.’s report in 1898, we come to 1909 when, in the case of Lewis v. Bankole32 Osborne C.J. observed that, “The idea of alienation of land was undoubtedly foreign to native ideas in olden days, but has crept in as a result of contact with European notions, and deeds in English form are now in common use.” In the same year Redwar J. published his Commentaries in which he pointed out (at pp. 22-23) that:
“Conveyancing is conducted on the lines of English precedents before the Conveyancing Act, 1881. . . . Usage, however, has sanctioned the employment of English conveyancing forms in the Colony, and a discussion of their appropriateness or the reverse would now be merely academic.”
By 1927 the Privy Council was able to observe, in Sunmonu v. Raphael33 that: “Their Lordships are aware that it is possible by special conveyancing to confer title on individuals in West Africa,” and in 1936 in Oshodi v. Balogun34 that:
“In olden days it is probable that family lands were never alienated; but since the arrival of Europeans in Lagos many years ago a custom has grown up of permitting the alienation of family lands with the general consent of the family; and a large number of the premises at Lagos on which substantial buildings have been erected for the purposes of trade or permanent occupation have been so acquired. These alienations in the great majority of cases have been to persons not members of the family to whom the lands have been allotted, and their Lordships see no reason for doubting that the title so acquired by these purchasers was an absolute one and that no reversion in favour of the chief [or Head of family] was retained. In recent times the title deeds have been made out in English form and duly registered according to law, and their Lordships do not intend to express any doubt as to the validity of these titles.”
The last reference which might be made in connection with this matter of the development or progress of the English conveyancing forms, is to a judgment dated 31 May 1951 of Jackson J. in the Kokomlemle Consolidated Cases35 in which he gives some indication of the extent to which the conveyances in English form were used in Ghana between the years 1937 to 1944, when during the course of the said judgment, he stated as follows36:
“That sales or mortgages have become extremely prevalent is shown in the figures at page 37 of the Havers Report of Commission of Enquiry ‘into expenses by litigants in the Courts in the Gold Coast and indebtedness caused thereby’ when Mr. Havers (now Mr. Justice Havers) said: ‘I examined a number of the instruments which are registered in the Land Registry under the Land Registry Ordinance … During the three years prior to the war, 1,067 instruments were registered in 1937, 1,008 in 1938 and 1,145 in 1939. During the years 1920 to 1944, the number of instruments registered was 19,794, of which the vast majority are conveyances in English form.”
It seems reasonably plain, therefore, that by the time, at least, of the high-level judicial pronouncements by the Privy Council concerning the conveyance in English form, and its role among the forms or methods of transfer of land in British West Africa, the voyage of development which the English conveyancing forms had commenced about the time of the constitution of the Gold Coast Colony, or probably even earlier, had been successfully accomplished. By then (i.e., the time of the Privy Council pronouncements) the said English conveyancing forms had come to be authoritatively recognised as well-established, and possibly the most conspicuous and popular, members among the family of forms or methods for the transfer of land both here in Ghana and Nigeria.
The important question which seems to arise next is, what has been the attitude of the Supreme Court here in Ghana with regard to the construction or interpretation of the contents of the conveyance in English form? In this connection it will be recalled that Mr. Bruce Hindle in his report to which reference has been made earlier in this judgment stated that, “Occasionally they [i.e., Conveyances] are carefully drawn, but not as a general rule. They are generally held by the Courts to be valid instruments of title between natives, even if imperfect according to English law.” A similar statement was made by Redwar J. in his Commentaries at p. 76, as follows:
“Even as amongst natives there has grown up a practice in the larger towns on the coast line of evidencing the transfer of land by deed or [other] writing, such document, when prepared by a practising lawyer, mostly conforming to recognised English conveyancing forms; but when, as is often the case, attempted to be drafted by laymen with no knowledge of law, most clumsily and inartistically prepared. The Court, however, in its desire to give effect to the manifest intention of these writings rather than to their form, has usually and wherever possible, held these documents valid as between natives, although imperfect according to English principles of conveyancing.”
This statement by so eminent an authority as Redwar appears to give the impression, at the first blush, that the courts have been rather indulgent and more concerned with what appears to be the supposed intention of the parties to a deed or other writing, rather than to the form thereof. A reference to the decided cases, however, does not bear out or confirm this impression or the accuracy of the statement. By way of illustrating and confirming the statement, Redwar J. referred to two cases. The first is Swanzy v. Bordoh37 before himself constituting the Court in Cape Coast on 7 September 1891. The headnote reads:
“In a mortgage deed drawn as nearly as possible according to the English form of mortgage, with an express power of sale, and given by a native to an English firm, the mere fact that no interest was expressed to be payable, is not sufficient to convert the mortgage into a native mortgage. The Deed being substantially an English mortgage, the parties must be deemed to have excluded the Native Law by express contract . . . Under these circumstances an Order was made on Motion against the Plaintiffs, who had entered into possession, for an account as mortgagees in possession.”
From the whole of the report of the case, and particularly the plaintiffs’ counsel’s argument that “although the mortgage was in writing, it was drawn according to the native mercantile custom, no interest being payable,”38 it appears clearly that all that was relied on as establishing that the requirements of the form of an English mortgage were not complied with, is the fact that there was no provision for payment of interest in the deed. But as the learned author himself has pointed out in the notes which follows the report (p. 198), “Interest, though not expressly reserved on a mortgage debt, is still payable . . ., unless the mortgagee contracts to re-convey upon payment of the principal with no mention of interest. (Thompson v. Drew 20 Beav. 49)” In these circumstances it cannot be seriously argued that the mortgage-deed without any express provision for payment of interest is “imperfect according to English principles of
conveyancing” and the case therefore is not a good illustration of the statement that the court usually holds conveyancing “documents valid as between Natives although imperfect according to English principles of conveyancing,” nor can it be an authority for that statement.
The second case is Bossom v. Attonie39 before himself constituting the court in Cape Coast on 21 January 1897. The headnote reads:
“In an action for money lent, Plaintiff (who was proceeding for Judgment by default) produced a document from Defendants purporting to pledge certain lands as security for the loan; the document, which was not under seal, was ambiguously worded, and did not conform to any English precedent: Held, that as it was not a legal mortgage, and could not be construed as an Equitable Mortgage—there being no deposit of title deeds—it could only constitute evidence of a simple contract debt, no evidence having been adduced to show that a native verbal pawning or pledging of the land in the presence of witnesses, and with the customary formalities, had taken place, and the Plaintiff by his Writ of Summons not having referred to any such
transaction.”
With regard to this second case, it has been pointed out in a subsequent case Sei v. Ofori40 per
Gardiner-Smith J. that Redwar J.’s view expressed in his judgment that deposit of title-deeds was indispensable to the creation of an equitable mortgage was per incuriam, for reasons which
will be clear when this subsequent case is examined later in this judgment. For the present, however, and bearing in mind the point under discussion, it seems fairly obvious that the case does not lend support to the statement that the court usually holds a document valid even though imperfect according to English principles of conveyancing. On the contrary, it rather exemplifies what, from a relatively early stage in the history of the Supreme Court, has been its true attitude in respect of documents in general, including those purporting to be conveyancing instruments, which are relied on as constituting or embodying transactions, or else merely as evidencing transaction. 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. The proposition can be better understood by reference to the cases. In the Swanzy v. Bordoh (supra) case examined earlier, the court was undoubtedly satisfied that the document complied with the strict requirements of an English legal mortgage and therefore gave effect to the document as such. Similarly, in the Bossom v. Attonie case (supra) the court, considering (wrongly as it turned out) that the strict requirements of an English equitable mortgage had not been complied with by the document in the case,
declined to give effect to it as such; and in the same way declined to give effect to it as a customary pledge, taking the view (rightly as it turned out) that by the strict application of customary law the document did not disclose a customary transaction. Eventually, the document was given such effect only as it plainly had by the application of the strict rules of English law, namely, as merely evidentiary of a simple contract debt. Two other subsequent cases should make the proposition still more intelligible. The first is Sei v. Ofori already referred to. The headnote reads41:
“The first plaintiff executed a document promising repayment of a loan on the security of his land, and authorising the defendant, in default of repayment, to have the property disposed of by public auction. The loan was not repaid when due, and the defendant, by his auctioneer, entered upon the land and had the property sold by auction. The plaintiff claimed damages for trespass. Held that the document was an equitable mortgage; but that, as the defendant had not applied for and obtained an order from the Court, the sale constituted a trespass, and the plaintiff was entitled to damages.”
Gardiner-Smith J. in the course of an instructive judgment for the Full Court (Smyly C.J., Howes J. and himself) discussed as follows42:
“Learned Counsel for respondent submitted that Exhibit ‘A’ could be construed both as a native mortgage and as an equitable mortgage under the Law of England, and cited Redwar’s Comments, 76, and Kofi v. Akyea, Divisional Court, Accra, 6th November, 1922. It is quite clear that it is not a legal mortgage according to English law, as there is no conveyance of the property, and I cannot agree with the learned trial Judge that it was a native pawning or pledging of the land, and therefore a native mortgage. In this connection Kofi Bossom v. Yamike Attonie and Others (cited in Redwar’s Comments, p. 199) is of interest. Was it an equitable mortgage? An equitable mortgage is thus defined in Coote’s Treatise on the Law
of Mortgages, 8th Edition, p. 62:—’Any agreement in writing and properly signed, however informal, by which any property, real or personal, is to be a security for a sum of money owing or advanced, is a charge, and amounts to an equitable mortgage . . .’ In Bossom v. Attonie (Redwar’s Comments, p. 199), the learned Judge held that a document purporting to
pledge certain lands as security for a loan, could not be construed as an equitable mortgage, there being no deposit of title deeds. The document upon which that case was decided is not printed in the report, but, if the learned Judge meant that the deposit of title deeds was essential to an equitable mortgage, I am unable to agree. In my opinion Exhibit ‘A’ in the present case was a good equitable mortgage.”
Sei v. Ofori was followed in Adjei v. Dabanka43 the headnote of which reads:
“In consideration of a loan of £250 the plaintiff deposited with a predecessor of the defendant Akowua, by name Derkyi, his document of title to certain leasehold premises, and at the same time by an informal document [an imperfect deed of mortgage] purported to grant to the said defendant his interest in the said premises. The principal conditions in this document were that the plaintiff was to remain in possession and that the lease was to be the absolute property of Derkyi if the principal and interest were not paid within one year. The principal and interest were not paid within the time specified, and Derkyi sold the lease to the defendant Dabanka.
The plaintiff sued in the Circuit Court of Ashanti for the return of his premises, but his action failed. On appeal it was held that the original transaction between plaintiff and Derkyi was not a native mortgage because the plaintiff was to remain in possession. The Court held it to be an equitable mortgage which plaintiff was still entitled to redeem, and ordered the sale to [be] set aside . . .”
In the course of his judgment for the West African Court of Appeal, Michelin J. (with Deane C.J. and Sawrey-Cookson J.) held that”:44 “It is clear therefore that in the present case an Equitable Mortgage was created, not only by the informal document (Exhibit ‘A’) executed between the parties, but also by deposit with the Creditor of the appellant’s title deed to the property mortgaged.”
On the other hand a document raising the presumption of the application of English law, may turn out to be imperfect, by the application of the strict rules of English law, to spell out a transaction recognised by English law; in that event, the duty of the court, in the case where the parties are indigenous, and that case only, is to examine the document to see if it succeeds in spelling out a transaction recognised by customary law. So we come to the second case Azzu v. Acardi45 in which the Full Court held that although the document on which the plaintiff relied was imperfect in so far as it disclosed a transaction recognised by English law, i.e. an English conveyance of land, it nevertheless disclosed a transaction recognised by customary law which was prior in time and prevailed against the defendant’s subsequent but perfect deed of conveyance. The material facts were that the plaintiff purchased the land in dispute from one Atta and a conveyance was signed for him but it was not under seal. Subsequently Atta’s successor sold to the defendant and executed a proper or valid conveyance to him, whereupon the defendant entered upon the land thereby disturbing the plaintiff ‘s possession, and the
plaintiff sued in the appropriate native tribunal and obtained judgment. On appeal by the defendant to the Full Court, it was contended on behalf of the defendant appellant that46: “the document on which the plaintiff relied, though prior in date of execution and registration to the document on which the defendant relied, yet the document on which the plaintiff relied not being under seal should yield precedence to the document on which defendant relied, as the latter was under seal.” The court did not disregard the imperfect form of the plaintiff’s conveyance and hold that it was valid because of the obvious intention of the parties who were natives. What it did was to examine the circumstances of the transaction whereupon it found that one, i.e. a transaction, satisfying the requirements of customary law was made of which the
document was evidentiary. The court expressed its attitude and views thus47:
“It follows from our opinion that even if the native authorities, with the progress of civilisation, prefer to rely on written evidence of transfer of an interest in land held by native tenure, rather than on the proved observance of some customary ceremonial, we should not regard this as fatal to the plaintiff ‘s case. The absence of such observance was suggested to the Court by appellant’s counsel. We notice, however, that the Konor, who is at once an important chief and an educated man, by his judgment found that the applicable native custom had been followed in this case.”
Again in Nyako v. Atiadevie48 Strother-Stewart J. decided as follows:
“This is a case in which the plaintiff asks for the production, and determination by this Court, of the nature of a certain document dated the 29th April, 1933, under which certain property described therein is sought to be sold . . . The same document recites that defendant has been given possession of the said land, and I am satisfied that he has been, and still is, in possession of the said land . . . The requirements of a native mortgage have, therefore, been complied with, apart from what is set out in the said document . . . The document in question has been produced, and I find, as already stated, that it is evidence of a pledge according to native customary law.”
(See also Teye Norh v. Gbedemah.49)
It is therefore in this latter sense, namely, to refer again to the Azzu v. Acardi50 by way of illustration, that the court gave effect to the plaintiff’s conveyance in that case, which was imperfect according to English conveyancing principles owing to the absence of seals, by holding the document to be merely confirmatory or evidentiary of a customary transfer of land on sale, that Redwar J.’s statement ought to, and must be understood, when he said the court usually holds a document between natives as valid, even though imperfect according to English conveyancing principles. In this connection the observations of Lord Maugham in Sintim v. Apeatu51 come readily to mind, when, speaking of the customary transfer of land by the ceremony called guaha by the Akans, he observed as follows:
“The ceremony, as the law stands, does not require any permanent record whatever and it is evident that after the lapse of years it may be almost impossible to prove that the ceremony has been performed. In small cases where the purchase money is paid and possession is taken by the purchaser this leads to little trouble; but it seems to their Lordships to deserve consideration whether in cases of magnitude, and especially if all or some of the purchase money remains unpaid, a written contract should not be made essential in the interests
of the natives and with a view of preventing useless litigation.”
Such a written contract or record of the customary transaction as suggested by the noble Lord can hardly be held invalid because it fails to comply with the strict requirements of English law. See also judgment of the Privy Council in Wuta-Ofei v. Danquah52 in which Lord Guest referring to the claim by which the litigation started, stated that: “The plaintiff-respondent brought a suit on April 10, 1948, in the Ga Native Court claiming to be the owner of a piece of land at Christiansborg, Accra, which she alleged was granted to her by the Stool of Osu (Christiansborg) in 1939 in accordance with native custom, the gift being later confirmed and evidenced by an indenture, dated December 31, 1945.”
To return however, to the point under discussion, namely, how the court interprets documents, it seems scarcely necessary to point out that which stands out with such conspicuous prominence in all the cases examined, namely, that in every case the document is construed strictly to ascertain if by the application of the strict rules of English law it discloses a transaction recognised by English law; or alternatively, if by the application of the strict rules of customary law it discloses a transaction recognised by customary law, as between indigenous persons.
It falls, lastly, to consider a few cases dealing specifically with the construction of conveyances, and the first of these is the Azzu v. Acardi case. If there ever was a case where the court should have held, in the words of Denning L.J. in the Nyali Ltd. v. Attorney-General case, that the53 “refinements, subtleties, and technicalities [of the common law] which are not suited to other folk. These off-shoots must be cut away” from that branch of the common law dealing with conveyancing in the then Gold Coast Colony, and a conveyance in English form perfect in all other respects except that of sealing, be held to be valid, it seems to me that Azzu v. Acardi was the case. Yet the Full Court did not hold the instrument without seal to be a valid conveyance. After the Azzu v. Acardi judgment delivered on 13 August 1912, the same point came up again in Azzu v. Cooper54 and the same decision was delivered on 24 February 1913. On the other side of the line, however, is In re Knutsford Avenue, Accra.55 In that case, an enquiry as to the title of a claimant for compensation in respect of land acquired under the Public Lands Ordinance 1876,56 objection was taken to the conveyance on which the particular claimant relied as being defective by reason of want of proper execution and attestation. Michelin J. cited rom Halsbury’s Laws of England, Vol. 10 (1st ed.), pp. 386-387, para. 691, that57:
“Apart from statute, it is not necessary to the validity of a deed that its execution shall be attested by any witness. But it is and has long been the practice to execute deeds in the presence of a witness or witnesses and to indorse thereon or subscribe thereto a statement that the deed has been so sealed and delivered or signed, sealed and delivered, and for the attesting witnesses to sign his name to such statement and to add his address and description.”
The learned judge then continued:
“In this case, it is apparent that the deed was signed and sealed by the Vendor, C.A.T., as the signature to the deed which he has admitted to be his signature is placed immediately over the seal. The delivery of the said deed is also clearly proved. It is also apparent that this signing, sealing, and delivering was witnesses by one J.H.S., whose signature also appears on the deed. It was proved, however, that this attesting witness was dead, and, upon proof of his hand-writing, the deed was admitted in evidence . . .”
The learned judge therefore did not brush aside counsel’s objection as to the necessity for compliance with these “subtleties and technicalities” of execution and attestation as being of no substance because compliance with them was not strictly speaking necessary, upon the construction of the English law in the light of local conditions; on the contrary he examined the conveyance and satisfied himself that it complied with the requirements of the technicalities of the English law concerning execution of a deed.
In the following year, 1927, another case concerning a conveyance on sale came before the Full Court, which appears to me to have some bearing on the question of the interpretation of the contents of a conveyance which is under discussion in this appeal. The case is Fawcett v. Odamtten: Donkor (Claimant),58 mentioned supra. The claimant Donkor interpleaded in respect of property attached for sale in execution as the property of the judgment-debtor Odamtten to whom certain members of Donkor’s family had sold the same, and he set up the case that the property was purchased by six members of his family and thereby became family property. That members of a family can join together and acquire property which thereby becomes family property according to customary law, as contended by the claimant, is, of course, only too well known. However, in a deed of conveyance which he produced to establish the purchase by the six members of his family, the trial judge, Howes J., found out that:
“There being no words to indicate that the grantees were to take separate interests, and there being nothing therein to shew in what shares the purchase-money was contributed . . . there is nothing . . . to suggest that these persons were to hold the land as family property.”59 He held, as has already been pointed out earlier in this judgment when the case was first referred to, that: “this conveyance . . . is in the form usual to English conveyances . . . and it must therefore be interpreted according to English law . . . the effect of this document was to make the six persons joint tenants.”60 The further effect was that the sale by three survivors out of the six original purchasers to the judgment-debtor Odamtten conferred on him a valid title to the property and the claimant’s claim was therefore dismissed. On appeal Hall J. delivering the judgment of the Full Court dismissing the appeal stated as follows61:
“I entirely agree with the learned Judge that the transaction must be governed by English Law, . . . I quite agree with the trial Judge in the present case that there is nothing in the Deed of 1903 to show in what shares the purchase money was contributed, and in the ordinary way it will be presumed that they paid in equal shares. We are asked, however, to go outside the four corners of the Deed in question, and consider the oral evidence of the Claimant set out above. The ordinary rule of course is that no evidence of extrinsic circumstances is admissible to add, to contradict, vary or alter the terms of a Deed.”
A similar decision of survivorship by reason of the terms of a conveyance was given in Fynn v.
Gardiner.62 The material facts were that the original owner of premises, one R. H. by a deed of gift dated 16 August 1877 gave it to his wife A. H., his son R. H. and his sister E.Y. “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 E. Y. sued claiming in effect that the property was held under or by tenancy-in-common by the original donees. The native court of trial upheld the plaintiffs’ 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 confirmed the decision of the Land Court, Foster-Sutton P. in the course of his judgment for court holding as follows63:
“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 appellants’ counsel that this is not one of those cases where in equity a tenancy in common should be preferred. 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.”
It seems reasonably plain therefore, from this examination of some of the relevant cases from the earliest period, that the clear and definite principle, or rule established by the former Supreme and appeal courts in respect of the construction or interpretation of the contents of the conveyancing instrument in English form, when the same is relied upon as creating one or other of those estates in land admittedly foreign and English in origin, but which have been for so long adopted and recognised as “local estates in land” additional to the indigenous customary estates in land, has been that of strict construction or interpretation according to the rules of English law.
Having regard to the ample and liberal terms of the enactment by which provision was made for the exercise of jurisdiction by the first Supreme Court, and in particular, the provision that: “All Imperial laws declared to extend or apply to the jurisdiction of the Court shall be in force so far only as . . . local circumstances permit,” the indisputably archaic technicalities of the English conveyancing forms might well have been adjudged, long ago, to be unsuitable in the setting of local conditions and thereby condemned to be, in the language of Denning L.J. in the Nyali Ltd v. Attorney-General case (supra), “cut-off,” leaving only the substance of the forms, something simple and modern in language, e.g. like the forms under the English Law of Property Act, 1925,64 or something still more simple and still less technical. That, however, has not been done; but on the contrary, the English conveyancing forms, with what might be described as “all their awesome archaism and incongruity” have been accepted for such a long period of time now as approved forms among the list of forms or methods of transfer of land locally, and treated in the matter of construction or interpretation, almost exactly like the forms in England at the material date 24 July 1874. In these circumstances, 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 affected by Conveyancing and Law of Property Act, 1881,65 in England—rather than the taking of piece-meal remedial measures by individual judges. In my view, the latter method, if connived at or encouraged, will only make “confusion worse confounded,” for, after all, as observed by Lord Eldon in Sheddon v. Goodrich that, “it is better the law should be certain, than that every Judge should speculate upon improvements in it.”66
It is from this point of view that Redwar J.’s observation made so long ago as 1909 (see Redwar, Commentaries, p. 23) that: “Usage . . . has sanctioned the employment of English conveyancing forms in the Colony, and a discussion of their appropriateness or the reverse would now be merely academic,” appears to me to have a considerable amount of truth, foresight, and wisdom about it. A further consideration which should not be overlooked, on this question of individual judges making judicial pronouncements as to what should be the proper form of the English conveyancing form having regard to local circumstances, as was made by the learned trial judge in the instant case, is that, after all, the recognition accorded to the said English conveyancing forms as locally accepted and approved forms for the transfer of individual titles to land both here in Ghana and Nigeria is limited and restricted to only those estates or interests in land which were English in origin and initially foreign to West Africa,
although now they have come to be accepted as approved and duly recognised forms, additional to the indigenous customary estates, i.e. the conveyance, the mortgage, the lease, the assignment, the reconveyance, and the like. The courts’ recognition of the English conveyancing forms has never been extended to the customary estates or interests, i.e. the usufructuary estate of interest of individuals or groups, and the communal absolute ownership of family, tribal, village, town, division and state groups. On the contrary, the courts have frequently made pronouncements that the English conveyancing forms are manifestly inappropriate for the transfer of the said customary estates or interests in land, and expressed disapproval of the employment or use of the said English conveyancing forms for the transfer
of the said customary estates and interests. So in Thomas v. Holder,67 the court observed as follows:
“In the present case . . . by the amended statement of claim it is clearly set out that the root of title from which the appellant claims is a title to ownership under native law and custom. It is true that, prior to the filing of the amended statement of claim, counsel for the appellant had stated that he was claiming a title in fee simple . . . It is also true that the series of conveyances through which he claims purport to convey an estate in fee simple. Nevertheless, it is clear from the amended statement of claim that the interest alleged to have been purchased by Christiana Samuel was that of the Chief Oloto as owner by native law and custom and that the appellant’s title was derived directly therefrom. The Judicial Committee of the Privy Council and this Court have on more than one occasion pointed out the confusion which may well arise from attempts to engraft upon claims made under native law and custom incidents and phraseology appropriate only to English law, and this appears to have occurred in the present case both as regards the draftsmen of the conveyances to which we have referred and counsel for the plaintiff in his replies to the Court below . . .”
Again in a judgment dated 26 June 1957 in the Privy Council case of Oyekan v. Adele,68 Lord Denning referring to and commenting on a certain Crown Grant of land in Lagos, observed as follows69:
“Their Lordships draw attention to the very English form of the Crown grant. The administrator grants or assigns ‘to the said King . . . his heirs, executors, administrators and assigns for ever the above specified piece of land.’ Those words are familiar in English law. They would fit well into a society which had the same legal structure as England: but they do not fit at all well into the structure of Lagos… Many of those Crown grants were made in the English form: and much misunderstanding has arisen on that account. People have claimed rights under the grants in English fashion as though thereby they gained a title superior to the rights of the rest of the family under the local law. Several of these cases have reached their
Lordships and it has been uniformly held that these Government grants do not convey English titles or English rights of ownership. The words ‘his heirs, executors, administrators and assigns for ever’ are to be rejected as meaningless and inapplicable in their African setting. The effect of a Government grant is only to ascertain and denote the chief or headman who has charge of the land for the time being. It leaves the interests of the family or occupiers intact, to be determined, as theretofore, by the local law.”
In the judgment in the Kokomlemle Consolidated Cases referred to earlier in this judgment, Jackson J. on this matter of the use of the English conveyancing form in respect of customary estates or interests, was strongly condemnatory when he stated70:
“In the cases before me have been put in evidence many deeds of conveyances . . . in which various titles are set out as being one in ‘fee simple.’ I can understand a European lawyer being trapped into this error in his first few weeks in this Colony, but I cannot believe that any legal practitioner, who is a native of West Africa, can have any illusions on this matter. . . a lawyer who attempts to create by his own writing an estate in land which he must know his client
does not possess, prostitutes his profession and loses his good name.”
These pronouncements of disapproval against the employment of the standard English conveyancing forms in the conveyance or transfer of customary estates and interests, sufficiently indicate, I think, that their recognition, as approved local forms for transfer of land, is limited to the clearly defined sphere of those originally non-indigenous but now adopted estates of individual titles, comprehensively referred to and described by Lord Denning in Oyekan v. Adele71 as: “those cases, now growing in number, where English conceptions of individual ownership have superseded previous [African customary] conceptions.”
In the light, therefore, of the cases above-referred to, which exemplify what has been for so long a time now the attitude and tradition of the superior courts with regard to the construction or interpretation, not only of documents in general, but of conveyancing instruments in English form in particular, it is my considered opinion that the contents of the three controversial conveyances in this appeal cannot but be construed or interpreted in accordance with the strict rules of interpretation of the contents of an English conveyance which were in force in England on the prescribed date 24 July 1874, the more so as the parties to the said controversial
instruments were all non-indigenous persons or non-natives.
That being undoubtedly the case, the true or correct rule applicable is scarcely in dispute. That rule, settled long ago, and by a long line of authorities, is that the words “and his heirs” following immediately after the name of the purchaser, grantee, or transferee, in the habendum of the deed is absolutely indispensable to transfer the legal freehold or fee simple estate to the said purchaser. So, as far back as about 1481 when Littleton published his New Tenures, he set out (section 1) that:
“If a man would purchase lands or tenements in fee simple, it behoveth him to have these words in his purchase ‘To Have And To Hold To Him And His Heirs’, for these words (his heirs) make the estate of inheritance. For if a man purchase lands by these words ‘To Have And To Hold to him for ever,’ or by these words ‘To Have And To Hold to him and his assigns for ever,’ in these two cases he hath but an estate for term of life, for that there lacks these words (his heirs) which words only make an estate of inheritance in all feoffments and grants.”
Much later in 1628 when Lord Coke published his first Institutes on Littleton’s Tenures, and, discussing the words of limitation necessary to create the fee simple estate, stressed that the appropriate words were “and his heirs,” he observed that: “they cannot be legally expressed by any other word or by any periphrasis or circumlocution.” (Co. Litt. 9a.)
With regard to judicial pronouncements laying down that it is absolutely necessary that the words “and his heirs” should be used to ensure that the legal freehold or fee simple estate is transferred to a transferee, out of many I would cite that of Joyce J. in In re Ethel & Mitchells & Butlers’ Contract72—a statement of the law which is as impressively lucid as any—when he said: “Before the Conveyancing Act of 1881, however plain the intention might be as to the effect of a conveyance of freeholds, the deed could not operate as a grant of the legal estate in fee simple without the word ‘heirs’.” That being the undoubted state of the law, and it being also clear that the crucial words “and his heirs” are not in any of the three controversial conveyances, it seems to me to be beyond argument that the legal freehold or fee simple estate, was not conveyed by each of the said three documents, and that the appellants’ contention to that effect is well-founded.
It now remains, finally, to consider the last submissions of learned counsel for the respondents to the effect that: in any event the purchasers or grantees under the three controversial conveyances are vested with the equitable fee simple in the premises the subject-matter of the contract; that subsection (1) of section 17 of the Interpretation Act 196073 having incorporated the rules of equity in the rules of the common law of Ghana, there is, or should be, no difference between a legal estate and an equitable estate because they are now one and the same thing; that, moreover, subsection (2) of the same section 17 having provided that: “in the case of inconsistency . . . a rule of equity shall prevail over any rule other than an assimilated rule,” it cannot be maintained that a legal estate prevails over an equitable one; and that, in the last resort, the bargain between the parties as per exhibit J was for a freehold, and an equitable fee simple is a freehold, wherefore the plaintiffs are entitled to the judgment for specific performance.
In embarking upon this consideration of the above-specified submission, it has to be conceded, I think, that by the operation of the principles stated by Buckley J. in In re Irwin; Irwin v. Parkes,74 where he specified certain circumstances in which an equitable fee simple interest in property may be acquired, the respondents did acquire the equitable fee simple in the premises the subject of the contract exhibit J. This is so because exhibits A, B and C are all conveyances consequent upon, or following, contracts for sale, by which it is the established rule that in equity the purchaser becomes the owner of the land. So in Lysaght v. Edwards,75 in which all the leading cases are referred to, Jessel M.R. speaking of a valid contract of sale, explains that: “ although the purchase-money is unpaid, the contract is valid and binding; and being a valid contract, it has this remarkable effect, that it converts the estate, so to say, in equity; it makes the purchase-money a part of the personal estate of the vendor, and it makes the land a part of the real estate of the vendee.” The next thing then, I think, is to remind ourselves of the difference in the nature or quality of the two estates or interests, i.e. the legal and the equitable. In that connection, is it not factually and in reality the case, in so far as judicial conceptions are concerned, that whereas a legal right is a proprietary right, i.e. ownership in the true sense of the word, which is enforceable against the whole world, an equitable right is merely a personal right enforceable only against certain persons? Professor Maitland in his Equity and the Forms of Action at Common Law (1920 ed.), at p. 112, explains the situation in these words:
“. . . equitable estates and interests are not jura in rem. For reasons that we shall perceive . . . they have come to look very like jura in rem; but just for this very reason it is the more necessary for us to observe that they are essentially jura in personam, not rights against the world at large, but rights against certain persons.”
He continues subsequently at page 122 and states:
“Equitable estates and interests are rights in personam but they have a misleading resemblance to rights in rem. This resemblance has been brought about in the following way. The trust will be enforced not only against the trustee … and his representatives and volunteers claiming through or under him, but also against persons who acquire legal rights through or under him with knowledge of the trust—nor is that all, it will be enforced against persons who acquire legal rights through or under him if they ought to have known of the trust. The Court of Chancery set up a standard of diligence for purchasers … so high that it certainly is difficult for a purchaser to buy land without obtaining constructive notice of all trusts which concern that land. Still now and again the difficulty is surmounted, and then the true character of equitable rights becomes apparent [for] a purchaser acquires a legal right [in a parcel of land] bona fide, for value, and without notice either actual or constructive of the trust, and he holds the land successfully against cestui que trust [or beneficiary having the equitable title to the land].”
So in the leading case Pilcher v. Rawlins,76 the material facts, according to the headnote being that, the trustees of a settlement advanced the trust money on the security of real property which was conveyed to them by a mortgagor, the mortgage-deed noticing or making evident to trust. The surviving trustee afterwards induced the mortgagor to execute a deed by which the mortgaged property purported to be conveyed to him (the trustee) as on a purchase by him, though no money in fact passed. The trustee then, concealing the prior mortgage, and showing title under the pretended purchase deed, conveyed the property to a mortgagee who took without notice; it was held that the court could not interfere to take away the legal estate from the mortgagee. In the Court of Appeal (Hatherley L.C., James and Mellish L.JJ.), James L.J. used the occasion to make a pronouncement as to the legal position which has now become classic, and incidentally explained the advantageous position of the owner of the equitable estate or interest, when he stated as follows77:
“I propose simply to apply myself to the case of a purchaser for valuable consideration, without notice, obtaining, upon the occasion of his purchase, and by means of his purchase deed, some legal estate, some legal right, some legal advantage; and, according to my view of the established law of this Court, such a purchaser’s plea of a purchase for valuable consideration without notice is an absolute, unqualified, unanswerable defence, and an unanswerable plea to the jurisdiction of this Court. Such a purchaser, when he has once put in that plea, may be interrogated and tested to any extent as to the valuable consideration which he has given in order to shew the bona fides or mala fides of his purchase, and also the presence or the
absence of notice; but when once he has gone through that ordeal, and has satisfied the terms of the plea of purchase for valuable consideration without notice, then, according to my judgment, this Court has no jurisdiction whatever to do anything more than to let him depart in possession of that legal estate, that legal right, that legal advantage which he has obtained, whatever it may be. In such a case a purchaser is entitled to hold that which, without breach of duty, he has had conveyed to him.”
(See also Shaw v. Foster.78)
It seems only too clear, therefore, that there is a very real and significant difference between a legal, as opposed to an equitable, right in property which is by no means to be regarded, or treated, as trivial, as learned counsel for the respondents would have this court to do.
It is further contended that by reason of the provisions of subsection (1) of section 17 of the Interpretation Act, 1960 that: “the common law, as comprised in the laws of Ghana, consists, in addition to the rules generally known as the common law, of the rules generally known as the doctrines of equity,” “legal estate and equitable estates (or interests) are now one and the same thing,” to use the words of learned counsel for the respondents. In my opinion, however, the contention is not well-founded, and appears to stem from a misapprehension similar to that which became current shortly after the enactment of the Supreme Court of Judicature Acts, 1873 and 1875,79 as to the effect of the provisions in section 24 of the 1873 Act that: “In every civil cause or matter commenced in the High Court of Justice law and equity shall be administered by the said High Court. . . “ The above-specified provision was often put forward as having effected a fusion of law and equity when, more correctly speaking, the fusion was the administration of law and equity. Among the cases in which the subject was discussed and considered was Joseph v. Lyons,80 the material facts of which were that: A jeweller by a bill of sale assigned to the plaintiff, for valuable consideration received from the latter, his after-to-be-acquired stock-in-trade, subject to proviso for redemption—the effect of the transaction being to vest the plaintiff with the equitable right or title only in the said stock, until such time as, the stock having come into existence, he (plaintiff) takes possession, when he then acquires the legal title to same. After the transaction, however, as soon as the stock came into existence but before the plaintiff could take possession, the jeweller delivered same to the defendant on pledge for value without notice on the defendant’s part of the earlier assignment of the plaintiff. The plaintiff, on learning of the pledge, demanded surrender to him of the stock by the defendant who, however, refused to surrender unless his debt be paid. The plaintiff thereupon sued for conversion, and it was contended by learned counsel on his behalf when the case was ultimately before the Court of Appeal that he “had a valid equitable title to the after-acquired goods, and as the Supreme Court of Judicature Acts 1873, 1875, have abolished the distinction between legal and equitable interests, he had also a valid legal title.” The ruling against this contention by Cotton L.J. was as follows81:
“It has been argued before us that the difference between legal and equitable interests has been swept away by those Statutes [Supreme Court of Judicature Acts 1873 and 1875]. But it was not intended by the legislature, and it has not been said, that legal and equitable rights should be treated as identical, but that the Courts should administer both legal and equitable principles [and] I think that the clause enacting that the rules of equity shall prevail (Supreme Court of Judicature Act, 1873, s. 25, sub.-s. 11) shews that it was not intended to sweep away altogether the principles of the common law.”
Lindley L.J. also, rejecting the contention for the plaintiff, observed as follows82:
“Reliance was placed upon the provisions of the Supreme Court of Judicature Acts 1873, 1875, and it was contended that the effect of them was to abolish the distinction between law and equity. Certainly that is not the effect of those statutes: otherwise they would abolish the distinction between trustee and cestui que trust.”
Those pronouncements of the learned Lord Justices in that case were made with regard to the true effect or interpretation of section 24 of the Judicature Act, 1873, the terms whereof appear to be virtually the same as, or at least similar to, those of subsection (1) of section 17 of our local Interpretation Act, 1960, providing, in substance, that the common law of Ghana to be administered by the courts shall consist of the rules known as the common law and the rules known as the doctrines of equity. Moreover they were made in answer to a contention identical with that put forward by the learned counsel for the respondents in the instant case, and might have been specially directed towards answering or meeting the contention in this case, so extremely apt and appropriate they seem to be. It appears therefore to be necessary only to
add that what learned counsel has described as “incorporation” seems to be no more than a bringing together, a collocation, under one heading of the three principal sets of rules of law in force within the jurisdiction, which collocation, however, leaves the differences and distinctions between them completely unaffected.
The true position being, therefore, that legal, as well as equitable rules, indubitably still subsist, and also the estates and interests in property recognised by and under two distinct sets of rules, the last question which appears to be still outstanding for consideration is —what is the nature or quality of the estate contracted to be sold and conveyed by the use of the word “freehold” simpliciter in the agreement exhibit J? As to this, it seems that even without any express indication or description of the interest or estate, an agreement for the sale of land simpliciter imports the sale of the legal freehold or fee simple interest. So in one of the earliest reported cases, Braybroke v. Inskip,83 real estate was auctioned at the instance of trustees for sale acting on behalf of Lady A. and purchased by the defendant who made part payment and was to pay the balance a few weeks thereafter, subject to good title being shown. The estate had been
devised to Lady A. under a general devise of all his properties in her husband Sir A.’s will; and he had acquired from his father who devised the same together with other properties to him and another person upon trust to raise money to pay his debts, pay certain legacies, hold for certain beneficiaries, but with the ultimate remainder to the testator’s heirs, including Sir A. The trustees carried out the trusts and had reached the stage of conveying to the persons entitled to the ultimate remainder, when Sir A. became the sole surviving trustee as well as the sole beneficiary, and he thereupon devised to this wife as aforesaid without having the legal estate vested in him as trustee conveyed or transferred first to himself as sole beneficiary. Upon the abstract of title being supplied to defendant he contended he was entitled to the legal fee simple, but that the general devise by Sir A. of all his properties could not and did not pass the
legal estate vested in him as trustee under his father’s will; and he refused to complete, whereupon the trustee for Lady A. filed the bill for specific performance in this case. The Master in Chancery who investigated the defendant’s objection to the title upheld it, holding that the legal title was not in Lady A. Upon the matter coming ultimately before Eldon L.C., however, he set aside the Master’s decision, pointing out that the holding of the legal estate by Sir A., i.e. at the date his will became operative, was84:
“. . . the case of a dry trust; all the debts and legacies being long paid; as I now understand. There was therefore a pure legal estate in this testator; nothing remaining to be done but re-convey . . . The result is this: a Will containing words large enough; and no expression in it authorising a narrower construction than the general legal construction: nor any such disposition of the estate as is unlikely for a testator to make of any property not in the strictest sense his; . . . I know of no case, in which a mere devise in these general terms, without more, where the question of intention cannot be embarrassed by any reasoning upon the purpose or objects, or the person of the devisee, has been held not to pass the trust estate.
. . Lady Alston therefore has in her the legal estate.”
The learned Lord Chancellor went on to make a judicial pronouncement which happens to be very pertinent or relevant to one of the important legal points or questions under consideration in the instant case, namely, the circumstances in which a vendor can be said to have made out or shown good title, when he stated that85:
“As to the question, when the abstract was complete, the abstract is complete, whenever it appears, that upon certain acts done the legal and equitable estates will be in the purchaser. That may be long before the title can be completed.”
There is a subsequent case Hughes v. Parker86 where the plaintiff sued for the endorsement of an agreement for the sale of a house, supported by a document in the following terms: “I agree to sell the house and fixtures, No. 163, Piccadilly, to commence from the 1st of January next, for £60.” All three members of the Exchequer who had to express opinion about the contract declared that it was a contract for the sale of the fee-simple interest in the property; Abinger C.B. stating: “a contract is produced in evidence, which on the face of it shews that it was [an intended] sale of a fee-simple”87; Parke B.: “this memorandum imports upon the face of it an agreement for the sale of the fee-simple”88; and Alderson B.: “This is, in truth, on the face of
it, an agreement for the sale of the fee-simple.”89
There is, lastly, the case of Melbourne v. Cottrell90 in which this point as to the implied obligation of a vendor on a contract for sale of land, to make out a title in fee-simple, is adverted to, when the court held that, “A party proposing to borrow money on security, does not bind himself by implication of law, to produce a security of any particular degree of safety or of any particular title, as in the case of a contract of sale where prima facie the vendor is to make out a title in fee.”
Authority therefore appears to be amply available in support of the proposition that prima facie there is an implied obligation on the vendor in a contract for the sale of land to make out the fee simple title to the property. When, therefore, an express indication or mention is made that it is the freehold or fee simple estate or interest which is the subject-matter of the contract, then it would seem that emphasis or stress is laid expressly upon a vital obligation or term already implied by law. Now, in the circumstances that the contract exhibit J shows the parties, the property or the estate or interest therein agreed to be conveyed, which estate or interest happens to correspond to that implied or prescribed by law; and also the price; but has left all other terms to be implied by law, it obviously appears that substantially the terms of the contract are to be implied by law, and the contract an “open contract,” the most important of the implied terms under which is the implied obligation to make out a good title, i.e. title to the legal freehold or fee simple estate or interest in the property. So in William’s on Title (2nd ed.), p. 566, it is explained that:
“A contract for the sale of land is either an open contract and implies that the vendor will make a good title to the estate or interest in the land contracted to be sold, or contains an express stipulation that a stated title will be made . . . A good title is made when the vendor shows that he alone or with the concurrence of some person or persons whose concurrence he can require, can convey to the purchaser the whole legal estate and equitable interest in the land sold.”
The latter proposition as to showing a “good title” is expressed in Williams and Eastwood on Real Property (1933 ed.), pp. 461-462, in these words:
“It is not necessary for a vendor of land to show that he himself is absolutely entitled to the whole estate contracted to be sold; a good title will have been shown if it appear that the vendor has a power or an equitable interest enabling him, as of his own right, to procure the conveyance of that estate [i.e., the whole estate contracted to be sold] to the purchaser.”
The plainest example is, of course, where one who has contracted for the purchase of land but has not had a conveyance, in turn bargains to sell it.
The proposition stated in the textbooks is borne out or supported by a number of judicial dicta, including that of Eldon L.C. in Braybroke v. Inskip91 hereinbefore already set out that: “the abstract is complete, whenever it appears, that upon certain acts done the legal and equitable estate will be in the purchaser”; that of Shedwell V.C. in Avarne v. Brown92 where he stated:
“It appears to me that, when an abstract shews that the equitable title is vested in the vendor, and that the legal estate in fee and a mortgage term are outstanding in certain persons, it shows a good title . . . The case of Wynne v. Griffith (1 Russ 283) seems to me not to be inconsistent with the proposition laid down by Sir Edward Sugden that, if the seller has vested in him, legally or equitably, all the interest in the estate, it cannot be objected to the Master’s report in favour of the title that the legal estate is outstanding although in a lunatic against whom no commission has issued (2 Vend. p. 40); that is, the right to call for the legal estate being shewn to be in the seller, and the legal estate being shewn to be vested in A.B., it is no objection to the title that, on account of A.B. being a lunatic, some expense must be incurred in getting the legal estate out of him. But in Wynne v. Griffith it was not certain in whom the legal estate was vested: and, in that respect, that case differs from the case put by Sir E. Sugden;” and that of Jessel M.R. in Camberwell & South London Building Society v. Holloway93 when he said:
“The general rule is this, that a man makes a good title by shewing a good equitable title and power to get in the legal estate. You are not bound to trace the legal estate further than to shew that you can get at it.”
Applying the principles above stated to the facts of the instant case, it appears to me that under the three controversial conveyances exhibits A, B and C, the purchasers Anthony Masoud and Anis Massoud trading together and carrying on business in the firm-name of K. Massoud & Sons obtained only the equitable title in the property the subject-matter of the contract exhibit J, but left outstanding in the vendors to them the legal estate in the respective share sold by these vendors under those conveyances, i.e. Joseph Kibelan as to one equal undivided moiety, and Nicholas Nassar and John Mansour as to the other one equal undivided moiety. The respondents are successors-in-title to the said Anthony Massoud and Anis Massoud trading together under the firm-name of K. Massoud & Sons, and would seem to have the right to take steps against the latter, as well as the vendors to them under the conveyances exhibits A, B, and C, to obtain the sum total of the legal estate remaining vested in the said vendors under conveyances exhibits A, B, and C, for the purpose of conveying the same to the appellants in fulfilment of the terms of the contract exhibit J.
In this connection, that unforgettable warning of Professor Maitland while discussing the nature of equitable estate in his Equity and the Forms of Action (1920 ed.), p. 142 et seq., becomes peculiarly pertinent and relevant, when at p. 143 he stated as follows:
“One maxim of prudence is this:—Never leave a legal estate outstanding however ‘dry’ it may be. Often enough land is conveyed or devised to trustees who at first have some active duties to perform—there may be charges to pay, children to be educated and the like—but after a while the whole equitable estate becomes vested in one person of full age, who is in possession of the land; the trustee now has nothing to do but to convey the land according to the directions of this cestui que trust; very probably the very existence of this legal estate [in the trustee] is forgotten; on the trustee’s death it passes to his devisee or heir, or since the Conveyancing Act 1881 (sec. 30), to his personal representatives, and perhaps it goes on devolving from one set of representatives to another—it is as ‘dry’ a legal estate as dry can be—it looks like the ghost of a
departed right. Nevertheless if you are buying or taking a mortgage from the cestui que trust, from the person who seemingly is to all intents and purposes the real and only owner of the land, do not be persuaded to leave that legal estate outstanding, but insist on having a conveyance of it. For think what will be your position if it is conveyed to someone who can say ‘I have bought the land and obtained the legal estate bona fide for value and without notice of your merely equitable rights’.”
In all the circumstances of the instant case, therefore, it seems to me that the ends of justice will best be served by allowing the appeal, setting aside the unconditional judgment for specific performance entered against the appellants, and substituting therefore a conditional judgment for specific performance for the payment by the appellants of the agreed purchase price, upon the respondents taking steps to obtain the legal title in the premises and executing conveyance of the same to the appellants within six months from date, the payment of the purchase price to be made on the day of execution of the whole estate, legal as well as equitable, in the land. In default of such conveyance of the legal estate within six months from date, the respondents’ claim for specific performance to stand dismissed.
As to costs, the appellants’ contention all along that the respondents had not the legal estate in the premises ready for conveyance to them, having been proved to be well-founded, I would award them the costs of this appeal assessed at £G60 11s. but order that each side bear its costs of the trial in the High Court.
JUDGMENT OF SARKODEE-ADDO CJ
I am in entire agreement that the appeal should be allowed and have nothing useful to add to the judgment which in my view is exhaustive and covers all the issues as to the facts and the points of law involved.
JUDGMENT OF BLAY JSC
I also agree that this appeal should be allowed. I do so however not because I hold the view that the omission of the word “heirs” in exhibits A, B and C, which constitute the respondents’ root of title rendered the estate acquired by them an estate for life only and not an estate of inheritance. 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 implies 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. I respectfully adopt the passage from Denning L.J. quoted by my brother Adumua-Bossman from the judgment in Nyali Ltd v. Attorney-General that94:
“It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending. So with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far-off lands the people must have a law which they understand and which they will
respect. The common law cannot fulfil this role except with considerable qualifications.”
In this country English is the official and commercial language generally in use and parties cannot help employing that language and forms in that language in evidencing their transactions, including sales of land. Where therefore in a sale of land in this country the deed of conveyance purports to grant unto the purchaser all the vendor’s interest in the land to the use of the purchaser, his successors, administrators and assigns, I am of the view that an estate of inheritance is thereby created even though the magic word “heirs” is not used, and the land descended to the successors of the purchaser on his death intestate. I concede that in certain transactions where an English form is used, it could reasonably be presumed that the parties intended their transaction to be governed exclusively by English law, but that presumption is untenable where the language used in the form clearly shows that the transaction was not meant to be construed according to the English common law in its entirety or rigidity.
I am however of the view that this appeal should be allowed because the action resulting in the appeal was one for specific performance of an agreement between the parties. It is necessary therefore to ascertain what that agreement was about and how far either of the parties were bound to fulfil their part or absolved from doing so. The agreement was between two English companies and was entered into in England where the parties appear to have their main offices or places of business. It is clear from exhibit J, the letter from the appellants to the respondents confirming the agreement that the respondents had offered to sell and the appellants had agreed to buy the freehold property of the respondents for a sum of £G27,750, The question therefore turns on what the appellants and the respondents understood the term freehold to mean. Now this agreement having been entered into in England it must be presumed that the law of the place where the agreement was made is prima facie that which the parties intended should govern the interpretation of words and phrases appearing in the agreement. In other words that the term freehold property should be understood and taken to mean what it implies in English law. See Jacobs, Marcus & Co. v. The Credit Lyonnais.95 Now by the common law of England a freehold estate of inheritance could be created in a conveyance inter vivos only by a phrase which included the word “heirs.” Therefore any root of title produced by the respondents which did not contain a limitation with the word “heirs” could not satisfy the requirement of the appellants namely, a “freehold” property as they understood it. That being the case, the appellants in my view cannot be compelled to take that which they had not bargained to purchase. It appears to me that the parties were not ad idem as regards the nature of the subject-matter about which they had bargained. In the peculiar circumstances of the case I would agree with the conclusions of my brother Adumua-Bossman, and order accordingly as he has done.
DECISION
Appeal allowed.
Respondents to take steps to obtain the legal title in the property and execute conveyance of same to the appellants.
S. A. B.
