PETERS v. PETERS [1963] 2 GLR 182

DIVISION: IN THE SUPREME COURT

DATE: 28TH JUNE, 1963

BEFORE: CRABBE, BLAY AND AKUFO-ADDO JJ.S.C.

CASES REFERRED TO

(1) Hickman v. Upsall (1875) L.R. 20 Eq. 136

(2) In re Aldersey; Gibson v. Hall [1905]2 Ch. 181; [1904-7] AR E.R. Rep. 644

(3) Baker v. Dewey (1823) 1 B. & C. 704; 107 E.R. 259

(4) Lainson v. Tremere (1834) 1 Ad. & El. 792; 110 E.R. 1410

(5) Bowman v. Taylor (1834) 2 Ad. & El. 278; 111 E. R. 108

(6) Young v. Raincock (1849) 7 C.B. 310; 137 E.R. 124

(7) Stroughill v. Buck (1850) 14 Q.B. 781; 117 E.R. 301

(8) Carpenter v. Buller (1841) 8 M. & W. 209; 151 E.R. 1013; 10 L.J.Ex. 393

(9) In re Simpson; Ex parte Morgan (1875) 2 Ch.D. 72, C.A.

(10) Greer v. Kettle, Re Parent Trust and Finance Co., Ltd. [1938] A.C.156; [1937] 4 All E.R. 396, H.L.

(11) Brooke v. Haymes (1868) L.R. 6 Eq. 25

(12) Shore v. Wilson (1842) 9 C1. & F. 355; 8 E.R. 450

(13) Parteriche v. Powlet (1742) 2 Atk. 383; 26 E.R. 632

(14) Smith v. Doe (1821) 2 Brod. & Bing. 473; 129 E.R. 1048

(15) Tamplin v. James (1880) 15 Ch.D. 215, C.A.

(16) Mackenzie v. Coulson (1869) L.R. 8 Eq. 368

(17) Bentley v. Mackay (1862) 31 L.J.Ch. 697

(18) Rose v. Pim [1953] 2 Q.B. 450; [1953] 3 W.L.R. 497; [1953] 2 All E.R. 739, C.A.

(19) Solle v. Butcher [1950] 1 K.B. 671; 66 T.L.R. (Pt. I) 448; [1949] 2 All E.R. 1107, C.A.

(20) Cooper v. Phibbs (1867) L.R. 2 H.L. 149; 16 L.T. 678, H.L.

[p.184] of [1963] 2 GLR 182

(21) Stone v. Godfrey (1854) 5 De G.M. & G. 76; 43 E.R. 798; 23 L.J.Ch. 769

(22) Beauchamp v. Winn (1873) L.R. 6 H.L. 223

(23) Scruttons v. Midland Silicones [1962] A.C. 446; [1962] 2 W.L.R.186; [1962] 1 All E.R. 1, H.L.

(24) Humble v. Hunter (1848) 12 Q.B. 310; 116 E.R. 885

(25) Formby v. Formby (1910) 102 L.T. 116, C.A.

(26) Drughorn v. Rederiaktiebolaget Transatlantic [1919] A.C. 203, H.L.

(27) Danziger v. Thompson [1944] K.B. 654; [1944] 2 All E.R. 151

(28) Robinson v. Rudkins (1856) 26 L.J. Ex. 56

(29) Pappoe v. Wingrove (1922) D.Ct. ‘21-’25, 20

(30) Attipoe v. Shoucaire (1948) D.C. (Land) ‘48-’51, 17

(31) Mills v. Addy (1958) 3 W.A.L.R. 357

(32) Akumanyi v. Peprah (1956) 2 W.A.L.R. 112

(33) Re Westbrook’s Trusts [1873] W.N. 167

(34) Lal Chand Marwari v. Mahant Rumrup Gir (1925) 42 T.L. R. 159, P.C.

(35) n re Watkins [1953] 1 W.L.R. 1323; [1953] 2 All E.R. 1113

(36) In re Phene’s Trusts (1870) L.R. 5 Ch.App. 139

(37) Gray v. EarI Limerick (1848) 2 De G. & Sm. 370; 64 E.R. 166; L.J.Ch. 443

(38) Childers v. Eardley (1860) 28 Beav. 648; 54 E.R. 515

(39) Bath & Mountague’s Case (1693) 3 Ch.Cas. 55; 22 E.R. 963

(40) Ex parte Dawes (1866) 17 Q.B.D. 275, C.A.

(41) Leggott v. Barrett (1880) 15 Ch.D. 306, C.A.

(42) Commissioners of Inland Revenue v. Raphael [1933] Ch. 858, C.A.

(43) Hillas v. Arcos (1932) 38 Com.Cases 23; 147 L.T. 503; [1932] All E.R. Rep. 494

(44) Commissioners of Inland Revenue v. Raphael[1935] A.C. 96, H.L.

(45) Jones v. Clifford (1876) 3 Ch.D. 779

(46) Willmott v. Barber (1880) 15 Ch.D. 96

(47) N. E. Rly. Co. v. Hastings [1900] A.C. 260, H.L.

(48) Davies v. Randall [1963] 1 G.L.R. 382, S.C.

(49) Right d. Jeffreys v. Bucknell (1831) 2 B. & Ad. 278; 109 E.R. 1146

(50) Sarfo v. Bonsu (1957) 3 W.A.L.R. 195, C.A.

NATURE OF PROCEEDINGS

APPEAL from a decision of Ollennu J., as he then was, (reported in [1962] 1 G.L.R. 34) dismissing the plaintiff’s application for a declaration that she was entitled to one-third of the rents of the property devised under her grandfather’s will. The facts are fully set out in the judgment of Crabbe J.S.C.

COUNSEL

B. J. da Rocha for the appellant.

No appearance for the respondent.

[p.185] of [1963] 2 GLR 182

JUDGMENT OF CRABBE J.S.C.

This is an appeal from the judgment of Ollennu J. (as he then was) given on the 29th January, 1962, in the High Court, Accra, by which he dismissed the claim of the plaintiff against the defendant for the sum of £G150 being her share of rents which had come into the hands of the defendant.

The following statement of the facts are taken from the judgment of the learned trial judge1: “A man by the name of Alfred George Peters, late of Accra, had four children, namely: Mary Adeline Addo (nee Peters), George James Peters, John Archibold Biala Peters and Robert Alexander Gaskin Peters. The first two, Mary Adeline and George James had different mothers, but the last two, John Archibold Biala and Robert Alexander Gaskin had one mother. The plaintiff is the daughter of George James Peters. Robert Alexander Gaskin Peters left home in 1923, and their father died on the 19th August, 1924. By his will, probate of which, exhibit A, was granted on the 11th October, 1924, to the executors named therein, Alfred George Peters devised, among other real properties, a piece of land situate on Club Road, Accra, to all his four children in equal shares. George James, the father of the plaintiff died on the 11th October, 1952. By a deed dated the 11th November, 1955, Mary Adeline, John. Archibold Biala on behalf of themselves, and the plaintiff as personal representative and successor by customary law to her late father George James, demised the said Club Road property to one Mouhamed Aid Traboulsi, a Lebanese trader. It was recited in the said deed that Robert Alexander Gaskin ‘left the Gold Coast (now Ghana) for Europe over 30 years ago without leaving any address nor has been heard of ever since his departure and his death can safely be presumed and without leaving any issue after him surviving to succeed to his individual share.’ In accordance with the terms of the said lease, the tenant paid an amount of £G6,120 to the landlords as rents in advance. The defendant paid one-fourth of that amount to the plaintiff as her father’s share. The, plaintiff, however, claims that she is entitled to one-third and not one-fourth, share of the said estate, and has now sued the defendant claiming an amount of £G150 the difference between one-third and one-fourth shares of the rents paid in advance.” The plaintiff’s claim was based on exhibit B, a lease made between, herself, the defendant and his half-sister Mary Adeline Addo as landlords on the one hand and a Mr. Traboulsi as tenant on the other. The main issue that was agreed upon at the hearing of the summons for directions was whether the plaintiff was entitled to a third share of £G6,120 which was the rent paid in advance by the said tenant. The other issue on the pleadings was whether the defendant was the successor of the deceased Robert Alexander Gaskin Peters, who together with the three landlords was entitled to an equal share of the Club Road estate. When the case came on for hearing on the 25th January, 1962, Mr. Koi Larbi, counsel for the defendant, made the following statement to the court: “We would prove that the man Robert Alexander Gaskin survived

[p.186] of [1963] 2 GLR 182 the testator, and that the presumption of his death arose after the death of the testator. The issue then would be one of legal argument.” To this counsel for the plaintiff replied, “I agree.” Thereupon Mr. Koi Larbi called into the witness-box, Mary Adeline Addo (one of the landlords under the lease) who said, among other things, as follows:

“Robert Alexander Gaskin Peters my said brother was away in Europe in 1924 when my father died. He came home in 1935, and came to us in the house. He was a seaman at the time.

I received this letter from my said brother in February 1936, it is in his own hand-writing which I know quite well and bears his usual signature which also I know quite well. I tender that letter dated the 19th February, 1936. It has been in my possession all the time up to now.”

In answer to questions under cross-examination this witness said:

“Yes I can read and write.

No I do not know the date and month on which my brother Alexander became a seaman, but I know that he left home and stowed away in 1923, and our father died in 1924.”

The next witness was a person who swore that he last saw Robert Alexander Gaskin Peters in 1937. In his judgment the learned trial judge said,2

“But quite apart from the recital, there is the oral evidence given by D.W. 1, the only daughter of the testator, that her brother Robert Alexander Gaskin came home in 1935. There is also exhibit C, a letter dated the 19th February, 1936, undisputedly written by him in his own hand-writing to his sister, showing that he was very much alive in 1936.”

Later he said,3

“But in this suit the plaintiff alleged that the devisee Robert Alexander Gaskin has no interest in the estate, therefore the onus is upon her to prove that the said Robert Alexander Gaskin predeceased the testator. She has failed to do so. The defendant on whom there is no onus to prove anything has fully discharged the onus which would have been on him had he been a plaintiff claiming what he has pleaded here. He has proved conclusively that his brother, the person presumed dead, survived their father the testator.” In my view the onus of proof which the learned trial judge wrongly placed on the plaintiff completely blurred the real issues between the parties. The plaintiff’s claim was based not upon a will but upon a lease, and the proper onus that lay on her was to establish that by the terms of that lease she was entitled to one-third share of the rents. But had the plaintiff based her claim on the terms of the will as recited in the lease I think she would be aided by the presumption of death. In those circumstances her task would only be to prove facts which raised the presumption; whereas the onus on the defendant was to prove that the legatee through whom he claimed survived the testator. “Whoever has to make out a case in order to [p.187] of [1963] 2 GLR 182 establish a title which depends upon the fact of either the death or the life of any person must prove that fact . . .”: see Hickman v. Upsall4 and also In re A Idersey; Gibson v. Hall.5

In this appeal the submissions of counsel for the plaintiff may be summarised under two heads, namely,

(1) that the learned trial judge erred in permitting the defendant to adduce evidence to contradict the recitals in a deed to which he was a party; (2) that the parties to the deed having agreed to allow property to be leased on the understanding that Robert Alexander Gaskin Peters had been dead over 30 years and that the rents were to be paid to the three persons named in the lease, it was not open to the defendant, a party to the deed, to assert the contrary.

Before dealing with the evidence on the first submission I should first examine a few of the relevant authorities on estoppel by deed as applied to recitals and then state the legal position in this case as I understand it.

The general principle of estoppel by deed was stated simply and clearly by Bayley J. in Baker v. Dewey6 in these words: “A party who executes a deed is estopped in a Court of Law from saying that the facts stated in that deed are not truly stated.”

This principle of the common law was later extended to recitals: see Lainson v. Tremere7 and Bowman v. Taylor.8 It was stated with greater clarity by Coltman J. in Young v. Raincock9 that:

“ . . . where it can be collected from the deed, that the parties to it have agreed upon a certain admitted state of facts as the basis on which they contract, the statement of those facts, though but in the way of recital, shall estop the parties to aver the contrary.”

In the later case of Stroughill v. Buck,10 the doctrine of estoppel by recitals was re-formulated by Patterson J. and put on a sounder and more satisfactory basis. He said, “When a recital is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But, when it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the instrument.” To this principle or doctrine certain exceptions are well recognised. It only applies to clear and unambiguous statements and does not debar a party from setting up fraud or illegality. It only applies between parties to the deed and their privies. Finally it only applies to actions on the deed [p.188] of [1963] 2 GLR 182 and not on a collateral transaction: see Carpenter v. Buller,11 and also In re Simpson; Ex parte Morgan12 I said earlier in this judgment that the principle which I have been examining is a common law rule. In equity, however, the position is quite different and where there is, for example, any mistake of fact which would have given a right to rectification or to rescind the deed evidence is always admissible to prove that fact: see the speech of Lord Maugham in Greer v. Kettle; Re Parent Trust and Finance Co., Ltd.13 The headnote in Brooke v. Haymes14 states this equitable principle as follows:

“A party to a deed is not estopped in equity from averring against or offering evidence to controvert a recital therein contrary to the fact, which has been introduced into the deed by mistake of fact, and not through fraud or deception on his part.”

In applying this doctrine of estoppel it is always a question of construction whether the language of the recital is to be regarded as that of an the parties to the deed, or of some or one of them only. It is also essential to ascertain the real intention and object of the admissions.

I will now examine the facts of this case and then apply the law. The recital around which there has been so much controversy in this case is stated in the lease in these terms:

“AND WHEREAS the said Robert Alexander Gaskin Peters left the Gold Coast for Europe over 30 years ago without leaving any address nor has been heard of ever since his departure and his death can safely be presumed and without leaving any issue after him surviving to succeed to his individual share in the demised premises.” This recital contains the following statement of facts: (1) Robert Alexander Gaskin Peters left the Gold Coast for Europe over 30 years prior to the execution of the lease and left no address; (2) he had not been heard of ever since the date of his departure; (3) his death can safely be presumed; and (4) there were no issues surviving him to succeed to his individual share in the property, the subject-matter of the lease. It cannot be doubted that this recital is a statement which all the parties described as “landlords” in the lease mutually agreed was true, and it was on the basis that there were only three landlords that the lease was executed. Further it must have been accepted by the parties that there was no successor of the late Robert Alexander Gaskin Peters who could be made a party to the lease.

At the trial the defendant called Mary Adeline Addo (one of the “landlords”) and another witness to contradict statements in the recital by saying (a) that Robert Alexander Gaskin Peters had been heard of within the 30 years preceding the execution of the lease, that is to say, he returned home in 1935 and after his departure he communicated with the witness in 1936; (b) that his address was known within that period and (c) that the

[p.189] of [1963] 2 GLR 182 defendant (also one of the “landlords”) was the brother of the late Robert Alexander Gaskin Peters. This evidence was admitted by the learned trial judge. Then after holding that Robert Alexander Gaskin Peters died possessed of a fourth share of the Club Road property the learned judge said’15: “That one-fourth share which he owned in the Club Road property passed upon his death intestate to his successor by customary law. The plaintiff not being his successor is not entitled to any share of his estate. Upon the evidence before the court, the proper person entitled to succeed the said, Robert Alexander Gaskin is the defendant. his brother of the whole blood. Therefore the defendant is the person entitled to hold the said one-fourth share of his said deceased brother.”

With all due respect to the learned trial judge I think he erred when he permitted the defendant to lead parol evidence to contradict the statements in the recital which all the parties agreed to admit as true at the time the lease was executed in 1955. “Estoppel by deed,” said Lord Maugham in Greer v. Kettle,16 “is a rule of evidence founded on the principle that a solemn and unambiguous statement or engagement in a deed must be taken as binding between parties and privies and therefore as not admitting any contradictory proof.” The general principle that no extrinsic evidence is admissible to add to, contradict, vary or alter the terms of a deed cannot be departed from except on any of the grounds recognised by law. A comprehensive statement of this principle was made by Tindal C.J. in Shore v. Wilson in these words17: “The general rule I take to be, that where the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves; and that in such case evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument, is utterly inadmissible … The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered as an exception, or perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party. Such investigation does of necessity take place in the interpretation of [p.190] of [1963] 2 GLR 182 instruments written in a foreign language; in the case of ancient instruments . . . in cases where terms of art or science occur; in mercantile contracts, which in many instances use a peculiar language employed by those only who are conversant in trade and commerce; and in other instances in which the words, besides their general common meaning, have acquired, by custom or otherwise, a well-known peculiar idiomatic meaning in the particular country in which the party using them was dwelling, or in the particular society of which he formed a member, and in which he passed his life.”

In Parteriche v. Powlet,18 it was stated that:

“To add any thing to an agreement in writing by admitting parol evidence, which would affect land, is not only contrary to the statute of frauds and perjuries, but to the rule of common law, before that statute was in being.”

The parties to a deed are confined within the four corners of their document and in my judgment any parol evidence to contradict, vary, or add to the contents of the document is per se inadmissible and objection can be taken against it at any stage during the trial or on appeal.

The learned trial judge gave no reasons whatsoever for admitting the extrinsic or parol evidence contrary to the general principle, and I cannot conceive any grounds that could justify the reception of the parol evidence of Mary Adeline Addo and the other witness. To use the words of Park J. in Sinith v. Doe,19 “I have never heard the general rule contradicted, that parol or extrinsic evidence cannot be admitted to contradict, vary, or add to the terms of a deed.”

The only reason which is now being advanced to justify the admission of the parol evidence is that the recitals were made in ignorance of the legal rights of the defendant. This ignorance or mistake of legal rights was not pleaded, and in my view it is not every kind of mistake that entitles a party to a contract to repudiate his obligations under it. Where a party has entered into an agreement he cannot evade the performance of it by simply saying that he has made a mistake. Thus in the old case of Tamplin v. James,20 Baggallay L.J. said, “But where there has been no misrepresentation, and where there is no ambiguity in the terms of the contract, the Defendant cannot be allowed to evade the performance of it by the simple statement that he has made a mistake. Were such to be the law the performance of a contract could rarely be enforced upon an unwilling party who was also unscrupulous.” In equity a person is not bound by his statements in the recitals if he can show grounds which can justify rectification of the contract. There are three essential grounds: (a) a prior completed agreement reached before the agreement which is sought to be rectified; (b) the intention of the parties that the prior agreement should be reduced into writing, and there must [p.191] of [1963] 2 GLR 182 be no evidence of a change of this intention; (c) evidence of mutual mistake. In Mackenzie v. Coulson,21 James V.C. stated the first two essentials in clear terms when he said, “Courts of Equity do not rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts. But it is always necessary for a Plaintiff to shew that there was an actual concluded contract antecedent to the instrument which is sought to be rectified; and that such contract is inaccurately represented in the instrument.” As regards mutual mistake Turner L.J. made this observation in Bentley v. Mackay, (1862) 31 L.J.C.L. 697 at p. 709.22 that:

“the mistake must be the concurrent mistake of all the parties … I take this to be the rule in the ordinary case of rectifying mistakes in an instrument where it is sought to alter the instrument in any prescribed or definite mode, and for this reason—that in such cases it is necessary to prove, not only that there has been a mistake in what has been done, but also what was intended to be done, in order that the instrument may be set right according to what was really so intended; for in such a case, if the parties took different views of what was intended, there would be no contract between them which could be carried into effect by rectifying the instrument.” These essentials are clearly absent in this case, and there can be no doubt that the defendant would not be entitled to rectification. Consequently, he must be held bound by the recitals in the lease. The lease which was the contract between the parties is clear on the face of it, and outwardly it embodies the terms agreed on at the time of its execution. Therefore unless and until it is set aside in a proper action the court must enforce it according to its terms. As Denning L.J. (as he then was) pointed out in Rose (London) Ltd. v. Pim & Co. Ltd.,23

“At the present day, since the fusion of law and equity, the position appears to be that when the parties to a contract are to all outward appearances in full and certain agreement, neither of them can set up his own mistake, or the mistake of both of them, so as to make the contract a nullity from the beginning. Even a common mistake as to the subject-matter does not make it a nullity. Once the contract is outwardly complete, the contract is good unless and until it is set aside for failure of some condition on which the existence of the contract depends, or for fraud, or on some equitable ground: see Solle v. Butcher.”

In Solle v. Butcher,24 the learned Lord Justice (as he then was), in the course of his judgment, said that, “A contract is also liable in equity to be set aside if the parties were under a common misapprehension either as to facts or as to their relative and respective rights, provided that the misapprehension was fundamental and that the party seeking to set it aside was not himself at fault.”

[p.192] of [1963] 2 GLR 182

Before considering, however, the qualification placed upon the application of the principle enunciated by Lord Westbury in his speech in Cooper v. Phibbs,25 it is important to note that a mistake as to legal right for which equity grants relief must be based on a mistake of fact. Mistake of law is in general no ground for relief, but as Lord Westbury pointed out in Cooper v. Phibbs,26 “Private right of ownership is a matter of fact; it may be the result also of matter of law.”

In my view the principle in Cooper v. Phibbs (supra) is inapplicable to the facts of this case, because there the mistake of right was due to a mistake of fact. The House of Lords in that case granted relief to the plaintiff who had agreed to take from the defendant a lease of a fishery of which in fact the plaintiff was already owner, but both parties mistakenly believed that under a private Act of Parliament and a deed, the defendant was the owner. In his famous speech Lord Westbury said,27 “Now, that was the case with these parties — the Respondents believed themselves to be entitled to the property, the Petitioner believed that he was a stranger to it, the mistake is discovered, and the agreement cannot stand.” Was the defendant in this case ignorant of the facts as to his private or legal right? In the statement of defence filed on his behalf the following facts were pleaded:

“3. That the defendant and the said Alex Gaskin Peters are of the same mother.

4. That upon the death of the plaintiff’s father, the interest of the said father lapsed and fell into residue and that his share automatically vested in his children capable of inheriting and that the plaintiff’s interest, if any, is one-third of £G442 15s. 4d. and not £G150 as alleged.

5. That the share of Alex Robert Gaskin Peters was paid to the defendant by Mrs. Mary Adeline Addo who was at the time seised of the facts concerning the said Alex Robert Gaskin Peters.”

The basic fact upon which the defendant can claim to be a proper successor of Robert Alexander Gaskin Peters is that he was the uterine brother of Robert Alexander Gaskin Peters. It is impossible to believe, indeed it is inconceivable, that the defendant would make a mistake about such a relationship or would even forget about it. The defendant might not have known that in law he was a successor of Robert Alexander Gaskin Peters, but his erroneous inference or opinion drawn from the facts was a mistake of law for which the court could not grant him relief. It is equally clear that both the defendant and Mary Adeline Addo were fully aware at the time of the execution of the lease that the defendant was the successor of Robert Alexander Gaskin Peters (if at all) yet the defendant or head of his family deliberately omitted to be made a party to the lease in that capacity. It would appear, therefore, that the defendant entered into the contract with full knowledge of all the relevant facts on which his right depended, and [p.193] of [1963] 2 GLR 182 that he was not deprived by mistake or ignorance of any benefit under the lease: per Jenkins L.J. in Solle v. Butcher.28 There is no evidence of any mutual mistake by the parties and as a general principle one party to a contract cannot defend himself against it by setting up his own misunderstanding as to its true meaning and effect or as to any of the terms in which it is expressed. Equity does not grant relief for mistake unless the conduct of the party claiming relief was determined by the mistake: see Stone v. Godfrey.29

The grounds on which equity will interpose and grant relief by setting aside a contract are stated by Lord Chelmsford in Beauchamp v. Winn30 thus:

“The cases in which Equity interferes to set aside contracts are those in which either there has been mutual mistake or ignorance in both parties affecting the essence of the contracts, or a fact is known to one party and unknown to the other, and there is some fraud or surprise upon the ignorant party.”

In my view the case of the defendant is not covered by any one of the grounds which would induce a court of equity to grant him relief. I am unable to hold that on the facts of this case there was such a mistake of a private right as to bring it within the principle of Cooper v. Phibbs.31 In this case there is no evidence of fraud (it was not even pleaded) on the part of the plaintiff, and therefore the question is: “Can the lease be set aside?” I do not think so. In my opinion, therefore, it would be wrong to admit extrinsic evidence to contradict the clear and unambiguous statement in the recital that Robert Alexander Gaskin Peters died without a successor. As James L.J. said in In re Simpson; Ex parte Morgan,32

“No doubt there is an equity, under some circumstances, to set aside a deed. There is an equity to rectify a deed. But it must be judicially set aside or rectified, and, unless and until that is done, it is a violation of first principles to allow evidence as to the meaning and intention of parties, when there is an actual agreement in writing, the record of that meaning and intention.”

The defendant may be permitted to say that the prior agreement (if ever there was one) was different from the written agreement, but he is estopped from leading evidence to show that they intended something different from what is expressed in the written agreement. Their intention can only be inferred from the words they have used. Thus in Rose (London) Ltd. v. H. Pim & Co. Ltd. Denning L.J. (as he then was) made the following observations33:

“There could be no certainty at all in business transactions if a party who had entered into a firm contract could afterwards turn round and claim to have it rectified on the ground that the parties intended something different. He is allowed to prove, if he can, that they agreed something different: see Lovell & Christmas v. Wall, per Lord Cozens-Hardy M.R., and per Buckley L.J., but not that they intended something different.” [p.194] of [1963] 2 GLR 182

It seems to me clear beyond peradventure that the parties having assumed that Robert Alexander Gaskin Peters had died without any successors they excluded him and his heirs from the benefit of the lease. In my judgment therefore a finding that a share of the rents should be claimed by a fourth party who is a stranger to the transaction would be contrary to the evidence on record for the lease, exhibit B, contains the following term: “the Landlords hereby DEMISE unto the Tenant ALL THAT piece or parcel of land situate lying and being at Club Road … [description of the property] … TO HOLD the said land messuage and premises (hereinafter sometimes called the said demised premises) to the Tenant from the first (1st) day of December 1955 for the term of SIXTY (60) YEARS YIELDING and PAYING THEREFORE unto the Landlords during the said term the yearly rent of THREE HUNDRED AND SIXTY POUNDS (£360) payable in manner following that is to say: On the execution thereof the Tenant shall pay to the Landlords the sum of Five Thousand Four Hundred Pounds (£5,400) representing advance of rent for fifteen (15) years of the term hereby created; five

(5) years from the execution hereof the Tenant shall pay to the Landlords the sum of Seven Hundred and Twenty Pounds (£720) representing advance of rent for two (2) years making in all advance of rent for seventeen (17) years during which period no further rent shall be paid and thereafter the rent hereby reserved shall be payable yearly in advance.”

There can be no doubt that under this term of the lease rents accruing from the Club Road property were to be paid by the tenant to three landlords only. In my view therefore it would be wrong to hold that a person who was not a party to the lease and who was excluded from its terms by implication could claim any benefit under it. It is a fundamental principle of law that apart from special considerations of agency, trust, assignment or statute, a person who is not a party to a contract cannot enforce it for his benefit or rely on its provisions for protection. Thus in Scruttons v. Midland Silicones,34 Lord Reid said, “Although I may regret it I find it impossible to deny the existence of the general rule that a stranger to a contract cannot in a question with either of the contracting parties take advantage of provisions of the contract even where it is clear from the contract that some provision in it was intended to benefit him. That rule appears to have been crystallised a century ago in Tweddle v. Atkinson (1816) 1 B. & S. 393, and finally established in this House in Dunlop Pneutnatic Tyre Co., Ltd. v. Selfridge & Co., Ltd. [1915] A.C. 847. There are it is true certain well-established exceptions to that rule-though I am not sure that they are really exceptions and do not arise from other principles.”

It is quite clear on the face of the lease that the defendant executed it only in his personal capacity and not in any dual capacity.

The question as to who are to share the rents accruing from the Club Road property is the only cardinal issue in this case, and it ought, in my view, to be fully and carefully examined. Supposing there is a breach of

[p.195] of [1963] 2 GLR 182 any of the covenants in favour of the tenant and he decides to enforce his rights and claim damages? On a fair construction of his contract with the landlords can he succeed in a claim against the defendant in his capacity as successor of Robert Alexander Gaskin Peters? Surely, he cannot. It is not open to the landlords to say that their joint liability is limited to three-fourths of the claim for damages or individually to one-fourth. Again, supposing there is a breach of covenant to pay rent, can the successor of Robert Alexander Gaskin Peters sue the tenant for arrears of rent? I think not. A successor of Robert Alexander Gaskin Peters cannot take a benefit under the lease without the obligations. The defendant in this case executed the lease in his personal capacity as John Archibold Biala Peters, and with respect to the learned trial judge I think he erred in admitting parol evidence to prove that he was the successor of Robert Alexander Gaskin Peters and that in his dual capacity be was entitled to half of the rents payable under the lease. Such evidence would not only contradict his statement in the recital that Robert Alexander Gaskin Peters had no successor but also a statement in the lease which he accepted as true that he was executing the lease in no other capacity than personal. Where a person enters into a contract and so describes himself as sole owner of property evidence by him is not admissible to show that some other person was the owner or a part-owner: see Humble v. Hunter35 and Formby v. Formby.36 In Drughorn v. Rederiaktiebolaget Transatlantic,37 Viscount Haldane said, “The question is not before us now, but I see no reason to question that where you have the description of a person as the owner of property, and it is a term of the contract that he should contract as owner of that property, you cannot show that another person is the real owner. That is not a question of agency—that is a question of property.”

By parity of reasoning I would say that where a party has entered into a tenancy agreement and he has been described as a landlord in his own right and the circumstances do not show that he entered into the contract in any other capacity, he cannot be permitted to say that he entered into the contract in a dual capacity so as to enable him to obtain double benefit from the contract. Unless the defendant can show that he entered into the contract as an agent or nominee or successor of Robert Alexander Gaskin Peters I cannot see how he can claim an additional share of the rent as successor: see Danziger v. Thompson.38 Where there is an agreement in writing inter parties parol evidence is not admissible for the purpose of showing other persons to be parties to it. Thus in Robinson v. Rudkins39 the court said, “Moreover there was an agreement in writing inter partes. To admit evidence to make a person liable on a written agreement, who was not a party to it, would be to do away with the rule, that parol evidence cannot be allowed to alter the effect of a written instrument.”

[p.196] of [1963] 2 GLR 182

It is necessary in this case to determine whether the defendant is at all a successor of Robert Alexander Gaskin Peters and therefore entitled to one-fourth share of the rents which, if his contention is tenable, ought to go to Robert Alexander Gaskin Peters. In the view of the learned trial judge the extrinsic evidence before him established that the defendant was the proper person entitled to succeed to the property of Robert Alexander Gaskin Peters and therefore entitled to hold the one-fourth share of his deceased brother. With all due respect to the learned trial judge whose-views on the customary law are normally entitled to great respect, I think his finding on this issue is not justified by the evidence. The only evidence -on the issue is that the defendant and the late Robert Alexander Gaskin Peters were of the same mother. It is a well-established principle of customary law that no one has an inherent right to succeed; succession is a question of election by relatives at a proper meeting convened for that purpose. In the case of Pappoe v. Wingrove,40 Smyly C.J. said,

“In the present case, the defendant has admitted that the plaintiff, in the ordinary course would be the successor according to Native Law and Custom, but claims : – (a) That, before taking possession of the property, he must have the approval of the family; (b) that the family have not approved of him; and (c) that the family have superseded him . . .

On the evidence I find … that the successor … has to be approved by the family … [who] have power to supersede or refuse to approve, any member of the family who does not meet with their approval, either by his former or subsequent conduct, should they consider it necessary or advisable in the interest of the family.”

In Attipoe v. Shoucaire,41 Coussey J. (as he then was) said as follows: “In native custom all succession is a question of election by relatives, not of inherent right; the only rigid rule is that the election shall be constitutionally carried out at a proper meeting of the relatives.” In Mills v. Addy,42 Ollennu J., as he then was said,

“When a person, male or female, dies intestate his or her self-acquired property becomes family property to be administered by the head of his family. The head of the family by custom entrusts that property, as distinct from ancestral property, to the ‘real’ or the ‘proper’ successor as the case may be.” See also Akumanyi v. Peprah.43

There is no evidence in this case that the defendant has been appointed the successor of Robert Alexander Gaskin Peters in accordance with native custom. In my view the evidence adduced only showed that the defendant was only a potential successor, but that is not sufficient in law to establish a right to succeed to the property of a deceased person. So that apart from the question of inadmissibility, the evidence adduced fell far short of the evidence required to establish the defendant’s claim.

[p.197] of [1963] 2 GLR 182

After all the parol evidence has been excluded, the only admissible and vital evidence remaining on the record is the lease dated the 11th November, 1955, exhibit B, in which is recited the material clauses of the will of the late Alfred George Peters, exhibit A, and also the evidence of Mary Adeline Addo that her brother stowed away in 1923. The lease constituted a written contract between Mary Adeline Addo (nee Peters), John Archibold Biala Peters and Daisey Lina Peters as “landlords” and Mouhamed Aid Traboulsi as “tenant.”

The crucial question in this case is whether the plaintiff is entitled to a one-third or one-fourth share of the rents accruing from the subject matter of the lease, exhibit B. The answer to this question depends partly on whether Robert Alexander Gaskin Peters survived the testator and partly on the construction of exhibit B.

The learned trial judge first dealt with the recital relating to the presumption of death. It must be pointed out at this stage that that recital states that Robert Alexander Gaskin Peters left the Gold Coast “over 30 years ago” and not “about 30 years” before the date of the lease, i.e. the 11th November, 1955, as the learned judge inaccurately stated in his judgment. This misdirection on the facts led the learned trial judge to conclude after a simple “mathematical calculation” that Robert Alexander Gaskin Peters must have been alive in 1925. Then after stating the common law presumption of death the learned judge said,44 “It follows that even without further evidence the presumption that Robert Alexander is dead could not have arisen until seven years after 1925 the year when according to the recital in the lease, he was last seen and heard of Therefore far from the recital relied upon by the plaintiff being conclusive that Robert Alexander Gaskin predeceased his father, the testator, it is definitely conclusive evidence that he survived his said father the testator.” With all due respect to the learned trial judge I think he clearly misdirected himself on the application of the law of presumption of death. The law is stated in Halsbury’s Laws of England (3rd ed.), Vol. 15 pages 344—345, para. 623:

“Where no statute lays down an applicable rule, the issue whether a person is dead generally speaking is one of fact and not subject to a presumption of law. To this there is one exception, namely, that, if there is no acceptable affirmative evidence that a person was alive at some time during a continuous period of seven years or more, then, if it can be proved that there are persons who would be likely to have heard of him over that period if he were alive, that those persons have not heard of him, and (it seems) that all due inquiries have been made appropriate to the circumstances, there arises a legal presumption that he is dead.”

In applying this principle it is not necessary that those who undertake to establish death should go on a globe-trotting expedition to make a wild-goose chase of the propositus. The basic fact of the presumption is

[p.198] of [1963] 2 GLR 182 established if persons likely to have heard of him since his disappearance have not in fact heard of him for seven years or more.

The rule of presumption applies only to death and there is no presumption of law in favour of continuance of life: see In re Aldersey; Gibson v. Hall.45 The presumption of death fixes the seven years period as that preceding the execution of the lease in 1955; or seven years after the date or year on which Robert Alexander Gaskin Peters was last seen by his relatives, i.e., 1923; see Re Westbrook’s Trusts.46 The law does not however, presume that Robert Alexander Gaskin Peters died at any particular point of time during the period of seven years; but the mere fact that a person is not presumed dead does not mean that he is presumed alive. In Lal Chand Marwari v. Mahant Ramrup Gir,47 it was said, “If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.”

In my view the disappearance of Robert Alexander Gaskin Peters for “over 30 years” is remote enough in time to raise the inference that he was dead: see In re Watkins.48 In those circumstances it was incumbent on the defendant, if he was to succeed, to show that Robert Alexander Gaskin Peters was alive at any period between 1924 and 1955. The dilemma of the defendant is that he was precluded by the recital in the deed from adducing evidence to establish that Robert Alexander Gaskin Peters died at a time subsequent to 1925 because such evidence would contradict the statement in the recital that “Robert Alexander Gaskin Peters left the Gold Coast for Europe over 30 years ago without leaving any address nor has been heard of ever since his departure.” The presumption of death arises on the proof or admission of certain facts. The admissions made by the defendant are those stated in the recital, and in my view it does not lie in his mouth to contradict those written admissions. In Everest and Strode on The Law of Estoppel (2nd ed.), p. 4 the learned authors refer to the writings of Lord Coke on the subject of estoppels and state:

“ ‘The reasons,’ says Lord Coke ‘why estoppels are allowed, seem to be these. No man ought to allege anything but the truth for his defence, and what he has alleged once, is to be presumed true, and therefore, he ought not to contradict it: for, as it is said in the 4 Inst. 272, ‘Allegans contraria non est audiendus’.” Where a claim is based on survivorship, such survivorship must be proved by affirmative evidence: see In re Phene’s Trusts.49 In my judgment the onus therefore was on the defendant to show by affirmative evidence that Robert Alexander Gaskin Peters survived the [p.199] of [1963] 2 GLR 182 testator, since no presumption of life is raised in his favour. There is no such admissible evidence on record, and in my opinion the share of Robert Alexander Gaskin Peters under the will must be deemed to have lapsed and fallen into residue. It follows therefore that there is no share of Robert Alexander Gaskin Peters in the Club Road estate which the defendant could inherit.

If my view that the only admissible evidence which the defendant could adduce was that Robert Alexander Gaskin Peters left this country in 1923 is correct, and I have no reason to think that it is not, then the case of In re Phene’s Trusts (supra) seems to me to illustrate the point that arises in this case.

There the testator died in 1861, after he had bequeathed his residuary estate equally between his nephews and nieces. One of his nephews was born in 1829. He went to America in 1843 and communicated with his family up to 1858, and then joined the American Navy and was last heard of as a deserter in 1860. Advertisements for him were made in English and American newspapers in 1868, after which the plaintiffs obtained a grant of representation to his estate. It was held that their claim to his share of the testator’s residue failed because the court declined to infer that that nephew survived the testator. In the judgment it was said that50:

“the law presumes a person who has not been heard of for seven years to be dead, but in the absence of special circumstances draws no presumptions from that fact as to that particular period at which he died.” The lease as I have already said was a contract between the parties who executed it. A written instrument is exclusive and conclusive evidence of the terms of the contract, and the parties are bound by its terms accordingly. The parties are presumed to have intended what they have in fact said, so that their words must be construed as they stand. The court must give effect to the intention of the parties as is expressed in their agreement.

In this case the parties to the lease must have assumed that Robert Alexander Gaskin Peters who appears as a beneficiary under the will died without leaving anyone to inherit his share (if any) in the demised property. It was on this basis, I think, that the three remaining beneficiaries alone executed the lease in their personal capacities as “landlords.”

A point which has now assumed some great importance is the effect of the following recital in the lease: “AND WHEREAS the said Alfred George Peters (hereinafter called the Testator) late of Accra aforesaid duly made his Will dated the 7th day of July 1923 and thereby devised the hereditaments and premises intended to be hereby demised and hereinafter described unto and to the use of his children Mrs. Mary Adeline Addo, George James Peters, John Archibold Biala Peters and Robert Alexander Gaskin Peters their heirs and assigns in equal shares.”

[p.200] of [1963] 2 GLR 182

It is suggested that this recital is clear evidence that the plaintiff is restricted to only one-fourth share of the rents. I would easily agree to this suggestion if the rest of the instrument supports this recital: see Gray v. Earl Limerick51 and Childers v. Eardley.52

But in the operative part of the lease it is stated as follows:

“the Landlords hereby DEMISE unto the Tenant ALL THAT piece or parcel of land situate lying and being at Club Road … [description of property] … TO HOLD the said land messuage and premises (hereinafter sometimes called the said demised premises) to the Tenant from the first (1st) day of December 1955 for the term of SIXTY (60) YEARS YIELDING and PAYING THEREFORE unto the Landlords during the said term the yearly rent of THREE HUNDRED AND SIXTY POUNDS (£360) payable in manner following that is to say: On the execution thereof the Tenant shall pay to the Landlords the sum of Five Thousand Four Hundred Pounds (£5,400) representing advance of rent for fifteen(15) years of the term hereby created; five

(5) years from the execution hereof the Tenant shall pay to the Landlords the sum of Seven Hundred and Twenty Pounds (£720) representing advance of rent for two (2) years making in all advance of rent for seventeen (17) years during which period no further rent shall be paid and thereafter the rent hereby reserved shall be payable yearly in advance.” The only meaning that I can discern from this operative part of the lease, and that I think gives expression to the intention of the parties, is that the rents reserved under the lease were to be paid only to the three “landlords” mentioned in it. The operative part of the lease is clear and unambiguous. The principles on which the court acts in questions of conflict between the operative part of a deed and the recital are well-known. If the operative part is ambiguous, the ambiguity may be resolved by having recourse to other parts of the instrument, the recitals. If there is no ambiguity in the operative part that part in its natural and ordinary meaning must override any doubts which may be raised by other portions of the deed; it can only be corrected or amended by a suit for rectification. If the only ambiguity in the operative part is one which is suggested by the recitals, that is not an ambiguity which will induce the court to give the operative part any other than its natural meaning.

This principle of law is well settled and the authorities on it are numerous and ordinarily it is unnecessary to refer to an authority on such a point. But in deference to the view that the relevant recital determines the share of the plaintiff I would refer to the observations made in a few cases to fortify my own view. In Bath & Mountague’s Case,53 Lord Holt C.J. said: “The reciting Part of a Deed is not at all a necessary Part either in Law or Equity. It may be made Use of to explain a Doubt of the Intention and Meaning of the Parties, but it hath no Effect or Operation.”

[p.201] of [1963] 2 GLR 182

Lord Esher M.R. in Ex parte Dawes,54 stated the rules applicable as between recitals and the operative part in these words:

“If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred.” In Leggott v. Barrett,55 Brett L.J. said,

“If there is any doubt about the construction of the governing words of that document, the recital may be looked at in order to determine what is the true construction; but if there is no doubt about the construction, the rights of the parties are governed entirely by the operative part of the writing or the deed.” In my judgment the rights of the parties to the lease, exhibit B, are governed only by the operative part which is clear and unambiguous. The recital in the lease only expresses the wish of the testator as to how the interests of his four children in the estate are to be shared. It is only an explanatory or introductory statement and is not a necessary part of the deed. The court cannot give effect to this wish since the recital is in conflict with the plain words of the operative part of the lease. The operative part of the lease was intended by the parties to operate, and its operation cannot be clogged by any presumed intention of the parties or the wishes of the testator. Thus in Commissioners of Inland Revenue v. Raphael,56 the recitals indicate the intention of the settlor to make a settlement under his parents’ marriage settlement and his grandfather’s will in such a way as would avoid a forfeiture of his portion under the will of the father. It was held that as the ultimate trust contained in the operative part of the settlement was clear and unambiguous it was not possible to construe it so as to give effect to the settlor’s intention as declared by him though the words in the operative part fail to carry out that intention. In his judgment Lord Hanworth M.R. observed57:

“In my opinion, if the Court was to construe the settlement as carrying into effect the purpose or motive which is contained in the recitals, it would be rejecting the words used by the settlor and we should be rectifying this deed under the guise or pretence of construing it.”

The primary function of the court in this case is to construe the words which the parties used in the lease, exhibit B, so as to give effect to the intention as expressed by them and not to what was intended to have been written. “The problem for a court of construction,” said Lord Tomlin in Hillas v. Arcos,58 “must always be so to balance matters that, without violation of essential principle, the dealings of men may as far as possible be treated as effective, and that the law may not incur the reproach of [p.202] of [1963] 2 GLR 182 being the destroyer of bargains.” The role of the court is to construe the contract made by the parties themselves and not to construct one for them.

In this case there can be little doubt on a fair and broad construction of the whole lease that the three parties assumed that their brother Robert Alexander Gaskin Peters having died without anyone to inherit him they were the only persons entitled to convey the Club Road estate, and that the three of them alone were entitled to enjoy the rents accruing from that estate.

I am of the opinion that the court below arrived at a wrong decision, because in applying the principles of construction which I have discussed I am impelled to the conclusion that the predominant intention of the parties at the date of the execution of the lease, exhibit B, was that the rents were to be shared only among the three contracting parties. Accordingly, the plaintiff ‘s share would be one-third of such rents. I find it impossible to hold that it was the intention of the three landlords that after the rents had been paid they should share them equally with an unknown or non-existent successor or someone who was not a party to the deed. I may say in the words of Lord Wright in Commissioners of Inland Revenue v. Raphael59: “If in some cases hardship or injustice may be effected by this rule of law, such hardship or injustice can generally be obviated by the power in equity to reform the contract, in proper cases and on proper evidence that there has been a real intention and a real mistake in expressing that intention: these matters may be established, as they generally are, by extrinsic evidence. The Court will thus reform or re-write the clauses in order to give effect to the real intention. But that is not construction, but rectification.” For the above reason I would allow this appeal.

JUDGMENT OF BLAY J.S.C.

The facts of the case, as appear on the record of proceedings are short and simple and mostly undisputed. For the purpose of this judgment I propose to rely solely on the undisputed facts which are amply set out in the judgment read by my brother Crabbe.

The learned trial judge after considering those facts and the claim of the plaintiff and the law involved and applicable thereto, gave judgment dismissing the claim and entered judgment for the defendant. It is from this judgment that the plaintiff has appealed to this court on the following grounds: “(a) The learned judge was in error in his view of the case. The amount to be distributed was payment of rent by a lessee or tenant to specified and named lessors or landlords, and intended by the former for the latter and them alone, and the defendant-respondent who was a party to the lease and did not then claim to join, apart from his personal capacity, in a representative capacity as successor of his deceased brother, had no legal right to appropriate any portion of the amount paid specifically to the named lessors or landlords under the lease for a person not a party to the said lease.

[p.203] of [1963] 2 GLR 182

(b) The lease constituted a contract not only between the lessee and the lessors on the one hand, but between the lessors inter se on the other hand and operates to estop the defendant-respondent as a party from denying that only the named lessors in the said lease are entitled to the rent paid thereunder.

(c) The learned judge misdirected himself on the law properly applicable to the case, and his judgment in favour of the defendant-respondent cannot be supported.

(d) The judgment is against the weight of the evidence.”

To these grounds of appeal, learned counsel for the appellant before this court asked for and was granted leave to argue additional grounds in the following terms, namely, that:

“(i) the learned trial judge erred in permitting the defendant-respondent to adduce evidence to contradict the recitals in a deed to which he was a party;

(ii) that the learned trial judge misunderstood the terms and purport of the recitals in the deed and therefore erred in the ‘mathematical’ calculations made by him;

(iii) the learned trial judge failed to appreciate the case for the plaintiff – appellant which was that the parties to the deed having agreed to allow property to be leased on the understanding that Alexander Gaskin had been dead over 30 years and that the rents were payable to the three persons named in the lease it was not open to the defendant- respondent a party to the deed to assert otherwise;

(iv) that the evidence led in support of exhibit C was unsatisfactory and inadequate and the learned trial judge erred in holding that exhibit C was ‘undisputably written by him [thereby meaning Alexander Gaskin] and in his own handwriting’.”

Before this court the main grounds of appeal argued by learned counsel are the additional grounds referred to above. He contended that the defendant was bound by the recitals in the lease, exhibit B, whereby it was declared that the property intended to be leased was vested in the landlords, namely, Mary Adeline Addo (nee Peters), John Archibold Biala Peters and Daisey Lina Peters (as personal representative and successor in accordance with native custom of George James Peters, deceased) free from incumberances. He further contended that the defendant being a party to the said declaration cannot be heard to say now that he was entitled to the share of Robert Alexander Gaskin Peters who had not been heard of for over 30 years and must be presumed dead. I do not agree with this contention which in my view is founded on a fallacy. The plot of land, the subject-matter of the lease, exhibit B, having devolved by way of a testamentary devise, its enjoyment or any distribution thereof, must be in strict accordance with the intention of the testator. Here the intention of the testator clearly was that each of the devisees and his heirs or successors should enjoy the property in equal shares and, in my view, no act of any one of the devisees or even of a group of them should suffice to defeat an intention so clearly expressed. I am in entire agreement with the learned

[p.204] of [1963] 2 GLR 182 trial judge that Robert Alexander Gaskin having survived his father, the testator, his share in the property devised under the will became vested in him and his heirs on the death of the testator in 1924 in terms of the will, exhibit A. The defendant by his amended statement of defence, claimed that he was the next-of-kin or personal representative of Robert Alexander Gaskin. This statement was never traversed and from the record of proceedings, it would appear that that claim was accepted by all the parties. In law, therefore, the defendant as the successor or personal representative of Robert Alexander Gaskin, was the proper person who should have claimed Gaskin’s share in the property leased in 1955. It follows therefore that the recitals in the lease of 1955 to which the defendant was a party, and upon which the plaintiff relies, was made in ignorance of the legal rights of the defendant. Now it is settled law that the maxim ignorantia juris haud excusat has no application in matters of private legal rights: see Cooper v. Phibbs.60 Lord Westbury in that case stated the law as follows61:

“It is said, ‘Ignorantiai juris haud excusat; but in that maxim the word ‘jus’ is used in the sense of denoting general law, the ordinary law of the country. But when the word’ jus’is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact; it may be the result also of a matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be set aside as having proceeded upon a common mistake.”

That was a case where one E. Cooper, in ignorance of his rights under an Act of Parliament, leased property from a person whom he thought owned that property. Upon reading the Act of Parliament afterwards and realising that, under the provisions thereof and of the settlement which the Act dealt with, the property leased really belonged to himself, he applied to the court to have the agreement set aside. The House of Lords decided that the agreement, having been made in a mutual mistake, must be set aside. If the agreement could be set aside under such circumstances so also in my view could a claim based on it be resisted: see Jones v. Clifford.62 Also in Willmott v. Barber,63 a lessor was allowed to disprove alleged acquiescence in acts of his under-lessee by saying that he did not at the time of those acts know of certain clauses in the lease which he himself had granted. Conversely in N.E. Ry. Co. v. Hastings,64 mutual misconstruction of a lease for 40 years did not entitle a lessee to resist an action brought on its proper construction.

That being the state of the law as I see it I hold that the defendant was not precluded from asserting his rights discovered after the execution of the lease, exhibit B. In my view therefore the learned trial judge was right in dismissing the plaintiff ‘s claim as he did. I am not impressed by the [p.205] of [1963] 2 GLR 182 argument that the amount paid in respect of the property should have been divided into three equal parts among the persons described in exhibit B as the landlords and any person or persons claiming to be entitled to a share be left to bring action to enforce his or their rights against the said landlords. Interest reipublicae ut sit finis litium. To have acted in the manner suggested would lead to unnecessary litigation. In the result I would dismiss the appeal with costs.

I have had the privilege of reading before hand the erudite judgment of my brother Crabbe, and I regret I cannot agree with him. As regards the hypothetical cases which might arise in a dispute between the landlord and the tenant as posed by him, I can only say that I prefer not to leap the fence before I reach it.

JUDGMENT OF AKUFO-ADDOO J.S.C.

I have had the opportunity of seeing before hand the judgments which my brothers Crabbe and Blay have read and in which the facts in this appeal have been fully set out, and I do not therefore think it necessary to reiterate those facts, except to say at the outset that I find myself in respectful disagreement with both the reasoning and the conclusions embodied in the judgment of my brother Crabbe and in agreement with the conclusions arrived at by my brother Blay. Although the main point raised by this appeal is of some importance it is within a relatively small compass.

The plaintiff as the successor of George James Peters claims to be entitled to one-third share of the rents which have been paid to the defendant as the successor of Robert Alexander Gaskin Peters (hereinafter referred to as “Gaskin”) by Mrs. Mary Addo who had received the rents from the tenant under the lease. The ultimate effect of her claim (and indeed the essence of her claim) is that she is entitled to one-third share of all the rents payable under the lease.

The plaintiff ‘s case as I understand it is that she (standing in the shoes of her deceased father George James Peters), the defendant and Mrs. Mary Addo executed a lease on the 11th November, 1955, of the Club Road premises and described themselves in that lease as the absolute owners of the said premises after reciting in the said lease that Gaskin had not been heard of for over 30 years and was therefore presumed dead and that he left no issue to succeed to his share in the said premises.

The relevant recitals in the lease read as follows:

“AND WHEREAS the said Robert Alexander Gaskin Peters left the Gold Coast for Europe over 30 years ago without leaving any address nor has he been heard of ever since his departure and his death can safely be presumed and without leaving any issue after him surviving to succeed to his individual share in the devised premises AND WHEREAS under and by virtue of the hereinbefore recited Deed and Will the landlords are seised of the hereditaments and premises and the inheritance thereof for an estate in fee simple in possession free from encumbrances and have agreed with the tenant to demise same to him in manner hereinafter appearing.”

[p.206] of [1963] 2 GLR 182

The plaintiff adduced no evidence at the trial, and after the will of Alfred George Peters and the lease had been tendered in evidence Mr. Koi Larbi counsel for the defendant submitted, “We would prove that the man Robert Alexander Gaskin survived the testator, and that the presumption of his death arose after the death of the testator. The issue then would be one of legal argument.” With this submission Mr. Nelson-Cofie counsel for the plaintiff agreed.

Mr. Koi Larbi then called Mrs. Mary Adeline Addo one of the devisees under the will and one of the landlords who executed the lease and who said that her brother Gaskin was away in Europe in August 1924 when her father died, that Gaskin left this country in 1923, that he came home for a brief period in 1935, that in 1936 she received a letter from him written from Liverpool and dated the 19th February, 1936, which was received in evidence. She had since not heard of Gaskin.

Counsel for the defendant then called one Nathaniel Armarh Laryea, a Ghanaian now employed at the Star Hotel, and who had been away in Europe continuously from 1927 to 1960 when he returned home. He said he met Gaskin in Freetown in 1928 and in 1933 he managed to stow him away to England and got him employment on one of the mail boats plying between Liverpool and West Africa. Between 1933 and 1937 he said he saw Gaskin who lived at Carnnie Street in Liverpool, the address from which the letter to Mrs. Mary Addo was written, that he last saw Gaskin in 1937 and that in 1938 when he enquired about him in Liverpool he was told that he was dead.

After the conclusion of this evidence Mr. Nelson-Cofie, counsel for the plaintiff, then said to the court: “We have no evidence to lead to contradict the evidence given so far that Alexander [that is Gaskin] survived his father the testator.” The learned trial judge dismissed the plaintiff ‘s claim on the grounds that she was not able to prove that Gaskin predeceased the testator and also that she did not satisfy him that she had any interest in the intestate devolution of Gaskin’s estate.

In the appeal to this court from that decision learned counsel for the plaintiff confined himself to two main points in his criticism of the judgment of the court below. These points were that: “(1) the learned judge erred in permitting the defendant-respondent to adduce evidence to contradict the recital in a deed to which he was a party;

(2) the learned trial judge failed to appreciate the case for the plaintiff appellant which was that the parties to the deed having agreed to allow property to be leased on the understanding that Alexander Gaskin had been dead over 30 years and that the rents were payable to the three persons named in the lease it was not open to the defendant-respondent a party to the deed to assert otherwise.”

Before examining counsel’s submissions on these points it is, I think, necessary to examine the legal position generally of the landlords in the light of the law of the land and of the particular circumstances of this case and to determine how far the legal position of the parties to this appeal, as [p.207] of [1963] 2 GLR 182 landlords, is affected by the matters which learned counsel has raised for the court’s consideration. Alfred George Peters a native of Sierra Leone, resident and presumably also domiciled in Ghana, devised by his will the property in question to his four children as tenants-in-common in equal shares. The legal consequence of this devise is of course that the share of any child predeceasing the testator would fall into residue, and since there is no residuary devise under the will the testator would be regarded as having died intestate in respect of the share (i.e., one-fourth share) of the child predeceasing him. The intestate devolution of George Peters’ estate (which in this case is made up of one-fourth share in the Club Road property) would be in accordance with his personal law which might be the law of intestate succession in Sierra Leone or the Accra (i.e., Ga Mashie) law of intestate succession if he was domiciled in Ghana and had adopted the way of life of the Ga Mashie community among whom he lived. Proceeding on the assumption of the latter alternative — and the circumstances would seem to permit of such an assumption, the testator married three Ga Mashie women polygamously, succession to his estate on intestacy would follow the matrilineal law of succession. If, however, as seems most likely, he had no maternal family in Ghana then his children would be the family to succeed on intestacy: see Davies v. Randall.65 In those circumstances the plaintiff as the daughter and successor of one of the children could legitimately claim an interest in the one-fourth share of the property; whether that interest would amount to the one-third share she claims is a different matter. But all that depends entirely on Gaskin having predeceased the testator. Apart from the evidence relating to the time of Gaskin’s death to which I shall advert presently, the very recital in the lease on which the plaintiff relies is a complete negation of any contention that Gaskin predeceased the testator, for that recital says that Gaskin did not leave “any issue after him surviving to succeed to his individual share in the demised premises.” That necessarily pre-supposed that Gaskin had a share in the property which could descend to his successor and which further means that he survived the testator, for otherwise he could not have had a descendible share in the property.

This result of the analysis of the legal position which I have made would seem to be a sufficient ground for dismissing the plaintiff’s claim. But counsel submitted that the plaintiff’s case did not rest on her position as ordained by the general law but rather on the much narrower ground that the defendant was estopped from asserting anything contrary to the statements contained in the recitals the effect of which being that the three lessors were the absolute owners of the demised premises entitled to the exclusion of any other person to share equally the rents accruing therefrom. I shall now proceed to examine the issues raised by counsel’s submission.

The argument is that the defendant, a party to the lease, is estopped from averring that there is a successor of Gaskin in whom is vested

[p.208] of [1963] 2 GLR 182

Gaskin’s one-fourth share of the premises, because the recital in the lease states that Gaskin left no successor to inherit that share; that the defendant is estopped from asserting that the three landlords are not the only persons entitled absolutely to the premises and the rents accruing therefrom; that the defendant and his sister Mary Addo a party to the lease who gave evidence for the defendant are estopped from asserting that Gaskin was seen in 1935 and heard of in 1936 because the recital said he (i.e., Gaskin) in 1955 had not been heard of for “over 30 years”; and that evidence contradicting the assertions made in the recitals was inadmissible.

The whole of the argument rests on a gross misconception. Gaskin it should be observed was a member of the Ga Mashie community, and intestate succession to his property is regulated by the matrilineal law of succession. As Gaskin survived the testator his one-fourth share in the premises has become family property upon his death intestate. The family entitled to the inheritance is, of course, the maternal family and the successor appointed by the family is in effect a trustee for the family in respect of Gaskin’s share. The claim made by the defendant as successor of Gaskin to the one-fourth share of the rents is made by him not in his personal right but in the right of the family who are the real owners of that share. It is admitted that the defendant did not execute the lease as Gaskin’s successor, and it was never his case that he executed the lease in a dual capacity as has been suggested. He defended the suit as the successor of Gaskin and, in that capacity, as a representative of Gaskin’s maternal family. The maternal family of Gaskin are not parties to the lease, and I have yet to be told of the existence of any law in the country which permits three out of four co-owners of property to agree among themselves to constitute themselves absolute owners of the property to the effective exclusion of the interests of the fourth co-owner, in this case the maternal family of Gaskin. Indeed I go further and say that such an agreement would be a fraud on Gaskin’s family and no court of justice worthy of its name would lend its services to its perpetuation.

As my brother Crabbe has rightly put it the claim by the three landlords to absolute ownership of the premises as expressed in the recital is based on an assumption, or, as counsel for the plaintiff put it, “on the understanding,” that Gaskin having died without a successor they are the persons entitled to the premises absolutely. That assumption is a false one, because Gaskin being a Ga-Mashie man is not succeeded by his issue but by his maternal family, and the absence of any issue of his does not therefore result in the absence of a successor. And there is not to be found in the lease any recital stating the legal basis of their claim to absolute ownership as a consequence of the allegation of Gaskin having died without a successor. Assuming that the recitals are capable of operating as estoppel against the defendant the title claimed is, in the words of Lord Tenterden C.J. in Right d. Jeffreys v. Bucknell, 66 based on a “mere. . .

[p.209] of [1963] 2 GLR 182 supposal” (that is on an assumption) for the recitals lack “that certainty of allegation which is necessary to make it an estoppel.”

I cannot help thinking that the apparent difficulty in this case has been caused by the fact that the defendant, who, as a devisee under the will, is one of the landlords who executed the lease, is also the successor of Gaskin. Whether or not he knew at the time of executing the lease that he was the successor seems to me to be beside the point, for nothing he did then would be effective to deprive Gaskin’s family of their right to the one-fourth share in the premises.

It is said that Gaskin and those who claim under him are strangers to the lease. That is so. And it is precisely for this reason that they are not bound by whatever estoppel is raised by the recitals as among the landlords inter se, and in this respect a clear line of distinction exists between the defendant as a devisee under the will which is the capacity wherein he executed the lease and the defendant as successor of Gaskin, and as such a representative of Gaskin’s maternal family, which is the capacity in which he claimed Gaskin’s one-fourth share and in which he defended the suit.

It is, I think, a fundamental principle of law that a deed of transfer operates to transfer to the transferee just so much, and no more of the estate of the transferor in the property transferred, and words used by the transferor to describe his estate in the property cannot by their sheer force operate to transfer more than he has. The truth appearing in the lease is that the three landlords are the owners of three-fourths share in the premises and there is nothing in the lease to justify their claim to ownership of the entire premises, and the fact that the demise clause therein purports to demise the entire premises will not operate as a demise of the entire premises to the prejudice of any person entitled to a share in the premises and who is not a party to the lease.

Gaskin’s maternal family are strangers to the lease, but they are certainly no strangers to the property in which their one-fourth share is as certain as anything can be, and it lies in their power either to approbate or to reprobate the lease in so far as Gaskin’s one-fourth share in the premises is concerned. Although there has not been a formal approbation by the family the receipt by the defendant, as successor, of the one-fourth share of the rents is a sufficient act of approbation by the family to entitle the tenant, should the need arise, to resist any attempt by the family to deprive him of Gaskin’s one-fourth share in the premises, and I would suggest that the defendant and his family take appropriate legal advice on the subject with a view to regularising the position.

The plaintiff cannot claim an interest in Gaskin’s share of the rents on the ground that that share has fallen into residue, because, in the first place, she is not a residuary devisee; and secondly, Gaskin’s share did not fall into residue. She cannot claim on the basis that Gaskin left no successor, first, because that basis is palpably false; and, secondly, because she has no interest in the intestate devolution of Gaskin’s estate. Her claim is based on the fact that whatever the legal position may be outside the lease (and indeed her counsel put her case in just so many words) she and the [p.210] of [1963] 2 GLR 182 defendant and Mary Addo have declared solemnly in the lease that they are the absolute owners, and that, therefore, is the end of Gaskin’s interest in the property. It is an unrealistic position, and I think I have said enough to demonstrate its abject futility.

There is one matter to which I would like to advert briefly if only because so much thought has been given to it. It is the issue concerning the evidence of the time of Gaskin’s death. As my brother Crabbe has so clearly put it in his judgment, a presumption of death does not imply a presumption of death at any particular time during the period covered by that presumption, and the party relying on death at any particular time has the onus to prove death at that time. As far as the defendant is concerned the onus upon him in order to justify his successorship is no more than to prove that Gaskin survived the testator: see In re Aldersey; Gibson v. Hall.67

For my part I do not think that he had any need to adduce evidence in discharge of that onus, for the lease itself is clear on its face that Gaskin survived the testator. But should I be wrong in that view, what principle of the law of evidence prevents him from calling evidence to establish the fact that Gaskin survived the testator? I am prepared to concede to the submission that Mary Addo is precluded from asserting in evidence that she saw Gaskin in 1935 and that she heard from him in 1936. That would seem to contradict the recital in the lease relating to the presumption of Gaskin’s death. But in what manner does the evidence of Laryea offend against the rules of evidence? Laryea’s evidence in no way contradicts the recital, for he merely stated that he last saw Gaskin in 1937 and when he enquired of him in 1938 he was told he was dead. Laryea returned home from Europe in 1960, and there is nothing on record to show that in 1955 when the lease was executed the landlords knew of the facts to which he deposed.

In any event the maternal family of Gaskin acting through the defendant as the successor of Gaskin are lawfully entitled to prove Gaskin’s survivorship of the testator by every admissible evidence without being fettered by any consideration of the legal consequences of the declarations contained in the lease to which they were not a party. The evidence of the said Nathaniel Laryea was such admissible evidence establishing that fact, and I think counsel for the plaintiff in the court below exhibited some basic wisdom when he said that he could not contradict the evidence that Gaskin survived the testator. In the views that I have so far expressed in this judgment I have sometimes done so on the assumption, tacit or express, that the recitals in the lease are capable as a matter of law of raising an estoppel as among the landlords inter se and have sought to show that even on that assumption the recitals do not measure up to the requirements necessary to raise an estoppel as enunciated by Lord Tenterden C.J. in the case of Right d. Jeffreys v. Bucknell68 to which I have made reference. But so that no [p.211] of [1963] 2 GLR 182 manner of doubt shall linger in any mind regarding the law and the untenability of the plaintiff’s claim based as it is on estoppel by recital I would like to state as a further ground for dismissing the plaintiff’s appeal, that as against each other of two or more joint grantors or lessors recitals in a deed do not in law raise any estoppel. On this point I refer to the case of Sarfo v. Bonsu,69 in which Ollennu J. (as he then was) and van Lare Ag.C.J. stated the law, correctly in my respectful view, in the judgments read by them. This was a case in which one of two joint grantors of a concession in an action against the other grantor contended that the other grantor was estopped by the recital in the concession that they were the owners of the land comprised in the concession from asserting anything to the contrary, van Lare Ag.C.J. in his judgment said,70 “The only ground of substance argued before this court is that by the recital in the lease or concession granted to Messrs A. Lang & Co. Ltd., where the plaintiff’s name appears as one of the grantors, an estoppel was created whereby the defendant, whose name also appears as one of the grantors, cannot be permitted to say that the plaintiff has no land in the area claimed by him because some portion of the disputed area comes within the concession. This is a novel proposition and appears to be confused with the proposition of law which is that parties are bound by recitals in deeds . . .”

After referring to the dictum of Baroti Parke in Carpenter v. Buller71 and to a passage in Taylor on Evidence (12th ed.), Vol. 1, page 93, the learned Acting Chief Justice continued72:

“It is obvious, therefore, that a party to plead a recital in a deed as an estoppel must be a party bound to the other; it must be remembered that every estoppel must be reciprocal; in other words, the recital must operate as a contract between the parties concerned. But such is not the case here and I cannot therefore realise how joint grantors or several lessors in a deed can be deemed to have entered into a contract between themselves by reason of the recital. In my opinion as between joint lessors in a deed no question of estoppel arises, because the instrument can create no contract between themselves, except as between them on the one side and the lessee on the other.”

Ollennu J. (as he then was) said in the course of his judgment73:

“A recital in a deed of lease that a lessor is well and sufficiently entitled to an estate free from incumbrance creates no estoppel for the purpose of vesting a legal estate in the lessor.”

For the above reasons I would dismiss the plaintiff’s appeal.

DECISION

Appeal dismissed.

K.T.