Extrinsic evidence to vary the intention expressed in a deed
The second basic rule is that the intention must be gathered from the written instrument itself. As Coleridge J. stated in Shore v. Wilson (1842) 9 C1. & Fin. 355 at p. 526, H.L.: “This rule thus explained implies that it is not allowable in the case supposed to adduce any evidence, however strong, to prove an unexpressed intention varying from that which the words used import. This may be open no doubt to the remark, that, although we profess to be exploring the intention of the writer, we may be led in many cases to decide contrary to what can scarcely be doubted to have been the intention, rejecting evidence which may be most satisfactory in the particular instance to prove it. The answer is, that interpreters have to deal with the written expression of the writer’s intention, and Courts of Law to carry into effect what he has written, not what it may be surmised, on however probable grounds, that he intended only to have written.”
Imperfect English-form document between indigenous parties
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.
Law governing the construction of a conveyance in English form
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.
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.
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 object of all interpretation of a written instrument is to discover the intention of the author, the written declaration of whose mind it is always considered to be. Consequently, the construction must be as near to the minds and apparent intention of the parties as is possible, and as the law will permit.”
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.
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.
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.
