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FLORA NICOLLA GODWIN
V.
NAOMI CROWTHER
WEST AFRICAN COURT OF APPEAL HOLDEN AT FREETOWN, SIERRA LEONE
10TH DAY OF OCTOBER 1934
2PLR/1934/20 (WACA)
OTHER CITATION(S)
2PLR/1934/20 (WACA)
(1934) II WACA PP. 109-113
LEX (1934) – II WACA PP. 109-113
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BEFORE THEIR LORDSHIPS:
DEANE, C.J., GOLD COAST (GHANA)
BUTLER LLOYD, J.
MAOQUARRIE, J.
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BETWEEN
FLORA NICOLLA GODWIN — Plaintiff-Appellant
AND
NAOMI CROWTHER — Defendant-Respondent
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REPRESENTATION
S. J. S. Barlatt with E. S. B. Betts — for the Appellant
E. A. C. Daries with Boston — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Specific Performance of Contract for Sale of Land — Interest or otherwise of Deceased’s infant grand-niece in such Land — Section 6 of the Supreme Court Ordinance, 1904 (Cap. 205) of Sierra Leone — Intestates Estates Ordinance, 1924 (Cap. 104) of Sierra Leone — Latter-Statute of Distribution, 22 and 23 Car. 2, Cap. 10 as applied by Cap. 104 still in force in Sierra Leone — Section 6 of Cap. 205 of the English Administration of Estate Act of 1925 in Sierra Leone — Legal effect
ESTATE ADMINISTRATION AND PLANNING — WILL:- Interest of an infant grand-niece — Attempt to invoke same by adminstratrix of intestate estate and wife of deceased person to resile from specific performance of contract to sell a property under the estate — How treated by court
CONSTITUTIONAL LAW — LEGISLATION:- Repeal of statute — Claim that the Intestate Estates Ordinance has not been repealed by section 6 of the Supreme Court Ordinance of 1924 — Attitude of Court to invitation to declare the legislative repeal of an important statute by inference
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PRACTICE AND PROCEDURE ISSUE(S)
INTERPRETATION OF STATUTE:- Section 6 of the Supreme Court Ordinance, 1904 (Cap. 205) of Sierra Leone — Intestates Estates Ordinance, 1924 (Cap. 104) of Sierra Leone — Statute of Distribution, 22 and 23 Car. 2, Cap. 10 as applied by Cap. 104 still in force in Sierra Leone — Applicability of Section 6 of Cap. 205 of the English Administration of Estate Act of 1925 in Sierra Leone — Whether the Intestate Estates Ordinance was not repealed and must be taken to remain in force
WORDS AND PHRASES:- “For the time being” — “From time to time” — “Probate causes and proceedings” — Meaning of
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MAIN JUDGMENT
The following judgments were delivered:
MACQUARRIE, J.
This is an appeal from a judgment of the Supreme Court of Leone Sierra Leone in its ordinary jurisdiction, dated 3rd January, 1934, dismissing an action for specific performance of a contract for the sale of land on the ground put forward by the defendant vendor that she had no sufficient right to sell.
The respondent-defendant in the Court below is the administratrix of the estate of her husband who died intestate in November, 1932. In August, 1933 a contract of sale of land forming part of the estate was concluded between her as administratrix and plaintiff. Plaintiff paid the price agreed, but defendant later refused to complete on the ground that she had since making the contract discovered that an infant grandniece of the deceased was entitled to a share in the estate, and that, under section 24 of the Intestate Estates Ordinance, 1924 (Cep: 104), it was necessary to obtain the consent of the Court to the sale, as the consent of “all persons beneficially interested” could not be obtained; that this not having been done, she was unable to complete the sale. She therefore resisted a decree for specific performance and paid the purchase money into Court.
The Court below held that the infant grandniece was entitled to a share in the estate, and that as the necessary consent of the Court had not been obtained to the sale of the land, the contract “was void in that the vendor was legally incapacitated from disposing of the land without the consent of the Court.” For these reasons the action was dismissed with costs. No claim was made that respondent, the administratrix, should obtain the consent of the Court; nor did any question arise as to the incapacity being due to her own inaction.
This decision involves two findings, which we incorporated in the judgment of the Court, namely
Firstly:–That the phrase “for the time being” in section 6 of the Supreme Court Ordinance, 1924, means the time when any event might occur in respect of which the law was to be administered in this case the death of respondent’s husband, intestate, in November, 1932; and
Secondly:–That the phrase “probate causes and proceedings” in the same section includes, in the words of the trial Judge’ “matters sui generis” – by implication the English Administration of Estates Act, 1925, which amongst other matters altered the law of devolution in intestacy, admittedly giving the grand-niece in the circumstances of this case a right to share in the estate.
The grounds of appeal may be summarised as follows:
(1) The phrase “for the time being” must be interpreted in reference to its context, and to mean “at this time” i.e. the date of the Ordinance, namely, 30th May, 1904, thereby excluding the application of the Act of 1925.
(2) That the words “probate causes and proceedings” cannot include the law as to testamentary succession or as to distribution of estates on intestacy.
(3) Even if the English Administration of Estates Act, 1923, applies, the consent of the Court would not be required.
I am of opinion that the appellant succeeds on both points.
Firstly, as to the meaning of “for the time being” in section 6 of the Supreme Court Ordinance, 1924, which reads as follows:
“The jurisdiction hereby conferred upon the Court in probate, divorce and matrimonial causes and proceedings may, subject to this Ordinance and to Rules of Court, be exercised by the Court in conformity with the law and practice for the time being in force in England.”
Mr. Barlatt, for appellant, at first argued that the Supreme Court Ordinance, 1932, applied, but later agreed that it could not apply, as it only operates as from 1st January, 1933, while the death took place in November, 1932.
In his fourth ground of appeal he argued “that the phrase is restricted from application in its general sense” (i.e. ‘from time to time’) by the context.
The learned trial Judge based his opinion of the meaning of the phrase on a passage in Stroud’s Judicial Dictionary (Vol. 3 p. 2059) which reads as follows:
“The phrase “for the time being” may, according to the context, mean the time present, or denote a single period of time; but its general sense is that of time which will arise in the future, and which may (and probably will) vary from time to time,”
and apparently considered that the context did not affect its application. Here, with respect, I disagree with him. The ease referred to in Stroud do not include the case as this, and it, seems to me that these words are not apt in a statute to apply laws. which might be made in the future. I think the “time” must be taken to be the time when the Ordinance speaks, i.e, at its commencement.
Again, the phrase “from time to time” in the penultimate line of section 2 of the Ordinance is used to express the meaning of “for the time being” contended for.
Those words might have been expected to be used here, and not the latter.
Mr. Boston, for respondent, referred to the intention of the Ordinance and submitted that section 6 is in effect an exception to section 7. It appears to me that strong evidence would be required of the intention of the legislature to effect such an unusual purpose as the wholesale application of all future English law, whatever it might be, on the subject in question, as well as on those of divorce and matrimonial causes. No such evidence exists.
I am prepared to agree with Mr. Boston to this extent that section 6, so far as it can be considered an exception to section 7, may affect it to the extent of applying the law at 30th May, 1904, instead of 1st January, 1880, but no further.
This being so, by section 13 of Cap. 104 (the Intestate Estates Ordinance), the law as to distribution is the Statute of Distribution of Charles II and the grandniece has no interest.
This is sufficient to dispose of the case, it being admitted that if the grandniece has no interest, the consent of the Court is unnecessary, and the respondent, the administratrix, would have no defence to the action.
Also, as to the meaning of “probate causes and proceedings”, Mr. Barlatt contended that the phrase cannot mean more than causes and proceedings connected with the grant or recall of probate or letters of administration. He pointed to the definition of “probate actions” in section 2, and argued that section 13 of the Intestate Estates Ordinance (Cap. 104), which provides that land should on intestacy be “divisible and distributable in the same manner as personal estate is now divisible and distributable, and amongst the same persons”, was not affected. The effect of that section is to make land divisible and distributable according to the Statute of Distributions of Charles II.
Mr. Boston argued that the phrase in question does include the law as to testamentary succession, devolution or intestacy and administration of assets; but that one effect of section 6 is, by the application of the Administration of Estates Act, 1925, to repeal section 13 of the Intestate Estates Ordinance, and that section only. I am unable to agree with him; it seems to me it would follow that the whole Ordinance would stand repealed, with the result that section 24 requiring the consent of the Court to a sale of land would no longer be in force, and the defence to the action would disappear.
I am however of opinion that the phrase in question has the meaning contended for by appellant.
It would, I think, be contrary to general rules of interpretation of statutes to hold that by such words, the law of devolution and distribution on intestacy is radically altered, and such an important Ordinance, the Intestate Estates Ordinance, which was passed in 1887 and has since been amended from time to time, is repealed. In the words of its long title it is –
“an Ordinance to alter the succession to real estate, and to amend the law relating to the distribution and administration of the estate of intestates, and to provide for the due administration of estates whereof there is no administrator, and for other purposes.”
In my opinion the subject of such Ordinance is not included in the phrase “probate matters and proceedings.” This also disposes of the third ground of appeal to which I have referred, namely, that consent of the Court is not required if the Administration of Estates Act, 1925, is held to apply.
It follows that the consent of the Court to the sale is not required; and that the respondent has no defence to the action for specific performance.
The parties agree on £24 in respect of mesne profits.
In my opinion, therefore, the appeal should be allowed and there should be judgment that the appellant is entitled to specific performance; to the payment of £24 as mesne profits, and his costs in this Court and the Court below.
BUTLER-LLOYD, J.
The facts of this case are not in dispute and are sufficiently set out in the judgment which has just been read and with which I fully concur. It seems to me however that the matter may be stated even more simply.
The appeal turns on the construction to be given to section 6 of the Supreme Court Ordinance, Cap. 205, which has already been read.
This Ordinance was passed in 1904 and it is argued for the respondent that by virtue of this section the English Administration of Estates Act of 1925 was in force in Sierra Leone at the material time, namely, 1932. It is admitted that if this is not the case the respondent must fail since by the Statute of Distribution 22 and 23 Car. 2 Cap. 10, which was applied to this Colony by section 13 of the Intestate Estates Ordinance, Cap. 104, the interest of the grandniece of deceased on which the defence is founded would not arise.
Now whatever may have been the exact intention of the legislature in framing paragraph 6, nothing is clearer than that that section is subject to and overridden by section 8, which makes all statutes applied by the Ordinance subject to existing Ordinances of the Colony not thereby repealed. The Intestate Estates Ordinance was not repealed and must be taken to remain in full force and effect.
This disposes of the respondent’s case, but I desire to point out that even were the Interstate Estates Ordinance repealed by section 6 the respondent would be no better off since she rests her case on paragraph 24 of that Ordinance, and I am certainly not prepared to accede to the proposition that paragraph 24 remains in force while paragraph 13 does not.
In my opinion the appeal should be allowed.
DEANE, C.J., GOLD COAST.
I have had the advantage of reading the judgment of my learned brothers, and agree with the conclusions at which both have arrived, viz., that the Intestate Estates Ordinance has not been repealed by section 6 of the Supreme Court Ordinance of 1924. I would only add that it is to me almost inconceivable that the legislature, had they meant to repeal that Ordinance, would not have said so, instead of leaving to inference such an important result.
The appeal will be upheld, and there will be an order for specific performance and judgment for £24 damages by way of mesne profits. The defendant must also pay the costs of this appeal and of the proceedings in the Court below.
Court below to carry out.
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