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EMMANUEL QUARMINA NELSON AND ANOTHER
V.
SAMUEL QUARSHIE NELSON AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
2ND DAY OF JULY, 1951
2PLR/1951/46 (WACA)
OTHER CITATION(S)
2PLR/1951/46 (WACA)
(1951) XIII WACA PP. 248-252
LEX (1951) – XIII WACA 248-252
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BEFORE THEIR LORDSHIPS:
VERITY, AG. P.
LEWEY, J.A.
MORGAN, J.
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BEFORE THEIR LORDSHIPS:
1. EMMANUEL QUARMINA NELSON OF ACCRA
2. J. C. NELSON OF SEKONDI – Plaintiffs-Appellants
AND
1. SAMUEL QUARSHIE NELSON OF ACCRA,
2. THE UNITED AFRICA COMPANY LIMITED OF ACCRA – Defendants- Respondents
3. GOLD COAST PROPERTIES COMPANY LIMITED – Co-defendants-Respondents
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ORIGINATING COURT(S)
Appeal from the Supreme Court, CIVIL APP.80/49.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for declaration of title and for recovery of possession of lands – Whether transaction governed by English law or Native law and custom – Suit not exclusively between Natives – Effect of acquiescence on part of the plaintiff to a purchase by first defendant by deed of conveyance in English form – Subsequent sale by first defendant to third defendant invalid.
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CASE SUMMARY
The plaintiffs were the appellants. By a death-bed disposition, recognised by native law and custom, the plaintiff’s father left certain self-acquired property to the first defendant, his eldest son, to take charge thereof on behalf of himself and all the children of the deceased. A portion of the land was acquired by Government and with part of the compensation money the first defendant purchased the land in dispute, taking title in his own name by a deed of conveyance in English form. He then sold the land to the third defendant who leased it to the second defendant. The plaintiffs, children of the deceased, claimed a declaration of title to the land and recovery of possession against the second and third defendant.
In order to determine the rights of the appellants it was essential to find by what system of law the relationship of the parties was governed; English law or Native law and custom.
The argument before the Supreme Court and in this Court proceeded on the basis that the appellants had allowed and acquiesced in the first defendant purchasing the land by a deed in English form, and that as the parties were not exclusively native, English law should apply.
The Supreme Court held that the transaction was governed by English law on the grounds that firstly, the suit was not exclusively between natives, and, secondly, that the appellants, having allowed the first respondent to purchase the property in his own name by a deed in English form, must be understood to have agreed that their rights should be exclusively regulated by English law. The appeal turned on the construction of section 74 of the Courts Ordinance (Cap. 4) which sets out the circumstances in which English law or Native law and custom are to be applied:-
(a) where all the parties are native;
(b) where the parties are native and non-native.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. The original disposition by the appellant’s father clearly manifested an intention that his children should have a joint but exclusive interest in the land, and that to apply English law to the transactions subsequent to the death of the father would defeat the objects of the testator and that, although the second and third defendants were non-natives, native customary law should apply in order to obviate a substantial miscarriage of justice.
2. Accepting that the appellants allowed and acquiesced in the first defendant acquiring title by means of a conveyance in English form, they were not parties to that transaction and the surrounding circumstances should be taken into consideration.
3. Whatever the form of conveyance to the first defendant, there could be no doubt that it was the intention and purpose of the children that the property purchased to replace that acquired by the Government was to be held on the same terms as the properties originally disposed of by the testator, the appellants’ father.
4. These circumstances did not establish that the appellants agreed that their rights should be regulated according to English law, and accordingly, native customary law applied to all the transactions. The sale to the third defendant was invalid.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, AG. P.
This is an appeal from a judgment of Smith, Ag. C.J., in an action in which the present appellants claimed a declaration of title to certain lands, a further declaration that a sale by the first respondent to the third respondents is invalid together with a claim as against the second and third respondents for recovery of possession of the lands and for mesne profits.
It appears that the appellants father, by a death-bed disposition, recognised by Native law and custom, left certain self-acquired property to the first respondent, his eldest son, to take charge thereof for himself and all the children of the deceased who constituted his family and who included the appellants. After his death a portion of the land was acquired by the Government and with a part of the money paid in compensation the first respondent purchased the land now in dispute. Although he took title thereto in his own name by means of a deed of conveyance in English form it appears to be beyond doubt that it was intended that he should hold the same for himself and the other children of the deceased in like manner as he had held the land acquired by Government. The first respondent has purported to sell this land to the third respondents who in turn leased the same to the second respondents. It is alleged, and the learned Judge found as a fact, that this sale was entered into without the knowledge or consent of the appellants.
The issue to be determined was, therefore, what were the rights of the appellants and to what remedy were they entitled. In order to determine this issue it was essential to find by what system of law are the relations of the parties governed: English law or Native law and custom?
The learned Judge accepted the view of his assessor that under Native law the position would be that in the circumstances as I have set them out the whole transaction of sale by the first respondent was invalid and should be set aside, but he went on to express the view that there were two factors which prevented the application of Native law and custom to this case: firstly, that the suit is not exclusively between natives and secondly, that the appellants, having allowed the first respondent to purchase the property in his own name by a deed in English form, must be understood to have agreed that their rights should be regulated exclusively by English law.
In regard to these two factors it is to be observed that section 74 of the Courts Ordinance (Cap. 4) (inter alia) provides that-
“Nothing in this Ordinance … shall deprive any person of the benefit, of any native law or custom existing in the Gold Coast, such law or custom not being repugnant to natural justice, equity and good conscience …. “
And further, that “such native customary law shall be deemed applicable” not only in causes and matters where the parties are natives, but “also in causes and matters between natives and non-natives where it shall appear to the Court that substantial injustice would be done to any party by a strict adherence to the rules of any law or laws other than native customary law”. By a proviso it is enacted (inter alia) that “no party shall be entitled to claim the benefit of any native customary law if it shall appear either from express contract or from the nature of the transaction out of which any cause, matter or question shall have arisen that such party agreed or must be taken to have agreed that his obligations in connection with such transactions should be regulated exclusively by some law or laws other than native customary law.”
I would for convenience deal first with the latter of the two factors referred to by the learned Judge, which falls within the terms of the proviso. If the parties who seek the benefit of native customary law in the present case, that is to say the appellants, agreed or must from the nature of the transaction be taken to have agreed that their obligations are to be regulated by English law, then the question as to what law is applicable bas been determined by their conduct. In the first place, it is to be observed that the appellants strictly speaking were not parties to the transaction whereby the first respondent acquired the property by a deed of conveyance. In the second place, it is conceded by Counsel for the respondents that the mere fact that a form of English deed is used does not in itself attach to the property incidents of English land tenure to the exclusion of native customary tenure. Even if the appellants allowed and acquiesced in the first respondent acquiring title by such means this would not, I think, necessarily imply that they had agreed that English law was to regulate the tenure under which the land was to be held even if, as may be, it might have regulated the transaction of purchase as between the first respondent and his vendor had any dispute arisen between them. The reason for the purchase of the property by the first respondent, the purpose therefore of the appellants in allowing it (if indeed that they did so), the source of the purchase money and the nature of the land from which it was derived, must all, in my view, be taken into consideration.
It is beyond doubt that the purchase money was derived from compensation paid for land held by the first respondent for himself and the children of his deceased father by virtue of a death-bed disposition. It is equally clear, I think, that it was the intention and purpose of the children that the property so purchased was to replace that acquired by the Government and that it should therefore be held on the same terms and in the same way as that which it replaced. It was in pursuance of this intent that the first respondent purchased and, whatever may have been the form of the conveyance by which he obtained title, there can be no doubt that he was to hold thereunder in the same way as he had previously held the lands from which the purchase money was derived, and to that end was the purchase allowed or acquiesced in by the appellants. Whatever may have been the precise nature of the tenure of the land as left to his children by their deceased father there can, I think, be no doubt that it was a form of native customary tenure. In these circumstances I am unable to agree with the learned trial Judge that the acquiescence of the appellants in the purchase, even if they knew that it was effected according to the English form of conveyance, is a circumstance from which it is to be assumed that they had agreed that their rights in the property should be regulated by English law. In point of fact, I think that the whole of the circumstances and their own part in the transaction point to the reverse.
Referring now to the first of the factors which in the view of the learned Judge prevented the application of Native law, it is to be observed that the application of such law is not limited exclusively to causes in which the parties are natives. It is also applicable in causes between natives and non-natives when it appears to the Court that substantial injustice would be done by strict adherence to the rules of any law other than native customary law.
Then the learned Judge appears to recognise in the passage in his judgment when he says:-
“… on the facts of this case English law does protect their rights, and no injustice is done to them by strictly adhering to it.”
It is desirable to consider, therefore, in the next place, what were the rights of the appellants. As I have already said in my view their rights in the land purchased were the same rights as they secured under their father’s disposition in the property the present premises were purchased to replace. I have also indicated my view that their interest under that disposition which was made under native customary law can only have been an interest recognised by such law. A great deal of argument was addressed to us on the question of family property and the descent of self-acquired land on intestacy, but much of this was beside the point, because in the present case there was no intestacy. The property descended, not upon an intestacy but by virtue of a disposition having effect in customary law to confer upon the deceased’s children an interest in the land which those who would have inherited upon intestacy are bound by Native law to recognise. (Sarbah, Fanti Customary Law, page 98). No other authority was cited to us directly in point, nor have I been able to refer to any, but it appears to follow that by confining the interest in the property upon his death to the children of his wives the deceased effectively disposed of any claims which the wider family might have had upon an intestacy and conferred upon those children a joint but exclusive interest in the land, an interest moreover, which, as the form of disposition is recognised by customary law, must be an interest recognised by such law.
The assessor in the Court below had no doubt what such an interest is: an interest as members of the family in family land. The learned Judge had no doubt that the assessor was right, and I have none. It is true that the word “family” has a restricted meaning, but it is clear that the assessor was of the opinion that while family land in this sense may differ in its inception and in its extent it differs in no way in its incidence from that held by the family in its wider sense. The rights of members of the family therein are extensive and they certainly include two things: a right of user and occupation and a right to decide whether or not the land or any of it shall be alienated. By the application of English law the judgment of the Court below appears to me to have deprived them at least of these two rights and to have conferred upon them in exchange a right to possession with the second and third respondents of one undivided third interest in the property, whether jointly ‘or in common, I do not propose to discuss, for in either event the rights of the appellants to enjoy an undivided third interest with respondent corporations are so far divorced from those which they were entitled to enjoy in property held by the family as family land as to be irreconcilable. It appears to me that to place the appellants in that position on the ground that the suit, brought about by the wrongful attempt of one member of the family to alienate the property without their consent, is a suit in which all the parties are not natives would be to do substantial injustice to the appellants. The real issue as to the appellants’ rights is between the appellants and the first respondent, both natives and the second and third respondents have only been brought into it because, in spite of notice of the interest involved, they nevertheless chose to enter into engagements which to their knowledge would raise these questions of native customary law.
In my opinion, therefore, the law which should be applied in determining the major issue is native customary law, and I am in no doubt that in accordance therewith the purported sale by the first respondent without the consent of the appellants who are admittedly principal members of the family in which the land is vested or on behalf of whom it is held, was contrary to native customary law, is therefore invalid and must therefore be set aside.
I would therefore allow the appeal and set aside the judgment of the Court below.
As to the form of the judgment which should be substituted therefor, while the plaintiffs in their writ sought a declaration of title and consequential relief by their statement of claim, they sought the substantive relief only. To such relief I think they are clearly entitled, though not perhaps in the precise form of their claim. The sale and deed of conveyance should be set aside and it is clear that neither the second nor the third defendants are entitled to retain possession. I would, then, make an order for delivery of possession forthwith, but I think possession should be delivered not to the plaintiffs who are entitled to no more than their interest therein as members of the family, but to the first defendant, who, under the terms of their father’s disposition is entitled thereto on behalf of himself and the other children. As to mesne profits, neither the purchasers nor their lessees are entitled to retain the profits derived from the property during the period for which they have had possession under the sale which I have held to be void. To these the family of the late George Nelson are entitled.
The plaintiffs are not themselves entitled to the whole of such profits, and in accordance with customary law this Court will not, as a general rule, apportion shares as between members of the family in whom the property is vested. The apportionment thereof is a matter for the head of the family. In the present case, however, the first defendant acting as head of the family in relation to this property as declared by the father on his death-bed, has already apportioned the share of the plaintiffs therein by the fourth paragraph of his statement of defence filed in this suit on 25th November, 1947, and the payment into Court of the sum of £1,600 being one-third share of the net proceeds of the sale. The plaintiffs are, in my view, clearly entitled in accordance with this apportionment to one-third of the mesne profits. These, I would assess at £120 per annum, the rental reserved by the lease and the share of the plaintiffs at £40 per annum. I would, therefore, assess the mesne profits recoverable by the plaintiffs from the second and third defendants jointly and severally at £160 to the date of judgment, and further at the same rate up to the date of delivery of possession. As to costs, I think the plaintiffs are entitled to recover from all the defendants jointly and severally their costs both here and in the Court below.
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LEWEY, J. A.
I concur.
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MORGAN, J.
I concur.
Appeal allowed and Judgment of the Supreme Court set aside and new Judgment substituted therefor.
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