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GABRIEL MICHEL AND ANOTHER
V.
FREDERICK AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
4TH DAY OF DECEMBER, 1944
2PLR/1944/8 (WACA)
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OTHER CITATION(S)
2PLR/1944/8 (WACA)
(1944) X WACA PP. 286 – 288
LEX (1944) – WACA PP. 286 – 288
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BEFORE THEIR LORDSHIPS
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., SIERRA LEONE
DOORLY, J.
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BETWEEN:
GABRIEL MICHEL AND JOSEPH MICHEL BIKHAZI, TRADING UNDER THE NAME OR STYLE OF BIKHAZI BROTHERS OF SEKONDI — Plaintiffs-Appellants
AND
FREDERICK AND MAGID KHOURY, TRADING UNDER THE NAME OR STYLE OF F. & M. KHOURY OF SEKONDI — Defendants-Respondents
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REPRESENTATION
C. C. Carter — for Appellants
K. A. Bossman — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for partition of property — Difficulty of partition — Whether is no reason for refusing partition — Proper treatment of by court
REAL ESTATE AND PROPERTY LAW – LAND:- Lease — Assignment of — Partition or sale — How determined
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER — PER INCURIAM:- Judgment of lower court based on precedent which had been overruled — Decision of Hatherley, L.C., in the case of Pemberton 11. Barnes (Law Rep. 6 Ch. Ap., 685) overruled by the judgment of the House of Lords (Hatherley, L.C., dissenting) in the case of Pitt 11. Jones (5 A.C., 651) – Duty of appellate thereto
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CASE SUMMARY
By a Lease, Executrices-Trustees demised certain premises to Elias J. Moubarak and the Defendants-Respondents F. & M. Khoury. By deed of assignment Elias J. Moubarak assigned his one-half undivided interest and share in the lease-hold premises to the Plaintiffs-Appellants, who then gave notice to the tenants and the Defendants-Respondents of intention to occupy; but the Defendants-Respondents objected to occupation and use, or to partition. Judgment was given for sale of Plaintiffs-Appellants share in the property; the Defendants-Respondents to have first option of purchase.
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DECISION(S) APPEALED AGAINST
At the conclusion of the case the trial Judge made the following order:-
“I order a sale not of the whole property but of the Plaintiffs’ share in the property. I also order that the Defendants should be given the first option of purchasing the same after it has been valued by three independent persons having regard to the price paid by the Plaintiffs to Moubarak.”
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal):
1. The order of the trial court cannot stand because it is based upon the decision of Hatherley, L.C., in the case of Pemberton 11. Barnes (Law Rep. 6 Ch. Ap., 685) and it was never brought to the notice of the Judge that that decision was overruled by the judgment of the House of Lords (Hatherley, L.C., dissenting) in the case of Pitt 11. Jones (5 A.C., 651).
2. The result is that the Plaintiff is left with his right to insist on partition. The case of Mayfair Property Company v. Johnston (1894) 1 Ch., 508 is authority for the proposition that difficulty of partition is no reason for refusing partition.
3. None of the sections 2, 3 and 4 of the Partition Act, 1868 (31 & 32 Viet. C. 40) have any applicability to this case, because the operation of all of them depends upon a request, from a party or parties having the right to make it, that the Court will order sale instead of partition. Here there has been no such request by the Defendants-Respondents and the Plaintiffs claim in the alternative for a sale cannot be construed as a request to the Court to order a sale instead of partition.
Appeal allowed.
Cases referred to:-
Pembuton v. Barnes (L.R. 6 Ch. Ap. 685) overruled by Pitt v. Jones (5 A .C. 651)
Mayfair Property Coy, v. Johnston (1894) 1 Ch. 508
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
By their writ in the Divisional Court of Sekondi the Plaintiffs’ claim was as follows:-
“By a Lease dated the 10th January, 1940, for the consideration therein mentioned, Fanny Wood and Sarah Yawson, the Executrices— Trustees of J. D. Wood (dec.) demised to Elias J. Moubarak and F. & M. Khoury portion of the Testator’s land situate at Lagoon Road, Sekondi, for the term of thirty (30) years.
By a Deed of Assignment dated the 6th September 1943 the said Elias J. Moubarak for the consideration therein mentioned assigned his one-half (½) undivided interest and share in the said leasehold premises together with the buildings thereon to the Plaintiffs herein.
After the said Assignment the Plaintiffs gave notice to quit to O. K, Stores, the tenants occupying the stores in the said buildings and also to the Defendants of the Plaintiffs intention to occupy and to use the said stores for their own business; but the Defendants have objected to the Plaintiffs’ occupation and use of the said stores, or to a mutual partition of the said buildings and premises.”
The Plaintiffs claim:-
(a) A division or partition of the said property among the parties interested.”
Or, in the alternative, a sale of the said buildings and premises including the lease-hold interest, and distribution of the proceeds among the parties interested.
The Plaintiffs also claim such further and other relief in the premises as to the Court may seem just.”
There were pleadings and the evidence of both sides was heard. At the conclusion of the case the learned trial Judge in giving judgment made the following order:-
“I order a sale not of the whole property but of the Plaintiffs’ share in the property. I also order that the Defendants should be given the first option of purchasing the same after it has been valued by three independent persons having regard to the price paid by the Plaintiffs to Moubarak.”
He awarded the Defendants the costs of the action. Against that order the Plaintiffs appeal to this Court.
It is clear that the order cannot stand because it is based upon the decision of Hatherley, L.C., in the case of Pemberton 11. Barnes (Law Rep. 6 Ch. Ap., 685) and it was never brought to the notice of the Judge that that decision was overruled by the judgment of the House of Lords (Hatherley, L.C., dissenting) in the case of Pitt 11. Jones (5 A.C., 651).
The result is that the Plaintiff is left with his right to insist on partition.
In our view none of the sections 2, 3 and 4 of the Partition Act, 1868 (31 & 32 Viet. C. 40) have any applicability to this case, because the operation of all of them depends upon a request, from a party or parties having the right to make it, that the Court will order sale instead of partition. Here there has been no such request; certainly the Defendants-Respondents have not made one; their attitude throughout has been one of strenuous resistance to either partition or sale; nor do we think that the fact that the Plaintiffs claim in the alternative a sale can be construed as a request to the Court to order a sale instead of partition.
The learned trial Judge stated:-
“It is clear to the Court that a partition of the premises among the present parties having regard to the evidence would undoubtedly produce much difficulty.”
But the case of Mayfair Property Company v. Johnston (1894) 1 Ch., 508 is authority for the proposition that difficulty of partition is no reason for refusing partition.
So far as we are able to tell without being able to inspect the property there should be no great difficulty in partitioning the property by making the dividing line the imaginary line dividing into two equal halves the lower part of the staircase and continuing such imaginary line vertically and longitudinally throughout the property. But since there may be difficulties which are not apparent to us, we make no definite order that that is to be the line of partition.
The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; the case is remitted to the Court below to make an appropriate order partitioning the property as prayed by the Plaintiffs and to make and give all consequential orders and directions.
The Plaintiffs-Appellants are awarded costs in this Court assessed at £47 10s. 11d., and in the Court below to be taxed, Counsel’s costs being determined by the Judge.
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