–
WILLIAM STEPHEN KWESI-JOHNSTON OF CAPE COAST
V.
ARABA EFFIE OF CAPE COAST
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF FEBRUARY, 1953
APPEAL NO. 11/51.
2PLR/1953/34 (WACA)
OTHER CITATION(S)
2PLR/1953/34 (WACA)
(1953) XIV WACA PP. 254 – 256
LEX (1953) – XIV WACA 254 – 256
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
–
BETWEEN:
WILLIAM STEPHEN KWESI-JOHNSTON OF CAPE COAST – Appellant
AND
ARABA EFFIE OF CAPE COAST – Respondent
–
ORIGINATING COURT(S)
Appeal by the defendant:
–
REPRESENTATION
C. F. Hayfron-Benjamin — for Appellant
J. Bannerman-Hyde — for Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
COMMERCIAL LAW – CONTRACT:- Contract between natives regulated exclusively by English law – Native law and custom – When not applicable – The Courts Ordinance, section 74
–
CASE SUMMARY
The above section provides that native law and custom shall be deemed applicable in causes and matters where the parties thereto are natives, but it also provides that:-
“No party shall be entitled to claim the benefit of any local law or custom, if it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions should be regulated exclusively by English law.”
In the Court below the plaintiff (now respondent) claimed possession of a house against the defendant (now appellant). The vendor first gave a receipt for the purchase price of the house to the defendant and later also gave him a receipt for £3 as “Tirama” or earnest money in respect of the purchase, which the defendant did not wish to pay but was persuaded to; the receipt for the purchase price wound up with the words “and in pursuance of the terms of the conveyance to be prepared in this behalf”. The vendor, sometime later, gave a conveyance of the same premises to the plaintiff, on which she based her claim. The defendant’s receipt being earlier in date, he would have won if he could have established a valid sale to himself under native law and custom, the parties being natives. The trial Judge observed that “Tirama” or earnest money was also mentioned in the conveyance to the plaintiff, and having regard to the vendor and the defendant being advanced Africans held, in view of the concluding words in the receipt given by the vendor to the defendant, that they intended the transaction between them to be regulated exclusively by English law, and gave judgment for the plaintiff. The defendant appealed.
–
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal dismissed) that:
1. A conveyance forms no part of a sale by native law and custom.
2. Mention of conveyance in the receipt given by the vendor to the appellant-defendant coupled with the other circumstances indicated clearly that they intended their transaction to be governed exclusively by English law.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal from a decision of Windsor Aubrey, J., by which he gave judgment for the respondent who had sued the appellant for possession of premises known as “Sea View House”, No. 10 Victoria Road, Cape Coast.
The respondent based her claim upon a Deed of Conveyance, dated 10th April, 1943, executed by one Albert Horace de Graft Johnson as head of his family for himself and on behalf of the members of his family as vendor ‘of the one part and the respondent as purchaser of the other part.
The appellant based his title to the premises on what he alleged was a valid sale of them to him under native custom by Albert Horace de Graft Johnson, his mother Adjua Nibioba and the other members of the family, on the 12th January, 1943.
If the appellant succeeded in establishing the sale to him it clearly took precedence over the respondent’s conveyance because it was prior in point of time and the vendor would not have had any legal estate in the property to convey on the 10th April, 1943.
The issue was a clear cut one, and the result depended upon whether or not the appellant could establish a valid sale to him under native law and custom, the due execution of the respondent’s Deed of Conveyance not being in dispute. The appellant tendered in evidence a number of documents, but there are only two of them that have any real relevance to the issue we have to determine on this appeal. The first is exhibit “A”, which reads:-
“Received of W. S. Kwesi Johnston of Cape Coast cash the sum of £120 (One hundred and twenty pounds) being balance of an amount of £600 payable in full settlement as purchase price of Sea View House, 10 Victoria Road, Cape Coast, with all its outhouses and belongings complete and entire, as specified in, and in pursuance of the terms of the conveyance to be prepared in this behalf “,
and the second, exhibit “B”, is a receipt bearing date the 12th January, 1943, given to the appellant by the signatories of exhibit “A”, in which they acknowledge receipt of the sum of £3 “being ‘Tirama’ or earnest money in respect of the purchase by him” of the premises in dispute in this case.
Counsel for the appellant submitted that the parties to exhibit “A” being natives, the provisions of section 74(1) of the Courts Ordinance apply, and the fact that “Tirama “was paid is conclusive evidence of the fact that they intended the transaction as a sale under native law and custom.
While it is the case that section 74(1) of the Courts Ordinance provides that native law and custom shall be deemed applicable in causes and matters where the parties thereto are natives, and particularly in causes and matters relating to the tenure and transfer of real and personal property, it also provides that “No party shall be entitled to claim the benefit of any local law or custom, if “it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party” agreed that his obligations in connection with such transactions should be regulated exclusively by English law”.
During the course of his judgment the learned trial Judge remarked, ” … I bear in mind that A. H. de Graft Johnson and the defendant are both astute, intelligent and sophisticated Africans, particularly the latter who describes himself as a journalist. They are not the type of men to sign documents without realising their purport “. I mention this because it seems to me to be a matter that ought to be borne in mind when considering whether or not the parties to exhibit “A” intended the transaction to be regulated exclusively by English law, which respondent’s counsel submitted was the case.
Exhibit “A” was prepared by the appellant, and it seems clear from the evidence that it was signed on the morning of 12th January, 1943. It is also clear from the appellant’s own evidence that exhibit “B”, the receipt for £3 “Tirama” was not in existence when exhibit “A” was signed, because he said “… it was typed out at my house that evening”, and he admitted that the payment of “Tirama” was not completed until the 14th January when he “got the receipt exhibit ‘B’”. Moreover, the appellant’s witness, Augustus James Fry, testified that the appellant did not want to pay “Tirama” but that he persuaded him to do so. In these circumstances I am of the opinion that the payment of the “Tirama” loses its significance, and whatever may be said of A. H. de Graft Johnston’s conduct in the matter, he apparently did not consider that the transaction was a binding sale of the premises.
These factors, considered in conjunction with exhibit “A”, particularly the concluding words of that document which read: ” …. and in pursuance of the terms of the conveyance to be prepared in this behalf”, in my view, clearly indicate that the parties intended that the transaction should be regulated exclusively by English law. A conveyance forms no part of a sale by native law and custom, and as the learned trial Judge said, “Old customs die hard, and deeds drawn by lawyers according to English law frequently specify ‘Tirama’”. An example of this practice is to be found in the respondent’s Deed of Conveyance, exhibit “1”.
For the reasons I have given I am of the opinion that the judgment appealed from ought to be affirmed. I would, therefore, dismiss this appeal with costs fixed at £27.
–
COUSSEY, J. A.
I concur.
–
KORSAH, J.
I concur.
–
Appeal dismissed.
–