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ROURA & FORGAS LTD. v. BRITISH BATA SHOE CO. LTD.


  • New
  • 1961-06-19
  • HIGH COURT
  • 1 GLR 339-346
  • Print

OLLENNU J.


Summary

Conveyancing?-Words of limitation?-Whether the word ?"heir?" is essential to convey freehold interest of inheritance in Ghana.

Headnotes

The defendants agreed to purchase certain landed property from the plaintiffs. They later refused to complete the purchase, because, they alleged, the plaintiffs did not possess the freehold estate, but merely a life interest, in the said property, and were therefore incapable of transferring to them what they had contracted to sell. This allegation was based on the fact that in three documents, conveyances, establishing the plaintiffs?' root of title, the word ?"heirs?" was not used. The plaintiffs sued them for specific performance.

Judgement

ACTION by plaintiffs for specific performance of an agreement to buy landed property situate in Accra.

By an agreement reached between the plaintiffs and the defendants, confirmed by letter of offer by the plaintiffs dated the 11th February, 1960, and accepted by the defendants by letter dated the 15th February, 1960, the plaintiffs agreed to sell and the defendants agreed to buy the property the subject-matter of this suit. The material paragraph in the defendants?' letter of acceptance is as follows:

?"For the sake of order we hereby confirm that we have agreed to pay you the sum of G27,750 for the freehold property on completion of transfer of title by the agreed solicitors.?"

The defendants now refuse to complete the said agreement on the grounds that the plaintiffs?' root of title, namely, conveyances dated the 26th February, 1943, the 31st March, 1944, and the 31st March, 1944 conveyed only a life interest in the hereditaments and premises, the subject-matter of the sale, and therefore the plaintiffs as purchaser from the grantees under the deeds, are incapable of granting the freehold title which they have contracted to convey.

The contention of the defendants that the documents in question conveyed only a life interest is based upon the fact that the words ?"and their heirs?" are not used in the said deeds in describing the purchasers.

It was submitted on behalf of the defendants that at common law a freehold estate can only be created in a conveyance inter vivos by a phrase which includes the word ?"heirs?", and that where that word is omitted only a life estate could pass. Therefore, it was submitted, the omission from those documents, after the word ?"purchasers?" of the phrase which expression shall include his heirs executors, administrators and assigns where the context so admits made the estate conveyed a life interest, and not a freehold estate. Counsel referred to Megarry on Real Property, (1947 ed.) p. 33 where the learned author said:

?"The rule at common law was that a freehold estate of inheritance could be created in conveyance inter vivos only by a phrase which included the word heirs. A life estate could be created without using this word, but a fee simple or fee tail could not. It is important to note that no other word would do: ?'relatives?' ?'issue?' ?'descendants?' ?'assigns?' ?'for ever?' ?'in fee simple?' ?'in tail?' and so on were all ineffective. Heirs was the sacred word of limitation and had a magic which no other word possessed?".

Counsel next referred the court to Stroud?'s Judicial Dictionary, (3rd. ed.) Vol. 2, pp. 1295-1301 where the words ?"heir?" and ?"heirs?" are defined and explained. There the rule popularly known as the rule in Shelley?'s case is used to illustrate the law that the word ?"heirs?" is a word of limitation, not a word of purchase, merely limiting or defining the estate that is taken by the purchaser, but gives no indefeasible interest to his heirs. Counsel also drew attention to the schedule to the Conveyancing Act, 1845.1 To sum his submissions counsel cited Redwar?'s Comments on [p.341] Some Ordinances of the Gold Coast, pp. 22-23 where the learned author said that ?"strict ?'words of limitation?' such as ?'heirs,?' are still necessary at the Gold Coast?" and usage . . . has sanctioned the employment of English conveyancing forms in the Colony?".

Counsel for the plaintiffs submitted that the necessity for the words ?"and his heirs for ever?", as words of limitation for passing the whole interest of a grantor, arose from historical development of tenure of land in a feudal country. Similarly, the phrase ?"fee simple?", the estate in land which is granted by the use of the word ?"heirs?", he contended, should be construed in these conveyances upon the same canons of construction as all other documents are, to ascertain the intention of the parties, and if it should be shown that the parties intended the freehold to pass, the court should give effect to their intentions, even though the magic word ?"heirs?" is not used.

It was further submitted for the plaintiffs that in equity the whole estate owned by the grantor could pass to a bona fide purchaser for value, if the word employed shows an intention of the parties that it should pass, and even though special words of conveyancing were not used; the case of In re Irwin, Irwin v. Parkes was cited in support of that proposition. In that case Buckley, J. said:

?"An equitable estate in fee simple will pass without words of limitation if the assurance is so made referentially as to show that the equitable estate in fee simple is to pass for an absolute interest and estate, as when it is said that it is to be held upon the same trust as leaseholds which have been assigned to A.B., his executors, administrators, and assigns, or as near as the rules of law and equity will permit. An equitable estate in fee simple will also pass without words of limitation if you find words that express that the grantee is to have all the estate and interest which the grantor had. It may further pass without words of limitation if the grantee has independently of the deed itself an equitable right to the fee simple as, e.g. where he has paid the purchase-money for the property.?"2

It is true that at common law the word ?"heirs?" has become a magic word which must be used in England to show that the quantum of estate conveyed to a grantee is the fee simple, freehold; but in considering its effect in conveyancing law and practice in Ghana, its historical significance cannot be overlooked, nor can the historical significance of the words ?"fee simple?" denominating the quantum of estate which the word ?"heirs?" must be used to transfer also be overlooked. Let us look at this history for a brief moment.

The doctrine of the common law is that there is no land in England in the hands of a subject but is held of some lord by some service and for some estate. Therefore land tenure in England is either under the King directly, or under some mesne lord or a succession of mesne lords. At this point it is appropriate to quote the following account from Halsbury?'s Laws of England (1st ed.) Vol. 24, p. 139 para. 279:

?"The tenure of land is based upon the assumption that it was originally granted as a ?'feud?' by the King to his immediate tenant on condition of certain services, and, where there has been sub-infeudation, that the immediate tenant in turn re-granted it; and although for most purposes this system, known as ?'feudal system?' has lost its practical importance, it still determines the form of property in land.?" [p.342]

See also Cheshire?'s Modern Real Property, (6th ed.), page 108, where talking about the fee simple or freehold estate in English law the learned author said:

?"In the eyes of the law, of course, a private person can be nothing more than a tenant of land, a fact which was of great moment to him when his right to undisturbed possession depended upon his observance of the tenurial services and incidents. With the disappearance of these, however, tenure can now be regarded as an academic conception. Although in a sense it rules us from its grave since it has indelibly impressed its own characteristic features upon the present form of real property law, as witness for instance, the peculiar forms of landed interests ?- entailed interests, remainders, and so on, which represent one of the peculiarities of the common law.?"

Under that land tenure the freehold known as the ?"fee simple?" is the highest estate which a person can obtain in land, it is the nearest approach to absolute ownership which the tenure allows. The word ?"fee?" being the ?"feud?" and the word ?"simple?" denoting that the land is descendible to heirs generally; see Halsbury?'s Laws of England, (1st ed.) Vol. 24, page 164, note (c) . In Pollock and Maitland?'s History of English Law, Vol. 1, page 44, it is pointed out that the leading idea in feud as used in the expression ?"feudal system?" is that of vassalage, and so in the term ?"fee?" the significant idea is the hereditary nature of the vassal?'s interest, ensuring the continuance without break of the services due to the lord, hence the principle of the common law that there must always be a tenant of the freehold, so that the freehold must never be in abeyance: Freeman v. West,3 and the further principle that a conveyance which divests the freehold from the grantor must at the same moment vest it in the grantee. For these last two principles of the common law just stated, see Halsbury?'s Laws of England, (1st ed.) Vol. 24, page 216, paras. 407 and 408. An estate in fee simple or a freehold is one capable of existing so long as there are heirs-at-law of the owner for the time being, and since the law does not expect that there will be a failure of heirs, the duration of the estate is, in theory, unlimited. (See Halsbury?'s Laws of England, (1st ed.) Vol. 24, p. 164, para. 315).

For these reasons it was absolutely necessary in England that in conveying that estate in land, not only must words be used implying indefinite duration of the estate in the grantee, but also words which indicate that it is an estate of inheritance, one which will not fall into abeyance upon the death intestate of the grantee. Now under the common law, the person on whom real estate will devolve upon intestacy is the heir; the plural is used to indicate heirs generally not necessarily of a particular class, e.g. ?"heirs of his body.?" Moreover, since there are other estates in land which may be granted short of the estate of inheritance, e.g. life estate, it was necessary that the conveyance of the estate of inheritance must be distinguished from the other estates by the use of words which clearly indicate the inheritable nature of the estate transferred otherwise the limitation will be void for uncertainty, and the grantee would get only an estate for life: see Halsbury?'s Laws of England, (1st ed.) Vol. 24, page 165, note (n). [p.343]

It is appropriate at this stage to point out that there are other common law estates in land which do not form part of the feudal system. An outstanding example is the leasehold estate. Upon intestacy the leasehold estate did not devolve upon the heir, it went to the executor or administrator: see Halsbury?'s Laws of England, (1st ed.) Vol. 24, pages 146-7, paras. 290 and 291.

The land tenure of any country is based upon its customary law, except in so far as the same is modified or replaced by statute. Any practice which might grow up and any introduction for that matter which has not gained the hall-mark of custom cannot in my opinion over-ride the customary law of the land. This applies also to Ghana. The land tenure of Ghana is governed by the customary law; it is the basic law which neither Ghanaians or non-Ghanaians may contract out of. A non-Ghanaian cannot by purchasing land from a Ghanaian, and having the land conveyed to him by deed, e.g. in English or Lebanese form, claim that the title he thereby acquired should be regulated by English or Lebanese land law. When section 83 of the Courts Ordinance4, now repealed, made the common law appliable to Ghana, it did not thereby replace the customary land tenure by the English common law relating to land. The Courts Act, 19605, has made it clear that the land law of Ghana is the customary law and no other law, whether the land be held by a Ghanaian or a non-Ghanaian. This is to be found in two Acts: the Interpretation Act, 19606 and the Courts Act, 19607. Section 17 of the Interpretation Act defines the common law which applies to Ghana, and section 66 (1), rule 4 of the Courts Act lays down the law applicable to land. Its provisions are as follows:

?"Rule 4. Subject to the foregoing rules, where an issue relates to entitlement to land on the death of the owner or otherwise relates to title to land ?-

(a) if all the parties to the proceedings who claim to be entitled to the land or a right relating thereto trace their claims from one person who is subject to customary law, or from one family or other group of persons all subject to the same customary law, the issue should be determined according to that law;

(b) if the said parties trace their claims from different persons or families or other groups of persons, who are all subject to the same customary law, the issue should be determined according to that law;

(c) in any other case, the issue should be determined according to the law of the place in which the land is situated.?"

The ultimate root of title to any piece of land in Ghana is an individual, a family or a stool, subject to customary law. Consequently the law, which must be applied to land causes and matters must of necessity be the customary law. In the present case rule 4(c) is the section applicable. Therefore the issue must be determined by the land law of Accra where the land is situate and that law is the customary law of land tenure. [p.344]

Following the common law principle, based as I have shown, upon the feudal system that to transfer a freehold estate in England words and phrases must be used which indicate that what is transferred is an estate of inheritance, and since the word which in England could indicate that inheritability is the word ?"heirs?", one would ask, since the basis of the Ghana real property law is not feudal, and since in Ghana the word ?"heirs?" cannot convey the idea of inheritability, it having conceptions completely foreign to the Ghana law of succession, would the insistence on that word in a conveyance of land in Ghana make any sense?

I have been referred to page 23 of Redwar?'s Comments on Some Ordinances of the Gold Coast, where he said:?-

?"In dealing with land (other than Native Family Property) belonging to persons married under the provisions of the Marriage Ordinance, 1884, it must be remembered that the word ?'Heir?' in the strict English sense, is inapplicable, as upon intestacy the property of such persons is distributable as personality. ?'Heir?', also, in the sense in which the word is used in the Native law, is entirely different in its meaning from the same word as used in English law, since the Heir of Native Family Property takes it under the Native Law of Succession as Head of the Family Community for whose collective benefit he manages the property. The Heir, in such case, has no right to the exclusive enjoyment of the property, and cannot deal with it without the consent of the family. Usage, however, has sanctioned the employment of English conveyancing forms in the Colony, and a discussion of their appropriateness or the reverse would now be merely academic?".

With great respect to the learned author whose views I have always held in very high esteem, I would say that I do not share this view of his that ?"a discussion of their appropriateness or the reverse?" of the use of English conveyancing forms without modification is now merely academic. In my opinion it is not such a desirable thing particularly at this stage in the history of our law when our courts should make critical examination of principles and practices introduced into our legal system from abroad to say whether they all fit into our legal system without need for modification and adaptation, and where they need modification and adaptation, to indicate the modification and adaptation which should be made to such imported ideas in order to serve a useful purpose in our system.

Practice does not become law so long as it has not ripened into custom, and I hope nobody will argue seriously that because English conveyancing forms have been used in Ghana since 1874, they should continue to be used, even if they are found to be out of tune and inconsistent with our customary land tenure and law of succession.

The customary law of Ghana is not based upon the feudal system, and again our law of succession knows no ?"heir?", therefore a form of conveyance which must reflect feudalism is not appropriate in our system to pass an estate comparable to the feudal fee simple or freehold.

Moreover, since in our law of succession the word ?"heirs?" has no meaning, it cannot be an appropriate term of art in our law to delimit an inheritable estate, such as can be acquired in land here in Ghana.

It was necessary in England to pass the Conveyancing Act of 1881 to change the form of conveyancing in force before 1st January, 1882, to dispense with the word heirs in a conveyance. It was also necessary to [p.345] enact a real property Act in 1925 to codify and remodel the English law of real property.9 Similarly, if Ghana should take the retrograde step of adopting the feudal system of conveying land, specific legislation would be necessary for the purpose, but until the Ghana Parliament passes an Act to change our land tenure the land law of Ghana will be the customary law of land tenure.

In my opinion the introduction of the English common law into this country was not intended to make it supercede our customary law; it was meant to be applied where no provision exists in our customary law for a particular situation, and above all, to provide us with methods of ascertaining, declaring, and developing the law of Ghana. In that light I would say that the importance to us of the word ?"heirs?", the magic word in English conveyancing law for conveying the freehold, is to impress upon us the need for employing in our conveyancing law a word or words to indicate, where necessary, that the estate transferred is an inheritable estate. The effective words, which, here in Ghana can convey to everyone the inheritable character of the estate are ?"successors and assigns,?" or words to that effect, and not the magic word ?"heirs?" which, while full of meaning in England, is nonsense here in Ghana. It is in that light that I shall now examine the documents of the plaintiffs?' root of title, being objected to by the defendants.

There is no doubt, on the face of exhibits A,B and C that the estate which the vendor intended to convey by each of them to the purchaser therein is an estate of inheritance. Now in exhibit A we find the following words in the habendum: ?"and the estate right title interest claim and demand of the vendor into and upon the same TO HAVE and TO HOLD the said undivided half share of the Vendor of and in the said hereditaments and premises thereby granted or expressed to be unto and to the use of the Purchasers their successors and assigns in fee simple.?" In each of exhibits B and C the ?"purchaser?" is defined as ?"which expression where the context so admits shall include their successors and assigns.?" The word ?"successor?" used in each of the said documents is a term of art in Ghana having the same legal significance in Ghana which the term ?"heirs?" has in England, and indicates an estate of indefinite duration which is at the same time an estate of inheritance.

For 75 good years the courts of this land took it for granted that ?"wife?" and ?"children?" under the Statute of Distribution, 1670,10 as applied to Ghana by virtue of section 48 of the Marriage Ordinance,11 meant a wife married under the Ordinance and no other, and children procreated in marriage under the said Ordinance. When eventually, that is, in 1959, the Court of Appeal discovered the error, they readily corrected it in spite of the fact that the erroneous interpretation had persisted for such a long [p.346] time; see Coleman v. Shang.12 Similarly, if it has become apparent that inappropriate terms have been used in conveyances of land, the courts should be bold enough to point it out to remedy the situation and correct it.

I am of the opinion that the words used in each of the deeds exhibits A, B and C appropriately show that the quantum of the estate of the plaintiffs?' vendors is one of indefinite duration and of inheritance, in other words, the freehold; therefore the estate which the plaintiffs have in the property offered for sale is the freehold which the defendants contracted to buy. In my opinion the word ?"heirs?" is not necessary for passing the freehold estate or the whole estate which a person possesses in land here in Ghana.

There will therefore be judgment for the plaintiffs against the defendants for specific performance of the defendants?' contract to buy the property the subject-matter of the suit.

Decision

<P>Judgment for plaintiffs.</P>

Plaintiff / Appellant

J.H. Lynes

Defendant / Respondent

D.E. Pollard

Referals

(1) In re Irwin, Irwin v. Parkes [1904] 2 Ch. 752

(2) Freeman v. West (1763) 2 Wils. K.B. 165; 95 E.R. 745

(3) Coleman v. Shang [1959] G.L.R. 390, C.A.; [1961] G.L.R. 145, P.C.

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