Swill v Caramba-Coker, 1972-73 ALR S.L. 277

SECTION 34 SWILL v. CARAMBA·COKER, 1972-73 ALR S.L. 277 C.A. fact of the defendants' cornice overhanging the plaintiff's land, may be considered as a nuisance to him, importing a damage which the law can estimate. And, if so, it is quite unnecessary, as I apprehend to lay special damage in the declarations." 5 It is quite clear that the principles upon which the case here was decided were wrong. I am of the opinion that the judgment of the learned magistrate was erroneous, the question of the eaves having been dealt with as a case of trespass. I therefore order that there must be a new trial. No order as to costs. 10 New trial ordered. SWILL v. CARAMBA-COKER Court of Appeal (Cornelius Harding, Percy Davies and Tejan, JJ. A.): March 28th, 1973 (Civil App. No. 5/71) [ 1] Civil Procedure-judgments and orders--declaration of title to land party claiming declaration must establish forty years' good root of title: A person claiming a declaration that he is the fee simple owner of property must establish at least forty years' good root of title before the court may grant the declaration (page 287, lines 22-30).

[2] Documents-deeds-conveyances-recitals-recital does not qualify oper ative part of deed expre~d clearly and unambiguously: If both the recitals and operative parts of a deed are clear and unambiguous but they are inconsistent with each other, the operative part is preferred and is not to be controlled or qualified by a recital or narrative of intention (page 285, line 40 -page 286, line 22). [ 3] Documents-interpretation-technical words or phrases-presumption that technical meaning intended but document to be read as whole to discover meaning: There is a strong presumption that a draftsman using technical words or phrases, such as "beneficial owner and settlor," intends to use them according to their correct technical meaning but the mere use of such words is not conclusive evidence of this and the document must be read as a whole to discover the true meaning (page 286, lines 3Q-36). [ 4] Estoppel-representation-acknowledgement of title-person claiming title in reliance on deed which recites title of donor, estopped from dis claiming donor's title: Under the principle of estoppel a person who claims ownership of property relying on a deed of conveyance which recites the title of the donor, may not afterwards disclaim the donor's title: (page 281, lines 35-42).

[ 5] Land Law-conveyancing-deeds-recitals-recital does not qualify operative part of deed expressed clearly and unambiguously: See (2] above. [ 6] Land Law-title-claim of title-person claiming title in reliance on deed which recites title of donor estopped from disclaiming donor's title: See [ 4] above. [ 7] Land Law-title-declaratory action-evidence-party claiming declara tion must establish forty years' good root of title: See [ 1] above. [ 8] Settlements-creation-use of words "beneficial owner and settlor presumption that technical meaning intended but document to be interpreted as a whole to discover whether settlement created: See [ 3] above. The ~ppellant brought an action against the respondent in the High Court claiming recovery of possession of certain property and mesne profits in respect thereof. By a deed dated April 4th, 1952, the land in question was con veyed to the appellant by its then legal owner, now deceased. In the operative part of the deed it was stated that - "the donor as beneficial owner and settlor hereby conveys unto the donee," and in the habendum - "to hold the same unto and to the use of the donor during the period of his natural life and after his death to the donee in fee simple." However, in the recital it was stated -"it is not intended that this deed should take effect until after the death of the donor." The deed was registered on April 17th,

On October 21st, 1960, the deceased executed a conveyance of the disputed property to the respondent in fee simple absolute. This conveyance was registered on February 22nd, 1965. The respondent remained in possession of the property and after the death of the original owner the appellant issued a writ against the respondent's agent claiming possession of the property and mesne profits. The respondent was joined as a third party and denied that the appellant was entitled to possession, stating that the deed of April 1952 was void and of no effect. He counterclaimed for a declaration that the disputed property belonged to him in fee simple absolute. During the trial both the appellant and respondent alleged that the property in question had been owned by their respective relations, not including the deceased donor, although the deeds upon which each relied as conferring title upon him recited that the deceased donor had been in sole continuous and undisturbed possession for a period of 20 and 30 years respectively.

SWILL u. CARAMBA-COKER, 1972-73 ALR S.L. 277 C.A. The trial judge found, wrongly, that the deed of April1952 was not registered until after the registration of the 1960 deed. He also found that the deed of 1952 did not conform with the Wills Act, 1837 but that the intention of the donor was to create a settlew ment and that if the deed had been registered, the settlement 5 would have been fully constituted and irrevocable. Since, on his findings, the deed of 1952 was ineffective to transfer the property to the appellant through lack of registration, he then found that the deed of 1960 transferred the property to the respondent and he declared the respondent the fee simple owner. 10 On appeal the appellant contended that - (a) the trial judge was wrong in holding that the 1952 deed was registered after the 1960 deed, and ought to have found that it took effect on April 17th, 1952 and (b) since the 1952 deed was a valid settlement of the property upon the donor for life with remainder to the donee 15 in fee, the learned trial judge was wrong in law in granting a declaration that the respondent was the fee simple owner of the disputed property. The respondent conceded that the 1952 deed was in fact registered on April 17th, 1952 but contended that the 1952 deed 20 was an outright gift purporting to take effect as from death and as such should comply with the attestation provisions of the Wills Act, 1837, s.9, which it did not do. The court further considered the contentions of both appellant and respondent at the trial concerning the previous ownership 25 of the disputed property and whether the parties could validly question the title of their common predecessor in title. The appeal was allowed. Case referred to: 30

(1) Mackenzie v. Duke of Devonshire, [1896] A.C. 400; (1986). 4 S.L.T. 12, applied. Legislation construed: Settled Land Act, 1882 (45 & 46 Viet., c.38), s.2(1): The relevant terms of this sub-section are set out at page 282, lines 25-35. s.2(5): The relevant terms of this sub-section are set out at page 283, lines

Marcus.Jones for the appellant; McCormack for the respondent.

CORNE LIDS HARDING, J .A., delivering the judgment of the court: This is an appeal against the decision of Betts, Ag. C.J. (as he then was) dated December 11th, 1970, dismissing with costs the plaintiff/appellant's claim for recovery of possession of certain 5 land and hereditaments situate, lying and being at 39 Adolphus Street, Kissy Village and for mesne profits in respect thereof at the rate of Le6 per mensem as from January 1965, and granting the respondent (who was the third party in the court below) a declaration that he is the fee simple owner of the said property. 10 The writ which is dated April 24th, 1967 was originally issued against one Lucian B. Williams, but subsequently an order was made for a third party notice to be served on the respondent who admitted that the defendant, the said Lucian B. Williams, at all times material to this action was merely acting as his agent. 15 The statement of claim, which was endorsed on the writ alleges: "1. By deed dated April 4th, 1952 and registered at p.l09, Vol. 169 in the Record Books of Conveyances kept in the office of the Registrar-General, William Stanley Coker 20 (deceased) did convey unto William James Asogbo Swill, the plaintiff herein, all that piece or parcel of land situate, lying and being in Adolphus Street, Kissy Village in the State of Sierra Leone and bounded on the north by property of George Metzger 95 feet, on the south by 25 property of John Bowen 87 feet, on the east by Adolphus Street aforesaid 32 feet and on the west by property of Sarah Metzger 28 feet.

2. The donor, the said William Stanley Coker, authorised the defendant herein to collect the rent and to pay the 30 same to him.

3. The said Stanley Coker died on January 15th, 1965.

4. The donee the plaintiff has made several applications to the defendant, the said Lucian B. Williams, to hand over the property to him but she has refused. 35 The plaintiff therefore claims: (a) Possession of the said property. (b) Mesne profits at the rate of Le6 per month until pos session is given." The respondent in his defence denied that the plaintiff was 40 entitled to possession and mesne profits, or at all, of the land and

SWILL v. CARAMBA-COKER, 1972-73 ALR S.L. 277 C.A. hereditaments in dispute and stated that the deed of gift dated April 4th, 1952 referred to by the plaintiff was void in law and of no effect. He admitted that William Stanley Coker, the donor, died on January 15th, 1965, and averred that the said donor, on October 21st, 1960, executed a conveyance of the disputed 5 property to him in fee simple absolute which is registered in Vol. 197 at p.115 of the Record of Conveyances kept in the office of the Registrar-General. He counterclaimed for a declaration to be made that the disputed property belonged to him in fee simple absolute. 10 The plaintiff/appellant filed an amended reply and defence to the counterclaim of the respondent stating that the deed of gift dated April 4th, 1952 was in fact a settlement created by the deceased and secured by the plaintiff who gave valuable consideration to the deceased and that the conveyance dated October 15 21st, 1960 did not revoke the settlement; that the deceased was incompetent to pass the fee simple absolute of the land and premises to the respondent and that the said deed was therefore void and of no effect. Further, it was pleaded that the plaintiff was the legitimate son of James Godfery and Christiana Swill 20 (both deceased) and the lawful successor to the said Christiana Swill (nee Thorpe) who was at all material times the fee simple owner of the said premises. To this there was a rebuttal filed by the respondent stating that he was in possession of the property by himself and his predecessors in title and the Statute of Limi- 25 tations was pleaded. During the course of the trial the plaintiff stated in evidence that the property was owned by his mother, but there were no documents of title produced nor was any evidence adduced to substantiate this claim. Also, evidence was given by the respon- 30 dent that his late uncle's mother i.e. the plaintiff's grand-mother, owned the property personally, but again no documents of title were produced nor was any concrete evidence in support of this allegation adduced. In both documents upon which each of the parties respectively 35 relied as conferring title on him, it is recited that the deceased donor had been in sole continuous and undisturbed possession for a period of upwards of 30 years and 20 years respectively and that he was seised in fee simple of the property. Under the principle of estoppel it is not open to either of them to disclaim afterwards 40 the title of the donor from whom each alleges he has derived ownership of the property in dispute.

The issue therefore turns on the validity of both the respective deeds of conveyance dated April 4th, 1952 and October 21st, 1960. The learned trial judge in the course of his judgment had this to say: 5 " ... William Stanley Coker prepared the document dated April 4th, 1952, purporting to create a settlement and declaring himself owner and settlor with rights of succession by the plaintiff after death. The document was registered on February 22nd, 1965, at p.109 of Vol. 169 in the Register 10 of Conveyances, some 13 years after the purported settlement was drawn up. The third party said that by a conveyance dated October 21st, 1960, William Stanley Caramba-Coker conveyed to him the same property registered at p.115 of Vol. 197 in the 15 Register of Conveyances, intending to convey the property as a gift. One is left at a loss to see that Vol. 197 at p.115 is registered at an earlier date than Vol. 169 at p.109. The regis tration should have been the other way round from all the