Swill v Caramba-Taylor (CIV APP 5 of 1971) [1973] SLCA 1 (28 March 1973)

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). 277 15 20 25 30 35 40 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS [ 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, 1952. 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. 278 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 7-10. Marcus.Jones for the appellant; McCormack for the respondent. 279 35 40 THE AFRICAN LAW REPORTS 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 280 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 consider- ation 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. 281 THE AFRICAN LAW REPORTS 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 evidence. 20 The deed of conveyance dated April 4th, 1952 obviously does not conform with the Wills Act, 1837 and although it purports to be a settlement, the question is, does it fulfil the requirements of the Settled Land Act, 1882; s.2(1) in which a settlement is defined as follows : 25 'Any deed, will, agreement for a settlement, or other agreement, covenant to surrender, copy of court roll, Act of Parliament, or other instrument, or any number of instruments, whether made or passed before or after, or partly before and partly after, the commencement of this 30 Act, under or by virtue of which instrument or instru­ ments any land, or any estate or interest in land, stands for the time being limited to or in trust for any persons by way of succession, creates or is for purposes of this Act a settlement, and is in this Act referred to as a settlement, 35 or as the settlement, as the case requires.' For the purpose of the Settled Land Acts 1882 to 1890, settled land meant land and any estate or interest therein, which was the subject of a settlement; and settlement meant instruments under which any land stood for the time being 40 limited to or in trust for any persons by way of succession. From the deed of conveyance dated April 4th, 1952 it 282 SWILL v. CARAMBA-COKER, 1972-7 3 ALR S.L. 277 C.A. is clear that the intention of the settlor, William Stanley Caramba-Coker, was to create a settlement. He had in that instrument described the property intended to be settled, he had declared that he had a life interest and had nominated the beneficiary. What was absent was the name of the trustees. 5 But s.2(5) of the Settled Land Act, 1882 states: 'The person who is for the time being, under a settlement, beneficially entitled to possession of settled land, for his life, is for purposes of this Act the tenant for life of that land, and the tenant for life under that settlement.' 10 Under the 1952 deed of conveyance, therefore, the settle- ment has been fully drawn up. But 34 Halsbury 's Law of England, 3rd ed., at 433 under the caption 'Enforceability of settlements' states: 'As soon as a settlement has been fully constituted, that is, 15 as soon as the settlor has done everything which, according to the nature of property to be settled, is necessary to transfer the property to the trustees ... , then, unless a power of revocation has been reserved, the settlement is irrevocable .... ' 20 There is no power of revocation contained in the 1952 deed of conveyance. The question that emerges is whether the settlor had done everything which should have effectively transferred the property when the settlement was to take effect. According to the nature of this settlement an essential 25 ingredient should be registration so that all claimants will have notice of the settlor's intention and how and what property has been conveyed. If there had been this registra- tion, then, apart from notice to all the world and coupled with the other acts in connection with the settlement already 30 performed, the transfer would have been effective as from the death of the tenant for life. Instead of registering the document it was lodged with the solicitor who for some unknown reason failed to have the registration done, while the tenant for life was alive or 35 immediately after his death. There has been no question raised about the authenticity of the dates of registration of the two documents. I would therefore accept that the deed of conveyance dated October 21st, 1960 was registered before the one dated April 4th, 40 1952. This means that at the time when the former was 283 THE AFRICAN LAW REPORTS registered there was no notice of the conveyance under the latter. The settlor or donor must have known that he had made a settlement in 1952 and ought to have sought advice as to the manner to make an effective transfer. He did not do 5 this but instead he made a conveyance in 1960, which must be assumed to be voluntary, under a deed of gift which happened to be registered on February 22nd, 1965 after the death of the settlor/donor on January 15th, 1965. This later act may well indicate a change of mind of the settlor/donor. 10 The principle of 'first in time, first in title' is well estab- lished. Further, it is trite law that no one gives what he does not hold. If the entire property had gone by the subsequent transfer and registration there was nothing the settlement could convey. 15 I therefore declare the third party the fee simple owner of 39 Adolphus Street, Kissy Village, and I dismiss the plaintiff's case with costs to be taxed against him." It is against this judgment that the plaintiff has appealed on four grounds (as amended) viz: 20 1. The learned trial judge erred in law in holding that the deed of conveyance dated April 4th, 1952 between William Stanley Coker and William James Asogbo Swill was registered on February 22nd, 1965 and ought to have found in accordance with s.4 of the Registration of Instruments Act (cap. 256) that it 25 took effect on April 17th, 1952 antecedent to the deed dated October 21st, 1960 between William Stanley Caramba-Coker and Ulric Medad Ekubolage Caramba-Coker. 2. The learned trial judge erred in law by holding that there had been a failure to register the settlement created by and under 30 the deed of conveyance dated April 4th, 1952 with the result that the same was ineffectual at law. 3. The learned trial judge was wrong in law in granting a declar­ ation that the "third party" was the fee simple owner of 39 Adolphus Street, Kissy. 35 4. The decision is against the weight of the evidence. Counsel for the appellant submitteq that the learned trial judge was wrong in holding that deed of conveyance dated April 4th, 1952 was registered on February 22nd, 1965, and that the said deed was in fact registered on April 17th, 1952, long before 40 the deed of conveyance dated October 21st, 1960 was ever made and registered. This is purely a question of fact, and it is quite 284 SWILL v. CARAMBA-COKER. 1972-73 ALR S.L. 277 C.A. apparent on a perusal of both deeds that the one dated April 4th, 1952 was registered on April 17th, 1952 and the one dated October 21st, 1960, on February 22nd, 1965. Presumably the trial judge mistook the date on which the registration officer certified the authenticity of the first deed for the actual date of 5 its registration. It was also contended that since the 1952 deed was registered more than 10 days after its execution, under and by virtue of the provisions of s.4 of the Registration of Instruments Act (cap. 256), it took effect as from April 17th, 1952, the date of its registration. 10 It was also contended by counsel that the 1952 deed (as was indeed found by the trial judge) was a voluntary settlement with­ out any power of revocation; he submitted that it was an outright conveyance to the donee vesting the fee simple in him after the donor's death. He also submitted that the trial judge was wrong 15 in law in declaring that the respondent was the fee simple owner of the property. _ Counsel for the respondent referred the court to r.12(1) of the Rules of this Court and urged it to treat the appeal as a complete re-hearing of the whole case. He submitted that the decision of 20 the trial judge was correct but that the reasons given by him for the decision were wrong. He conceded the appellant's counsel's submission that the 1952 deed was in fact registered on April 17th, 1952, and not on February 22nd, 1965, as stated by the trial judge. He submitted, however, that the 1952 deed is an out- 25 right gift purporting to take effect as from death, and as such it must comply with the provisions of s.9 of the Wills Act, 1837, as regards attestation, and as it was never attested by two witnesses, it was invalid. He submitted that as such the court should find for the respondent who holds a valid deed of conveyance. 30 The question is what construction is to be placed on the 1952 deed, or in other words what is its legal effect. Learned counsel for the respondent argued that since it is recited in the deed that the instrument was not to take effect until after the decease of the donor it was by its nature ambulatory and hence revocable during 35 the donor's lifetime. Moreover he contended that since the execu- tion of the instrument itself was not witnessed by two persons present at the same time as stipulated by s.9 of the Wills Act, 1837, it was invalid. Looking at the 1952 deed as a whole one would say that the 40 intention of the donor is as expressed in the instrument, viz : 285 THE AFRICAN LAW REPORTS "Making provisions for the betterment in life of the donee his lawful nephew and for divers good reasons." There is no doubt that the 1952 deed is a voluntary conveyance. It is recited therein that "it is not intended that this deed should take effect until 5 after the death of the donor." In the operative part of the deed it is stated - ''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." 10 Obviously the recital that the deed was not to take effect until after death is clearly inconsistent with the operative part of the deed where the "donor as beneficial owner and settlor hereby conveys unto the donee." The rule is that if both the recitals and the operative parts of a deed are clear, but they are inconsistent 15 with each other, the operative part is preferred; in other words, the recital does not control the operative part, where the operative part is clear. In Mackenzie v. Duke of Devonshire (1) Lord Davey said ([1896] A.C. 400 at 408): "I take it to be a settled principle of law that the operative 20 words of a deed which are expressed in clear and unambiguous language are not to be controlled, cut down, or qualified by a recital or narrative of intention." [These words do not appear in the report of the case at 4 S.L.T. 12.] In the 1952 deed the donor expressly states that "as beneficial 25 owner and settlor he hereby conveys unto the donee .... " The question now is, whether the 1952 deed is a purported invalid will in which case the deed made in 1960 would stand- or is it a valid settlement of the property upon the donor for life with remainder to the donee in fee, in which case the donee will 30 immediately become entitled to a vested interest. It is significant that the draftsman in the 1952 deed uses the words "as beneficial owner and settlor." Where technical words or phrases are made use of, there is a strong presumption that the party intended to use them according to their correct technical meaning, but the 35 mere use of such words is not conclusive evidence that such was the meaning intended. One has to look at the document as a whole to discover the true meaning. The learned trial judge dealt exhaustively with the question of whether the 1952 deed of conveyance was a valid settlement, and 40 so found, except that (as he erroneously stated) it was not regis­ tered until after the death of the settlor, who had in the meantime 286 SWILL v. CARAMBA-COKER. 1972-73 ALR S.L. 277 C.A. on October 21st, 1960, made a voluntary conveyance of the same property to the respondent i.e. the 1960 deed of conveyance, which had been registered in November 1960. We are satisfied that the 1952 deed is not a purported testa- mentary disposition and that it was a settlement of property 5 No.39 Adolphus Street, Kissy Village, by William Stanley Coker upon himself for life with remainder to William James Asogbo Swill, the appellant herein, in fee. The situation which has arisen in this case is succinctly explained in Jarman on Wills, 7th ed., at 29 (1930) where it is stated: 10 "Thus, if a man by deed, limit lands to the use of himself for life, with remainder to the use of A in fee, the effect upon the usufructuary enjoyment is precisely the same as if he should, by his will, make an immediate devise of such lands to A in fee; and yet the case fully illustrates the distinction 15 in question; for, in the former instance, A, immediately on the execution of the deed, becomes entitled to a remainder in fee, though it is not to take effect in possession until the decease of the settlor, while, in the latter, he would take no interest whatever until the decease of the testator should 20 have called the instrument into operation." It was not seriously canvassed for the appellant that the court should make a declaration in his favour that he is the fee simple owner of the disputed property, rather counsel did submit that the respondent did not adduce sufficient evidence to enable the 25 court below to grant a declaration that the respondent was the fee simple owner of the property. Before the court can grant such a declaration the party must establish at least 40 years' good root of title. This has not been established in this case by either of the parties. 30 The judgment of this court is as follows: 1. The decision of the court below is set aside. 2. The appellant is entitled to possession of the land and here­ ditaments lying, situate and being at 39 Adolphus Street, Kissy Village. 35 3. The Registrar of the court is to take an account of the rents collected by the respondent and mesne profits as from January 15th, 1965, and whatever amount is found so due is to be paid over by the respondent to the appellant. 4. The conveyance dated October 21st, 1960 and made between 40 William Stanley Caramba-Coker and Ulric Medad Ekubolage 287 SECTION 35 THE AFRICAN LAW REPORTS Caramba-Coker and registered in vol. 197 at p.115 of the Record of Conveyances kept in the office of the Registrar-General shall be expunged from the said record by the Registrar-General. 5. The costs of this appeal and of the hearing in the court 5 below shall be taxed and paid to the appellant. 10 15 20 25 30 35 40 Order accordingly. FRIDAY v. CONTEH Court of Appeal (Percy Davies and Tejan, JJ. A. and Rowland Harding, J.): April3rd, 1973 (Civil Appeal No. 13/72) [ 1] Succession-probate and letters of administration-persons entitled to letters of administration-next of kin-no concept of "next of kin" in Kroo customary law-grant of letters of administration to "only next of kin" of deceased Krooman invalid: Kroo customary law does not recognise the concept of "next of kin" and so a grant of letters of administration of the estate of a Krooman to his brother as "only next of kin" is invalid; in these circumstances the estate should be administered by the Administrator-General in accordance with the Administration of Estates Act (cap. 45) (page 290, lines 19-24; page 290, line 37- page 291, line 3). The respondents brought an action against the appellants in the High Court claiming possession of certain premises. The appellants were in possession of premises within the Kroo Reservation which had belonged to one William Tieh Dembo, alias Nah Dembo, alias Nenneh Nah, a member of the Kroo tribe, who died intestate in 1951. In January 1971 letters of administration of his estate were granted to his brother, Nah Dembo alias Nenneh as "lawful brother and only next-of-kin of the deceased.'' In March 1971 the deceased's brother sold the property to the respondents who brought the present proceedings seeking pos­ session from the appellants. The High Court (During, J.) gave judgment for the respondents and the appellants appealed. On appeal the court considered as a preliminary point whether the grant of letters of administration to the deceased's brother was valid according to the customary law of the Kroo tribe, of which the deceased was a member, and whether, in consequence, the brother had any title to sell the property to the respondents. The court held that the grant of administration had been improper, allowed the appeal and ordered a new trial. 288