Establissement Maurel et Prom V. The Legal Adviser of the Gambia & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for Declaration of Title to Land advertised to be sold under supreme a Deed of Mortgage, such land having been conveyed by the Court. Government subject to a proviso of non-alienation save by permission of the Government.

Held : Such proviso in a grant by the Crown is legal, and permission to mortgage not having been obtained the trial Judge was correct in declaring the land was the property of the grantees and could not be sold.

The facts of the case are fully set out in the case stated by Gray, J., which was

” 1. A writ of summons was issued out of this Court by the Legal Adviser of the Gambia, Muss M’Boob, Momodu M’Boob and certain other persons therein referred to (hereinafter called the plaintiffs) against Establissements Maurel et Prom (hereinafter called the Firm) to answer a claim that the property situate at 50, Dobson Street, Bathurst (hereinafter called the property) advertised to be sold by the defendants under a mortgage executed under a decree of this Court should be declared and adjudged to be the property of Momodu M’Boob and others the plaintiffs therein referred to, and delivered to them accordingly.

2. The plaintiffs other than the Legal Adviser are hereinafter referred to as the beneficiaries.
3. CASE. Upon the hearing of the case the following facts were admitted :

” (a) In 1927 one N’Jie Cumba Samba applied to the Colonial Secretary of the Gambia for a grant of the property to be made out in the name of the beneficiaries.

2. It was subsequently agreed that the grant should be made out in the name of Musa M’Boob, who should hold the land as trustee for himself and the other beneficiaries.
3. By a conveyance dated the 14th March, 1928, in consideration of the payment of the sum of £8 the Governor of the Gambia conveyed to Musa M’Boob the property ” to hold the premises unto and to the use of the purchaser in fee simple subject to the conditions hereinafter
4. set forth and the purchaser for himself, his heirs and assigns hereby covenants with the vendor that the purchaser and the person deriving title under him will observe and perform the conditions following.” The seventh of those covenants reads Is follows : —
5.  ” 7. Will not sub-divide or convey or assign the said premises or any part thereof without on each occasion first obtaining the consent in writing of the vendor.”
6. The conveyance also contained the following proviso:
7. ” Provided that if default shall be made by the purchaser his heirs or assigns in respect of the premises hereinbefore contained or any of them it shall be lawful for His Majesty, his heirs and successors, and for the vendor (or any person duly authorised by him) in the name of His Majesty, his heirs and successors to enter into and upon the land hereby granted or any part thereof and to possess and hold the same as the old and former estate of His Majesty.”
8. On October 17, 1933, Musa M’Boob executed an equitable mortgage of the property in favour of the firm.
9. In 1936 the firm commenced proceedings in this Court against Musa M’Boob to recover a certain ” sum of money due. On June 11, 1936, judgment was given by consent against Musa M’Boob in favour of the firm for £116 5s. Od. One of the terms of the judgment was that there should be a stay of execution for fourteen days ” during which time the defendant to execute a legal mortgage of 50, Dobson Street, Bathurst (in respect of which he has already executed an equitable mortgage), in favour of the plaintiffs to secure payment of the debt within a year.”
10. Neither the Legal Adviser nor any of the beneficiaries (other than Musa M’Boob) were parties to the proceedings referred to in subparagraph (e).
11. On July 1, 1936, Musa M’Boob executed a legal mortgage of the property in favour of the firm. The mortgage witnessed that, in pursuance of the premises and in consideration of the sum of £116 5s. Od. then owing by the borrower ” the borrower as beneficial owner hereby grants unto the lenders ” the property ” to hold the same unto and to the use, of the lenders in fee simple subject to the proviso for redemption hereinafter contained.’ “
12. The consent of the Governor of the Gambia was not obtained to the execution of the legal mortgage.
13. On July 25, 1936, the Officer-in-Charge of the Land and Survey Department wrote to the firm and to Musa M’Boob stating (inter alio) that the grant of March 14, 1928, had been forfeited by reason of the fact that the necessary permission to assign had not been obtained and requesting the return of the said grant for cancellation. A further letter to the same effect was written by the same officer to the firm on September 28, 1936. In their replies of August 17 and October, 1936. the firm declined to admit that they had incurred a forfeiture and refused to surrender the grant for cancellation.
14. The duplicate of the grant of March 14, 1928, was cancelled by the Acting Governor of the Gambia on October 5, 1936.

(k) On October 7, 1936, the Land Officer wrote to the firm informing them ” that this grant has been cancelled owing to a breach of Covenant No. 7 and your mortgage is not recognised by the Government.”

(1) On November 16, 1936, the Governor of the Gambia granted the property to the beneficiaries ” jointly in fee simple upon the conditions hereinafter set forth.” This grant contained ipsissitnis verbis- the same covenant and proviso for re-entry as are set out in sub-paragraph (c) hereof.

(in) The firm subsequently advertised the property for sale in purported exercise of their statutory powers as mortgagees. The plaintiffs thereupon issued the writ referred to in paragrph 1 hereof.

4. At the hearing it was contended upon the part of the plaintiffs that the legal mortgage of July 1, 1936, was void and that the property had been forfeited by reason of the failure of the parties thereto to obtain written permission to assign, as required by the covenant referred to in paragraph 3 (c) hereof, and also by reason of the fact that such assignment amounted to a breach of the trust referred to in paragraph 3 (b) hereof.

5. Upon the part of the firm it was contended that: —

1. The covenant referred to in paragraph 3 (c) hereof was void as being repugnant to the fee simple.
2. The Governor of the Gambia was not empowered to cancel the grant of March 14, 1928.
3. There had been no re-entry on the property by the Government.
4. The firm were purchasers for value without notice of any trust.
5. In any event Musa M’Boob was bound by the order of the Court referred to in paragraph 3 (e) hereof and his present interest in the property could be sold.

6. For the reason given in paragraph 7 hereof I gave no decision upon the question of purchase for value without notice. With regard to the other matters raised at the hearing my attention was directed to the following decisions:—

Re Dugdale (1888) 38 Ch. D. 176.

Re Machu (1882) 21 Ch. D. 838.

Corbett v. Corbett (1888) 60 L.T. 74

Dann v. Dolman 5 Times Reps. 641.

Doe v. Powell 5 B. and C. 308.

OPINION .