Flora Nicolla Godwin V. Naomi Crowther (1934)
LawGlobal Hub Judgment Report – West African Court of Appeal
Speciftc Performance of Contract for Sale of Land—Interest or otherwise of Deceased’s infant grand niece in such. Egad– Interpretation of Section 6 01 the Supreme Court Ordinasee, 1904 (Cap. 205) of Sierra Leone—its effect on Intestates Estates Ordinarwe, 1924 (Cap. 104) of Sierra Leone—tio repeal thereby of latter—Statute of Distribution, 22 and 23 Car. 2 Cap. 10 as applied by Cap. 104 still in force in Sierra Leone–no application by Section 6 of Cap. 205 of the English Administration of Estate -Act of 1925 in Sierra Leone.
The foots of the ease are sufficiently *et out in the judgment.Appeal
S. J. S. Barlett (E. S. B. Betts with hint) for the Appellant. from
judgm
E. A. C. Dames (Boston with him) for the Respondent,
of the
The following judgments were delivered:—Supreme
MACQUARRIE, J.Court
of Sierra
This is an appeal from a judgment of the Supreme Court of Leone. Sierra Leone in its ordinary jurisdiction, dated 3rd January, 1984, dismissing an action for epeciTie performance of a contrast for the
sale of land on the ground put forward by the defendant vendor that she ha.d no sufficient right to sell. The respondent-defendant in the Court below is the administratrix of the estate of her husband who died intestate in November, 1932. In August, 1933 a contract of sale of land forming part of the estate was concluded between her as administratrix and plaintiff. Plaintiff paid the price agreed, but defendant later refused to complete on the ground that she had since makingthe contract discovered that an infant grandniece of the deceased was entitled to a share in the estate, and that, under section 24 of the Intestate Estates Ordinance, 19244Cap. 104), it was–necessary to obtain the consent of the Court to the sale, as the consent of all persons beneficially interested ” could not be -obtained; that this not having been done, she was unable to complete the sale. She therefore resisted a decree for specific performance and’ paid the purchase money into Court.
The Court below held that the infant grandniece was entitled to a share in the estate, and that as the necessary consent of the Court had not been obtained to the sale of the land, the contract ” was void in that the vendor was legally incapacitated from , disposing of the land without the consent of the Court.” For these reasons the action was dismiseed -with costs. No claim was made that respondent, the adminiatratrix, should obtain the consent of the Court; nor did any question arise as to the incapacity tieing due to her own inaction.
This decision involves two 11.1:Wings, whichincorporated
in the judgment of the Court, namely—
Firstly :—That the phrase ” for the time being-” in section 6 of the Supreme Court Ordinance, 1924, means the time when any event might occur in respect of =rah the la* waa th be administered—in this case the death of respondent’s husband, intestate, in November, 1932; and
Secondly : —That the phrase ” probate causes and proceedings ” in the same section includes, in the words of the trial Judge ” matters sui generis “—by implication the English Administration of Estates Act, 1925, which amongst other matters altered the law of devolution in intestacy, admittedly giving the grandniece in the circumstances of this cake a right to, share in the estate.
The grounds of appeal may be summarised as follows :–
- The phrase ” for the time being ” must bo interpreted in reference to its context, and to mean ” at thio time “the date
of the Ordinance, namely, 30th May, 1904, thereby excluding the application of the Act of 1926. - That the words ” probate causes and proceedings ” cannot include the law as to testamentary succession or as to distribution of estates on intestacy.
- Even if the English Administration of Estates Act, 1925, applies, the consent of the Court would not be required-I am of opinion that the appellant succeeds on both points.
Firstly, as to the meaning of ” for the time being ” is section 6 of the Supreme Court Ordinance, 1924, which reads as follows :—
” The jurisdiction hereby conferred upon the Court in probate, divorce and matrimonial causes and proceedings may, subject to this Ordinance and to Rules of Court, be exercised by the Court in conformity with the law and practice for the time being in force in England.”
Mr. Barlatt, for appellant, at first argued that the Supreme Court Ordinance, 1932, applied, but later agreed that it could not apply, as it only operates as from 1st January, 1933, while the death took place in November, 1932.
In his fourth ground of appeal he argued ” that the phrase is restricted from application in its general sense ” 0.8. ` from time to time ‘) by the context.
The learned trial Judge based his opinion of the meaning of the phrase on a passage in Stroud’s Judicial Dictionary (Vol. 3 p. 2059) which reads as follows:–
” The phrase ‘ for the time being’ may, according to the context, mean the time present, or denote a single period of time; but its general sense is that of time
indefinite, and -refers la an indefinite AM* of facts Flora
which wta arise in-lie-future, and which may (and Godwin
probably will) maw from time= to time,”_Y.
and apparently 110=1de:ft(‘ that the,- context did not affect ite orowther application, Here, wit3z respect, elizagree with him. The eases
referred to in Stroud not include- such a case as :this, sad it macquarri, seems to me that these words are not apt in a statute to apply laws J.
which might be made in the future. I think the ” time” be taken to be the time when the Ordinance speaks, i.e. at its, commencement.
Again, the phrase ” from time to time ” in the penultimate line of section 2 of –the -Ordinance is used to express the meaning of ” for the time being ” contended for.
Those words might have been expected to be used here, and not the latter.
Mr. Boston, for respondent, referred to the ‘intention of the Ordinance and submitted that section 6 is in effect an exception to section 7. It appears to me that strong evidence would be required of the intention of the legislature to effect such an unusual purpose as the wholesale application of all future English law, whatever it might be, on the subject in question, as well as on those of divorce and matrimonial causes. No such evidence exist..
I am prepared to agree with Mr. Boston to this extent—that section 6, so far as it can be considered an exception to section 7, may affect it to the extent of applying the law at 30th May, 1904, instead of .1st January, 1880, but no further.
This being so, by motion 13 of Cap. 104 (the Intestate Eetates Ordinance), the law as to distribution is the Statute of Distribution of Charles II and the grandniece has no interest.
This is sufficient to dispose of the case, it being admitted that if the grandniece has no.interest the consent of the Court is unnecessar►, and the respondent, the administra,trix, would have no defence to the action..
Also, as to the meaning of ” probate causes and proceedings “, Mr. Barlett contended that the phrase cannot mean more than causes and proceedings connected with the grant or recall of probate or letters of administration. He pointed to the definition of ” probate actions ” in section 2, and argued that section 13 of the Intestate Estates Ordinance (Cap. 104), which provides that land should on intestacy be ” divisible and distributable in the same manner as personal estate is now divisible and distributable, and amongst the same persons “, was not affected. The effect of that section is to make land divisible and distributable according to the Statute of DistributiOns of Charles II. Mr. Boston argued that the phrase in question does include t_he law as to testamentary succession, devolution or intestacy and administration of assets; but that one effect of section -6 is, by the application of the ‘Administration of Estates Act, 1925, to repeal section 13 of the
Intestate Estates Ordinance, and that section -enly.- I am unable
Gudwinto agree with him; it seems to -me it would follow-that the whole
v.Ordinance would stand- repealed, with the rte=-that section 24
Naomirequiring the consent of the Court to a sale of laud would no longer
Crowther
be in force, and the defence to the action would disappear.
Macquarrie,I am however of opinion that the phrase–in tfuestion hae–the
meaning contended for by appellant.
It would, I think, be contrary to general rules of interpretation of statutes to hold that by such words the law of devolution and distribution on intestacy is radically altered, and such an important Ordinance, the Intestate Estates Ordinance, which was passed in 188I and has since been amended- from time to time, is repealed. In the words of its long title it is- ” an Ordinance- to alter the succession to real estate, and to amend the law relating to the distribution and administration of the estate -of intestates, and to provide for the due administration of estates whereof there is no administrator, and for other purposes.” In my opinion the subject of such Ordinance is not included ill the phrase probate matters and proceedings.” This also disposes of the third ground of appeal to which I have referred, namely, that consent of the Court is not required if the Administration of Estates Act, 1925, is held to apply.
It follows that the consent of the Court to the sale is not required; and that the respondent has no defence to the action for specific performance.
The parties agree on £24 in respect of mesne profits.
In my opinion, therefore, the appeal should be allowed and there should be judgment that the appellant is entitled to specific performance; to the payment of £24 as mesne profits, and his costs in this Court and the Court below.
BUTLER-LLOYD, J.
The facts of this case are not in dispute and are sufficiendy set out in the judgment which has just been read and. With which I fully concur. It seems to me however that the matter may be stated even more simply.
The appeal turns on the construction to be given to section 6 of the Supreme Court Ordinance, Cap. 205, which has already been read.
This Ordinance was passed in 1904 and it is argued for the respondent that by virtue of this section the English Administration of Estates Act of 1925 was in force in Sierra Leone at the material time, namely, 1932. It is admitted that if this is not the case the respondent must fail since by the Statute of Distribution 22 and 23 Car. 2 Cap. 10, which was applied to this Colony by section 13 of the Intestate Estates Ordinance, Cap. 104, the interest of the grandniece of deceased on which the defence is founded would not arise.
Now whatever may –have been the exact intention of the legis- Flora lature in frainineparagraph =#1iwthing is clearer than that that Godwin section is subject *ant overiSdenfiy *cation-8, which makes allv.
statutes applied by the -Ordiniknee subject. to existing Ordinances
of the Colony not=q,keitekryI 1-repealed. The Intestate –igetates ‘ Ordinance-repealed awl must be taken tofull putter _
force and effect.__Lloyd, J.
This disposes of the respondent’s case, but I desire to point out that even- were the- Intestate Estates Ordinance repealed by section d the respondent *amid be ii6loetter off since she rests her case on– paragrilk Z4 of that .Ordinince, and I am certainly not prepared to ‘accede to the-proposition that paragraph 24 remains in force while paragraph 13 does not
In my opinion the appeal should–be allowed. DEANE, C.J., GOLD COAM.
I have had the advantage of reading the judgment of my learned brothers, and agree with the conclusions at which both have arrived, vii., that the Intestate Estates Ordinance has Mt been repealed by section 6 of -the Supreme Court Ordinance of 1924. I wouldonly add that–it is tome almost inconceivable thsit the legislature, had_ they meant= to repeal that Ordinance, would not have said so, instead of leaving to inference such an important result.
The appeal will be =u held, ana there will be an order for specific -performance and judgment for £24 damages b wad of mesne profits. The defendant must also pav the costs this appeal and of the proceedingsin the Court below.
Court below to carry out.
