Emmanuel Quarmina Nelson Of Accra & Anor V. Samuel Quarshie Nelson Of Accra & Anor (1951)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for declaration of title and for recovery of possession of lands—Whether transaction governed by English law or Native law and custom—Suit not exclusively between Natives—Effect of acquiescence on part of the plaintiff to a, purchase by first defendant by deed of conveyance in English form—
Subsequent sale by first defendant to third defendant invalid.

Facts

The plaintiffs were the appellants. By a death-bed disposition, recognised by native law and custom, the plaintiff’s father left certain self-acquired property to the first defendant, his eldest son, to take charge thereof on behalf of himself and all the children of the deceased. A portion of the land was acquired by Government and with part of the compensation money the first defendant purchased the land in dispute, taking title in his own name by a deed of conveyance in English form.

He then sold the land to the third defendant who leased it to the second defendant. The plaintiffs, children of the deceased, claimed a declaration of title to the land and recovery of possession against the second and third defendant.
In order to determine the rights of the appellants it was essential to find by what system of law the relationship of the parties was governed ; English law or Native law and custom.

The argument before the Supreme Court and in this Court proceeded on the basis that the appellants had allowed and acquiesced in the first defendant purchasing the land by a deed in English form, and that as the parties were not exclusively native, English law should apply.

The Supreme Court held that the transaction was governed by English law on the grounds that firstly, the suit was not exclusively between natives, and, secondly, that the appellants, having allowed the first respondent to purchase the property in his own name by a deed in English form, must be understood to have agreed that their rights should be exclusively regulated by English law.

The appeal turned on the construction of section 74 of the Courts Ordinance (Cap. 4) which sets out the circumstances in which English law or Native law and custom are to be applied :—
where all the parties are native;
where the parties are native and non-native.

Held

The original disposition by the appellant’s father clearly manifested an intention that his children should have a joint but exclusive interest in the land, and that to apply English law to the transactions subsequent to the death ofthe father would defeat the objects of the testator and that, although the second and third defendants were non-natives, native customary law should apply in order to obviate a substantial miscarriage of justice.

Accepting that the appellants allowed and acquiesced in the first defendant acquiring title by means of a conveyance in English form, they were not parties to that transaction and the surrounding circumstances should be taken into consideration.

Whatever the form of conveyance to the first defendant, there could be no doubt that it was the intention and purpose of the children that the property purchased to replace that acquired by the Government was to be held on the same terms as the properties originally disposed of by the testator, the appellants’ father. These circumstances did not establish that the appellants agreed ^–that their rights should be regulated according to English law, and accordingly, native customary law applied to all the transactions. The sale to the third defendant was invalid.

Appeal allowed and judgment of the Supreme Court set aside and new judgment substituted therefor.