William Stephen Kwesi-Johnston V. Araba Effie (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native law and custom—When not applicable—Contract between natives regulated exclusively by English law—The Courts Ordinance, section 74.

Facts

The above section provides that native law and custom shall be deemed applicable in causes and matters where the parties thereto are natives, but it also provides that:—

“No party shall be entitled to claim the benefit of any local law or custom, if it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions should be regulated exclusively by English law.”

In the Court below the plaintiff (now respondent) claimed possession of a house against the defendant (now appellant). The vendor first gave a receipt for the purchase price of the house to the defendant and later also gave him a receipt for £3 as “Tirama” or earnest money in respect of the purchase, which the defendant did not wish to pay but was persuaded to; the receipt for the purchase price wound up with the words ” and in pursuance of the terms of the conveyance to be prepared in this behalf ”.

The vendor, some time later, gave a conveyance of the same premises to the plaintiff, on which she based her claim.

The defendant’s receipt being earlier in date, he would have won if he could have established a valid sale to himself under native law and custom, the parties being natives.

The trial Judge observed that “Tirama” or earnest money was also mentioned in the conveyance to the plaintiff, and having regard to the vendor and the defendant being advanced Africans held, in view of the concluding words in the receipt given by the vendor to the defendant, that they intended the transaction between them to be regulated exclusively by English law, and gave judgment for the plaintiff.

The defendant appealed.

Held

A conveyance forms no part of a sale by native law and custom; mention of it in the receipt given by the vendor to the appellant-defendant coupled with the other circumstances indicated clearly that they intended their transaction to be governed exclusively by English law.

Appeal dismissed.