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Osei Kojo V. Salvado Hurtado Solaz (1938) LJR-WACA

Osei Kojo V. Salvado Hurtado Solaz (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim to Possession of land and for Damages for trexpass—No pleadings—Construction of Deed of A.q$ignmient—Oral evidence varying terms thereof admitted and Defendant successful at trial.

Held Such evidence inadmissible and appeal allowed, but possibility of plaintiff having an interest as tenant in common considered and non-suit ordered.

The facts are sufficiently set out in the judgment.

E. C. Quist (H. V. A. Franklin with him) for Appellant. E. 0. Asafu Adjaye for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

Plaintiff by his writ claimed :—

  1. To recover possession of all that piece or parcel of land with buildings thereon situate at Tamale and known as Commercial Plot No. 1 Daboya Road Marketside but not including the portion of the said plot on which a storey building has been erected, and
  2. £150 damages for trespass on the said land.

There were no pleadings but at the trial it was agreed that the issue to be determined was the construction of the Deed of Assignment dated 24th April, 1936. This deed, which is hereinafter referred to as the Deed of Assignment, was made between the defendant, as vendor, and the plaintiff, as purchaser. The whole plot, the subject matter of the action, is shown on plan, exhibit

tit all

By Indenture of Lease dated the 13th January, 1932, the then Chief Commissioner, Northern Territories, on behalf of the Governor of the Gold Coast, demised Commercial Plot No. 1 Tamale to the defendant his heirs etc. and assigns from the 1st January, 1933, for the term of fifty years. Paragraph 4 of this indenture contained a covenant not to assign etc. the demised premises without the consent in writing of the Chief Commissioner on behalf of the Government.

It will be seen from the Deed of Assignment that it is stated that the defendant agreed to assign to the plaintiff the land described in the schedule thereto with the building thereon for the unexpired residue of the term of fifty years and that the defendant obtained the licence and consent of the Chief Commissioner to assign ” the said premises.”

By this Deed of Assignment the defendant assigned to the plaintiff his heirs, assigns, etc. ” All that piece or parcel of land ” described in- the schedule hereto and all the estate right title ” interest claim and demand whatsoever of the said Vendor unto ” and upon the said land and every part thereof.”

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This schedule is in the following terms : —

 ” All the messuage and premises known as Commercial ” Plot No. 1 Daboya Road Market Side consisting of one ” store and one petrol store and half part of the said plot ” and also the shelves, counters and other fixtures in the said ” store and petrol store and forming part thereof and ” appurtenant thereto but not including the uncompleted ” storied building on a portion of the said plot.”

This schedule is very unhappily drawn. The buildings present no difficulty. It is clear that the uncompleted storey building which is to be retained by the vendor is marked ” A ” on plan ” 0,” and that the two stores that were to pass to the purchaser are marked ” B ” and ” D.” Although by the Deed of Assignment only one half of the plot was to pass, it was not stated how that half was to be ascertained. It is quite clear that on the proper construction of the deed the purchaser acquired ” B ” and ” D ” and an undetermined one half of the plot. The consent of the Government to this assignment was put in at the trial from which it will be seen that the Government consented to an assignment by the defendant to the plaintiff ” of all the term ” and interest of and in a portion being approximately one half ” of the plot known as Commercial Plot No. 1 Tamale comprised ” in and demised by an Indenture of Lease dated the 13th ” January, 1932   11

The learned trial Judge found that the plaintiff acquired not one-half of the plot but the whole plot. It is obvious that he came to this conclusion because he accepted the plaintiff’s evidence that ” the defendant agreed to sell me the whole plot together with ” all the buildings thereon with the exception of the uncompleted ” storey building facing the market.” This statement was dearly inadmissible as it added to and altered the terms of the Deed of Assignment.

Dealing with the inadmissibility of extrinsic evidence to add

to deeds, Norton on Deeds, 2nd Edition at page 135, says :—

” A further rule relating to the interpretation of deeds ” is that the deed only is to be construed, and that no evidence ” of extrinsic circumstances is admissible to add to, contradict, ” vary, or alter the terms of a deed.

” This rule is not, properly speaking, a rule of interpretation; it is a rule of law limiting the subject-matter ” to be interpreted to that contained in the deed itself.

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” It would be inconvenient that matter_s in writing ” made by advice and on consideration, and which finally ” import the certain truth of the agreement of the parties, ” should be controlled by the averment of the parties to be ” proved by the uncertain testimony of slippery memory. ” And it would be dangerous to purchasers and farmers, ” and all others in such cases, if such nude averments ” against matter in writing should be admitted.

” To add anything to an agreement in writing by ” admitting parol evidence, which would affect land, is not ” only contrary to the statute of frauds and perjuries, but ” to the rule of common law, before that statute was in ” being.”

And at page 136 :—

” ` By the general rules of the common law, if there be ” a contract which has been reduced into writing, verbal ” evidence is not allowed to be given of what passed between ” the parties either before the written instrument was made, ” or during the time that it was in a state of preparation, `.` so as to add to or subtract from, or in any manner to ” vary or qualify the written contract; but after the agree” meat has been reduced into writing, it is competent to the ” parties, at any time before breach of it, by a new contract ” not in writing, either altogether to waive, dissolve, or ” annul the former agreements, or in any manner to add to, ” or subtract from, or vary or qualify the terms of it, and ” thus to make a new contract which is to be proved, partly ” by the written agreement, and partly by the subsequent ” verbal terms engrafted on what will be thus left of the ” written agreement.’ “

Respondent’s counsel has contended that, as the defendant did not object to the reception of this evidence at the time it was offered as required by Order 6 Rule 29 of Schedule 2 of the Courts Ordinance, this Court should not exercise its discretion and entertain an objection to its reception at the hearing of this appeal. We cannot accede to this contention as the rule that extrinsic evidence is inadmissible to add to or alter a deed is a rale of law limiting the subject-matter to be interpreted to that contained in the deed.

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It may well be that the plaintiff has an interest in the whole plot as a tenant in common with the defendant. His counsel has however frankly admitted that it was no part of his case that the plaintiff and the defendant were tenants in common. It is quite clear from his opening that his case was that the plaintiff was

entitled to the exclusive possession of the whole plot except the

v.unfinished storey building and that this was the issue that was

Salved°tried.

}forted°

Soles.Considering, as we do, that on the proper construction of the

Deed of Assignment the plaintiff was not entitled to exclusive

Kingdom, possession of the whole plot (excepting the building marked
” A “), we hold that he failed to establish any right to the relief

Petrides,he claimed on the grounds on which he relied and which were “in

C.d.,issue at the trial.

and

Webb, C.J.We cannot close our eyes to the fact that had the plaintiff’s

claim been put forward on the ground that he was a tenant-in-common he might have been entitled to some relief. Had plaintiff claimed on this basis factors might have arisen other than those in issue on the claim as put forward by him in the Court below.

Having this in mind we give judgment as follows:

We set aside the judgment of the Co_urt below and enter in lieu thereof a judgment of non-suit with liberty to the plaintiff to take proceedings if he thinks fit to protect any rights he may have as a tenant-in-common of any part of the plot.

We award the appellant the costs of this appeal which we assess at 144. Os. 3d. We direct that the appellant’s costs in the Court below shall be taxed and paid by the respondent. Court below to carry out.

FURTHER ORDER BY COURT.


Any rent paid into Court by the appellant in pursuance of the Order of the Court below is to be paid out to the appellant.

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