THERE will be no great advantage
in stating at the beginning what
this article is intended to be
about. We shall simply hop in
medias res and hope that we step
somewhere on terra firma that will
enable us to jump outside. Our
abashment was caused by the Stamp
Act, 1965 (Act 311), the Land
Registry Act, 1962 (Act 122) and
the Conveyancing Decree, 1973 (N.R.C.D.
175), working together—and
sometimes not working at all.
THE COMMISSIONER OF INCOME TAX'S
OFFICE
Please do not think there is an
error in this heading. The officer
actually in charge of assessments
to stamp duty in this country is
the Commissioner of Income Tax.
Section 1 of Act 311 provides,
"All duties chargeable whether
under this Act or any other
enactment as stamp duties shall be
under the care and management of
the Central Revenue Department...
" That duty has been placed on the
heads of several government
departments—we mean, in the hands
of those "heads." Many years ago
it used to be the
Accountant-General. Then the Chief
Lands Officer (or was it the Chief
Registrar of Lands?) assumed that
jurisdiction. And now it has moved
on (presumably this time as a
"responsibility") to the
Commissioner of Income Tax. There
may be a good reason for it as—you
will see if you endure to the end.
But, just in case you are thinking
of a reason properly so-called,
let me hasten to add that the hope
is that at the end you will be
able to explain the changes to
yourself.
The big problem about the Stamp
Act, 1965 and (the Stamp
Ordinance, Cap. 168 (1951 Rev.)
now repealed, though to a lesser
extent) is to find or determine
the policy reason before or behind
the enactment.1 Section 3 (1) of
Act 311 clearly provides, "There
shall continue to be charged stamp
duties for the use of the
Government upon the instruments
specified in the First Schedule to
this Act." What is not at all
clear is the rational basis for
any particular amount fixed and
specified in the said schedule. No
one alive now knows that—and, may
be, very few have carefully
thought about that. Or are we
asking for too much ?
We may demonstrate that by
reference to the drafting of the
Stamp Act. It repealed, by its
section 54, the Stamps Ordinance,
Cap. 168 as frequently amended. As
at that time. (i.e. October 1965)
Ghanaians were using a cedi which
had been valued at £G1 to ¢2.40.
The cedi itself had been
introduced as a currency only a
few months before. All our
statutes therefore had expressed
sums therein in Ghana pounds which
most of us thought were at par
with sterling. So an ad valorem
stamp duty on a conveyance in the
schedule to the statute in force
would read:
"CONVEYANCE OR TRANSFER on sale of
any property. For every £G25, and
also for every fractional part of
£G25 of the amount or value of the
consideration for the sale
.. .. .. .. ..
.. .. .. ..
10s."
Another ad valorem duty would read
like this:
"AWARD
(1) Where the amount or value of
the matter in dispute does not
exceed £G100 for every £G25 or
fractional part of £G25 thereof
.. .. .. .. ..
.. .. .. ..
.. .. .. .. ..
.. .. .. ..
(2) Where the amount or value
exceeds £G100 .. ..
.. .. .. .. ..
.. .. .. ..
..
5s.
£G1 5s."
A
fixed duty would read like this:
"POWER OF ATTORNEY or other
instrument in the nature thereof
.. .. .. .. ..
.. .. .. ..
1s."
Certain events later happened in
Ghana (not relevant for our
purposes). Then in 1967 our
government decided that the value
of the cedi in relation to the
British sterling should be
changed. This was not the
devaluation. It was simply that
N¢2 was the new written equivalent
of £G1. The Stamp Act of 1965 had
meanwhile re-expressed the duties
in the examples above as:
"CONVEYANCE OR TRANSFER on sale of
any property. For every ¢60.00,
and also for every fractional part
of ¢60.00 of the amount or value
of the consideration for the
sale .. .. ..
.. .. .. ..
.. .. ¢ P
120"
"AWARD
(1) Where the amount or value of
the matter in dispute does not
exceed ¢240.00, for every ¢60.00
or fractional part of ¢60.00
thereof .. .. ..
.. .. .. ..
.. .. .. ..
.. .. .. ..
(2) Where the amount or value
exceeds ¢240.00 .. ..
.. .. .. .. ..
.. .. .. ..
"POWER OF ATTORNEY or other
instrument in the nature thereof
.. .. .. .. ..
.. ..
0.60
3.00
2.40"
It will be seen that the amounts
of duties specified were the
equivalents of £G-. 10.-, £G- 5.-,
and £G1. 5.- and £G1 respectively.
Yet when in 1975 the government
first passed a major amending
Decree on stamp duties thereafter
the opportunity was not taken to
restate these in simpler
proportions (e.g. ¢1.00, .50 and
¢2.50 and ¢2.00 respectively) but
rather the appearance was
maintained of the old cedi: see
the Stamp Act (Amendment) Decree,
1975, (N.R.C.D. 355). The actual
statements of these duties were
¢2.40, ¢1.20 and ¢6.00 and ¢5.00
respectively. This meant that (as
in almost all other cases) the
amounts of duties payable had been
surreptitiously increased—which
had not generally happened under
Act 311 of 1965. It is, of course,
likely that the increases were
also intentional. But, if so, may
one properly comment on the
forgetfulness of the draftsmen
that made them unable to remember
the changes that had taken place
with regard to the cedi or the
callousness of the government that
instructed the draftsmen? Our fear
is, naturally, that one of these
days the legislature will confront
us with truly Ghanaian
increases—and these will all be
one hundred per centum or more in
each case!
Meanwhile the poor conveyancer who
is investigating a title has to
determine accurately whether each
document has been adequately
stamped.2 But why must this be
increased by the playing around
with statements of the cedi—which
one, old or new, and by concealing
increases in fractions and
decimals? Which reminds one of how
hopeless a search is for guidance
from the courts. According to Act
311, s.
"14. (1) Where any instrument
chargeable with any duty is
produced as evidence in any court
in a civil matter, or before any
arbitration or referee, the judge,
arbitrator or referee, as the case
may be, shall take notice of any
omission or insufficiency of the
stamp on the instruments."
But in the experience of this
writer the officials mentioned
almost always take notice only of
" any omission ... of stamp " on
such documents. Insufficiency is
left to the revenue authorities,
and the results (in cases where
duties are ad valorem) are rarely
satisfactory, especially where the
rates have changed and may be the
stamp office have not got a copy
of the statute in force at the
time the document should have been
stamped—and everyone who has been
through this drill knows how
frequently that occurs in Ghana.
If the duty payer complains, which
he will do if he is knowledgeable,
since he will be assessed at the
latest and higher rate, well,
there is a relevant statutory
provision, Act 311, s. 13 (1)
which provides:
"13. (1) Any person who is
dissatisfied with the assessment
of the Commissioner, may within a
month after the date of
assessment, and on payment of duty
in conformity therewith, appeal
against the assessment to the High
court."
Those who have been in the Boy
Scouts Movement are already aware
of the obey before you complain
rule. For the holder of the
document under assessment, the
irritation is in having the
hearing of his case suspended
while he goes through this appeal
to the High Court which may well
take two years in an average case.
The government always wins—not
necessarily the appeal (of which
there has not been any for at
least two generations) but in the
whole matter of whether a certain
amount is to be paid at all.
As indicated above, it is a waste
of time to ask why. There is no
way of getting the courts to
decide some of these questions
expeditiously. For if an advocate
here should follow the English
rules of professional conduct (as
this writer thinks) then it is not
proper for him to join in any
discussion of inadequacy of stamp
duty payable on the document in
question: see W. W. Boulton,
Conduct and Etiquette at the Bar,3
where we read this:
". . . save in revenue cases, it
is unprofessional that a counsel
should object to the admissibility
of any document upon the ground
that it is not, or is not
sufficiently stamped unless such
defect goes to the validity of the
document; and counsel should not
take part in any discussion that
may arise in support of an
objection on such a ground unless
invited to do so by the Court."
He there refers to several Annual
Statements of the General Council
of the Bar from 1919 to 1956. And
the conveyancer has no guidance at
all for the future on such
matters, because the officers who
do the assessment on behalf of the
Commissioner of Income Tax are not
lawyers and have no patience to
listen to arguments on the exact
meanings of any of the provisions
of the Act.
Anybody who imagines that the
absence of any meaningful body of
laws on stamp duties in Ghana is
made up for by reference to the
law in England should look at the
local situation more carefully and
ask himself quite frankly whether
all the most elementary rules of
English law in this area are
likely to be of much assistance in
Ghana. Here are some examples. The
word "instrument" is used in
practically every important
section of the Act. But you try to
find what it is intended to mean
and record how long that takes.
Also, try quoting the famous
dictum of Rawlatt J., "You do not
stamp transactions; you stamp
documents" in Martin v. I.R.C4 to
any of the officers concerned with
assessments. Next, attempt an
argument in the stamp office on
the rule that a document or
instrument is stamped according to
its legal effect, that is, its
real and true meaning, which may
differ from its outward form: see
Martin v. I.R.C.5 and Eastern
National Omnibus Co. v. I.R.C.6 It
is also interesting to refer to
section 6 of Act 311 which
provides generally that
instruments are to be charged
separately with duty and apply
what is called the "leading and
principal object" rule, namely,
that the stamp, or exemption from
stamp, as to the leading and
principal object of a document
covers everything merely accessory
to that object.7 Finally, one may
refer to section 3 of Act 311 and
wonder just how to persuade the
tax officers that where a
transaction has taken place which
is wholly oral (e.g. a customary
sale of land in Odoben in the
Central Region) and the terms are
later embodied in a written
memorandum (e.g. for record
purposes only and not a "deed of
gift," so-called) that should not
bear the same stamp duty as an
instrument of gift effecting the
transaction would have done (apart
of course from a memorandum of an
agreement which is expressly
mentioned in the Act.)8
The writer's wish here is simply
that strict interpretation rules
should be openly applied, in all
directions, so that practitioners
may have some certainty to guide
them. One remembers the dictum of
Taunton J. in Morley v. Hall,9
"The law upon the subject of
stamps is altogether a matter
positivi juris. It involves
nothing of principle or reason but
depends altogether upon the
language of the legislature." And
the modern approach in many
countries that has made it almost
fashionable to describe stamp duty
as an optional tax.
THE LAND REGISTRY
The provisions of the Stamp Act,
1965, direct one's attention to
this well-known office. Section
17, for example, states:
"17. No instrument shall be
registered in the registry of
instruments affecting land unless—
(a) it has been duly stamped; or
(b) it has been stamped under
section 12 of this Act with a
particular stamp denoting that it
is not chargeable with duty."
And, as everyone knows, the
statute under which officials in
that registry work is the Land
Registry Act, 1962 (Act 122). This
Act is, outside crimes, the one
most frequently referred to by the
superior courts. Our Act 122 does
not deal with registration of land
at all—except indirectly, and
especially in Kumasi. It only
continued a system of registration
of deeds which had been in
existence here since 1883.10
Primarily this system allows for
the instruments submitted to be
recorded as such, and not with
special reference to the lands
they purport to affect. Of course
the instrument should mention some
land which may then be plotted in
the Lands Department; but no one
need imagine that title to that
land is thereby registered. One of
the greatest disadvantages of the
sort of system we have as compared
with that of registration of title
is the complete absence of any
statutory warranty of title. In
the case of registration of title
the registration of each
successive owner is generally made
a bar to adverse claims. The
essence is that after the date of
first registration it is neither
necessary nor permissible to go
behind the impenetrable curtain of
the register—indeed a registrar
under that system normally has
powers of destroying earlier title
deeds when registering an owner's
title as absolute. But
registration such as we have does
not enable a purchaser to get a
good title merely by succeeding
his vendor on the register—indeed
he never "succeeds" him at all; he
rather gets himself added to those
who have some interests in that
land or part thereof; and of
course it does not save him the
necessity for investigation of
prior title(s). There are
facilities for making searches
against particular parcels of
land; but as the registrar does
not have adequate powers to reject
conflicting applications this does
not really help much.11
What then is the effect of the
conveyancer's product after it has
been registered under Act 122?
Before 2 November 1962,
registration only conferred
priority on instruments—that is,
assuming that two instruments
affecting the same piece of land
are both valid and purport to do
much the same thing then (apart
from the question of registration)
the first to be registered had
priority. So the date of
registration mattered much; and
Cap. 133 contained provisions on
the exact date for this purpose.
The Ordinance did nothing much
more.
After 1 November 1962, under the
Land Registry Act, 1962 (Act
122),12 registration does that and
also affects the validity of the
instrument; for section 24 of Act
122 provides:
"24. (1) Subject to subsection (2)
of this section, an instrument
other than,
(a) a will, or
(b) a judge's certificate,
first executed after the
commencement of this Act shall be
of no effect until it is
registered.
(2) Nothing in this Act shall
operate to prevent any instrument
which, by virtue of any enactment,
takes effect from a particular
date from so taking effect."
And under section 36 an
"instrument" is defined as "any
writing affecting land situate in
Ghana, including a judge's
certificate and a memorandum of
deposit of title deeds."
Parliament by this Act seem to
have intended that the instrument
should be in a quasi-valid stage
until registration: that is, it is
neither void nor valid, but that
such registration is then
required, in the absence of any
other invalidating factor, to make
it completely valid. Is it
surprising then that the courts
have had so much trouble in trying
to tell practitioners (not to
mention the man inside the
Mamprobi tro-tro bus) just what
the effect of such documents
really is? We need not discuss the
question of priorities, as that
need not directly worry the
conveyancer at the drafting
stage—a later article will look at
that. Our aim here is not to deal
in depth with section 24. We are
concerned only with the practical
outworkings in a limited area.
Those who want to think more about
it may look at what is now the
locus classicus namely, Asare v.
Brobbey13 and Ashanti Construction
Corporation v. Bossman14 It is
enough for the present to state
simply that, as under the old law,
registration, generally, is actual
notice of the instrument and of
the fact of registration to the
whole world and for all purposes
as from the date of registration:
see section 25 of Act 122.
What many conveyancers find
unsatisfactory is this: In
accordance with the provisions
quoted above the courts have held
(in the respectful view of the
present writer, quite correctly)
that every document relating to
every piece or parcel of land in
Ghana should be registered if it
is to have any of the usually
recognised effects intended by the
person who drafted it.15 This
means that letters, even private
and personal letters, which refer
to land cannot be produced in
court as evidence of anything that
has either happened to or is
intended to happen to that land if
a dispute arises on the land,
unless and until they have been
duly registered in the Ghana Land
Registry. Those who, in the
absence of proper conveyances on
their land, duly registered, look
forward to reliance on the
equitable doctrine of specific
performance16 had better look
sideways to the licensed surveyor
immediately.
Let us explain. It is not a simple
question of rushing to the Central
Revenue Department (i.e. the Stamp
Commissioner's office) with those
letters, getting an adjudicating
rubber stamp impressed on them to
the effect that they are not
liable to stamp duty (i.e. under
section 12 of Act
311—incidentally, it is then
likely to be that it is liable to
some inflated duty!), and/or
persuading the officials to put a
denoting stamp on the letters
certifying "under the hand of the
Commissioner and his seal" that
the duty payable on them "depends
in any manner upon duty paid upon
another instrument" which has or
had been duly paid (i.e. under
section 11 of Act 311 in
appropriate circumstances), taking
the letters to the Lands
Department for plotting (after
paying the regular plotting fee
and, if that has not up to now
been paid, presentation fee),
paying the stamp duty demanded,
getting the real "stamp" (still
showing "£.s. d." on the discs as
in colonial times, though made
later) put on the letters and then
taking them to the Land Registry
(together with the presenter's
income tax clearance certificate,
which is absolutely essential but
occasionally demanded after the
presenter has paid the
registration fee) for due
registration which means that the
presenter or applicant should make
an exact copy of each letter
desired to be registered, swear to
the appropriate oath if not
already done and then leave it for
the registrar to file the
duplicate or copy submitted on the
register and hand over the
original to the presenter or
depositor. Well, we meant it is
not that simple.
A
usual problem with such "informal"
documents presented for
registration arises in connection
with the description of the land
affected. One has to remember the
common law (Ghana) rule that for
an instrument or memorandum to be
sufficient for purposes of
evidencing even a contract
relating to land it must have a
description that is sufficient to
identify it.17 For purposes of
actions for specific performance
and its like the courts managed
quite well until Act 122 came
along. Since November 1962, to be
able to use any such document it
has to be registered. And to be
able to register an instrument the
applicant must satisfy the
registrar that the land has been
adequately described in the
instrument.18 It appears that he
the registrar, has been given (cf.
section 16) a power virtually to
insist on a description by
reference to a map (or "site plan"
as most people prefer to call it).
Such a map should, if it is to be
fully acceptable, must be prepared
by a licensed surveyor or his
like, for section 6 (1), (2) and
(3) of the Survey Act, 1962 (Act
127), provides:
"6. (1) No person other than an
official surveyor, licensed
surveyor, or any public officer
making or preparing any plan in
the course of his duties as such
shall survey any land for the
purpose of preparing any plan for
attachment to any instrument of
conveyance, leases, assignment,
charge, or transfer.
(2) No person other than an
official surveyor or a licensed
surveyor shall certify any plan.
(3) Any person contravening the
provisions of this section shall
be liable to a fine not exceeding
one hundred pounds or to
imprisonment for a term not
exceeding six months."
So one comes to a situation where
an old widow writes a letter to a
wealthy man offering her house for
sale because she needs the money.
The rich man writes back to accept
the offer. It is to be noted that
this acceptance is of course
subject to stamp duty, even if it
had been made orally, for it
concludes the agreement: see
Hegarty v. Milne.19 But, he adds,
he cannot pay the price demanded
(he is careful not to mention the
amount in his reply). However, he
makes some payments (on account of
purchase price) which happens to
be a little more than the widow
needs for the time being. After a
year or two the widow's daughter
sees the rich man's letter; she
consults a lawyer because she does
want to sell the house and move
into a smaller house in another
area if she can find one. Can the
said widow (or her daughter)
compel the rich man to complete
the sale at the original price now
that the area is no longer
fashionable? One could easily
prove the contract if those two
letters could be admitted and
given effect to. But can they? Or
has one now to start blaming the
widow for not describing the land
and house precisely in her letter
so that it can be stamped late (if
that is permitted) and presented
for registration (since that is
allowed)? It's not much use a
practitioner writing a nice letter
to the rich man (who may by this
time be in changed circumstances)
quoting Malachi 3:5 (? or may be
Deuteronomy 10:18). For such
people prefer to forget about the
Bible. So the widow or the orphan
has to forgo her rights at law and
in equity. But there is a bright
side: Should the knowledgeable
conveyancer not rejoice in the
thought that "the reasonable man"
will in due course be directed by
the courts to consult him whenever
he (the reasonable man or woman)
is minded to write a letter
relating to land? There will never
be enough lawyers in Ghana then!
Before we leave the Land Registry,
one intriguing question need be
answered. What may a conveyancer
do when after he has drafted an
instrument and had it stamped and
presented for registration the
registrar demands to see the
certificate of incorporation of
one of the parties thereto ?
Arguments about powers under Act
122 are not much use. Litigation
(even a mere application for
mandamus) will waste time. Has
anyone considered all the
advantages in having certificates
of incorporation framed
(preferably with good glass on)
and hung on the office wall in
such a way that they can easily be
taken down at need?
A
DECREE TO THE RESCUE
Conveyancers were getting a little
uneasy about always having to
refer to the law of England. The
good texts in that country have a
habit of being "brought up to
date." The "useful material" is
left out as if reforms and repeals
in England were effected with us
in mind. So in 1973 we passed our
own Conveyancing Decree.20 One has
to say "our own" not because there
was much in it that we (i.e. our
judges) created for this land but
because we selected the rules we
liked, put them together (and
purported to discard many in the
process) for our use in this
country alone. (This is how the
Memorandum to the Decree begins):
"For transactions relating to land
such as buying, selling and
leasing, a need exists to develop
methods and machinery which are
reliable, simple, cheap, speedy
and suited to the present-day
needs of our country. One much
needed step in this direction is
to bring up to date the law
relating to conveyancing, and to
simplify conveyancing forms. Such
a step will free conveyancing
practice in Ghana from dependence
on English law and from the need
to look for this law in many
different enactments. . .
The Decree . . . brings together
in modern form the scattered law
relating to conveyancing, with
many simplifications and
improvements. . . "
The old English Statute of Frauds,
s. 4, was, under section 2 of
N.R.C.D. 175 given a new form that
is clearer—and we all agree that
all the old laws of interpretation
and construction continue to
apply. Even the other rules of
equity (including new ones being
created by such common law judges
as Lord Denning M.R. in England)
were allowed for. So all is plain
sailing—until one gets to section
18:
"18. The court shall have power to
set aside or modify an agreement
to convey or a conveyance of an
interest in land on the ground of
unconscionability where it is
satisfied after considering all
the circumstances, including the
bargaining conduct of the parties,
their relative bargaining
positions, the value to each party
of the agreement reached, and
evidence as to the commercial
setting, purpose and effect of
their agreement, that the
transaction is unconscionable."
What does "unconscionability" mean
here? The courts will tell us in
due course. But the Decree has
been in force for eight years; and
they have not spoken to that. The
conveyancer waits, and meanwhile
continues to draft (and charge
for) conveyances some of which may
later be set aside for reasons no
one knows now. Why did not the
legislators provide some examples
like those in the Criminal Code,
1960 (Act 29), or even the Rent
Act, 1963 (Act 220)?
Consider this. A client has a
house which is mortgaged to a
commercial bank. He does not want
to go and live in it but wants to
get a higher rent for it; and the
tenant cannot afford that and
(purely for that reason) has
referred the matter to the Rent
Office and is obviously determined
to exploit the Rent Act, 1963 to
gain time. The lawyer suggests
that his client should persuade
the mortgagee bank to exercise
their power of possession because
the letting, which commenced after
the creation of his mortgage, was
without the bank's consent: and
the bank is almost certainly not
bound by it. The bank refuses to
"co-operate" in thus getting the
recalcitrant tenant out by that
means, especially since the
landlord is not in fact in arrear
with his payments under the
mortgage. Next the lawyer suggests
that the bank should transfer the
mortgage to this client's cousin.
That is done; and the cousin
exercises the power which the bank
refused to exercise. Assume that
the tenant's lawyer now advises
him to sue and a conveyancer has
to draft a tenancy agreement
letting the house to a company
that will pay as rent three times
what the former tenant was paying.
Should the conveyancer be worried
by the possibility that his
conveyance may be set aside as
"unconscionable" if the first
tenant should apply to the court
under section 18 ? And is there
any step he need advise or take to
avoid this possibility in the
document being drafted?
But we must not be detained unduly
by that alone. Did we say
something about plain sailing? Not
yet. We are sorry. For even before
section 18, in various sections of
the same Decree, more elements of
confusion are thrown in. For
example section 7 (1) of the
Decree provides, "An oral grant
made under customary law shall be
of no effect until it is recorded
under section 4. "This section 4
(together with section 5)
introduce a system of recording
oral customary grants in which the
registrars and magistrates of our
district courts were intended to
play an essential role. The
Memorandum to the Decree speaks
better:
"In response to the national need
for methods of transfer that are
reliable, simple, cheap, speedy
and suited to the circumstances of
our country, provision is made for
an imaginative development of the
registries of our court system to
handle the recording of customary
transfers of interests in land . .
."
The Chief Justice too was to make
"regulations providing generally
for the administration of the
scheme for recording customary
transfers." Those regulations
have not yet been published; and
the registrars and district
magistrates aforesaid do not
always seem to be aware that
anybody expects them to register
anything. One cannot then blame
the illiterate landowners in the
rural areas for not knowing that
their customary oral transfers
which before 1974 were valid have
after the 31 December 1973, been
reduced to the status of being
under section 7 (1) of "no effect
until it is recorded. . . " Here
are a few of the questions which
require clear answers:
(1) Can anyone tell a customary
grantee or grantor or the legal
adviser of both which district
court in Ghana keeps copies of
"the form contained in the First
Schedule . . . " which he is
supposed (nay, enjoined) to use
under section 4?
(2) Are those forms, when duly
completed by the parties to the
transaction, liable to stamp duty
? And under which provision?
(3) Since those forms are
instruments affecting land, i.e.
after due completion, must they be
registered under the Land Registry
Act, 1962?
(4) What amounts to "an adequate
plan of the land to which the
transfer relates" under section
4(2) of N.R.C.D. 175?
(5) And if such a plan is not
available (as envisaged in section
4 (2)) has the registrar and the
district magistrate between them
the power to refuse to effect the
prescribed recording—and so keep
the transaction at the level of
not having any effect?
This Decree, of course, aims at
"preserving the customary mode of
transfer," and section 7 is
intended to provide " a
significant incentive to record,"
as the memorandum shows. But,
caveat conveyancer!
What, again, is the practical
effect of section 40 (1). It says,
"Every conveyance shall be
executed in the presence of and
attested by at least one witness."
But one is not sure whether
failure to comply with this
directive has the same consequence
as the comparable provision for
wills.21
It will be interesting to see what
the court makes of the conveyance
which was signed by the busy
chairman of a company (when alone
in a corner of the V.I.P. Lounge
at the Kotoka International
Airport) and sent to his
conveyancer/solicitor with the
instruction that he should ask
the said chairman's secretary to
come as soon as she can and
witness it because she knows his
signature well.
But the "rules for conveyancers"
in section 42 of the Decree are
also interesting. "Clear modern
English" is naturally
recommended. Simple directives
are given on how properly to state
dates, names of parties, money and
the like. Then follow subsections
(4) and (5):
"(4) Every conveyance shall be
made upon durable paper.
(5) Failure to observe any of the
foregoing provisions of this
section shall not invalidate any
conveyance or provision of a
conveyance."
Welcome provisions, these! One is
reminded of what Henry G. Felsen,
the American humorist, is reported
to have pointed out long ago,
"Proper treatment will cure a cold
in seven days, but left to itself
a cold will hang on for a week."22
Nevertheless, the practitioner
may well think about whether if
he draws up a conveyance on paper
that is not durable and his
client ruins it (innocently
pushing it often into her
hand-bag) he may not one day be
held liable in negligence for
failing to use "durable paper."
(Breach of statutory duty, too!)
May be on that occasion a
sympathetic judge (not necessarily
one who remembers how many times
he himself failed on this in
practice) may accept as
satisfactory explanation that "in
these days Ghana is hard and paper
is short." There is of course a
means of ensuring a regular supply
of "durable paper" in one's
office; but may the conveyancer
pass on the cost to those who
benefit, i.e. at the "proper
rate?"
A
look back at even the excellent
simplification of "the law
relating to production and control
of documents of title" in section
35 of the Decree will remind the
conveyancer of the need to apply
his mind in particular to the
usual problems in connection with
acknowledgement and undertaking
clauses.
CONCLUSION
Legal practitioners in the field
of conveyancing have always
wanted the law to be certain.
Even judges, on their behalf,
recognise this—sometimes: see, for
example, how Lord Denning M.R.,
concluded his judgment in Hagee
(London) Ltd. v. A. B. Erikson and
Larson23.
"No doubt the lawyers advising
these parties were aware of the
decision of Cooke J. in Manfield &
Sons Ltd. v. Botchin and framed
the agreement on the faith of it.
In conveyancing matters, once the
courts have given a decision on
which parties have acted, the
decision should be upheld unless
there are very strong reasons to
the contrary."
This is not always possible of
attainment. And so in the grey
areas they can only be guided by
what is good professional conduct
and etiquette. In the Ghanaian
circumstances every practitioner
should decide whether it is wrong
to advise a client not to stamp a
document at all until there is
litigation in which it may be
used. Also, a client may be
assisted by advice not to enter
into a written agreement for a
tenancy of more than say one year.
That saves stamp duty. It also
saves him the obligation to
register his document immediately.
For, if need be, he can prove the
tenancy without reference to the
document.24
And if all these seem to confuse
you more than you want, then take
consolation in this from Artemis
Ward25, "It ain't so much the
things we don't know that get us
in trouble. It's the things we
know that ain't so." As far as
possible, that is. We cannot stop
until we get to the will and the
documents by which it is given
effect. It has been known for a
long time that a will, that is, "a
testament is of force (only) after
men are dead: otherwise it is of
no strength at all while the
testator liveth."26 In the R.S.V.
it reads simply, "For a will takes
effect only at death, since it is
not in force as long as the one
who made it is alive." Suppose now
that the testator has come to his
end, his will has been proved and
his house has been taken over by
the beneficiary intended. If a
conveyancer should, by a slip,
draw up an assent and have it
"signed, sealed and delivered"
will it be improper for him to
advise the beneficiary not to go
and pay the ¢10 imposed on a "deed
of any kind whatsoever not
described in this schedule?" (See
the Schedule to the Stamp Act
(Amendment) Decree, 1975 (N.R.C.D.
355), which was made after several
other Decrees had done away with
the need for seals on conveyances
of all kinds!) For the present,
enough.
FOOTNOTES
*
G.M., B.A., LL. B., Barrister and
Solicitor of the Supreme Court of
Ghana.
1. The writer shall in a
subsequent article deal with
particular provisions and argue
that the justification is simply
to collect revenue for the
government without the government
doing anything in return for the
holder of the instrument.
2. It is to be noted that the
examination of abstracts of title
for our purposes, is in any case
"a bit of a nightmare": see the
preface to Monroe, J. G., The Law
of Stamp Duties, p. vi.
3. 4th ed., p. 69.
4. (1930) 15 A.T.C. 631; cf. "the
thing which is made liable to the
duty is an `instrument'," per Lord
Esher M.R. in I.R.C. v. Angus
(1889) 23 Q.B.D. 579 at p. 589.
5. Above.
6. [1939] 1 K.B. 161.
7. Cf. Yates v. Evans (1892) 61
L.J.Q.B. 446.
8. Cf. International Power Co. v.
I.R.C. (1933) 12 A.T.C. 413 at p.
422 and our Act 311 through the
schedule.
9. (1834) 2 Dowl. 494 at p. 497.
10. See the Registration
Ordinance, 1883 (No. 12 of 1883)
as re-enacted in the Land
Registration Ordinance, Cap. 133
(1951) Rev.).
11. One must admit that our
registrars do well. Often they do
assume these powers, though no
statute has ever given it. For
section 20 which states some such
power has in fact never been
brought into effect: The Land
Registry Act (Commencement)
Instrument 1965 (L.I. 450), did
bring Part lV of Act 122 into
force on 1 May 1965; but it
clearly excepted section 20 (a)
and (b).
12. The Act was brought into
effect by the Land Registry Act,
1962 (Commencement) Instrument,
1962 (L.I. 234), on 2 November
1962.
13. [1971] 2 G.L.R. 331, C.A., a
case that was discussed in a note
at (1972) 4 R.G.L. 231; cf. (1966)
3 U.G.L.J. 27.
14. [1962] 1 G.L.R. 435, S.C. see
also Woodman, G.R., "The
Registration of Instruments
affecting land" (1975) 7 R.G.L. 46
et seq.
15. Cf. Adu-Sarkodie v. Karam &
Sons Ltd. [1975] 1 G.L.R. 411 and
Djan v. Owoo [1976] 2 G.L.R. 401.
16. Consider the practical effects
of Sbaiti v. Samarasinghe [1976] 2
G.L.R. 361 and Ahumah v. Akorli
(No. 2) [1975] 1 G.L.R. 473.
17. Cf. Ogilvie v. Foljambe (1817)
3 Mer. 53; Auerbach v. Nelson
[1919] 2 Ch. 383 and Djan v. Owoo
[1976] 2 G.L.R. 401.
18. Cf. Act 122, s. 4 which
provides: "No instrument . . .
shall be registered unless it
contains a description (which may
be by reference to a plan) which,
in the opinion of the registrar,
is sufficient to enable the . . .
land to which it relates to be
identified . . ."
19. (1854) 14 C.B. 627.
20. N.R.C.D. 175.
21. Cf. Wills Act, 1971 (Act 360),
s. 2 (1), (3) and (5).
22. See Darrell Huff's How to lie
with Statistics, p. 10.
23. [1975] 3 W.L.R. 272 at p. 276.
24. Cf.N.R.C.D. 175, ss. 3 and 7
and Act 220, s. 17.
25. Ibid. note. 22 above.
26. Hebrews 9: 17 (A.V.).
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