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HOME               REVIEW OF GHANA LAW 1980

 

CONVEYANCER'S CONFUSION [1980] VOL. XII RGL 53—66

Aidoo E.S.

 

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 now repealed, though to a lesser extent) is to find or determine the policy reason before or behind the enactment.1 Section 3 (1) of Act 311 clearly provides, "There shall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 It repealed, by its section 54, the Stamps Ordinance, Cap. 168 as frequently amended.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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