Claim for Declaration of Title to Land advertised to be sold under a Deed of Mortgage, such land having been conveyed by the Court. Government subject to a proviso of non-alienation save by permission of the Government.

Held: Such proviso in a grant by the Crown is legal, and permission to mortgage not having been obtained the trial Judge was correct in declaring the land was the property of the grantees and could not be sold.

The facts of the case are fully set out in the case stated by Gray, J., which was:-

"1. A writ of summons was issued out of this Court by the Legal Adviser of the Gambia, Musa M'Boob, Momodu M'Boob and certain other persons therein referred to (hereinafter called the plaintiffs) against Establissements Maurel et Prom (hereinafter called the Firm) to answer a claim that the property situate at 50, Dobson Street, Bathurst (herein­after called the property) advertised to be sold by the defendants under a mortgage executed under a decree of this Court should b~ declared and adjudged to be the property of Momodu M'Boob and others the plaintiffs therein referred to, and delivered to them accordingly.

2. The plaintiffs other than the Legal Adviser are hereinafter referred to all the beneficiaries.

3. CASE.

Upon the hearing of the case the following facts were admitted:

" (a) In 1927 one N' Jie Cumba Samba applied to the Colonial Secretary of the Gambia for a grant of the property to be made out in the name of the beneficiaries.

(b) It was subsequently agreed that the grant should be made out in the name of Musa M'B,.oob, who should hold the land as trustee for himself and the other beneficiaries.

(c) By a conveyance dated the 14th March, 1928, in consideration of the payment of the sum of £8 the Governor of the Gambia conveyed to Musa M'Boob the property "to hold the premises unto and to the use of the purchaser in fee simple subject to the conditions hereinafter set forth and the purchaser for himself, his heirs and assigns hereby covenants with the vendor that the purchaser and the person deriving tiU(· under him will observe and perform the conditions following." The seventh of those covenants reads is follows:-

 

"7. Will not sub-divide or conveyor assign the said premises or any part thereof without on each occasion first obtaining the consent in writing of the vendor."

'),he conveyance also contained the following proviso:

"Provided that if default shall be made by the purchaser his heirs or assigns in respect of the premises hereinbefore l'ontaincd or any of them it shall be lawful for His Majesty, his heirs and successors, and for the v~ndor (or ImY person duly authorised by him) in the name of His Majesty, his heirs and successors to ent<,r into and upon the land hereby granted or any part thereof and to possess and hold the same as the old and former estate of His Majesty."

(d) On October 17, 1933, Musa M'Boob executed an equitable mortgage of the property in favour of the firm.

(e) In 1936 the firm commenced proceedings in this Court against Musa M'Boob to recover a certain" sum of money due. On June 11, 1936, judgment was given by consent against Musa M'Boob in favour of the' firm for £116 5s. 0d. One of the terms of the judgment was that there should be a stay of execution for fourteen days "during which time the defendant to execute a legal mortgage of 50, Dobson Street, Bathurst (in respect of which he has already executed an equitable mortgage), in favour of the plaintiffs to secure payment of the debt within a year."

(I) Neither the Legal Adviser nor any of the beneficiaries (other than Musa M'Boob) were parties to the proceedings referred to in sub­paragraph (e).

(g) On July 1, 1936, Musa M'Boob executed a legal mortgage of the property in favour of the firm. The mortgage witnessed that, in pursuance of the premises and in consideration of the sum of £116 5s. 0d. then owing by the borrower "the borrower as beneficial owner hereby grants unto the lenders" the property "to hold the same unto and to the use, of the lenders in fee simple subject to the proviso for redemption hereinafter contained.'''

(h) The consent of the Governor of the Gambia was not obtained to the execution of the legal mortgage ...

(i) On July 25, 1936, the Officer-in-Charge of the Land and Survey Department wrote to the firm and to Musa M'Boob stating (inter alia) that the grant of March 14, 1928, had been forfeited by reason of the fact that the necessary permission to assign had not been obtained and questing the return of the said grant for cancellation. A further letter to the  same effect was written by the same officer to the firm on September 28, 1936. In their replies of August 17 and October, 1936, the firm declined to admit that they had incurred a forfeiture and refused to surrender the grant for cancellation.

(1) The duplicate of the grant of March 14, 1928, was cancelled by the Acting Governor of the Gambia on October 5, 1936 ..

(k) On October 7, 1936, the Land Officer wrote to the firm informing them " that this grant has been cancelled owing to a breach of Covenant No.7 and your mortgage is not recognised by the Government."

(I) On November 16, 1936, the Governor of the Gambia granted the property to the beneficiaries " jointly in fee simple upon the conditions hereinafter set forth." This grant contained ipsissimis ver/xis" the same covenant and proviso for re-entry as are set out in sub-paragraph (c) hereof.

(m) The firm subsequently advertised the property for sale in purported exercise of their statutory powers as mortgagees. The plaintiffs thereupon issued the writ referred to in paragraph 1 hereof.

4. At the hearing it was contended upon the part of the plaintiffs that the legal mortgage of July 1, 1936, was void" and that the property had been forfeited by reason of the failure of the parties thereto to obtain written permission to assign, as required by the covenant referred to in paragraph 3 (c) hereof, and also by reason of the fact that such assignment amounted to a breach of the trust referred to in paragraph 3 (b) hereof.

5.     Upon the part of the firm it was contended that:-

(a) The covenant referred to in paragraph 3 (c) hereof was void as being repugnant to the fee simple.

(b) The Governor of the Gambia was not empowered to cancel the

grant of March 14, 1928.

(c) There had been no re-entry on the property by the Government.

(d) The firm were purchasers for value without notice of any trust. (e) In any event Musa M'Boob was bound by the order of the Court

referred to in paragraph 3 (e) hereof and his present interest in the property could be sold.

6. For the reason given in paragraph 7 hereof I gave no decision upon the question of purchase for value without notice. With regard to the other matters raised at the hearing my attention was directed to the following decisions:-

Be Dugdale (1888) 38 Ch. D. 176.

Be Machu (1882) 21 Ch. D. 838.

Gorbett v. Gorbett (1888) 60 L. T. 74

 Dann v. Dolman 5 Times Heps. 641.

Doe v. Powell 5 B. and C. 308.

OPINION.

7. In my judgment, after setting out the facts, I expressed my opinion as follows:-

" I am disposed to agree that in English law, with certain exceptions, which do not appear to me to apply to the present case, any attempt to restrain the alienation of a fee simple is void as being repugnant to the fee simple. The law on the subject may be found concisely summed up in He Macleay (1875) 20 Eq. Cases ]80. But in the Gambia  have to consider the effect of the Public Lands (Grants and Dispositions) Ordinance, 1902. As section 2 of that Ordinance shows, "grants and dispositions" include " any grant in fee, whether simple or qualified, freehold, soccage or other like tenure." Section 3 empowers the Governor to make grants and dis­positions of public lands " in such manner and subject to such conditions as may" be required." Section 7 enacts that "lands and hereditaments 'forfeited, escheated or which have in any manner lapsed, reverted, or come into the hands of the Crown, whether by purchase, surrender, or any mode of acquisition whatsoever, or which shall at any time hereafter become forfeited or escheated, or lapse, revert or come into possession of the Crown, may be granted and disposed of as any other public lands."

I conceive that in England the statutory reason for the rule that a restraint on the alienation of a fee simple is void is to be found in sections 1 and 2 of Statute of Wills, 1540, which empower a tenant in soccage to dispose of his land •• as well by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his life ............. at his free will and pleasure." But that statute is only in

force subject to any existing Ordinances of the Colony which have not been repealed. (Supreme Court Ordinance, 1889, section 20 (i». Therefore in so far as any local Ordinance empowers the Governor to impose conditions upon grantees of Crown land in regard to alienation thereof and penalties for the breach of those conditions, the Statute of Wills must be treated as being modified to that extent. As I conceive, legislation of a nature similar to the Public Lands (Grants and Dispositions) Ordinance is the foundation for the judgment in the Australian case of A-G. v. Goulds-Borough (1889) 15 V.L.R. 638, of which a digest is given in note p. on page 666 of Volume 38 of the English and Empire Digest. It was held in that case that a colonial Governor has power in disposing of land to grant it in fee simple defensible in certain events and upon certain terms. The Public Lands (Grants and Dispositions) Ordinance clearly empowers the Governor to make a what the Ordinance describes as a qualified grant in fee, which may impose a restriction on alienation. In the circumstances the covenant against alienation in the original grant in this case is not void and the Government had the right to re-enter the land under the proviso for re-entry contained in that grant.

One point was not raised in the course of the argument, but none the less ought to be considered. The grant of 1928 is a grant of the "fee simple upon the conditions hereinafter set forth." In English law the meaning of "fee simple" is perfectly plain. It means an estate, which subject to certain exceptions, which apart from local legislation are not applicable to this case, is alienable at the absolute will of the grantee. In the circumstances are the words "fee simple" in this grant repugnant to what follows? And in the circumstances ought what follows to be rejected? I think the rule of interpretation to be applied is that mentioned by Sir John Romilly M.R. in Bush v. Watkin (1851) 14 Bea-v. 425 at p. 432.

             " One suggestion is ...... that in deeds containing two clauses

absolutely inconsistent with each other, the latter is to be

                  rejected ........... This is an expedient to which the Court

will very reluctantly in any case have recourse, and never unless absolutely compelled to do so, having exhausted every other means in its power to reconcile apparent inconsistencies."

Here the words "fee simple" are followed immediately by the words "upon the conditions hereinafter set forth." As mentioned, the Public Lands (Grants and Dispositions) Ordinance empowers the Governor to make a grant in fee, whether simple or qualified, in such manner and subject to such conditions as may be required. The intention of the parties has to be collected from the whole of the instrument. The context seems to me clearly to show that any apparent inconsistencies in this grant can be reconciled and that the intention of the parties was to create what the Ordinance calls a qualified grant in fee imposing a restraint on alienation by the grantee.

It was argued in this case that there had been no re-entry. I agree that there is a necessity for re-entry on forfeiture but I conceive that the rule in regard to re-entry of leaseholds applies equally to qualified grants in fee simple of this description. Re-entry upon leasehold premises is affected " by some unequivocal act indicating the intention of the lessor to avail himself of the option given to him, and notified to the lessee "-Jones 1). Carter, (1846) 15 M. & W, 718. In Baylis 1). Le Gros (1858) 144 R.R. 840 it was' held that the grant of the fresh lease to another tenant was sufficient to constitute an entry by the landlord so as to put an end to the lease.

In this case letters were sent to the firm by the Officer-in-Charge of the Land and Survey Department on July 25, and September 28, 1936, pointing out the breach of the covenant and requesting the return of the grant for the cancellation of the same. They were followed on October 7, 1936, by II. letter from the Land Officer notifying the firm that " this grant has been cancelled owing to a breach of Covenant No.7 and your mortgage is not recognised by the Government." These communications to the firm appear to me to be sufficiently unequivocal acts intimating to the firm the intention of the grantor to put an end to the grant. But, if more were needed, it is to be found in the subsequent grant of November 16, 1936, to the joint grantees. I am therefore satisfied that there has been a re-entry by the Government on these premises on forfeiture for breach of the covenant against assignment.

What I have already said disposes of the matters between the firm and the claimants to the property other than Musa M'Boob. Admittedly Musa M'Boob stands on a somewhat different footing inasmuch as he was II. party to the consent order, which was obtained in this Court on June 11, 1936. There is by reason of that order an estoppel by matter of record, which operates against him, but it is necessary to consider the nature and .extent of that estoppel. The judgment was for a sum due by Musa M'Boob to the firm. The order for him to execute a legal mortgage was merely ancillary to the main purpose of the judgment and was made to enable the judgment creditors to obtain the fruits of their judgment. Now, when a judgment creditor invokes the aid of the Court so as to obtain the fruits of his judgment out of the judgment debtor's property, the Court cannot do more than place him exactly in the shoes of the judgment debtor and cannot give the judgment creditor anything which the judgment debtor himself is not legally empowered to give Clegg 1). Bromley (1912) 3 K.B. 474. In this case what could the judgment debtor have given under the order of the Court? He could give an assignment by way of legal mortgage, but, If the Government, who were not a party to the order and therefore in no way bound by it, refused consent to the assignment, that assignment would be of no effect and not enforceable at law Weatherall v Geering (1806) 8 H.R. 369.

Supposing Musa M'Boob had refused to execute the mortgage and the aid of the Court had been invoked to compel him to do so, what, in the absence of the consent of the Governor, would have been the effect of an order compelling him to execute mortgage? The Court would by its act have extinguished the very subject matter of its own order. This is certainly not what the judgment creditors wanted and a Court will never order specific performance in cases in which specific performance would be valueless to the person seeking it. (Fry Specific Performance of Contracts (3rd Edition) pp. 42-44).

Musa M'Boob is now one of the many joint owners of the property under the second grant of November 16, 1936. It has been argued that the firm should at least be allowed to sell his share. I express no opinion as to what other remedies the firm may have against this share, but it is plain to me that they cannot be allowed to sell it under the mortgagee's statutory power of sale. Even assuming that the doctrine of estoppel allows me to treat the share in the property, which was granted to Musa M'Boob  by the grant of November 16, 1936, as comprised in the antecedent mortgage of July 1, 1936­an assumption which seems to me to be very far fetched-the Court ought not to allow the sale. The second grant of November 16, 1936, contains the same covenant against assignment and the same proviso for re-entry on breach thereof as the original grant of March 14, 1928. Therefore, if in the absence of the Governor's consent to the assignment, the Court were to allow the sale of  Musa M'Boob  share, it would, as already explained, by that order be extinguishing the very subject matter of that order. As further explained, that is an order which this Court ought not to make.

It follows from the foregoing that it is not necessary to consider the the question of purchase of trust property for value without notice. The property was forfeited for breach of the covenant against 3.ssignment without licence and the Government re-entered the property. The firm are therefore claiming to sell property over which they have no power of sale. The property is declared to be the property of the grantees named in the second grant of November 16, 1936, and therefore cannot be sold."

QUESTION.

8. The question upon which the opinion of the Court is desired is whether, upon the above statement of facts, I came to a correct determination and decision in point of law, and if not, the Court is respectfully requested to reverse or amend my determination, or to remit the matter to me with the opinion of the Court thereon.

DATED the 23rd day of February, 1938."

T. A. Taylor (for Sir S. Foster) for Appellants.

 S. d. Benka-Coker for, Respondents.

The following joint judgment was delivered:-

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

'fhis matter comes before this Court by way of case stated by the Judge of the Supreme Court of the Colony of the Gambia under section 4 of the Supreme Court Appeals Ordinance, 1929.

At the end of the case stated the learned Judge of the Gambia says: -" The question upon which the opinion of the Court is desired is whether, upon the above statement of facts, I came to a correct determination ann. decision in point of law, and if not, the Court is respectfully requested to reverse or amend my Establiss6­determination, or to remit the matter to me with the opinion of the Court thereon

   It is not necessary to set out the facts which led to the litigation as they are fully set out in the case stated. Establissement Maurel et Prom have been referred to herein as "the Firm." Momodu M'Boob and the other persons who are styled beneficiaries in the case stated are hereinafter referred to as claimants.

It has not been, and we do not think that it could have been successfully disputed that, had the conveyance of the 14th March, 1928, been between subject and subject, the proviso (N o. 7) against alienation would have been null and void as being a restraint on the alienation of a fee simple.

Counsel for the claimants has pointed out that all the cases cited by counsel for the firm on this point, were between subject and subject. He contended that those decisions had no bearing in this case, where the Crown was the grantor. He referred us to a passage in Halsbury 2nd Edition, p. 577 paragraph 731 which reads:-

" But in some instances grants by the Crown are valid which would have been invalid at common law' if> made by a subject. Thus, a grant by the Crown to the inhabitants of a Parish may be good, even though it would not have been effectual at common law it made by a subject and a grant in fee by the Crown may contain a condition against alienation."

the authority for the proposition contained in the last line quoted is the case of Fowler v. Fowler (1865) 16 I.C.R. 507. Unfortunately this Irish Report is not available. In Mews Digest Volume 5 Column 17 it is stated on the authority of that case that the Crown, by its prerogative, may annex a condition against alienation to a grant in fee.

The judgment in Fowler v. F01vler was referred to in argument by counsel in the Privy' Council in the case of Cooper v. Stuart (1889) 14 Appeal Cases, 286, in support of the contention that the Crown may lawfully annex a condition against alienation on a grant of fee, and other conditions which are not competent to a private person. In the Australian case of A-G. v. Gouldsbor01l11h (1889) 15 V.L.R. 638, of which a digest is given in note p. on page 666 of Volume 38 of the English and Empire Digest it was held that a Colonial Governor has power in disposing of land to grant it in fee simple, subject to a condition which might make the estate in fee simple defeasible in certain events and upon certain terms.

      The making of grants and disposition of public lands in the Gambia is regulated by "The Public Lands (Grants and Dispositions) Ordinance, 1902," Chapter 77. Sections 3 and 5 of that Ordinance are in the following terms:-

3.        "The Governor may make grants and dispositions of public lands in such manner and subject to such conditions as may be required.

4.        "All grants or dispositions of any public lands within the Colony or Protectorate executed in compliance with the requirements contained in section 4 hereof, shall be deemed to be valid and effectual for the purpose of conferring and assuring right, proprietary or possessory, or as the case may be, thereby expressed or intended to be conferred."

In our opinion the Governor of the Gambia may lawfully annex a condition against alienation on a grant of fee. We therefore hold that Covenant 7 in the Conveyance of the 14th March, 1928, was valid.

In Coote's Law of Mortgage, Volume 1 at page 170 it is stated :-

"Where a lease contains a covenant not to assign or sublet without licence, no mortgage either by assign­ment or demise, will be valid unless the licence is obtained. "

We think that the same principle must be applied in the case of the Crown Grant of 1928, and therefore, in our view, the mortgage to the firm is invalid. That being so, it follows that the firm had no power as mortgagees to advertise the property for sale or to sell the interest of Musa M'Boob. In these circumstances it is not necessary to consider the question whether there has been re-entry on the property by the Government.

It has been suggested that the mortgage to the firm which was executed by Musa M'Boob in accordance with the terms of an order staying execution in an action by the firm against him, was not a voluntary alienation by him, and consequently did not amount to such a disposition of his interest as would constitute a breach of the covenant against alienation. In our opinion this is not so; the mortgage was his own voluntary act and the case is not the same as where, for example the interest of a lessee is seized and sold in execution by the Sheriff.

For the foregoing reasons we are of opinion that the learned Judge was correct in holding that the premises are the property of the claimants and that the firm are not entitled to sell under the power of sale contained in the mortgage.

There is one other matter we should mention before leaving the case, namely the meaning of the words " any grant in fee, whether simple or qualified," which occur in section 2 of the Public Lands (Grants and Dispositions) Ordinance, 1902. The distinction between " simple" and " qualified" is one which has reference to inheritance only. Lord Coke said "Simple" is added for that it is descendible to the heirs generally that is, simply without restraint to the heirs of the body or the like; whereas a qualified fee is one specially limited, e.g. to a man and the heirs of an ancestor whose heir he was. The learned Judge in expressing his opinion in the case stated refers to " what & Webb, the Ordinance calls a qualified grant in fee imposing a restraint on. alienation by the grantee;" but such a grant is not a qualified grant in fee and the Ordinance does not call it such; it is a grant in fee simple subject to a condition.