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JUDGMENT

C. HAYFRON-BENJAMIN, J.S.C.:

In this appeal the Respondent shall be known as the Plaintiff and the Appellant, the Defendant.  In the appeal before us the Defendant attacks the judgment of the Court of Appeal as rendered by the majority of their Lordships, invites us to uphold the opinion of the minority and prays for

"the reversal of the Appeal Court decision and the construction of the Deed to reflect a rectification in accordance with clause 3 thereof with costs in favour of Defendant/Appellant.”

The Plaintiff commenced these proceedings by an Originating Summons wherein he claimed

“to be (b) interested as a party thereto in the time construction of a document dated 29th July, 1993 entitled “Deed of Gift” for the determination of the following question: (c) whether or not a certain document entitled “Deed of Gift” dated the 29th July, 1993 and executed by Plaintiff and Defendant confers any title or interest whatsoever on Defendant or on any of her five children by Plaintiff to or in the land and premises above-mentioned or any part thereof numbered 270/6 BLK. E3, North Teshie, Accra  . . . .”

It is difficult to appreciate what “interest” the Plaintiff was claiming by that question. If  I

understand the question the Plaintiff was requesting the Court to determine the interest the Defendant had in the property. Nor were the Plaintiff’s five children by the Defendant parties to the originating summons. How they were to be bound by any decision of the Court the Plaintiff did not so indicate.  But he accompanied his originating summons with an affidavit in which he averred that the alleged Deed of Gift was prepared on the instructions of the Defendant and he (Plaintiff) signed the document at her request: That he did not have independent legal advice but dealt which the Solicitor instructed by the Defendant:  That the “Deed of Gift” did not contain any "operative words of grant" and no “habendum clause”:  That paragraph 3 of the Exhibit G.C.B.A.1 was completely false and wholly untrue.  In an unusual conclusion to any affidavit in support of an originating summons the Plaintiff prayed for

“ . . . . a true construction of the said Deed Exhibit G.B.D.A.1 and for an answer to the question whether or not it confers any title, right, interest or claim whatsoever to the land therein mentioned to; in or upon Defendant or any of her five children by me therein mentioned.” 

It will be useful at this stage to set down the paragraph 3 of the Exhibit  referred to above.  It runs thus

“That the “DONEES” have performed the necessary customary rites to wit: payment of two Bottles Schnapps and the sum of ¢25,000.00 (twenty-five thousand cedis) to the “DONOR” in the presence of all principal members of the “DONOR'S” family.”

On the 12th October, 1995 even before the Defendant had submitted an affidavit in opposition, three persons one claiming to be “the current head of family” and an elder brother and elder sister of the Plaintiff had sworn jointly to an affidavit to the effect that

“we are principal members and elders of the family of the Plaintiff in this suit, Mr. Geoffrey C. Badu-Anum, alleged donor in the Deed dated 29th July, 1993 and husband of the Defendant Henrietta Badu-Anum.” (emphasis mine)

To all intents and purposes at least two of the three subscribers to the affidavit were illiterates.  The main thrust of the affidavit, however, was that the statement in Exhibit “G.C.B.A.1” concerning them was false.  In their own words

“we are not aware, and have never been informed, of any gift made by the Plaintiff to the Defendant.”

The most important thing at this stage was that by their affidavit they recognized that the Plaintiff and the Defendant were lawfully married — husband and wife.

By her affidavit dated the 23rd October, 1995 the Defendant averred that

“ . . . . the originating summons should be struck out in limine as misconceived, because the Plaintiff’s case is only disguised as a consensual action for the construction of paragraphs 4, 5, 6 and 7 of the Plaintiff’s affidavit that his real complaint goes to the more fundamental issue of the validity or enforceability of the Deed of Gift."

The Defendant's affidavit also averred that the Plaintiff’s affidavit was disguised pleading wherein he raised the following issues:—

(a) non est factum

(b) mistake on his part in executing the Deed.

(c) no consideration or ALTERNATIVELY no customary rites by me or our children.

(d) no consent or concurrence by elders of Plaintiff’s family.

(e) no customary publicity.

The Defendant further averred that the issues raised were “fundamentally irreconcilable” and an Originating Summons was not the proper method of resolving the litigation. Finally the Defendant averred that

“it was the Plaintiff himself who instructed the conveyancing Solicitor to insert paragraph 3 of the Deed of Gift in its present form....”  

The Defendant averred that the Plaintiff was

“estopped by the Deed and by several admissions to various persons that paragraph 3 of the Deed was true in fact.”

It appears from the record that Defendant's Counsel made three tries at having the Plaintiffs Originating Summons struck out on the ground that the Plaintiff had misconceived the purport of an Originating Summons.  However, on the third occasion the motion was heard.  Interest in the motion rises from the submissions of Counsel for the Plaintiff which revealed the real purpose of the Plaintiff’s application and should have induced the Court to strike out the originating summons.

In the Defendant's affidavit in support of her motion to strike out the originating summons, she contended that

“a further affidavit (sworn by Plaintiff’s Head of Family and two elders) in support of the Plaintiff which deposed to various upon which the Plaintiff relies to prove that the Deed of Gift dated the 29th July, 1993 (Plaintiff’s Exhibit G.C.B.A.1 attached to his affidavit of 20th September, 1995 and the true construction of which he sought by his originating summons, was after all, invalid and of no legal effect (vide paragraph 7 of the further affidavit).”

By his affidavit in opposition to the motion to strike out the originating summons the Plaintiff contended, inter alia, that 

“As to the grounds of law relied upon by Defendant for her application to strike out my originating summons, which presumably are those set out in her affidavit of 23rd October, 1995, I am advised that they are, as arguments of law, better answered in Court by Counsel than in an affidavit, and they will so be answered in due course by Counsel on my behalf.”

At the hearing of the application a preliminary point of estoppel raised by Counsel for the Plaintiff was, in my view, rightly dismissed.  As I have said interest in those proceedings centres on the submissions of Counsel for the Plaintiff. These submissions were taken down by the Learned High Court Judge as follows Counsel for the Plaintiff

“Says that it is not their case that the deed is void and or that they did not sign it but that the document is inoperative because of the absence of any operative words it believed as clause. Says that the objection to the summons must show that no question of construction at all arises under the deed but Counsel for the Applicant has not shown this that by their question as raised is whether upon a construction of the deed it promises any title to the Defendant. Says that if the answer of the Applicant is that the document is only recording a customary transaction, he should point this out from the deed. That Counsel for the Applicant has not argued that the question of construction does not arise from the deed once, should be taken to mean that it does arise. That if other questions arise as have been raised by him such as the performance of custom, he should take out a writ and raise the question of the customary transaction.  I think regardless of the said deed there has been a customary transaction. That the case is not based on a plea of non est factum hence the said intuity is irrelevant. Says that the Defendant referred to cases on rectification but that is not it their reason for being invoking the Court's jurisdiction in this case. They only want the document to be interpreted as it stands. On the point that a deed may be evidence of a customary transaction, if he so wishes he should start an action.”

Counsel from his place at the Bar binds his client in respect of every submission or statement which he makes to the Court on pain of contempt of Court. I therefore take it that Counsel “only wanted the document to be interpreted.”  The real grounds for wanting the interpretation were that the document was “inoperative because of the absence of the operative words” and it was later suggested that there was also no "HABENDUM" clause.

Now the expressions “Interpretation” and construction are synonym nouns, In the English case of CHATEJEY VRS. BRAZILLIAN SUBMARINE TELEGRAPH CO, (1891) 1 Q.B. 79 at Page 85, LINDLEY, LJ. said of the expression “construction”

“as applied to a document, at all events as used by English Lawyers, includes two things: first the meaning of the words; and secondly, their legal effect, or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law.”

It must be to the credit of the Plaintiff that he does not dispute the validity of the document; otherwise the Court must decline to interpret or construe an admittedly invalid document ex nihil nihil est.  The Plaintiff admits that the issue of whether or not there was a customary gift is in serious controversy.  To this end he has engaged his head of family and two elders thereof to swear to an affidavit to construct the statement of a prior customary gift expressed in Exhibit “C.A.B.A.1”. That affidavit of the members of the Plaintiff’s family was subscribed to contradict the clause 3 in the Deed of Gift. In the interpretation or construction of a document the Court must look to the “four corners” of the document and Extrinsic or Parol (they have the same meaning) evidence cannot be accepted to contradict any of the terms of the document. In the English case of BANK OF AUSTRALIA VRS. PALMER (1897) AC 540 at page 545, LORD MORRIS stated that

“Parol testimony can not be received to contradict, vary, add or subtract from the terms of a written contract or the terms in which the parties have deliberately agreed to record any part of their contract.”

Clearly the affidavit of the Plaintiff’s family elders as an aid to the construction of EXHIBIT G.C.B.A.1 was inadmissible and I reject it.

It is now clear that if the Plaintiff is seeking interpretation or construction of a document then those words which the Court is required to construe must be contained in the document. Thus the Court must observe as a fact that the words occur in the document and the Court is required to give legal meaning to them for the purpose of constructing the meaning and purport of the document.  It is trite learning that a Court must interpret a valid instrument in such a manner as to avoid absurdity: And I would say nor can a Court be invited to construe a document valid on its face as to render it void: That course can only be taken when there is a proper action and evidence led pro and contra. An originating summons is not the proper method for declaring a document invalid.

The Plaintiff complains that the two expressions do not occur in the Exhibit "G.C.B.A.1" and therefore on the proper construction of that document it is inoperative to pass title to the Defendant. Apart from the fact that that submission is a gratuitious soliciting of the Defendant's interest the Court cannot be called upon to construe expressions which do not occur in a document. In the present appeal those expressions were not necessary to pass title to the Defendant.

I have observed that throughout the record there has not been any mention of or reference to our CONVEYANCING DECREE 1973 which came into force on the 1st January, 1974.  That Decree dispenses with English conveyancing forms and practices.  Indeed Section 42(2) of the Decree (NRCD 175) requires that every conveyance “shall be expressed in clear terms” and old English conveyancing expressions and terminologies must be avoided.  In fact Section 42(5) of the Decree provides that

“failure to observe any of the foregoing provisions of this Section shall not invalidate any conveyance or provision of a conveyance.”

I understand the provisions of Section 42 to mean that there is no particular form of conveyancing provided the words are clear in substance and achieve what the parties have set out to do.   In fact the model precedent (No.2) provided under Section 43 for the conveyance of property as a gift does not use the words complained of by the Plaintiff.

Before us learned Counsel for both parties have advanced legal arguments which are attractive but are irrelevant to the twin issues for determination; namely whether in this case having regard to the matters in controversy, including the customary law as to gifts and secondly whether the words complained of occur in the Deed of Gift.  Incident in this second issues i.e. the issue whether words could be imported into the document for the purpose of construction.  In his statement of case Learned Counsel for the Plaintiff has himself stated

“We have already, (in Section B) contended that BRUCE VRS. QUARNOR is no authority for importing into a document words that are not in it.”

The above-quoted passage was submitted by Learned Counsel for the Plaintiff in furtherance of the argument that there could be no “customary rectification”. Learned Counsel for the Plaintiff refers to the Headnote (2) of the BRUCE VRS. QUARNOR case which says,

"Conveyance of land made in accordance with customary law is effective as from the moment it is made. A deed subsequently executed by the grantor for the grantee may add to, but cannot take from, the effect of the grant already made by customary law.” (emphasis mine)

Learned Counsel is right that that holding is “no authority for any principle of rectification”.  But as principle of construction that holding operates to add to the efficacy of the paragraph 3 – “Exhibit G.C.B.A.1” in adding to the efficacy of the Deed of Gift. It is internal evidence and may be used in constructing the Deed of Gift. The Plaintiff however, is not praying for this kind of construction.  He says there are certain old fashioned conveyancing terminologies which ought to be embodied in the document to make it operative. Counsel cannot be correct.    At the risk of appearing to interpret EXHIBIT G.C.B.A.1 my way, I find the words “that in consideration of love and affection.”

The characteristic method of expressing valuable consideration within our municipality where the relationship of husband and wife and children exists. Under English law, which is the received law, where there is a relationship of husband and wife and children that situation, if regular, constitutes valuable consideration; for valuable consideration consists of money, money's worth and marriage. With all due respect to the Learned High Court Judge, the Defendant and her children were purchasers and not volunteers. They therefore were entitled, if so needed, to the aid of equity.

There are therefore undoubtedly many issues which cannot be determined by an originating summons.  Consequently the first issue whether an originating summons is the proper method for ventilating the Plaintiff’s grievance cannot be by originating summons.

The Plaintiff takes issue with the Defendant on her Counsel's submission that

“This Court is respectfully invited to strike down the majority judgment of the Appeal Court and to affirm the dissenting judgment of SAM BADDOO, J.A. and to uphold a perfectly binding transfer of the property in dispute to the Defendant and the 5 children (now all adults) on the basis of the attested customary transfer mentioned in clause 3 of the defective Deed of Gift.” 

If, as I have demonstrated, Counsel for the Defendant thought the Deed of Gift was defective, he was wrong.  I will however, agree with Counsel that BADDOO, J.A.'s opinion is the correct position.  His Lordship clearly identified all the serious matters in controversy between the parties and concluded thus

“in the face of the polarised positions of the parties with regards to the facts of the case, it is my considered opinion that Originating Summons was not the proper procedure for the determination of this matter. The Court of Appeal has held that when the facts of the case are in dispute, the appropriate procedure is by a writ of summons and not by Originating Summons, In the case if KORBEAH II VS. ODARTEI [1980] G.L.R. 932, Edusei, J.A. said:—

‘It is quite clear that the use of Order 54A is also resorted to when a right depends on the construction or interpretation of an instrument or a statute. In my judgment where there are disputed facts which can only be tested by viva voce examination, the initiation of proceedings by originating summons is most inappropriate. In the instant case, there is mass if disputed documentary evidence by way of affidavit evidence and exhibits, and the trial Judge could not by any stretch of legal ingenuity resolve those facts without evidence.’

The facts averred to by the respondent in his affidavit were controverted by the appellant in her affidavit and therefore they were never agreed on the facts. The trial Judge should have exercised his powers under Order 54A Rule 5 so as to leave the respondent free to proceed by the appropriate procedure.”

The use of the originating procedure is a matter of discretion which must be exercised judicially.  The Applicant must have a right or interest in the document which he seeks to assert.  In this Appeal the Plaintiff had no right or interest to assert he having legally divested himself of his title in the property. 

I cannot better conclude than referring to a passage contained in the opinion of BADDOO, J.A. when he wrote:

“For the Respondent it is submitted by Mr. Fui Tsikata that the issue between the Respondent and Appellant was a very narrow one, and centred around the absence of the habendum clause, in the document. The issue was whether or not the absence of the habendum clause, rendered the document ineffective to convey any interest to the appellant and whether the doctrine of equity could be invoked to rectify the omission of the habendum clause. He submitted that the absence of the habendum rendered the document ineffective to transfer any interest to the appellant. And that is where the matter should rest.”

It is clear that Counsel for the Plaintiff was aware that the words which he was complaining about were not in the document and therefore could not be construed in regard to the document.  In my respectful opinion the majority of their Lordships misconceived the issues at stake. They worried about the principles of equity and the application of the common law to issues which were covered by the provisions of the CONVEYANCING DECREE. I will therefore allow the appeal and set aside the judgment of the Court of Appeal and the High Court.

AMPIAH, J.S.C.:

By way of an originating summons, the plaintiff/respondent (hereinafter referred to simply as the plaintiff) sought to have determined,

“whether or not a certain document entitled ‘Deed of Gift’ dated the 29th day of July, 1993 and executed by Plaintiff and Defendant confers any title or interest whatsoever on Defendant or on any of the five children by Plaintiff to or in the land and premises above-mentioned or any part Thereof numbered 270/6, BLK. E3 lying being and situate at North Kaneshie, Accra, in the Greater Accra Region of Ghana, which land covers an approximate area of 0.496, (nought point four nine six) acre measuring on the north 173 (one hundred and seventy-three) feet, on the south 153 (one hundred and fifty-three) feet, on the west 127 (one hundred and twenty-seven) feet and on the east 138 (one hundred and thirty-eight) feet be all or any of the said measurements slightly more or less”.

The question as to whether or not originating summons was the proper procedure by which the issue could be determined was determined before the hearing of the summons itself. The defendant/appellant (hereinafter referred to also simply as the defendant) had raised by way of a motion, a preliminary point of law, ‘whether or not originating summons was the proper manner by which the issue on the document could be determined?' The trial judge had heard legal arguments on the issue and had ruled on 16th May, 1996 that the issue could be determined on originating summons. So far as the records show, there has not been any appeal on this issue.  The parties must therefore be deemed to have accepted the Court's jurisdiction to deal with the matter the way it did.

In the substantive issue, the trial judge after patiently examining the document (Exhibit G.C.B.A.-1) came to this conclusion —

“... I am of the view that the maker has” not done all that was required of him to effectuate what he intended with, the result that one cannot discern from it a clear and unequivocal intention by him to divest himself of his ownership in favour of the “donees” therein mentioned.  I think that the said document required something further to be done by use of words which would clearly evince his intendment...” (emphasis supplied)         

He held the document to be an incomplete gift. The defendant appealed against the decision to the Court of Appeal. The appeal was dismissed on 12th June, 1997 by a majority of 2:1. The defendant has further appealed to this Court.

I have examined the grounds of appeal filed by the defendant in this appeal and the submission made in her Statement of case. I have also considered the arguments put forward by the plaintiff in his statement of case in reply to the defendant's.  To me the arguments put forward by both parties seem to be the same as those in the trial court and the appellate court below.  In both courts, the authorities cited were critically examined by the learned judges in their judgments.

I think there is some misinterpretation or misunderstanding of the purpose of Order 54 A of the High Court Rules. Rule 1 of this Order provides,

“(1) Any person claiming to be interested under a deed, will or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested”.

The rule does not enable the court to give any other relief, and is only intended to enable it to decide questions of construction, where the decision of those questions, whatever way it may go will settle the litigation between the parties – See Lewis v. Green (1905) 2 Ch. 340. And, “the court or judge shall not be bound to determine any such question of construction if in their or his opinion it ought not to be determined on originating summons” - vide rule 5 of Order 54A.

The rule should however, be interpreted fairly and liberally, and the court will not decline to make a declaration under the Order merely because other disputes and litigation may arise between the parties to the written instrument after the true construction of the instrument has been determined. In the case of the Earl of Harrowby and another v. Leicester Corporation (1916) 114  LT 129, the headnote reads —

"[I]f the court is asked to determine on a summons under Order LIVA the true construction of a written instrument the fact that the parties may after a decision on the construction litigate further on a question of fact with which the summons is not concerned, is not a sufficient reason for the court to refuse to determine such question of construction - [I]t is sufficient if it appears to the court that its answer will satisfy the proceedings then in issue". - Order LIVA is the same as our Order 54A of the High Court Rules.

In the instant case, the court was not called upon to determine whether or not there has been a customary gift even though this was mentioned in the document.  And, none of the judges who sat on the case, had any misapprehension about the defendant's claim under customary law.   Even in his dissenting opinion, Baddoo J.A. did not decide that the grant was “perfectly binding”. He observed,

“I have also considered the argument about customary grant. Here again we are faced with the denial by the respondent that there was any such customary grant. The court cannot make any finding until the matter is resolved as to whether or not there was any such customary gift”.

He further held that in his considered opinion

 “ ............. rectification will not be an appropriate remedy in the circumstances of this case, because this is not a contract nor a conveyance where there is some consideration”.

His dissent was that in his opinion, an originating summons was not the proper  procedure for resolving the issue before the court. With due deference to his Lordship, whether or not originating summons was the proper procedure, was not on an appeal before the court, since the matter had been ruled upon by the trial court and there was no appeal against that ruling.

Be that as it may, the court rejected an invitation to rectify the document. There was also no finding, made on the issue whether or not there was a customary gift or not.

I do not think I have any concern on this summons at all.  The only dispute which I am concerned with, and the only dispute to which I think this summons is relevant, is whether or not the document (Exhibit G.C.B.A. - 1) is a document which vests any proprietary interest in the parties or persons named thereunder.  The judges below were certain that the document did not vest any interest in any of the persons named therein.  The defendant's counsel conceded the point but prayed for a rectification of the document to operate as a customary grant.  This was rejected. In my opinion, rightly so. Even though the document talked about a customary grant, the document was not intended to be a customary ‘deed’ or ‘conveyance’ It purported to convey the property in English Form.  This it failed to do because some of the essential clauses which could have vested the property in the intended beneficiaries were absent.

The situation of the document is well settled in the case of Milroy Lord (1862) 4 De G F and J 264 at page 274 where Turner L.J. stated,

“ ... I take the law of this court to be well settled, that in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to render the settlement binding, upon him ... but in order to render the settlement binding, one or other of these words must as I understand the law of this court, be resorted to, for there is no equity in this court to perfect an imperfect gift.”; see also Macedo and Ors. v. Beatrice Stroud (1922) 2 AC 330.

The question of ‘Aseda’ or ‘consideration’ is not relevant in this case. The document itself is clear on its face. It is supposed to be a ‘Deed of Gift’. The ‘consideration’ offered, is said to be “love and affection”.   To all intent and purposes it is a ‘voluntary’ grant. As such, it is required by law that it should be complete in its expressed intention before it could be enforced.  In other words all that is necessary to be done should be done in order to transfer the property and render the gift binding.  It is agreed by all the parties that the necessary words required in such a document to vest the property in any of the parties are missing.  Hence the plea of the defendant to have the document rectified to include the 'missing words’.  This, the Courts below were unanimous in their finding that, that could not be done, the document therefore remains an imperfect document. The question which is posed by this originating summons for determination is, does the document as it stands vest any rights in the parties? On the authorities referred to by the courts below, no interest vests in any of the parties by this document. The courts did not say whether or not the defendant has any rights in the property.  It is for the defendant who claims she  has an interest in the property by way of a customary grant to pursue that rights.  As stated before, the mere fact that a litigation or dispute may arise after the construction of the document, is no ground for refusing to determine the question posed in the originating summons. - see Earl of Harrowby and another v. Leicester Corporation supra. The question must be determined and it has been determined by the courts below.  I would dismiss this appeal.

ADJABENG, J.S.C.:

 It seems to me that if the action or the issue which the Plaintiff/ Respondent took to Court was understood or appreciated, this matter, in the form it is before us, would not have gone beyond the High Court.

The Plaintiff, by an originating summons, took his action against the Defendant stating that he is 

“interested, as a party thereto, in the true construction of a document dated 29th July, 1993 and entitled ‘Deed of Gift’ for the determination of the following question: Whether or not a certain document entitled ‘Deed of Gift’ dated the 29th day of July, 1993 and executed by Plaintiff and Defendant confers any title or interest whatsoever on Defendant or on any of her five children by Plaintiff to or in the land and premises above-mentioned or any part thereof numbered 270/6, BLK. E3 lying being and situate at North Teshie, Accra, in the Greater Accra Region of Ghana’ ….”

The summons is supported by an affidavit sworn to by the Plaintiff/Respondent.

In her affidavit in opposition to the Plaintiff’s summons, the Defendant/Appellant demanded that the Plaintiff’s originating summons be struck out. Her reason was that “the Plaintiff’s case is only disguised as a consensual action for the construction of the Deed of Gift.” But that “his real complaint goes to the more fundamental issue of the validity or enforceability of the Deed of Gift.”

The Defendant therefore deposed in paragraph 6 of her affidavit as follows:—

“6. I am therefore advised and verily believe that the differences between me and the Plaintiff are fundamentally irreconcilable and hostile, and hence not at all matters to be settled by originating summons instead by ordinary writ of summons followed by Statement of Claim, Statement of Defence, Reply, Summons for Directions and evidence  from the witness box tested by cross-examination.”      

The Defendant/Appellant then followed this up with a motion on notice praying the Court on a preliminary point of law, to strike out the Plaintiff’s originating summons. The motion was fully argued and the Court ruled that it would not grant the Defendant’s application.  Accordingly, the motion was dismissed.  I quote the short ruling of the Court which stated as follows:—

“Having regard to the question raised in the originating summons, I must confess that some of the factual depositions by the Plaintiff must have misled the other side as to what he actually relies on but a critical examination of the claim as indicated on the originating

summons would reveal that it raises a legal question affecting the said deed i.e. the efficacy or validity of the same.  Indeed in the case of Jenkin R. Lewis & Sons Ltd. vs. Keiman (1920) All Ed. 833, the Court by originating summons determined the question whether a notice served on an agricultural tenant to quit was effective to determine the tenancy or interest therein.

I think that since this claim raises some question of law [it is pertinent] to see the observations of Taylor, JSC in Yaw Omenako vs. Theophilus T. Kojo, C.A.15/89, dated

28th February, 1990, unreported, C.A.:—

The commencement of actions in the High Court by way of originating summons is provided for and regulated by Orders 54 and 54A of L.N. 140A. These orders when considered together show that originating summons is the proper and indeed appropriate procedure where the sole or principal question at issue is or is likely to be one of the construction of a statute or of any instrument made under any statute or of any deed, will, contract or other document, or some other question of law, or in which there is unlikely to be any [serious] or substantial dispute as to the relevant facts.’ In the result the preliminary point of law is overruled.”

After this ruling on the preliminary point of law raised on behalf of the Defendant/Appellant, the Defendant could have appealed against the ruling if she was not satisfied that an originating summons was the appropriate mode for dealing with the Plaintiff’s action. The Defendant/Appellant, however, did not find  it necessary to appeal.  Rather, she filed what she termed “DEFENDANT'S AFFIDAVIT IN ANSWER TO PLAINTIFF'S ORIGINATING SUMMONS.” In this affidavit, she prayed in paragraph 10 thereof that the deed be construed against the Plaintiff. A date was fixed for the hearing of the originating summons. The summons was then heard and the Court gave its judgment in favour of the Plaintiff/Respondent.

Both in the Defendant's affidavit just referred to, and in the arguments of her Counsel at the hearing of the summons, it was conceded that the deed in issue lacked the “express words of grant”, the essence of the Plaintiff’s summons. In his arguments at the hearing of the summons, the Defendant's Counsel submitted that

"there is no dispute that there are no operative words in the deed by way of grant as alleged,...”

It must be pointed out here that, in my view, the admission by the Defendant/Appellant and her Counsel that the Deed of Gift in issue lacked “express words of grant” or “operative words .... by way of grant” is a clear answer to the question contained in the Plaintiff’s originating summons.  The question having thus been answered even by the Defendant and her Counsel, it is difficult to see what else could have been done in the circumstances that for the Court to endorse the answer thus given to the effect that the deed does not contain the magic words in issue.  And that, therefore, the document as it stands does not grant or convey any interest in any land to the Defendant and her Children or any other person.

It is not surprising, therefore, that the only reasonable thing Counsel for the Defendant could think of was to ask the trial Court to order a rectification of the deed or document.  This was on the ground that the circumstances, as alleged by the Defendant, of the making of the document, and some of its contents have established that the Plaintiff had made a customary grant of his premises to the Defendant and her children.  Counsel for the Defendant was of the view that these circumstances gave the court the power and the right to apply the equitable principle of rectification, and or what counsel termed customary rules of rectification.

Counsel for the Plaintiff vehemently opposed this request.  Counsel was of the view that the Court could not supply the operative words of grant omitted in the document.  The court was only being called upon to give the meaning and effect of the document. Counsel argued that rectification in equity could be made in a situation where there was ample evidence in the document to warrant such a course. That, however, was not the case so far as the document before the Court was concerned, according to Counsel for the Plaintiff/Respondent.

The trial Court rejected the invitation by Counsel for the Defendant to invoke the principle of rectification.   The Court therefore decided that the document in issue “does not operate to pass any interest or title in House No.270/6 BLK. E3, Teshie, in favour of the ‘donee’ i.e. it is ineffectual at law to pass the interest which the Defendant alleges before me.”

On appeal against this decision to the Court of Appeal, the Appellate Court by a majority affirmed the trial court's decision and dismissed the appeal.

The majority decision of the Court of Appeal meticulously dealt with all the grounds and points raised by the Defendant/Appellant. These included issues involving estoppel, rectification, and complaints by the Appellant that the trial Court failed to construe as a whole document.  I must say here that I am very much impressed with the industry and clarity which the learned Justice of Appeal, Benin, J.A., employed in dealing with the points raised by the Appellant's Counsel.  Indeed, the learned Justice, in my view, said all that ought to be said in this matter.

The Defendant/Appellant was, however, still not satisfied with the verdict. And so she appealed to this Court.  What I find unsatisfactory about this appeal is the fact that the Appellant has appealed to this Court on almost the same grounds as those canvassed in the Court of Appeal.  It would seem that the Appellant's Counsel did not take the trouble to study and or understand the majority decision.  In my candid opinion, since it is clear in the document in issue that the operative words of grant and the nature of the interest sought to be granted are missing in the document, and this fact has been conceded by the

Defendant and her Counsel, there seems to be nothing to be defended by the Defendant on the merits of the matter before the trial Court. I find this appeal, therefore, rather frivolous and an abuse of the appeal process. In my view, if the Appellant's contention that the Respondent had made a customary grant of the premises in question is in fact true, she has every right to pursue the appropriate remedy in that respect and it would have been more profitable for her to have pursued that remedy by now.

Counsel for the Defendant/Appellant raised an issue in the concluding part of the introduction to the Appellant’s statement of case which ought not to be left without comment. He stated as follows:—

“So fundamental a clash on facts between the Plaintiff and Defendant both as to the truth of the matters asserted in clause 3 and as to who was author of that clause was clearly not an issue of fact that could be resolved on the affidavit evidence.

The issue could only be resolved in a trial on the evidence of witnesses. Hence the originating summons procedure for the resolution of that issue by the exercise of construction was wholly wrong and misconceived and caught squarely by the very definition of an originating summons in Orders 54 and 54A of the High Court Rules as well as by this Court's interpretation of these orders in their decision dated 28th February, 1990 in Civil Appeal No. 15/89 entitled Yaw Omenako vs. Theophilus T. Kojo (unreported) esp: per Taylor, JSC; and this Court's earlier decision in The Republic v High Court, Accra, Ex-Parte Ploetner dated 24th March, 1986 in Civil Motion No. 9/82. The High Court per Gbadegbe, J., however, swept aside the Omenako decision. But although the point was NOT raised in the Court of Appeal nevertheless this Court is entitled to consider and indeed even make it an express basis of its own decision pursuant to C.I. 16 Rule 6 (7) (b).”

The Respondent's answer to the above is as follows:—

“it is, with great respect, not correct that Gbadegbe, J. ‘swept aside the Omenako decision.’ On the contrary, the learned Judge cites that case in support of his ruling ….: because, adopting the words of Taylor, JSC in the Omenako case, ‘the ... principal question at issue ... [was] one of construction of a ... Deed’ (emphasis added), Gbadegbe , J. held that the procedure by way of originating summons was proper ....

The whole issue of whether the procedure by way of originating summons was appropriate was raised by the Appellant as a preliminary issue in the High Court, in three separate applications.  It was argued before the court on 24th April and  16th May, 1996. The Appellant's preliminary objection was overruled in a ruling delivered on 16th May, 1996. No appeal was filed against that ruling and no appeal can now be filed against it, as it would be inordinately out of time. The Appellant is, nonetheless, asking this Court to ignore the rules relating to the time within which an appeal may be filed and to reverse that ruling. In our submission, the ruling of Gbadegbe, J. operates as an estoppel per rem judicatem and prohibits the Appellant and, with respect, the Court from re-opening the question as to whether or not the procedure by way of originating summons is appropriate in this case.”

I agree with the above submission that the ruling of the High Court on the preliminary point of law as to whether or not an originating summons is the appropriate mode of starting the Plaintiff’s action operates as an estoppel. As I have said earlier in this judgment in respect of that ruling, which I fully quoted, the Defendant/Appellant could have appealed against the ruling but she did not do so. In the circumstances, the Appellant cannot re-open the issue contained in that ruling as she is estopped from doing so.  This Court also has no right or power to entertain the issue.

On the whole, therefore, I find no merit in the appeal which ought to be dismissed.

ATUGUBA, J.S.C.:

The core contention of the Respondent in this case is that the principal or main issue was one of construction of a deed and was accordingly properly construed.  Reliance is placed on the EARL OF HARROWBY VS. LEICESTER CORPORATION (1916) 114 L.T. 129, the headnote of which states that

“[I]f the Court is asked to determine on a summons under Order LIVA the true construction of a written instrument, the fact that the parties may after a decision on the construction litigate further on a question of fact with which the summons is not concerned, is not a sufficient reason for the Court to refuse to determine such question of construction ... [I]t is sufficient if it appears to the Court that the answer will satisfy the proceedings then in issue." (emphasis supplied).

Further reliance is placed on the statement of Taylor, J.S.C. in the case Counsel herein calls the Omenako, case

“that if the principal question at issue .... [was] one of the construction of a .... Deed” then proceedings can be taken under Order 54A of the High Court (Civil Procedure) Rules, 1954 (L.N.140A).

The test upon which the Respondent, relies was the same test relied on by Wiredu, J. (as he then was) in RE APPIAH (DECD.); YEBOAH VS. APPIAH (1976) 1 G.L.R. 223 at 226 where he said:

“Order 5 r 4 of the White Book of 1964 sets down the following examples of the right use of originating summons:

(2) Proceedings —

(a) in which the sole or principal question at issue is or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law, or

(b) in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the Plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 86 or for any other reason considers the proceedings more appropriate to be begun by writ”.

The principle as shown from this quotation is subject to certain exceptions notably (1) where there is likely to be any substantial dispute of fact see KORBLAH II V. ODARTEI III (1980) G.L.R. 632 C.A. or (2) where the construction will not settle the question finally between the parties.

I agree that Originating Summons was the appropriate procedure in EARL OF HARROWBY VS LEICESTER CORPORATION, supra, because there as Astbury J. explained at p.133

“I really cannot speculate as to what disputes and litigation may arise between these two parties if the true construction of the contract between them is determined, but one of them has given to the other a notice terminating the contract under a particular clause in the agreement. The other party says that that clause does not enable any such determination to be effected, and asks on a pure question of construction, as to whether, without any further proof or litigation, the corporation are entitled to determine out of hand, under this clause the whole of this term of the contract, except upon the happening of what they say is a condition precedent: I think they are entitled to have that question decided....." (emphasis supplied)

Astbury J. held that the fact that the parties might afterwards litigate as to whether there was a breach of the contract under another and totally different clause as to the supply of good quality water was wholly independent of the issue involved in the construction of the clause dealing with the right of termination of the whole contract. In any case Astbury J. had earlier at page 132 after referring to Order 54A r 4 of the relevant English rules which, is the same as our Order 54A r 4, said:

“That is left quite at large and there are several reasons which may arise which make it undesirable that the determination of such a question should take place upon a summons.” (emphasis supplied)

In LEWIS VS. GREEN (1905) New Series Vol. 74 Ch.D. 682 at 683-684 Warrington J. said:

“What is said is this: ‘The construction of the deeds will not settle the matter, because on a case of mixed fact and law, I, the respondent, have another defence to the action — namely, that the deed to 1905, in the circumstances I shall prove when the action comes on for trial, was in fact and in law, quite independently of construction, ineffectual to pass the benefit of the guarantee to the applicant. Further than that, I shall say also when the matter comes on for trial that, even assuming that the benefit of the guarantee has passed to the applicant, I, the respondent, have a complete answer to the action arising partly from the conduct of the person to whom the guarantee was given; and, further I have also a complete answer because, I shall have to call upon the applicant to prove damages for the breach of the guarantee, which he will not be able to establish.’ Now under these circumstances the applicant persists in asking me to determine this question of construction. In my opinion I ought not to do so.  It seems to me that under such circumstances as these under which this summons was issued, Order LIVA is not the appropriate procedure. The result might be this: the Court may, after considerable litigation involving an argument in the Court of first instance, an argument in the Court of Appeal, and possibly an argument in the House of Lords, come ultimately to the decision that on the question of construction raised by this summons the applicant is right. Well what then? No relief can be given on that. There are other points which have to be decided. They can only be decided by bringing an action and in that action it may turn out that notwithstanding the applicant is right on the question of construction, he is ultimately wrong. The respondent would have to pay all the expenses of the litigation on the question of construction, which will be utterly useless. It seems to me that where one finds circumstances such as I find here, the procedure under Order LIVA is improper. It is only intended to enable the Court to decide questions of construction where the decision of those questions, whichever way it may go, will settle the litigation between the parties. It is not intended that questions of construction, which, if they are decided in one way only will settle the dispute between the parties, should come up for decision on an originating summons. It seems to me it would be most inconvenient to resort to the order in a case where it is uncertain what may be the ultimate decision on the point of construction, and where, if the decision is in one way, it involves further litigation.

I think the summons in this case is misconceived; and having regard to the warning which the applicant had from respondent's solicitors, I think the only thing I can do is to refuse to make any order on the summons except to order the applicant to pay the costs of it.”

This reasoning of Warrington J. was approved by the Supreme Court in the REPUBLIC VS. HIGH COURT, ACCRA, EX PARTE PLOETNER (1984-86) 2 G.L.R. 107 S.C. At pages 118-119 Adade, J.S.C. delivering the judgment of himself and Apaloo, C.J., Sowah and Archer,  JJ.S.C., said:

“In Lewis vs. Green [1905] 2 Ch. 340 the Court (Warrington J.) observed that originating summons is intended for situations where decision on the question for construction will finally determine all the matters in difference between the parties. Where on the face of the affidavits this is not likely to be the case, and a decision one way or the other will involve further litigation, then an originating summons is not the proper procedure. In that event, a full-blown action is the proper course. We share these sentiments, and are of the considered opinion that on the face of the affidavits, this case is not a proper one to be commenced by originating Summons.”

Taylor, J.S.C. in the Omenako case, as the parties call it, sub nomine POKU VS. KWAO (1989-90) 2 G.L.R. 82 S.C. at 94 quoted with approval the statement I have just quoted from Adade, J.S.C. in the Ploetner case supra. He had earlier stated at p.91 as follows:

“I can quite see the spectre of a multiplicity of suits which would be engendered by the order for the plan having regard to the Court's circumscribed proviso confining the lands in the contemplated plan, to ‘areas as which are properly the subject matter of the sale.’ This consideration leads me to the conclusion that the procedure adopted in this case is utterly wrong.’ (emphasis supplied)

Applying the above stated principles to this case I hold that where as in this case, like the case of Lewis vs. Green, supra, the appellant has warned in his affidavit that quite apart from the question of construction raised by the summons he contends and will likely contend after the question of construction has been decided that a gift still arises as between the same parties under customary law and if necessary the deed ought to be rectified accordingly and the respondent, also contends and is likely to contend, inter alia that no gift arises because the necessary customary rites to complete the gift, if any, were

not performed, the resort to originating summons procedure was inappropriate because the further litigation will relitigate practically the same issue as raised by the originating summons here.  For the real dispute between these parties is whether any rights pass as between these same parties with respect to the property involved, whether by deed or otherwise. In such a case the resolution of the question of construction is quite pointless and unnecessary and that is the crux of Warrington J's reasoning in LEWIS VS. GREEN, supra, which as I have shown has received the highest approbation in Ghana. In ARGOSAM FINANCE CO. LTD. VS. OXBY (1964) 3 ALL ER 561 C.A. the English Court of Appeal  dismissed an originating summons relating to certain income tax provisions, because, inter alia, the question raised by the summons was the same issue involved in some other case, then before the House of Lords and which would soon be authoritatively decided.  In the circumstances it was held that the resort to originating summons was quite unnecessary.

Even where Originating Summons procedure can be used to claim a substantive relief and not merely for the purpose of construction, it has been held that that procedure is inapplicable where there will be a dispute as to the facts.

See NICHOLSON VS. T.E. NICHOLSON (1971) 1 G.L.R. 67.

Indeed in this case, in the Court of Appeal, the majority per Benin, J.A. stated as follows:

“Indeed in view of the various affidavit depositions before the Court one was inclined to think that the originating process was not appropriate to resolve the matters in dispute between the parties. But the trial Court dismissed the defendant's application to strike out the originating summons on the ground that the issue before the Court was only for the construction of the document and nothing more. There was no appeal against this decision.”

The appeal was decided by the Court of Appeal on the 12th day of June, 1977.  At that time the new Court of Appeal Rules, 1997 (C.I. 19) were not in force.  They now provide by rule 30 as follows:

“No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving a decision upon the appeal as may seem just.”

Similarly, rule 22 of the Supreme Court Rules, 1996 provides as follows:

“22. An interlocutory judgment, decree or order from which there has been no appeal shall not operate to bar or prejudice the Court from giving its own decision upon the appeal as may seem just.”

I think this rule is wide enough to cover the present situation.

Be that as it may, the holding by the majority of the Court of Appeal that by reason of the failure of the appellant to appeal expressly against the High Court's ruling which dismissed the preliminary objection to the use of originating procedure, they could not deal with that issue, is in my respectful opinion, per in curiam of the then existing rules, that is to say, the Court of Appeal Rules, 1962 (L.I. 218) which provided in rule 30 thereof as follows:

“30. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.”

This incorporates and extends the common law view that an interlocutory decision can be attacked in a subsequent appeal against the substantive decision even though a person did not earlier appeal against it within the period limited for interlocutory appeals. See for example R.T. BRISCOE (GHANA) LTD. VS. AMPONSAH (1960) C.C. 100 C.A.

This Court of course also has all the powers which the Court of Appeal had in dealing with this appeal. See Article 129(4) of the Constitution.  Those powers can now be exercised even though the Court of Appeal did not exercise them, see ATTORNEY-GENERAL VS. VERNAZZA (1960) A.C. 965 H.L.

For all these reasons I would also allow the appeal, not necessarily because the Court of Appeal's construction of the deed was on the merits wrong, but because for the reasons already given in this judgment the deed ought not to have been construed at all upon originating summons procedure which was inappropriate to the circumstances of this case.

I however, acknowledge the high clarity of legal thought and industry on the part of Mr. Fui Tsikata and the resilient industry and ingenuity of Mr. Adumua-Bossman in arguing this appeal.

MS. AKUFFO, J.S.C.:

I agree that the appeal be allowed.

COUNSEL

Adumua-Bossman for Appellant.

Fui Tsikata with Mike Dzaku for Respondent.