Appeal
Court. 14th Dec., 1938.
Claim to
Possession of land and for
Damages for trespass-No
pleading's-Construction of Deed
of Agreement-Oral evidence
varying terms thereof admitted
and Defendant successful at
trial.
Held: Such evidence inadmissible
and appeal allowed, but
possibility of plaintiff having
an interest as tenant in common
considered and non-suit ordered.
The facts are
sufficiently set out in the
judgment.
E. C. Quist (H. V .• 4.
Franklin with him) for
Appellant.
E. O. Asafu Adjaye for
Respondent.
The
following joint judgment was
delivered:-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST AND WEBB, C.J.,
SIERRA LEONE.
Plaintiff by his writ claimed:-
(1) To recover possession of all
that piece or parcel of land
with buildings thereon situate
at Tamale and known as
Commercial Plot No. 1 Daboya
Road Marketside but not
including the portion of the
said plot on which a storey
building has been erected, and
(2) £150 damages for
trespass~',.; on the said land.
There were no pleadings but at
the trial it was agreed that the
issue to be determined was the
construction of the Deed of
Assignment dated 24th April,
1936. This deed, which is
hereinafter referred to as the
Deed of Assignment, was made
between the defendant, as
vendor, and the plaintiff, as
purchaser. The whole plot, the
subject matter of the action, is
shown on plan, exhibit " 0."
By Indenture of Lease dated the
13th January, 1932, the then
Chief Commissioner, Northern
Territories, on behalf of
the Governor of the Gold Coast,
demised Commercial Plot No. 1
Tamale to the defendant his
heirs etc. and assigns from the
1st .January, 1933, for the term
of fifty years. Paragraph 4 of
this indenture contained a
covenant not to assign etc. the
demised premises without the
consent in writing of the Chief
Commissioner on behalf of the
Government.
It will be
seen from the Deed of Assignment
that it is stated that the
defendant agreed to assign to
the plaintiff the land described
in the schedule thereto with the
building thereon for the
unexpired residue of the term of
fifty years and that the
defendant obtained the licence
and consent of the Chief
Commissioner to assign " the
said premises."
By this Deed
of Assignment the defendant
assigned to the plaintiff his
heirs, assigns, etc. "All that
piece or parcel of land "
described in_ the schedule
hereto and all the estate right
title " interest claim and
demand whatsoever of the said
Vendor unto " and upon the
said land and every part
thereof."
This schedule
is in the following terms:-
•• All the
messuage and premises known as
Commercial "Plot No. 1 Daboya
Road Market Side consisting of
one " store and one petrol store
and half part of the said plot "
and also the shelves, counters
and other fixtures in the said
"store and petrol store and
forming part thereof and
"appurtenant thereto but not
including the uncompleted "
storied building on a portion of
the said plot."
This schedule
is very unhappily drawn. The
buildings present no difficulty.
It is clear that the uncompleted
storey building which is to be
retained by the vendor is marked
" A " on plan "0," and that the
two stores that were to pass to
the purchaser are marked" B"
and" D." Although by the Deed of
Assignment only- one half of the
plot was to pass, it was not
stated how that half was to be
ascertained. It is quite clear
that on the proper construction
of the deed the purchaser
acquired ' " B " and " D " and
an undetermined one half of the
plot. The consent of the
Government to this assignment
was put in at the trial from
which it will be seen that the
Government consented to an
assignment by the defendant to
the plaintiff" of all the term "
and interest of and in a portion
being approximately one half "
of the plot known as Commercial
Plot No.1 Tamale comprised "in
and demised by an Indenture of
Lease dated the 13th
January, 1932 "
The learned
trial Judge found that the
plaintiff acquired not one-half
of the plot but the whole plot.
It is obvious that he came to
this conclusion because he
accepted the plaintiff's
evidence that "the defendant
agreed to sell me the whole plot
together with " all the
buildings thereon with the
exception of the uncompleted "
storey building facing the
market." This statement was
clearly inadmissible as it added
to and altered the terms of the
Deed of Assignment.
Dealing with
the inadmissibility of extrinsic
evidence to add to deeds, Norton
on Deeds, 2nd Edition at page
135, says:-
" A further
rule relating to the
interpretation of deeds " is
that the deed only is to be
construed, and that no evidence
" of extrinsic circumstances is
admissible to add to,
contradict. " vary, or alter the
terms of a deed.
. "This rule
is not, properly speaking, a
rule of " interpretation; it is
a rule of law limiting the
subject-matter " to be
interpreted to that contained in
the deed itself.
"It would be
inconvenient that matters in
writing "made by advice and on
consideration, and which finally
" import the certain truth of
the agreement of the parties,
" should be
controlled by the averment of
the parties to be "proved by the
uncertain testimony of slippery
memory. And it would be
dangerous to purchasers and
farmers, and all others in such
cases, if such nude averments
and against matter in writing
should be admitted.
"To add
anything to an agreement in
writing by. " admitting parol
evidence, which would affect
land, is not " only contrary to
the statute of frauds and
perjuries, but "to the rule of
common law, before that statute
was in " being." Respondent's
counsel has contended that, as
the defendant did not object to
the reception of this evidence
at the time it was offered as
required by Order 6 Rule 29 of
Schedule 2 of the Courts
Ordinance, this Court should not
exercise its discretion and
entertain an objection to its
reception at the hearing of this
appeal. We Cannot accede to this
contention as the rule that
extrinsic evidence is
inadmissible to add to or alter
a deed is a rule of law limiting
the subject-matter to be
interpreted to that contained in
the deed.
And at page
136:-
" , By the
general rules of the Common law,
if there be "a contract which
has been reduced into writing,
verbal " evidence is not allowed
to be given of what passed
between " the parties either
before the written instrument
was made, " or during the time
that it was in a state of
preparation, "so as. to add to
or subtract from, or in any
manner to " vary or qualify the
written contract; but after the
agreement has been reduced into
writing, it is competent to the
" parties, at any time before
breach of it, by a new contract
"not in writing, either
altogether to waive, dissolve,
or " annul the former
agreements, or in any manner to
add to, " or subtract. from, or
vary or qualify the terms of·
it, and " thus to make a new
Contract which is to be proved,
partly " by the written
agreement, and partly by the
subsequent "verbal terms en
grafted on what will be thus
left of the " written
agreement.' "
It may well
be that the plaintiff has an
interest in the whole plot as a
tenant in common with the
defendant. His counsel has
however frankly admitted that it
was no part of his case that the
plaintiff and the defendant were
tenants in common. It is quite
dear from his opening that his
case was that the plaintiff was
entitled to the exclusive
possession of the whole plot
except. the unfinished storey
building and that this was the
issue that was tried.
Considering,
as we do, that, on the proper
construction of the Deed of
Assignment the plaintiff was not
entitled to exclusive possession
of the whole plot (excepting the
building marked " A "), we hold
that he failed to establish any
right to the, relief he claimed
on the grounds on which he
relied and which were 'in issue
at the trial.
We
cannot close our eyes to the
fad. that had the plaintiff's
claim been put forward on the
ground that he was a
tenant-in-common he might have
been entitled to some relief.
Had plaintiff claimed on this
basis factors might have arisen
other than those in issue on the
claim as put forward by him in
the Court below.
Having this
in mind we give judgment as
follows: ,-
We set aside
the judgment of the Court below
and enter in lieu thereof a
judgment of non-suit with
liberty to the plaintiff to take
proceedings if he thinks fit to
protect any rights he may have
as a tenant-in-common of any
part of the plot.
We
award the appellant the costs of
this appeal which we assess at
£44. 0s. 3d. We direct that the
appellant's costs in the Court
below shall be taxed and paid by
the respondent. Court below to
carry out.
FURTHER ORDER
BY COURT.
Any rent paid
into Court by the appellant in
pursuance of the Order of the
Court below is to be paid out to
the appellant.
