ABIBA ALI V. ALHAJI MAMA ALI (PC)

POLICY AND PRACTICE LAW REPORTS, 2PLR

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ABIBA ALI

V.

ALHAJI MAMA ALI

THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,

DELIVERED THE 3RD JULY, 1942

PRIVY COUNCIL APPEAL NO. 13 OF 1940

2PLR/1942/4 (WACA)

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OTHER CITATION(S)

2PLR/1942/4 (WACA)

(1942) VIII P.C. 13

(1942) VIII WACA PP. 1942

LEX (1942) – P.C. 13

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BEFORE THEIR LORDSHIPS:

LORD THANKERTON

LORD RUSSELL OF KILLOWEN

LORD ROMER

SIR GEORGE RANKIN

SIR MADHAVAN NAIR

BETWEEN:

ABIBA ALI – Appellant

AND

ALHAJI MAMA ALI – Respondent

ORIGINATING COURT(S)

FROM THE WEST AFRICAN COURT OF APPEAL

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CASE SUMMARY

ORIGINATING FACTS

A testator, via a will, bequeathed his properties to his heirs and other named persons. The will contained the following clause which construction was the subject matter of the suit:

“I leave the land known as Ali’s land behind the Mosque at Zongo in the charge also of Madame Amina, Meriam Ali and Mama Ali.”

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ISSUE(S) FOR DETERMINATION OF APPEAL

1.     Whether the property therein mentioned in clause 2 was devised to Madame Amina, Meriam Ali, and the respondent merely as trustees, or whether it was devised to them for their own benefit?

2.     Whether if the former be the true view, then inasmuch as the trusts upon which the property is to be held are not declared in the Will, the beneficial interest in it devolved as upon an intestacy.

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DECISION OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

1.     The phrase, “I leave in charge of” was repeated in clause 1 of the Will and they are not phrases commonly used for creating a trust and may well have been used by this native officer as meaning no more than “I leave in the hands of” the three named persons.

2.     The phrase, however, must be read in connection with the rest of the Will including –

(i)     paragraph 4 in which the testator, when desiring to create a trust, has used the appropriate words for doing so; and

(ii)    paragraph 1, where the testator used a similar phrase to clearly show that three named devisees were to take absolute interests in the house in Horse Road as tenants in common in equal shares. The law is trite that a devisee of the rest of land for an indefinite time is equivalent to a devise of the land itself.

3.     Where a testator confers upon devisees the absolute beneficial interest in a property and subsequently attempts to impose upon them a restraint on alienation, it would be ineffectual as the absolute beneficial owners of land has a power of sale as a matter of course.

4.     Therefore, the words, “I leave in the charge of…” in paragraph 1 of the Will are upon their true construction equivalent to “I devise absolutely to…”

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