PART II: BASIC RULES FOR CONSTRUCTION OF NON-STATUTORY

DOCUMENTS: DEEDS AND OTHER DOCUMENTS

We are now turning our attention to the rules and principles being maxims, canons
that may be invoked to help us understand the meaning and legal effect of language
used in documents, statutes and constitutions. These rules may serve as guide but
not necessarily binding rules. Under the now dominant approach to interpretation
being the modern purposive approach to interpretation, the rules and principles are
geared towards resolving interpretative problems that combines Barak’s broad
definition of the ultimate purpose with the staggered approach of purposive system
of interpretation. The rules must be understood not to be cast in iron and stone .
Under MOPA the systems or the approaches to interpretation are
categorized into basic rules, aids to interpretation, presumptions and
special binding rules such as article 107 of the constitution on
retroactivity of legislation. Under MOPA these are employed together for the aim
of achieving the object of interpretation; that is the meaning, scope and legal effect
of language.

By basic rules it is in reference to the context of the rules or principles that should
give the pointers as to how interpretation should be done. That is the systematic
and progressive steps that ought to be followed in ascertaining the meaning of non-
statutory documents. These rules are deemed basic and accorded a lot of weight
and only departed from in circumstances where there are compelling and logical
reasons for doing so. Whiles some interpretative issues could be resolved at the level
of the ordinary meaning others may require a departure from the ordinary meaning
to a search for the secondary meaning to even what may have been necessarily
implied in the text. Today we begin with the basic rules of interpretation and more
specifically rules applicable in dealing with non-statutory documents:

A document is any tangible thing containing a writing that provides information on a

given subject. That would mean that a statute is a writing but our focus is only on
non-statutory writings. Document is defined by the Black’s Law dictionary, 6 th Ed as
“a physical embodiment of information or ideas, conveyances, guarantees, such as a
letter, contract, receipt, account book, blueprint, or X-ray plate; esp., the original of
such an embodiment”. In law documents will include deeds, conveyances,
guarantees, wills, agreements, title papers, bill of lading, letters, receipts, and other
written instruments used to prove a fact. Non statutory documents could be in the
form of unilateral documents/contracts and also bilateral and multilateral documents.

Black Law’s dictionary, 8th Ed. sees a deed as “At common law, any written
instrument that is signed, sealed, and delivered and that conveys some interest in
property”. In his work, The Law of Personal Property, 2 nd Ed 1955 at page 118, Ray
Andrews Brown defines a deed as:

“What then is a deed? Unfortunately the word is not free from ambiguity. In
the original and technical sense a deed is a written instrument under the seal
of the party executing it. Because, however, of the wide use of such
instruments in the conveyance of real estate, it has come to mean in popular
acceptance any formal conveyance for the transfer of land or of an interest
therein. The dual use of the term has crept into the language of courts and
law writers, so that in the reading of cases it is difficult to determine whether
the word is used in the first and original sense, or whether it connotes a
formal instrument of the type ordinarily employed for the conveyance of
land”.

And Dworkin defines a deed as “All deeds are documents, but not all
documents are deeds. For instance, a legend chalked on a brick wall, or a
writing tattooed on a sailor's back may be documents but they are not deeds.
A deed is, therefore, a particular kind of document. It must be in writing and
a writing on paper or its like, e.g., vellum or parchment. Any instrument
under seal is a deed if made between private persons. It must be signed,
sealed, and delivered. A deed must either (a) effect the transference of an
interest, right or property, or (b) create an obligation binding on some person
or persons, or (c) confirm some act whereby an interest, right, or property
has already passed.”
Odgers on Construction of Deeds and Statutes defines a document as “some writing,
which furnishes information about something”.

Halsbury’s Laws of England, 4tt Ed. Vol 12 paragraph 1301 defines a Deed as:

“A Deed is an instrument which complies with the following requirements.

First it must be written on parchment or paper. Secondly it must be executed
in the manner specified below by some person or corporation named in the
instrument. Thirdly, as to subject matter, it must express that the person or
corporation so named makes, confirms, concurs in or consents to some
assurance (otherwise than by way of testamentary disposition of some
interest in property) or some legal or equitable right, title, or claim or
undertakes or enters into some obligation, duty or agreement enforceable at
law or in equity or does or concurs in some other act affecting the legal
relations or positions of a party to the instrument or of some other person or
corporation. To be executed by a party as his deed, the instrument must be
sealed with a seal which is or can be regarded as his seal and must be
delivered as his act and deed”.

The classic meaning of a deed under common law is not the same in Ghana. Date-
Bah JSC in the case of Owusu-Asiedu v Adomako & Adomako [2006-2007]
SCGLR 591 @600 noted that an instrument that is, signed by the parties, attested
and delivered would be recognized as a binding deed as it evinces the intention of
the parties and the court will give validity to it. In fact the court concluded as
follows:

“A deed need not be sealed but a deed that is not sealed must be signed and
the signature must be witnessed and attested. The deed must also make
clear on its face that it is intended to be a deed. Thus the requirements of
Deeds, as far as individuals are concerned are as follows: A deed need not be
sealed, but a deed that is not sealed must be signed and the signature must
 be witnessed and attested. An attested and witnessed signature will be
recognized by the courts as a substitute for the requirement for a seal…
where an instrument is sealed and delivered it will continue to be recognized
as a deed. Delivery in relation to deeds does not mean that there should be a
transfer of possession. I refers to conduct indicating that the person has
executed the deeds intends to be bounds”.

An instrument, which may encompass an indenture, a lease, an assignment, a

written contract, is much known in the Ghanaian context than the English Deed. The
general form that such an instrument which relates to land should comply with has
been laid down by statute, that is sections 1, 2 and 2 of the Conveyancing Act,
NRCD 175 which has been repealed and re-enacted as sections 34 to 36 of the
Lands Act, Act 1036 and has been given judicial interpretation in a number of cases:

The sections 34-36 Act 1036 states as follows:

“A contract for the transfer of an interest in land is not enforceable if the contract is
not
(a) evidenced in writing and
(b) signed by
(i) the person against whom the contract is to be proved or
(ii) a person who is authorized to sign on behalf of that person or exempt
under section 36.
35(1) A transfer of an interest in land other than a transfer specified in section 36,
shall be in writing and signed by
(a) the person making the transfer or by the agent of that person duly
authorized in writing
(b) and the person to whom the transfer is made or the agent of that person
duly authorized in writing

(2) A transfer of an interest in land made in a manner other than provided in this
section does not confer an interest on the person to whom transfer is made”.
Exceptions have been provided for under section 36 to include transfers that takes
effect by operation of law, by operation of the rules of equity relating to the creation
or operation of resulting trust, implied or constructive trusts, by order of the courts,
by will or upon intestacy, by prescription, a lease for a term not exceeding three
years whether or not the lessee is given power to extend the term, by license or
profit other than a concession required by an enactment to be in writing or by oral
grant under customary law.

For in the case of Sarpong (Decd) sub by Nana K Kodua v Franklin Adobobi
Jantuah J4/15/15; 17th Feb., 2016; Benin JSC in applying sections 1, 2 and 3 of
NRCD 175 noted that a transaction affecting land for a period of more than three
years ought to be in writing to be effective. Again in the case of Anthony Wiafe v
Dora Borkai Bortey & Othrs J4/48/2015 dated 1st June, 2016, Benin JSC
emphasized that it is not even the fact of registration of one’s instrument or
document that gives validity to one’s title but only one of security of title
but what provides validity is when the instrument has met and conformed
to sections 1 and 2 of NRCD 175 and now sections 34-36 of the Lands Act .
See also Asante Appiah v Amponsah alias Mansah [2009] SCGLR 90.

The underlying principle in interpreting non-statutory documents is to search for the

subjective authorial intent in the absence of compelling circumstances not to do so.
The ordinary meaning of the text, if plain under the MOPA becomes the subjective
purpose. The interpreter target the subjective authorial intent but there is
employment of objective evidential standard in arriving at the subjective authorial
intent. There is an examination of what a reasonable hypothetical writer would be
presumed to have meant by the words employed in the document. Some of the
principles are peculiar to non-statutory documents and may not extend to statutory
documents and constitution. Some of these are falsa demontratio rule, contra
preeferentum rule etc. In the same way recourse to legislative history, preparatory
works etc are also peculiar to statutory interpretation but not non-statutory
documents.
First principle in construing an instrument or a document is to read the
document as a whole. One cannot claim to understand a document unless it has
been read as whole. Aharon Barak underscores this fact when he notes that:

“In seeking the purpose of the contract, Judges must treat the contract as a
whole. They learn its subjective purpose from the totality of contractual
provisions. No one provision is the source of the subjective purpose. The
various parts of a contract are entwined and connected with each other”.

And the authors of Halbury’s of Laws of England, 4 th Ed Vol 12 para 1469 also put it
this way:

“It is a rule of construction applicable to all written instruments that the

instrument must be construed as a whole in order to ascertain the true
meaning of the several clauses, and the words of each clause must be so
interpreted as to bring them into harmony with the other provisions of the
instrument, if that interpretation does no violence to the meaning of which
they are materially susceptible. The best construction of deeds is to make one
part of the deed expound the other and so to make all the parts agree. Effect
must as far as possible be given to every word and every clause”

You may see Manu v Emeruwa (1971) 1 GLR 422 where Abban J had to
construe the nature of the agreement between the parties as to whether it was a
pledge or mortgage. Whilst the plaintiff who had used his car as security for a loan
granted him by the defendant contended that the agreement was a pledge
defendant claimed it was a mortgage. Defendant urged the court to confine itself to
the four corners of the agreement entered into. Both parties were illiterates and the
document was read over and interpreted to them. Abban J held that:

“Even a restricted view of the document itself showed that, in spite of words
such as “absolute assignment,” “convenant” and “absolutely,” the transaction
was that of a pledge. All the terms of a document must be looked at and
 whatever phraseology may be adopted in some particular part of the
document, if on a consideration of the whole document there are grounds
appearing on the face of the document which afford proof of the real
intention of the parties, then that intention ought to prevail against the
obvious and ordinary meaning of those words”.

It is always dangerous to identify and isolate the provisions, clauses, phrases,

sections and give them independent meaning without reference to the entire
document. From the holistic appreciation, it should lead the interpreter then to
discover the intention of the parties to the document. You may also see the
case of Najat Metal Enterprises Ltd v Hanson [1982-83] GLR 81 where Najat
Metals was one of the companies within the Dakmak group of companies. AFRC
regime confiscated the Dakmak group of companies to the Republic. The companies
listed for which the State was to take over was Najat Company. In the writ, the
Plaintiff contended that it was not Najat Company but rather Ltd and was not the
one mentioned in the order. The State on the other hand contended that it was a
mere misnomer as the two are the same one company.

The court held among others that:

Where in all circumstances and looking at the document as a whole the

mistake was that the party was not accurately described, then it was a mere
misnomer and could be cured. But where the inaccuracy raised doubts about
the identity of the party intended, then the mistake was fatal. In the instant
case, on the evidence, there was no other entity other than the plaintiff to
which the description Najat Company might refer; the name Najat Company
could only refer to the plaintiff and no other company. Any other
interpretation would not give effect to the expressed intention of the maker
of the document. The plaintiff was therefore the company confiscated to the
State”.

Do you agree with the view of Cecilia Koranteng-Addow J?

Compare the decision in the Najat case with the decision of Taylor J (as he then
was) in the General Cold Industry v Standard Bank of Ghana Ltd [1982-83]
GLR 360 where the Plaintiff was known to the Registrar of Companies not as a
Limited Liability company and it was named so by the Assets and Bank (Schedule)
(Amendment) (No.15) Instrument, 1979 (L.I. 1216). When Plaintiff challenged the
decision by claiming that it was a different company from the one named in the L. I,
the State argued similar to Najat that it was one and the same company and the
description of the Plaintiff as a company was only a misnomer. The court held as
follows:

“The court would not construe the enactments by substituting for “Company”
the word “Industry” because that would be supposing that the legislature had
made a mistake. Accepting that it was a mistake, the law was that if the
legislature had made a mistake where there was no ambiguity in the
expression used, the remedy lay in an amending Act. The legislature ought to
know that that was the law and that ought to be kept in mind when
construing the enactments. It was not competent to read words into an Act
of Parliament without reason and the reason ought itself be found in the Act
itself”.

Which of the two views will you consider when construing the statute as a whole?

Again, in construing as a whole you may look at the case of Boateng v Volta
Aluminium Co Ltd [1984-86] GLRD 85 where the Plaintiff’s employment was
terminated and given one month pay in lieu of notice to him. He issued a writ
claiming that his termination was unlawful as clause 3 of the conditions of service
only provided for “a notice of one month” and there was no provision for termination
in lieu of notice. The court implied a one month payment in lieu of notice and
dismissed the originating summons. The Court of Appeal affirmed the decision by
having regard to clauses 1 and 2 in addition to 3 of the conditions of service. That
the clauses must be read as a whole and clause 3 need not be excluded as clause 1
gave such an option of payment of one month salary in lieu of notice. Abban JA (as
he then was) noted as follows:

“in attempting to construe the termination provisions, regard should be given

to all the four clauses, i.e the language used and all the provisions in the
termination clauses should be looked at as a whole and every clause must be
compared with the other and one entire sense made out of them. It was only
by so doing that the true meaning and the intention of the parties could be
discovered. In clause (1) the employee could terminate his services by giving
one month’s notice or by paying one month’s salary in lieu of notice to the
employer. But the payment of one month’s salary in lieu of notice was absent
in clauses (2) and (3). But reading all the clauses together, clauses (2) and
(3) were not intended to exclude the possibility of paying a month’s salary as
an alternative to giving a month’s notice. If clause (1) gave such an
alternative to an employee it was only fair and just that it should be inferred
or implied that the employer also had the same alternative in the other two
clauses, ie clauses (2) and (3). Such an inference would not only do that
which was the highest equity, namely make an equality between parties who
stood in the same relation, but would also effectuate the real object and
intention of the parties.

And in Chambers Colliery Co Ltd v Twyerould [1915] 1 Ch 268, the principle is

encapsulated in the following:

“The deed must be read as a whole in order to ascertain the true meaning of
its several clauses, and the words of each clause should be interpreted as to
bring them into harmony with the other provisions of the deed if that
interpretation does no violence to the meaning naturally susceptible”

Intention of the Parties

Second, the need for the Judge to read a document as a whole is only to discover
the intention of the parties and enforce it. That is any construction must be near to
the mind and intention of the makers of the document. And there is the presumption
that it is not the mind and intention of the makers to achieve absurd and
unreasonable results in a document.

Intention has been stated by Edzie to be used in one of three main senses. First that
is the actual metal mental state or subjective intent or purpose of the author of the
text of the document, being the meaning or purpose of the language employed in
the document. And that this is key in systems that rely on subjective interpretation.
Second is the intent that a reasonable author or reader of the text of the document.
That this second meaning is also key in systems that approach interpretation using
the objective idea of interpretation. The third is the aims, objects and motives in a
combination of the subjective and objective intent at the core of the text of the
document. And this is at the heart of MOPA which is the approach Barak posit.

Intention used may encompass both the subjective authorial intent and the objective
purpose underlying the text of the document. And even may involve the third scope
of the meaning of a combination of the subjective and objective purposes of the
text. And the interpretation must be near as possible to the purpose at the core of
the text as the law would permit. This principle was echoed in the case of Biney v
Biney [1974] 1 GLR 318 the Court of Appeal had to interpret the deed of
settlement of a settlor, J. P. O Biney which instrument was executed in 1910. He
was the father of the plaintiff and the grandfather of the defendants. In the deed he
conveyed his freehold interest in land to three persons to have life interest and
thereafter to his four children as remaindermen, their heirs and assigns forever. The
plaintiff became the sole survivor of the remaindermen and argued that on the basis
of the common law principle of jus accrecendi he became entitled to the absolute
use of the property. The trial Judge agreed with the construction place on the deed
of settlement by the plaintiff but on appeal the appellant argued otherwise that it
was not the intention of the settlor to convey the property absolutely to the plaintiff.
The Court of Appeal dismissed this argument when it laid down three main stages in
dealing with the meaning in the following:
“The deed of settlement, exhibit A, had to be interpreted in the light of three basic
rules of construction, namely:

(i) the construction must be as near to the mind and intention of the author
as the law would permit;

(ii) the intention must be gathered from the written expression of the author’s
intention; and
(iii) local authorities had firmly established that in pre-1974 conveyancing, technical
words of limitation in a document relied on as constituting a transaction known and
recognised by English law must have their strict legal effect according to the English
pre-1881 conveyancing law”.

By this the court came to the conclusion that the settlor intended his property to be
governed by English law and not distributed in accordance with the customary
principles of matrimonial distribution of property. That he intended to vest his
property in his children and not the family as known under custom.

Similar views had earlier been expressed by Knight Bruce in Bird v Luckie (1850)

68 ER 373:

“No man is bound to make a will in such a manner as to deserve approbation

from the prudent, the wise or the good. A testator is permitted to be

capricious and improvident, and is more at liberty to conceal the

circumstances and the motives by which he has been actuated in his

dispositions. Many a testamentary provision may seem to the world arbitrary,

capricious and eccentric, for which the testator, if he could be heard, might

be able to answer most satisfactorily.”

In giving effect to the contents of a document, the court is not giving its blessing
and support to all the contents of the document. The court is only expressing its
satisfaction that the document has been validly executed and represent what the
parties intended to be enforced as a binding contract. The Courts are not to interfere
with a document whose intent is manifest. It is not the business of the courts to
draw contracts or agreements for parties but to ensure that documents drawn and
which manifest the intention of the parties is not defeated simply because its terms
are not pleasant to the court. And in embarking on this exercise any construction
that makes the meaning of the document unreasonable, absurd, unintelligible, and
incongruous or that may tend to create undue hardship for the parties and third
parties may be said not to be closer to the intention and purpose of the makers of
the document. By this approach the court in the Biney case gave technical words
their technical meaning.

Intention must be gathered from the written instrument.

In an attempt to discover the intention of the makers of the document, the discovery
must begin with the instrument before the court for interpretation. For the intention
is the soul of a document which is rendered as animus hominus est anima scripta
(the intention of the parties is the soul of the instrument) or in order to give life or
effect to an instrument, it is essential to look to the intention of the persons that
executed it. And it is for the court to give meaning to what has been
expressed but not necessarily what ought to have been expressed except
where the expressed meaning leads to absurdity to repugnancy.

As to what is the intention of an author of a document could also be seen expressed

in the case of Prempeh v Agyepong [1993-94] 1 GLR 225 where the deceased,
a lawyer lived with his girlfriend in concubinage. Upon his death, the appellant
claimed that the house they lived together had been willed to her in a draft will that
was tendered as Exhibit “A”. The trial Judge gave judgment for the paramour that at
least the draft could be the samansiw of the deceased and besides that the
deceased referred to her as wife but was overturned on appeal. Undaunted she
proceeded to the Supreme Court. at the court of appeal this is what Ampiah JA (as
he then was) said:

“For the court to rely on an incomplete, unsigned and unapproved draft of a

will to determine the intentions and wishes of the maker in the face of
evidence that the will the court was interpreting was based on only part of
the instructions the maker gave for the preparation … Counsel for defendant
has argued that the court should interpret exhibit 1 in accordance with law
irrespective of the intention of the testator. In other words the court must
propound the document as samansiw if it satisfied the ingredients of the law
but must not look at the intention of the testator. This submission is not only
unfortunate but it is also bad in law. The maxim is animus hominis est anima
scripti (intention is the soul of an instrument). Infact the whole essence of a
will is the declaration of the will of the wishes of the testator. One cannot
pass a document as a will or samansiw if it does not contain the intention
wishes of the maker”

The Supreme Court also rejected the draft document as an expression of the will of
the deceased in the following words:

“the cardinal principle in the construction of wills was that, they should be so
construed as to give effect to the intention of the testator, since the whole
essence of a will, in any case, was the declaration of the wishes and intention
of the testator. In Ghana there were two forms of wills, one under the Wills
Act, 1971 (Act 360) and the other under customary law. Since the ingredients
required to establish any of those two forms of wills were different, it was
incumbent on the court to determine the intention of the testator as to which
of those two wills he contemplated to adopt. In the instant case, the initial
expression of the deceased in exhibit 1 indicated that he had intended to
make a will under Act 360 and not samansiw, because he had specifically
excluded a will under customary law and in any case at the time of writing
exhibit 1 the deceased did not have any fear of imminent death. Accordingly,
 exhibit 1 which had failed as a will for not fulfilling the requirements of Act
360, could not be honoured as a samansiw

The court in Allan Sugar (Products) Ltd v Ghana Export Co Ltd [1982-83]
GLR 922 where the facts were that the National Investment Bank (NIB) loaned
¢300,000 on a mortgage to a co-operative society engaged in vegetable marketing.
On the failure of that society to repay the loan, the NIB foreclosed the mortgage.
The property consisted of 200 acres of irrigated land, an irrigation system and
buildings. By an assignment dated 1 May 1978, NIB sold 50 acres of the land and
the buildings for the sum of ¢25,000 to AS Ltd., a company engaged in sugar-cane
production, for the unexpired term of the society’s lease. After protracted
negotiation, NIB agreed to assign the remaining 150 acres together with the
exclusive use of the irrigation facilities to GE Ltd. The Plaintiff sued claiming that it
was entitled to the use of the original equipment on the land as there was a general
understanding that the ownership of the land included use of the irrigation pumps as
well on the land. The trial court dismissed the action and the Plaintiff appealed
wherein the Court of Appeal noted that:

“Although the matrix of facts, events, surrounding circumstances and

nuances should be taken into account in ascertaining the real intentions of
parties to an agreement and in construing it, where parties had reduced into
writing their intentions they were bound by their written word and the use of
extraneous material as aids to interpretation could only be resorted to in
extreme cases of genuine doubt … It is no function of the court to rewrite an
agreement for the parties by inserting terms that would have been beneficial
but were overlooked especially when such interpolation would amount to an
interference with a third party’s bargain”.

You may also read the case of Monta v Paterson Simons (Ghana) Ltd [1974] 2
GLR 162, a judgment of Mensa-Boison J on the interpretation of a tenancy of
fifteen years duration but a party having the option to give notice of termination, ten
years into the tenancy. The exercise of that option and the taking out of originating
summons for an interpretation by the Plaintiff. Held at page 164 that:

“A wholesome principle of interpretation is to construe the language used in

the particular document and although precedents are a useful guide, it seems
to me in the field of interpretation it may be said that there are no precedents
strictly so-called as each document is to be construed specifically. Our task
therefore may not be lightened, as urged by counsel, by what words ought to
have been used but were not’.

A look may also be taken at the case of Akim Akroso Stool v Akim Manso Stool
[1989-90] 1 GLR 100. The Akim Akroso stool sued the Akim Manso stool for a
number of reliefs including declaration of title to a piece of land and a claim of fraud
for which reason it sought to set aside a conveyance entered into in 1948 between
the defendant stool and a third party. The defendant on the other hand in its
defence pleaded estoppel as it contended that numerous judgments have affirmed
its ownership of the land. The plaintiff did not seek to set aside the judgment being
relied on by the defendant as constituting estoppel neither did the plaintiff raise any
issue of fraud regarding the judgment in previous litigation. The court in dismissing
an appeal filed by the plaintiff stool noted as follows:

“What the words in a document meant could only be derived from the
document itself. The intention of the parties had to be gathered from the
written instruments. The function of the court was to ascertain what the
parties meant by the words which they had used. The court was to declare
the meaning of what was written in the instrument and not what was
intended to have been written so as to give effect to the intention expressed;
for it was not permissible to guess at the intention of the parties and
substitute the presumed intention for the intention. Since in the instant case
the plaintiffs were not parties to the conveyance complained of, their
intention or presumed intention could not be substituted for the clear
intentions of the parties who had accepted the document as binding on them”
The court further noted that if the intention could be derived from the instrument it
would give effect to them notwithstanding ambiguities in the words used or defects
on the face of the instrument. And even if the words are capable of two meanings,
the meaning that would tend to uphold the instrument would be adopted.

The expressed words used in the document becomes the guiding steps to its
meaning. This is how Halsbury’s Laws of England put it:

“The intention must be gathered from the written instrument read in the light
of such extrinsic evidence as is admissible for the purpose of construction.
The function of the court is to ascertain what the parties meant by the words
they have used, to declare the meaning of what is written in the instrument,
not what was intended to have been written. To give effect to the intention
as expressed in the document.

Tyndale CJ as far as back as 1842 had expressed such a view when he noted that:

“In no case whatever it is permitted to explain the language of a deed by

evidence of the private views, the secret intentions, or the known principles
of the party to the instrument, whether religious, political or otherwise,
anymore than by the express parole declarations made by the party himself
which are universally excluded. For the admitting of such evidence would let
in all uncertainty before adverted to”.

In other words the primary words used in a document becomes the primary
meaning when unambiguous within the context they are placed. More so when the
words used are sensible enough at the time the writer used them. And that meaning
ought to be taken as what the writer meant them to be. It is not allowed except in
rare circumstances for evidence to be adduced to contradict the expressed intentions
of the makers of the document. Simple the author has stated what he intended to
say by the express words used in the document.
There may be rare instances especially when it comes to construction of Wills for
extrinsic evidence to be admitted to explain what a testator has written. But no
evidence can be admitted to show what the maker of the document intended. There
are two main exceptions to the basic rule that the intention of the parties must be
collected from the instrument itself. The case of Re Atta; Kwako v Tawiah
[2002-2003] SCGLR 461 set down two exceptions to the rule and states them as
follows:

1. Cases of equivocation of latent ambiguity such as in cases where the name

used or the description of the property mentioned in the will may
refer to two or more persons and applied ambiguously to both of
them, extraneous evidence may be admitted to clarify the name or
description of the property written in the will.

2. Under the arm chair rule, as contemporaneous evidence that was explanatory
of the meaning which the testator assigned to a word or a name. That is
where the rule permit admission of extrinsic evidence to interpret a will for
the purposes of giving effect to the words used. That is when the meaning
of words or names could not be ascertained from the instrument
without knowing more which may be beyond the four corners of the
will. The rule allow the admission of evidence relating to the facts and
circumstances relating to the property of a testator and persons mentioned in
the will that could not be ascertained without the benefit of extraneous
evidence. The rule may be applied to admit evidence relating to the state of
property which is the subject matter of bequests for the purposes of
identification. It applies only to properties mentioned in the will. And also
regarding the named beneficiaries to the property.

In contract law besides the law sticking to the terms of the contract and the
reluctance of the court to allow any extrinsic evidence, there are some limited scope
in which some terms not specifically stated in the contract may be received as part
of the terms of the contract. First is a statute may imply terms into a contract. The
terms implied by a statute may not be found within the terms of what the parties
agreed to and not based on the intentions of the parties to the contract. The Sale of
Goods Act, Act 137 imply several terms into any contract for the sale of goods in
Ghana.

A contract may also imply or incorporate a custom relevant to the market, trade or
the locality into a contract. The course of dealings of parties over time which has
developed a certain may also be deemed to be an implied terms that a court may
impute into a contract more so when the custom has been accepted by the parties in
the course of doing business. The third is that common law may also imply terms
into a contract. Common law knows of “terms in fact” which is employed to give
effect to what the parties perceive to be the unexpressed intention. And to apply it
the test is the “officious bystander” test. The terms in fact under common law was
stated by Lord Simon in the case of BP Refinery (Westernport) Pty Ltd v Shire
Hastings [1978] All ER 20 @ 26 that:

“For a term to be implied, the following conditions which may overlap must
be satisfied: One it must be reasonable and equitable. Two it must be
necessary to give business efficacy to the contract; so that no term can be
implied if the contract is effective without it. Third it must be so obvious that
it goes without saying; four it must be capable of close expression and five it
must not contract any express term of the contract”.

Then also under common there are also what is known as “terms implied in law”
that may be implied into all contracts of a particular type. So terms are frequently
implied into a contracts of employment. There is an implied contract that the
employee will serve the employer faithfully and diligently. Terms are implied into
contracts between landlords and tenants under common law by virtue of the general
incidents of such contracts

Context and Ordinary Meaning

One cannot seek for the intention of the makers without taking account of the
context and the ordinary meaning in which words bear. Such was the case of
Impraim v Baffoe [1980] GLR 520. In this case by his Will dated 28 May 1937
the testator, directed that on his death, his dwelling house referred to as “Jehova
Villa” should be occupied by certain named members of his family and their children
as a family house. He further directed that other members of his maternal and
paternal families were to be given rooms when they were in need of
accommodation, and the house should never be sold. These directives of the
testator were followed until the death of the executors, when the defendant, head of
the testator’s family, unilaterally took over the management and control of the house
and decided to collect rents due to the estate. As a result of this intermeddling by
the defendant, the plaintiff by an originating summons requested the court to
determine the interest of the wider family in the house left by Testator as well as the
meaning of “children” in the will. The court interpreting “children” within the context
in which it appeared ruled as follows:

“As a general rule, the expression “children” meant immediate descendants

and did not include grandchildren. It might however appear on the
construction of a particular will that the testator used the word “children” in a
wider sense so as to include grandchildren and remoter issues, and this might
appear in the context of the will itself. In the instant will under consideration,
the testator obviously, a man of a respectable level of education and a
minister of religion, excluded his family and devised the property to a
“devisee family” and decreed that the houses should never be sold. In such a
context the word children could only make sense and give expression of his
intention if it was construed to include remoter issues of the specified
beneficiaries”.

However, in the case of Addai v Donkor 2nd May, 1992 (unreported) decision of
the Supreme Court, the court within the context in which the word “ children”
occurred in the will of the Testator construed it to mean the sons and daughters of
the niece but not grandchildren of the niece neither members of the extended
family. The facts are as follows: the court was called upon to; inter alia, construe
paragraph 7 of the Will of the deceased testator wherein he devised his freehold
house to his niece (Yaa Badu) for life and after her death to her “surviving children”.
At the trial, counsel for the respondent urged the court to interpret paragraph 7 of
the Will as creating a “special family” for the enjoyment of property devised under
the Will and that the respondent, a great grandchild of the testator, was a member
of that family and consequently had locus standi in the matter. Counsel for the
appellant was however opposed to such an interpretation to “surviving children” in
paragraph 7 as including the “descendants” of the testator. In his judgment, the trial
circuit judge construed the word “children” as meaning “descendants”. This meaning
of “children” was however rejected on appeal to the Supreme Court which held that
“surviving children of Yaa Badu” only meant the sons and daughter of Yaa Badu who
might be alive on the death of Yaa Badu. The court opined that:

“when a person chooses a particular language to express himself, he must be

presumed to mean what the words he has used normally mean in that
language. Here the testator decided to use the English language from the
language of the … will it almost appears that exhibit B was prepared by a
lawyer, who must be deemed to know the difference between children and
descendants. Children must be taken to mean what it means in the English
language that is sons and daughters of any person”

In all the different interpretation given to children, what was material was the
context in which the word found itself.

Technical and Scientific Meaning

It is true that words are first to be given their ordinary meaning as they appear.
However in Interpretation where words are used in their technical and scientific
sense, such meanings must be assigned to it. Words that have peculiar meaning to
specialized fields such as architects, lawyers, engineers, accountants, doctors would
have to be given the scientific or the technical meaning assigned the words. In the
case of Shore v Wilson (1842) 9 CL & F 355 Lord Coleridge stated on application
of scientific and technical meanings as follows:

“If the language be technical or scientific, and it is used in a matter relating

to the art or science to which it belongs, its technical or scientific meaning
must be considered its primary meaning”.

For in Monta v Paterson Simons (Ghana) Ltd supra, the court noted on the use
of technical words in a document that:

“It is a rule of construction that where legal terms or words of well-known

legal import are used by lawyers, especially by conveyancers, they will have
their technical legal import … this rule applies even if by mistake of the
draftsman there is a manifest failure to fulfil the intention of the testator.

The Biney case also noted that technical words must be given their technical
meaning in a document. In instances where the technical meaning appears to be
incongruous or may work injustice, a secondary meaning may be resorted to for the
intention of the makers.

Secondary Meaning
To avoid absurdity if the application of the ordinary meaning would lead one to that
conclusion, the words may be modified as far as the context and the document as a
whole is capable of bearing. The secondary meaning of a word is not materially
different from the golden rule of interpretation. For Maxwell on Interpretation of
Statutes, 11th Ed. at page 221 states as follows:

“Where the language of a statute in its ordinary meaning and grammatical

construction, leads to a manifest contradiction of the apparent purpose of the
enactment, or to some inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon it which modifies
the meaning of the words and even the structure of the sentence”.
This is summed up in Grey v Pearson (1857) HLC 61 @106 in the golden rule of
interpretation that:

“in construing wills and indeed statutes, and all written instruments, the
grammatical and ordinary sense of the words is to be adhered to, unless that
would lead to some absurdity, or some repugnancy with the rest of the
instrument, in which case the grammatical and ordinary sense or the words
may be modified, so as to avoid the absurdity and inconsistency but no
further”.

The secondary meaning was emphasized in Sam v Comptroller of Customs &

Excise [1971] 1 GLR 289 that:

“it is the duty of a court, in interpreting an enactment to give effect to the

intention of the legislature. Therefore, where words in an enactment are clear
and unambiguous no question of interpretation arises, but where the ordinary
meaning of the words used leads to a manifest absurdity or repugnancy, a
court may alter the words of the enactment, but only to the extent of
avoiding the absurdity or repugnancy”.

This view has received endorsement under the Interpretation Act, Act 792.

Power to rectify Mistakes

The court or the Judge has power in appropriate circumstances to correct mistakes
errors, to achieve the subjective authorial intent of the makers of the documents.
For this is the point of Lord Leonards in the case of Wilson v Wilson (1854) 5 H.L
Ca 40 when he said that:

“Now it is a great mistake if it be supposed that even a court of law cannot

correct a mistake, or error on the face of an instrument. There is no magic in
words. If you find a clear mistake and it admits of no other construction, a
court of law as well as a court of equity without impugning any doctrine
about correcting those things which can only by shown by parole evidence to
 be mistakes – without I say, going into those cases at all, both courts of law
and equity may correct an obvious mistake on the face of an instrument
without the slightest difficulty”.

A court is not to correct what it may be a mistake unless it is clear to be a mistake.

The mistake could be one of wrong grammar as it was been noted that neither false
Latin nor false English will make a deed void when the intent of the parties appear
clear. For two negatives do not make an affirmative when the apparent intent is
contrary. There could also be mistakes relating to the subject matter. See Najat
Metal Enterprise Ltd v Hanson supra (182-83) GLR 81. See also Wilberforce
v Wilberforce [1999-2000] 2 GLR 312 where the testator described his two
nephews as sons being beneficiaries. And attempt was made to set aside the device
to them because of the false description. The court rejected that and held that:

““Inaccurate references to beneficiaries under a will per se did not invalidate

bequests. To do so, there had to be evidence that a beneficiary adopted a
false character and that this was done fraudulently to deceive the testator,
and further that the deceit was perpetrated with the motive of benefiting
under the will. Besides, it was a rule of construction applicable to all written
documents, including wills, that if a term used to describe a subject matter
was sufficient to ascertain that subject matter with certainty but other terms
add a description which was not true, these other terms would not be allowed
to vitiate the gift. And if such false description could not vitiate a gift, then it
certainty could not nullify a whole will. In the instant case however the court
would also take judicial notice of the fact that it was not uncommon by
Ghanaian custom and traditions that nephews and nieces should be
affectionately referred to as sons and daughters by their respective uncles
and aunties. In the circumstances the use of the word “sons” to describe the
two nephew of the testator did not in any way detract from the validity of the
will”
There are other mistakes such as punctuations, omission of words, repugnant and
inconsistent words, clauses or which a court is also allowed to remedy.

The last being that the above rules are to be applied together or in conjunction with
any rules of interpretation such as aids to interpretation, presumptions or special
binding rules in the appropriate context and circumstances.

Rules for Interpretation of Foreign Laws in Ghana

By section 40 of the Evidence Act, there is a presumption, a rebuttable one though,
that the law of a foreign country is presumed to be the same as that of Ghana.
Where the presumption is displaced and there is the need to interpret the laws of a
foreign country, section 54 of the Courts Act, Act 459, on the choice of law rules
provides some guidance to the courts in the interpretation of choice of law rules as
follows:

“(1) Subject to this Act and any other enactment, a court when determining the law
applicable to an issue arising out of any transaction or situation, shall be guided by
the following rules in which references to the personal law of a person are
references to the system of customary law to which he is subject or to the common
law where he is not subject to any system of customary law:

Rule 1. An issue arising out of a transaction shall be determined according to

the system of law intended by the parties to the transaction to govern the
issue or the system of law which the parties may, from the nature or form of
the transaction be taken to have intended to govern the issue.

Rule 2. In the absence of any intention to the contrary, the law applicable to
any issue arising out of the devolution of a person's estate shall be the
personal law of that person.

Rule 3. In the absence of any intention to the contrary, the law applicable to
an issue as to title between persons who trace their claims from one person
 or group of persons or from different persons all having the same personal
law, shall be the personal law of that person or those persons.

Rule 4. In applying Rules 2 and 3 to disputes relating to titles to land, due

regard shall be had to any overriding provisions of the law of the place in
which the land is situated.

Rule 5. Subject to Rules 1 to 4, the law applicable to any issue arising

between two or more persons shall, where they are subject to the same
personal law, be that law; and where they are not subject to the same
personal law, the court shall apply the relevant rules of their different
systems of personal law to achieve a result that conforms with
natural justice, equity and good conscience.

Rule 6. In determining an issue to which the preceding Rules do not apply,

the court shall apply such principles of the common law, or customary law, or
both, as will do substantial justice between the parties, having regard to
equity and good conscience.

Rule 7. Subject to any directions that the Supreme Court may give in exercise
of its powers under article 132 of the Constitution, in the determination of
any issue arising from the common law or customary law, the court may
adopt, develop and apply such remedies from any system of law (whether
Ghanaian or non-Ghanaian) as appear to the court to be efficacious and to
meet the requirements of justice, equity and good conscience.

(2) Subject to this Act and any other enactment, the rules of law and evidence
(including the rules of private international law) that have before the coming into
force of this Act been applicable in proceedings in Ghana shall continue to apply,
without prejudice to any development of the rules which may occur.

In contracts, the parties may agree that the Ghanaian courts shall have jurisdiction
to adjudicate in the event of dispute but in the choice of law applicable, may opt or
state that it should be governed by a foreign law. In that event, the court will have
to resort to the above rules in the interpretation of the foreign law.