Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024

academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
CONSTRUCTION OF LEGAL DOCUMENTS AND DRAFTING

LECTURE NOTE

LECTURER: JUSTICE MAMI

RECOMMENDED TEXTS AND ACTS

1. Benion on Statutory Interpretation

2. Odgers’ Construction of Deeds and Statute
3. Interpretation Act 1971
4. Constitution of Sierra Leone Act No 6 of 1991
5. Home Mortgage and Finances Act of 2007
6. Thornton’s Legislative Drafting
7. High Court Rules 2007
8. Count of Appeal Rules No 5 of 1985
9. Supreme Court Rules No 2 of 1982
10. Bullen & Leake on forms and precedent
11. Adoption act No 9 of 1989
12. Black’s law dictionary
13. The wills Act of 1837
14. Vendors and purchaser’s Act 1874

1
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
CONSTRUCTION OF DEEDS

WHAT IS A DEED

A deed is some writing which furnishes evidence of information about

something. All deeds are documents but not all documents are deeds.
For instance, a legend chalk on the wall or a writing tattoo on sailor’s
arm it may be a particular kind of document, but it is not a deed. A
deed is therefore a particular kind of document that must be (have the
following characteristics/features):

1. In writing,
2. Signed,
3. Sealed and
4. Delivered

A deed must therefore create or transfer interest or right in property,

create some binding obligation upon some third person or confirm
some act whereby property itself might have passed.

Under the common law, signing was not an essential ingredient, some
of which crystallized into statutory Instrument.

WHERE ARE DEEDS REQUIRED?

2
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
A deed as opposed to an instrument in writing or document was
required by the common law in all cases in which writing was
required. Under the common law, all interest in land had to be by deed.

WHEN ARE DEEDS VOID OR WHEN THEY ARE VOIDABLE?

I. A conveyance not under seal is void.

II. Where a deed is sealed and delivered by the executant under a
fraud or misrepresentation of another person so that the person
who signs the document is not aware of the fraud or the
misrepresentation (This is also void). In this case, the plea of non
est factum will be raised and this applies not only to deeds.

There are two grounds on which this plea can be raised:

NO 1 - MISTAKE AS TO THE CLASS AND CHARACTER OF THE

DOCUMENT/DEED.

If there has been a fraudulent misrepresentation as to the class and

character of the document and not its content, it is void. See the case
of UAC v Mackfoi and also the case of foster v Mackinonen.

In the Foster v Mackinonem case, the defendant endorsed a bill of

exchange having being fraudulently induced to believe that it was a

3
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
guaranty. The plea of non-est factum was available to the defendant
against a third party.

Similarly, in the case of Muskham finance Ltd v Howard, the defendant

when obtaining a car on hire purchase from a finance company, he was
fraudulently induced to sign a guaranty form when he thought he was
signing a sales note and thus, it was void.

In both cases the parties were mistaken as to the class and character of
the document.

NO. 2 – MISTAKE AS TO THE CONTENT

If there is a mistake however merely as to the content of the document,

the executant is bound by it as regards third parties though the
document may be voidable as between the immediate parties.

Signing

Before 1925 law of property Act, the English provision was not clear.
However thereafter, it is now an essential ingredient that an individual
has either sign a document or put a mark of a seal thereon

Sealing

4
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Sealing is an essential ingredient of a deed. Before writing became an
essential element, a man signifies his ascent to a document by
impressing it with a seal (no writing without a seal can be a deed)

Delivery

This is an essential ingredient of a deed which takes effect not from its
date from its delivery. After a deed is written and sealed, if it be not
delivered, all the rest is to no purpose. Where a contract is to be by
deed, there must be delivery to perfect it. Delivery signifies the handing
over of something example, land or an intangible interest in it (eg
leasehold) which cannot be transferred in hand as a chattel

Corporations

The common law rule was that a contract of a corporation was not
enforceable unless it was made under seal. However, there has been
statutory exception to this rule.

Attestation

The meaning of attestation is that one or more persons are present at

the time of the execution for that purpose and that as sign of evidence
however they signed the attestation clause stating such execution.

5
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Attestation however is not necessary to the validity of a deed but in
practice it is invariably adopted.

ALTERATIONS AND ERASURES

An instrument may come before the court for construction with all the
requisite essentials of a deed as listed above but with obvious
interlineations or erasures in it. The question is how should the court
deal with these issues?

1. Presumptions – The presumption in the case of deeds is that

alterations were made prior to the execution. In the case of a will,
the presumption is that they were made after the will (this is
because wills are very sacred documents and the intention of the
court is to give effect to the intention of the testator). In either
case however, all these presumptions may be displaced by
evidence. The evidence however in the case of a will has to be
very cogent and strong. However in the case of document not
under seal, the party relying on the document must show to the
court when the alterations were made unless it is obvious that
they were made before the documents were signed. It also lies
upon him to explain the alterations.

6
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Effect of alterations (if they are altered on a document) – In
1615, in The Pigots case, it was held that all alterations in a deed
after execution made it void, no matter whether the alterations
were material or not. In this Pigots case, the alteration was the
affixing of the seal by some person unknown, thus it was said that
under the pigot case, even the act of a stranger will invalidate the
deed “the strictness of the rule on this subject as laid down in
the pigots case, can only be explained on the principle that a
party who has the custody of an instrument made for his benefit
is bound to preserve it in its original state …, the party who may
suffer has no right to complain, since there cannot be any
alteration except through fraud or laches (delay) on his part”
BRIEF FACT OF THE PIGOT CASE (OTHERWISE REFERRED TO AS
THE GHOST OF THE PAST)
In 1611 Henry Hudson was suffering the indignities of a mutiny
after naming Hudson Bay after himself, and Shakespeare’s last
play (The Tempest, also ironically about a shipwreck) was
debuting. In the same year, with rather less fanfare, a certain Mr
Henry Pigot executed a bond acknowledging his indebtedness to
one Benedict Winchcombe. Three years passed, and Winchcombe
was subsequently appointed High Sherriff of Oxford. At this point
7
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
some unknown but well-meaning person inserted the words “High
Sherriff of Oxford” in Latin under Winchcombe’s name on the
deed. Later that same year, Winchcombe tried to enforce the deed
against Pigot, but Pigot claimed that the deed could not be
enforced against him on the grounds it had been altered, and was
therefore void.
The decision of Sir Edward Coke in the Pigot case
While departing from previous precedents and trying to rewrite
the law on the subject matter, Sir Edward Coke stated that:
1. A deed is void if it is altered in any way by the person in favour
of whom the deed is executed.
2. A deed is also void if altered in a material way by a third party;
but.
3. A deed is not void if it is altered in a non-material way by a
third party.

In summary, despite the fact that the judgment of Coke had the
effect of softening the previous law as in the case of Elliott v
Holder (1567), the rule remains a trap. In this case therefore,
because the amendment was held by the jury not to be material,

8
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
and because an unknown third party had amended the deed, Mr
Winchcombe was able to enforce his claim.

ALTERATION BY A STRANGER

A stranger is a person who is not a party or claiming through a party to

a deed. The law will have no effect on the deed although it is said that,
if the documents were in his custody at the time of the alteration, he
will be unable to do so because of the principles of laches or estoppel.

GENERAL RULES OF INTERPRETATION

When the court is faced with a document to determine whether it is a

deed or whether it is void or voidable and what the essential ingredient
of that deed is we consider first the essential characteristics of a deed,
the state of the document and whether it is sealed and or delivered.
The court is then faced with the question what does this deed mean.
This question is not to be confused with what is the effect of this deed
or what the parties intend to say. The question is what it is that they
have said and what is the meaning attached to the words used. To a
layman, the easiest way to answer this question, you may call the
parties before the court and ask them what they meant. In that case,
the parties do not only usurp the functions of the court but will
probably hold different opinion as to what the words actually mean.
9
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
The courts have over the period crystalize into a body of rules
deduced from decisions taken and it must be noted that these rules
are not rules of law but the application depends on the facts and
circumstances of each case.

RULE 1

The meaning of the document or of a particular part of it is therefore

to be sought for in the document itself (no extrinsic part allowed) –
This means in other words that the intention of the parties must be
discovered if possible from the expressions that they have used. In the
large majority of cases, this shows no problem but however there have
been complex cases where the courts has had some difficulties over the
period and therefore have formulated rules which have survived the
test of time. Sir Gorell Barnes said in a testamentary suit “but what a
man intends and the expression of his intentions are entirely two
different things, he is bound and those who take after him are bound
by his express intention if that expressed intention is unfortunately
different from what he actually desires so much the worse for those
who wish the actual intention”. In a very old case Beamont v makins
of savings … per Romily MR says “the court cannot understand the
true intent of the indenture but only of the words of the indenture”.

10
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
In the case of Re Meredith ex-parte chick Lord Justice Brethe said “I
am disposed to follow the rule of construction which was laid down
by Lord Denman and Bowen pack… they said that in construing
instrument, you must have regard not to the presumed intention of
the parties but to the meaning of the words which they have used”

RULE 2

The intention may prevail over the words used ordinarily. Parties use
apt words to express their intentions but often they do not. What if the
intentions so collected will not square with the words used? The
answer is that the intentions prevail. The law is anxious to save a deed
if possible. If by any reasonable construction, the intention of the
parties can be arrived at and the intention carried out consistently with
the rules of law, the court will take that out. In the case of Hilas & Co v
Arcos Ltd 1932 147LT 503 Lord Wright said “businessmen often record
the most important agreement in crude and summary fashion, modes
of expression, sufficient and clear to them in the course of their
business may appear to be unfamiliar with the business far from
complete of the size. It is accordingly the duty of the court to construe
such documents fairly or broadly without being too astute in defining
the effect”

11
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
RULE 3

Words are to be taken in their literal sense - The plain ordinary

meaning of the words used is to be adopted in construing a document.
The subject matter may show however that the words have a meaning
different from their plain ordinary or popular meaning (otherwise it will
create absurdity)

If the words cannot have been used by the parties in the sense they
literally bear some other meaning if discoverable from the document
must be used in order to give effect to the intention of the parties.
Discovering the literal meaning of words is much more a very difficult
task than might be supposed. The difficulties are illustrated in the
House of Lords case of Tophams v Sefton (1965), the House lords were
divided over the use of the words cause or permit.

Brief facts

This case concerns an aintree resource (horse racing) in which the

defendant had purchased the land in 1949 and had entered into a
covenant with the vendor not to cause or permit the land to be used
otherwise than for horse racing. In 1964, the defendant entered into a
contract to sell the land to a purchaser knowing that the purchaser had

12
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
some plans to use the land for some development purposes other than
for horse racing.

Issue

Was the sale of the land with such knowledge an action which will case
or permit a breach of the covenant?

Held

The majority of the House of Lords held that the defendant did not
cause or permit such breach. Special attention was made to the word
permit. The house of lord said one could not permit what one could not
control. At page 830-831, the house of lords said that “apart altogether
from authority, I will think that outside the sphere of purely polite
social language the word “permit” even used between laymen bent
on serious business or other spheres intended to have legal
consequences would be used as a word connoting on the part of the
one whose permission is asked the right effectively to refuse and on
the part of the applicant the necessity to ask for and obtain
permission so as lawfully to undertake his proposed cause of action”

Rule 4

13
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Literal meaning depends on the circumstances of the case – For the
purposes of proving what the literal meaning of the word is according
to the sense of what literal meaning is, extrinsic evidence is admissible
not to construe the deed but to translate for the court the terms used
by the parties. Take for instance a deed in a foreign language, it cannot
be doubted that a foreign expert has to be contacted to assist the
court.

Rule 5

When is extrinsic evidence available to translate the language? – By

extrinsic evidence we mean not evidence of the writer’s intention but
evidence to enable the court to interpret the language used. It is only
so admissible when there is some doubt as to what the words mean or
how they had to be applied to the circumstances of the matter.

Rule 6

Technical legal terms will have their legal meaning – Technical legal
terms or words of well-known legal imports used by lawyers especially
conveyancers will have their technical legal imports. In the case of
Roddy v Fitzgerald 1858 6HLC “Though the testator used this
inconsistent terms or gives repugnant of impossible

14
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
directions” so in the executant of the document uses legal terms which
have an established meaning in law, he will usually be taken to have
used them in that established meaning, though the result may appear
to be not one which he intended. Lord Sterndale MR quoting on Lewin
on Trust 12th edition p125 thought that “strict legal language having
been used in a settlement deed, said it must receive the legal meaning
of words of conveyancing and recognize the need for the words to be
given their legal interpretation”. It may be that in some cases, the
court will find it possible to avoid giving a term its precise legal meaning
if the document was not drafted by a lawyer and the surrounding
circumstances indicate that the words were not meant to have a
technical meaning. This was one of the arguments considered by the
court of appeal in Sydall v Castings Ltd (1987) 1QB p302. The court was
called upon to construe the meaning of the word “descendant” in a
group life assurance scheme. The court held that as the document
indicated that it has in fact been drafted by a lawyer, the word must be
given its technical meaning.

Take note: The opinion of text book writers who are still alive are not
receivable in evidence often either quote passages or refer to them as
containing either the right or the wrong statement of the law on the

15
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
particular point under discussion. The tendency of late is that the court
has taken the liberalize approach towards this form of construction.

Rule 7

Therefore the deed is to be construed as a whole document – This

means collecting the general intention of the instrument as a whole
and inferring that intention from the general frame of the deed. The
deed must be read and interpreted to extract the meaning of any
particular part or expression. Lord Justice Salmon in the case of East
Harm Corporation v Sunley & Son Ltd (1965) 1WLR p30 said that “we
are being referred to a number of well-known rules of construction
many of these rules are artificial some are contradictory and none is
more than a guide, sometime an uncertain one, for ascertaining the
true intention of the parties as expressed in the document under
consideration. The principle however long ago laid down by Lord
Ellenborough CJ is of the greatest value “… the sense and meaning of
the parties in any part of the instrument may be collected, from what
goes before and from what follows. Every part of it may be brought into
action in order to collect from the whole one uniform and constant
sense if that may be done”

Individual parts of a deed

16
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
A deed is divided into two parts

1. Non operative parts and

2. Operative parts

Non operative parts/elements

Date

Firstly a deed takes effect from the date of its delivery. The
presumption is that the date of delivery is the day of date of the deed
(it is not so key but it should be key)

“All deeds do take effect from and therefore have relation to the time
not of their date but of their delivery and this is always presumed to
be the time of their date unless the contrary do appear”

Evidence is admissible to prove the true dates of a deed (that is the

time of delivery). In ancient time, a deed bore no date. The date of a
deed may be of considerable importance. It may determine for example
when the estates were created and how they ranked in terms of
priority. It may also affect the revenue positions of the properties and
for our own use in Sierra Leone, it might be useful for the statute of
limitations act 1961 Act No 5.

Parties
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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
As a non-operative part, this is also a very important part in a deed.
Mostly they are usually employed by lawyers to create contractual
dealings and also to transfer other properties. It is a common role that
parties are bound by the agreement they enter into. Where the deed
affect land, certain covenants will bind not only the parties but their
heirs and successors in title.

Recitals

It is very common to find recitals in almost all legal documents, for

example conveyance, commercial contracts, etc. The recitals are either
introductory or narrative and it shows the reason why the deed was
created in the first place hence the familiar opening of the word
“whereas” the parties are desirous of or have agreed on some
particular cause of action or the recitals may have contained a long
history of the land and how the title was acquired which shows that the
grantor is entitled to make the disposition that he is about to make the
deed or the recitals may be a preliminary statement of what the maker
or what the deed intended should be done. Recitals also have other
functions such as:

1. It may recall some facts in order to obtain the presumption of the

truth in the deeds.

18
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
2. It sets out the circumstances under which a deed should operate
and the intention of the parties.
3. It will operate as an estoppel to strengthen the hands of the
grantor. That is the reason why a purchaser of a land must
enquire about all necessary documents about a land before
proceeding to purchase.

Relationship of recitals to operative parts

This can be considered in several ways such as:

1. Where operative part ambiguous and

2. Where operative part unambiguous

Where the operative part ambiguous

The intention of the courts or purpose of the courts is to gather from

the intention of the parties. If the operative parts are ambiguous or
doubtfully expressed, the business of the courts is to give effect to the
intention of the parties of this document. In Exparte Dawes, Re Moon
Lord Esher MR enunciated three rules applicable to this matter:

1. The first rule states that “if the operative part is ambiguous, the
recitals govern the construction”. For example a separation deed
recited that the husband agreed to the wife 5 shillings a week

19
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
during her life so long as she remains chaste. The operative part
of the covenant by the husband was simply to pay the said sum to
the wife. Here the covenant was ambiguous in that it did not sate
whether the sum was to be paid to her during the husband’s life
or the wife’s. The recital could therefore be called in to aid the
construction and this made it clear that it was intended to benefit
the wife during her life. Lord Herschell in the case of Orr v
Mitchell 1893 AC p239 said “but where language is employed
which may be appropriately used, for different purposes or which
has a wider or more restricted sense, I think it is perfectly
legitimate to look to the other parts of the deed to see how it was
intended to be used in the disposition clause or whether it has
some wider or more restricted sense”.
2. The second rule states that “If the recitals are ambiguous and the
operative part is clear, the operative part must prevail." In the
case of Page v. Midland Ry. (supra, p. 103, it was clearly seen that
a defect or possible defect appearing in a recital cannot affect an
absolute covenant for title in the operative part. Therefore, a
recital may be quite general and indefinite, as a recited agreement
to settle say "all my property ", whereas the operative part settled
only a single house at L. out of the property of the covenantor
20
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
3. Rule three states that “if both the recitals and the operative part
are clear but inconsistent with each other, the operative part is
to be preferred”. Therefore, where the intention is clear, a
mismatch between the recital and the operative part may not
necessarily lead to an invalidation. This may be a case of
misrecital, in which case the operation of the deed will not be
affected if the intention is clear. A misrecital of a lease in a grant
of the reversion was held not to invalidate the grant in an old
case.

Where operative part unambiguous

It is impossible for a recital to cut down the plain effect of the operative
parts of a deed and as such the rule is that "a recital does not control
the operative part of a deed where the operative part is clear. In the
case of Inland Revenue Commissioners v. Raphael Lord Warrington of
Clyffe reasoned whether the words used in the operative parts of the
deed can be construed as to give effect to the intention of the settlor as
declared by the recitals. Thus he said that the narrative and operative
parts of a deed perform different functions. Lord Davey stated that "I
take it to be a settled principle of law that the operative words of a
deed which are expressed in clear and unambiguous language are not

21
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
to be controlled, cut down or qualified by a recital or narrative of
intention." Also, Lord Blackburn said “I take the canon of construction
to be that where the description of the premises assigned is clear and
unambiguous, effect must be given to it by the Court, even though
convinced from other parts of the deed that it was not what the parties
meant to say." In Dawes v. Tredwell, Jessel, M.R. puts it very clear and
stated that "If the covenant is clear, it cannot be controlled by the
recital”.

Recitals as estoppel

Any recital, though inaccurate in fact, may operate by way of estoppel

in a deed. It is a rule of evidence whereby a party and his privies are not
allowed to contradict what he or they have done in writing. In order to
have this effect, the recitals must be really precise and not general and
must be certain to every intent.

Who is estopped?

1. Firstly, the recital will not act as an estoppel against a stranger to

the parties to a deed.

22
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
2. Secondly, a recital will act as an estoppel not only against any
party to a deed who is bound by it but also against anyone
claiming by or through or in trust for him.
3. Thirdly a recital needs not act as an estoppel against all parties to
the deed but will operate only against the parties who are
deemed to make the statement contained in a deed.

OPERATIVE PART OF A DEED

Premises (functions)

After the recitals, the operative parts begin. It starts generally with the
words “now this deed witnesseth”. That operative part of the deed
before the habendum is called the premises and all the parts of the
deed preceding the habendum are strictly speaking premises. Lord
Coke said “the function of premises is twofold:

1. Firstly to name the feofor and feofee and

2. Secondly to comprehend the certainty of the land or tenement to
be conveyed by the feofment

What are the clauses in the premises

Consideration clause

23
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Amongst the clauses in addition to the names of the parties and the
description of the properties intended to be conveyed, it is usual in a
deed to set out the consideration clause and this is commonly done in
written contracts. However a contract under seal does not require
consideration and will be enforceable against the party deriving no
benefit under it. It has also been suggested that a total failure of
consideration upon which a contract under seal was formed, might
afford a good defence under it. Suppose that no consideration is
expressed or that it is expressed in part, is extrinsic evidence admissible
to supply this deficiency? It was said that if no consideration is stated
under a contract, no evidence was admissible to show a
consideration. Consideration is material to the construction of a deed
for the following purposes:

1. A voluntary deed carries a stamp duty and it must be adjudicated.

2. Conveyances other than conveyances to charity which are
voluntary are voidable if intended to defraud purchasers.

Receipt clause

In a deed, a receipt for consideration money or securities in the body of

which shall be a sufficient discharge.

Covenant for title

24
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Before 1881, it was customary in conveyance to add certain covenant
called covenant for title which were designed to give the grantee a
remedy in the event of a flaw in the conveyance or the grantors title
though this does not constitute a defect in title.

Beneficial owner

In a conveyance for valuable consideration, where the grantor conveys

and is expressed to convey as “beneficial owner” the following
covenant for title are included:

1. The good right to convey

2. Quite enjoyment
3. Free from all encumbrances
4. Further assurance

Good right to convey

This is a covenant that at the date of the conveyance, the grantor had
the right and title to assure to the grantee in the manner expressed in
the conveyance. Therefore it is important that the conveyance should
be adequately drafted because it is the property expressly mentioned
in the grant that is subject to the covenant. If the property is not made
subject to interest, which exists, the covenant will be broken. If the

25
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
description covers properties which the grantor has seized to hold, the
covenant will also be broken.

Quite enjoyment

Under this covenant, the grantee, is entitled to have the estate free
from all lawful disturbances by the grantor or any persons who claim
through, by or under him. Speaking generally, any breach of this
covenant, must arise from the defect of title but this covenant is only
broken at the date of the disturbance whereas the other covenants are
broken at the date of the conveyance.

Free from encumbrance

This is a covenant that the property conveyed shall be discharged from

all encumbrances to which it is not expressly made subject to. In Wise v
Whitburg 1924 1CH p460, the defendants purported to convey
property as personal representatives whereas they had by virtue of an
implied accent became trustees and had no power to sell as personal
representatives. It was held that they were liable on this covenant as
they by their own act had created a defecting title in that they were
hindered from conveying the property to the plaintiff in their express
capacity.

26
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Further assurances

Whereas the former covenant gives right to an action for damages for
their breach, the purpose of the covenant for further assurance is to
enable the grantee to obtain from the grantor a further and complete
conveyance if that is necessary. On the other hand, the convenantee
must pay the expenses involved in making the further conveyancing.

Assignment of leasehold

The phrase as beneficial owner in the case of assignment of leases also

includes a covenant by the assignor, that the lease is valid and
subsisting and that all rent had been paid and that all convenant and
conditions have been performed and observed up to the time of
conveyance.

The parcels clause

The property comprised in a deed now generally called the parcels may
be described either by a name that fits every member of a class eg, as a
house or specifically to point out which particular member or members
of the class mentioned is intended. For example also the grantee will
say my house situate in Makama in Makeni for which Mr Hofrey now
occupies. If there is confusion in the parcel clause, there are recognized

27
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
rules for the interpretation of deeds containing the description of the
parcels clause. These rules are:
1. When the descriptions are all general or form a collective and a
general description, only those parcels which satisfies all the
descriptions or in other words if the parcels are described as
belonging to more than one class, only those will pass which are
members of each class for eg my farm, part of my inheritance
from my father etc hence it is sometimes said that general
descriptions are mutually restrictive.
2. Where the description is general or collective and also special,
only those parcels which satisfy both description will pass.

STATUTES

A statute or act of parliament is the will of the legislature. Statutes may

be classified either as:

1. Public or
2. Private

Private act means strictly it applies to a cross section of society.

A statute has or may have several parts such as (Taking the 1991
Constitution of Sierra Leone as an example in this case):

28
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
1. Title or heading (Eg The constitution of Sierra Leone Act No 6 of
1991)
2. A preamble (It tells the short title why the Act was made say 1991
“Being an Act to make provision for ...)
3. The enacting part (Say in the case of the 1991 constitution “Be it
enacted by the President and members of …)
4. Headings to sections (This enables ease of reading, say chapter 2
talks about “Fundamental principles of state policy”)
5. Marginal notes (the short titles at the edges)
6. Punctuation (and, may, etc)
7. Schedules
8. Rules
9. Regulations and
10. Orders made under statute which they now call statutory
instruments

When it comes to the issue of construction generally, two things come

into mind:

1. Firstly the meaning of the word and

2. Secondly the legal effect or what the court would construe those
words to mean

29
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
The effect of the words is a question of law, however it may surprise
you that these statutes are drafted by experts in the drafting
department who have carefully done some research work and some
deliberations and the question should therefore have to be why do
they have to be construed?:

Where a layman for example in his written contract or in his will or

testamentary disposition may be expected to express himself in loose
or non-legal language. To expose those instruments to the court, it is a
very tedious responsibility.

The court system is settled in trying to discern what the meaning of

those words should mean. Lawyers constantly engage trying to
understand/unravel the meaning behind those words and any
inconsistency in the statute.

There are many reasons why statutes may be ambiguous and the skills
of the draftsman are being constantly tested by the complexity of
modern society and its requirement. The basic cause of statutory
interpretation is as laid down by lord MacDermott in 1964 “nothing
else than the difficulty of communication – the difficulty of finding
unequivocal language by which to convey the intentions of parliament
throughout the civilized world. The power of expression still lacks

30
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
behind the power of thought. Even the most accomplished draftsman –
and today we still complain of the quality of our parliamentary
draftsmen, cannot always find words in which to convey precisely what
he has in mind particularly when dealing with some actuse or intricate
subjects”. Judges normally assume that the parliamentary draftsmen
carry their work with utmost diligence save that ambiguities are
inherent in the system. In Seaford Court Estates v Asher, Lord Justice
Denny had this to say “whenever a statute comes up for consideration,
it must be remembered that it is not within human powers to foresee
the manifold set of facts which may arise and that even if it were, it is
not possible to provide for them in terms free from all ambiguities. He
said the English language is not an instrument of mathematical
precision, our literature will be much poor if it were. This is where the
draftsmen of the Act of Parliament have been often unfairly criticized”.
The rules of interpretation are frequently criticized for instance if there
is no way of knowing which rule of resumption a court can adopt in any
given case.

General rules of construction of a statute

1. Generally the same rule as in the document – it has been said

that no rules of construction should be placed upon statute or any

31
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
other legal document. Lord Justice Bowen said in the case of
Camden v LIC “the rules of construction of statute are very like
those which govern the construction of other legal documents
especially in regard to one critical rule viz that if possible the
words of an Act of parliament must be construed so as to give to
them some sensible meaning. He said the words ought to be
construed ut res magis valeat quam pereat which means it is
said that the court draws no distinction between statutes and
other written documents , I am not prepared to say that this is
true to the full extent”
2. The statute has to be read as a whole and construction made of
all the parts together. The meaning of the statute and the
intention of the legislature in an enactment can only properly be
derived from consideration of the whole statute and every part of
it in order to arrive at a consistent plan. Lord Halsbury said in
Leader v. Duffey “… But I agree that you must look at the whole
instrument inasmuch as there may be inaccuracy and
inconsistency; you must, if you can, ascertain what is the meaning
of the instrument taken as a whole in order to give effect, if it be
possible to do so, to the intention of the framer of it …”

32
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
3. The intention of the legislature predominates. As in the case of a
document, the statute should be construed in a manner to carry
out the intention of parliament. lord Blackburn in the case of
Edinburgh Street Tramways v Torbain (1877) 3APP p68 said “I
quite agree that in construing acts of parliament, we are to see
what is the intention which the legislature has expressed by the
words, but then the words again are to be understood by looking
at the subject matter they are speaking of and the object of the
legislature. Therefore if the words are ambiguous, this intention is
best expressed by the words themselves. It may sometime be
necessary to modify the actual expressions used. In the case of
Kruhlak v Kruhlak 1958 2QB p32, The court of appeal held that a
married woman living apart from her husband could be regarded
as a “single woman” for the purposes of taking proceedings
against him with respect to maintenance of child. The court said,
“It is clear from the many cases decided under the Act that the
expression single woman cannot be interpreted literarily but can
be extended to include married women”.
4. The object and the policy of the statute – Also when construing a
statute, the object and policy of that statute must be considered.
When you read a statute, you will realize that there is a portion
33
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
set out for the reason and object set out for the statute,
consequently therefore, it guides a reader in the construction of
the statute. The intention and object is to guard against the
legislation being construed for selfish purposes. There are times
when the word in an Act of parliament might have no definite
meaning, the subject and object matter of that legislation will be a
guideline in the construction of that word. In Barnes v Jarvis
(1957), Lord Goddard CJ said “a certain amount of common sense
must be applied in construing a statute”
5. Words must be construed in their popular meaning – Generally,
statutes will be prima facie presumed to use words in their
popular sense. In Re Halls Settlement (1954) 1WLR, Justice Up
John says “the only safe canon of construction I can adopt is to
give the words their natural meaning unless the context
otherwise so requires”. If the words are used in connection with
some particular business or trade, they will be presumed to have
been used in a way that is peculiar to that trade. The word
“adjoining” was a subject matter of construction in a New
Zealand Act. The Privy Council said that “the primary meaning of
the word adjoining was “conterminous” and in a statute, it should

34
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
be given that meaning unless the context shows that it was used
in a looser sense as equivalent to " near or neighbouring ".
6. Words are taken to be used in a sense they bore at the time the
statute was passed - Lord Esher said in The Longford case (1889)
that “the first point to be born in mind is that the Act must be
construed as if one were interpreting it the day after it was
passed”
7. Same words bear the same meaning – It is said to be a
presumption in construction that the same words are used in the
same meaning and in the same statute and that consequently a
change of language is some indication of a change of intention on
the part of the legislature. In Lennon v Gibson & Howes Ltd
(1918) AC p709, Lord Shaw said “in the absence of any context
indicating a contrary intention, it may be presumed that the
legislature intended to attach the same meaning to the same
word when used in the subsequent statute”.
8. If the statute is clear, it must be enforced – If the language of the
statute is clear, it must be enforced though the result may seem
harsh or unfair or inconvenient. Similarly, if the statute is clear,
the court cannot cut down the plain words so as to limit the
application of the statute in accordance with questions of public
35
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
policy which prevailed before the statute was passed. It is not
open to the court to go behind what was enacted and to enquire
how it came to be made or whether it arose out of incorrect
information or even deception on the part of the person on who
reliance was placed.

THE RETROSPECTIVE EFFECT OF A STATUTE

This is how Sedgwick in his book (Statutory and Constitutional law page
160) said “a statute is said to be retrospective, which takes away or
impairs any vested right acquired under existing laws or create a new
obligation, or imposes a new duty or attaches a new disability in
respect of transactions or considerations passed. But a statute is not
properly called a retrospective statute because a part of the requisite of
it action is drawn from a time antecedent to it passing”.

The general rules (when arguing that a statute is not retrospective but
prospective)

1. The natural and ordinary way to regard statutes is as affecting

something in the future and not affecting what has gone in the
past - Lord Justice Scrutton said “An act deals with future and not
with past event. He said if these were not so, the Act might annul
right already acquired while a presumption is against the
36
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
intention”. In Ward v British Oak Insurance (1932), the question
arose on the construction of the third party (right against insurers
Act of 1930 section 1 sub section 1). The section provided that if
the insured became a bankrupt and thereafter incur a liability by
reason of accident on the road, his right against the insurer should
pass to the third party to whom the liability has been incurred.
The Act was held not to affect cases where liability has been
incurred before July 10 1930 when the Act came into operation
2. Presumptions against restrospectivity – The presumption against
retrospectivity has been applied in order to preserve accrued and
or vested rights. This was laid down by Lord Wright in Re A
Debtor (1936) where he said "A matter of substantive right which
has become res judicata cannot be upset by a general change in
the law, in the absence of precise intention to make the change so
retrospective being evidenced in the Act."

CONTRACT FOR THE SALE OF LAND

In Sierra Leone there are two approaches to land acquisition:

1. The informal approach and

2. The formal approach

The informal approach

37
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
The informal approach is where there is no written contract between
the prospective vendor and the prospective purchaser. In this case,
the vendor should transfer the right in interest immediately the parties
agree orally on the land to be sold. This approach is not always safe as
there are encumbrances which might not have been discovered prior
to the purchase. If the prospective vendor could not hand over the
property to the prospective purchaser there will be difficulties in court
in enforcing that oral agreement.

The formal approach

The formal approach is where the purchaser enters into a written

contract for the sale of the land. The advantage of such a contract is
that it ties the hand of the vendor and enables the prospective
purchaser to carry out a thorough investigation of all matters
connected with the land including the prospective vendor’s title to the
land before the completion of the sale. This is the safest method of
acquisition of land especially where the title is unregistered.
Investigation to land is time consuming and may be very expensive
however, it is worth the time and expense in the long run.

In countries like Sierra Leone where there is always some issues with
land matters even with customary land issues, firstly as a lawyer you

38
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
take steps to ensure that there is an initial meeting between yourself
and solicitor for the vendor describing in detail your client’s
instructions. You should take steps to protect the client’s interest at all
time in the sale. You should be mindful firstly as to whether there are
any encumbrances on the land same of which you should bring to the
notice of the client.

Abstract of title

It is the duty of the vendor to deduce his title and that of the purchaser
to examine it. The vendor may deduce his title personally or through his
lawyer and the purchaser may examine the vendors’ title personally or
through his agent or lawyer. A vender deduces his title by proving that
he owns the land and that he can convey the property he has
contracted to sell or that if someone else owns the land, he can compel
such a person to pass property. In the case of a registered land, the
vendor must prepare and sell to the purchaser an abstract of his title.
An abstract of title is a summary of all the instruments, documents,
facts and events which together shows that the vendor is entitled to
the property. An abstract of title is said to be perfect when it consists
of a connected summary of a series of instruments, wills and other
documents, birth and marriages, deaths and other material events

39
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
within the statutory period of commencement of title which show that
the vendor is able to convey the property agreed to be sold. Generally,
a purchaser is entitled to an abstract of title. An abstract of title must
begin with a good root of title. A good root of title is one which is
founded on documentary evidence and which consists of or
commences with:

a. Any enactment
b. A conveyance from the state
c. A grant, conveyance assignment or mortgage which is more than
30 years old and establish that the person is entitled to deal with
the land
d. A final judgment of a court of competent jurisdiction

The root of title is followed by any other instrument, wills, other

documents and events (such as where there is any restrictions to
easements etc it must be clearly stated) affecting the land up to the
time the prospective vendor has agreed to sell the land. This gives the
prospective purchaser to see at a glance what his prospective title will
be like. The property should consist of links in the chain of ownership,
how the present vendor came to be the owner of the land and the sort
of title he is conveying. Abstract of all instruments, wills and other

40
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
documents, facts and events after the root of title must be given in
chronological sequence.

Requisition

Requisitions are written enquiries made by the solicitor of an

intending purchaser of land or interest therein and addressed to the
vendor’s solicitor in respect of some apparent insufficiency in the
abstract of title. The vendor or his solicitor must answer these
questions with sufficient clarity of questions raised by the intending
purchaser before completion of the sale. In a formal contract for the
sale of land or an interest therein the formal requisition is contained in
the conditions of sale even if time is expressly made of the essence, the
omission by the intending purchaser to send in the requisition does not
still preclude his right. It has to be sent within a reasonable time and
what is a reasonable time depends on the facts and circumstances of
each case. It is also important to conduct a search and such a search
could be either actual or constructive same with the notice. For
example, if you go to the land and meet a foundation erected on the
land, it should raise eyebrows or you go to the land you are buying
from Mr Thompson and you meet a big signboard saying it is a property
of the Caulker family, it should also raise eyebrows. It is also an ideal

41
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
practice to talk to the neighbours adjoining that land enquiring from
them their knowledge and experience of that property.

THE PARTS OF A CONVEYANCE

The commencement

This is the very beginning of the instrument of conveyance of the sale

of land and it indicates the nature of the transaction. It is followed by
the words “this conveyance ...

The date

The date of the instrument is inserted at the time of execution (the

date the vendor is to sign) of the instrument by the parties. The date of
a conveyance is not necessarily the date the sale takes effect. The
effective date on the conveyance may be postponed particularly in
situations where delivery or vacant possession to the purchaser subject
to a condition to be fulfilled by either party to the transaction (if there
are encumbrances say a tenant already on land, they ought to have
vacated to make the place vacant possession).

The parties

The names of the parties on the conveyance to the sale must be written
in full without any abbreviation followed by their full residential or
42
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
postal addresses or in the case of a body corporate, it registered office
or principal place of business has to be set out in full. The capacity of
the parties must also be clearly stated, for example whether as
beneficial owners, trustees or personal representatives. Where the
consent or concurrence of some other persons is required for the
conveyance, this must be stated and the facts leading up to it must also
be disclosed. If the person is selling as an attorney, it must also be
clearly stated.

If he is doing so as a personal representative, he has to execute the

document as a representative of the seller.

The recitals

The recitals gives the history of the property being conveyed and also
state the purpose of the instrument in which they are contained.

Kinds of recitals

There are two kinds of recitals:

1. Introduction recitals – This states the purpose of the instrument

eg like “the vendor has agreed to sell the property to the
purchaser at an agreed price”.

43
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
2. Narrative recitals – The narrative recitals set out the fact and
events in the instrument upon which the vendor vest his title.

Where the vendor conveys/sells the land as a freeholder or the holder

of the aludial title, this is the only fact which needs to be recited.
However where the conveyance is made by personal representatives,
the narrative recital must state the said capacity. If he is an executor of
the will of the testator and this will has been proved in the court of
competent jurisdiction on a particular date, and was granted probate,
the said probate will be stamped and registered by the vendor in his
capacity as personal representative of the deceased’s testator. It must
of course contain that he is selling in that capacity.

The operative parts

The operative parts of a conveyance of sale states the consideration of

sale, any covenant which describes the property and the words of the
conveyance which specifies any exceptions and reservations, also
defines the interest conveyed by the purchaser to the vendor. This part
on the conveyance also contains the habendum, testimonium and the
attestation clause.

i. Consideration and receipt clause – The consideration for the

sale must be stated on the instrument unless it is on a
44
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
voluntary grounds. For eg one form of the part of a conveyance
is as follows “in pursuant of that agreement and in
consideration of the sum of 6 million Leones paid by the
purchaser to the vendor (receipt of whereby the vendor
hereby acknowledges)”. The consideration must be accurately
stated in words and figures within bracket because it is wrong
to state consideration without amount.
ii. Vendors covenant and undertakings – The vendor’s covenant
of title needs not be expressly stated in the conveyance since
they are implied depending upon whether the vendor sells as
beneficial owners, personal representatives or trustees. For eg,
where the vendor conveys as a beneficial owner of the
freehold interest for valuable consideration, this part of the
conveyance shall be as follows “the vendor as beneficial
owner”. The use of the expression as beneficial owner
immediately implies into the conveyance all the transferor’s
covenant of title.
iii. The purchaser’s covenant – A purchaser is bound by restrictive
covenant affecting the land sold. A statute may also affect the
purchaser. A purchaser may also find himself fettered by a
convent entered into by his predecessor entitled to on
45
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
equitable grounds. For eg the English landmark case of Halsall
v Drizell (1957). In this case purchasers of plots on a building
estate covenanted to pay a due and just proportion of the cost
of maintaining roads, sewers along a sea wall which were
vested in trustees for the purchaser. Their successor in title
could not be compelled to make any payment if they did not
wish to take the benefit of the deed. It was held however that
they could not take advantage of the trust in the deed without
accepting the obligations thereunder (the obligations run
together with the benefits) so that if they refuse to make any
payment, they could not make use of the roads and the sewers.
iv. The words of conveyance - The words of conveyance have the
effects of passing the relevant interest in the land from the
vendor to the purchaser. Any words may be used if the
intention to transfer the interest is very clear. The words of
conveyance on sale of land are as follows “The vendor hereby
conveys to the purchaser”
v. The Parcel clause – The parcel in a conveyance consists of
description of the property. The description in words must be
supported with a plan annexed (survey plan). The plan annexed
to the instrument must be accurately drawn. It is however
46
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
prudent to reduce the description of the land into schedule
where it is long and complicated. For eg all that land situate at
Bathurst, Regent village together with the house erected
thereon and described in the schedule thereto.
vi. The Habendum – Any words used in a conveyance indicating
the intention of the vendor to sell the property to the
purchaser will suffice as habendum. It normally takes the form
“to the purchaser forever or absolutely”. This is where the
interest being conveyed is a freehold.
vii. The Testimonium – This states that the purchaser and the
vendor have signed and sealed the instrument in witness of
what it contains. One form of such a testimonium is “in witness
whereof, the parties have here onto set their hands and
name, the day and year first above…”. Where sealing is
required to make the instrument valid, this must be reflected in
the testimonium.
viii. Schedules and attachments – Where an instrument contains
schedules and attachments, this must be listed immediately
after the testimonium clause in the order in which they are
mentioned in the main body of the instrument. This is to
ensure that the signature of the parties contained in the
47
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
attestation clause control every part of the instrument
including the schedule and the attachment. A schedule must
contain a full description of the property sold giving details of
boundary, owners and the land sold must be clearly delineated
on the site plan attached to the instrument. If there are any
easement or right of way subject to the land, it must be clearly
identified, marked and emblazoned.
ix. The Attestation – This consists of the execution of the
instrument in the presence of witnesses. It is done at the
completion of the sale usually in the vendor’s solicitor’s office
or any place he may require. Where the parties or any of them
is illiterate, or under any form of physical disabilities for eg
blindness, it is necessary to include in the attestation clause, a
statement indicating how the contents of the instruments were
explained to such a person and also state in clearly how such a
person executed such an instrument (the illiteracy clause)

LEASES AND MORTGAGES

Contract for the lease of land

A contract for the lease of land may be made either orally or in writing.
If it is made orally, it must be supported by substantial part

48
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
performance or there must at least be some memorandum in writing
evidenced in same. The memorandum might take the form of letters
which if they are read together, a contractual scenario could be
envisaged (the principle in Walsh v Londsdale, 1882).

What should a contract for a lease of a land contain?

1. Firstly There should be an offer

2. There has to be an acceptance
3. Consideration must have furnished between the parties and
4. There must be intention on the part of the parties to consummate
the contract.

However, it is always advisable for a written contract to be prepared for

the lease of a land. The advantage of entering into a written contract is
that after the actual exchanges and then there is receipt of the
prospective lessor’s abstract of title, then an investigation ought to be
conducted to show the veracity of their claim on the document. If it is
for a term of three (3) years or less, the required freehold title is very
little. It is always advisable for leases of over five (5) years for them to
be preceded by a written formal contract.

Parts of a lease

49
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
1. The Commencement - The lease also has the commencement and
it is similar to the commencement of a conveyance and
commences with the following “this lease agreement is made on
the …. Day of …”
2. The date – A lease or a sub-lease or a periodic tenancy is dated in
exactly the same way as a conveyance of sale. This date is
however not necessarily the effective date of the lease, sub-lease
or periodic tenancy. The date here is the date of execution of the
instrument by the parties. Where the effective date is not stated
expressly in the operative part of the instrument, the date is when
the parties execute it.
3. The parties – It is the same as in a conveyance of sale.
4. Recitals – Recitals are very rare in leases but if it is necessary to
insert them to trace the history of the land, they must be inserted.
If it is done in a personal representative capacity or as trustee, it
must be clearly shown.
5. The testator – The consideration for a lease, is usually the rent to
be paid and the covenant, stipulations and conditions to be
performed by the lessee. The testator of a lease may take the
following form “in consideration of the rent hereby reserved and
the covenant, stipulations and conditions hereafter stated”.
50
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
6. Covenant of title – This is similar to that in a conveyance of sale. It
must take the following form “the lessor as a beneficial owner”.
Where the lease is not by a conveyance for valuable
consideration, however no covenant are implied by statute
rhetorics. All covenant by title must therefore be expressly stated.
7. Operative words – These are the same words as in a conveyance
as a lease, sub-lease or a tenancy agreement. They take the
following form “hereby leases to”
8. The parcel – The land which is the subject matter of the lease
must be accurately described. If the whole land is being leased an
address of its location may suffice particularly when it is a building
lease.
9. Habendum – A habendum in a lease has the same effect as in
conveyance of sales. It takes the following words ‘hereby leases
to the lessee …., commencing from the …. Day of ….
10. Reddendum – The reddendum in a lease specifies the rent
payable and the mode of payment. It is important to exercise care
in stating the rent because it may sometime determine the nature
of the lease. For eg if it states NLE 10,000 is payable monthly, it
creates a tenancy from month to month (monthly tenancy) but if

51
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
it says a rent of NLE 120,000 payable annually, then a yearly
tenancy is actually created.
11. Transferee’s covenant - In a lease, the transferee (lessee)
usually enters into a covenant with the transferor (lessor or
landlord). It is prudent to expressly state the covenant of the
lessee. This is to ensure that the transferee remains liable on the
covenant by virtue of privity of contract even if he assigns his
interest in the property. There are certain types of covenant such
as covenant to repair and to insure.
12. The transferor’s covenant – The transferor’s (landlord or
lessor) covenant or title need not be expressly stated in the lease.
13. Proviso – A lease, or tenancy agreement must contain
provisos (conditions) for re-entering, giving notice, termination of
the lease by either party, option to renew the lease, abatement or
suspension. The proviso’s are introduced as follows “the parties
hereby agrees that the …”
14. Testimonium – This is similar to the one in conveyance of
sale.
15. Attestation – it is similar to the conveyance of sale and has
the same legal effect.

52
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
LEGAL OPINION

Many lawyers are faced in their day to day work with writing of legal
opinions. Just like letter writing, it is a facet which a lawyer cannot
escape from. This is particularly very useful in a society like Sierra Leone
where people look up to lawyers all the time for advice.

Legal opinion is the art of writing opinion on the implication of the

action to be taken by the client assessing the strength and weakness
of the case of the client. Letters and memorandums are means of
communication but legal opinion is proffered with the aim of providing
answers to the questions asked by the client. Opinions are meant for
the targeted readers, say a client comes to you with a problem (as a
lawyer); it is your duty to dissect that problem and give him or her the
legal position based on the information given to you. Understanding
the fact in issue is very paramount and the lawyer must take full
instructions from the client. You should also follow/apply the
procedures of conducting interviews. In doing this, the lawyer should:

1. Take full instructions

2. Understand the instructions
3. Analyze and classify facts
4. Research on the area of the law

53
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
5. Write your opinion

Points to note when writing legal opinion

There are three (3) points to note when writing legal opinions, thus:

1. Answer the question (as there is always a question. The client has
a problem and has come to you for that problem to be solved, thus
you are to dissect that problem)
2. Make your answer clear, simple and comprehensive
3. Clarify the opinion limitation (this may mean per say it should
have a time span to which the opinion is limited. This is done to
protect the lawyer)

Answering the question

The primary aim of legal opinion is to proffer answer of solution to the

question posed by the client. In answering this question, the lawyer
has to be specific. For clarity, the lawyer should refer to the legal
question in his opening paragraph. For example “Your instruction is
that you advice on the constitutionality or otherwise of the continued
detention of Mr. Turay”. This question can be answered for example in
the following way “The Hon Commissioner of police has breached and
is in breach of the constitution of Sierra Leone having kept Mr. Turay in

54
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
detention for the past three (3) months without trial or releasing him
on bail”. This opinion should be backed up by authorities, rules and
regulations etc (you can refer to statutes, decided cases etc to back up
your opinion)

Making the answer simple, clear and comprehensible

These are the duties of every draftsman/lawyer. If the opinion is not

readable and comprehensible, there is no need to write it. The
draftsman should consider the educational and professional
background of the client. If the client is a lawyer, cases will be cited
with reference, if the client is not a lawyer, avoid as much technicalities
as you could.

Clarifying the opinion limitations

Opinion may be limited by:

1. Time
2. Circumstances or
3. Facts

In making his opinion, the lawyer should state it clearly to enable the
reader take his decision either way.

55
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Format of a legal opinion

Legal opinion has the following format:

a. Opening – This is the introduction and reference is made to

previous meetings, conversations, memos or letter where the
question arose. (eg. We refer to your letter dated 23rd March 2024
……)
b. The fact – This contains objectively a brief statement of relevant
facts. This should be distilled from the instructions of the client.
c. There should be a conclusion – This contains answer to the
question.
d. There should be an explanation section – This should contain an
explanation to the answer and supported by judicial authority,
rules, regulations, orders, judgment etc all of which should be in
this section.

In conclusion, legal opinion is very important as it offers answers to

questions asked.

THE STAGES OF DRAFTING

In drafting, every journey starts with a step. When drafting a legal

document, there are steps to be followed. Every lawyer and every

56
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
draftsman must adhere to this following steps. There following are the
stages/steps that should be followed in drafting a legal document:

1. Acting under instructions

2. The use of checklist
3. Listening and questioning clients
4. Advising the client
5. Analysis, classification and research
6. Planning the draft
7. Composition

Acting under instructions

The lawyer must take full instructions from the client on what he has in
mind and what he wants the lawyer to do. In fact the instruction is the
raw material which constitutes the fact of that case. It is important for
the draftsman to consider the following when taking instructions:

i. When conducting interviews, he should try to create an

impression upon the client as first impression goes a long way.
A lawyer and a draftsman must win the confidence of the
client. Thus what a draftsman can do during his interview with
the client is that:

57
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
A) He should appear very efficient in his action from the start of
the interview
(b) He should be in control for the entire period of the
interview
(c) He should feel and identify himself with the mood of the
client
(d) He should look and feel very pleased to see the client
(e) He should have a good and clear office environment
(f) He should pay attention to the client

However, the importance of skillful client interview was captured

and expressed by Sally Lloyd Bustock in the following words “a
lawyer who is easy and pleasant to talk to will have happier clients,
but that is not the only advantage. If interactions with clients are
handled well, there is evidence that the result will be effective
handling of the case, more corporative and competent clients who
pay their bills and wastes very little time”.

The use of checklist

Checklist is a form containing list of matters on which instruction has

to be taken from. It should be flexible and frequently updated to
reflect recent happenings.

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Listening and questioning clients

A lawyer must be a very good listener as it is a way of gaining a

client’s confidence. Listening attentively, will enable you understand
your client’s instructions and also enable you to ask questions
properly. The lawyer must be an active listener and it must show in
his body language. The lawyer should ask more open questions than
closed questions. Open questions create a space for the client to be
more personal and to be more open while a closed question narrow
down the client. Open questions also create room for favourable
answers you might need in the execution of your instructions.

Advising the client

The first reason that brought the client to your office is to receive
advice from you and your understanding of the fact will make you
give better advice, therefore the lawyer or draftsman should bear in
mind when advising the client of the following:

a. He must be firm but polite in advising the client

b. He must remember that he may be liable for negligent advice

Analysis, classification and research

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
This is where the analytical skills of the draftsman must start and this
is where also you see the distinction between a lawyer and a non-
lawyer. At this stage, the lawyer classifies the fact received from the
client and then he applies the relevant law. The fact may fall
generally either within criminal or civil law or public or private law.
After the classification, the lawyer goes to the library to search for
materials. He uses both secondary and primary sources. Secondary
sources of legal materials include books, articles, and journals
written by renowned authors. Secondary sources are important
because they direct the draftsman to the primary source. The
primary sources includes Acts of parliament, Regulations, case law
etc. At this stage, an expert advice would be sought, if for example it
is an issue of construction, the lawyer should not be shy of talking to
a civil engineer. Therefore, a good draftsman must have:

1. A good library
2. He must understand the use of the library
3. He must have a very good relationship with his colleagues to be
able to use their library
4. He must be very technologically savvy. That is he should be able
use Google, the internet etc.

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Planning the draft

This stage enables you to plan before drafting because it is the truism
that “he who fails to plan, plans to fail”. At the planning stage, you
should be able to do the following:

1. You should be able to understand that there are different formats

for different kinds of work. For example the format you will use to
draft a will, will not be the same as the format you will use for a
deed
2. You should present your draft in a logical order and should keep
together related matters under the group head.

The work of the lawyer at this stage is liken to the work of an architect
who builds a foundation. To get a very good foundation, you must have
a good plan which starts with having a clear vision of what your client
wants. You must pick all relevant materials at this stage and try to
maximize your client’s course.

Composition

Mentally this is the most tasking stage. Attention should be paid for
example to the choice of words you use, the sentence structure,
paragraphing and grammar. However, to make the work lighter at this

61
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
stage, lawyers use precedents (precedents make it easy for the
draftsman when drafting). Precedents can be found in the standards
form draftsman book or from the use of established authors example
Kelly’s draftsman. Precedents help in the following regard:

1. It reflects years of experience

2. It saves time
3. It is useful for learning
4. It ensures consistency in style

CLARITY AND ACCURACY IN LEGAL DRAFTING

The core duty of a draftsman is to accurately express the intention of

his client by making the draft document clear and unambiguous.
Documents are drafted to preserve testimony of the matters to which
they relate to, therefore if it is not clear and unambiguous, it will not be
able to meet this objective. Consequently therefore, there are some
words and phrases which are to be used. Therefore the draftsman
should be mindful of the following:

1. Punctuation – This is the use of standard set of styles, symbols or

typographical devices such as capital letters, bold or italics in hand
writing by which sentences are divided into grammatical or
structural units (, : . etc all have a functional role in the way we
62
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
convey message). For instance, punctuation will also help to aid
clarity and remove ambiguity. The Interpretation Act of 1971
provides that punctuation forms part of an enactment.
2. The use of definition/interpretation clause – This provision
should serve as a dictionary for legal documents. The functions
include (1) To delimit the meaning of the word (2) We use it to
save repetitions (3) To narrow the meaning of the word (4) It
helps the reader to understand the context in which the words
are used. In most agreements or legal documents, the definition is
usually introduced by the word “hereinafter”. It could also mean
in the law unless the context otherwise admits man includes
woman and boys includes girls. The rule of drafting demands that
(i) The words defined must be written exactly the way it is used in
the document (ii) It is meant only for words used in technical
sense (iii) The meaning given should not be generally opposite to
the accepted meaning (iv) The words defined should be arranged
in alphabetical order (v) The words defined must be in inverted
comma (vi) There must be a connecting word example “means or
“includes” (vii) There must be a meaning given to the word
defined.

63
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
3. A draftsman should avoid repetition or preposition - It is
necessary to avoid ambiguity especially in enumeration.
Prepositions beginning enumeration are repeated for each item
within the enumeration for example in a will the phrase will be
used “to the children of John and Jane”. This may mean any of the
following (1) To the children of John and the children of Jane (2)
To John and the children of Jane (3) To the children of the
marriage of John and Jane. If 1 (to the children of John and the
children of Jane), it is intended that it should be written thus “to
the children of Jane and the children of John
4. Ejusdem generis – This means that where particular words of a
class (usually 3 words or at least common characteristics) are
enumerated and it is followed by general words or phrases like or
other words or anything else, the general words are to be
construed as being limited to the class of words been enumerated
by a particular word.
5. The draftsman should also make use of descriptive words to
shorten the length of the document to make concise and elegant
- Example, between John Sesay, Peter Sesay and Beatrice, all of
No 2 Yoni Street (called the vendors). It can also be used to
describe price of property.
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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
6. The draftsman should also make provision or make use of
schedules - Schedule is used in a document to do away with
excessive details at the end of the document to guaranty free flow
of information and avoid distracting the reader. You can do away
with map, graph, survey plan, diagram etc.
7. The draftsman should also make immense use of the
Interpretation Act of 1971 - Please don’t confuse with an
interpretation clause in an Act. The interpretation Act of 1971
provides interpretation and definitions for extensive use of
legislations, statutory instruments or otherwise.

WILLS

There are various ways of disposing of one’s property during or after

one’s lifetime. The instrument of disposing of this property during one’s
lifetime is different from that of disposing after one’s death. A will is an
instrument of disposition of one’s property after one’s lifetime that is
why they say the will takes effect upon the death of the testator. Wills
have special features and it is important as it solves the fear and
anxiety of what happens to one’s estate, the corpse and the
dependants after one’s death.

65
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
What is a will?

A will could simply be defined as a testamentary document executed

according to law and voluntarily made by a person with a sound
disposing mind which deduce direction to persons called executors
concerning the disposition of his real and personal property upon his
death.

History of Wills

In 1837, the Wills Act was passed setting out in clear terms for the
formalities for the creation of a will as well as for the provision for the
revocation and operation of a will. This statutory development
dampened the involvement of the ecclesiastical courts in then Britain.
The appointment of executors was encouraged by the ecclesiastical
courts particularly to supervise the distribution of charitable bequest.
When the Wills Act was passed, the Courts could now intervene to
ascertain the true intention of the testators.

The will is a product of the testator’s own volition about postmortem,

management and devolution of estate among beneficiaries. Although a
testator may express his intention in several other documents, the
court will consider all such documents as constituting but one will. In

66
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
the case of Douglas Menzies v Umphelby (1908), the court held that
"it is the aggregate or the net result that constitute his will... (He says
in this sense, it is inaccurate to say that a man has two wills. He thus
leave but one will)".

If a testamentary document contains two set of provisions, the first to

operate on death and the second to operate before death. A court may
sever the document and allow those provisions operating on death to
be admitted to probate as a valid will.

An essential characteristic is that a will must take effect upon death.

Consequently, a will is ambulatory in character, it has no force or
effect whatsoever until the death of the gentleman. This distinguishes
a will from a gift inter vivos. Although a document may be described as
a will, if gift included in that document, are intended to pass to the
beneficiaries as donees.

During the lifetime of the donor, the document will not constitute a
will. However a document which is constituted as a will, will still pass if
it satisfies all the characteristics of a will. If an intention can be shown
from all the surrounding circumstances that it was meant to be a will
the courts may admit it to probate. In the case of Slinn v Slinn (1890)
15PD 156, a document was described as a deed but since it was

67
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
admitted to probate, it conformed with the essential characteristics of
a will as laid down by the Wills Act of 1837. Although the document was
described as a deed, extrinsic evidence was admitted to show that it
was a will and was intended to take effect on the death of the maker.

Since a will only takes effect upon death, beneficiaries do not acquire
interest in properties gifted to them until the death of the testator.
Consequently if a beneficiary predeceases a testator, the gift lapses.

A will is a declaration of the intention only, although the testator might

have drawn up the will intending but he might distribute his property
during his lifetime. He may still however go ahead and dispose of this
property covered by the will during his lifetime. However even if
properties are left for beneficiaries, there is no certainty that they will
receive such properties. If the testator had debt during his lifetime,
when the will is probated, the executor has an obligation, to pay all
just debts first and liabilities that the testator might have incurred
during his lifetime. The ambulatory character of a will means that even
properties acquired by the testator after the date of the will is covered.
This is particularly important for provisions in a will called general
devises. In Vynior’s Case (1609) 8 CO Rep p 816, this authority
establishes that a will is always revocable even where the document

68
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
provides explicitly that it should not be revoked. Similarly a contract not
to revoke a will is void and of no effect. See the case of Synge v Synge
(1894) 1QB p146. The nature of a will is not only to dispose of property
by death, it also give directions and appoint persons particularly
personal representatives of trustees or minors. Further directions will
also be given for the payment of taxes and other statutory obligations
or even on the disposal of his body, i.e as to how he is to be buried or
he has donated some of his organs for some medical research.

The Formal requirements of a valid will

Section 9 of the Wills Act makes provision for the formal requirement
of a valid will.

Section 9 of the Wills Act 1837 states:

No will shall be valid unless—

(a) It is in writing, and signed by the testator, or by some other person in

his presence and by his direction; and

(b) It appears that the testator intended by his signature to give effect
to the will; and

(c) The signature is made or acknowledged by the testator in the

presence of two or more witnesses present at the same time; and
69
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
(d) Each witness either— (i) attests and signs the will; or (ii)
acknowledges his signature, in the presence of the testator (but not
necessarily in the presence of any other witness), but no form of
attestation shall be necessary

The requirement of writing

This is one of the statutory requirement for a will to be valid, however,

it need not be in any particular form of words. It is sufficient if it can be
gleaned from the words used, the intentions of the testator. There is no
form required as a will on an egg shell was held to be valid in the case
of Hodson v Barnes 1926.

Brief fact of the case (Hodson v Barnes 1926)

In this case, the testator wrote his Will on an egg shell and upon his
death, the widow found amongst her late husband’s belongings an
eggshell which bore the message “17-1925. Mag. Everything I
possess”.

Also a photograph of a will written by a testator on the wall of his

bedside was admitted into probate, so writing is fundamental.
However, this (writing requirement) does not hold if:

1. It is a customary will

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
2. It is a privilege will

For a customary will to be valid, it must possess the following

conditions:

1. It must be made voluntarily by the testator

2. The testator must be of sound mind at the time of making his will
3. The beneficiary must be named
4. The will must be made in the presence of witnesses
5. The will must identify the properties

The requirement of signature

Section 9 of the wills Act provides for signature which requires that the
will must be signed by the testator and witnesses. Signing can take any
of the following method:

A. The testator may sign himself in the presence of at least two

witnesses present at the same time to attest to the will

DONATIO MORTIS CAUSA

71
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
This Latin word means a gift in course of death, however people
mistakenly take it as a deathbed gift however it need not be made on a
death bed. It is a revocable lifetime gift conditional upon death of the
donor but being not fully inter vivos (during his lifetime) or
testamentary. Where a donatio mortis causa is established, the gift is
delivered to the donee in anticipation of death. The donee in turn hold
the property in turn until the donor dies and possession passes
simultaneously. Such property does not devolve on the donor’s
personal representatives, once death occurs, transfer of title takes
place retroactively from the date of the gift. It was held in Korvine’s
Trust (1921) CH p343 that if the estate is insufficient to pay the debt of
the deceased, the subject matter of the donatio mortis causa will be
used to extinguish the debt.

Conditions necessary for a donation mortis causa to come into effect

1. The gift must be made in contemplation of death

2. It must be conditional on the death of the donor
3. The subject matter of the gift should be delivered to the donee
4. The gift must be capable of forming the subject matter of a
donatio mortis causa

The gift must be made in contemplation of death

72
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
What constitute contemplation off death varies from circumstance to
circumstance and may either be expressed or implied. In the case of Re
Lillington (1952) 2AER p184, it was held that the expression done for
provides a basis for the inference that a gift made by a testatrics was in
contemplation of death. The gift will still stand even if death was at a
distance. Terminal illness as well as possible imminent of death will
surffice. It is not material whether the donor dies from a cause of death
which he contemplated.

The gift must be conditional on the death of the donor

It follows therefore, that if a donor does not die then there is no

donatio mortis causa and then the donor will be entitled to recovery of
possession from the donee. Gift made in written form, in
circumstances in which death is imminent are presumed not to be
donation mortis causa. The Court tend to presume that there are
attempted lifetime gift.

The delivery of the subject matter to the donee

For a donatio mortis causa to be effective, the donor must part with
possession of the subject matter by way of delivery to the donnee or
his agent and or representatives. The granting of such means of
controlling the subject matter as padlocks and keys is sufficiently held
73
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
to constitute delivery. In the case of Wildish v Fowler (1892) 8TLR
p457, an ailing lodger handed properties to his land lady asking her to
take good care of it. It was held that there was no donatio mortis causa
of the property since the donor had not parted dominion with the
property but had simply passed on this property for safe custody.

Consequently therefore, the concept of donation mortis causa has to

be read in tandem with the intention of the testator.

MORTGAGES

The history on mortgages reveals the harshness and rigidity of the

common law and to some extent Roman law and its moderating effect
by equity.

Equity of redemption

Equity views that the money lender was entitled only to the debt and
maybe some small profit, he was not expected to profit unconscionably
from the transaction. According to Lord Nothingham who is regarded
as the father of equity says “in natural justice and equity, the principal
right of the mortgagee is the money and his right to the land is only as
security for the money”. Equity graciously granted relief in cases where
the penalty was grossly excessive. Punctual payment was prevented

74
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
through misfortune or sharp practice because equity did not treat time
to be of the essence of a mortgage. By the early 17th century, it had
become an established doctrine that in equity the mortgagor was the
true owner of the land. This meant that even if the legal estate past to
the mortgagee for non-payment, the mortgagor was invariably entitled
to a conveyance untendered within a reasonable time of the principal
sum and damages representing interest and cost for the period that the
debt remain unpaid only by a Court order or for closure could give the
beneficial interest to the mortgagee if payment was unreasonably
delayed. Immediately the mortgage was paid, the mortgagee was
considered a trustee for the mortgagor. The mortgagor was thus said
to have an equity of redemption which was inseparable from the
mortgage and the parties could not contract out of it.

Creation of a mortgage

In Sierra Leone, a mortgage could be created legally, equitably and

customary. The mode of creation of the mortgage determines to a
large extent the right exercisable by both parties to the mortgage. For
example, a mortgage created legally under a statute which permits the
sale without recourse to judicial action can be realized as such.

75
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
However, an equitable mortgage created under such a statute cannot
be sold without authorization from the court.

Legal mortgage

These are mortgages created in accordance with the forms

created/described by the law usually by statute. It is important to note
however like the creation of all legal rights, the creation of a mortgage
is attended by formalities which is normally prescribed by law such as
writing, due execution, stamping and registration. Section 6 therefore
of the Home Financing Act of 2009 is quite explicit in this regard.

Independent legal advice

In general and the enforcement of mortgages, before the borrower

gives out his money he must have ensured that an independent legal
advice is sort to verify any vitiating factors including undue influence by
the party who has executed a loan document, including the mortgage
device. In Lloyds Bank v Bundy [1975] QB 326 Lord Denning MR
postulated that where a party enters into a contract without
independent legal advice and the terms of the contract are very unfair
or when his bargaining powers are seriously disadvantaged or
impaired by reason of his own needs and desires or by his own
ignorance coupled with undue influence or pressure brought to bear
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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
upon him for the benefit of the other, the Court will grant relief to the
weaker party.

Brief fact of the case Lloyds Bank v Bundy (1975)

An elderly farmer Mr. Bundy and his son were long-time customers of a
bank; Lloyds Bank. The bank guaranteed the son’s company’s overdraft
and used the farm as security. As the overdraft increased, Lloyds bank
required more security, which Mr. Bundy could provide. The bank
Manager knew that Mr. Bundy relied upon him for advice on this
additional security. After the son’s business went bad, the bank sought
to enforce the charge and personal guaranty on the overdraft, Mr.
Bundy claimed that there was undue influence and as such the charge
and guaranty should be set aside. The Court of Appeal ruled in favour of
Mr. Bundy stating that he did not receive any independent legal advice,
in fact Lord Denning opined that undue influence, duress, and
unconscionability were gathered together, and a single thread ran
through them (inequality of bargaining power).

When does the mortgagor loses his right to the equity of redemption?

The right of equity of redemption granted to the mortgagor does not

exist in perpetuity or forever as equity courts are required to set limit

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
to their generosity because one has to be just before he professes to be
generous. On this principle after a reasonable time had expired, the
court will step in to foreclose. The right to foreclose according to
Halsbury’s Equity and Trust 6th edition he said the right to foreclose is
an equitable right given to the mortgagee to counterbalance the
mortgagor’s right to redeem and it is the essential second
characteristics of the mortgage. In Sierra Leone, the equity of
redemption could be lost either by virtue of the sale (a judicial sale) or
by the statutory provisions of the Home Mortgage and Finance Act of
2009 and the Borrowers and Lenders Act of 2018. Also the right of the
mortgagor to redeem his property may be lost pursuant to adverse
possession and the provision of the Limitations Act 1951 however, it
should be noted that the mortgagee who had been in possession of the
mortgage property for more than twelve (12) years acknowledges the
mortgagor’s title, a cause of action will be accrued.

The right of the mortgagee in the event of the mortgagor’s defaults.

Although a mortgage is a security device to ensure the repayment of

debts and interest or the performance of some other obligations for
which the mortgage is created where the mortgagor defaults in
performing the act secured by mortgage, the mortgagee has several

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
rights that he can exercise to ensure the covenant is performed
including the right to sell the property, and or the appointment of a
receiver firstly, the right to sue the mortgagor on his personal
covenant. The Borrowers, and Lenders Act of 2019, the Home
Mortgage and Finance Act 2009 all provide for circumstances where a
mortgagor could sue a mortgagee on his personal covenant i.e. where
the mortgagor fails to pay an amount secured by charge, the borrower
may sue the lender under the credit scheme provided for in the Act.
This obligation is independent of and completely separate from any
right that the mortgagee has under the respective personal covenant to
perform.

It should be noted that this right is independent of and in addition to

any other relieves that the mortgagee may decide to exercise. The
consequence of the exercise of this right is that once judgment is
obtained against the mortgagor personally, any property belonging to
him including but not limited to the mortgaged property may be
attached and sold or is account garnished or any other way realized in
satisfaction of the debt. Also where after the sales of the mortgaged
property, the proceeds realized are not enough to satisfy the judgment
debt, the mortgagor may be liable on a personal covenant for the

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
outstanding balance. The exception to the application of this right is
where the parties have expressly or by necessary implication agreed to
exclude the exercise of this right by the mortgagee, the mortgagor may
not be sued personally.

Sale of the mortgaged property

A sale of the mortgaged property is one of the remedies considered as

greatest practical value to remainder because it has little
complications to for example asking for a receivership. This is
primarily due to the fact that upon a successful sale of the mortgaged
property, the ownership, title and possession of the property changes
and the mortgagor’s right to relief is permanently lost. The sale of the
mortgaged property in the event of a default could be carried out on
the express orders of the Court (judicial sale) which or privately by
agreement conducted under a statute.

What is judicial sale?

Prior to the passing of the Home Mortgage and Finance Act of 2009, all
properties were sold pursuant to Court orders however; with effect
from 2009 judicial sale of mortgaged properties became limited to
cases where the mortgage secured the performance of the obligation
ordered on the payment of the loan. A judicial sale is normally
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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
conducted on a public auction unless the mortgagor and all subsequent
encumbrancers agree to a private treaty and the terms of the private
treaty are ones approved by the Court. In the case of Omar Barxmarty
v Two others and Securities Discount (an unreported judgment in the
commercial division of Accra dated 26th January 2009) the purported
sale of a mortgaged property was held void when the mortgagee failed
to obtain a Court order before conducting a private sale and satisfying
the dictates of the statute.

Where a Court decides to order a judicial sale of a mortgaged property,

it may make any order or further orders. The effect of a judicial sale is
that the purchaser takes it free from all subsequent mortgagees and
the right to redeem is lost, however, the purchaser takes the
mortgaged property subject to all interests which have priority to the
mortgaged property. Any sales received from a judicial sale, shall be
paid as proceeds into court.

Repeals and Penal Act

More than a century ago Chief Justice Tindal CJ said in the case of Kay v
Godwin (1830) 6Bing “the effect of repealing a statute is to obliterate
it completely from the records of parliament as if it has never been
passed, and it must be considered as law that never existed except for

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
the purpose of those actions which were commenced, prosecuted and
concluded while it was an existing law”. Thus at the time actions were
commenced, prosecuted and concluded before their repeal, they were
the extant law but immediately they are repealed, they become useless
and should not be even referred to.

Express repeals

Generally, a statute is definite as to what it repeals by an enactment.

Most statutes have a schedule in which it tells you the Act it has
repealed, therefore when a question of the unexpressed intention of
the legislature arises, reference is made to it or the wording of the
statute has to be resorted to. Most acts of Parliament have a schedule
where they incorporate any repeal that is being done. Acts of
parliament when they are read either wholly or partly has to be done
with the express intention of Parliament, the problem or difficulty is the
question of the unexpressed intention of the legislature. If a statutory
right becomes vested upon the completion of a certain transaction but
not before that, no right would have been acquired if the statute
conferring the right is repealed before the transaction is completed but
it may be far from the intention of the legislature to undo by means of

82
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
another repealing statute something that has already been done under
a statute.

In the case of Gwyne v Derrty (1894), an Act of 1819 provided in order

to prevent an invasion of tolls on a turbine road for a stoppage of a
bridle path, and vesting the soil of it in the owner of the park, in
exchange for the land taken from him , for making the turbine road as a
substitute for the bridle path, the Act of 1819, was repealed by an Act
of parliament 1865 and the question now arose as to whether the
bridle path abolished the Act of 1819 was restored. Roamon George LJ
held that it was not and that the stoppage of the bridle path was
intended to be permanent. In Lemme v Mitchel (1912), a Honkong
Ordinance of 1895 had abolished the action for criminal prosecution. A
subsequent Ordinance of 1908 had repealed the Ordinance of 1895 and
by its retrospectiveness given a rightful action for criminal conversation
committed before the Ordinance of 1908. The plaintiff brought an
action against the defendant for criminal conversation but it appeared
that he had already brought an action before the enactment of 1908
and in the state of law judgment had been given instant. The Privy
Council held that this gave the defendant a vested right which was a
bar to an action of the same fact brought after 1908. In the case of

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
Falcon v Famous Players Film Company (1926), it was held that the
repeal of the dramatic Copy Right Act of 1833 by the Copy Right Act of
1911 did not destroy any right acquired under the prior Act and the
provisions of section 1 (1) of the 1911 Act that copy right should subsist
only in works which satisfy the conditions of sub section must be taken
to apply only to works coming into existence. However, the Privy
Council distinguished this case in the famous case of Director of Public
Works v Hopo Song (1961) AC p901. The plaintiff in this case wish to
obtain a new lease for the purpose of rebuilding but it was provided by
statute that before he could give the person in occupation notice to
quit, it was important for him to obtain a certificate from the director
of public works. The plaintiff applied for a building certificate, the Act
was then the bill, subsequently, the plaintiff was given a building
certificate and served as tenant with the notice to quit. It was argued
that at the date of the repeal, the lessee had an accrued right and once
the certificate was granted, he could continue with his action. The Privy
Council held that the application did not give the right but merely a
hope for a favourable outcome. Sometimes the repeal may contain or
cover a whole Act of Parliament or sometimes some sections. It cannot
be said that where a particular clause or Act is repealed, the old Act
must be read as if the clause was never been enacted so a court is
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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
entitled to look at the repeal portion of an Act to see what is the
meaning of what remains in the Act otherwise it follows that an Act of
parliament which at one time had one meaning would by repeal of one
clause acquired a meaning. In considering the effect of repeal of a
section, it is necessary to considerer the major words in a bill. Where
the provisions of one statute are incorporated by reference to a second
statute and the first is repealed by a third statute, the provisions
incorporated in the second still remains intact.

Implied repeals

There is no rule in England as there is in Scotland that a statute is

impliedly repealed by

1. age,
2. non-user or
3. it has fallen into desuetude (lapses or become unenforceable)

In spite of numerous statutory law reforms, Acts dating from 1801, a

statute some of them dating 100 of years ago, some never acted upon
simply because they have been forgotten. The principle just cited was
clearly indicated in the case of Wlyd v Silver (1963) 1QB p 6 in which a
private Act of 1799 gave the inhabitant of a village a right to own a fair
wave on certain land. The fair had been rarely held if at all since 1975
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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
and in 1958 a purchaser of the land was given planning permission for
the erection of houses on the land. It was held that the villagers will
exercise some right and prevent any such right not being capable of
being lost through non-usage or desuetude.

Penal Act (Acts which punishes)

A penal Act has two meaning. In it wider sense it means every statute
creating offence against the state whatever character it could be. In it
narrow sense, it means a public officer can be brought on an action for
penalties for some things he has done.

It is said that in construction of a penal statute must be very strict. In

other words if there is an ambiguity in the construction of the statute, it
should be resolved in favour of the subject.

However, if it has to be construed at all, it should be done with utmost

prescience. If there is a reasonable method of construction of that
statute that will avoid absurdity, it should be adopted. In modern times,
unless penalties are imposed in clear terms, they are not enforceable.
In the case of Re HPC Productions Ltd (1962) 2WLR gave us a key
guiding principle in construing penal statutes “in construing a penal
statute, the question is simply what is the meaning of the words used
to describe the prohibited act or transaction? If these words have a
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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
natural meaning and that meaning is not to be extended by any
reasoning based on the absence of the transaction. If the language of
the statute is equivocal, and there are two reasonable meanings of
that language, the interpretation which will avoid the penalty is to be
adopted” (contract proferentem).

This principle which his lordship mentioned of the court giving the
benefit of the doubt of the subject, was illustrated in the popular case
of R v Munks (1964) 1QB p304 where the Court of Criminal Appeal, the
court considered the following words “…whosoever shall set or place
any spring gun, man trap or other engine calculated to destroy human
life or inflict grievous bodily harm, shall be guilty of a misdemeanor
(Section 31 of the Offences Against the Persons Act of 1861), the
defendant did not want his wife to come to his house and so he has
connected one wire of an electric flex from the electric light in the
kitchen through the living room, there fastening it to the handle of a
French window, the other wire was fixed to hang down inside the
window in such a way that anyone opening the window from outside
will suffer from severe shock. It was alleged that his electrical
contrivance was an engine calculated to inflict grievous bodily harm.
The Court held particularly as this is a penal statute that the meaning to

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
be given to the word engine in this context is a mechanical engine and
consequently therefore, the conviction was quashed. However, the fact
that a good argument is made out will still create onerous position on
the part of an accused person and should not be comfortable that the
Court will always apply the strict rule in the interpretation of the strict
rule. That is where the words are clear and unambiguous. In the case
of R v Webb (1964) 1QB p357 (which a contrasting case to the R v
Munks case), the defendant has been convicted of procuring a woman
to become a common prostitute contrary to the Sexual Offences Act
section 22 1(a) of 1956. The woman whom the defendant had
employed as a masseuse performed certain acts on main customers
although there was no suggestion that there had been any sexual
intercourse between them to assist the argument that such behaviour
was not “prostitution”, the defendant cited an American decision that
the word prostitution is confined to the exposure by a woman of her
body for sexual intercourse. The court refused to interpret the word
prostitution narrowly and held that it also covered (the offering of a
woman of her body for purposes amounting to common lewdness for
payment).

88
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
It is not always that the court will apply penal statute strictly. In
Fortesque v Betnam Green Vestry (1891) 2QB p170, the Metropolitan
Management Act of 1855 which imposed a penalty not exceeding 5
pound sterling (without specifying any minimum) and a further penalty
of 40 shillings a day for the continuing of the offence upon any owner
or occupier who did not after 14 day notice remove projections from
his house was held impliedly to repeal an Act of 1817.

An act which merely proposes a new form of punishment for what is

already an offence, is regarded as cumulative and not creating or
superseding the existing law. An offence may off course fall within two
distinct enactments eg 2012 and 2019 but this gives no basis to give a
secondary interpretation to one of the enactment so as to exclude the
other.

An interesting point of construction arose in the case of Tonkin v Raven

(1959) 1QB p177. In this case, a person was charged with an offence
under section 50 of the Shops Act of 1950. Section 47 of the Act
provided that all shops should be closed on Sunday save as otherwise
provided. Section 50 provided an exemption where several trades were
carried on in the same shop for certain transactions provided a notice

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
specifying this was exhibited. No such notice was placed. It was held
that section 50 of the Act did not disclose an offence.

ENABLING ACT

This Act enables something to be done which was either earlier

prohibited or not expressly authorized by law with or without
prescribing how it is to be done. They are donative of the following
operative words; may and shall or must. These terms are discretionary,
directory, mandatory and compulsory. Lord Atkin when speaking of
the compulsory terms of the statute said “it is precisely in the absolute
obligation imposed by a statute to perform or forbear from
performing a specified activity that a breach of statutory duty differs
from the obligation imposed by common law which is to take
reasonable care to avoid injuring another”.

In Latimer v AEC (1955), Lord Tucker stated that “it appears to me

sensible in these days when there are in existence so many statutes
and the statutory obligation imposing absolute obligations upon
lawyers, that Courts should be vigilant that the common law duty
owed by a master to a servant should not be gradually enlarged until
it is barely distinguishable from its absolute statutory obligations”

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
It is often a difficult question, in construction as to whether a provision
in a statute is to be considered as one or the other. The whole scope
and intention of the statute must be considered and there is no cut and
dried rule by which the distinction between discretion and obligation
can be made.

An absolute enactment must be obeyed exactly. If it a directory

enactment, it should be obeyed or fulfilled substantially. In Liverpool
Borough Bank v Turner (1861) 30LJ CH p379, Lord Campbell LC said,
“no universal rule can be laid down for the construction of statutes as
to whether mandatory enactment shall be considered directory only or
obligatory with an implied nullification for disobedience. It is the duty
of Courts of justice to try and get at the real intention of the legislature
by carefully attending to the whole scope of the statute to be
construed”. In the case of R v Worcester (1957) 55TLR, the Judges in
this case refused to exercise the discretion to appoint a River Constable
conferred upon them by the Canal Offences Act of 1840 on the ground
that the offences were obsolete (outdated) and therefore the
appointment was unnecessary. The court held that the Act had
conferred a right coupled with a duty to appoint Constables and they
issued a rule nisi for a mandamus. More recently however the

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
question was considered again in the case of Chelmsford v Powel
(1963) 1WR p123. In this case, a statute provided that an appeal “shall
be made to the minister by a written notice which shall indicate the
grounds upon which the appeal is brought”. Did this mean that an
appellant was confined only to the grounds of his appeal as indicated in
the written notice?. The Court cited that the Liverpool case and said
taking whole scheme off the legislation into consideration, that the
words did not imply that an appellant can never change his mind.

Directory powers in a statute were described by Sir Arthur Channel

when he gave advice of the judicial committee in Montreal Street
Railway Company v Normandin (1917) AC170 he said that “the
question whether the provision in a statute are directory or imperative
has frequently arisen in this country, but it has been said that no
general rule can be laid down and that in every case, the object of the
statute must be looked at … when the provisions of a statute relates to
the performance of a public duty, and the case is such that to hold null
and void acts done in respect of this duty could work serious general
inconvenience or injustice, to persons who have no control over those
entrusted with the duty, and at the same time would not promote the
main object of the legislature..”

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Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
If an absolute enactment is contravened or neglected, a court will treat
the thing which is being or has been as a null and void.

Where a statute as often gives a discretionary power, the discretion

must be exercised according to common sense and justice. It must be a
judicial discretion and not be exercised on the whims and caprices on
the persons involved. In Berry v British transportation, Lord Justice
Devlin said “the court has no power of its own motion to declare how a
discretion conferred by the statute shall be exercised or law down rules
about it…”

The use of the word “must” and “shall”

“Must” is naturally prima facie imperative and admit of no discretion

and so is “shall”. For example, the Public Health Act of 1865, section
174 (2) provided that every contract made by an urban authority under
the Act of a value of over 50 pound sterling shall specify some
pecuniary penalty in case the terms of the contract are not duly
performed. This enactment was held to be obligatory and not directory.

The use of the word “or” and “and”

In order to carry out the intention of the legislature, it is necessary to

read these conjunctions one for the other, thus in 43 Elize C3, they

93
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
spoke of property to be employed for the maintenance of sick and
maimed soldier. This was held to apply to soldiers who were sick and
maimed and not for both.

ADOPTION

Adoption is a social piece of legislation aimed at making provision for

children to get better opportunities either within the country or outside
with an overarching safeguard for them not to be trafficked. When the
adoption process is consummated and the process of the law gone
through, the original right of the biological parent is extinguished and
the adoptive parent will take that role. The issue of child trafficking has
been so immense of late that concerns have been raised that
developing countries should adopt a robust statutory regimes so as to
safeguard the child and his future. Act No. 9 of 1989 which is the
Adoption Act hereafter referred to as the Adoption Act, provides plenty
control regimes for which an applicant who wants to adopt a juvenile
should follow. A cursory look at the Act will tell you what those regimes
are.

Definition of key terms in the Adoption Act of 1989

94
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
In the Act Court is defined as the High Court of Sierra Leone (where the
application for adoption is made). When they say father, in relation to
an illegitimate child means the natural father. Juvenile means a person
who is under the age of seventeen (17) years. Also important is the
definition of a parent. Parent is defined in the Act to include a father as
was just defined, and a guardian. The word relative in the Act mean
the grandparents, brother, sister, uncle or aunt or son or daughter of
an uncle or aunt whether of the full blood of affinity and also makes
provision for illegitimate children and provides for will by testamentary
disposition. The reason why the definition of relative is broad is the
social context in which the children operate. Sierra Leone is a society in
which we live by an extended family system.

The power of the Court to grant adoption is derived pursuant to this

Act. Section 2 (1) provides that if the proper application is made to the
Court and the proper formality complied with, an order may be
granted. If a husband and wife want to adopt a child, they are covered
by section 2 (2). Section 2 (3) however provides that the Court may
make an adoption order authorizing the adoption of a juvenile by the
mother or the father of the juvenile either alone or jointly with her
husband or his wife as the case may be.

95
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
The most important aspect of this Act is section 3 (1). This section is
very important as to the qualification that an applicant should have
before the order is granted by the court. This includes:

1. He should have attained the age of 25 and is at least 21 years

older than the juvenile.
2. He should have attained the age of 21 and is a relative of the
juvenile.
3. He is the mother or father of the juvenile.

The law frowns upon the granting of an order in favour of a sole

applicant who is a male unless the juvenile is a son of the applicant or
the Court is satisfied that there are exceptional circumstances or special
circumstances for the making of an order. Section 4 (1) gives consent of
the parent (check the precedent given for further understanding).
Section 6 (1) also makes provision for consent adding further bolsters in
social principle that children are not for sale. It says what ought to have
conspired before the consent is made and the underlying object of this
is that the wishes of the juvenile and his best interest should be
considered. Section 10 (1) tells you how the application should be made
(check order 5 of the High Court Rules. Eg in the precedent given, the
application was made by notice of motion)

96
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
The motion should be backed up with an affidavit of support exhibiting
the following document:

1. The birth certificate of the child if it is available.

2. If the parents are dead you exhibit the death certificate.
3. If there is a guardian and gives consent, that consent must be
submitted.
4. The notification to the chief social development officer at the
ministry of social welfare
5. A report for assisting the Court. He should state the report from
the chief social development officer of the adoptive parent and
their relationship with the juvenile which is section 10 sub section
3 (e and f).

Prior to the making of the order, the applicant and the juvenile should
have been together for a period of at least six months - Section 4 (b).
When the order is made, the rights of the biological parents are
extinguished and in their place come the adoptive parent.

Another key player in the adoption process is the Administrator and the
Registrar General as they have a register of all these orders granted.

97
Disclaimer: This lecture note is compiled by SAIO SORIE KABBA, the PRESIDENT of the Law Society (2023-2024
academic year) and also a grade A student of the University of Makeni – Law Department. The notes were typed
during lectures as delivered by the course lecturer (Justice Mami) in the 2023/2024 academic year and further
developed using prescribed referrals and texts. This is not the only thing you need to pass the module but the key
foundation that leads to good grades. I’m a testament of such good grades thus sharing for the benefit of others
.This note is not free from error.
The above together with an extensive reading of the prescribed texts will greatly
help to enhance a better understanding of the module and to improve one’s
grade in same.

Good reading
SAIO SORIE KABBA
PRESIDENT – LAW SOCIETY – UNIMAK (2023/2024 ACADEMIC YEAR)
+23279398914

AUGUST 2024

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