OKANTEY v. KWADDEY

Plaintiff established that he obtained a grant in December, 1939 by the Anahor Stool. Prior to that, viz. in September, 1939, the Osu Stool (which includes the Anahor Stool) purported to grant land, including the disputed area, to the Chief Secretary by agreement. On the 24th October, 1940, the Legislative Council passed an ordinance under which Government acquired an indefeasible interest in the said land. In December, 1939, when the Shippi conveyed to the plaintiff, Government had not acquired that "indefeasible interest."

The land in dispute was held under native tenure, and the parties are natives; therefore, sec. 87(1) of the Courts Ordinance applies. In consequence, the learned Judge was wrong in applying the purely English Rule against Perpetuities to this case. The land is Stool land granted by the Stool to subjects of the Stool. The agreement made by Government with Chiefs recognises native customary law, clearly showing that it was intended that under the agreement native customary law was not excluded. It follows that the English Rule against Perpetuities could not apply to defeat the rights of persons deriving title from the Chief or Chiefs. Yet the trial-Judge dismissed the claim because the grant sinned against that Rule.

In Danquah v. Ofei (2 W.A.L.R. 185) the rule against perpetuities was not applied. In Johnston v. Effie (14 W.A.C.A. 254) it was held that "a conveyance forms no part of a sale by native law and custom, mention of it in the receipt given by the vendor to the appellant-defendant, coupled with the other circumstances, indicated clearly that they intended their transaction to be governed exclusively by English Law."

But in Ferguson v. Duncan (14 W.A.C.A. 316) it was held that "the parties being natives, the onus was on the defendant to satisfy the Court that native law and custom should not be applied, but he neither cross-examined the plaintiff nor himself gave evidence towards that end; and as for the subsequent mortgage, it was plainly an afterthought and formed no part of the original transaction. The evidence did not establish that the transaction was to be exclusively regulated by English law, and the Statute of Limitations did not apply."

Even if the Rule against Perpetuities were applicable to grants between natives the grant to plaintiff-appellant was a vested grant, and therefore did not sin against that Rule. "The first remark to make about the Rule is that it does not apply to a vested interest, even though it d