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 KINGDON, C.J., NIGERIA, PETRIDES, C;J., GOLD COAST AND WEBB, C.J., SIERRA LEONE. This matter comes before this Court by way of case stated by the Judge of the Supreme Court of the Colony of the Gambia under section 4 of the Supreme Court Appeals Ordinance, 1929. At the end of the case stated the learned Judge of the Gambia says :- “The question upon which the opinion of the Court is desired is whether, upon the above statement of facts, I came to a correct determination and decision in point of law, and if not, the Court is respectfully requested to reverse or amend my determination, or to remit the matter to me with the opinion of the Court thereon”.
It is not necessary to set out the facts which led to the litigation as they are fully set out in the case stated. Establissement Maurel et Prom have been referred to herein as of the “the Firm.” Momodu M’Boob and the other persons who are Gambia styled beneficiaries in the case stated are hereinafter referred to as claimants.
It has not been, and we do not think that it could have been successfully disputed that, had the conveyance of the 14th March, 1928, been between subject and subject, the proviso (No.7) against alienation would have been null and void as being a restraint on the alienation of a fee simple.
Counsel for the claimants has pointed out that all the cases cited by counsel for the firm on this point, were between subject and subject. He contended that those decisions had no bearing in this case, where the Crown was the grantor. He referred us to a passage in Halsbury 2nd Edition, p. 577 paragraph 731 which reads:- “ But in some instances grants by the Crown are valid which would have been invalid at common law if made by a subject. Thus, a grant by the Crown to the inhabitants of a Parish may be good, even though it would not have been effectual at common law it made by a subject; and a grant in fee by the Crown may contain a condition against alienation.”
The authority for the proposition contained in the last line quoted is the case of fowler v. fowler (1865) 16 I.C.R. 507.Unfortunately this Irish Report is not available. In Mews Digest Volume 5 Column 17 it is stated on the authority of that case that the Crown, by its prerogative, may annex a condition against alienation to a grant in fee.
The judgment in Fowler v. Fowler was referred to in argument by counsel in the Privy Council in the case of Cooper v. Stuart (1889) 14 Appeal Cases, 286, in support of the contention that the Crown may lawfully annex a condition against alienation on a grant of fee, and other conditions which are not competent to a private person. In the Australian case of A-G. v. Gouldsborouqh (1889) 15 V.L.R. 638, of which a digest is given in note p. on page 666 of Volume 38 of the English and Empire Digest it was held that a Colonial Governor has power in disposing of land to grant it in fee simple, subject to a condition which might make the estate in fee simple defeasible in certain events and upon certain terms.
The making of grants and disposition of public lands in the Gambia is regulated by “The Public Lands (Grants and Maurel Dispositions) Ordinance, 1902,” Chapter 77. Sections 3 and 5 of that Ordinance are in the following terms:-
3. “The Governor may ma e grants an dispositions of the of public lands in such manner and subject to such Gambia conditions as may be required. 5. “All grants or dispositions of any public lands within the Colony or Protectorate executed in with the requirements contained compliance section 4 hereof, shall be deemed to be valid and effectual for the purpose of conferring and assuring right, proprietary or possessory, or as the case may be, thereby expressed or intended to be conferred.” In our opinion the Governor of the Gambia may lawfully annex a condition against alienation on a grant of fee. We therefore hold that Covenant 7 in the Conveyance of the 14th March, 1928, was valid. In Coote’s Law of Mortgage, Volume 1 at page 170 it is stated :-
“Where a lease contains a covenant not to assign or sublet without licence, no mortgage either by assignment or demise, will be valid unless the licence is obtained.”
“We think that the same principle must be applied in the case of the Crown Grant of 1928, and therefore, in our view, the mortgage to the firm is invalid. That being so, it follows that the firm had no power as mortgagees to advertise the property for sale or to sell the interest of Musa M’Boob. In these circumstances it is not necessary to consider the question whether there has been re-entry on the property by the Government.
It has been suggested that the mortgage to the firm whic1t was executed by Musa M’Boob in accordance with the terms of an order staying execution in an action by the firm against him, was not a voluntary alienation by him, and consequently did not amount to such a disposition of his interest as would constitute a breach of the covenant against alienation. In our opinion this is not so; the mortgage was his own voluntary act and the case is not the same as where, for example the interest of a lessee is seized and sold in execution by the Sheriff.
For the foregoing reasons we are of opinion that the learned Judge was correct in holding that the premises are the property of the claimants and that the firm are not entitled to sell under the power of sale contained in the mortgage.
There is one other matter we should mention before leaving the case, namely the meaning of the words “ any grant in fee, whether simple or qualified,” which occur in section 2 of the Public Lands (Grants and Dispositions) Ordinance, 1902. The distinction between “ simple “ and “ qualified “ is one which has reference to inheritance only. Lord Coke said “Simple” is added for that it is descendible to the heirs generally that is, simply without restraint to the heirs of the body or the like; whereas a qualified fee is one specially limited, e.g. to a man and the heirs of an ancestor whose heir he was. The learned Judge in expressing his opinion in the case stated refers to “what the Ordinance calls a qualified grant in fee imposing a restraint on alienation by the grantee ;” but such a grant is not a qualified grant in fee and the Ordinance does not call it such; it is a grant in fee simple subject to a condition.