Two Assignments at Old Yundum

Nature of the title. Family land held under customary tenure belongs to the family as a whole. The head of the family, once identified, has capacity to alienate only with the consent of the principal members; a purported sale by individual members without that consent does not bind the family. After Alhaji's death the family must have a successor head or an agreed representative, and there is no evidence that one was identified or that the family met and consented.

Application. The deed was signed by the widow and two of three sons. A widow is not, without more, a principal member with authority over family land, and the absence of one principal member (Modou) is a fatal gap unless his consent is later given or the family ratifies the transaction. The sale is therefore at best voidable, and as against the family it is void.

Bona fide purchaser. Sowe will want to say he paid value without notice. That defence requires that he made proper inquiry. A purchaser of family land is on notice of the family's interest and must show that he dealt with the head and obtained the consent of the principal members. Sowe did not do so; the defence is likely to fail.

His real remedies. (i) Restitution of the D400,000 paid, with interest, from the signatories personally, on the basis that they received the money without authority to convey; (ii) a claim against the signatories for breach of an implied warranty of title or for misrepresentation; (iii) if the family is willing, a ratification: a properly minuted family meeting at which all principal members, including Modou, consent in writing, followed by a fresh deed and registration. Until that happens, Sowe should not spend more on the land and should preserve his receipts, the deed and evidence of possession.

Caution. If he sues for specific performance against the family, he must join the family head and the principal members, not merely the signatories.

Starting point. Where two purchasers claim the same land from the same vendor, the first in time prevails in equity unless a later purchaser can rely on a superior legal title or on the doctrine of notice, or unless a registration statute alters priority.

Sowe's position. He is first in time, paid part of the price, and has been in open, exclusive and visible possession since 2019 - wall, store, occupation. Possession of that kind is notice to the world. His weakness is that he never registered and never completed payment.

Ceesay's position. She registered in January 2022, which ordinarily gives her priority over an earlier unregistered instrument. But registration perfects the instrument that is registered; it does not create title out of nothing. Two limits matter:

1. Notice. A registered purchaser who had actual or constructive notice of a prior purchaser's interest takes subject to that interest. Ceesay never visited the plot. Had she done so she would have seen the wall, the store and Sowe's occupation. Failure to inspect is not a neutral fact; it is constructive notice of what inspection would have revealed.
2. Void instrument. If the family had no power to sell, both assignments are void against the family; registration of a void deed does not validate it. In that event neither purchaser can claim the land, and both have personal claims against the signatories.

Conclusion. If the family's title is defeated or the sale is ratified, Sowe's prior equity plus possession is likely to prevail over Ceesay's later registered deed, because she took with constructive notice. If the family's title is not bound, Ceesay's registration and Sowe's occupation both fall away and the land returns to the family, leaving each purchaser to recover the price from the individuals who signed. Ceesay's demand that Sowe vacate should not be complied with pending determination.

Stamp duty. Under the stamp legislation, an instrument chargeable with duty that is not duly stamped is not admissible in evidence until the duty and any penalty are paid. The court has a discretion to admit it on payment. Two points follow. First, non-stamping does not destroy the transaction - it is an evidential and fiscal defect, not a defect in the agreement - so Sowe may prove the agreement by other admissible evidence (receipts, correspondence, conduct, the testimony of the signatories), though the deed itself will be rejected if tendered unstamped. Second, the defect is curable: Sowe should take the deed to the Commissioner General of the Gambia Revenue Authority, pay the assessed duty and penalty, and obtain the endorsement. Delay increases the penalty, so this should be done at once.

Registration. Even after stamping, the deed should be lodged at the Deeds Registry. Late registration attracts its own fees and does not retrospectively defeat a registered competitor, but it strengthens Sowe's position against future purchasers and gives public notice.

Planning permission. The plot lies within a declared planning area. Development - including the boundary wall and the store - requires permission under the physical planning legislation. Development without permission is unlawful and exposes Sowe to enforcement action: a stop notice, an enforcement notice requiring demolition or alteration, or a prosecution. The permission cannot be obtained retrospectively as of right; he must apply for regularisation and may be refused.

Practical advice. Apply to the planning authority for regularisation before the dispute comes before a court, since an unlawful structure weakens his equity and may be relied on by Ceesay as evidence that his occupation was not a lawful interest in land. Note also that any rectification of the planning position affects the value used in assessing restitution.