In Manjang v Drammeh ((1990) 61 P & CR 194, PC) R, having already occupied 63 Wellington Street in The Gambia for some time, was granted a lease of it for 21 years from 2 February 1977.
R also occupied an adjoining strip of land that lay between 63 Wellington Street and the River Gambia (‘the River Strip’). The only means of access to the River Strip on foot was through 63 Wellington Street. Again after a period of occupation on an uncertain legal basis, R was granted a lease of the River Strip in 1986.
In 1982, R assigned the lease of 63 Wellington Street to A. The assignment did not reserve an express right of way over 63 Wellington Street to access the River Strip.
R argued that a reservation of the right of way should be implied into the assignment. This argument failed.
Lord Oliver set out the three essential requirements for an easement of necessity to be implied: (1) there should have been a common owner of the two plots of land at the time of the assignment; (2) it had to be established that the only way to get to the public highway from the River Strip was across 63 Wellington Street; and (3) there must not have been a specific grant of the right claimed (196 – 7).
The first condition was not satisfied: R had not been the owner of the River Strip at the time of the assignment (R was granted the lease of the River Strip four years later).
It was also arguably the case that the second condition was not satisfied either: it was possible to access the River Strip by boat.
Contrary to the view of the majority of the Gambian Court of Appeal, an easement of necessity can not be implied purely on the grounds of convenience.
Michael Lower
