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LARBI v. CATO & ANOR


  • New
  • 1959-01-28
  • HIGH COURT
  • GLR 35-42
  • Print

OLLENNU J.


Summary

Family property?-House built on self?-Acquired land?-What amount of family?-Help is necessary to make the house family?-Property.

Headnotes

Mr. A. O. Larbi was a member of the Ghana Bar, and a Legal Practitioner of the Supreme Court. When he died on the 30th September, 1956, he left a substantial credit-balance in his bank-account.In 1937 he had built a house consisting of two floors and outhouses; in 1950 he enlarged these premises by adding a one-story building. The value of the former, at the time of this action, was between 2,300 and 2,500; the value of the latter, 1,760. These buildings were erected on land which was his self-acquired property. They comprised House No. C.276/1, known as Obuadabang Terrace, and situate at Adabraka, Accra on the Accra-Nsawam Road.In the year following his death, his brother (as head of the Obuadabang family of Larteh) instituted these proceedings against the widow and the widow?'s brother. He claimed(1) a declaration that the premises were family property;(2) recovery of possession;(3) delivery to him (by the first defendant) of the title-deeds;[p.36](4) account of rents and profits;(5) an injunction.The basis of the claim was that the deceased had built the premises with the financial assistance of various members of the family.Land Suit 145/57 (Accra).

Judgement

(His lordship stated the facts, and continued); -

The late Mr. Larbi died on the 30th September, 1956, and a certified copy of Probate of his Will formed part of the evidence led on behalf of the plaintiff. Paragraph 7 of the Will gives the history of the premises in dispute, and is in conflict with the plaintiff?'s claim.

The plaintiff?'s claim is based upon the well-established principle that where members of a family assist another member of the family [p.37] with money, materials or labour to build on that other?'s self-acquired land, the members so assisting acquire, at the death of the builder, certain rights with respect to the house so build - the house becomes family property (Welbeck and ors. v. Brown and anor. (Sar. F.C.L. 160)). Further, property acquired from profits of family property is itself family property (Tsetsewa v. Acquah anor. (7 W.A.C.A . 216)).

The native law or custom which the Supreme Court recognises and administers must be such as, in the language of section 87(1) of the Courts Ordinance, is not repugnant to natural justice, equity and good conscience. In considering native law and custom in that light, regard should be had to the progress of society, and to changing conditions in the social life of, and economic values in, this country.

From a careful study of the various judicial decisions, including the case of Codjoe ors. v. Kwatchey (2 W.A.C.A 371) and Redward?'s Commentaries on this aspect of the customary law, I have formed the opinion that where it is proved

(1) that members of a family made substantial monetary contribution to another member to build a house on his individual land, or

(2) that the moneys used by a member of a family to build on his self-acquired land were entirely, or substantially, proceeds from family or ancestral property, as distinct from what he (the individual member of the family) would normally enjoy as his share of proceeds from family or ancestral property, or

(3) that in the absence of employed labour (or with partly employed labour) members of the family provided the whole or a substantial part, of the labour for a member of the family to build a house on his own land, and with his own materials, or

(4) that the materials used by a member of the family to build on his own land were, in the main, property of the family, then, in any such case of substantial contribution by the family or members of the family, a house built by a member on his self-acquired land becomes by custom family property.

In my opinion, however, it would be repugnant and contrary to all principles of natural justice and good conscience to hold in modern days that where, for example, a man employs contractors to build on his land, the house so built would become family property simply because one member or another of the family occasionally visited the site of the work when it was in progress, and casually carried a pail of water, a piece of bricks, or helped the contractors?' labourers to [p.38] lift a board or so. I should take the same view where a member of the family gave to the member building on his own land some temporary financial assistance to an amount which was insignificant when considered in relation to the actual cost of the building.

I shall now examine the evidence in the light of these principles. It must be observed at the outset that the claim of the plaintiff, on the face of it, is one against the estate of a deceased person. Both by native custom and by English Law, such a claim cannot succeed unless the allegations made are corroborated by facts which tend to render more probable the testimony on material points.

The plaintiff?'s case is that the buildings erected in 1950 were family property because they were erected with rents collected from the main house, i.e. from the house built in 1937. He said -

?"Yes, I know that in 1950 my late brother erected additional buildings on the land, but I say he did it from rents collected from the main house, and therefore those premises are also family property.?"

There is no evidence that the main house, or any portion of it, was ever let, and (if so) at what rent. The evidence rather shows that the late Mr. Larbi occupied the main building, and that in 1947 he ejected his nephew, son of his sister Yaa Darkuah, from a room then occupied by the nephew, converting that room into an office. Thus the solitary casual evidence given by the plaintiff in cross-examination that the deceased collected rents from the main building, and with those rents erected the buildings of 1950, finds no corroboration. There is, on the other hand, the evidence led by the plaintiff that the deceased was a legal practitioner. There is the further evidence, which his Counsel brought out in cross-examination of the 2nd defendant, that the late Mr. Larbi left a substantial credit-balance with the Bank. Yet the plaintiff has not claimed that credit-balance as his family property; in other words, he has not claimed it as rents collected from the house of which he claims ownership.

I hold, therefore, that the plaintiff has failed to prove that the buildings erected by the deceased on his land in 1950, are family property.

In respect of the 1937 building, the plaintiff?'s case is that he received a letter (Exhibit ?"A?") dated 18th January, 1937, written to him by his deceased brother. Plaintiff alleged that copies of this letter had been sent by the late Mr. Larbi to other members of the family. In consequence of this letter, he and other members of the family contributed various sums of moneys towards the erection of the building in dispute. Of all the members of the family whom the [p.39] plaintiff alleged to have made these contributions towards the building of the 1937 house, only one is alleged by the plaintiff to be dead, namely the late J. P. A. Tenkorang. Yet none have been called to give evidence substantiating the plaintiff?'s allegation that they paid such moneys to the deceased.

The plaintiff gave evidence that his late brother issued receipts for only three of the amounts which he and other members of the family contributed towards the erection of the house. Those receipts were put in as Exhibit ?'B1?', Exhibit ?'B2?" and Exhibit ?'C?'; they were for 10, 20 and 10 respectively. Exhibits ?'B1 and 2?' were issued to the plaintiff, whilst Exhibit ?'C?' was issued to one Som Adjei.

According to the plaintiff, the deceased did not himself give receipts to him, or to any of the other members of the family who contributed the other sums of money. The plaintiff said, however, that on the occasion of each such payment the deceased caused one or other of his two clerks, Ohene Bampoe or Mrako, to record the amount contributed in a Passbook, and the deceased signed the said entry after examining it. There was no evidence as to who has custody of the Passbook or Books. No notice was served upon the defendants to produce the Passbook or Books. Each of the two clerks, Ohene Bampoe and Mrako, who were alleged to have made the entries, gave evidence on behalf of the plaintiff, yet neither was asked about the alleged payments, or about entries in the Passbook or Books. If such payments were made, and the witnesses in consequence entered them up in a Passbook or Books upon the instructions of the deceased, it is surprising that these witnesses should be asked to speak only about Exhibits ?'B1?', ?'B2?' and ?'C?' and left completely silent about the Passbook or Books.

I do not believe that payments other than those mentioned in Exhibits ?'B1?', ?'B2?' and ?'C?' were made by the plaintiff, or by any other member of the family. In any event, the testimony of the plaintiff that such payments were made to the deceased is not corroborated, and I must reject it.

I now turn to Exhibit ?'C?'. It is a receipt given by the late Mr. Larbi to Som Adjei. It is dated 6th July, 1937, and is for 10, ?"being contribution towards my new building situate at Adabaraka - Accra - Nsawam Road.?" The plaintiff tendered this document in evidence without showing how he came into possession of it. From the plaintiff?'s evidence it is certain that Som Adjei is alive, but he was not called to give evidence. Yet the plaintiff knows that in 1953, Som Adjei represented to the late Mr. Larbi that a receipt which the latter had given him in 1937 (for an amount of 10 which he had given to [p.40] the late Mr. Larbi) had been lost; that Som Adjei requested the late Mr. Larbi to give him another receipt in replacement; and that, in consequence of that request, the late Mr. Larbi refunded the 10 to Som Adjei, who in turn issued the late Mr. Larbi with a receipt (Exhibit ?'9?') dated 23rd January, 1953.

The plaintiff said that he was not present when Som Adjei demanded the fresh receipt, and was instead repaid the 10 as shown on Exhibit ?'9?'. Plaintiff said that after Som Adjei had given the receipt Exhibit ?'9?', he (Som Adjei) went and told him (the plaintiff) that the receipt for 10 given to him in 1937 by the late Mr. Larbi, which he said was lost, was different from Exhibit ?'C?', and was in respect of another sum of 10 he gave the late Mr. Larbi in the same year (1937). Som Adjei is the best person to prove that he made two payments of 10 each in 1937 to the late Mr. Larbi.

Exhibit ?'9?' came out when the plaintiff was recalled with leave of the Court after he had closed his case, and further questions were then put to him through the Court. Counsel for the plaintiff had objected to the plaintiff being recalled. I ruled upon that objection stating, inter alia, that in justice to the plaintiff, he should not be taken by surprise by the defence with any facts which might have come to their notice after the close of the plaintiff?'s case, and that he (the plaintiff) should be given opportunity of knowing beforehand any such facts which the defence might use against him, in order that he might offer any explanation which he had, or might call rebutting evidence. Even after Exhibit ?'9?' had been tendered, the plaintiff did not avail himself of the opportunity of calling rebutting evidence. The presumption is that if Som Adjei were called he could not deny that he paid only one sum of 10 to the late Mr. Larbi in 1937, and that Exhibit ?'C?' is the receipt which he alleged in 1953 was lost.

Although the word ?"contribution?" is used by the late Mr. Larbi in the receipt (Exhibit ?'C?') which he issued to Som Adjei, and the words ?"repayment of an amount he borrowed?" are used in the receipt Exhibit ?'9?', I have come to the conclusion, in all the circumstances and for further reasons which I shall give presently, that the receipt Exhibit ?'9?' relates to the receipt Exhibit ?'C?'. The late Mr. Larbi, therefore, refunded to Som Adjei the amount of 10 (?"contribution to my building?") mentioned in Exhibit ?'C?'. In my opinion the late Mr. Larbi and Som Adjei were ad idem that the 10 referred to in Exhibit ?'C?' was a loan, and not a contribution in the technical sense of the word. [p.41]

I must now examine the two sums of 10 and 20 paid by the plaintiff to the late Mr. Larbi, for which the latter gave plaintiff the receipt ?'B1?' and ?'B2?'. The plaintiff said that he gave these two sums in response to a request made to him by the late Mr. Larbi in a letter (Exhibit ?'A?', which reads as follows:-

18th January, 1937.

?"Dear Kofi,

In connection with my proposed building I write to ask you to give me out of our family property the sum of 50 (Fifty pounds) by way of contribution towards the erection thereof, part payment to be effected early in February, 1937.

I am,

Your Brother.

J. R .O. Larbi, Esq.,

P. O. Box 28,

Nsawam.?"

The receipts (Exhibits ?'B1?' and ?'B2?') issued by the late Mr. Larbi are worded as follows:- ?"Being contribution towards my new building?", etc. According to Exhibit ?'A?' the ?"contribution?" of 50 was to be made out of family property, proceeds from which Mr. Larbi was entitled to share in. Both the letter (Exhibit ?'A?') and the receipts emphasize ?"my building.?" In my opinion, when the said documents are read together, the only intention of the parties to be gathered from them is that the late Mr. Larbi was asking for a loan of 50, and that plaintiff gave him a loan of 30 on account. I am of the opinion that it was understood by the plaintiff that the two small sums so advanced were not contributions towards the building of a family house, but loans to assist the late Mr. Larbi to build his own house. Clause 7 of the Will (Exhibit ?'D?'), which is part of the plaintiff?'s case, confirms me in that view.

Finally, there is the letter Exhibit ?'F?', tendered on behalf of the plaintiff. In that letter the deceased gave notice to his nephew, his sister?'s son E. Larbi Adjei, to remove from a room which the nephew was occupying in the main building. In the last two paragraphs of that letter the late Mr. Larbi made a clear assertion of his absolute right to the property, as against any misapprehensions which the nephew might have as a result of what the plaintiff might have told him. Mr. Larbi wrote:-

?"I have been made to understand my elder brother has given you a counter advice in this matter. You can obey or disobey this counter advice, but there is nothing to preclude me from removing [p.42] your effects from your room if you prove adamant to what I have stated in this letter. I shall definitely remove my office to your room on the 3rd of September.?"

A copy of this letter was sent to Madam Yaa Darkuah, mother of the addressee, and sister to the plaintiff and to the late Mr. Larbi. The evidence shows that the deceased ejected the young man as he had threatened to do in Exhibit ?'F?'. Upon the evidence, that young man is the only member of the family who ever occupied any portion of the buildings erected by the late Mr. Larbi in 1937. His ejectment from the house was with the knowledge of the plaintiff (the head of the family) and of other members of the family. In Exhibit ?'F?' the late Mr. Larbi challenged the plaintiff?'s right to interfere with his orders and instructions in respect of the house. And when he carried out the threats he had made in Exhibit ?'F?', neither the plaintiff nor any member of the family questioned this right to do so. It is inconceivable that the head and members of the family would sit by and be so inactive when the deceased made such positive assertion of his right to absolute control of the property at his will. In my opinion, the only reasonable explanation of the conduct of the plaintiff and the family in this regard is that they knew quite well that the property was the self-acquired property of the deceased.

The insignificant amount of 30 which the plaintiff gave to the late Mr. Larbi was not a contribution towards the erection of a ?"family house,?" but was either a loan, or an amount which the late Mr. Larbi was entitled to enjoy out of the proceeds of the family estate, which were in the control of the plaintiff as head of the family. In any event, the building erected by deceased on his land was worth no less than 2,500. The amount of 30 was therefore, negligible compared with the value of the building. Applying the principle which I have already stated, even if it was meant to be a contribution in the technical sense, it could not (in these modern days) change the character of the building from individual property to family property.

Decision

<P>For these reasons I dismiss the plaintiff’s claim, and enter judgment for the defendants, with costs fixed at 75 guineas inclusive.</P> <P>&nbsp;</P>

Plaintiff / Appellant

Lokko

Defendant / Respondent

Bentsi-Enchill

Referals

(1) Welbeck and ors. v. Brown and anor. (Sar. F.C.L 160);

(2) Tsetsewa v. Acquah and anor. (7 W.A.C.A. 216);

(3) Codjoe and ors. v. Kwatchey (2 W.A.C.A. 371).

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