Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 LARBI v. CATO AND ANOTHER | GhanaLegal - Resources for the legal brains

LARBI v. CATO AND ANOTHER


  • appeal
  • 1960-06-06
  • COURT OF APPEAL
  • GLR 146-155
  • Print

KORSAH, C.J., VAN LARE, J.A. AND GRANVILLE SHARP, J.A.


Summary

Family Law?-Family property?-Children under no obligation to repay costs of education?-Earnings by children educated at expense of family not family property?-Contributions by members makes building family property where builder recognises that he is building a family house?-Contribution must be "real"?-Onus of proof that house is family property?-When onus shifts.

Headnotes

A. O. Larbi died on 30th September, 1956. In 1937 he had built House No. C276/1, Nsawam Road, Accra on self-acquired land. He added to the buildings in 1950. By deed of gift dated 24th March, 1952, he conveyed the property to his son A. O. Cato-Larbi and confirmed the deed in his will dated 19th September, 1952. At his death, the ownership of the property was therefore vested in A. O. Cato-Larbi. In 1957 the brother of the deceased brought an action in which he claimed inter alia a declaration that the said property was family property (and therefore property of which the deceased was not entitled to dispose). The defendants were the brother-in-law and the widow of the deceased. The basis of the plaintiff's claim was that the deceased had built the premises with the financial assistance of various members of the family. The action was dismissed by Ollennu, J. and the plaintiff appealed. At the hearing of the appeal it was further argued on behalf of the plaintiff that as the deceased had been educated with the assistance of family funds, his subsequent earnings and property acquired were stamped with the mark of family property. [p.147]

Judgement

APPEAL from a judgment of Ollennu, J. in the High Court, Accra in favour of the defendants in an action claiming, inter alia, a declaration that certain premises were family property. The case is reported in [1959] G.L.R. 35. The facts appear fully from the judgment of the Court of Appeal.

Granville Sharp J.A. delivered the judgment of the court: The plaintiff in this action has appealed to this court against the judgment of Ollennu, J. dated the 28th January, 1959, by which the learned judge dismissed the plaintiff's claim to a declaration that a certain property, viz. House No. C276/1 (otherwise known as Obuadabang Terrace, Fanofa, Adabraka, Accra) is family property of the Obuadabang family of Larteh, of which family the plaintiff is the head. Ancillary relief claimed, and also refused by the learned judge, was (a) delivery to the family of the title deeds of the property, (b) delivery of possession of the house by the second defendant to the plaintiff, and (c) an account of all rents collected by the second defendant in respect of the premises.[p.148]

The basic claim that the house was family property was grounded upon the following averment contained in paragraph 3 of the statement of claim:-

"In or about the year 1937 the said Ansah Obuadabang Larbi with the financial assistance of various members of the said Obuadabang family of Larteh built house No. C276/1 situate at Accra-Nsawam Road, Fanofa, Adabraka, Accra."

The Ansah Obuadabang Larbi referred to was dead, and the plaintiff was his eldest surviving brother. The first defendant in the suit is the brother-in-law of the deceased, and the second defendant is the lawful widow of the deceased.

The deceased during his lifetime, by deed of gift dated 24th March, 1952, conveyed the property to his son Ansah Obuadabang Cato-Larbi for a consideration stated as follows:

"In consideration of the natural love esteem and affection of the donor for his son the donee and of the sum of twenty-five pounds (25) paid to the donor by the donee on or before the execution of these presents (the receipt whereof the donor hereby acknowledges) and for divers other good causes and considerations . . ."

By his last will, executed and dated on the 19th September, 1952, the deceased in clause 7 expressly confirmed this last-mentioned deed of gift in relation to the house, and it will assist in an understanding of the case to set out this clause in extenso:

"7. I have already in my lifetime executed a deed of gift in respect of my house No. C276/1, which was erected by me in 1937, including the out-houses and garage which were erected in 1950, in favour of my son Ansah Obuadabang Cato-Larbi and his heirs. The main building and three Boys' rooms and the two kitchens which were erected in 1937, were built in the name of my son Ansah Obuadabang Cato-Larbi, but the other outhouses and the garage erected in 1950 were erected in my name. The deed of gift includes all these buildings, 1937 and 1950. I did so because of the assistance which my father-in-law J. E. Cato, late of Senchie and Saltpond, gave me, coupled with a further monetary assistance which my brother-in-law, J. E. Cato, Manager, Senchie Ferry, gave me in 1938 when I was sued by Messrs. G. B. Ollivant Limited to enforce payment of building materials supplied me by G. B. Ollivant Ltd., the total amount being 408 17s. 6d. (four hundred and eight pounds seventeen shillings and sixpence), which amount is still unpaid by me. My title deeds relating to my said house were deposited by me with my father-in-law, the late J. E. Cato, to secure the repayment of the sum of nine hundred and eighty pounds (980). Part of this amount was spent by my elder brother J. R. O. Larbi on my education when I was in England as a student, and the rest was squandered by my said brother J.R.O. Larbi upon his own pleasures.

"I strongly direct my son Ansah Obuadabang Cato-Larbi to pay all debts due from me to the estate of J. E. Cato, late of Senchie and [p.149] Saltpond, and to see also that the sum of Four Hundred and eight pounds seventeen shillings and sixpence (408 17s. 6d.) due from me to his Uncle J. E. Cato, Manager, United Africa Co. Ltd., Senchie Ferry, is paid, and claim from him the title deeds relating to the House No. C276/1 Fanofa, Adabraka, Nsawam Road, Accra, which I have gifted to him."

As a result of these several instruments, the state of affairs relating to the property at the date of the death of Ansah Obuadabang Larbi was that the ownership of the house resided (both as donee by valid deed of gift, and as devisee under the will) in Ansah Obuadabang Cato-Larbi; and that this ownership was subject to an equitable charge by deposit of title deeds which were at the date of the proceedings in the control and custody of J. E. Cato, the first defendant, to whom they had passed on the death of his father (the J. E. Cato referred to as the testator's father-in-law in Clause 7 of the will, supra). The second defendant is in possession of the house as the mother of Cato-Larbi, and with his leave and licence.

At the hearing before the learned trial judge no objection was raised against either the deed of gift or the will as such. The plaintiff's general complaint was that the deceased (A. O. Larbi) was not entitled to dispose of the property in any way, because it was a family property, to the disposition of which the family had not consented. It would not have been possible for the family to resist probate of the will, because no recognised ground for so doing existed, but it is a matter of comment that no steps were taken to set aside the deed of gift on the grounds that it was a fraud on the family, and that the donor had no title to convey the property. Nothing of fraud was alleged at the trial, and it was not until the matter came before us that Dr. Danquah (in our opinion without any justification whatever) sought to throw suspicion on the deed on the basis that-as he stated, though without any supporting evidence-the monetary consideration referred to in it was illusory and a deception. The deed was in fact registered as No. 443/1952 in the Deeds Registry, and there was therefore no concealment.

In reply to the defence that the property was the sole property of the testator, A. O. Larbi, deceased., the plaintiff pleaded as follows:

"the plaintiff says that inasmuch as the buildings known as Obuadabang Terrace were erected by the late Ansah Obuadabang Larbi with family money he cannot in law give it away under his will or by deed or otherwise."

Upon this it is to be noted that no issue was raised, or suggested, whether or not the buildings were erected on family land. Notwithstanding this, Dr. Danquah in a further divergence from the pleadings, from anything suggested at any stage of the trial, and from anything suggested by his grounds of appeal, thought it right to occupy his time-and the time of the court-with something stronger than a suggestion that the land on which the buildings stand is family land. The first thing that needs to be said about this is that there is the clearest possible evidence in a deed, dated the 3rd April, 1939 and produced at the trial, that the land came [p.150] to be the sole property of the deceased, A. O. Larbi upon a partition of a larger parcel, which up to the date of the deed the deceased owned jointly (as an inheritance) with one Isaac Frank Antwi. Secondly, it must be supposed that Dr. Danquah felt himself driven to make the unwarrantable suggestion to which we have referred in order to draw to a logical conclusion arguments as to customary law in relation to family property which, to say no more about them, are in our opinion novel.

The case for the plaintiff was a simple one, ignoring for the moment certain digressions from what was material. It was that he had received a letter from the deceased dated the 18th January, 1937 as follows:

"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"

and that he had sent a sum of 30, and that thereafter he had sent other sums, namely 10 in March, 1937, 20 in May, 1937, 150 in November, 1937 and 100 in January or February, 1938. He said that sums in respect of which he was not given a receipt were entered by the deceased in a pass book. No evidence was given as to the whereabouts of any such pass book, nor did the plaintiff think it worthwhile to serve any notice to produce it at the trial. The plaintiff said that other members of the family made contributions, in various sums which he named. All but one of these was known to be alive at the time of the hearing, but none came forth to lend any support to what the plaintiff said. Two clerks, who were said to have made entries of all these contributions, were called, but were not questioned either as to the pass books or their entries. They gave evidence only as to the receipts.

In cross-examination by Mr. Bentsi-Enchill the plaintiff was induced to give evidence upon which Dr. Danquah based arguments before us which had not been advanced in the court below. That evidence it is therefore necessary to set out:

"The farms in the family estate were my grandfather's farms . . . According to Larteh custom, when a father leaves a property the head of the family takes care of it and manages it for the whole family . . . Out of the proceeds of the estate I educated my younger brothers namely the late A. O. Larbi, Koi O. Larbi, B. Akwei, Juliana Lartebia and others . . . No, those people educated do not owe the money spent on their education as by the family . . . Surely my brothers were also entitled to enjoy some of the proceeds of the farms in the estate, and there will be no obligation on them to pay to the family what they enjoy or is given to them out of the estate, unless there is a special arrangement that they should pay . . . In this case there was a special arrangement. That arrangement was made in pursuance of the letter (Exhibit `A') which my late brother wrote to me . . . My late brother wrote letters similar to Exhibit `A' to other members of the family . . . No, I did not at any time make demands upon my late brother for repayment of the money, [p.151] because it was agreed that he was building the house for the family . . . Yes, I know that he built the house in his own name."

Before dealing with Dr. Danquah's submissions in the light of this evidence, we should say that there was evidence in the documents (both Exhibit "A" and the receipts) that the deceased always treated, and referred to, the property as "my new building". There was evidence that, when action as brought by Messrs. Ollivants which threatened the property, no member of the family appeared to take any interest in the matter.

The plaintiff claimed that certain new buildings which were erected in 1950 by the deceased were also family property, because " I say he did it from rents collected from the main house, and therefore those proceeds are also family property ". The deceased had in fact erected the buildings in the name of his son, and there was no evidence that any rents whatever had been collected from the 1937 house, or that any member of the family had ever suggested that there were. The plaintiff knew that the deceased built the 1937 house in his own name. There was, furthermore, evidence that (without protest from any member of the family) the deceased had insisted upon a member who had been permitted to occupy a room in the house vacating that room in exchange for another, thus evincing a desire to use for his own convenience what was his own, yet without necessarily hurting one to whom he felt he owed some filial or avuncular obligation.

On this evidence the learned judge, in our opinion, was fully entitled to find, and was right in finding, that the plaintiff had not proved his case. On our own reading of it, the evidence for the plaintiff stands out as quite unreliable, and such inferences as are to be drawn from it cannot support the claim put forward by the plaintiff. The learned judge had the additional advantage that he heard and saw the witnesses, whose demeanour no doubt assisted him in his assessment of their reliability.

It was in these circumstances that Dr. Danquah felt himself to be justified in presenting (not once, but with constant and quite unnecessary repetition) an argument that because the deceased had, together with other members of the family, been given the advantage, with the support of family funds, of an education which had enabled deceased to practise with distinction and consequent self-enrichment at the Bar and as a solicitor, therefore everything he enjoyed as the result of his early education, and everything that was purchased by him out of his own efforts and earnings, took upon itself the character of profits earned by the use of family funds, and that therefore the House No. C276/1 in Adabraka, and (presumably) the substantial bank balance from time to time available to the deceased, belonged, not to the deceased but to the Obuadabang Larbi family of Larteh.

It is material to point out that the plaintiff himself said that sons of the family, assisted by the family in the way in which the deceased was, were under no obligation to repay the sums expended upon them. This statement is in full accord with our understanding of custom in Ghana. Support so extended is by way of gift for the advancement of the younger [p.152] generation, and, while it places upon them certain recognised moral obligations towards the family, it does not stamp with the mark of the family everything that they afterwards acquire by their own efforts, whether as lawyers, doctors, or merchants, or by activity in other fields. If the contrary were the correct view there is hardly a person of distinction in the country who could claim to possess anything that he could call his own, and much of the body of customary law on the disposal and inheritance of self-acquired property would be cast away, which is the reductio ad absurdum of the whole argument.

According to Dr. Danquah, if a person were building a mud house for himself in a village, and a member of his family came near at a moment when the builder (overtaken with thirst and fatigue) begged and received from the visitor refreshment to the value of a shilling, this would suffice to stamp the building with the mark of the family. We do not doubt for one moment that those family members who make contribution to the building of a house are entitled to share the enjoyment of the building, but this is (and must be ) on the basis that, by accepting support and contribution from the family, the builder recognises that he is building a house for the family. It is quite otherwise when, as the learned judge upon ample evidence here found, a person is building his own house and seeks assistance by way of loan, or as his personal share of a family fund, in order to complete his building. If the family as a whole is in fact assisting in the building of the house it would not affect the situation if the contribution of one member was greater than another's. In such circumstances the slightest assistance (which is to say contribution) would give to the provider an interest in the enjoyment of the house, but in our view, as in that of the trial judge, one single member of the family cannot by carrying one brick, or one board of wood, stamp the building with the mark of the family. Where, as in the present case, by special arrangement a loan or payment of money due out of a family fund is made to a person building his own house, and the sum involved is 30 (a small part of the cost of the building) it would, in our opinion, require evidence much stronger than was tendered before the learned trial judge to justify a finding that the house is a family property.

Towards the conclusion of his judgment the trial judge said:

"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 to family property."

We do not think that the learned judge intended by these observations to change the customary law, as Dr. Danquah would have it. It is not, in our opinion, necessary to decide this one way or another, as the observations in question were in any event obiter to his decision on the facts.

Dr. Danquah cited to us a small volume of authority upon his contentions, to which it is therefore necessary, in conclusion, to refer.

[p.153]

In doing this we are according to Dr. Danquah a degree of consideration which he himself failed to extend to the court. First, however, we would refer to a case to which Dr. Danquah did not himself make reference, African Colonial Co. Ltd. v. Blemir Syndicate, G. C. Hutchful and Others (Full Ct. 1923-25 p.40). In the present case there is ample evidence that Cato-Larbi's predecessor (through whose gift and devise he holds the property), and Cato-Larbi himself, have throughout held themselves out as owner in each case of the house. They have lived in it and controlled its use, and the family have not noticeably interfered, save for the issue of one warning which was ignored with impunity and without further incident. In these circumstances, according to the case cited above (in which the judgment of the Full Court was confirmed by the Privy Council), "very satisfactory evidence is required to prove that the land or house is not his sole property," (at p.44) a proposition earlier laid down in the case of Russell v. Martin (1 Ren. Rep. 193). Next, it is not immaterial to refer to Dr. Danquah's own learned work on Akan Laws and Customs which, though for a certain lively reason not authoritative, has not inconsiderable persuasive force. At pp.205-206 the learned author says:

"No person can have absolute control over property except he owns it sui juris . . . [Property] may be held by a son as a gift from his father. It may be held by one member against all others as a gift received from another member of the family or from a member of a strange family. Lastly, it may be acquired by outright purchase, or by other business means out of income earned through one's own individual efforts."

It may be asked how Dr. Danquah would seek to reconcile these observations in his book with his general argument before us, and in particular with his contention that if a lawyer, whose profession had been made possible for him by reason of support from the family, were given some property by a stranger as a token of admiration for his skill in advocacy and devotion to duty in the course of some litigation, that gift would belong, not to him but to the family to whose early support he owed his professional qualification.

In the cited passage Dr. Danquah followed the view expressed by Sarbah at p.77 of his Fanti Customary Laws, (1st. ed.) that;

"Property is designated self-acquired or private, where it is acquired by a person by means of his own personal exertions without any unremunerated help or assistance from any member of his family."

It should be made clear that it is the "exertions" that have to be assisted, and it matters not that these exertions were made in a sphere or calling, access to which had been made possible to the person by the earlier assistance of the family or some member of it.

Similarly Redwar at p.79 of his Comments on Gold Coast Ordinances:

"According to Native Law there is a presumption in favour of all land being jointly held by a Family or other Community, which presumption may, however, be rebutted by evidence that it has been acquired by an individual through his own personal exertions in [p.154] trade or otherwise, without any assistance from the Community of whom he is a member, or by gift to the individual apart from the rest of the Community ... It is also clear that he has an unfettered right to dispose of his Individual Property either during his life time or by Will.

While it is true that customary law requires that the presumption in favour of family property should be rebutted by evidence, and that the onus is upon the one who asserts sole ownership, that onus shifts once it is shown that that person has been dealing with the property as his own, or that it came to him by gift or by testamentary disposition from one who dealt with it as his own: see Russell v. Martin (1 Ren. Rep. 193).

The case of Codjoe Others v. Kwatchey Others (2 W.A.C.A. at p.375), which was cited both in the court below and to us, contains passages that do not support the arguments presented in support of this appeal. Evidence that a member of the family had been allowed to put up a small shed or shelter for trading during a short period on the land was claimed by the plaintiffs to establish that the land was family property. The trial judge rejected this argument, and Webber, C.J. agreed with him, citing with approval the following passage from his judgment,

"Her adoptive brother would naturally let her do a little petty trading there if she wanted and erect a stall as I have indicated. The family system would account for that. It is not by `scintillae' such as this that the ownership of land can be determined." Webber, C.J., also cited with approval this passage from Okai v. Asare (unreported.) "Self-acquired land is not turned into family land by the owner of the land being kind enough to allow some of his family to live on the land and enjoy the use of it" (ibid.)

The fact, therefore, that a nephew in the present case was allowed to reside in the house is colourless, and in our opinion ineffectual to stamp the house with the character of a family property. Also, although we agree that according to the best authority a real contribution towards the building of a family house need not be substantial in the accepted sense of that word in our view (as in that of the learned trial judge) it must be a "real contribution", and we cannot accede to the view that customary law is a stranger to the doctrine de minimis non curat lex. We have considered the other cases cited by Dr. Danquah, but we find them irrelevant to the issues decided by the learned judge, and to the facts upon which such issues were decided.

We have considered this appeal in a full awareness of the warning of Lord Haldane, in the case of Tijani v. Secretary, Southern Nigeria ([1921] 2 A.C. at p. 402) when he said:

"in interpreting the native title to land, not only in Southern Nigeria, but other parts of the British Empire, much caution is essential. There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely ... there is no such full division between property and possession as English lawyers are familiar with." [p.155]

Perhaps we may permit ourselves to say that this court is not, nor has it been since its inception, unfamiliar with this cautionary passage which was cited to us. Having given the most careful consideration to the matter we cannot (save, as we have already said, in that part of it which was obiter) find anything in the judgment of the learned trial judge which is open to any criticism, and we therefore dismiss this appeal.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Danquah

Defendant / Respondent

Bentsi-Enchill

Referals

(1) African & Colonial Co. Ltd. v. Blemir Syndicate and G. C. Hutchful and others. Full Court, 1923-25, 40.

(2) Russell v. Martin Renner's Reports, Vol. 1, 193.

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

(4) Okai v. Asare and Others, unreported

(5) Tijani v. Secretary, Southern Nigeria [1921] 2 A.C. 399.

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