The following judgment of the Court was delivered by MCCARTHY, J.:-
These are two appeals from a judgment given in the Divisional 1 Court at Accra on the 30th November, 1944.
The claim was for
(1) A declaration of title to a piece of land with buildings thereon in Salaga Market Street, Accra, and to two adjoining pieces of land with buildings thereon in Station Road, Accra, and Selwyn Market Street, Accra, respectively.
(2) Recovery of possession of these properties
(3) An account of the rents and profits received by the Defendants in respect of the Raid properties from the 21st day of November, 1931, and payment of the said amount to the Plaintiff.
As there were pleadings, and as the facts are fully set out in the judgment, only a brief summary of these is now necessary.
The Plaintiff sued as the head of the Owoo family of Accra; the j Defendants were sued as devisees under the will of Nii Owoo II, deceased, formerly head of the family- Nii Owoo II, who was known as George Owoo before he was put on the family stool in 1924, died on the 2nd October, 1931, probate of his will being granted on the 21st November, 1931, to the Plaintiff (who was not then head of the family) and his co-executor.
The testator purported in his will to make a number of devise. The only devises which have been disputed are those of properties mentioned in the claim. As to these it is contended on the one hand that they are family property and were not subject to testamentary disposition by the testator, and on the other hand they were his self-acquired property and accordingly title to them passed to the devisees. The latter are his nephews and nieces.
The action was instituted in the Ga Manche's Tribunal by writ of summons dated the 27th December, 1940, and was transferred by order of the Provincial Commissioner of the 30th September, 1943, to the Divisional Court.
Nii Owoo III, who was appointed head of the family in 1937, was the original Plaintiff in that capacity before his death in 1944; after the final addresses of counsel, but before judgment was 1 delivered, Fixon Owoo, who succeeded him as head of the family, was substituted as Plaintiff.
Judgment was given for the Plaintiff for the declaration claimed as to the Salaga Market Street property, and for recovery of possession thereof.
The Plaintiff was also held entitled to an account and payment of the rents of this property from the 23rd December, 1934.
The claim as regards the properties at Station Road and Selwyn Market Street was dismissed.
The case is largely governed by the native customary law of the Accras, who belong to the Ga community.
We will first deal with Defendants-Appellants' appeal, which in effect is based on two grounds, viz.:
(1) That for various specified reasons the trial Judge was wrong in l holding that the Salaga Market Street property is family property, and
(2) that the trial. Judge was wrong in ordering the Defendants to account to the Plaintiff for rent in respect of this property.
The learned Judge, when considering the Defendant's case of an outright purchase by the testator of family land upon which he built the house out of his own resources, expressed himself as follows:-
“Viewing the facts, it is highly improbable that the members of a family would sell for money their founder's tomb and surrounding land for one member to build upon. They would, on the other hand, agree readily without transferring the land, to his raising a house over the founder's resting place. It is unnecessary for me to come to a finding on the conflicting evidence whether members of the family did contribute labour as for a family house. The probability is that some young men and women in the Owoo compound did assist casually and without reward, in fetching materials and taking away rubble. The building was, however, erected with the testator's own money and the members of the family were aware that he was erecting it for his own use. But, according to native custom, land upon which a member of a family obtains a licence to build remains family property. The testator would have a life interest in the house he built on the land. His mortgages of the premises is consistent with that interest; so is the fact that the house was referred to as his property in the option agreement with the C.F.A.O. Upon the testator's death, however, the house became family property. The land remained family property throughout. This aspect of family land tenure is dealt with in Sarbah's Fanti customary laws at pages 61 and 62. The evidence of the Defendants' witness Emmanuel Ayibonte Ashong as to Ga custom is consistent with Sarbah. Santeng per Ohemeng v. Darkwa, 6 W.A.C.A., p. 52, an Akan case which was cited for the defendants, is in my view inapplicable, because in that suit a house was built on the ruins of a family house. In this case, family rooms actually occupied were given up for a building to be erected over probably the most sacred symbol of the family”.
It was urged on behalf of the Defendants that the testator from the time of the erection of the building until his death dealt with the property (land and building) as though it were his own, to the knowledge of all members of the Owoo family. The learned Judge found it proved that the testator mortgaged the property in 1896, and again in 1907, with the knowledge of the family.
Further, that in 1909 he leased the property with the knowledge of the head of the family, and had ever since received the rents for his own use.
It was contended at this attitude on the part of the family was inconsistent with a belief in their title to the land on which the building stands.
It is evident that the trial Judge took the opposite view, having regard no doubt to the latitude not infrequently allowed by the family to an influential member who is for the time being enjoying the usufruct of family property. This attitude becomes more intelligible if one remembers that nothing in the nature of prescription is known to customary law, and also the great respect usually paid by a family to its most important members.
At the hearing of the appeal two further documents relating to the Salaga Market Street property were put in evidence by consent.
Both were made after the death of the testator. The first, Exhibit W.A.C.A. 1, is a lease comprising inter alia the Salaga I Market Street property in question and was executed on the 3rd August, 1932, by the Plaintiff-Respondent and his co-executor on behalf of the persons entitled to draw the rents. As the document was executed by the Plaintiff in his capacity of executor, it in no way binds the family.
Exhibit W.A.C.A. 2, which is dated the 31st August, 1934, is a lease of property including that in question and was executed by J Plaintiff-Respondent as attorney for the devisees. This document, though certainly interesting, does not carry the case any further than the evidence given by the Plaintiff at the trial to the effect that between 1931 and 1936 the executors collected the rents and paid them to one Robert Owoo for the beneficiaries under the will that the family knew of this, and did not object.
The trial Judge was of opinion that inaction on the part of the family was not inconsistent with an intention in due course to vindicate the family title.
The Court considers that the learned Judge's finding was justified by the evidence.
The further finding that the testator had only a life interest in the house, and that upon his death it became family property, is challenged in the Defendants-Appellants' ground 2:-
“The learned trial Judge's finding that the testator had only a life interest in the Salaga Market property' is contrary to law”
This is explained in ground 6 (c):
“The erection of a building on family land does not of itself stamp the building with the character of family property”.
The contention is that, assuming the testator only obtained permission to build on family land, according to native customary law, the house being self-acquired property could be disposed of by the testator inter vivos or by will.
It will be noted from the above-quoted passage in his judgment, the trial Judge relied on this point on (a) Sarbah's Fanti customary law, and (b) the evidence of E. A. Ashong, an expert witness on Ga customary law called by the Defendants-Appellants, and that (c) he distinguished this present case from that of Santeng v. Darkwa, 6 W.A.C.A. 52.
At page 60 of Sarbah's book it is stated with reference to grants of land for building purposes:
“Land so granted is inalienable, except with the express consent and concurrence of the grantor, if it be his self-acquired property; but if ancestral or family property, then the consent of the persons entitled to the reversion, and who have an interest in it and who are usually consulted before any alienation is made, must be gained”.
This is a staten1ent as to Fanti customary law.
On the other hand it will be seen from the report at page 129 of the same book of the replies of the assessors in Brown. v. Bell, that two of them were of opinion that if a man builds on another's land with his knowledge and consent, the owner of the house has the option of buying the land. This is a Fanti Case.
Ashong stated that according to Ga customary law, if a man, a member of a family, obtains permission to build on family land, the property is family property at his death, whereas when the family makes an absolute gift to him of the land on which he builds, it is his own property.
In Santeng v. Darkwa one issue considered by this Court was the competence of a member of a family who had built on family land to dispose of the building by his will. The following is a quotation from the judgment of Strother Stewart, J., in which the other members of the Court concurred:-
The question of the remaining house, namely the one described as a store, is more difficult. The learned trial Judge gave Plaintiff-Respondent a declaration that he was entitled to the house, the ratio dedidendi being the house' described as a store seems to have been built on the site of the ruins of a family house, and is therefore family property.
I cannot agree with this reasoning. No custom was proved that when a house is built on the site of ruins of a family house it becomes family property, and I know of no such custom . . . I can find no authority for the proposition that the mere using of the site brands the house with the stamp of family property; although, of course, the site on which the house is built remains family land”.
It may be pointed out with all due respect that no authority was cited by the Court for this pronouncement as to Akan customary law (which is generally similar to Fanti customary law), whereas the decision of the Court below in that case had the support of Sarbah's considerable authority on such matters, which unfortunately does not appear to have been brought to the notice of the Court below or of the Appeal Court
As already seen the learned Judge sought to distinguish the present case from Santeng v. Darkwa on the ground that whereas in the latter the store was built on the ruins of a family house, in the present case family rooms actually occupied were given up for a building to be erected over the grave of the founder of the family.
It may be assumed that the learned Judge was aware that whereas Fanti customary law is a variety of Akan customary law, Ga customary law is not, and that although it has been much modified by Akan or Fanti influence, the Courts, when considering questions of the customary law, though often guided by authorities as to those other bodies of customary law, are not bound by them.
In all the circumstances, seeing that the learned Judge's decision on this point of Ga customary law was supported by the expert witness Ashong, and not opposed to any other expert evidence or authorities on Ga custom, his finding should, in our opinion, be upheld.
The learned Judge held that there is according to Ga customary law a presumption that a house built by a member of a family upon family land is family property, or becomes so upon his death. He further held that the presumption had not been displaced, and we are of opinion that he was entitled to reach this conclusion upon the evidence.
It will now be convenient to turn to the cross-appeal, the grounds, of which are as follows:-
“The Court's decision that' The Proprietors at Station Road and Selwyn Market Street described in paragraph 1(b) and (c) of the writ of summons and in paragraphs 5 and 6 of the statement of claim are in my judgment the individual property of the testator' is wrong for the following reasons:-
(1) Because the decision is completely against the weight of the evidence.
(2) Because upon the admission that the said buildings were erected in part with family funds the Court was bound to hold that according to native custom the property was stamped with the character of family property.
(3) Because the Court in holding that the native custom set up by the Plaintiffs was ‘inequitable and unconscionable’ did not consider the equitable doctrine that a person in a fiduciary position cannot profit in any way from his position as against his beneficiaries.
(4) Because the Court wrongly held that the family's failure to call the testator to account in his lifetime family moneys in his hands justifies I the said testator in using the said family moneys to acquire properties in his own name and estops the family from claiming that the properties so acquired with family moneys are converted to individual property by the default of the family to call the head to account in his life-time.
(5) Because the Court wrongly threw upon the Plaintiff and the family he represents the 'onus' of separating their family properties from the testator's individual properties-instead of placing the said onus on the testator who was head.
(6) Because it was conclusively established that the buildings claimed were erected by the testator when he was head of the family and with moneys partly his own and partly family money-and in accordance with native law and custom the properties thereby became family properties”.
It may be observed that the Plaintiff alleged in paragraphs 5 and 6 of the statement of claim that family moneys which came into the hands of the testator as head of the family were utilised for the purchase of the land and erection of the buildings upon the two pieces of land in question, and that the buildings were erected in part with building materials belonging to the family and with the labour of members of the family.
The learned Judge examined these allegations carefully. He held that though family moneys (some of which he found were not accounted for) were handled by the testator, it was not proved that any of these had gone towards the purchase of the land or erection of the buildings. He found that it was not proved that family building materials had been used, and that such labour as had been provided by boys and girls of the family was in a sense negligible. He pointed out that as he was satisfied that the land was self-acquired property there was no presumption that the buildings on it are family property.
All these findings we consider to have been justified on the evidence. It follows that we accept the trial Judge's view that the Plaintiff failed to prove this part of his case.
As the trial proceeded, counsel for the Plaintiff advanced the argument that inasmuch as there had been a mixing of private and family funds any property acquired by the testator when head of the family would be presumed to be family property.
In Kofi Antu v. Ohene Kweku Buedu, F.C. 1926-29, 474, it was held that unless a chief's private property is ear-marked when he ascends the stool, all his property becomes stool property when he is enstooled, abdicates or dies. In Yamuah IV v. Sekyi, 3 W.A.C.A. 57, it was held that a stool holder who has kept his self-acquired property distinct from the stool property, to the knowledge of the senior and immediate members of the stool, can make a valid testamentary disposition of such self-acquired property.
But it would not be safe to assume that what is customary law as to public stools holds good as to family stools. The cases cited are not Ga cases.
In the absence of any clear authority on the point we consider that the learned Judge was right in being guided by the evidence thereon of the expert witness Ashong, which Wag against the Plaintiff's contention. This evidence is quoted in the judgment.
It is clear that according to Ashong's evidence the Plaintiff would not be entitled in the circumstances to the property in question. The Judge appears to have considered that this aspect of native customary law is based on principles of equity. In so far as he was influenced by equitable considerations we think that he was on doubtful ground, but nevertheless we are satisfid that his decision was a correct one on the evidence, particularly having regard to Ashong's opinion.
At the hearing of the appeal counsel for the Plaintiff-Appellant developed a new argument to the effect that family moneys were the foundation upon which the testator built up his fortune, and so according to Ga customary law all his property became family property.
It is interesting to observe that in Codjoe v. Kwatchey, 2 W.A.C.A. 371, matters took a similar course. In his judgment Kingdon, C.J., remarked that at one stage the case for the Plaintiffs was that land was purchased with moneys provided by the family, but that at a later stage the case was, not that the property was bought with £100 given, but with the proceeds from trading with the £100, and that at the time of purchase it Wag agreed between the purchaser and the family that he was purchasing it as family property. The contention failed because the argument was not proved.
The above-mentioned argument in this Court clearly fails. It is so startling that it would be necessary to examine very carefully any authorities adduced to support it, but in fact nothing of the kind was forthcoming.
In our opinion the cross-appeal fails on all grounds.
Finally we will refer, to the Defendants-Appellants' appeal against that part of the judgment ordering an account and payment of the rents of the Salaga Market Street property as from the 23rd December, 1934, to date of judgment.
The learned Judge appears to have made the order as a matter of course, following the decision as to ownership of the property. But it appears to the Court that the two questions are not necessarily on the same footing. Both claims for relief are based on native customary law. That relating to the claim to title has been proved; nothing has been produced to indicate that in the circumstances of the case a Tribunal would have made an order for an account.
It will be recalled that the devisees are nephews and nieces of the testator and members of the family, or at least connected with it. The evidence as to the attitude of the family towards the devisees is equally consistent with an intention to allow them to enjoy the usufruct of the property until the question as to ownership was settled, as with an intention to stand by and after a period of years claim a rents receive. It does not appear that any demand was made by the family respecting the property from the death of the testator in 1931 to 1940. It is true that no head of the family was appointed after the death of the testator in 1931 until 1937, but in such circumstances the senior members of the family are expected to supervise, its affairs.
The Plaintiff stated in evidence:-
“Between 1931 and 1936, we executors collected the rents and paid them to Robert Owoo for the beneficiaries under the will. The family knew of this. They did not object”.
It may be that in such cases (which could be multiplied) the family would be entitled according to customary law to require members of the family to account for rents received or for the equivalent of mesne profits, but it is also possible that this claim may be based on a conception foreign to Ga customary law.
It was laid down in Angu v. Attah, Privy Council Judgments. 1874-1928, 43:-
“Native customary law has to be proved in the first instance by calling witnesses acquainted with it until the particular customs have by proof in the Courts become so notorious that the Courts take judicial notice of them”.
In Martin v. Johnson, 3 W.A.C.A., 91, it was held that where an unfamiliar claim is based on native law and custom, that particular law and custom must be established by positive evidence.
In the result, the appeal by the Defendants-Appellants as to the declaration regarding the ownership of the Salaga Market Street property and the decree for recovery of possession thereof will be dismissed. The appeal as to the order regarding an account will be allowed to this extent, that the order will be varied by substituting the date of the writ of summons for the 23rd December, 1934, mentioned therein as the date from which the account will be taken.
The cross-appeal from that part of the judgment relating to the Station Road and Selwyn Market Street properties will be dismissed.
Each party to bear his own costs.