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Larbi v. Cato and Another
[1960] GLR 146.
In the Court of Appeal
6 June, 1960

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 othat 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.

Danquah for appellant.
Bentsi-Enchill for respondants.

, J.A. delivered the judgment of the court: The plaintiff in this action has appealed to this court against tht ejudgment of Ollennu, J. datated 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 reliefe 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.

The basic claim that the ouse 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 Obuadabaing Larbi with the financial assistance of various members of the said Obuadabang family of Larteh built house No. C276/1 situate at accra-Nswawam Road, Fanofa, Adabraka, Accra.''

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

The decceased during his lifetime, byt deed of gtivt 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 odnee and the sum of twenty-five founds (£25) paid to the donor by the donee on or befor the execution of these presents (the receipt wwhereof 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 expresly confirmed this last mentoined deed of givt in relation to the house, and it will assist in an understanding of the case to set out this clausee in extensio:

`` 7. I have already in my lifetime executed a deed of givt 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 Obuadabaing Cato-Larbi and his heirs. The main building and three Boys' rooms and the twwo kitchens which were erected in 1937, were built in the name of my son Ansah Obuadabaing Cato-Larbi, but the other outhouses and the garage erected in 1950 were erected in my name. The deed of givt includes all these buildings, 1937 and 1950. I did os 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 Messr.s 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 sai dhouse were deposited by me with my father-in-law, the late J. E. Cato, to secur 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 iwas in England ass a student, and the rest was squandered by my said brother J. R. O. Larbi upon his own pleasure.

`` 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 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 Faofa, Adabraka, Nswam road, Accra, which I have gited to him.''

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

At the hearing before the leanred trial judge no objection was raised against either the deed of gift or the will as such. The plaintiff's general complaint was taht the deceased (A. O. Larbi) was not entitled to dispose of the property in any way, becaus eit was a family property, to the disposition of which the family had not consented. It would not have been possible for hte family to resist probate of the will, beecause no recognised ground for doing so existed, but it is a matter of comment that no steps were taken to set aside the deed of gift on teh grounds that it was a ffraud on the family, and that hte donor had no title to convey the property. Noththing of raud was alleged at the trial, and it was not until the matter came befor uss 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 ilusory and a decsption. 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 hte testator, A. O. Larbi, deceased., the plaintiff pleaded as follows:

`` the plaintiff ssays taht inasmuch as teh buildings known as Obuadabang Terracd were erected by the late Ansah Obuadabang Larbi wit hfamily money he cannot in law give it away under hiss will or by deed or otherwise.''

Upon this it is to be noted that no issue was raiseed, or suggested, whether or not the buildings were reected on family land. Notwithstanding this, Dr. Danqua in a further divfergence 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 land1 on which the buildings stand is family land. Teh 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 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 and the deceased owned jointly (as ian inheritance) with one Isaac Frank Antwi. Secondly, it must be supposed that Dr. Danquah felt himself drien to make the unwarrantable suggestion to which we have referred in order to draww to a logical conclusion arguments as to customary law in relation to family property whic, 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 ddated the 18th January, 1937, as follows:

``In connection with my poposed building I write to ask you to give me out of our family porperty the sum of £50 (Fifty pounds) by way of contribution toards teh 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 sumes, namely £10 in march, 1937, £20 in May, 1937, £150 in November, 1937 and £100 in Jannuary or February, 1938. He said that susm in repsect 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 contreibutions, in various sums which he named. All but one fo these was known to be alive at the time fo the hearing, but none came forth to lend any support to what the plaitniff said. Two clerks, who were said to hsave made entires of all these contributions, wer called, bur wer not questioned either as to teh pas bookss or their entries. They gave evidence only as to the receipts.

In cross-examination by Mr. Bensi-Enchill the plaintff wa induced to give evidence upon which Dr. Danquah based arguments befor 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 granfather's farms ... According to Larteh custom, when a father leaves a property the head of the familyh 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. Larib, B. Akwei, Juliana Lartebia and others ...No, those people educated do not owe the money spent on thei reducation as by the family ... Surely my brothers were also entitled to enjoy some fo the proceeds of the farms in the estate, and there will be no obligation on them to pay to the family what they enoy or is given to them out of the sestate, unless there is a special arrangment that they should pay ...In this case there was a special arranggement. That arrrangement was made in pursuance of the letter (Exhibit `A') which my late brother wrote to me ...My late brother wrote letters similar to Ehibit `A' to othe rmembers of the family ... No, I did not at any time make demands upon my late breother for repayment of the money, 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 htere was evidence in teh documents (both Exxhibit `` A `` and the receipts) that hte deceased always treated, and referred to, the property as `` my new building ``. There was evidence that, when action as brought by Mesrs. Ollivants which threatended the property, no member of the family appeared to take any interest in the matter.

Teh plaintff claimed that certain new buildings which were ereted in 1950 by the deceasd were also family property, because `` I say he did it from rents collected from the main house, and therefore those proceeds are slao family property ``. The deceased had in fact erected the buildings in thename of his son, and there was no evidence that any rents whatevver had been colleted from teh 1937 house in his own name. There was, furthermore, evidence that (without protest from any member of the amily) the deceassed 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 evidene hte learned juge, 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 plaintff stands out as quite unreliable, and such inferences as are to be drawn from it cannot support the cliam put forward by the plaintiff. The leanerd judge had the additional davantage that he heard and saw the witnesses, whose demaenour no doubt assisted him in his assessment fo their reliability.

It was in these circumstances that Dr. Danquah felt himself to be judtified in presenting (not once, but with constant and quite unnecessary repetition) and arguemnt that because the deceased had, togehter with other members of the family, been given the advantage, with the support of family funds, of an education whicih had enabled deceased to pracice with distinction and consequent self-enrichment at the Bar and as a solicitor, therefore everythign he enjoyed as the resutl of his early education, and everythign that was purchased by him out of his own efforts and earnings, tok upon itself the character of profits earned by the use of familiy funds, and that therefore 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 amily, assisted by teh family in teh way in which the deceased was, were under no obligation to repay teh sums expended upon them. Thsi statement is in full accord with our understanding of custom in Ghana. Support so extended is by way of gift ofr the avancement fo the younger generation, and, while it places upon them certain recognissed moral obligations towards the family, it does not stamp with the mark fo the family everything that they afterwards aquire by their own efforts, whehter as lawyers, doctors, or merchants, or by activity in other fields. If the contrary wer eteh correct view there is hardly a person of distijnctoiin in the country who could claim to possess anything that he could call his won, and much of the body of customary law on the disposal and inheritance of self-acquired property would be case away, which is the reductio ad absurdum fo the whole argument.

According to Dr. Danqua, 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 teh visitor refreshment to the value of a shilling, this would suffice to stamp the building with the mark fo the family. WWe do not doubt for aone mmoent thathtose fmaily membbes who make contributions to teh building of a house are entitled to share the enjoyment of the building, but this is (and must be) on the basis that, but accepting support and conribution from teh family, teh eubilder recognises the ahe is building a house for the family.l It is quite otherise when, as the leanred 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 whol is in fac assisting in the buildinf of the house it would not affecte the situation if the contribution of one member was greater than another's. In such circumstances the slightest assistance (which is to say conteributon) would give to the provider an interest in teh enjoyment of the house, but in our vifew, as in that of the trial judge, one single member of the family cannot by carrying one brick, or one board of wook, 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 befor ethe leanred trial judg eto justify a finding that the house is a family property.

Towards the concllusion of his judgment the trial judge said:

``the building erected by the deceased on his land was worht no lesss than £2,500. The amount of £30 was, therefore, neglibigle compared with the value of the building. Applying a principle which I have already stated, even if tit was meant to be a contribution in teh technical sense, it would not (in these modern days) change teh character of the building from individual to vamily property.''

We do not think that the learned judge intended by these ovservations to change the customary law, as Dr. Danquah would have it. It is not, in our opinion, necessary to decide this wone 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 necesssary, in clnclusion, to refer. In doing so we are according to Dr. Danquah a degree fo 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 hodls the property), and Cato-Labri himselve, have throughout theld themselves out as owner in each c ase of the hosue. They have lived in it and controlled its use, and the family havenot noticeably interfered, save for the issue of one warning which was ignored with impunity and without further incident. In these circumstance,s according to the case cited above (in which teh judgment of hte Full Court was confirmed by the Privy Council), ``very satisfactory evidence is required to prove that the land or house is nothis 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 important to refer to Dr. Danqua's own learned work on Akan Laws and Customs which, though for a certainlively reason not authoritative, has not inconsiderable persuasive force. At pp.205-206 the leanred 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 f rom 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 oberevations in his book with his general argument before us, and in particular with his contention that if a lawyer, whose profesion had been made possible for him by reason of support from the family, were given some property by a stranger ass a token of admiration fro his skil in advocacy and devotion to duty in the course of some litigation, that gift would belong, notto him, but to hte family to whose early support he oweed his perofesional qualification.

In the cited passate Dr. Danquah followed the view epxressed 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 memans of his own personal exertions, without any unremumerated help or asssitance from any member of his family.''

It should be made clar that it is the ``excertionss'' tha have to be assisted, and it maters not that these exertions were made in asphere or calling, access to which had been made possible to the person by the earlier asssistance of teh family or some member of it.

Simillarly 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 Commmunity, whihc presumption may, however, be rebutted by evidcene that it has been acquired by an individual through is own personal exertions in trade or otherwise, without any assistance fro teh Comunity of whom he is a member, or by gift to the individual apart from the rest of teh Communtiy ...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 presumtpion in favour of family property should be rebuttedby evidence, and taht 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 givt 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 Webbber, C. J. agreed with him, citing with approval the following passage from his judgment,

``Her adoptive borother would naturally let her to 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 preent case was alloed to reside in the house is colourless, and inour opinion ineffectual to stapm the house with the character of a fmaily property. Also, although we agree that according to the best authority a real contributoin towards the building ofa 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 contributoin'', and we cannont 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 larned judge, and to the facts upon which such issues were decided.

We have considered thiss 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 Soughter Nigeria, but in other parts of the British Empire, much cautiion is essential. there is a tendency, iperating at times unconsciously, to render that title conceptually interms which are appropriate only to ystems which have grown up under English law. But this tendency has to be held in check closesly ...there iss no such full division between property and possession as English lawyers are familiar with.''

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

Appeal dismissed.


... land1
Here, the photocopy from which this was made has only the letters 'lan ' is hard to tell if the 'd' is mising in the original, or if it is just a bad photocopy.

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Josh DuBois 2004-12-01