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V. C. A. FYNN AND OTHERS
V.
JANE GARDINER OF CAPE COAST
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF FEBRUARY, 1953
W.A.C.A. No. 57/52
2PLR/1953/47 (WACA)
OTHER CITATION(S)
2PLR/1953/47 (WACA)
(1953) XIV WACA PP. 260-261
LEX (1953) – XIV WACA 260-261
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
V. C. A. FYNN, REPRESENTING HIMSELF AND FIVE OTHERS, NAMELY,
JANE ANTHONY,
E. N. OGOE,
ELIZABETH FYNN,
E. E. E. FYNN AND ELIZABETH QUAINOO – Appellants
AND
JANE GARDINER OF CAPE COAST – Respondent
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ORIGINATING COURT(S)
Appeal by the plaintiff against the decision of the Land Court reversing the Native Court
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REPRESENTATION
E. Akufo — for Appellant
C. F. Hayfron-Benjamin — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Gift in joint tenancy – Death of surviving donee in intestacy – Native law and custom – Death of sole owner in intestacy – Lapse into family property – Claim for accounts by junior members against family head
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CASE SUMMARY
The original owner by deed of gift gave the premises in question to A.H., R.S.H. and E.Y. “their heirs and assigns”. A.H. survived the other two and died intestate; the respondent was her only surviving daughter, and the aunt of the appellants, who were grandchildren of the original owner.
The appellants as plaintiffs sued the respondent as defendant for a declaration that they were joint owners with the defendant and for an account of the rents; they succeeded on both claims and the defendant appealed to the Land Court, where the judgment of the Native Court was reversed, the Judge holding that the deed of gift must be construed according to English law and that the defendant had under native law a right to hold the property during her lifetime. The plaintiffs appealed from the Land Court.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal, setting aside the judgments and declaring the property declared to be family property) that:
(1) It was right to construe the deed of gift according to English law: it created a joint tenancy in the donees, and the survivor of them took the property as a purchaser.
(2) That survivor having died intestate, the property became family property under native law and custom, under which, however, junior members of a family cannot call upon the head of a family for an account.
Authority cited:-
Sarbah, 2nd edition, p. 90.
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MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTON, P.
The appellant on behalf of himself and five others, brothers and sisters, sued the respondent, claiming, firstly, a declaration that they are joint owners with the respondent of premises known as D.8/2 Commercial Street. Cape Coast, and, secondly, for an account of the rents collected by the respondent in respect of the premises from January, 1925.
The appellants are the grandchildren of one R. A. Harrison, deceased, who by a Deed of Gift dated the 16th day of August, 1877, gave the premises in dispute to his wife Amelia Harrison, his son Richard Samuel Harrison and to his sister Effuah Yarcomah “their heirs and assigns”.
The respondent is the only surviving daughter of Amelia Harrison, and is the plaintiff’s aunt, the plaintiff and his brothers and sisters being the children of the respondent’s sister, deceased.
Amelia Harrison survived the other two donees and died intestate.
The case came for trial before the Native Court “B” of Oguaa State which gave judgment for the appellants on both heads of their claim.
The respondent then appealed to the Land Court which after a re-hearing reversed the judgment of the Native Court and gave judgment for the respondent, and it is against that decision that the appellants have appealed. The learned Land Court Judge having held, rightly I think, that the Deed of Gift must be construed according to English Law, basing himself on the evidence of one of the appellants’ witnesses, went on to hold that the respondent has, under Native Law, a right “to hold the property during her life-time”. The respondent, in fact, claimed that Native Law has no application in construing the rights of the parties under the Deed of Gift, and that she was entitled to the premises to the exclusion of the appellants.
In my view there can be no doubt that the Deed of Gift created a joint tenancy in favour of the donees. I agree with the submission made by appellants’ counsel that this is not one of those cases where in equity a tenancy in common should be preferred.
The words “their heirs and assigns” in the Deed of Gift are clearly words of limitation. Amelia Harrison as the surviving donee, therefore, took the property in question as a purchaser.
In my opinion Amelia Harrison having died intestate the property in dispute then became family property. As Sarbah says, Second Edition, p. 90, under native law and custom, when a person dies intestate, property held by him as sole owner and possessor relapses in the next generation “into a state of joint tenancy”.
Counsel for the respondent submitted that once the respondent had been proved to be ”Head of the family” the appellants could not sue for a declaration unless the respondent set up a claim adverse to the appellants’ interest, but this is precisely what she did and that is why the action was brought.
We indicated, during the course of the arguments, that, in our opinion, the Native Court erred in ordering an account. It is a well settled principle of native law and custom that junior members of a family cannot call upon the head of the family for an account. Their remedy is to depose him and appoint another in his stead.
For the reasons I have given I would allow this appeal with costs, fixed at £26 17s. 0d., set aside the judgments of the Land Court and the Native Court, and declare that the house D.8/2 Commercial Street, Cape Coast, is “Family property”. The appellant to have costs in the Native Court and in the Land Court, in both cases, to be taxed.
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COUSSEY, J. A.
I concur.
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KORSAH, J.
I concur.
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Appeal allowed: Judgments below set aside; the property declared to be family property.