–
AMADU WOOROH TIMBO
V.
KOFIE JALLOH
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
18TH DAY OF JUNE, 1953
W.A.C.A. NO. 15/52
2PLR/1953/90 (WACA)
OTHER CITATION(S)
2PLR/1953/90 (WACA)
(1953) XIV WACA PP. 339-340
LEX (1953) – XIV WACA 339-340
–
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
–
BETWEEN:
AMADU WOOROH TIMBO – Appellant
AND
KOFIE JALLOH – Respondent
–
ORIGINATING COURT(S)
Appeal from Supreme Court by plaintiff
–
REPRESENTATION
C. S. T. Edmondson — for Appellant
C. I. E. During — for Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Wills — Devise of house to some sons “to be used as family property” — Construction
–
CASE SUMMARY
The will read thus:
“To my natural sons Alimany Janneh and Mormodu Janneh my house and premises at Jenkins Street in which I at present reside. he property is to be used as family property and is in no wise to be sold”.
The trial Judge thought that the testator intended to benefit the respective families of the two sons mentioned and that this could only be effected by severing the tenancy, and held that the two sons took the house not as joint tenants but as tenants in common.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal allowed) that:
The first sentence devises the house to the two sons as joint tenants, and the second sentence was intended to benefit the testator’s family-which could be done better, if at all, by those two sons holding the house jointly.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
SMITH, C. J., SIERRA LEONE.
This is an appeal from the decision of Mr. Justice Luke on an issue tried by him as to whether Alimany Janneh and Mormodu Janneh took a property at 12 Jenkins Street, Freetown, as joint tenants or tenants in common, in which he held that they took as tenants in common.
The whole point turns on the proper construction of clause 1 of the will of Jallah Janneh, father of Alimamy and Mormodu, made on 3rd October, 1898. This clause reads as follows:-
“To my natural sons Alimamy Janneh and Mormodu Janneh my house and premises at Jenkins Street in which I at present reside. The property is to be used as family property and is in no wise to be sold.”
And it is pertinent to note that the testator left other children besides the two sons mentioned in clause 1, and that the property disposed of in this clause is the house where he was living at the time he made the will.
It is clear that the first sentence of the clause, taken alone, devises the property to the two sons as joint tenants, but it is argued that if the second sentence is construed with it, the two together express the testator’s intention that they should take in severalty and this construction was accepted by the learned Judge, who held that the testator intended to benefit the respective families of the two sons and this could only be effected by severing the tenancy.
With respect, I consider that the learned Judge misconstrued the clause.
The property devised was the testator’s home, he had other children besides the two sons, and when he said, “The property is to be used as family property”, I understand that the testator was referring to his own family and not to the families of the two sons.
This intention to benefit the testator’s family, so far as it could be carried out, could be done rather better by the two sons holding the property jointly, than by severing, and I think it is doing violence to the language used by the testator to construe it as expressing any intention on his part that the tenancy should be severed, or that the sons’ families as distinct from the testator’s family should take any benefit from the gift.
For these reasons I hold that the two sons took as joint tenants and I would allow this appeal with costs in this Court and declare that the plaintiff-appellant is entitled to the costs of the issue in the Court below.
–
FOSTER-SUTTON, P.
I concur.
–
COUSSEY, J. A.
I concur.
Appeal allowed.
–