Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 25TH MAY, 1959
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
In this case Benjamin William Amarteifio claims Declaration of Title to House No. D.243/2, Bukom, Accra, and an Order for recovery of possession. He alleges that he purchased the said house from one Madam Kowah Nunoo (popularly called Yawah Nunoo) in 1943, a Deed of Conveyance thereof being executed in his favour by his said vendor on the 10th March, 1959.
The defendants deny that the plaintiff purchased the said house as alleged. In the alternative they plead that even if the plaintiff did purchase the said house as alleged, then he did so with moneys contributed by the family; but they do not specify to which family they refer. They further plead that they are not trespassers, that they have lived in the house for a long time with full knowledge of the plaintiff, and that they have contributed moneys to the plaintiff for the upkeep of the house.
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From the evidence it appears that the cause of action is refusal by the defendants to recognise the plaintiff s title to the house, and his right to claim rents in respect thereof.
It is common ground between the parties that the house in dispute was the self-acquired property of the late D. Amarteifio, who died intestate in 1908. The plaintiff is a son of the said D. Amarteifio, and the defendants are children of two daughters of one E. W. Amarteifio, who also was a son of the late D. Amarteifio.
According to D. W. I. Faustinatious Amarteifio, (son of E. W. Amarteifio) the said D. Amarteifio left surviving him four children, of whom the plaintiff was the youngest. The four children were J. W. Amarteifio, F. W. Amarteifio, E. W. Amarteifio, and B. W. Amarteifio (the plaintiff). These four sons succeeded to their said deceased’s father’s property. The plaintiff says that the late D. Amarteifio had daughters also, three of whom are still alive.
The plaintiff admitted that he and E.W. Amarteifio lived in the house for some time. Later, the plaintiff left, but E. W. Amarteifio continued to live there up to 1956, when he died. The plaintiff agreed with a suggestion made to him in cross-examination that when he and his said brother E.W. Amarteifio lived in the house, they did so as caretakers of the house up to the time the plaintiff left. Faustinatious, on the other hand, says that it was E.W. Amarteifio alone who looked after the house.
It is admitted by both sides that the property was sold at public auction in 1936 by order of the District Magistrate’s Court, in execution of a decree which the Accra Town Council had obtained against the estate of D. Amarteifio, deceased. It is also admitted that at the sale the house was purchased by one Yawah Nunoo (Kowa Nunoo), a fact which is established also by a Certificate of Purchase dated 11th November 1936 (Exh.”A”), which the District Magistrate’s Court issued to the purchaser.
Two letters were tendered on behalf of the defendants, viz., Exhibits “4” and “5” dated the 18th November, 1937 and 11th August, 1943 respectively. They were written by Kowah Nunoo (the purchaser) to the Town Clerk of Accra. From these letters, and from Nunoo’s evidence as P.W.1, it appears that some time after she had purchased the house, approaches were made to her by E.W. Amarteifio, B.W. Amarteifio (the plaintiff), and other persons to re-purchase the house. Exhibit “4” reads as follows:
“House No. S500/5
“In reply to your letter No. 633/24/1936 dated 13th November, 1937. I have to inform you that I am unable to confirm the
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request made by Mr. E.W. Amarteifio to substitute his name for mine, as owner of the above property is in order, as the terms upon which I offered to return the property to himself and others interested in it have not been fulfilled by them.
“2. If and when these terms are fulfilled, I shall notify you accordingly.”
Exhibit “5”, written nearly six years later, reads as follows:
“House No.S500/5
“With reference to your letter addressed to me dated 13th November, 1937, about Mr. E.W. Amarteifio’s letter to you dated 28th October, 1937, asking for ownership of the above property; and my reply to you dated 18th November 1937, I am now satisfied that B.W. Amarteifio’s name be substituted for mine instead as he has fulfilled my terms offered to them.
“2. Whilst thanking you Sir, I hope you will alter it in your House Rate Book accordingly.”
There is no dispute that the house which used to be No. S5 00/5 is the same as the house now numbered D243/2.
These two letters (Exhibits “4” and “5”) give the impression that Kowah Nunoo was willing to sell the house to a number of people, to some of them or to any one of them who accepted her terms. E.W. Amarteifio apparently claimed that he had complied with those terms, but this was denied by P.W. 1 in her letter Exhibit “4”.
Faustinatious in his evidence said that his father E.W. Amarteifio paid the purchase price, and acquired the property. No other evidence was led in support of the defence that even if the plaintiff bought the house, he bought it with moneys contributed by any member of the family. The evidence of the plaintiff that the purchase price was paid by him is corroborated by the letter Exhibit “5” and the oral evidence of P.W. 1, the vendor. I accept the evidence of the plaintiff that the purchase price was paid by him alone, and I reject the evidence of Faustinatious that it was paid by E.W. Amarteifio.
I am satisfied that, in consequence of Exhibit “5”, the Accra Town Council removed the name of Kowah Nunoo from their House Rates
Book, and substituted that of the plaintiff for the same. E.W. Amarteifio lived in the house up to 1956, and if he was paying (or contributing towards) the house rates, it is inconceivable that he would be unaware that the name of his younger brother was registered with the Town Council as the owner of the premises.
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It was submitted on behalf of the defendants that upon the facts before the Court, the plaintiff is either an express trustee of the house, or a person clothed with a fiduciary capacity in regard to it, and that therefore equity will not permit him to gain any personal interest in the property by availing himself of his position and buying it when it was sold. The case of Awgu v. Nezianya (12 W.A.C.A. 450) was cited in support of that proposition. It was further submitted, relying upon the case of Kwainoo v. Ampong and anor. (14 W.A.C.A. 250), that under native custom, where a member of a family out of his private resources buys back land of the family which had been lost, the land so purchased reverts to its original status as family property ,and does not become the self-acquired property of the member who makes the purchase with his own money, unless the members of the family were distinctly made to understand at the time of the purchase that it would not resume its former condition. These submissions are sound if they fit the facts, and if they fit also the principle of native law and custom involved in the case.
The questions to answer, in order to find a basis for the application of the legal submissions made, are:
(1) upon the evidence in this case, is the plaintiff a trustee, or a person clothed with a fiduciary capacity?
(2) is the plaintiff a member of a family to whom the property belonged?
No evidence has been led by either side to show that native custom as to the constitution of a family for the purposes of succession, and the customary law of succession in the family to which the late D. Amarteifio belonged, are different from the ordinary native custom of Accra as applied by the Supreme Court. In the absence of proof of any special custom I am bound to apply the principle of native law and custom laid down in the case of Larkai v. Amorkor and ors. (1 W.A.C.A. 323), which is that, for purposes of succession to a Stool or to other traditional office, the family is the paternal family and the succession runs in the paternal line; but for purposes of succession to property, the family is the maternal family, and succession is in the maternal line (Vanderpuye and ors. v. Botchway (13 W.A.C.A. 164). It is true that the judgment in the latter case was set aside by the Privy Council, but the setting aside was on a question of jurisdiction, not on the merits ([1956] A.C. 501).
It is only when there is no maternal family that children can succeed to the whole of their father’s self-acquired property (Sackeyfio v. Tagoe (11 W.A.C.A. 73).
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There is no evidence in this case that D. Amarteifio had no maternal family. Upon that principle then, this house, which was the self-acquired property of D. Amarteifio, descended (upon his death intestate) to his maternal family. His children are not members of that family. Consequently, in purchasing the house in dispute from Kowah Nunoo, the plaintiff (B. W. Amarteifio) did not buy back a property which had been lost to his family, i.e. his own maternal family.
Again there is no evidence that D. Amarteifio’s maternal family, which owned the house, ever constituted the plaintiff trustee of their family house after he (the plaintiff) had left the house, the evidence being that the plaintiff had left the house some time before it was sold.
Now, for reasons which have not been explained, it appears from the evidence of D. W. 1 that his father E.W. Amarteifio and the plaintiff, who were the two youngest children of the late D. Amarteifio, were the only children who had anything to do with the house in dispute. There is no evidence that the head and principal members of the maternal family of the late D. Amarteifio ever questioned the right, firstly of E. W. Amarteifio and the plaintiff, and later E. W. Amarteifio alone, to have sole charge and control of their family property.
Nor is there evidence that any of the other children of D. Amarteifio has ever claimed interest in that house, or that any of them took steps to have the property bought back from Kowah Nunoo. What is more, neither the family of the late D. Amarteifio, nor any of the surviving children of D. Amarteifio, has intervened in these proceedings.
Of course, if both E. W. Amarteifio and B. W. Amarteifio were children of six-cloth marriages they would be entitled to occupy such portion of their father’s house as the family would permit them to occupy, or as was actually allotted to them by the family (Amarfio and anor v. Ayorkor (14 W.A.C.A. 554), Vanderpuye v. Botchway (13 W.A.C.A. 164), Sackeyfio v. Tagoe (11 W.A.C.A. 73)). From all the surrounding circumstances it is reasonable to presume that there has been such an allocation of the house by the family to E.W. and B. W. Amarteifio. That appears to be the only possible explanation of the family’s attitude in the matter of dealing with the house after the death of D. Amarteifio.
The right of a son, by native custom, to occupy a portion of his father’s house ceases when he leaves the father’s house. It is a right personal to the child, not one which is transferable by the child or
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inheritable by the customary successors of the child (Amarfio v. Ayorkor, 14 W.A.C.A. 554). Therefore assuming that E.W. and B. W. Amarteifio each occupied the house in accordance with custom, that right of the plaintiff (B. W. Amarteifio) ceased when he vacated the house. He cannot be said thereafter to have stood in any fiduciary relationship to the house vis-a-vis the father’s family. Therefore, when he purchased the house after the family had lost it, equity will not took upon the purchase as for the benefit of the family; and since he is not a member of the family the purchase by him will not make the house revert to its former status as property of the family of D. Amarteifio.
Again, if the family allocated the house to the two brothers by way of gift, then it became either joint or common property of the two of them to the exclusion of the other children of their father. And now comes another side of the picture. Upon the evidence, E. W. Amarteifio and the plaintiff are paternal half-brothers, not brothers of the whole blood, nor uterine brothers; consequently they do not belong to the same family for purposes of succession and cannot succeed to each other’s property. If their ownership was joint, the survivor would become the absolute owner of the property, and therefore even if there were proof that the two brothers contributed moneys to buy back the property, the plaintiff would be the sole owner at the date of the writ, his brother E. W. Amarteifio having predeceased him.
Again, if the house was either joint or common property of the two half-brothers, and the plaintiff alone repurchased it after the sale, it would not revert to its former status under the principles of equity, because the plaintiff who was out of possession was not a trustee thereof, nor was he holding it in a fiduciary capacity at the date of its sale. And definitely the house would not under native law and custom become family property of the two paternal half-brothers, because, as stated above, it is not a case of one member of the family buying back lost family property. Therefore, upon its purchase from Kowah Nunoo the house became the individual self-acquired property of the plaintiff.
Now it has been contended that the defendants and the plaintiff are members of the same family. That is a misconception of the legal position. The defendants are children of daughters of E. W. Amarteifio. That being so, even if the custom as to the constitution of the family applicable to the case is patrilineal they cannot be members of their mother’s father’s family. And, of course since it is matrilineal (as shown above) they cannot belong to the family of E. W. Amarteifio, their maternal grandfather. Certainly they and the plaintiff,
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who is only a paternal half-brother of their maternal grandfather (E. W. Amarteifio), cannot belong to the same family so as to enjoy the same family property.
Whichever way the relationship is worked out, the defendants fall completely outside the circle of the family entitled to beneficial interest in or enjoyment of the house in dispute. It is only by courtesy that they can be said to be members of the plaintiff s family. Their long occupation of a portion of the house is that of licensees. They forfeited that licence the moment they began to deny the title of the plaintiff, and thereby rendered themselves liable to ejectment.
For the reasons stated above the plaintiff s claim must succeed. There will be judgment for the plaintiff for:
(a) declaration of his title of House No. D243/2, Bukom, Accra; and
(b) an Order for the ejectment of the defendants from the said house No. D.243/2.
The plaintiff will have his costs fixed at 25 guineas inclusive.
DECISION
The assessor agrees with the judgment.
