BINEY v. BINEY AND OTHERS [1965] GLR 619

DIVISION: HIGH COURT, ACCRA

DATE: 28 OCTOBER 1965

BEFORE: ARCHER J.

CASES REFERRED TO

(1) Fawcett v. Odamtten, Donkor (Claimant) (1929) F.C. ‘26-’29, 339. (2) Bata Shoe Co., Ltd. v. Roura & Forgas Ltd. [1964] G.L.R. 190, S.C. (3) Fynn v. Gardiner (1953) 14 W.A.C.A. 260. (4) Owoo v. Owoo (1945) 11 W.A.C.A. 81. (5) Larkai v. Amorkor (1933) 1 W.A.C.A. 323. (6) Santeng v. Darkwa (1940) 6 W.A.C.A. 52. (7) Sappor v. Amartey (1913) 2 Ren. 787. (8) Vanderpuije v. Botchway (1951) 13 W.A.C.A. 164. (9) Amarfio v. Ayorkor (1954) 14 W.A.C.A. 554.

NATURE OF PROCEEDINGS

ORIGINATING SUMMONS seeking a declaration that family property should be partitioned.

COUNSEL

Dr. de Graft-Johnson for the plaintiff. P. A. Adjetey for the defendants.

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JUDGMENT OF ARCHER J.

The plaintiff by originating summons seeks a declaration that: (1) The plaintiff and the children of his late younger brother, Hendrick Frederick Biney, are the only persons entitled to the properties stated in a schedule attached to the affidavit in support of the summons, being properties of — (a) Joseph Peter Oconor Biney (b) Lily Mensimah Biney. (2) That the interest of the parties herein are as to one-half share for plaintiff and one-half share for the children of his late brother, Hendrick Frederick Biney. (3) That the properties of the late Joseph Oconor Biney mentioned among others in the schedule should be partitioned as shown on the plan prepared by the plaintiff or as the court may direct. The plaintiff took out the summons against the two executors of the late Hendrick Frederick Biney and also against all the children of the said Hendrick. By an order of this court, the names of the executors were struck out from the action and Joseph Peter Abaka Biney was ordered to stand as defendant on behalf of himself and all his other brothers and sisters. The facts of the case briefly are as follows: The late Joseph Peter Oconor Biney, the father of the plaintiff and grandfather of the defendant, by a document dated 12 March 1901 exhibit A, conveyed his freehold dwelling-house No. D.540/1, Bruce Road, Accra, popularly known in the area as “Bineyville” to Joseph Cobblah Biney, Charles Biney, Adolphus Joseph Eshun, Lily Mensimah Biney and Hendrick Frederick Biney. Exhibit A gave the first three persons life interests only in the said freehold and declared further that after their deaths, the property should devolve on Thomas David Aubyn Biney, Claudius Biney, Lily Mensimah Biney and Hendrick Frederick Bart Biney, their heirs and assigns absolutely. All the persons with life interests and the remaindermen have died except the plaintiff who is now the sole survivor of all the remaindermen. I must say right now that the declaration sought depends considerably on a proper construction of exhibit A which I shall deal with in due course. Exhibit A conveyed land with building thereon measuring not more than 100 ft. by 100 ft. The plaintiff has also admitted that in addition to the land conveyed by exhibit A, the plaintiff’s father acquired adjoining land from the Sempe stool and this land is now included in the whole area known as “Bineyville.” The plaintiff has testified that Joseph Cobblah Biney who was some time head of family partitioned “Bineyville” into two parts and granted one part to the plaintiff and the other to the plaintiff’s brother

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Hendrick, the father of the defendant. Thereafter Joseph Cobblah Biney permitted the plaintiff to erect buildings on the portion granted him and to make extensions to the original building known as “Bineyville.” The plaintiff therefore relies on this partition by the then head of family, Joseph Cobblah Biney, and now seeks a declaration to that effect. Lily Mensimah Biney, a sister of the plaintiff, was lawfully married to one Aikins and on the death of the husband two-thirds of the husband’s estate became vested in Lily Mensimah Biney and one-third in the family of Aikins. On the death of Lily Mensimah, her estate devolved on her mother and the two brothers, the plaintiff and Hendrick, the father of the defendant. By a family arrangement, the one-third share of the Aikins family property was bought to enable all the property of Aikins, that is the two houses Nos. D50/3 and D51/3, Adedainkpo Street, Accra, to be in the ownership of the Biney family as family properties. An attempt was made by the will of their mother to devise these properties to certain grandchildren, but the two brothers, the plaintiff and the defendant’s father took action in the Ga Native Tribunal and recovered both houses from the executors as the houses were family properties and their mother could not devise them by will as self-acquired properties. There is no doubt that rents from these two houses have been since shared between the plaintiff and Hendrick and on the death of Hendrick, his share has continued to be paid to his executors. The plaintiff now alleges that since 1963 the defendant and his brothers and sisters have disturbed the peace and harmony which previously prevailed in the Biney family and it is now impossible to live in close co-operation with them. He has therefore suggested that the said two houses should also be shared between himself on the one part, and the defendant, his brothers and sisters on the other part. I shall now deal with Bineyville and attempt to construe exhibit A. First of all exhibit A refers to land measuring 100 ft. by 100 ft. and no more. The boundaries have been clearly defined and I think that although the document was executed in 1901 yet the boundaries can be ascertained taking into consideration the names of the adjoining owners. Exhibit A therefore relates not to the additional land acquired from the Sempe stool. The operative words used by this document so far as the remaindermen are concerned are “their heirs and assigns.” I have been invited by the defendant’s counsel to construe these words favourably since equity leans towards a tenancy in common in certain cases. As I can gather from the main textbooks a tenancy in common is preferred to a joint tenancy: (1) where money is advanced on mortgage by two or more persons;

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(2) where joint purchasers of land provide the purchase money in equal shares; and (3) where land is bought by partners. As the facts in the present case do not disclose any aspect of the three examples I have enumerated, I am unable to accept the defendant’s counsel’s invitation to invoke equitable principles. The rule as I understand it is that whenever land is granted or devised to two or more persons simply and without words of severance, the donees become joint tenants holding a single title, interest and possession and when one dies his interest is extinguished and passes to the survivors. Challis’s Real Property (3rd ed.) at p. 367 states the principle thus: “The identity of the interest and title of joint tenants is commonly analysed into the ‘fourfold unity’ of interest, title, time, and possession. (2B1 Com. 180-184). This analysis has perhaps attracted attention rather by reason of its captivating appearance of symmetry and exactness, than by reason of its practical utility. It means only, that each joint tenant stands, in all respects, in exactly the same position as each of the others; and that anything which creates a distinction either severs the joint tenancy or prevents it from arising.” Then it continues: “In one sense each has nothing, and in another sense each has the whole, nihil per se separatim et totum conjunctim (Co. Litt. 186a.) In another sense each has an equal aliquot share; namely for purposes of alienation, whether total or partial, and for purposes, of forfeiture. Each can alienate his aliquot share, and can thereby sever the joint tenancy and turn it to a tenancy in common.” Then at p. 368 of Challis the following appears: “At the common law, one or more joint tenants could not be compelled by the other or others to make partition. (Litt. sect. 290) Voluntary partition between them can be made only by deed (Co. Litt, 196a; ibid. 187a). By the Statutes 31 Hen. 8 C.1 and 32 Hen. 8 C. 32, the same right of partition as appertained at common law to coparceners, is given both to joint tenants and to tenants in common. By the Partition Act, 1868, 31 & 32 Vict., c. 40 and the Partition Act 1876, 39 & 40 Vict., c. 17 the Court is empowered, subject to certain conditions to substitute a sale for an actual partition.” It is obvious that the Partition Acts referred to in the above passage have been repealed by the Seventh Schedule to the Law of

[p.624] of [1965] GLR 619 property Act, 1925,1 — an Act which does not apply in Ghana. For the purposes of my judgment I am unwilling to state categorically whether or not the Partition Acts still apply in Ghana notwithstanding their repeal by the English 1925 property legislation. The grantor in exhibit A chose to convey land in terminology peculiar to English land law and I think I cannot do better than to quote the words of Howes J. in Fawcett v. Odamtten, Donkor (Claimant)2 and cited by Adumua-Bossman J.S.C. in addition to a galaxy of decisions in Bata Shoe Co., Ltd. v. Roura & Forgas Ltd.,3 “`This conveyance . . . is in the form usual to English conveyances, is written in English, and it must therefore be interpreted according to English Law.’”4 The case of Fynn v. Gardiner4 is a direct and clear authority on the point, where the words “their heirs and assigns” were construed according to English law thereby creating a joint tenancy in the donees with the ultimate right of the survivor to take absolutely to the exclusion of all others. The plaintiff himself has admitted in his own evidence that “Bineyville” was partitioned between him and the defendant’s father by Joseph Cobblah Biney as head of family. Assuming this partition took place, was the oral division by the head of family sufficient? I do not think so. The passage I have already quoted from Challis’s Real Property indicates that at common law any voluntary partition must be by deed. There is no evidence of such deed having been executed by the parties. In the present case there is also no evidence that the joint tenancy held by the plaintiff and his brother Hendrick before the latter’s death was ever severed by alienation by either of them of his aliquot share. Notwithstanding the plaintiff’s own admission, I hold that as the sole surviving child of his late father he is by virtue of exhibit A the absolute owner of the land and building described in exhibit A covering an area not exceeding 100 feet by 100 feet. As he is the absolute owner of this defined land, it is not necessary for him to come to court to seek an order to partition it. He is at liberty to grant any portion of it either to the defendant and his brothers and sisters or dispose of it in any manner he thinks fit during his lifetime by gift inter vivos sale or devise. I have now to deal with the rest of “Bineyville” not covered by exhibit A. So far as the rest of Bineyville is concerned, I think it is safe to conclude that the plaintiff ‘s father died intestate and the remaining land became family property on the plaintiff’s father’s death. The plaintiff claims that Joseph Cobblah Biney then head of family

[p.625] of [1965] GLR 619 gave him a portion of land which he built on. There is no documentary evidence to support this grant. No other evidence from other witnesses has been adduced to support the plaintiff’s own evidence. It is therefore difficult for me to hold that a valid grant of any portion of the land excluding the area covered by exhibit A was specifically made by Joseph Cobblah Biney, as head of family, to the plaintiff. Moreover, there is evidence that the plaintiff’s brother, Hendrick, the father of the defendant, complained to one Bonso Bruce at whose house an arbitration was held without success. The plaintiff in exhibit C wrote to his uncle, Eshun, at Cape Coast, who replied through exhibit D. It is significant to note that in exhibit C the plaintiff narrated in some detail what the arbitration was about and the result of the arbitration. Nowhere in exhibit C did he mention to Eshun that his uncle, Joseph Peter Biney, had partitioned the land and house at “Bineyville” as far back as 1924. On page 2 of exhibit C, the plaintiff wrote as follows: “However to alleviate the situation I called on one of Hendrick’s good friends, Mr. Barnor, and sent him to tell Hendrick that if he wish he can take the whole rooms left, from his place to the four rooms where my mother, his children Josiah and my brother-in-law live and do whatever he likes with them and I will be content with the buildings I have put up myself including the land space he said is no use for building and I am willing to accommodate any of our Fanti relatives any time they visit here as I have been doing. He has not given his mind about this compromise.” Then earlier in the same exhibit C, p. 1 the plaintiff wrote: “Now I made it clear to the arbitrators that in 1928 I found that all the rooms have been occupied by families and that it would be better for me to put up a building and I showed him the intended draft plan. He refused to join me so I carried out the construction of the building alone; at the time I approached him for the erection of the building if my brother knew that there was any rent money collected he would without hesitation direct me to that . . .” I am therefore in some difficulty to understand why the plaintiff should approach the defendant’s father in 1928 to undertake a joint building venture on vacant land at Bineyville when in his own words Joseph Cobblah Biney had partitioned and given him his portion of the land as far back as 1924. Then when one reads the evidence-in-chief of the plaintiff in this case a different story unfolds itself:

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“All the building including the land was shared between me and Hendrick. When Cobblah Biney died I was in charge of the whole property as head of family. I built on a portion of the land given to me by Cobblah Biney. It was vacant land. My brother Hendrick knew that I had been allowed by Cobblah to build on the land. I built on the part of the land given to me leaving the part given to Hendrick. All this was done with the knowledge and consent of Hendrick. In 1912 I began to pay the rates and taxes on the whole house. I paid the rates and taxes from rents I collected. During Hendrick’s lifetime, he had no money and he asked me to build on Hendrick’s portion of the land and collect rents and pay the rates and taxes.” Exhibit C was written in 1942 and it seems strange that the plaintiff failed to mention these facts to his uncle Eshun. I therefore hold that the plaintiff has not established that the vacant land excluding the area mentioned in exhibit A was partitioned between himself and his brother Hendrick by Joseph Cobblah Biney, who on a proper construction of exhibit A, was a life tenant and collected the rents from Bineyville not as head of family but as a life tenant in his own right. Exhibit E which this life tenant wrote to the plaintiff was to the effect that the plaintiff should collect and remit two-thirds of the rents to him and keep one-third for himself. On exhibit E the plaintiff himself has minuted in pencil “one-third cannot cover repairs please. 28 April 1914. The plaintiff chose to build on family land which still remains family property. What is the position of the plaintiff with regard to these additional buildings put up by him on vacant family land? The position is clear and supported by Owoo v. Owoo5 in which it was held that according to Ga customary law there is a presumption that a house built by a member of a family upon family land is family property or becomes so upon his death, in other words, the member who built it has only a life interest. There is also the case of Larkai v. Amorkor6 which decided that long continued and undisturbed possession of family property by a head of family was quite consistent with his rights and duties as such head but in those circumstances, his possession could not ripen into ownership. In the present case, therefore the plaintiff has only a life interest in these additional buildings put up by him on vacant land not covered by exhibit A. These houses which are now on family property will revert to the family as family property on his death.

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The plaintiff’s counsel has stressed that the Biney family are Fantis. Assuming that they are, Fanti customary law on this point is not different as the appellate court in Owoo v. Owoo7 pointed out but did not follow Santeng v. Darkwa8 but thought the decision of the court below in that case had the support of Sarbah’s considerable authority on such matters. In this case there is no evidence that the land was granted to the plaintiff by Cobblah, then head of the family, with the concurrence of the principal members of the family. I now consider the Adedainkpo houses. I do not wish to go into detail as to how these houses became family properties as I have already mentioned their original ownership. It is evident from exhibits 5 and 9 tendered by the defendant that the Ga Native Court B Division 1 by a judgment dated 26 April 1950 declared the Adedainkpo houses as family property for the present plaintiff, his late brother Hendrick, the defendant’s father and their sister Martha Adjoa Aikins and their descendants. I am therefore not going into the question of who paid the £G200 to acquire the one-third share of the Aikins family in these properties. Finally my next task is to consider whether the property at Bineyville not covered by exhibit A and also the two Adedainkpo houses can be partitioned by the court in the manner suggested by the plaintiff on the sole ground that the defendant and his brothers and sisters have conducted themselves through non co-operation with the plaintiff as to make partition inevitable. The only complaint of the plaintiff is that the defendant and his brothers and sisters have abused him. The defendant has denied this. No other witnesses for the plaintiff have confirmed this alleged abuse. There is rather evidence that the plaintiff has not addressed to the defendant any of his letters inviting members of the family to a meeting to settle family differences. These family properties are governed by Ghana customary law. It has been submitted by the defendants’ counsel that partition can only be ordered by the court with the consent of all members of the family. The plaintiff’s counsel cited Sappor v. Amartey9 to show that the court has an inherent jurisdiction and I quote a very useful passage from the judgment of Bennet Lennard J.: “It has been suggested that partition by the Court is unknown in this country, that the head of the plaintiff’s family oppresses all the junior members of it, and that he and the mortgagee are minded to divide all the lands between them. Now it seems to me that the majority of a family can depose a head whom they dislike, and that under ordinary circumstances no Court ought

[p.628] of [1965] GLR 619 to interfere with this domestic discipline. Assuming, however, that the head of a family can carry a majority of it with him, and his intentions are entirely selfish and unjust, I have no doubt whatever that, upon a proper writ being drawn and a proper case made, a Court of justice can afford relief . . . I think that partition is also a possible form of relief.” I have considered the circumstances in this case and I do not know whether the majority of the Biney family support the plaintiff. He is claiming partition for himself alone on one hand and the children of Hendrick on the other, whereas the judgment of the Ga Native Tribunal exhibits 5 and 9 decreed that Martha Adjoa Aikins and her descendants were also interested in the two Adedainkpo houses as family properties. So far as the rent of “Bineyville” excluding the area covered by exhibit A is concerned the plaintiff’s father died intestate and all the members of the family interested in that property must agree to partition. The plaintiff is still head of family and collects rents from all the Adedainkpo houses and the family property at Bineyville, that is, excluding the land referred to in exhibit A. No member of the family has been obstructing him and as I understand the position in customary law, no junior member of the family is entitled to call upon him to account. I am therefore at a loss to understand why he should insist on partition when there has been no truculence on the part of junior members of the family. All the members of the family have a joint interest in these family properties — an interest which is indivisible according to the celebrated principle in Vanderpuije v. Botchway10 and followed in Amarfio v. Ayorkor.11 Lastly I have to remark that it is the customary duty of a head of family to gather the members of his family into his fold and not to scatter them and break up family bonds and affection which have lasted for generations and which must be preserved for generations yet unborn. For the above reasons, I am unable to consider the partition suggested by the plaintiff or to direct partition in the prevailing circumstance. However, I shall make the following declaration: (1) That as the sole survivor of his late father’s children, and upon a true construction of exhibit A according to English law the plaintiff is now the absolute owner of the land and building thereon clearly described in the deed of conveyance

[p.629] of [1965] GLR 619 executed in 1901 and tendered in evidence as exhibit A and furthermore that he has been absolute owner since the death of his brother, Hendrick, the defendant’s father. (2) That on the death intestate of the plaintiff’s father all land at Bineyville not conveyed by exhibit A but subsequently acquired became family property and all buildings erected thereon by the plaintiff were so erected at his own risk and he has only a life interest in them. (3) That houses Nos. D. 50/3 and D. 51/3 Adedainkpo Street have become family properties since the death of Lily Mensimah Biney alias Mrs. Lily Aikins. (4) That the above family properties cannot be partitioned without consent and that each member of the family has an interest in the family properties and their occupation should be governed according to the necessities of the various members and the limits of the properties subject to the concurrence of the head of family and the other principal members of the family. No order as to costs.

DECISION

Declaration for partition refused.

E. A.-A.