Recovery of Land and Buildings-Whether title in Family or individual- Weight of Evidence-Gift inter vivos /of immovable property according to Native Law and Custom­ Evidence of acceptance.

Held: Wrong inference drawn by trial Judge from facts contained in documentary evidence, and appeal allowed.

The facts are sufficiently set out in the judgment.

E. C. Quist (with him K. A. Hossman) for Appellants.

A. G. Heward-Mills (with him C. F. Hayfron-Benjamin and E. O. Asafu-Adjaye) for Respondents.

The following judgment was delivered:-

YATES, ACTING C.J., GOLD COAST.

This is an appeal from the judgment of Deane, C.J. dated 13th July, 1935. The first defendants were given judgment at the close of the plaintiff's case, and the case proceeded as against the second defendants against whom judgment was given-they have now appealed.

The writ of summons as amended claims recovery of possession of a piece of land and buildings, situate in High Street, Accra~, known as St. Janet's Harbour, and for a declaration of title to the said property.

Both plaintiff- and defendants are descended from one Kreshie, who had three daughters, two of whom are material to this action, viz:, Na Momo from whom the plaintiff claims descent) and Janet Plange from whom the defendants claim descent.

According to the statement of claim paragraph 3, a certain piece of land was publicly given to Kreshie by her husband Kobla Ashong before witnesses, which according to native customary law would give her the title to the land in question.

After the decease ,of Kreshie it is not disputed that both N a Momo and Janet Plange erected buildings upon this land. Momo built Momo Hall and Janet Plange built St. Janet's Harbour, but it is contended that as St. Janet's Harbour was completed with money borrowed from one "William Papafio, by Momo, Janet Plange and her two children Phillip Carl Randolph and Alice Randolph, who mortgaged the property in question to him to secure the said loan, and that further the members of the Kreshie family and domestic servants contributed to the erection of the building by carrying stones, swish and water from the family quarry at Tebum, the building is by native customary law part of the family property of the Kreshie family.

The defendants on the other hand maintain that. St. Janet's Harbour was built upon land, the self-acquired property of C. A. Randolph and given inter vivos by him to his wife Janet Plange, that on her death it descended to their father;' P. C. Randolph who leased it to the defendant company without let or hindrance by the Kreshie Family, that they succeeded their father and St. Janet's Harbour has never been the property of the Kreshie family, and if it ever was, both Momo Hall and St. Janet's Harbour have always been considered and treated ~s separate entities by the two branches of the family; Momo Hall always having been treated as the property of the Momo Branch, and St. Janet's Harbour the property of the Janet Plange Branch. The plaintiff in reply denies this and says further that if St. Janet's Harbour was given to Janet Plange by her husband, there is no evidence of the native customary law having been complied with, which is necessary to support the gift.

I propose first to deal with the documentary evidence in the ease, and the first in point of time is the mortgage mentioned above, Exhibit" Y" and is dated July 13th, 1877, and purports to convey to William Papano for a term of years the right title and interest in the land upon which St. Janet's Harbour was built, in consideration for It Joan of £697 18s. 8d.; the mortgage is signed by .Janet Flange her two children and Morna Papano the wife {)f the mortgagee.

Deane, C.,J. in his judgment deals with this mortgage as follows :-" That Janet's Harbour was considered to be not the individual property of Janet. but was looked upon as Kreshie family property seems to me conclusively established by the fact that when .Janet got a loan from the husband of Momo William Quartey-Papafio, to build on it, the mortgage of the land given to William Papafio as security for his loan, was signed not by Janet, as it 'would haw been if the property had been her own individual property, but by his own wife Momo and by her two children thus showing clearly that it was Kreshie family property". This passage reads as though the Chief Justice took the mortgage to be signed not only by Momo in addition to Janet but also by Momo's two children. But this is not the case; it is Janet's two children who are the signatories in addition to Janet and Momo, and this point is most significant. Clearly if the property was Janet's or Janet and her children's, the inclusion of Momo as a signatory requires explanation. Rut an explanation is forthcoming, namely, Yates, that William Papafio wanted Momo's signature to the document Acting C.J. because the loan was made at her request. I think this explanation is reasonable. On the other hand if the property were Kreshie family property the proper persons to sign were Janet and Momo only, or if .Janet's children signed, then Momo's children should have signed too. No explanation is forthcoming from the plaintiff as to why Janet's children signed the mortgage and Momo's dill not. For these reasons I disagree with the trial Judge's view as to the inference to be drawn for this document. Instead of conclusively establishing that St. Janet's Harbour was' Kreshie family property, the document seems to me to go far towards establishing the contrary proposition. It becomes necessary, therefore, to scrutinize the other documents produced concerning this property. First of all there is the Reconveyance Exhibit "D ". This Indenture is dated 12th November, 1913, and made between :E. 'V. Quartey-Papafio and Botchway as Native Administrators or :Executors of the late William Quartey-Papafio and P. C. Randolph as Native Administrator of the estate of the late .Janet Plange; and recovery's to him " the house and premises commonly called St. .Janet's Harbour, the property of the said Janet Plange." Nowhere in this reconveyance is it recited that the property is the property of the Kreshie family, and it is significant that the document is witnessed by A. H. Hammond the present plaintiff and that E. 'V. Quartey-Papafio is a very senior member of the Kreshie family.

The next document is Exhibit" E " dated 30th July, 1927, and is a reconveyance of the property by P. C. Randolph as sole mortgagor to the representatives of the estate of William Papafio, then E. 'V. Quartey-Papafio and Afrowah and Badu Tekofio the daughter and niece of Botchway; here again P. C. Randolph is dealing with the property as his own and it is witnessed by the :plaintiff. I now come' to a most important document Exhibit " F ". It is dated the same date as Exhibit" E " made between E. ,V. Quartey-Papafio, Afrowah and Badu Tekofio, represent­atives by native custom of the late 'Villiam Papafio, and P. C. Randolph not, as will be noticed, as representing anyone but for himself. Having recited Exhibit" E " it surrenders and releases the property to P. C. Randolph for ever, as the sole and bona fide owner in possession or otherwise as a freehold property with absolute right to devise. '1'his document is also witnessed by the plaintiff. It is, I think, necessary to show how these document's came to be executed. According to the evidence of the plaintiff, P. C. Randolph wrote to the family through Mr. Coussey to get his title clearly acknowledged. He goes on to say " before ' E ' " and' F ' were made, all the members of the family met with "the exception of Benjamin Papafio-I was present. These " rectificative documents were drawn with my knowledge, but I " say I did not consent although I signed as a witness." Exhibit " E " was drafted in the lawyer member of the family's chambers, though he was not present himself, and is executed by E. W. Quartey-Papafio, a most senior member of the family. To my mind these documents "D", "E" and "F" conclusively confirm the view I have expressed as to the proper inference to be drawn from the mortgage Exhibit" Y ".

It may be as well at this point to quote a. portion of the evidence of the plaintiff in cross-examination; he says" I am the "only person who now claims the property . None of the " descendants of Kreshie are claiming that it is family property. " I have not heard them claim it." In the face of this evidence it is somewhat difficult to understand how the plaintiff claims in his representative capacity as head of the Kreshie family as disclosed in the writ, if the family make no claim.

It remains to deal with the title of Janet. Janet's title is claimed from the alleged gift to her of this land by her husband during his lifetime', and what evidence is there of the acceptance such as is required by native customary law? According to Sarbah's Fanti Customary Law, 2nd Edition page 81, acceptance of a gift of immovable property must invariably be made with as much publicity as possible.

" Acceptance is made-

" (i) By rendering thanks with a thank-offering or "presents, alone or coupled with an utterance or " expression of appropriating the gift; or

" (ii) Corporeal acceptance, as by touching; or

" (iii) Using or enjoying the gift; or

" (iv) Exercising rights of ownership over the gift."

J n this case there is no evidence of an acceptance by methods 1 and 2 but in my view there is abundant evidence of methods 3 and 4. It appears to me that Janet and' her descendants llave enjoyed and used the property for a great number of years. As early as 1875 Janet in her own name conveyed the property to J. J. Fischer & Co., Ltd., in 1884 she leased it to Millers, Limited. Her successor leased it to the United Africa Company, the first defendants, and she and her successors have enjoyed the rents. To my mind these acts of ownership are inexplicable, unobjected to as they were, by the family, unless it was acknowledged that Janet was the true owner. In my view it is clear that the owner­ship of this property is in the defendants, and I am satisfied that each brand of the family has recognised exclusive ownership to their particular portions i.e. Momo Hall has been regarded as the property of Momo and her descendants (See, for instance, Exhibit " C ") and St. Janet's Harbour as the property of Janet and her descendants.

For the above reasons I think the judgment of the learned trial Judge was wrong and should be set aside, and that the plaintiff's claim should be dismissed; the appeal therefore must be allowed with costs, in this Court assessed at £97 13s. 0d. and in the Court below to be taxed.

KINGDON, C.J., NIGERIA.

I concur.

WEBBER, C.J., SIERRA LEONE.

I concur.