I                                                            Accra, 16th June 1930.

Contract - persons living in concubanage  Money contributed by both towards erection of house-Death of one of the persons­Claim by other for money she contributed disallowed.

The Plaintiff and one Weatu lived in concubinage, and during the course of this relationship they expended money in building a house, the plaintiff's con­tribution being £94. On the death of Weatu she sued the defendant, his administrator, and got judgment in her favour for this amount.

On appeal the decision of the Court below was reversed on the ground that the circumstances rebuted the presumption that plaintiff's contribution was money paid for the use of Weatu, and that the true conclusion from the evidence was that the £94 was a gift.

C. F. H. Benjamin for the Defendant-Appellant. F. A. Williams for the Plaintiff-Respondent. The following judgments were delivered:-

SAWREY-COOKSON, J.

This was a claim against the Administrator of the Estate of one Johh Weatu (deceased) to recover a debt alleged to be due by the deceased, and the only question the learned trial Judge found himself called upon to decide was whether or not the plaintiff had contributed money for the erection of a certain building by the deceased, and if so whether a claim for any such sum could be maintained against the Administrator

All that llf~ed here be stated as to the material facts of the case is that the deceased John Weatu and the plaintiff-respondent had lived in concubinage for many years in Sekondi, and there is nothing to show that their relationship during that period was not of a perfectly cordial character. Both were from Liberia and of the Kroo tribe.

The learned Judge (Mr. Justice Howes) found that the plaintiff had contributed a sum of £94 towards the erection of that building and gave judgment in her favour for such sum to be paid by the Administrator out of deceased's estate, and from that judgment this appeal is now brought.

The learned Judge held that whether the deceased and plaintiff were actually married or not did not affect the issue, because it was not disputed that the plaintiff had lived with John Weatu as his wife; but he found that the case presented some difficulty owing to the fact that the principal person concerned, viz., John Weatu, died intestate; and it is precisely that same difficulty which has led us to disagree with the conclusion reached by the learned Judge. In other words, it is because the claim is against the estate of a dead man that the question arises whether she could have maintained the claim during his life time.

The difficulty is not in deciding whether the second of the three Morris grounds of appeal fails or not, viz. that the judgment was against Monrovia the weight of evidence, for it is clear there was ample evidence ­upon which the learned Judge was entitled to base his finding ~aw~ey- J that the Plaintiff had contributed towards the cost of the building 00 son, • and consequently this Court will not disturb that finding of fact.

It is only when we have to consider (as just stated) whether or not,

in view of the relationship existing between the parties during

these many years the woman could have recovered the sum she

had contributed during John Weatu's life time, that we are of

0P!nion that the judgment is wrong, and for the following reasons:-

Mr. Hayfron Benjamin whose first and third grounds of appeal are that the judgment was erroneous in law and that the Plaintiff-Respondent should have been no suited as no case was made out for the Defendant-Appellant to answer, did not take the exact point which in our opinion must decide this appeal; but he did refer us to the case of In Re Whitaker L.]. (1882) Ch. Div. at page 737 (et seq) where we find the following passage which is appropriate to the facts and circumstances of the case before us :­" Another well established rule is that a person making a claim against the estate of a dead man cannot sustain that claim by his or her own deposition," and the learned Vice-Chancellor went on to point out that, in the case before him, up to the time of the husband's death nothing had taken place between the parties, and there had been no claim by the wife to recover certain sums which she alleged after his death that she had lent him. That 'is exactly the position of affairs as they are now before us-not a word said during the time they lived together as man and wife and no other indication whatsoever to rebut the presumption arising out of the relationship which existed between the parties, viz. that the money was contributed by the woman as a gift. Where, !IS in the case before us, there is evidence that the parties, living together as husband and wife decide to contribute towards the building of a house in which they are to continue to live together in that relationship, what is more natural; unless there is clear evidence to the contrary, than that their contributions should be deemed to be for their mutu\l.l benefit without any contemplation by either of claiming a return by the other party of such contribution ?

J n the case before us there is certainly no evidence of any express agreement or promise to repay the Plaintiff's contribution, and we think the circumstances negative any such implied agreement or promise.

Mr. Williams has argued that the evidence of the witness Blankson makes it clear that John Weatu kept accounts of all moneys contributed towards the building, and that being so the woman's contributions cannot be regarded as a gift. As I understood Mr. Williams, his argument was that there would have been no necessity for the keeping of any account of such moneys unless the intention had been to refute the possible suggestion of the contribution being made as a gift. But it does not appear from that evidence that Blankson kept an account of anything more than what deceased may have contributed: and moreover, because the same witness Blankson is quite clear that the woman contributed nothing whatsoever towards the building (except what the deceased gave her for that purpose), it would follow that no account was kept of the joint expenditure.

Mr. Williams also argued that whatever the English law on the subject may be there is no presumption among natives that where a woman is living with a man the money in such a case as the present would be a gift and that the presumption is rather to the contrary, but he has offered us no authority for that proposition.

There can, however, be no doubt that were Fanti Customary Law applicable in this case what is known as "Sarwie" would apply, and equally so would any contribution then be irrecover­able. The parties, however, being Kroos, Fanti native custom cannot apply to them.

There mere fact that Kroos come to this Colony from Liberia and live here for a considerable time and even build houses does not mean a change of domicile so as to render them liable to be bound by custom other than those of their own tribe; and as to what those customs may be there is no evidence before us.

Nothing, therefore, that Sarbah has to say in his learned work on Fanti Customary Laws applies in this instance and consequently, since the English law on the subject is applicable, and it must therefore be held out that there was no implied promise or agreement to refund the Plaintiff's contributions, she has failed to make out her case and there should have been judgment for the Defendant. The judgment of the Court below must therefore be set aside and the following entered in lieu thereof" There will be judgment for the Defendant," but in view of the fact that the point !Which decides this case was not taken in the Court below, there will be no order as to costs either in this Court or in the Court below.

DEANE, C.J. THE GOLD COAST COLONY.

This is an appeal from a decision of Howes, ]., in favour of the Plaintiff-Respondent. The Plaintiff had brought an action against the Defendant to recover from the Defendant possession of all that piece or parcel of leasehold land together with the building thereon situate at Krootown Dutch Sekondi measuring 31 ft. X 31.9 bounded on the North by an open space, on the South by Main Street, on the West by Jugba Joe's plot, and on the East by an open space, the property of the Plaintiff: In the alternative the Plaintiff claimed from the Defendant as Administrator of the estate of John Weatu (deceased) the sum of £105 12s. 3d. monies spent by the Plaintiff on the erection of the said building. The learned trial Judge having heard the case decided that the Plaintiff's claim to possession of the house in question was not sustainable, and from that finding there has been no appeal: he also held, however, that the Plaintiff had contributed the sum of £94 towards the erection of the house by the deceased and gave judgment for her for that sum, and from that finding the Defendant has appealed.

The conclusion arrived at by the learned Judge on the evidence that the Plaintiff had contributed £94 towards the erection of the building has been vigorously attacked on the ground that it is against the weight of evidence, and I am free to confess that the evidence in support of the finding does not strike me as very con­vincing. I am not prepared, however, to hold that there is no evidence to support the finding of the learned Judge or that he arrived at a wrong conclusion on the evidence. After all he heard the witnesses and was in a much better position than this Court to decide what weight should be attached to their testimony, and this Court wiII not readily disturb his finding on a pure question of fact such as this.

The matter, however, is not concluded by this finding. The question then arises as to the legal effect. The general rule of law is that monies expended by one man for the use of another are presumed to have been so expended at the request of that other, and the law implies a promise by that other to repay the monies so expended unless the circumstances are such as to rebut the presumption against the implied promise to repay: unless in fact the evidence is such as to establish that the advance was not by way of loan but a gift. Now the evidence in this case shows that plaintiff had lived for many years with the deceased as his paramour, and that it was at her suggestion that this house was built (vide her evidence p. 20) "I told Weatu it would be good to build a house for ourselves. He did not agree at first but later did "). Neither then or at any time subsequently did she suggest repayment of any sums she might advance or had advanced towards building it, and nowhere in her evidence has she attempted to set up that the deceased ever discussed the question of repayment with her or promised to repay her any monies so advanced. The conclusion I am forced to is that when this money was advanced by Plaintiff neither she nor the deceased ever contemplated that repayment would be demanded or enforced-the Plaintiff in fact pooled her resources with those of the deceased to build a house in which they could live together: the lease of the land was with her full knowledge and acquiescence taken in the name of the deceased; and all these circumstances point unequivocally to the money being a gift and not a loan to the deceased. The only circumstance in fact spoken to during the whole course of the evidence which can be referred to as indicating a loan rather than a gift is the keeping of separate accounts by the deceased and the plaintiff showing what each had expended on the house. Not only, however, is this circumstance equivocal inasmuch as the inference that the monies advanced by Plaintiff to build was a loan is not a necessary inference there from, but the evidence in support of it is the uncorroborated testimony of the Plaintiff and as such cannot be noticed by the Court. The well-established rule of law is that a person making a claim against the estate of a dead man cannot sustain that claim by his or her own deposition; and unless there be some corroboration of it something to satisfy the Court that the assertion is literally true, the Court can take no notice of it ..

In my opinion therefore all the circumstances in this case rebut the presumption of law in favour of Plaintiff and tend to show that the money was not advanced at the request of the deceased but was a voluntary gift by Plaintiff towards the deceased's expenses in building a house.

It will be noticed that I do not base my finding that this was a gift on the single circumstance of the close relations between Plaintiff and deceased, but on all the circumstances taken together of which that is only one. By Fanti Customary Law any advance made by a man or woman to his or her paramour while the relation exists is irrecoverable. Such a custom would not of course be binding in this case, the parties being Kroos and not Fantis, and I only refer to it as showing the manner on which a transaction of this sort presents itself to a section of the African peoples. There is no evidence given showing that the Kroo tribes have any custom which places advances of this nature in a different light. to that in which they would be regarded under the law of England, and no reason therefore is forthcoming why the ordinary inferences of English law should be displaced.

In my opinion therefore the decision of the learned trial Judge that the £94 expended by Plaintiff was recoverable was incorrect, and the judgment of the Court below in favour of the Plaintiff should be set aside and judgment entered for Defendant.

Inasmuch as the consideration of the Court below was entirely directed to the question whether or not the monies had been expended and the question whether, even if expended, they were recoverable was not touched upon, I think there should be no order as to costs in this Court or the Court below.

MI CHELIN, J.

I concur.