Land-Native Custom--Position of Caretaker.

In a suit before a Native Tribunal the respondent had, as against the appellant, established her claim to certain property. The Tribunal had, however, in its judgment directed that the appellant should continue as caretaker of the land. The appellant appealed to the Provincial Commissioner, and, meeting with no success there, he again appealed to the West African Court of Appeal. Pending this latter appeal he made a successful application for the appointment of a receiver to receive the rents of the property.

His second appeal failed and the Provincial Commissioner then ordered the rents collected by the receiver to be paid to respondent. The appellant appealed against this order, on the ground that as caretaker he was the proper person to whom the rents should be handed over by the receiver.

The Court of Appeal dismissed his appeal, holding that, in the circumstances of the case, native custom did not support his claim, and that he was merely entitled to reasonable remuneration from the respondent.

C. F. Hayfron-Benjamin and E. O. Asafu-Adjaye for the Plaintiff-Respondent.

A. Sawyerr and Koio Thompson for the Defendant-Appellant. The following judgments were delivered :-

DEANE, C.J. THE GOLD COAST COLONY.

This is an appeal from an order of the Commissioner Eastern Province confirming an ex parte order made by him on 28th July, 1930, for the payment over to the plaintiff of monies collected by the receiver appointed in the suit.

The facts as they appear from the record are shortly as follows:

On 1st February, 1929, the plaintiff obtained a judgment against defendant in the Tribunal of the Ga 1Ifauche. Against this judgment the defendant appealed to the Provincial Commissioner, but his appeal was dismissed.

He then appealed to the West African Court of Appeal. While his appeal was pending, the plaintiff obtained an order ex parte restraining him from receiving the rents of the property which was the subject of litigation. The defendant applied that that order should be set aside and a receivel be appointed pending the result of his appeal to the West African Court of Appeal. That application was acceded to, and a receiver appointed who has been receiving the rents of the property with the exception of rent due by a Syrian who held a lease over part of the property and who, apparently, has not paid anything. On 1st July, 1930, the West African Court of Appeal gave judgment dismissing appellant's appeal with costs and, in effect, affirming the judgment of the Ga Manche Tribunal. Plaintiff thereupon as the successful party before the Tribunal applied ex parte and obtained from the Provincial Commissioner the order of 28th July. Defendant moved to set aside the order, and it is against the refusal of the Commissioner to set aside the order that this appeal is brought.

The sole question I take it which this Court has to decide is whether the Commissioner's order was justified or not, and for the determination of that question it will be necessary to refer to the judgment given before the Ga Manche to see whether the order of the Commissioner comes with the scope of the judgment which he was purporting to carry out as having been confirmed by the Court of Appeal. What I may call the operative part of the judgment is to be found on pages 41-42 of the record and runs as follows :-

"The Councillors therefore give judgment in favour of plaintiff and direct that defendant. should remain a caretaker of the property.

"The defendant should give the plaintiff's share of the monies received on account of the property. If the lease is already executed it should be cancelled and fresh one to be executed with the names of plaintiff and defendant together."

Now in order to understand the meaning of this order it is

necessary to know clearly what plaintiff had claimed, and for what she had got judgment, and what relation the directions bore to that judgment in her favour, and that can only be done by a study of her claim and the judgment on it. If we turn to her claim we find that it runs" 1. Plaintiff claims as bona fide owner sues the defendant for declaration of title to all that piece or parcel of land with the buildings thereon situate lying and being at Lutterodt in King William Street, Accra, which property defendant has given to a lease without the knowledge and consent of the plaintiff. 2. The plaintiff also claims her right title and interest to the said property against the defendant, and also for interim injunction restraining the defendant, his agents, servants, or workmen from entering into or doing any work on the said property until the action before this Tribunal is fully heard and determined." Put shortly, this was a c:aim by the plaintiff that there should be a declaration in her favour of her title to a particular piece of land, and an injunction against defendant from interference with it pending decision, and the passage in the judgment "The Councillors therefore give judgment in favour of plaintiff" can only mean" we find plaintiff entitled as against defendant to the piece of land she claims."

There are of course directions following, but the effect of these will be considered later-at present all that I am concerned with is the fact that the Tribunal found that the land claimed belonged to plaintiff and not to defendant. Then the question arises as to what was the land claimed by the plaintiff and which was found to be hers. Was it the land situate at Lutterodt and King William Street as defined in the clause which follows "which property defendant has given to a lease," or was it the land situate as described, the granting of the lease being regarded as an incident affecting the whole lot-in other words was the plaintiff only claiming the land which had been leased or the whole lot including the part leased.

Now of course the words as they stand might carry either meaning, and the meaning to be attributed to them will depend upon the circumstances. If A and B are contending about a parcel of land Blackacre, and B has leased a portion of Blackacre in assertion of his right to the place, A may very well claim Blackacre which B has leased, and ask that her title to the whole of Blackacre should be vindicated. On the other hand if B is asserting a claim only to the portion of Blackacre which he has leased, such a claim would be taken as referring only to that portion. Accordingly it is necessary to turn to the judgment to find out what the fight was about. And when we do that it is abundantly clear that the fight in this matter was about the whole plot of land containing as a portion of it, the part which had been leased by the defendant. Right through we find the plaintiff striving to prove her title to the land and the defendant on the other side setting up his title, not to the piece leased but to the whole piece, and there are several passages in the judgment which prove indubitably that the land in dispute was not confined to the leased portion. For example, there is the passage dealing with that part of the lot which had been acquired by the Government and for which compensation had been paid. "Plaintiff's son Aryeequaye "-I quote from the judgment-" on his return from abroad for a long period called her attention that the Government has taken part of her land now in dispute and demolished part of the buildings, and whether defendant gave her her portion of the compensation money." Reference is there made to the defendant's dealing with another portion of the same land which is said to be "now in dispute," a portion which clearly was not within the leased portion.

As I have said other passages in the judgment might be quoted in support of this view, but I do not propose to labour the point and so I pass on.

The judgment as I have said clearly finds that the title of the land is in the plaintiff, then it gives certain directions, the meaning of which I shall now proceed to deal with.

The first direction it gives is that defendant shall continue as caretaker on the land. Now it is clear that defendant had been before this litigation a caretaker on this land: the judgment shows that plaintiff had stood to him in loco parents, and in the absence abroad of her son, and owing to plaintiff's sex and age, he had gradually acquired a complete ascendancy over her and had for so long done as he liked on the land, that he had forgotten it was not his and in fact was treating it as his own: he had received the compensation money from the Government when they acquired a portion of the land and had pocketed plaintiff's share and she had been unable to get it out of him, being put off by various excuses. Finally over this question of the lease, when he had leased a portion of the land to a Syrian without her knowledge and consent, she had been forced to bring the matter into Court with the result that defendant then set up a claim to have inherited the land through his grandmother as to which the Tribunal found" If the Councillors were even to believe defendant that the land was for his grandmother Fatuma, the plaintiff being a daughter of Fatuma ought to be a successor before the defendant." When therefore the judgment directs that the defendant should remain a caretaker of the property it must refer to the whole of the property, and can only mean that plaintiff, being a woman and old, should allow him to continue to manage things for her but that he must be under her management and control as a caretaker.

The direction that the defendant should give the plaintiff's share of the monies received on account of the property means, following on what I have already said, that he must account to plaintiff for her share of the compensation money which he had received, and an opinion is expressed that the lease being bad inasmuch as the land did not belong to the defendant who leased, a new lease should be executed by the plaintiff in favour of the Syrian, the defendant joining as caretaker.

The only question remaining to be decided is whether defendant was entitled by virtue of his position as a "caretaker" to any interest in the land, so that a proportion of the rents in the hands of the receiver should be paid to him. On the position of "a caretaker" in native law the Court has had the advantage -of hearing the evidence of the ManclIe of James Town. He has told us that there are two kinds of caretakers, one corresponding to a caretaker in English law who is paid for his services and has no interest of any kind, the other is unpaid. In the case of the after the position varies according to circumstances, in some cases It may be so strong that the caretaker would be entitled to a share of the purchase money if the land were sold by the owner, especially if the caretaker has improved the land: in other cases the caretaker has to be content with what the owner chooses to give him. In the specific case put to him of a man in charge as caretaker of a lot on which are buildings producing rent-his evidence is that such a person would be entitled to be paid a reasonable e amount by the owner (" if the house was not sold the owner would decide what he wished to give-a reasonable amount "), by which I suppose is meant a sum proportionate to the services, if any. rendered by him. Such a petition in my opinion sounds in contract, and confers no right upon the caretaker to be paid money out of rents in the hs of a receiver. I think it is for the owner having received her rent to give him what she considers reasonable, and then if he is not satisfied he may go to a Tribunal for redress. That being the case the Commissioner's order was justified and the appeal must be dismissed with costs assessed at £21 Os. 6d.

HALL, J.

I concur.

SAWREY-COOKSON, J.

I concur in the learned President's conclusions, and will confine myself to considering certain passages in the Tribunal s judgment in order to ascertain whether the issue before them was n regard to the whole of the land or only that part which defendant leased for building purposes to a certain Syrian.

First of all, it is clear that the Tribunal believed the wh01e of plaintiff's evidence, part of which went to show how she acquired the property from her husband Ferku who, according to the Tribunal's understanding of her evidence, made a gift of the land now in dispute exclusive only of a certain building then on it which he (Ferku) had sold before leaving her and returning to Lagos. Plaintiff was then the young wife of the old man (Ferku), and he instructed her mother to get the land cleared and have other houses built on it so as better to accommodate plaintiff and her family.

The Tribunal further found that defendant has been entrusted to plaintiff by her mother to be nursed by her (the plaintiff), and that when defendant grew up plaintiff allowed him, being her foster-son, to build a shop for his tailoring purposes on her land (i.e. the land so given her by Ferku; that Government later compulsorily acquired part of that same land and that defendant put the purchase price into his own pocket instead of sharing it, presumably with plaintiff and other members of plaintiff's family, and that when he was approached by plaintiff and asked about her share he put her off by saying that Government had not finished with him yet, meaning apparently that there was more money yet to come. In so acquiring the portion of that land Government had demolished some of the buildings then on the land.

Then comes the reference by the Tribunal to the Syrianan who leased a portion of the land, and appears to have requested plaintiff's children to clear out of a portion of a certain building the whole of which had been leased to him by defendant. Thereupon, being approached once more by plaintiff, the defendant again put off her enquiries saying that he, of course, could not and would not do anything without her knowledge and consent (which amounts clearly to an admission by defendant that he had no right to lease any portion of the land without plaintiff's concurrence)-and defendant went on to explain what he had done with the money paid for the lease by the Syrian and that he would call a meeting later and come to a settlement with plaintiff.

Then came a witness who stated that defendant had been to her about six months before the Tribunal had the case before it, and asked to be told who was the real owner of the property in dispute, i.e. the land in dispute, and this witness replied that plaintiff was the owner and he must not, therefore, lease the property, i.e. any portion of it without It making one" with her.

The defendant's evidence to show that the land in dispute was his father's was considered and found to be unsatisfactory, and all that the Tribunal could find in defendant's favour in regard to the land in dispute was that he had been allowed by plaintiff to build on it, and so allowed to become a It caretaker" in some sense of that term, the Tribunal holding that even if they could believe that defendant's grandmother had been given the land in dispute the plaintiff still (for reasons stated) had a better right to succeed to it. But the Tribunal decided to allow him to remain on the land as caretaker whilst ordering him to pay back the money which he had received on account of the property, i.e. surely the land in dispute, and directed that the old lease of the land to the Syrian should be cancelled and that plaintiff should join in a new lease. And showing how little the Tribunal thought of defendant's claim they ordered him to pay the whole of plaintiff's costs.

Now I consider it is clear from the above that the Tribunal addressed themselves throughout to the question whether plaintiff or defendant had the better claim to the land, a portion 0 which defendant had leased to a certain Syrian and that they had no hesitation in concluding that the land belonged to plaintiff, but they conceded defendant has right to remain on it as It caretaker." The only words used in the Tribunal's judgment which could possibly point to a different conclusion are those found almost at the end of the judgment, which words direct that defendant should give plaintiff her" share of the monies received on account of the property," but I am of opinion that when read with all that precedes them these words mean the money he received for that portion of the land which the Government had compulsorily acquired, the  whole of which he had put into his own pocket instead of sharing it with members of the family.

There is no doubt that the Tribunal came to a conclusion wholly adverse to defendant and considered defendant's conduct towards plaintiff, who had mothered him and allowed him certain privileges in regard to her land, to have savoured of that of the dog which bites the hand that feeds him.

There remains, however, the question as to whether the right to remain on the land as It caretaker" carries with it any right to share in the profits accruing from the land, and having heard evidence on that point it is clear to me that he must rely entirely on plaintiff's discretion as to whether he gets any remuneration in connection with his caretakership.

We have been told that he is entitled to some reasonable remuneration, but it is not for this Court to decide what that remuneration is to be, it being entirely a matter as between plaintiff and himself.