V. C. A. FYNN & 5 ORS v.

JANE GARDINER [1953-55] 14 WACA 1-2

5 FEBRUARY 1953
ACCRA
V. C. A. FYNN, REPRESENTING HIMSELF AND FIVE OTHERS,
NAMELY, JANE ANTHONY, E. N. OGOE, ELIZABETH Appellants
FYNN, E. E. E. FYNN AND ELIZABETH QUAINOO
v.
JANE GARDINER OF CAPE COAST Respondent

Real property—Gift in joint tenancy—Death of surviving donee in intestacy.

Native law and custom—Death of sole owner in intestacy—Lapse into family property—Claim for
accounts by junior members against family head.
The original owner by deed of gift gave the premises in question to A.H., R.S.H. and E.Y. "their heirs and
assigns". A.H. survived the other two and died intestate; the respondent was her only surviving daughter,
and the aunt of the appellants, who were grandchildren of the orignal owner.
The appellants as plaintiffs sued the respondent as defendant for a declaration that they were joint owners
with the defendant and for an account of the rents; they succeeded on both claims and the defendant
appealed to the Land Court, where the judgment of the Native Court was reversed, the judge holding that
the deed of gift must be construed according to English law and that the defendant had under native law a
right to hold the property during her lifetime.
The plaintiffs appealed from the Land Court.
Held: (1) It was right to construe the deed of gift according to English law it created a joint tenancy in the
donees, and the survivor of them took the property as a purchaser.
(2) That survivor having died intestate, the property became family property under native law and custom,
under which, however, junior members of a family cannot call upon the head of a family for an account.

AUTHORITY CITED:—
Sarbah, 2nd edition, p. 90.
Appeal by the plaintiff against the decision of the Land Court reversing the Native Court: No. 57/52.
E. Akufo for Appellant.
C. F. Hayfron-Benjanmin for Respondent.

JUDGMENT
The following judgment was delivered:

FOSTER-SUTTON, P.
The appellant on behalf of himself and five others, brothers and sisters, sued the respondent, claiming,
firstly, a declaration that they arc joint owners with the respondent of premises known as D.8/2
Commercial Street, Cape Coast, and, secondly, for an account of the rents collected by the respondent in
respect of the premises from January, 1925.
The appellants are the grandchildren of one R. A. Harrison, deceased, who by a Deed of Gift dated the
16th day of August, 1877, gave the premises in dispute to his. wife Amelia Harrison, his son Richard
Samuel Harrison and to his sister Effuah Yarcomah "their heirs and assigns".
The respondent is the only surviving daughter of Amelia Harrison, and is the plaintiff's aunt, the plaintiff
and his brothers and sisters being the children of the respondent's sister, deceased.
Amelia Harrison survived the other two donees and died intestate.
The case came for trial before the Native Court "B" of Oguaa State which gave judgment for the
appellants on both heads of their claim.
The respondent then appealed to the Land Court which after a re-hearing [p.261] reversed the judgment
of the Native Court and gave judgment for the respondent, and it is against that decision that the
appellants have appealed.
The learned Land Court judge having held, rightly I think, that the Deed of Gift must be construed
according to English Law, basing himself on the evidence of one of the appellants' witnesses, went on to
hold that the respondent has, under Native Law, a right "to hold the property during her life-time". The
respondent, in fact, claimed that Native Law has no application in construing the rights of the parties
under the Deed of Gift, and that she was entitled to the premises to the exclusion of the appellants.
In my view there can be no doubt that the Deed of Gift created a joint tenancy in favour of the donees. I
agree with the submission made by appellants' counsel that this is not one of those cases where in equity a
tenancy in common should be preferred.
The words "their heirs and assigns" in the Deed of Gift are clearly words of limitation. Amelia Harrison
as the surviving donee, therefore, took the property in question as a purchaser.
In my opinion Amelia Harrison having died intestate the property in dispute then became family property.
As Sarbah says, Second Edition, p. 90, under native law and custom, when a person dies intestate,
property held by him as sole owner and possessor relapses in the next generation "into a state of joint
tenancy".
Counsel for the respondent submitted that once the respondent had been proved to be "Head of the
family" the appellants could not sue for a declaration unless the respondent set up a claim adverse to the
appellants' interest, but this is precisely what she did and that is why the action was brought.
We indicated, during the course of the arguments,. that, in our opinion, the Native Court erred in ordering
an account. It is a well settled principle of native Claw and custom that junior members of a family cannot
call upon the head of It lie family for an account. Their remedy is to depose him and appoint another in
his stead.
For the reasons I have given I would allow this appeal with costs, fixed at £26 17s. 0d., set aside the
judgments of the Land Court and the Native Court, and declare that the house D.8/2 Commercial Street,
Cape Coast, is "Family property". The appellant to have costs in the Native Court and in the Land Court,
in both cases, to be taxed.

COUSSEY, J.A.
I concur.

KORSAH, J.
I concur.
Appeal allowed: judgments below set aside; the property declared to be family property.