LARBI v. CATO & ANOR

JUDGMENT OF OLLENNU J.

(His lordship stated the facts, and continued); - The late Mr. Larbi died on the 30th September, 1956, and a certified copy of Probate of his Will formed part of the evidence led on behalf of the plaintiff. Paragraph 7 of the Will gives the history of the premises in dispute, and is in conflict with the plaintiff’s claim.

The plaintiff’s claim is based upon the well-established principle that where members of a family assist another member of the family [p.37] with money, materials or labour to build on that other’s self-acquired land, the members so assisting acquire, at the death of the builder, certain rights with respect to the house so build - the house becomes family property (Welbeck and ors. v. Brown and anor. (Sar. F.C.L. 160)). Further, property acquired from profits of family property is itself family property (Tsetsewa v. Acquah & anor. (7 W.A.C.A . 216)).

The native law or custom which the Supreme Court recognises and administers must be such as, in the language of section 87(1) of the Courts Ordinance, is not repugnant to natural justice, equity and good conscience. In considering native law and custom in that light, regard should be had to the progress of society, and to changing conditions in the social life of, and economic values in, this country.

From a careful study of the various judicial decisions, including the case of Codjoe & ors. v. Kwatchey (2 W.A.C.A 371) and Redward’s Commentaries on this aspect of the customary law, I have formed the opinion that where it is proved

(1) that members of a family made substantial monetary contribution to another member to build a house on his individual land, or

(2) that the moneys used by a member of a family to build on his self-acquired land were entirely, or substantially, proceeds from family or ancestral property, as distinct from what he (the individual member of the family) would normally enjoy as his share of proceeds from family or ancestral property, or

(3) that in the absence of employed labour (or with partly employed labour) members of the family provided the whole or a substantial part, of the labour for a member of the family to build a house on his own land, and with his own materials, or

(4) that the materials used by a member of the family to build on his own land were, in the main, property of the family, then, in any such case of substantial contribution by the family or members of the family, a house built by a member on his self-acquired lan