V. C. A. Fynn V. Jane Gardiner (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

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.

Facts

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.

Appeal allowed: judgments below set aside; the property declared to
be family property.