BINEY vs. BINEY [1974]DLCA2262

Date	1974-03-08
Suit No.
Citation No.	[1974]DLCA2262

SOWAH JA

ANIN JA

KINGSLEY-NYINAH J.A.

P. A. ADJETEY FOR THE APPELLANT.

DR. E. V. C. DE GRAFT-JOHNSON FOR THE RESPONDENT.

[1974]DLCA2262
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">BINEY<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;BINEY <o:p></o:p>[COURT OF APPEAL,
ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 1 GLR 318<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
8 MARCH 1974.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

P. A.
ADJETEY FOR THE APPELLANT.<o:p></o:p>

DR. E. V.
C. DE GRAFT-JOHNSON FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SOWAH, ANIN AND KINGSLEY-NYINAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>The
defendants-appellants appealed from only a part of the judgment of the Accra
High Court dated 28 October 1965 and reported in [1965] G.L.R. 619, while the
plaintiffs-respondents (who were substituted for the original plaintiff, now
deceased) filed a notice of contention imploring that the said judgment should
be varied. Since both parties have in the event cross-appealed from parts of
the same judgment, I shall refer to them simply as the plaintiff and the
defendants respectively.<o:p></o:p><o:p>&nbsp;</o:p>The main
facts of the case are as follows: The late Joseph Peter Oconnor Biney, who died
in 1910, was the father of the plaintiff and grandfather of the defendants. By
a deed of settlement dated 12 March 1901 (exhibit A), he conveyed his freehold
land with building thereon measuring 100 ft. by 100 ft. situated on the
Korlena, James Town, Accra (now numbered D.540/1 Bruce Road and popularly known
as “Bineyville”) to his two brothers and a cousin, namely, Joseph Cobblah
Biney, Charles Biney and Adolphus Joseph Ashun, as life tenants; thereafter to
his four children as remaindermen, namely, the plaintiff, Claudius William
Biney, Lily Mensimah Biney and Hendrick Frederick Bart Biney, “their heirs, and
assigns” forever.<o:p></o:p><o:p>&nbsp;</o:p>At the
date of the plaintiff’s originating summons, all the donees with life interests
and the remaindermen under the deed of settlement bad died, with the exception
of the plaintiff, who was the sole survivor of the remaindermen. It was
undisputed by the parties that the settlor (J. P. O. Biney, deceased) acquired
from the Sempe stool a tract of land adjoining the area of 100 ft. by 100 ft.
specifically conveyed by the deed of settlement (exhibit A); that this extra
land was subsequently integrated into and treated as one whole with the demised
land; and that the entire area was popularly referred to as “Bineyville.”<o:p></o:p><o:p>&nbsp;</o:p>In his
evidence, the plaintiff alleged that Joseph Cobblah Biney, a former head of
family, partitioned “Bineyville” into two parts and granted one part to the
plaintiff and the other to the plaintiff ‘s brother Hendrick, the father of the
defendants. Thereafter Joseph Cobblah Biney permitted the plaintiff to erect
buildings on the portion granted him and to make extensions to the original
building known as “Bineyville.”<o:p></o:p><o:p>&nbsp;</o:p>After
reviewing the relevant evidence, the learned trial judge held first, that upon
the death intestate of J. P. O. Biney, the accretion to “Bineyville,” (which
was not conveyed by exhibit A) became family property; and secondly, that the
evidence adduced by the plaintiff in support of an alleged grant to him of a
portion of the said accretion to the area covered by exhibit A was
unsatisfactory and unconvincing. There was no evidence of the alleged grant of
this land to the plaintiff by Joseph Cobblah Biney, the then head of family,
with the concurrence of the principal members of the family. Thirdly, the
learned judge held that the plaintiff failed to prove that the enlarged
“Bineyville” had been partitioned between himself and his brother Hendrick by
Joseph Cobblah Biney. The latter was a life tenant under exhibit A; and he
collected rents from “Bineyville,” not as head of family but as a life tenant
in his own right. The plaintiff chose to build on family land which still
remains family property. By operation of customary law, the buildings put up by
him on the vacant portion of “Bineyville” would become family property on his
death. The plaintiff has only a life interest in these additional buildings.<o:p></o:p>