LAHM v. LAHM
SuPREME CouRT (Browne-Marke, J.): February 19th, 1970
(Civil Case No. 355/ 68)
[I] Family Law-property-matrimonial home-substantial financial contribution
to purchase price by party to customary marriage creates
joint tenancy: Where the parties to a customary marriage buy a house
in Freetown in their joint names intending it to be a continuing provision
for their joint lives, and each makes a substantial financial
contribution to the purchase price and they run the household by their
joint efforts, the property belongs to them jointly and each will be
entitled to a share of the proceeds of its sale (page 30, lines 27-29;
page 31, lines 25-33).
 Land Law-joint tenancy-matrimonial home-substantial financial
contribution by party to customary marriage creates joint tenancy:
See  above.
The plaintiff sought a declaration that certain property belonged
to him in fee simple absolute in possession, and the defendant counterclaimed
that she was the lawful owner of half of the property.
The parties were married according to native law and custom
and lived together for 14 years. During this time the plaintiff bought
a house with the help of a loan from the defendant's father. According
to the plaintiff he paid the balance himself, and later repaid the loan,
but the defendant claimed that she contributed a substantial amount
to the purchase price. The conveyance was executed in their joint
names, but the plaintiff claimed that this was only because he was
pleased with his wife for bearing him five children, and he further
claimed that since buying the house he had spent money from his
personal savings on improving it.
The marriage finally broke up and the defendant left the
matrimonial home with the children and started a business of her own.
The plaintiff did not pay any maintenance for the children, and she
assumed the entire responsibility for supporting them. When she
finally took out a summons against him for maintenance the plaintiff
commenced the present action in the Supreme Court seeking a
declaration that the matrimonial home belonged to him in fee simple
absolute, and asking for the defendant's name to be deleted from the
The defendant counterclaimed that she was entitled to half the
property since it was bought and owned jointly by the plaintiff and
herself. She maintained that she had made a substantial contribution
INTRA BANK S.A. v. ROYAL EXCHANGE ASSUR. CO., 1970-71 ALR S.L. 20
stands alone and solitary on its own platform, without companionship
of any kind. Fattallah had come to the journey's end and he ought
to have waited to complete the transaction at hand. If for the reason
he gave, he thought it wise to take the money out again in the car, I
think from that moment it cannot be said in fact and in law that the 5
money was in transit when it was found missing on his second visit
to the Bank of Sierra Leone. To construe the policy as permitting the
appellant, having reached the destination where the money should
be deposited, not to so deposit it when the Bank was open and
holding itself ready and willing to transact business with its customers, 10
and then to drive out with the money in the car in order to transact
some other business wholly unconnected with such a deposit, would
be to add a new condition to the policy which could not be done. See
Pearson v. Commercial Union Assur. Co. (3).
It is, therefore, not without some feelings of sympathy for the 15
appellant, that I have come to the conclusion that the money was not
in transit at the moment it was discovered missing when the boot of
the car was opened after the car's second excursion to the Bank of
Sierra Leone. It naturally follows from this that the appeal cannot
But even if the learned judge was right in his finding that the
money was in transit, this court would have to be satisfied that its
loss was not due to the negligence of the appellant and that the theft
was accompanied by simultaneous flight of the thief while having such
money in his possession. The learned judge found against the appel- 25
lant on these two issues and I think he was right. Condition (1) of
the policy reads : "The insured shall take all due and proper precaution
for the safety of the money in transit." Quite a lot of argument was
adduced as to whether or not the appellant had devised a reasonable
system to ensure maximum security of the money whilst in transit. I 30
think that on the balance of probabilities the system was reasonably
safe. It had proved sufficiently safe and reliable on past occasions
when Fattallah and this same driver had transported huge sums of
money from the appellant's bank to the Bank of Sierra Leone. However,
I consider that condition (1) ought to be construed as meaning 35
that, even allowing for the existence of a reasonably safe system, the
person in charge of the money (Fattallah) ought to keep a vigilant eye
on the minute-to-minute operation of the system. In other words
there was a continuous duty cast upon him, metaphorically speaking,
to keep the money in his sight from one moment to the next until its 40
final deposit at the Bank of Sierra Leone. He did not do so. He
THE AFRICAN LAW REPORTS
to the purchase price, and although the plaintiff had repaid the amount
borrowed from her father, she had spent the money on building
materials to repair her mother's house which the plaintiff had
Case referred to:
(1) Gissing v. Gissing,  2 Ch. 85;  1 All E.R. 1043; on appeal,
 A.C. 886;  2 All E.R. 780, applied.
10 McCormack for the plaintiff;
Mrs. Harding for the defendant.
The plaintiff's claim against the defendant is for a declaration
15 that the land and premises known as No. 44 Soldier Street, Freetown
belongs to him in fee simple absolute in possession and for all necessary
and proper consequential orders and directions.
In the particulars the plaintiff described the land in dispute and
stated that the defendant was his wife according to native law. He
20 further alleged that the whole of the purchase price for the property
was paid by him and that the defendant contributed nothing. The
plaintiff further requested the court to alter the deed of conveyance
for the property by deleting the name of the defendant therefrom.
The defendant denied that the plaintiff paid the whole of the
25 purchase price for the property and alleged that it was bought and
owned jointly by both parties. By way of counterclaim the defendant
claimed a half share of the said property on the ground that it was
bought and owned jointly by the plaintiff and herself.
In the reply to the counterclaim the plaintiff admitted that he
30 borrowed money from the defendant's father but said that he had
fully repaid the loan and that if the defendant had spent money at
all on the said property it was his money.
At the hearing the plaintiff and two witnesses gave evidence on
his behalf. The plaintiff said that he married the defendant according
35 to native law and custom in 1949 and that they lived together from
1949 to December, 1963 when the defendant left the house. The
plaintiff, who was a merchant seaman, said that he and the defendant
had five children together. He had a second wife in the house and
as a result of a quarrel between himself and the latter, the defendant
40 left the house.
The plaintiff continued that he bought the house at Soldier Street
LAHM v. LAHM, 1970-71 ALR S.L. 27
on November 12th, 1953 from a Mr. Spaine, an auctioneer, for £450 or
Le900 and that he deposited £200 or Le400 the same day. The owner
of the house was one Coleridge Jones who he said gave him a receipt
for £200 in the presence of Mr. Spaine. The receipt, Exhibit A, was
made out in favour of the plaintiff and after he had paid the balance 5
the conveyance was executed. This is Exhibit B, in which both
parties were recorded as purchasers of the property. The plaintiff
explained that he allowed the defendant's name to be included because
he was pleased that the defendant had had children by him. He
maintained that the defendant did not contribute towards the purchase 10
price, and that in 1957 when he returned from sea and was paid up
he improved the property. He withdrew from his savings £40 or
LeBO which he gave to the defendant and told her that they should
demolish the kitchen which was made of corrugated iron sheets and
erect a better building. The work was not complete when he returned
from sea and he requested a Mr. Metzgar to prepare a plan for the
improvement of the building. He bought all the building materials
and paid the workmen, and after the defendant had left the house
he installed a private water supply and electricity.
The plaintiff agreed that he borrowed £160 from the defendant's
father in 1953 towards the purchase of the property but said that on
his return from sea the defendant informed him that her father was
unwell and suggested that he should give her father some money.
He said that he gave her £60 to hand over to her father on the understanding
that it was against the debt. He gave her a fmther £4 25
towards medical expenses for her father. He said that he spent about
£1,900 on the improvement of the house, workmanship not included,
and that he paid the workmen weekly. He built the house in sections
as and when convenient and he started to build in January 1963 and
completed in 1967. The defendant was in the house when he com-
menced building the basement but she had left before he completed
the top floor. He said that he gave the balance of £100 of the loan
to the defendant after the death of her father in the presence of a
witness and that he gave the defendant £20 to start a trade but that
when he returned from sea she told him that the money had been
stolen from her. He tendered 27 receipts and invoices of amounts
expended by him on the building of the house up to 1963 when the
defendant was still in the house and said that he had incurred further
expenditure after the defendant had left the house.
The plaintiff agreed in cross-examination that he had commenced
the action after the defendant had taken out a summons against him
TilE AFRICAN LAW REl'OHTS
for maintenance, and that he did not support the children because
they did not visit him, and further that the defendant traded in fish
and palm oil.
[The learned judge reviewed the evidence of the witnesses for the
5 plaintiff, and then the defendant's evidence, in which she alleged
that £500 was needed to buy the house and of this sum the plaintiff
had contributed £160, £ 160 was borrowed from her father, and she
had contributed £180 herself. She had been in business since she
left the plaintiff and had been solely responsible for the maintenance
of the children. The learned judge continued: ]
I observe that at least 19 of the receipts tendered by the plaintiff
were dated between January and March 1963. Some were made out
in the plaintiff's name and the others were mostly bills of sale but
they would not be considered as conclusive evidence that the amounts
were advanced by the plaintiff from his own savings or that he was
the owner of the property.
Exhibit B is a document which speaks for itself. In it both the
plaintiff and the defendant were described as purchasers and that can
only carry the meaning that they are joint owners of the property.
20 No other document was tendered to replace that exhibit. The
plaintiff's explanation was that the conveyance was prepared in both
their names because he was pleased that she had children for him.
It is therefore clear according to his own evidence that there was no
mistake or misrepresentation. Despite this fact I must say that I
believe the defendant when she says that the purchase price was
made up of the plaintiff's contribution, her own contribution and the
loan obtained from the defendant's father. The proper test to be
applied is : Has the defendant made a substantial contribution towards
the purchase of the property? Although the plaintiff says that he
repaid the loan obtained from the defendant's father, he admitted that
he got the money when he required it.
The plaintiffs witness, Massaquoi, said that he was present when
the plaintiff returned £100 to the defendant through Mammy Fangeh.
The defendant did not deny that the plaintiff returned this amount
after the death of her father but said that she used the amount to
purchase materials to repair her mother's house at Lungi. Some of
the materials she said the plaintiff took in her absence and wheri -asked
to return them he promised to do so, but failed to fulfil this promise.
Mosemeh Sujoh, the defendant's witness, said that the plaintiff took
40 the materials from him in the absence of the defendant and promised
to return them. This witness said that he did some work for the
LAHM "· LAHM, 1970-71 ALR S.L. 27
defendant at Soldier Street for which she paid him £60 and purchased
all the materials. He said that he repaired the house of the
defendant's mother at Lungi.
Another witness for the plaintiff, one Sulaiman Zokar said that he
first built a lavatory for the plaintiff and the second floor of the main
house in 1965 for which he was paid £150 for work and materials.
That was after the defendant had left the house.
The plaintiff_ and the defendant were married according to native
law and custom from 1949 to December 1963, a period of 14 years,
during which they had five children. It seems somewhat natural for
the wife to expect some security in the form of a house owned by
them. to provide some financial help for the children, if need be, in
future years. The plaintiff did not deny that since the defendant left
the home in 1963 he had not contributed towards the maintenance
of the children. This is when the question of the defendant engaging
in business seems relevant because she was responsible for the school
bills although the plaintiff drew rents from a portion of the property.
' The judgment of the Court of Appeal in Gissing v. Gissing (1)
went much further than the facts in the present case. It was held
that a wife who worked most of her married life and paid for her own
and her sons' clothing and for some of the furniture and equipment
and house-keeping, but did not contribute directly to the purchase of
a house conveyed to her husband or to the mortgage instalments was
'nevertheless entitled to a half share interest in the house and to half
the proceeds of the sale after the marriage broke up. Where a couple
by tllis joint effort bought a property intending it to be a continuing
provision for them for their joint lives, the prima facie inference from
this conduct was that the property was a family asset in which each was
f)i1 titled to an equal share. It mattered not in whose name it stood
.or who paid for what or who went to work or who stayed at home,
~f both contributed to it by their joint efforts and each had made
substantial financial contribution. The prima facie inference was that
it belonged to them both equally.
In the present case the conveyance was made in the joint name of
the plaintiff and the defendant and this has not been contradicted.
Taking the evidence as a whole I hold that the plaintiff failed
to prove .his claim and it is therefore dismissed.
As regards the counterclaim I hold that plaintiff and defendant
owned jointly the property at 44 Soldier Street, Freetown and that
defendant is entitled to a half share of the said property.
Suit dismissed; counterclaim allowed.