HIGH COURT, CAPE COAST
Date: 19 DECEMBER 1972
EDWARD WIREDU J
CASES REFERRED TO
(1) Summey v. Yohuno [1960] G.L.R. 68; affirmed [1962] 1 G.L.R. 160, S.C.
(2) Abenyewa v. Marfo [1972] 2 G.L.R. 153.
(3) Yeboah v. Tse (1957) 3 W.A.L.R. 299.
(4) Atuahene v. Amofa, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 154.
(5) Larbi v. Cato [1959] G.L.R. 35.
(6) Kwan v. Nyieni [1959] G.L.R. 67, C.A.
(7) Manu v. Kuma [1963] 1 G.L.R. 464, S.C.
(8) Santeng v. Darkwa (1940) 6 W.A.C.A. 52.
(9) Ayiwah v. Badu [1963] 1 G.L.R. 86, S.C.
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NATURE OF PROCEEDINGS
ACTION by the plaintiff to enforce the directions of her deceased husband made in his samansiw. The
facts are fully set out in the judgment
COUNSEL
S. Annancy for the plaintiff.
G. K. Acquah for the defendant.
JUDGMENT OF EDWARD WIREDU J.
By her writ of summons issued out of this court on 15 February 1972, the plaintiff claims against the
defendant as follows:
“A declaration that the plaintiff is entitled to:
(1) An uncompleted two storey building situate at Jukwa Road, adjacent to House No. E.49/4, Jukwa Road, Cape Coast.
(2) A share in the rents collected from the outhouse of House No. E.49/4 Jukwa Road formerly occupied by the plaintiff and her husband J. W. Armah after deduction of rates and taxes.
(3) All moneys in the savings bank accounts at the Standard Bank of West Africa Limited, belonging to the late J. W. Armah.
(4) An equal share with the defendant in the post office savings accounts after deduction of N¢200.00 for other beneficiaries. Such dispositions having been made to the plaintiff by the late Jacob William
Armah by samansiw native will.”
In her supporting statement of claim filed some time later, the plaintiff pleaded that before the death of her husband, the late Armah, the latter called in the plaintiff and the defendant who is the sister of the late Armah and in the presence of Rev. Mr. Sekyiama of the Anglican Church, Cape Coast, one Blankson now deceased, a cousin of the late Armah, and one Arkhurst a very good friend of the late Armah, and made the following dispositions in accordance with native customary law and usage:
“(3) That upon his death, the defendant should live in that part of my outhouse occupied by my mother.
The other part which I occupy should be rented and its proceedings used partly in paying house rates
and taxes [and in making] ample provision for my mother and the balance shared by my wife and
sister.
(4) The late Armah also asked that his savings at the Standard Bank of West Africa Limited should be given to the plaintiff for the completion of his house then being constructed.
(5) The late Armah bequeathed his new house, referred to in paragraph (4) (supra) to the plaintiff and her children.
(6) The late Armah directed that out of his savings at the Post Office Savings Bank, N¢50.00 should be
given to his family; N¢50.00 to the defendant’s children; N¢50.00 to his three children at Nkum and
N¢50.00 to Christ Church and that the balance was to be shared between the plaintiff and the
defendant.
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(7) The late Armah asked that the plaintiff and the defendant should be responsible for the administration of his properties.
(8) Both the plaintiff and the defendant accepted the bequests and thanked the late Armah. They promised further to abide by the wishes of the late Armah who requested that the said dispositions should be reduced into writing by Rev. Mr. Sekyiama. This was done and the late Armah signed the document.
(9) Soon after the said dispositions the late Armah was operated upon and he died shortly [after] at the hospital.
(10) At final obsequies of Mr. Armah, Rev. Mr. Sekyiama brought the intentions of the late Armah to the notice of the family gathering and prayed that the wishes should be followed. The defendant agreed to this but said that in so far as the dispositions were concerned the late Armah asked her to collect the moneys at the bank and the post office for her exclusive use. The plaintiff however insisted that the wishes as stated by Rev. Mr. Sekyiama were the ones given by the late Armah and as the defendant had accepted the same and promised to abide by them she could not now have her own way.
(11) The defendant has since been collecting the rents from the house and has been making use of the proceeds without paying the plaintiff’s share to her.
(12) Wherefore the plaintiff claims as per her writ of summons.”
The defendant for her part denied the plaintiff’s claim and in her statement of defence pleaded the
following:
“(1) Paragraphs (1) and (2) of the plaintiff’s statement of claim are admitted.
(2) The defendant stoutly denies paragraph (3) of the plaintiff’s statement of claim and states that during the whole period of her late brother’s confinement in hospital she never at any one time met with all the persons mentioned in paragraph (3) of the plaintiff’s statement of claim. Consequently, the defendant denies that her late brother made the dispositions as alleged in paragraph (3) of the
statement of claim and will put the plaintiff to strict proof of the averments therein.
(3) Paragraphs (4), (5), (6) and (7) of the plaintiff’s statement of claim are denied and the defendant will require strict proof of those averments.
(4) The defendant denies paragraph (8) of the statement of claim and states in further answer thereto that she never at any time accepted and thanked her late brother for the alleged dispositions and that the alleged document prepared by Rev. Mr. Sekyiama is fictitious.
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(5) The defendant admits that at the final obsequies of her late brother, Rev. Mr. Sekyiama made certain statements concerning the properties of the late Armah but that she immediately challenged Rev. Mr. Sekyiama to produce evidence of the alleged customary disposition but he could not produce any.
(6) Save as herein expressly admitted the defendant denies every allegation contained in the plaintiff’s statement of claim as if the same were set out in detail and denied seriatim.”
On 9 May 1972, the following issues were set down as the issues for trial in this case:
“(1) Was any `samansiw’ (native will) made by the late Armah?
(2) Were any dispositions made in favour of the plaintiff?
(3) Is the defendant estopped in any way from denying the dispositions made to the plaintiff?
(4) Is the plaintiff entitled to the reliefs sought?”
The plaintiff’s case as testified to by her reads as follows: “I am at the moment doing no work and I stay in Cape Coast. I knew the late William Jacobs Armah, he was my husband. He died on 7 July 1970 at the Cape Coast Central Hospital. We were married for about 40 years before his death. There are four issues of our marriage, one boy and three girls. All our children are grown-up. My late husband died when he was on admission at the hospital. He was on admission for about five weeks. I used to visit my late husband twice a day when he was on admission. I remember that one morning when I visited my husband at the hospital, he told me that he had been informed that he was going to be operated upon. He told me that when I went home I should invite Rev. Mr. Sekyiama to go and see him. I therefore went and gave the message to Rev. Mr. Sekyiama.
When I later visited my husband in the evening of the same day round about 4 p.m., I asked him whether Rev. Mr. Sekyiama called to see him and he told me that he did but he asked him to go and come back in the evening when both the defendant and myself would be present. When my late husband was telling me this there was nobody present. Some time later the defendant came to the hospital and my late husband informed her that he was going to be operated upon and that he had invited Rev. Mr. Sekyiama to meet both the defendant and myself to discuss his property. My late husband further told the defendant in my presence that if he did not survive the operation, his uncompleted house should be given to myself and my children, and that his other apartment of the outhouse where his mother was living be handed over to his mother and that the defendant should go and stay with his mother if she so desired in the other rooms of the apartment. My late husband further said that the other apartment of the outhouse
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in which he was staying with me should be let out to tenants so that his mother could be maintained out of the part of the rents accruing and that the balance be shared between myself and the defendant, after payment of tax, rents and other incidental expenses. My late husband further directed me to complete the uncompleted storey house with money deposited in his name with the bank. He further stated that he had a savings account at the post office out of which he directed that ¢50.00 be given to his nephews and nieces, ¢50.00 to the family, ¢50.00 to be given to his three children at Nkum and ¢50.00 to the Anglican Church. At this juncture Rev. Mr. Sekyiama arrived and my husband asked him to excuse him for a while.
Rev. Mr. Sekyiama therefore retired to the other side of the hospital. My late husband ended by saying that the balance left out of his savings with the post office after paying all those he had directed should be shared equally between the defendant and myself. I cannot tell the exact point where my late husband got to when Rev. Mr. Sekyiama arrived, but I remember that he came in when my husband was talking to us about the disposition of his property when he was asked to excuse us. After telling us what to do with his property he invited Rev. Mr. Sekyiama in and after exchanging greetings my husband told Rev. Mr. Sekyiama that he was going to be operated upon and he could not tell whether he was going to survive the said operation; it was therefore his wish that whatever he said should be taken down in writing as testimony of his last wishes. He told Rev. Mr. Sekyiama that what he wanted done with his property was what he was telling both the defendant and myself and that he wanted to repeat the same so that he recorded it down. I saw Rev. Mr. Sekyiama produce a paper and a pen and started writing as my husband spoke to him in the English language. All the directions given to the defendant and myself as to how his property was to be disbursed were given in the Fante language but the recording on the paper by Rev. Mr. Sekyiama of what my husband said was in the English language.
After taking down what my husband had directed he read it over to my husband. After my husband had approved of the contents Rev. Mr. Sekyiama told my husband that he was going to have the instructions typed so he left with the document. I can read and write. I heard all that my husband dictated to Rev. Mr. Sekyiama. I heard him say that his uncompleted storey house should be given to myself and my children. I heard him tell Rev. Mr. Sekyiama that one of the outhouses be given to his own mother and that if the defendant so desired she should go and stay with his mother in that outhouse. He told him further that the other outhouse in which he was staying with me should be let out to tenants and the rents used in the following way: (a) part of the rent to be used to maintain his mother, (b) part to defray rates and other incidental expenses in connection with the building
[p.399] of [1973] 1 GLR 393
and (c) the balance to be shared, between the defendant and myself. He told Rev. Mr. Sekyiama that he had some money saved with the bank which should be given to me to complete the storey house. He stated further that he had some savings with the post office which should be disbursed in the following way: (a) ¢50.00 to his nephews and nieces, (b) ¢50.00 to the family, (c) ¢50.00 to his three children living at Nkum and ¢50.00 to the Anglican Church, Cape Coast, and the balance left should be shared between myself and the defendant. Those were the instructions I heard my husband dictate to Rev. Mr. Sekyiama. The outhouse is actually in my possession. The mother of my husband occupies one apartment of the building. My late husband died about twelve days after disposing of his property in the manner described above. Whilst my late husband was making the dispositions the defendant did not say anything. I also did not say anything.
Whilst my late husband was giving instructions as to how his property should be disposed of to the defendant and myself, Mr. Blankson a cousin of my husband and Mame Awonaba, an aunt of my husband were present. This woman was sitting by a table as my husband was talking to us. One Mr. Arkhurst also came in at the time when my husband was dictating to Rev. Mr. Sekyiama. There was another girl around in the evening who was sent to call Rev. Mr. Sekyiama. This girl is called Rebecca Aggrey. There were some other people whom I did not take notice of. My husband died at the hospital and after burial there was a funeral and thanksgiving service. After the thanksgiving service, the whole family met on a Tuesday in the deceased’s house. At that meeting were the defendant, Mame Awonaba, Tuakwahene, the head of my husband’s family, myself, my brother and three of my children. When we were assembled at the meeting Rev. Mr. Sekyiama arrived there with two envelopes and told the gathering that when the late Armah was at the hospital he directed him to take down certain instructions as to the disposition of his property in the event of his death and added that the directions of the late Armah which he took down were contained in the envelopes. He then asked the gathering whether they wished that he read the contents or that they would like
to read the documents themselves. One Mr. McCarthy asked that the envelopes be handed over to him to enable him to read the contents. Rev. Mr. Sekyiama therefore gave one of the envelopes to Mr. McCarthy.
Rev. Mr. Sekyiama later informed us that he was going to deposit the other envelope in court. Mr. McCarthy opened the envelope and read and interpreted the contents of the document. When the document was read the contents were exactly what I heard my husband dictate to Rev. Mr. Sekyiama. After the contents were read, the defendant got up and said that was
[p.400] of [1973] 1 GLR 393
not what her brother instructed. The defendant said that her brother (the deceased) directed that she should be given the money at the bank and the post office. Another member of the family called Mame Ayisiwa got up and said the deceased had other children and that the rooms were going to be shared amongst all the children of the deceased. One Sophia Blankson got up and offered to share the rooms. The meeting thus turned into confusion. The defendant then started pouring insulting words on me and charged that I had conspired with Rev. Mr. Sekyiama to forge a will. Some time later one Mr. Yorke and another man came to tell me that they had been sent by the head of the family to inform me that a document was to be read in the court and that I should from that day cease from collecting rents in the house. A date was fixed for the reading of the document in court. When the appointed day arrived, I went to the court and present were the defendant and other members of the family. The document was read by the registrar and the contents were the same as the
one read at the meeting in the house of the deceased and the same as I heard dictated to Rev. Mr. Sekyiama by my late husband. The defendant has made it difficult for me to take my share of the dispositions made by my late husband so I caused a summons to be issued to enforce my claim. It is not true that on the day when the document was prepared the defendant was not there. Present also were Blankson and Mame Awonaba.”
The plaintiff called in support of her case seven witnesses. The plaintiff’s first and second witnesses,
Henry Arkhurst and Rebecca Aggrey both supported her about what happened at the hospital on the
afternoon. Henry Arkhurst testified that on that day he saw both the plaintiff and the defendant present; that he saw Rev. Mr. Sekyiama sitting on the unoccupied bed nearest to the late Armah taking some dictation for him, and that the late Armah was at that time sitting up in his bed. He said that from where he was standing he did not hear what was being said. He further testified that there were other persons around but he did not take good look at them. Rebecca Aggrey also testified that on that afternoon when she visited the late Armah who had been her landlord, she saw both the plaintiff and the defendant with the late Armah. She testified that she was later invited to call in Rev. Mr. Sekyiama who was already in the hospital ward. She testified about those present as follows:
“Before I went to call in Rev. Mr. Sekyiama the following persons were by the bedside of the late Armah, three women and a man. The women were made up of the plaintiff, the defendant and an elderly woman whose name I do not know.”
The plaintiff’s third, fourth and fifth witnesses were the aunt, the daughter and the brother of the plaintiff respectively. They also testified about the events which took place in the seventh week of the death of the
[p.401] of [1973] 1 GLR 393
late Armah when the family gathered to perform customary rites. They all testified that on that day the defendant was appointed to succeed her deceased brother and that on that same day exhibit A the
document containing the alleged declaration was read. Then came finally Rev. Mr. Sekyiama who
testified as follows:
“I am the Archdeacon of the Anglican Church, Cape Coast, and I live in Cape Coast. I know the plaintiff and I know the defendant also. I knew the late Armah. He was a member of the Anglican Church. I remember that some time in June 1970 the late Armah was on admission at the Cape Coast Hospital. When the late Armah was at the hospital I visited him twice before his death. I know the plaintiff as the wife of the late Armah. The defendant was introduced to me as the sister of the late Armah when I visited him one day in the
hospital. On 24 June 1970 about mid-day, the plaintiff came to tell me something. As a result of what the plaintiff told me I went to the hospital to see the late Armah. When I went, the late Armah told me that he wanted me to take down in writing his dying wishes. The late Armah told me that he was going to be operated upon and feared he might not survive the operation. He further told me that I should go home and come back in the evening when he would be expecting the plaintiff and the defendant to visit him. I therefore returned home and went to the hospital again about 4 p.m. that same day. When I went to the hospital I met both the plaintiff and the defendant there with the late Armah. The late Armah then introduced the defendant to me as his sister. Apart from the plaintiff and the defendant there were other visitors. The late Armah after introducing the defendant to me told me to excuse them for a while. I therefore retired into the main ward.
Some time later a certain lady came and called me and I went to the bedside of the late Armah. When I got there the late Armah sat in his bed and said ‘I want you to put into writing what I have already told my wife and sister.’ The bed nearest to that of the late Armah was empty so I sat on it. After which the late Armah started dictating his wishes to me. After the dictation I read over what I had taken down in writing to him because I was not sure whether he could read my handwriting properly. After approving of what had been taken down I promised to send back to him a type written form of his wishes, so that he could read the same.
The following day I sent to the late Armah at the hospital, an original and a copy of the typed instructions. When I gave the two to him he put on his glasses and read both documents. After reading the documents the late Armah instructed me to alter the name of Barclays Bank to that of Standard Bank of West Africa which I did on both documents by cancelling the Barclays and putting in Standard Bank of West Africa. After correcting the Barclays in the documents I went back home and typed the whole instruction afresh. On the following day I went again to the
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hospital with the retyped wishes of the late Armah. When I went there I gave the two documents to him, he put on his glasses and read through the two documents. He approved of the contents and signed underneath the two documents. I also took the thumbprint of late Armah in order to avoid any further doubt. I also signed the two documents in his presence. After this the late Armah told me to keep the documents without informing anybody. He added that if he came back alive I should give the documents back to him. The late Armah further told me that if he did not survive the operation I should give one of the documents to the head of his family and another one to the head of the plaintiff’s family. After this I prayed that he survived the operation. I thereafter enveloped the two documents and took them away. Some time in July of the same year the late Armah died. On the day when a thanksgiving service was held for the late Armah I went to the deceased’s house where I met the head of his family. I told him about the documents in my possession but he asked me to keep them as the day was a busy one. On the Tuesday after the thanksgiving service I was invited to the house of the deceased where the family had gathered to celebrate customary rites. When I got there I saw the head of the family and some of the senior members sitting by a table. I whispered to the head that I had brought the documents and handed over the two to them. Both documents were opened and
contents read aloud. I cannot remember who read the document but I remember it was one Mr. McCarthy who got the documents from me. After the documents had been read, Mr. McCarthy requested me to take the documents and have them deposited in court which I did. [Witness identifies a document shown him as being the original typed copy of what was dictated to him as identification 1.] Every word in the body of identification I except the heading was dictated to me by the late Armah. After depositing identification 1 in court I went back to the house of the deceased and asked leave to go home.”
On being cross-examined by counsel for the defendant, Rev. Mr. Sekyiama said:
“On my two visits to the hospital I saw other patients of my church and visited them also. Apart from the nurses at the hospital I did not see anybody with the late Armah when I went to see him after the message to me by the plaintiff. When I met the plaintiff and the defendant in the evening when I went to the hospital as requested by the late Armah, they were both standing by the bed. When I went near the bedside of the deceased, the defendant was introduced to me. I did not take notice whether any of those I met were talking.
When I went to the hospital in the evening, the late Armah was sitting in his bed. When I was invited back to the bedside of the late Armah both the plaintiff and the defendant were still there.
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There were other people among whom I recognised, a Mr. Arkhurst. All the three persons I have named were around when the late Armah started dictating to me. The late Armah dictated in the English language to my hearing. I was busy engaged in taking down dictation so I did not take notice whether other people came in. It is not correct that in the presence of both the plaintiff and the defendant the late Armah did not dictate anything to me. It is also not correct that I did not take typed copies of the wishes of the deceased to him to sign. When I was leaving the hospital both the plaintiff and the defendant were still with the late Armah.”
On being cross-examined by the court he said, “When the document was read I heard murmurings but I did not take notice of what was being said.”
The case for the defence was provided by the defendant herself and three other witnesses. These
witnesses included Mame Awonaba as the defendant’s first witness and she is one of those persons the
plaintiff claimed to be present at the time of the declaration. The other two men were maternal cousins of the defendant. Both the defendant’s first and second witnesses testified that on one of their visits to the hospital to see the late Armah they were there with the plaintiff when Rev. Mr. Sekyiama arrived.
According to them when Rev. Mr. Sekyiama arrived the late Armah asked them to excuse him as he had something to discuss with Rev. Mr. Sekyiama, so they both retired to another part of the hospital ward leaving the plaintiff, Rev. Mr. Sekyiama and the late Armah. According to them they were away for about ten minutes when the hospital bell rang so they decided to come and tell the deceased that they were leaving. When they got near where the deceased was they saw that Rev. Mr. Skyiama was still there so they invited the plaintiff and gave her the message that they were leaving. The defendant’s first witnesstestified that when they returned later she saw that the defendant had joined them whilst the defendant’s second witness testified that only the three were still there. The defendant’s first witness in cross-examination had this to say:
“I know that after the death of the late Armah an inventory of his property were taken. I was not present when the inventory was being taken. The defendant is the daughter of my elder sister. The occasion when the Rev. Mr. Sekyiama came to meet us at the hospital was in the afternoon. It is not correct that when Rev. Mr. Sekyiama came to the hospital both the plaintiff and the defendant were already at the hospital with me. I do not know one Rebecca Aggrey. I do not know one Mr. Arkhurst. It is not correct that when the plaintiff’s sixth witness arrived the late Armah asked him to excuse him whilst he spoke to us. I did not engage either the plaintiff or the defendant in conversation when
[p.404] of [1973] 1 GLR 393
I went to tell the late Armah that we were leaving. The defendant was on the verandah and the plaintiff was in the room by the window facing the deceased. I have never heard that the late Armah directed the defendant to take his money in the bank and the post office. I heard that Rev. Mr. Sekyiama came to read a document but I do not know what happened at the meeting. I later heard that the document contained a direction that the deceased’s house was to be given to the plaintiff. I also heard that when the document was read the defendant objected that there was no directions from her brother that the house be given to the plaintiff. The defendant was appointed to succeed the deceased on the Monday after the thanksgiving service
and not on the Tuesday. It is not correct that I am deliberately hiding the truth from the court. It is not correct that when Rev. Mr. Sekyiama arrived at the hospital the late Armah was telling us about the disposition of
his property. I noticed that the bed nearest to that of the late Armah was empty. I am not staying in the house of the deceased.”
Both the defendant’s first and second witnesses testified that they were always together whenever they
visited the deceased at the hospital. It is significant to note that of all the persons mentioned by the
plaintiff as being present at the time of the disposition she is the only one who is a non-family member of the deceased in the customary acceptation of the word and as might be expected was the only witness who testified as to the dispositions. But the plaintiff was supported in some measure by her other witnesses.
The plaintiff’s first witness’s evidence supports her version about the presence of the defendant when the late Armah was dictating to Rev. Mr. Sekyiama. This was just some time after the alleged declaration.
The plaintiff’s second witness’s evidence supports the plaintiff’s version that Rev. Mr. Sekyiama was
invited to the bedside of the deceased after the deceased had personally sent her to go and call the Rev. Mr. Sekyiama who was engaged elsewhere in the same hospital ward. The plaintiff’s second witness’s evidence also lent some support to the plaintiff’s assertion that Rev. Mr. Sekyiama had earlier on called at the bedside but the deceased asked him to excuse them. The plaintiff’s second witness’s evidence further supports the plaintiff’s version that at the time of the declaration those present were four in number by the bedside, namely, three women and a man. The plaintiff’s third, fourth and fifth witnesses support her version that after exhibit A was read the defendant cut in and said that the contents of the exhibit did not reflect what her brother told her, but that her brother told her that she, the defendant, should have all the moneys in the bank and the post office Rev. Mr. Sekyiama’s evidence supports her version that what was dictated to him was what the deceased had told them earlier on, and the contents of exhibit A itself supports the contents of the dispositions as testified to by her.
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I must state here that exhibit A by itself cannot be said to be written evidence of the samansiw so as to be accepted as such since the witnesses were not made to attest the same, but its contests are admissible as containing the dying declarations of the deceased. It is also significant to note that the details about the properties contained therein could not have come from any ordinary person except someone who was closely associated with the deceased as to know the exact or more detailed information about the deceased’s property. I am satisfied that the contents of exhibit A could not have come from any other person that the deceased himself.
A critical examination of the case for the defence reveal: (a) an admission by the defendant herself that she on one afternoon at the hospital was present with the plaintiff, Rev. Mr. Sekyiama, the defendant’s first witness and the plaintiff’s first and second witnesses; (b) an admission that after exhibit A had been read she cut in to state that her late brother did not tell her what had been read but that her brother told her one afternoon when the plaintiff had left them to see a Mr. Mayne that she should take the moneys in the bank and post office and maintain their mother and (c) admission that this statement was made at the time when her brother told her that he had been informed of an impending surgical operation. It is significant to note that the defendant in her evidence testified that she met Rev. Mr. Sekyiama on three occasions at the hospital and that on all the occasions save the last one, she saw Rev. Mr. Sekyiama praying but she later stated that on the last occasion it was the Rev. Mr. Sekyiama who came to meet her. It is also significant to note that her evidence about meeting Rev. Mr. Sekyiama and her first witness, Mame Awonaba at the hospital on one of her visits is not supported by the evidence of Mame Awonaba who testified that she saw Rev. Mr. Sekyiama there only once and that on that occasion the defendant was not present at that time but she later came to find the defendant having joined the others with the deceased when she was coming to tell the deceased that she was leaving. This goes to show that Mame Awonaba could not have been there with Rev. Mr. Sekyiama when the defendant arrived. The defendant’s evidence
about what the plaintiff is alleged to have said at the time of taking the inventory of the deceased’s
property about a will cannot be true since she admitted herself that exhibit A was read before the
inventory was taken. Mame Awonabe, the defendant’s first witness, denied being present at the time of the taking of the inventory contrary to what the defendant testified. On this issue about the taking of the inventory I prefer the plaintiff’s version that she was present from the beginning to the end to the version of the defendant as supported by the defendant’s third witness because of the inconsistencies in the defence version and also because the plaintiff’s version is more in accord with accepted customary practice. There was also a conflict between the defendant’s first and second witnesses as to the presence or otherwise of the defendant when they both returned to tell the plaintiff that they were leaving the hospital on that day. It is of a further significance that the
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defendants main objection to the contents of exhibit A was that it did not state that she should be given the moneys in the bank and the post office. I do not think the contents of the actual declaration as testified to by the plaintiff and supported by exhibit A was twisted in any way because Rev. Mr. Sekyiama the writer has no personal interest in the disposition. Moreover the evidence shows that the late Armah satisfied himself as to the contents before approving the same, and Rev. Mr. Sekyiama was also careful enough to have the declaration typed to enable the words to be readable.
In the result I find the plaintiff’s story more consistent with the true account of what happened on that
afternoon. I therefore accept her evidence that prior to the arrival of Rev. Mr. Sekyiama the late Armah made the declarations testified to by her in the presence and to the hearing of herself, the defendant, the defendant’s first witness and the late Blankson. I also find as a fact that the contents of the declarations are exactly the same as were dictated to Rev. Mr. Sekyiama by the late Armah and embodied in exhibit A.
I accept the evidence of Rev. Mr. Sekyiama that the late Armah, prior to the dictation, told him that what he was going to dictate to him had already been told to the plaintiff and the defendant and that they represent his dying wishes. I also accept the evidence of the plaintiff’s second witness that she was the person who was called to invite Rev. Mr. Sekyiama by the deceased. I reject the defence story that no declarations were made by the deceased on that day. I also reject as untrue the evidence of the defendant that his late brother directed her to collect the moneys in the bank and at the post office. The defendant’s story is full of contradictions and inconsistencies and therefore unworthy of any credit.
It was submitted on behalf of the defendant that granting the plaintiff’s story to be true, the evidence
adduced did not satisfy the customary law requirements of samansiw. Learned counsel founded his argument on the oft cited formulation by Ollennu J. (as he then was) in Summey v. Yohuno [1960]
G.L.R. 68 and argued strongly that (a) the number of witnesses present were not enough to satisfy the
publicity aspect of the requirement and (b) that the absence of aseda or acceptance on behalf of the
beneficiaries invalidated the bequests. Counsel finally submitted that in any case the plaintiff having
assumed the burden of proving her case and not having been able to call all of those alleged to have been present to testify on her behalf her action should fail.
Mr. Annancy in a contrariwise submission argued on behalf of the plaintiff that on the particular facts of this case the presence of the plaintiff and the defendant alone was enough to satisfy the requirement that the declaration ought to be made in the presence of witnesses. Learned counsel submitted that at the hospital where the deceased was, it was quite impossible for him to have arranged for a bigger gathering.
Founding himself on the more recent case of Abenyewa v. Marfo [1972] 2 G.L.R. 153, counsel submitted that the case law on the subject does not appear to be certain. Counsel therefore invited me to come out with
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my own views on the matter. Learned counsel however viewed the requirement of aseda as out of place and inconsistent with the nature of the gift.
I have in my judgment already preferred the plaintiff’s version of the facts to that brought by and on
behalf of the defendant. The question now is do the facts of the instant case as provided by the plaintiff and her witnesses satisfy the customary law requirements of samansiw? This question obviously can be answered by first ascertaining what those requirements are. There exists a wide divergence of views among the textbook writers and the known decided cases on the subject at the moment. In order, therefore, to be able to ascertain what the customary law requirements are, a careful and critical review of the present state of the law as provided by the textbook writers and the case law is necessary.
To begin with, it will be convenient to deal with the textbook writers to find out the areas of agreement
and disagreement and attempt to see whether there can be any reconciliation made and also to see how the various views of the textbook writers have been affected by the case law.
In his book Fanti Customary Laws (2nd ed.) at pp. 97-98 Sarbah stated the following in relation to a gift and samansiw: “Death-bed dispositions, known as Samansiw, seem to be recognized, not so much because of any assumed right to make such a disposition, as because, from feelings of affection, respect, or even superstition, the last wishes of the deceased are considered to be entitled to weight, among the members of his family. And this idea runs through the Customary Law relating to testamentary disposition of property . . .
The owner of self-acquired property can in his lifetime deal with it as he pleases, and where he intends to give the whole or a portion of it to his child by a freeborn wife, Adihiwa, or to any person not a member of his family, he does so before his death. As soon as he dies, his successor is entitled to all the property he died possessed as heritable and ancestral estate, subject to the usual rules of inheritance; of course the successor may give heed to the expressed desires of the deceased, who may have been so taken ill suddenly as to have been unable to accomplish his intention respecting the disposal of his property.
Where the owner of self-acquired property gives testamentary directions as to its disposal among the
members of his family, who thereby take such property as heritable or ancestral property, the person, who would otherwise have succeeded to the deceased, cannot ignore such dispositions, and the persons benefited have a right to enforce such bequest.”
It is significant to note from the above that Sarbah recognises the right of the owner of self-acquired
property to make an unfettered alienation
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of his said property. He also recognises the enforceability of any testamentary directions by such owner at the instance of the beneficiaries of the bequests. There however seems to be some contradiction when he said in the first paragraph (supra) that samansiw seem to be recognised not so much because of any assumed right to make such dispositions but because of feelings of affection, etc. which carry weight among members of the family. This view is difficult to reconcile with what he says later about the dealings by owners of self-acquired property during their lifetime. It looks as if in one breath he recognises that such property can be dealt with without reference to the family and that thereby take such proper whoever benefits can enforce his claim whilst in another breath he recognises the family’s inherent right to have a say. From the above quotation of Sarbah however the following points emerge:
(a) that samansiw is a death-bed disposition,
(b) that it can be made only in respect of the self-acquired property of the deceased,
(c) that the disposition must represent the dying wish of the deceased, and
(d) that such dispositions are enforceable.
What is not clear from Sarbah is the right to dispose of the property without reference to his family. On this point the present view of all the decided cases favours the right of the owner of self-acquired property to deal with it the way he likes without reference to his family. See Yeboah v. Tse (1957) 3 W.A.L.R. 299 per Ollennu J. at p. 301 approved and adopted in Atuahene v. Amofa, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 154.
Dr. Danquah at p. 198 of his book Akan Laws and Customs had this to say about testamentary
dispositions: “Testamentary disposition (unwritten) is in fact known, but the will of a deceased member is subject to the approval of senior surviving members; consequently, if it is desired, for instance, to make someone beneficiary of an estate, the donee must be given an opportunity of possessing and owning that estate during the donor’s lifetime.”
Rattray in his book Ashanti (1923 ed.) at pp. 238-239 dealt with samansiw as follows:
“[T]here undoubtedly grew up a recognized method by which a man, with the full consent as usual of his family, could leave by a verbal gift or will, taking effect during his lifetime or after his death, a portion of his land to his son. This procedure, known as samansie (lit. that which is left by the spirits), has been described to me as follows:
A man, prior to his death, calls his kindred round him and informs them that he wishes to leave a piece of land – it will only be a small portion of the whole – to one of his sons. If the abusua agree, then the son will bring a small offering of gold dust and
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rum called aseda (thank-offering), and this is divided among those present, including witnesses. Of the latter there must be at least one . . .
The samansie was only legal when the members of the family agree to the transfer of the title, for without this consent, and the presence of a witness, such alienation would not have been binding. Nevertheless, the practice shows that not only was the idea of testamentary disposition not wholly unknown but that it was possible under certain circumstances and within very carefully defined limits for a father to leave his son a small portion of his real estate.”
Finally Professor Bentsi-Enchill in his book Ghana Land Law formulated the requirements at pp. 196-197 as follows:
“(a) the customary law permitted the making of testamentary dispositions concerning self-acquired
property; (b) that only a portion not exceeding half of such self-acquired property could be so
disposed of in favour of persons not regarded as members of the lineage – though there was more
freedom where the dispositions were in favour of members of the lineage; (c) that so far as gifts to
non-members of the lineage were concerned the assent thereto of the testator’s family was necessary;
and (d) that there had to be witnesses to the making of an oral will and that some members of the
family had to be among these witnesses.”
Professor Bentsi-Enchill also adverted to the aseda requirement but did not seem to consider it as an
essential requirement.
It is difficult to appreciate the views expressed by both Danquah and Rattray on the subject and it is
difficult to say whether the formulation of Professor Bentsi-Enchill represents the true position of the law.
There is a considerably wide area of agreement amongst the three writers, but it is doubtful even whether the areas of agreement can be accepted without question. The views expressed by them might have represented the law on the subject in its original form but certainly not the present state of the law in this second part of the twentieth century.
It is unfortunate that in the more recent case of Abenyewa v. Marfo [1972] 2 G.L.R. 153, Taylor J. had
cause to lament on the present unsatisfactory and inadequate state of the formulation of the essential
requirements as enumerated in Summey v. Yohuno [1960] G.L.R. 68, yet in his able attempt to formulate more embracing and acceptable requirements he failed, with respect, to escape some of the criticisms which he cogently and validly made against the formulations in the Summey case (supra). The Marfo case (supra) did not give due consideration to the development of the customary law and appeared to have advocated for the resurrection of the old customary law notion which places fetters on the rights of an individual to deal with his self-acquired property in any way he pleases during his lifetime. The
[p.410] of [1973] 1 GLR 393
notion has long been exploded and is quietly resting with its proponents in their graves.
Taylor J., as I have adverted to above, found the formulation in the Summey case inadequate and used the materials of the textbook writers as the basis for criticising the same but, with respect, failed to consider the reasonableness or otherwise of some of the views held by the textbook writers which cannot find place in the modern concept of the twentieth century customary law jurisprudence. In his able task of reviewing what the textbook writers say on the subject, Taylor J found a common area of agreement amongst the textbook writers and the case law when he said at pp. 160-161:
“Samansiw and gifts inter vivos are inter-related; probably it is because in the past the inter-relation has been glossed over by the textbook writers that it has not been easy to formulate the requirements of a samansiw with any clarity. Now samansiw would seem to be nothing but a specie of gift to take effect after death. It is an oral will and where it involves a property disposition to a stranger, it is like a gift by a person made contingent on his death under certain circumstances; hence to understand samansiw properly, the basic requirements of a gift must also be appreciated. This must obviously be the reason why Sarbah merely stated the practice without making attempts at any precise formulation having elsewhere in his book (supra) dealt at length with gifts. Samansiw must be taken in my view as an oral will.”
Taylor J. succeeded in giving a careful analytical review of the subject but as pointed out above he did not succeed in escaping some of the criticisms he made against the formulations in the Summey case. His view that Ollennu J. did not disclose the source of his material is with respect too much of a
generalisation to justify the stand he took against that case. Textbook writers have no exclusive prerogative to make the law. Cases also make the law. Cases like Larbi v. Cato [1959] G.L.R. 35 and
Kwan v. Nyieni [1959] G.L.R. 67, C.A. which advanced and stretched the customary law notions of
acquisition of property by individuals and the rights of members of the family other than the head to deal with family property under certain circumstances respectively and a host of others like Manu v. Kuma [1963] 1 G.L.R. 464, S.C. were not decided on any materials provided by textbook writers or decided cases. At times common sense dictates the law.
I must not here be understood to be defending the formulation of Ollennu J. in the Summey case. My
stand on this point is the view I hold that a common sense approach to solving some issues involving
custom is far better than existing views of textbook writers especially where the latter have no area of
common agreement. I have no doubt that in formulating the essential requirements in the Summey case Ollennu J. (as he then was) had in mind the now well-settled law of inter-relations between gifts inter vivos and samansiw, for it is clear from the plaintiffs
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claim in that case that she brought the two into light for the consideration of the court.
Since it is undisputed that the first decided case which attempted any formulation of the essential
requirements of samansiw with any certainty is the Summey case (supra), it is submitted that a start from that point will afford a clear examination of the case law on the subject. In that case at p. 71 of the report Ollennu J. (as he then was) formulated the following as the requirements:
“(1) the disposition must be made in the presence of witnesses, who must hear what the declaration is and must know its contents;
(2) the member of the family who would have succeeded the person making the will, had the latter died intestate, must be among the witnesses in whose presence the declaration is made, and
(3) there must be an acceptance, by or on behalf of the beneficiaries, indicated by the giving and receiving of `drinks’.”
The next case which deserves consideration and in which the formulation in the Summey case was
considered with some modifications and in which some observations were also made on the requirements is the case of Atuahene v. Amofa, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 154. Then finally the Marfo case (supra) in which Taylor J. at p. 167 formulated the following:
“(1) Only the self-acquired property of a testator of sound mind can be disposed of by samansiw;
(2) The disposition must be made in the presence of witnesses one of whom at least it seems must be a
member of the testator’s family, and the witnesses must be told that the bequests are his samansiw to
take effect after his death;
(3) The family of the testator must know and consent to the disposition.
(4) There ought to be an acceptance of the gift evidenced by the offering of aseda or the exercising of acts of ownership or any act from which an acceptance can be inferred depending on the circumstances of the case.”
In the latter case the Atuahene case (supra) was not considered. Since Taylor J. appeared to have
formulated his requirements after due and careful examination of the case law and the textbook writers, let us examine how far he succeeded in attempting to formulate more comprehensive and acceptable requirements. As I have earlier stated, Taylor J. in Marfo’s case opened himself equally to some of the criticisms he legitimately made against the Summey formulation. The Marfo case did not seem to have approached the problem from more practical and progressive angles. There can be no doubt about the soundness of the first requirement as formulated in Marfo’s case, since
[p.412] of [1973] 1 GLR 393
no one can give that which he has not. The second requirement which is a modification of the second
formulation in the Summey case did not reflect the Court of Appeal’s decision in the Atuahene case
(supra). In the latter case this is what the Court of Appeal per Akufo-Addo C.J. had to say on the second requirement in the Summey case:
“As regards the need for the presence of members of the family, I think one has to interpret this requirement in the light of the same judge’s other pronouncement on the disposition of elf-acquired property in the case of Yeboah v. Tse (1957) 3 W.A.L.R. 299 at p. 301, where he said: `According to native custom a man can dispose of his self-acquired property without reference to his family. All that is necessary is that publicity should be given to the transaction, for example, the sale and conveyance must take place in the presence of his family.’ The law as thus stated must apply equally to dispositions by samansiw with perhaps the qualification that in the case of samansiw it may be necessary ex abundantia cautela to have some member of the family present.”
The third requirement in the Marfo case cuts across the now well- settled principle that the owner of
self-acquired property has a right to deal with his property the way he likes without reference to his
family during his lifetime and seems to reject the accepted fact that samansiw has most attributes of gifts inter vivos notably, publicity and the owner’s unfettered right of alienation.
For some time now the customary law has undergone considerable changes. Its application has been
subject to principles of equity, natural justice, good conscience, statutory enactments and the decisions of the superior courts. The effect of the applications of these principles has revolutionalised some aspects of the old customary law notions, with regard to dealings with individual’s property. Notable among these are the cases of Yeboah v. Tse (supra) and Larbi v. Cato (supra). The requirement of the family’s consent to perfect any form of alienation is no longer good law and is now dead and buried. No attempt should
therefore be made with respect to resurrect it. With this apart, that requirement does not reflect the present social changes which are now apparent in the Ghanaian society about modes of acquisition of property which are unlike the past when individual members of the family had to till portions of family land and at times even with the substantial assistance from members of the family. The development of money economy has introduced other means of assisting in the acquisition of wealth so that it will be contrary to reasoning to enforce the claim of the family to have a say in respect of property, when they may even not know how it was acquired.
Finally on the last requirement, Taylor J. accepts in the Marfo case (supra) that aseda is not an essential requirement. I personally share the view that aseda is not an essential requirement for the following reasons in addition to what has been quoted above.
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Sarbah at pp. 80-82 of his book Fanti Customary Laws (supra) has this to say about gifts:
“Gift consists in the relinquishment of one’s own right and the creation of the right of another, in lands, goods, or chattels, which creation is only completed by the acceptance of the offer of the gift by that other. . .
The acceptance of a gift may be made publicly or privately, having regard to the nature of the gift; but the acceptance of a gift, consisting of immovable property, must be invariably made with as much publicity as possible. Acceptance is made –
(i) By rendering thanks with a thank-offering or presents, alone or coupled with an utterance or
expression of appropriating the gift; or
(ii) Corporeal acceptance, as by touching; or
(iii) Using or enjoying the gift; or
(iv) Exercising rights of ownership over the gift.
In this country gifts invariably clothe themselves with the semblance of a sale, and therefore, where
formal acceptance is wanting, the owner can take back his gift.
Gifts, in the European sense of the term, as far as regards immovables, seem to be unknown here.
If the donee is in possession, either alone or jointly with the donor before the gift, the continuance of his possession is sufficient without any new delivery, provided the donee expresses his acceptance in the manner set forth in (i) above.
Every gift when completed is irrevocable, except in gifts between parent and child, which can be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declarations.
A gift is not rendered invalid—
(a) By being made in contemplation of death and subject to a conditional right of resumption in case of the donor’s recovery;
(b) By being made dependent on a contingency; or
(c) Because the donee is a minor, provided some one on his behalf makes the necessary acceptance, or
(d) Because it is voluntary.
Anything given in return for a gift, as a token of the acceptance, cannot be recalled so long as the original gift is in the possession of the original donee.”
It is significant to note also that Sarbah states that any gift when completed is irrevocable except gifts
between parent and child which can be revoked or exchanged at any time by the parent in his lifetime or by his will or dying declaration. It is significant to note also that Sarbah states that anything given in return for a gift as token of acceptance cannot be revoked so long as the original gift is in the possession of the donee. This portion seems to suggest that anything given in return for a gift as a token of acceptance is only given when
[p.414] of [1973] 1 GLR 393
possession of the gift is given to the donee. If this view is correct then since samansiw takes effect after
death aseda becomes necessary if at all only when the beneficiary is given possession of the bequest. This also seems to have been the view expressed in Atuahene’s case (supra) where the Court of Appeal per Akufo-Addo C.J. said:
“The local court dismissed the plaintiff’s claim because in the first place the allegation of samansiw was not proved, and in the second place, the children gave no ‘aseda’ (thank-offering) when the family gave them this land (i.e. Bodjukroso farm and forest land). This latter finding would be sound if the children were not infants. The court further held that the ‘aseda’ of £G2 7s. paid by Kramo Amamah on his appointment as successor was only in respect of that appointment. In so holding the local court completely overlooked the fact that Kramo Amamah’s appointment as successor’ was in essence an appointment as guardian (or trustee) of the infant children in accordance with the last wishes of the deceased and since his appointment conferred on him no beneficial interest in the property, the payment of ‘aseda’ could only mean payment made on behalf of the infant children who alone had beneficial interest in the property.”
It is clear from the above that both the trial local court and the Court of Appeal were of the view that aseda was payable to the family at the time of giving possession to the beneficiaries. This view seems to be the commonsense approach to the issue of aseda. One of the essences of offering aseda is to seal
customary transactions. A samansiw like all wills must be capable of being revoked if the declarant in
anticipation of, immediate death survives longer and wishes to do so. The right of the declarant to revoke the same should not be fettered by the offer of aseda, hence the need to ignore the offer of aseda. But more important, a samansiw unlike gifts inter vivos is made on a sorrowful occasion, when the witnesses listen with grief to the dying wishes of the declarant who must be looking towards a journey to an unknown world. At times his wishes are received by the affectionate ones present in tears. Under such circumstances mundane things of the world are out of place and nobody thinks of offering aseda on such a sorrowful occasion. I think the need for aseda to validate a samansiw is far-fetched and not countenanced by customary law which is presumed to recognise only that which is reasonable in the circumstances of the particular occasion.
With regard to the other alternatives to aseda proposed by Taylor J. in the Abenyewa case (supra), i.e.
“the exercising of acts of ownership or any act from which an acceptance can be inferred depending on
the circumstances of the case,” I fail to understand why Taylor J. gave any considerations to them. He
seemed to have been influenced by the views expressed by Danquah and Rattray. He, however, failed to appreciate that these alternatives cut across the accepted view that samansiw takes effect after death which he himself accepts. How can
[p.415] of [1973] 1 GLR 393
a beneficiary then exercise acts of ownership in respect of property which is to come into his possession only after the death of the donor? Moreover a customary samansiw is invariably made through third persons when the beneficiaries may not be present to offer any such acceptance. It is difficult to reconcile the view expressed by Taylor J. that the absence of aseda will not invalidate the disposition with his inclusion of aseda in his formulation as an essential requirement.
A further criticism against the Marfo case is the view held by Taylor J. that samansiw is not akin to the
Roman donatio mortis causa. This view is not supported by Sarbah who states at p. 97 of his book Fanti Customary Laws (supra) that death-bed dispositions are known as samansiw. Sarbah further seems to draw a distinction between wills and dying declarations at pp. 80-82 where he deals with the
circumstances under which a gift can be revoked. Taylor J. himself seems to acknowledge this when in
his example to illustrate the unreasonableness of the requirement of aseda he cites a man on his death-bed.
In any case the Court of Appeal in Atuahene’s case (supra) per Akufo-Addo C.J. expressed its view in the following way:
“Samansiw as the name implies (it is an Akan expression which literally means `a ghost behest’) is a
disposition of property which takes effect after death, and it is the customary law mode of testamentary disposition. In its origin it is akin to donatio mortis causa in English law. Like all customary transactions samansiw is a verbal disposition and requires publication for the purpose of perpetuating the testimony thereof.”
The only oral will known to customary law proper is the death-bed disposition. Other forms of gifts to
take effect after death are said to be ordinary gifts conditioned upon death and these are not the same as a samansiw even though the effectiveness of going into occupation in both is the same.
It could be seen from the above analysis that both the Summey and the Marfo cases do not, with respect,accurately state the formulation of the essential requirements. What I have therefore been able to deduce from the above analytical examination of the textbook writers on the subject alongside with the case law are the following:
(a) The declaration must be made in anticipation of death; i.e. it must be a death-bed declaration or the declarant must be in immediate fear of death;
(b) The declaration must be in respect of the self-acquired property of the declarant;
(c) The declaration must be made in the presence of witnesses (preferably including some members of
the declarant’s family);
(d) The witnesses present must hear the subject-matter of the declaration and understand it as
representing the dying wishes of the declarant, and be able to know who received what in order to
testify about the same.
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These formulations enumerated above do not only take into account the present development of the law relating to alienation of self-acquired property, but are supported by the decision in Santeng v. Darkwa (1940) 6 W.A.C.A. 52 at p. 53.
From the above formulations, I find on the evidence of the plaintiff that:
(a) the declaration was made at a time when the late Armah was in immediate fear of death due to his
impending surgical operation;
(b) that the declaration was made in the presence of and to the hearing of the plaintiff, the defendant,
the defendant’s first witness, Rev Mr. Sekyiama and the late Blankson;
(c) that the contents of the declaration are what the plaintiff testified to and are supported by exhibit A;
(d) that the declaration reflects the dying wishes of the late Armah.
As to the contention by learned counsel for the defendant that the persons present were not enough, I have no hesitation in rejecting that submission. The law which requires the presence of witnesses does not lay down any minimum requirement. Each case must then be determined on its own particular facts, and in the instant case having regard to the place where the event took place, I think even two persons should be held to be enough.
As to the failure on the part of the plaintiff to have called the defendant’s first witness Mame Awonaba, I think that contention is untenable for quite apart from the fact that Mame Awonaba, the defendant’s first witness, gave evidence in this case for the defendant and therefore put the plaintiff’s credibility in issue, there is no law which enjoins a plaintiff to an action to call all material witnesses if he or she knows that the interests of such witnesses are at variance with hers and that they are not likely to testify on her behalf, and especially in the instant case when all those alleged to be present and to have heard the declaration have a common interest with the defendant and especially also as the defendant’s first witness had made her stand known prior to the issuing of the plaintiff’s writ of summons. On the other hand, the case of Ayiwah v. Badu [1963] 1 G.L.R. 86, S.C. is an authority for the proposition that it is competent for a court to accept the evidence of a single witness and found judgment on it even though his testimony is contradicted by his or her opponent.
In the result, I find the plaintiff’s claim proved and hereby grant her the reliefs sought save her claim (2) which cannot be legally enforced for uncertainty. Costs in favour of the plaintiff are assessed at ¢175.00.
DECISION
Judgment for the plaintiff
S. Y. B.-B.
