ABENYEWA AND ANOTHER v. MARFO AND OTHERS [1972] 2 GLR 153
HIGH COURT, KUMASI
28 APRIL 1972
TAYLOR J
CASES REFERRED TO
(1) Santeng v. Darkwa (1940) 6 W.A.C.A. 52.
(2) In re Anaman (deceased) (1894) Sar.F.C.L. 221.
(3) Summey v. Yohuno [1960] G.L.R. 68; affirmed [1962] 1 G.L.R.160, S.C. (4) Akele v. Cofie [1961] G.L.R. 334.
(5) Saarah v. Asuah [1962] 1 G.L.R. 535.
(6) Ocran v. Bandafoo (1873) Sar.F.C.L. 210.
(7) Lintott Brothers v. Solomon (1888) Sar.F.C.L. 122.
(8) In re Otoo (deceased) (1927) D.Ct. ‘26-’29, 84.
(9) Nelson v. Nelson (1932) 1 W.A.C.A. 215.
(10) Yamuah v. Sekyi (1936) 3 W.A.C.A. 57.
(11) Brobbey v. Kyere (1936) 3 W.A.C.A. 106.
(12) Mmeh v. Appawu (1952) D.C. (Land) ‘52-’55, 54.
(13) In re Abakah (deceased) (1957) 3 W.A.L.R. 236.
(14) Coleman v. Shang [1959] G.L.R. 390, C.A.
(15) Omane v. Poku [1972] 1 G.L.R. 295.
(16) Tuowa v. Apontua (1914) D.C.A.L. 38.
(17) Yao v. Kome (1945) D.C. (Land) ‘38-’47, 179.
(18) Eleko v. Officer Administering the Government of Nigeria [1931] A.C. 662; 100 L.J.P.C. 152; 145
L.T. 297, P.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of a district court wherein it was adjudged that the respondents were entitled to a portion of a cocoa farm belonging to their deceased father. The facts are fully set out in the judgment.
COUNSEL
Osei Kwaku for the appellants.
A. T. Amankwah for the respondents.
JUDGMENT OF TAYLOR J.
The plaintiffs-respondents hereinafter called the plaintiffs, all minors, sued the defendants-appellants hereinafter called the defendants per their mother and next friend Akosua Akyirem at the District Court, Mampong. Their claim endorsed on their application for the writ of summons is formulated as follows:
[p.156] of [1972] 2 GLR 153 “The plaintiffs’ claim is for a share of cocoa farm left behind by the late Kwadwo Pensan (the father of the plaintiffs) for his whole children, of which the first and second defendants have refused to give to the plaintiffs their due share. The farm in question is lying, situate and being at Oponso in the Wassaw Traditional Area commonly known and called Bobkrom valued about N¢300.00.”
The first defendant is the head of family and the second defendant is the son of the said deceased. The plaintiffs by their next friend, their mother, led evidence touching the facts grounding their claim. The relevant portion of her evidence is as follows: “I know Dora Marfo, Afua Sarpong and Francis Antwi. They are my children. My husband was called Kwadwo Pensan who is now deceased. When Pensan married me he took me to the bush where I made a farm with him. It was a cocoa farm. After making the farm Kwadwo Pensan divorced me and the children went back to their father Pensan. Pensan told me that he had divided the farm into two and that he had given half of the farm to all his children who are the issues of his three wives including myself. Dora Marfo the
first plaintiff was in Kumasi at the time and Pensan called her and put the matter before her. The second defendant who is also the son of Pensan told Dora Marfo to go back to Kumasi and return on holidays so that he could take her to the farm to show her the cocoa farm. Dora Marfo was unable to meet the second defendant when her father Pensan died. Later the first defendant and the second defendant told me that Pensan gave half of the cocoa farm to the children of his two wives, viz: Afua Eto and Afua Dabre excluding my children. I could not understand this so I reported the matter to Kyekyewere Odikro. The odikro and his elders met the first defendant and the second defendant including myself, but the first defendant and the second defendant refused to allow the odikro to go into the matter and said I should take the case to anywhere I liked. The farm in question is lying at Oponso in the Wassaw Traditional Area commonly known as Bobkrom. The value of the farm is about N¢300.00. My children Dora Marfo, Afua Sarpong and Francis Antwi are entitled to half portion of the farm together with the children of the other two wives. I took action against the first defendant and second defendant to claim a share of the cocoa farm for my three children.” Under cross-examination by the first defendant she said inter alia, “it is correct that Pensan did not inform you when he gave the farm to the children of the three wives.” She further admitted as follows when cross-examined by the second defendant, “Pensan did not inform the members of the family about the gift before he died.” [p.157] of [1972] 2 GLR 153
The evidence of the next friend touching the intention of the deceased to make provision for the plaintiffs, his children, found corroboration in the evidence of a witness for the plaintiffs a friend of the deceased and the Odikro of Daaho who deposed as follows:
“About three years ago Pensan called me to come one evening. Pensan told me that his sister called Akua Broneh has been worrying him about the cocoa farm which was cultivated by the deceased’s late uncle Kofi Dum. Later Pensan told me that I should accompany him to the cocoa farm at Oponso which he cultivated himself so that he could divide the farm into two so that he could give half to his children. A week after our meeting I accompanied Pensan to his farm at Oponso. As a result of the death of my brother I returned to the village and left Pensan in the farm. When I returned to Oponso Pensan told me that he had demarcated the farm and divided it into two, and that he is giving half to the relatives and half to all his children.”
The cumulative evidence of the second defendant is that about four years before his death the deceased became sick. The second defendant on the instructions of the deceased made a farm for the deceased. Later the deceased told his wife, the next friend and mother of the plaintiffs to assist him in cultivating the farm. After the wife had left the deceased, the deceased asked the second defendant to divide the farm into two. The relevant evidence as to what happened is contained in the following deposition of the second defendant:
“My father Pensan asked me to divide the farm into two. He said I should take half of the farm and leave the other farm to him. Later Kwasi Sarpong and Kwasi Wuo went to the farm with my father and divided the farm and demarcated it. He divided it into two. My father informed the first defendant about the division of the farm into two. My father informed the members of the family that he had given half of the cocoa farm to me and asked me to go and call Akosua Akyirem and her children. They did not attend the meeting. My father told the first defendant that he had given half of the cocoa farm to me and my brothers Kwadwo Antwi, Kwasi Baah, Kofi Dum and Yaw Kensan. My father also said that the remaining half of the cocoa farm which belongs to him should be divided into two and half is given to Madam Afua Eto one of his wives and her children who are Attakora, Adjoa Dankwa, Yaa Brenya, Akosua Gyafo, Adjoa Agyeiwaa and Kojo Boakye. Since Akosua Akyirem did not attend the meeting with her children, my father did not tell themeeting about his gift of the cocoa farm to them. After that he left the meeting. Pensan died about sixteen months ago. After the funeral the first defendant asked me to bring the customary rum, aseda for the cocoa farm given to me by father Pensan. I gave the aseda, the customary rum, to the first defendant.” [p.158] of [1972] 2 GLR 153
The evidence of the first defendant who is the head of the family and apparently the successor to the deceased is as follows:
“Kwadwo Pensan is now dead. Pensan was my elder brother. Kwadwo Pensan had three issues with Akosua Akyirem. The children of Akyirem are called Dora Marfo, Afua Sarpong and Francis Antwi. I am the head of the family. Kwadwo Pensan was sick for four years and he died. Kwadwo Pensan told me that I should give half of the cocoa farm to the relatives and a portion of the remaining half to the second defendant and his brothers and a portion to his son, called Dankwa and his brothers and sister. I asked Pensan whether I should divide the farm before he dies. He told me that he had already divided the farm and demarcated the farm. I asked Pensan why he did not ask me to accompany him to the farm since I am the elder of the family.
Pensan told me that he went to the farm with Kwasi Wuo and Kwesi Sarpong to divide the farm and that he has demarcated the farm. He said on his death the relatives and children should bring the aseda to me. He told me that he demarcated the cocoa farm one year before telling me. I called Kwasi Wuo and Kwasi Sarpong and asked them about what Pensan told me and they confirmed it. Later Pensan died.”
The second defendant is obviously an interested party and his evidence as to the particulars of the disposition is not consistent with what the first defendant the abusuapanyin deposes as being what the deceased told him. Ignoring this part of the evidence of the first defendant and assuming that the rest of the evidence of the defendants and that of the plaintiffs is a true account of what happened, then what emerges is that the deceased probably while very sick told a meeting of members of his family that on his death, his farm should be shared as to one half to his relatives, a portion of the remaining half to the second defendant and his brothers and another portion to a son called Dankwa and his brothers and sister.
This farm he had previously demarcated in the presence of witnesses with the intention of giving half to his relatives and the other half to all his children but at the meeting the family was not informed of any portion intended for the plaintiffs. The deceased later informed the head of the family that the giving of aseda by the donees should be postponed until his death at which event the relatives and the donee children should bring the aseda to the head of the family. At the meeting the deceased sent for the plaintiffs probably to tell them in the presence of his family of the portion which he intended should be given to them after his death but they did not honour his invitation and so he did not tell his family that the plaintiffs should have a share of the farm after his death. However, he told the mother of the plaintiffs, the first plaintiff and the second defendant as well as the Odikro of Daaho that he had given half the farm to all his children and the other half to his relatives. All these persons he told of the gift are not members of his family. [p.159] of [1972] 2 GLR 153
After the death of the deceased, the plaintiffs did not receive their promised share and they therefore instituted this action. The district magistrate upon the evidence of the parties discussed above entered judgment for the plaintiffs against the defendants jointly and severally with costs assessed at ¢20.00 and made the following order:
“It is hereby ordered that the first defendant and second defendant should give a portion of the remaining half of the cocoa farm which is situated at Oponso in the Wassaw Traditional Area commonly known as Bobkrom to Dora Marfo, Afua Sarpong and Francis Antwi who are the children of Kwadwo Pensan. The remaining portions to which the children of Pensan are entitled should be shared among other children of Pensan including the second defendant after Dora Marfo, Afua Sarpong and Francis Antwi have receivedtheir share.”
The ratio decidendi is contained in the following passage of his judgment:
“On the evidence of the plaintiff’s second witness and since the first defendant stated that Pensan told him to give half of the cocoa farm to the relatives and half of the portion to the second defendant who is the son of Pensan and his brothers and a portion to Dankwa his son and his brothers and sister, I am satisfied that Pensan wanted his relatives to take half of his cocoa farm and the other half divided among his children. Since Dora Marfo, Afua Sarpong and Francis Antwi are the children of Kwadwo Pensan they are entitled to a portion of the cocoa farm since it was the intention of Pensan that his children should benefit from the other half. If it was the intention of Pensan to exclude the children of Akosua Akyirem, he should have made it plain to the family at the meeting where he asked the first defendant to give half of the cocoa farm to the relatives and the other half to the second defendant and his brothers and Dankwa and his brothers and sister. Even the second defendant in his evidence stated that his father Kwadwo Pensan asked him to go and call Akosua Akyirem and her children who failed to attend the meeting and since they did not attend the meeting Pensan failed to give the three children a portion of the cocoa farm by not telling the meeting. This indicates that if Akosua Akyirem and her children had attended the meeting Pensan would have given them a portion of the cocoa farm. Since Pensan did not tell the meeting that Akosua Akyirem and her children should not benefit from a portion of the remaining half of the cocoa farm, it is presumed that Pensan wanted his children of the three wives to share the remaining half of the cocoa farm. Since it was the intention of Pensan to give half of the cocoa farm to his relatives and the other half to all his children, and since Dora Marfo, Afua Sarpong and Francis Antwi are the children of Pensan they are entitled to a portion of the cocoa farm on the maxim ‘equality is equity’. In [p.160] of [1972] 2 GLR 153 view of this the cocoa farm should be shared among all the children of Pensan including Dora Marfo, Afua Sarpong and Francis Antwi.”
The defendants have appealed against the judgment of the trial magistrate on the grounds first, that the judgment cannot be supported having regard to the evidence and secondly, that the magistrate failed to consider properly the requirements of a valid gift under customary law. On behalf of the defendants it was also submitted that the property disposition of the deceased to the children specifically mentioned at the family meeting satisfied the customary law requirements of samansiw (customary will) and consequently, as the plaintiffs were not shown to be beneficiaries under this oral will, their claim must fail. Although the evidence shows clearly that for four years before his death the deceased was very sick, there is no evidence that the disposition of his property was made in contemplation of death. This of course does not in any way invalidate a testamentary disposition made in accordance with customary law since samansiw is not the same as the Roman donatio mortis causa for as Sarbah says at p. 99 of Fanti Customary Laws (2nd ed.):
“It is not only on the death-bed that a man can make testamentary disposition. A person can make his testamentary disposition while enjoying perfect health; but at the time it is made, the witnesses must be distinctly told by him his words are his Samansiw, to take effect after his death.” The emphasis is mine.
In this case, however, there is very clear evidence that the deceased asked the head of the family to receive aseda after his death. This clearly shows that the gift to the children mentioned at the meeting was to be contingent on the death of the deceased and to take effect after his death and I am therefore satisfied that the declaration of the deceased at the meeting was a testamentary disposition. The question is, is it a valid testamentary disposition made in accordance with customary law? This is the first question which I propose to examine in this judgment. There is in this case also clear evidence as I have already indicated that the deceased told the mother of the plaintiffs, the second defendant, the first defendant and theOdikro of Daaho that he had given half share of the farm to all his children. Does this amount to a valid gift inter vivos in accordance with customary law? This is the second question which I propose to also deal with in this judgment. The answers to the two questions will show whether the plaintiffs can maintain an action against the defendants and whether such an action can succeed or fail.
It seems to me, though, that the two questions cannot be considered independently of each other. 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 valid samansiw with any clarity. Now samansiw would seem to be nothing but a specie of gift to take effect after [p.161] of [1972] 2 GLR 153 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. At pp. 97-98 of his book (supra), Sarbah stated the practice in relation to a gift and samansiw in the following form:
“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. E.g. Kwesi, owner of Addum and Donpim lands, four bendas, a house, and twelve pieces of salagha cloth, makes testamentary disposition, bequeathing Addum land to his son Kudwo, Donpim land to his youngest niece Araba, two bendas to Aduku, his younger brother, two pieces salagha cloth to Baidu, his friend. The said Kwesi had a mother elder brother, and three sisters him surviving. By the Customary Law, his son Kudwo cannot take Addum land unless his father placed him in possession before his death; Araba is entitled to Donpim land, and can enforce her right to possess the land, she being of the heritable blood, and it is only on the failure of her issue to succeed that the other members of her family come in. Aduku also is entitled to take the two bendas, but Baidu cannot compel delivery of the two pieces of salagha cloth, if the mother, eldest brother, or the sisters refuse to deliver them to him. The owner of self-acquired property, after solemnly making his testamentary dispositions, may subsequently revoke a part or the whole of them.” The first portion herein emphasized was substantially approved by the West African Court of Appeal in Santeng v. Darkwa (1940) 6 W.A.C.A. 52 at p. 53. [p.162] of [1972] 2 GLR 153 It is to be noted that in the example given by Sarbah the bequest to the son of the deceased, Kudwo, is invalid because he was not put in possession, a circumstance that would have indicated his acceptance. It is submitted that if the son had given aseda as Rattray points out at p. 238 of his book Ashanti, the gift to the son would have been valid. Taking possession and aseda are two ways of acceptance as Sarbah himself points out in his book (supra) and this will be adverted to later on in this judgment. At p. 96 of his book (supra) Sarbah further quotes Cruickshank as saying: “ . . . death-bed declarations, made in the presence of responsible witnesses, are always received as evidence in the event of litigation afterwards.” The emphasis is mine.
The combined effect of this and the passages from Sarbah already quoted (supra) shows that if a man makes a declaration as to the disposal of his property after his death before responsible witnesses, in accordance with custom the beneficiaries can enforce the bequest. This would seem to have been assumed in In re Isaac Anaman (1894) Sar.F.C.L. 221 at p. 222 although the actual decision in that case was founded on the fact that English law and not customary law was held to be applicable. A decision which seems to be the leading authority on the ingredients of a valid testamentary disposition according to custom (samansiw) is Summey v. Yohuno [1960] G.L.R. 68. In that case Ollennu J. (as he then was) stated quite categorically at p. 71 that the essential requirements of a valid customary will are:
“(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 decision of Ollennu J. (as he then was) in this case was affirmed by the then Supreme Court on other grounds in its judgment reported in [1962] 1 G.L.R. 160; the court did not seem to have sanctioned or impugned this statement of the law concerning the essential requirements of a will valid by customary law and I do not therefore feel necessarily bound by that statement of the law. Azu Crabbe J.S.C. who delivered the leading Supreme Court judgment said at p. 163 that the “conclusions arrived at . . .” by Ollennu J. (as he then was) on the issue of whether the deceased did or did not make a will in accordance with customary law, “. . . are well-founded.” In a subsequent case Akele v. Cofie [1961] G.L.R. 334 at p. 337 Ollennu J. (as he then was) re-stated the requirements and formulated them as follows:
“The essentials of a valid samansiw are: [p.163] of [1972] 2 GLR 153
(i) the disposition must be made in the presence of witnesses;
(ii) some of the principal members of the declarant’s family must be present at its making; and
(iii) there must be acceptance by or on behalf of the beneficiaries.’
It is noteworthy that the requirements as herein stated by Ollennu J. (as he then was) vary in material particulars from the requirements previously stated by him in the Summey case (supra), where the second requirement is not the presence of some principal members of the family, but that of the member of the family who would have succeeded the testator; and the third requirement stated in the Summey case (supra) is not as stated in the Akele case (supra), mere acceptance by or on behalf of the beneficiaries, it is acceptance “indicated by the giving and receiving of ‘drinks’,” which in customary law is often referred to as aseda. Summey v. Yohuno (supra) is also reported in Ollennu’s Principles of Customary Land Law in Ghana at p. 223 and at p. 226, the essential requirements are differently worded as follows:
“(1) the disposition must be made in the presence of witnesses, who must hear what the declaration is and know its contents;
(2) members of the family who would have succeeded the person making the Will upon his death intestate, must be among the witnesses in whose presence the declaration is made; and
(3) there must be acceptance by or on behalf of the beneficiaries, indicated by the giving and receiving of drinks.”
Because of this somehow inconsistent formulation of the requirements of a valid customary will (samansiw), it is in my view difficult to accept without question, the 1960 formulation by Ollennu J. in the Summey case and it becomes necessary to examine the authorities and to elicit the principles from them; for as is pointed out by Professor Bentsi-Enchill in his book Ghana Land Law at p. 200 it is doubtful “whether there would be general agreement concerning the applicability everywhere of the requirements numbered (2) and (3) . .” in the Summey case. It is significant to note that no decided authority or textbook writers were quoted by Ollennu J. in either the Summey or Akele case in support of the formulation. The matter is of the utmost importance for in the formulations as stated, the requirements were said to be essential. This undoubtedly means that the absence of any one will make a bequest invalid as indeed happened in Saarah v. Asuah [1962] 1 G.L.R. 535 where the Summey case was followed; besides, a proper formulation of the principles governing samansiw is very essential because by virtue of section 19 (3) thereof, the Wills Act, 1971 (Act 360), does not in any way affect the validity of oral testamentary dispositions made in accordance with customary law. It is clear that the courts in this country have in the past given effect to testamentary dispositions made in accordance with customary law although what that customary law is has not [p.164] of [1972] 2 GLR 153 been specifically stated by the courts before Ollennu J.’s 1960 formulation in the Summey case. It was assumed in a number of cases: see Ocran v. Bandafoo (1873) Sar. F.C.L. 210; Lintott Brothers v. Solomon (1888) Sar.F.C.L. 122 at p. 123; In re Otoo (deceased) (1927) D.Ct. ‘26-’29, 84; Nelson v. Nelson (1932) 1 W.A.C.A. 215; Yamuah v. Sekyi (1936) 3 W.A.C.A. 57; Brobbey v. Kyere (1936) 3 W.A.C.A. 106; Mmeh v. Appawu (1952) D.C. (Land) ‘52-’55, 54; In re Abakah (deceased) (1957) 3 W.A.L.R. 236; Coleman v. Shang [1959] G.L.R. 390 at p. 402, C.A.; Summey v. Yohuno [1962] 1 G.L.R. 160 at p. 163, S.C. and Omane v. Poku [1972] 1 G.L.R. 295.
Apart from the views of Sarbah already referred to in his Fanti Customary Laws (supra), Dr. Danquah in a rather very brief passage at p. 198 of his book Akan Laws and Customs while dealing with property in general notes very casually:
“Individuals, in short, would seem to have a title of use for life to their self-acquired property, although such title of use is wide enough to cover all dealings with the property in any possible way so long as alienation or transfer takes place with the knowledge of the members of the family. Testamentary disposition (unwritten) is in fact known, but the will of a deceased member is subject to the approval of the 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 life time.”
The emphasis is mine. Rattray in his book Ashanti (1923 ed.) at pp. 238-239 dealt somehow with samansiw as follows:
“. . . there 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 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 agreed 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 [p.165] of [1972] 2 GLR 153 limits for a father to leave to his son a small portion of his real estate.”
The emphasis is mine. It seems to me that Cruickshank, Sarbah, Rattray and Dr. Danquah are either emphasizing some aspects of samansiw and ignoring others or the practice differs in the different communities which they were dealing with. It is highly improbable that the practice differs from community to community and the better opinion seems to be that substantially the same practice applies among all the Akans. This must be considered alongside the fact that samansiw is indeed a specie of gift. Sarbah at pp. 80-82 of his book Fanti Customary Laws (2nd ed.) dealt in detail with gifts as follows:
“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 on 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 Europe an 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 someone on his behalf makes the necessary acceptance; or [p.166] of [1972] 2 GLR 153
(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.” The emphasis is mine.
A number of decided cases can give guidance as to the nature of a gift and samansiw under customary law. In Tuowa v. Apontua (1914) D.C.A.L. 38 the plaintiff proved that he obtained a farm as a gift from his deceased father. The defendant as a successor to the deceased father, disputed the legality of the Gift on the ground that he was not present when the gift was made. It was held that the fact that the gift was made in the presence of accredited witnesses and that the plaintiff paid aseda was sufficient to prove the validity of the gift.
In Yao v. Kome (1945) D.C. (Land) ‘38-’47, 179 the plaintiff owned some cocoa farms which were sold in execution to A.A. promised to return the farms to the plaintiff without payment after twelve years. The promise was written and the document was witnessed by five persons including the first defendant. Before the end of the twelve years, A. died and the first defendant succeeded him. When the twelve years elapsed, the plaintiff sued for the return of the farms in accordance with the written promise. Coussey J. held that since the plaintiff did not prove that he paid aseda the promise was unenforceable. In Mmeh v. Appawu (1952) D.C. (Land) ‘52-’55, 54 Quashie-Idun J. dealt with the appeal before him in clear recognition that samansiw is a specie of gift. This was a consolidated action. The property in dispute was part of the self-acquired property of one B. The dispute turned on whether he had disposed of this property by samansiw. The plaintiffs in the first case and the defendants in the second case claimed that he had. Evidence was given that after the declaration B. demanded and received thirteen shillings from the said plaintiff to give validity to the gift and the second defendant gave rum. After the death of the deceased the second defendant took possession and remained in possession for about nine years. Holding that the testamentary disposition to the second defendant was valid Quashie-Idun J. said at p. 56:
“Concerning gifts land, I do not think that native custom lays down specifically what form the ‘aseda’ should take. It is an acknowledged fact that sometimes it takes the form of a present from the donee or just a production of drink by the donee. In the case of Kwakuwah v. Nayenna ((1938) 4 W.A.C.A. 165), it was held that the gift of a movable property should be before witnesses, some of whom should be persons who are not of the family either of the donor or the donee. There should be a formal acceptance of the gift which may be by way of a present by the donee to the donor.”
In the instant case before me it is clear that by his testamentary disposition made at the family meeting, the testator did not indicate that [p.167] of [1972] 2 GLR 153 the plaintiffs were to have a share of his farm. With regard to the declaration made to their mother, the second defendant and the Odikro of Daaho, it seems that a gift inter vivos was made but there is no evidence whatsoever as to its acceptance. Annan J.A. in the case of Omane v. Poku (supra) subjected the authorities to a close examination and came to the conclusion regarding the customary law requirement as to acceptance at p. 315 as follows:
“[T]he position now is that the original statement of Sarbah as to the various modes of acceptance of a customary law gift or real property must be held to be firmly reinstated as the dominant and true view of the law. On that basis the aseda in the presence of witnesses and in public is sufficient to constitute acceptance of the gift . . .”
With all due respect, I think the formulations in the Summey and the Akele cases are inadequate and not in accord with the full principle deducible from the textbook writers. Indeed from the text writers and the decided cases discussed herein, it is my view that the requirements of a valid customary will are as follows:
(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. Professor Bentsi-Enchill who has obviously studied the authorities and text writers very closely stated the requirements at pp. 196-197 of his book Ghana Land Law 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.” [p.168] of [1972] 2 GLR 153
He also adverted to aseda or thank-offering but he did not seem to consider it to be an essential requirement. Professor Bentsi-Enchill seems to draw attention to a significant requirement that the portion of a testator’s property which can be lawfully disposed of to strangers by his samansiw must not be more than half of his total property. This was not considered by Ollennu J. and yet it is supported by Sarbah in his book and somehow by Rattray. It seems to me very clearly that the matter needs close scrutiny as Rattray (supra) states that the portion that a man gives samansiw “will only be a small portion of the whole” and Sarbah in his book (supra) says quite emphatically at p. 99 that, “The Customary Law does not permit any person to bequeath to an outsider a greater portion of his property than is left for his family.” Now Rattray in his book (supra) states quite categorically that without the consent of the family and the presence of witnesses, samansiw will not be binding. Dr. Danquah in his book Akan Laws and Customs at p. 198 lays it down that “approval of the senior surviving members” of the family is a condition precedent to the validity of samansiw and although Sarbah is not quite as categorical as Rattray and Dr. Danquah, he also at p. 95 of his book (supra) makes this point which can legitimately be construed as his agreeing with Rattray and Danquah: “in the matter of testamentary dispositions the members of the family exercise much influence.” It seems to me therefore that the consent or approval of the family is the paramount requirement: A requirement which is significantly missing from Ollennu J.’s formulation in the Summey and Akele cases.
It is significant that Rattray in his book (supra) emphasized the consent requirement but was not emphatic on the stated requirement that a testator cannot dispose of more than half of his property. He merely said that the disposal will only be a small portion of the whole, clearly indicating that the usual practice is to dispose of part, not that it is illegal to dispose of all. Sarbah, however, in his book Fanti Customary Laws (supra) did not emphasize the consent element but rather laid emphasis on the requirement that an outsider ought not to have a greater portion than is left to the family.
It seems to me that private ownership of property as understood in English law developed only very recently in this country and that at the time both Rattray and Sarbah wrote, the process of development was still continuing. The concept of absolute individual control of property was apparently in a state of flux. Dr. Danquah, a late writer, reviews the position very competently in his book on Akan Laws and Customs at pp. 197-198 as follows:
“Under the ancient regime private ownership of movable or immovable property was not the basis of Akan political and social life. Land, the most valuable of earthly possessions, was held in common by the people, and where a head of family, chief of tribe, or king of a nation was said to own land, all that was meant was[p.169] of [1972] 2 GLR 153 that he held that land for the direct benefit of the members of the family, sections of the tribe or subjects of the national Stool. Even to-day in several Akan States this is still the law. The pursuit of wealth was followed for the sake of the family, for on the death of a wealthy member of an Abusuapong (great family) all his wealth—lands, slaves, wives, houses and all personal property—became subject to family control and disposition. The very idea of individuals acquiring wealth for absolute individual control and disposition was not as well developed as it is today.
Slaves, for instance, passed on to the successor of the deceased owner, and they could be apportioned to the senior members of the family, the actual successor taking the largest share. So also were widows disposed of. Even in a man’s lifetime he could not always regard his own acquired property—property not inherited—as under his absolute disposition, for if he wished to make valid any conveyance of his land, or gift or transfer of any particle of his wealth he could only do so with the knowledge of members of his family so that on his death the recipients could enjoy the property conveyed to them without any question from the surviving members of his family. This strict rule of law seems to be well justified under the Akan social system. For under that system it was scarcely possible for an ambitious or aspiring member of a family to amass great wealth without enlisting active financial and other support from individual members of the family. Under a practice called Nnoboadi (mutual assistance in cultivation), individual members of a family making farms or plantations enjoy the benefits of their neighbours’ services in connexion with the work on the plantation, and such exchange of services being free of financial charges, the communal system of social arrangements can still be said to predominate. Further, plantations or farms are usually made at a place where an ancestor has farmed before; houses are usually built on ancestral sites, and the people usually remain within the tribe or nation in which they were born. Thus, then, the farm or house on ancestral land becomes automatically ancestral property on the owner’s death. Individuals, in short, would seem to have a title of use for life to their self-acquired property, although such title of use is wide enough to cover all dealings with the property in any possible way so long as alienation or transfer takes place with the knowledge of the members of the
family.”
Apparently testamentary disposition was unknown to customary law at its early development but customs indeed do undergo change. Thus in the Privy Council case of Eleko v. Officer Administering the Government of Nigeria [1931] A.C 662 at p. 673, P.C. Lord Atkin observed that [p.170] of [1972] 2 GLR 153
“An interesting question arose at the hearing as to the modification of an original custom to kill into milder custom to banish. Their Lordships entertain no doubt that the more barbarous customs of earlier days may under the influences of civilization become milder without losing their essential character of custom . . . It is the assent of the native community that gives a custom its validity . . .”
Now if the consent or approval of the family is an essential requirement, then it seems odd that after the family had consented or approved of the disposal of the whole of a testator’s property by his samansiw, the same family can refuse to give effect to the bequest after his death on the ground that the whole and not part was approved. Customary law it is said contemplates the reasonable and it seems to me that this view of the customary law is not reasonable. It seems to me that whatever the position may have been in Sarbah’ days the development adverted to by Dr. Danquah in his book (supra) has by now reached a stage where a man has obviously the capacity to bequeath part or all of his property by samansiw with the consent of his family. It is obviously reasonable to expect the family to approve of or have knowledge of the bequest because on the man’s death intestate his property becomes family property.
It is therefore my view and with all due respect to those who think otherwise that the consent requirement and the requirement that not more than half can be bequeathed to a stranger cannot co-exist unless it is the customary law that the family have a right either to sanction or refuse to sanction a bequest which comprises all the testator’s property or which is more than what is left to them but that they are merely to
know but cannot refuse to sanction a bequest which is less than half of what is left to the family. Thus formulated the two requirements can co-exist. Now since the text writers are agreed on the two requirements, it seems to me that the consent requirement must be formulated as I have formulated it above in order to contain the requirement that only a small portion can be left to a person not a member of the family. It seems therefore that since the consent of the family is the overriding consideration, a testator may with the said consent dispose of all or part of his property by samansiw and therefore Sarbah’s opinion” (supra) at p. 97 that a man can dispose of “the whole or a portion” of his property represents now the true position in customary law both as regards gifts inter vivos and samansiw. A peculiar feature in this appeal is the evidence that the testator told the head of the family that the aseda should not be paid to him but should rather be paid to the head of the family after the death of the testator. Apparently, the head of the family agreed to do this and indeed he received the aseda from the second defendant after the death of the deceased and gave the property to the second defendant. This raises at once the question of the nature of samansiw and the other question as [p.171] of [1972] 2 GLR 153 to whether the failure to pay aseda is fatal to a claim by a beneficiary of a customary will.
Now the Wills Act, 1971 (Act 360), statutorily requires two persons at least to witness the execution of a will; can a testator voluntarily decide by so averring in his will that he prefers one and not two witnesses and thus privately decree that in his particular case his will thus attested to by one witness should be held valid? I think not. Yet in my view the postponing of the payment of the aseda by the testator himself and the subsequent acceptance by the family of the aseda ought not to invalidate a will under custom. Sarbah appreciated the nature of samansiw when at p. 97 of Fanti Customary Laws (2nd ed.), he said:
“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.”
This view was quoted with approval by Michelin J. in Nelson v. Nelson (1932) 1 W.A.C.A. 215 at p. 217. Aseda may therefore be a requirement but it can hardly be such a vital and essential requirement that its absence will at all times and in all cases invalidate a bequest. It would seem therefore that in the case of samansiw the most essential requirement for the validity of the gift is not so much the payment of aseda as the consent of the family. This vital requirements as I have already shown is obviously absent from Ollennu J.’s formulation in the Summey and Akele cases (supra). For instance, if a man were to call the members of his family to a meeting and while very ill and expecting to die, he told the meeting that on his death his son, a minor, should be given one of his farms and the family agreed and five minutes later the man died before the child’s mother could pay aseda on his behalf, it is difficult to hold that the next friend of the son cannot on behalf of the son enforce the samansiw. Clearly the nature of aseda in samansiw has not been properly appreciated. It seems to me that it is nothing but a requirement aimed at establishing the acceptance of the gift and in particular the consent of the family; where the consent and the acceptance can be conclusively established or proved by other means it may be that aseda will lose its significance. Sarbah in discussing samansiw in his book (supra) did not put any premium on aseda and although Rattray in his book Ashanti, p. 238 did draw attention to it, was in a context where aseda was to be expected; it is doubtful in my view whether its absence is per se fatal to the validity of samansiw. Indeed the reference to aseda (rum) in Rattray’s statement of the practice indicates that the rum is shared among the witnesses present at the declaration —a feature that evidences the acceptance and where the members of [p.172] of [1972] 2 GLR 153 the family are present it stamps their consent. Invariably in those cases where the validity of samansiw has been successfully challenged on grounds of the absence of aseda the family have impugned the transaction and thus denied their consent.
The knowledge and consent of the family would seem to be therefore the most essential requirement. Indeed in his book the Law of Testate and Intestate Succession (1966 ed.) Mr. Justice Ollennu who formulated the requirement in Summey and Akele cases remarked at p. 274:
“the strict rule of the customary law that a person shall not, without the consent of his family alienate the whole or major part of his individual property to a stranger without the consent of his family seems to have lost its strength, and been reduced to nothing more than mere knowledge, but not necessarily consent of the family.”
In the same book (supra) the learned judge dealt with the requirement adverted to by Professor Bentsi-Enchill in his book Ghana Land Law (supra) that a person cannot dispose of the whole of his property to the detriment of his family. He said at p. 282:
“Although originally a person could not dispose of the whole of his estate to the detriment of his family and dependants, in course of time the practice grew for people to dispose of the whole of their estate, particularly by will made in accordance with principles of English Law, and no one questioned the practice, so it would now appear that there is no limitation upon a person’s powers to dispose of the whole of his property to a person outside his family or dependants.”
In dealing with the consent and the disposable portions of a testator’s property, the learned judge seems to be merely expressing doubts as to whether they still continue to be legal requirements for the validity of samansiw. However, in the same book (supra) the learned judge also gave very good reasons why in customary law it is necessary at least for the family to know of the disposition when he said at p. 273 that: “[A] Ghanaian cannot clandestinely dispose of his property by any form of alienation including Samansiw, without the knowledge of his family as this would be against all principles of justice, for if he did not leave anything for his children, wife and others who by custom, are his dependants, the family will be responsible for those. If any such disposition is made the family must satisfy themselves that he is well aware of what he is doing and that he has made ample provision for his dependants, i.e., members of the family, his children and his wife.”
These reasons apply with equal force to the requirement that the family must give their consent to the disposition and as these reasons are not obsolete it is difficult to appreciate why the consent requirement has now lost its strength. The emphasized words are mine and they can have no other meaning than that the family must approve of the portion willed [p.173] of [1972] 2 GLR 153 to strangers by samansiw. For this reason I am unable with the greatest respect to accept the 1960 formulation in the Summey case (supra) devoid as it is of the consent element.
It seems to me that in this case the plaintiffs did not show that the gift by their father satisfied the requirements of a customary gift inter vivos. It was neither made public nor was there any aseda or other form of acceptance in accordance with the requirements set down by sarbah in his book Fanti Customary Laws (2nd. ed. at p. 80 et seq. Indeed the claim of the plaintiffs would seem to be that their deceased father demarcated a portion of his land and gave that portion to all his children but the gift was to take effect after his death. Since they are of the deceased they are entitled to share; but the deceased by his testamentary declaration which in myview satisfied the customary law requirements of samansiw, did not include the plaintiffs in the list of persons who were to be beneficiaries by his said samansiw. The submissions of counsel for the defendants therefore succeed and the two questions which I posed in this judgment are therefore answered. In the result it is obvious that the reasoning of the district magistrate is erroneous in law and cannot be supported; clearly on the death of the deceased a half portion of his farm became family property in accordance with his samansiw and the children mentioned by him to his family became entitled to a portion of the other half already demarcated by him in the presence of the two witnesses. The plaintiffs were not shown to be among the children mentioned to the family. In the result, the portion of the farm of the deceased if any which remained undisposed of by him became family property due to his intestacy as to that portion. To order the family as the magistrate has done to give up that which was vested in them and is theirs by law is obviously wrong in law and cannot be supported. Equally to order the second defendant to give up part of his patrimony cannot be justified having regard to the customary law requirements of a gift inter vivos and samansiw as discussed herein; and for these reasons I hold that the decision and order of the district court are wrong in law. I set aside the judgment and the order and enter judgment in favour of the defendants. Since the plaintiffs are minors and children of the deceased and were merely endeavouring to obtain what their deceased father would obviously have given them if they had answered his call, I will make no order as to cost s either in this court or the court below. The appeal is accordingly allowed.
DECISION
Appeal allowed.
S.Y.B.-B.
