ABADOO v. AWOTWI
[HIGH COURT, CAPE COAST]
Date: 19 DECEMBER 1972
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.
[p.396] of [1973] 1 GLR 393
(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.
[p.397] of [1973] 1 GLR 393
(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
[p.398] of [1973] 1 GLR 393
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
[p.402] of [1973] 1 GLR 393
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
[p.403] of [1973] 1 GLR 393
defendant were still there. 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 witness
testified 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.
[p.405] of [1973] 1 GLR 393
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
[p.406] of [1973] 1 GLR 393
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
[p.407] of [1973] 1 GLR 393
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
[p.408] of [1973] 1 GLR 393
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
[p.409] of [1973] 1 GLR 393
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 intervivos and samansiw, for it is clear from the plaintiffs [p.411] of [1973] 1 GLR 393
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.
[p.413] of [1973] 1 GLR 393
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.
[p.416] of [1973] 1 GLR 393
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.
