HIGH COURT, SUNYANI
DATE: 29TH JUNE, 1962
BEFORE: BRUCE-LYLE, J.
CASES REFERRED TO
(1) Yeboah v. Tse and Anor. (1957) 3 W.A.L.R. 299
(2) Summey v. Yohuno and Others [1960] G.L.R. 68
NATURE OF PROCEEDINGS
ACTION for declaration of the family’s title to land alleged to have been gifted by customary will to the defendant.
COUNSEL
J. Owusu-Yaw, for the plaintiff.
A. P. Peprah for the defendant.
JUDGMENT OF BRUCE-LYLE J.
The plaintiff for and on behalf of himself and the members of his family claims against the defendant:
The plaintiff for and on behalf of himself and the members of his family claims against the defendant:
(1) a declaration that he is entitled to one cocoa farm properly known as Mmetemano, situate lying and being at Kwayemkwansu on the Kenyasi No. 1 stool land and bounded by the properties of Kofi Yamoah, Okyei, Boamah, Manu and Otim;
(2) recovery of possession of the said farm;
(3) £G200 damages for trespass to the said farm;
(4) perpetual injunction.
The facts of this case as admitted by both parties are that one Kwabena Nti in his lifetime was invited by his father one Kofi Yamoah to come and live with him at Kenyasi. That Kwabena Nti whilst at Kenyasi cultivated two farms called Mpede and Mmetemano on lands given to him by his father. That he first cultivated the farm called Mpede before the Mmetemano farm which is the subject-matter of this claim. The Mmetemano farm adjoined the farm of Kofi Yamoah, the father and they had a common boundary.
The case for the plaintiff is that he assisted Kwabena Nti in cultivating these farms and the plaintiff’s uncle who is the head of the family, but who chose to be a witness rather than being the plaintiff, also gave evidence that he assisted Nti financially. The plaintiff and his witness did not know where the farms were situated until after Nti’s death when they went for the funeral at Kenyasi and were informed of the existence of these farms by Yamoah.
[p.537] of [1962] 1 GLR 535
For the purpose of this case I am taking very little notice of the evidence of the plaintiff and his uncle P.W.1 that the family assisted Nti in cultivating the two farms. The plaintiff in his evidence appeared to know very little about how these farms were made by Nti and in his evidence showed very little knowledge about where they were situated. P.W.1 Kwasi Adjei also gave evidence that he gave £G50 to Nti which amount Nti said he was going to use in making farms and that is the only evidence upon which he relied to show that the family had a share in the farms of Nti. There is, however, no dispute by both parties that these farms are the self-acquired properties of the late Kwabena Nti.
The plaintiff’s evidence in this case cannot be considered as the basis for the claim as it is very scanty and full of deliberate denials. The evidence of the uncle, however, appears to be of some substance and it is surprising that he did not sue, he being the successor, but rather authorised the plaintiff to take this action. The plaintiff being a member of the family can, however, maintain this action to recover family property. For these reasons I have decided to rely upon the evidence of P.W.1 the successor, to find out what the plaintiff’s case is.
The case for the plaintiff is that when Nti died the family of Nti were informed and they went to the funeral at Kenyasi and whilst there Kofi Yamoah, the father of Nti, informed the family of the two farms Mpede and Mmetemano and that Yamoah told the family that the farm called Mpede was for Nti’s family but that the farm called Mmetemano the subject-matter of this claim had been given to the defendant, Nti’s wife, and her children during the lifetime of Nti, and that the defendant gave aseda in respect of the gift. P.W.1, Nti’s uncle, said in evidence that he told Yamoah there and then that he did not believe it because when Nti made the gift he was not informed.
The defendant’s case is that she assisted her husband Kwabena Nti in cultivating the two farms; that after they had finished cultivating the farm called Mpede they started cultivating the Mmetemano farm and it was during the cultivation of this farm about thirteen years ago on one Sunday morning that Nti called her in the presence of Yamoah and others and told her that the farm they were cultivating was for her, the defendant and her children. The defendant then thanked Nti by providing an aseda of £G4 13s. and a half bottle of rum. This evidence as to the gift was corroborated by Kwadjo Appiah D.W.1, and Kwame Bofah D.W.2. P.W.1 the plaintiff’s uncle, also agreed in his evidence that Yamoah told him about this gift when they were in Kenyasi for the funeral, although the plaintiff denied that Yamoah ever mentioned this gift. It is unfortunate that Yamoah, the father of Nti, is not alive to help this court.
In the absence of the gift as alleged by the defendant, there is no doubt whatsoever that this farm called Mmetemano being the self-acquired property of Kwabena Nti became family property on the death of Nti. Was there a gift of this farm to the defendant? What was the nature of the gift? Is that gift valid? These are the issues to be decided in this case.
[p.538] of [1962] 1 GLR 535
The plaintiff and his uncle P.W.1 are not in any strong position to deny the fact that Nti in his lifetime made a gift of this farm to the defendant. With the evidence before this court I have no hesitation in arriving at the conclusion that there was in fact a gift to the defendant.
Was it a gift which took effect immediately, i.e. the defendant taking immediate possession, or was it a gift to take effect after death, i.e. a customary testamentary disposition of self-acquired property? An examination of the evidence of the defendant and her witness D.W.2 is of great assistance to this court. The defendant in her evidence under cross-examination said: “After the gift and up to the time of the death of my husband, my husband kept the proceeds of the farm and looked after myself and my children … When my husband was about to die he informed me that after his death I should pay aseda to Yamoah so that a deed of gift be prepared for me in respect of this farm.”
D.W.2. Kwame Bofah who appears to be older than D.W.1 said in his evidence in chief: “I sat down when Nti said he had made a farm on Kenyasi stool land called Mpede and that when he died this farm should be for the family, and that the other farm Mmetemano should go to his wife and children on his death.”
I find from the above evidence of the defendant and her witness that the gift of the farm Mmetemano was to take effect on the death of Kwabena Nti and should be considered a customary testamentary disposition.
Is this testamentary disposition valid? It is the customary law of this land that a person in his lifetime can dispose of his self-acquired property in the way he likes without reference to his family, (see the dictum of Ollennu, J. in Yeboah v. Tse and Another1(1) but such dispositions of property are valid subject to certain conditions being fulfilled. Ollennu, J. in Summey v. Yohuno and Others2(2) laid down the requirements of a customary testamentary disposition as follows:
“(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.’”
In other dispositions, such as a sale of land by one who has personally acquired the land, and also in a gift inter vivos of personally acquired property to take effect immediately or before death, the second requirement of members of the family being present need not be fulfilled, although the presence of a member of the family of the vendor or donor is desirable: see Yeboah v. Tse and Another referred to supra. The case of Summey v. Yohuno and Others does not bind this court, and I have therefore given it a very serious consideration and I am of the opinion that this second
[p.539] of [1962] 1 GLR 535
requirement must be fulfilled in the case of customary testamentary dispositions for these reasons. Sales or gifts inter vivos are always followed by user by the purchaser or the donee during the lifetime of the vendor or donor, with the result that in the event of any member of the family of the vendor or donor challenging such a conveyance after the death of the vendor or donor, evidence of possession and acts of ownership during the lifetime of the owner of the land will strongly avail the purchaser or donee, whereas the beneficiary in the case of a customary testamentary disposition made without a member of the family being present will find it extremely difficult to prove the testamentary disposition as against the interest of the family in the event of the disposition being challenged by the family as in this case.
Having held that there was in fact a testamentary disposition of the land to the defendant it is for this court to find out whether the requirements laid down in the case of Summey v. Yohuno and Others were fulfilled to make the disposition of the farm called Mmetemano a valid customary testamentary disposition. From the evidence of the defendant and her witnesses, there were witnesses to this testamentary disposition by Kwabena Nti and there was acceptance by the defendant who provided £G4 13s. and also half bottle of rum, but there is no evidence that a member of the family of Kwabena Nti who would have succeeded to him upon his death intestate was present. The absence of a member of the family at the time of the gift was the objection raised by the plaintiff ‘s uncle P.W.1 when Kofi Yamoah mentioned the existence of the gift to the family at the funeral of Nti. In view of the fact that
this essential requirement was not satisfied I am bound to hold that this testamentary disposition of the Mmetemano farm to the defendant and her children cannot be considered to be customarily valid.
I therefore hold that the Mmetemano farm is the property of the family of Kwabena Nti of which family the plaintiff is a member and his uncle P.W.2 is the head, and that the plaintiff’s family is entitled to possession.
On the claim for £G200 damages for trespass I find that the defendant occupied the farm after the death of the husband under the mistaken, though bona fide, belief that the gift to her was valid in law and that there is nothing in her act of possession worth considering as a deliberate attempt to dispossess the family of this farm. For this reason I find that the plaintiff is only entitled to nominal damages.
I, therefore, give judgment for plaintiff against the defendant for the declaration sought in the claim and for possession and perpetual injunction, and for £G25 damages for trespass. Costs for the plaintiff fixed at £G44 17s. including counsel’s costs of £G31 10s.
DECISION
Judgment for plaintiff.
