MAHAMA HAUSA AND OTHERS v. BAAKO HAUSA AND ANOTHER [1972] 2 GLR 469
COURT OF APPEAL
Date: 31 JULY 1972
BEFORE: APALOO AND BENTSI-ENCHILL JJ.S.C. AND KINGSLEY-NYINAH J.A.
CASES REFERRED TO
(1) Irons v. Smallpiece (1819) 2 B. & Ald. 551; 106 E.R. 467.
(2) Cochrane v. Moore (1890) 25 Q.B.D. 57; 59 L.J.Q.B. 377; 63 L.T . 153; 54 J.P . 804; 38 W.R. 588;
6 T.L.R. 296, C.A.
(3) Cropper v. Smith (1884) 26 Ch.D. 700; 53 L.J.Ch. 891; 51 L.T. 729; 33 W.R. 60, C.A.
(4) Ayiwah v. Badu [1963] 1 G.L.R. 86, S.C.
(5) Summey v. Yohuno [1960] G.L.R. 68; Oll.C.L.L. 233; affirmed [1962]1 G.L.R. 160, S.C.
(6) Kwamin v. Kufuor (1914) P.C. ‘74—’28, 28.
(7) Akele v. Cofie [1961]1 G.L.R. 334.
(8) Agbloe v. Sappor (1947) 12 W.A.C.A. 187.
(9) Nelson v. Nelson (1951) 13 W.A.C.A. 248.
(10) Owiredu v. Moshie (1952) 14 W.A.C.A.11.
(11) Bayaidee v. Mensah (1878) Sar. F.L.R. 171
(12) Insilea v. Simons (1899) Sar F.L.R. 105.
(13) Manko v. Bonso (1936) 3 W.A.C.A. 62.
(14) Mahmudu v. Zenuah (1934) 2 W.A.C.A. 172.
(15) Koran v. Dokyi (1941) 7 W.A.C.A. 78.
(16) Kwan v. Nyieni [1959] G.L.R. 67, C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Koranteng-Addow J. granting the respondents’ claim for a declaration of title to a property and a declaration that any purported sale of it by the first defendant is null and void.
The facts are fully set out in the judgment of Bentsi-Enchill J.S.C.
COUNSEL
U. V. Campbell for the appellants.
K. Dei Anang for the respondent.
JUDGMENT OF BENTSI-ENCHILL J.S.C.
The subject-matter of these proceedings is a parcel of land with buildings on it, known as house No. C.32 Navrongo. It was once owned by one Salifu Tailor, a Hausa man whose parents originally came from Kano in Northern Nigeria. Salifu Tailor had died some three years prior to the action without leaving any issue. The dispute arose when the first defendant, one Mahama Hausa, a cousin of Salifu Tailor, purported to sell Salifu’s said property to the second defendant, one Alhaji Seidu Kantosi, a stranger to the family. [p.473] of [1972] 2 GLR 469 The plaintiffs, who are acknowledged by the defendant to be paternal brothers and sisters of the deceased Salifu Tailor, challenged the first defendant’s right to alienate the said property and brought the action herein claiming a declaration of title to the property and a declaration that any purported sale of it by the first defendant is null and void.
This claim was hotly contested on three principal grounds, and backed up with a counterclaim for a
declaration affirming the validity of the sale and for other reliefs. While admitting that the plaintiffs are the brothers and sisters of the deceased Salifu Tailor, that the first and second plaintiffs are the eldest members of the deceased’s family and that the deceased had left no issue after him surviving, the first defendant contended that the deceased had made a gift of the said property to him before he died. As to whether this was a gift by oral will, or a straightforward oral gift inter vivos, the defence wavered somewhat between the one and the other, first pleading a gift by oral will, later amending this to an oral gift, and later seeking leave, which was refused, to amend again back to the original plea of a testamentary gift. But I do not think that much can reasonably be made concerning this vacillation between the two kinds of gift. For whether it was an oral gift or a gift by oral will would be a conclusion of law from the first defendant’s contention and evidence that it occurred in the presence of witnesses including the first and second plaintiffs who, he said, were the eldest members of the deceased’s family.
And, if validly made, as he contended, then either type of gift would have operated to prevent the
property from passing by way of intestate succession, and would have vested him with title to dispose of the property as he pleased.
The defence contended secondly that the plaintiffs had in the presence of witnesses admitted the making of the said gift by Salifu Tailor to the first defendant and that the plaintiffs were therefore estopped by their admissions from alleging otherwise and contesting the sale. It was contended further that the second defendant was a bona fide purchaser for value without notice of any defect in the first defendant’s title, a title which the plaintiffs must be held to have admitted to be valid. Thirdly the defence denied the right of the plaintiffs to bring this action even if the said property became family property upon the death of Salifu Tailor contending, in effect, that the plaintiffs neither became entitled to nor succeeded to the estate of Salifu Tailor.
These three points of dispute were all resolved in favour of the plaintiffs by Koranteng-Addow J. in the court below, in a judgment dismissing the defendants’ counterclaim and declaring: (a) that the property in dispute “is the family property of Salifu Tailor (deceased) in which the plaintiffs and their other brothers and sisters are the principal members” and (b) that “the purported sale of the property by the first defendant is null and void.” From this decision the defendants have appealed to this court on several grounds.
On the issue as to whether or not Salifu Tailor gifted the said house to the first defendant, Mr. Campbell urged as a ground of appeal [p.474] of [1972] 2 GLR 469 the contention that “the learned judge erred in law and on the facts in dismissing the counterclaim of the defendants and in holding as against the second defendant that the first defendant had no title in the property to pass”; further that:
“the learned trial judge erred in law and on the facts in failing to hold as against the plaintiffs and in favour of the second defendant that the aforesaid plaintiffs are estopped by their own admission in exhibit 2 from denying that the property passed to the first defendant entitling the latter to dispose of the same.”
Now since the property in dispute is admitted on all hands to have been the self-acquired property of
Salifu Tailor deceased, it is evident that unless it is shown that Salifu Tailor either divested himself of the said property inter vivos, e.g. by gift, or disposed of it by his will, his said property must pass to the persons entitled to succeed him upon his death intestate. A clear onus therefore lay on the defendants to prove such a disposition by Salifu Tailor in favour of the first defendant in order to succeed on their counterclaim for “a declaration that the sale of house No. C.32 Navrongo by the first defendant to the second defendant is valid and lawful.” For such a sale by the first defendant would be “valid and lawful” only if he had title to it, as he claimed, by virtue of an oral gift inter vivos from Salifu Tailor or by virtue of the latter’s oral will.
The first defendant clearly failed to prove a gift inter vivos; and I think the learned trial judge was right in rejecting his claim in this regard. His evidence, for what it was worth, could only support a claim for a gift by oral will. It was as follows:
“About 1963 Salifu contracted a disease and he died. When he was sick and before he died, he sent for me. I went and saw him at the hospital at Navrongo. I met the first and second plaintiffs at his bedside. There he told me that if he were to die his house should go to Mahama. Nobody should do anything about it. He also sent for a certain man called Alhassan.”
He did not call Alhassan to give evidence in support. And the plaintiffs denied this evidence.
So far as oral gifts inter vivos go, our courts have for a long time insisted, rightly in my view, on a
requirement for acceptance patently lacking in this evidence of the first defendant. This is the requirement that the acceptance of a gift, especially of land, must be made by the presentation to the donor of some token of acknowledgement and gratitude in the presence of witnesses. This requirement serves many purposes, and solves many problems relating to gifts. In the first place, a proffered gift which the donee does not accept is thereby prevented from becoming a gift. Secondly, where no gift was intended by a putative donor, a purported acceptance in the presence of witnesses affords [p.475] of [1972] 2 GLR 469 an opportunity for express denial of a donative intent. Thirdly, the requirement of acceptance in the presence of witnesses ensures publicity and makes the gift not only impossible or difficult to deny afterwards, but operates as a double check preventing the donor from making a gift of what is not his own, namely, family property, and preventing fraud. As a device which solves the problem of proving donative intent, it neatly obviates some of the uncertainties surrounding the issue of delivery in Anglo-American law : compare Irons v. Smallpiece (1819) 2 B. & Ald. 551; Cochrane v. Moore (1890) 25 Q.B.D. 57.t-1819) Needless to say it is because the evidence led did not support the plea of an oral gift that counsel for the defendants in the court below, sought, at the close of the evidence, to amend his pleading from one of an oral gift inter vivos, to one of a gift by oral will as originally pleaded. He sought leave to make this amendment in order, as he expressly stated, to bring his pleadings in line with the evidence adduced. This application was refused by the learned trial judge. The reason he gave is that “this proposed amendment would change the whole tenor of the case as it goes to the root of the matter.” With respect to him, I think that the amendment should have been allowed and for the limited purpose expressly stated by the defence
counsel, namely, to bring his pleadings in line with the evidence adduced. It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made and Order 28, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A), infact provides mandatorily that “all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.” The words of Bowen L.J. in Cropper v. Smith (1884) 26 Ch.D. 700 at pp. 710-711, C.A. are apposite in this regard: “[I]t is a well established principle that the object of the Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights . . . I know of no error or mistake which, if not fraudulent or intended to over-reach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace … It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of
right.” The real issue between the parties in this part of the case was the question whether or not Salifu Tailor had made such a disposition of the said property to the first defendant. The defendants had pleaded [p.476] of [1972] 2 GLR 469 and led evidence regarding a certain transaction at the sick bed of Salifu Tailor, and in the presence of witnesses. Whether this evidence proved the transaction to be an oral gift inter vivos or a nuncupative will would be essentially a conclusion of law from the evidence already adduced. The amendment sought to be made in the pleading was thus to enable the defence to argue that the transaction so evidenced amounted to a nuncupative will as originally pleaded, and not an oral gift inter vivos as later amended.
This amendment should have been allowed.
It has seemed to me necessary to comment at length on this question of practice regarding amendments because the state of the pleadings in this case at the conclusion of the trial and prior to the addresses was distinctly confusing. There had been other amendments ordered by the court at the request of each of the parties on different previous occasions. On most of these occasions the court’s order did not only effectuate the amendment prayed for; but also ordered the filing (usually) within seven days of the amended pleading. But in many cases the amended pleading was filed long after the prescribed period.
Thus, for example on 15 February 1967 pursuant to an unopposed application by the defendants for leave to amend the statement of defence by adding a counterclaim thereto in terms specified in the supporting affidavit, Annan J., as he then was, granted the application in the following terms:
“By court:
Motion granted. It is ordered that the statement of defence filed by the defendants on 17 August 1966 be amended in terms of the application. Further ordered that the amended statement of defence be filed within seven days from today, and the reply be amended within fourteen days from the service of the amended defence …”
The amended statement of defence, however, was not filed till nearly three months later, i.e. on 6 May 1967. And no defence to the counterclaim therein contained was ever filed. Some two years later, i.e. 3 March 1969, the plaintiffs filed an application to amend their writ of summons by adding after the plaintiffs’ names in the title the following statement “Suit on behalf of themselves and all other persons entitled to the estate of Salifu Tailor deceased,” and by adding similar words to the claim on the endorsement, and to paragraph 1 of the statement of claim. They also sought to amend paragraph 4 of the statement of claim by adding Kassena-Nankani custom as an alternative to the Moslem custom which they had pleaded as the custom by which they claimed to have become entitled to Salifu’s property. This application was not heard till the very day of the trial some ten months later, i.e. on 21 January 1970 when the plaintiffs’ counsel drew the courts attention to it. Koranteng-Addow J. then made the following order: “Let the writ and the statement of claim be amended in terms of the amendment filed and let the plaintiffs file a writ and [p.477] of [1972] 2 GLR 469 statement of claim incorporating the amendments within seven days.” It was on this occasion, i.e. just before the trial began, that the defendants’ counsel then applied to have the word “will” replaced by the word “gift” in his pleadings. This was not objected to by the plaintiffs’ counsel who then asked leave to make consequential amendments in the reply, substituting the word “gift” for the word “will,” among other things. Pursuant to these applications the court ordered as follows: “Let the amendments sought in both cases be granted. Let the solicitors file amended pleadings incorporating all these amendments.” The trial then followed on immediately. The amended statement of defence was filed three days later 24 January 1970, while the trial was proceeding. The amended writ and statement of claim and reply were filed on 3 February 1970 immediately after the conclusion of the trial. A fortnight later, i.e. 17 February 1970, the court heard counsel’s addresses.
The question is whether these amendments were a nullity merely because counsel had failed to file the amended pleadings within the times laid down in the amending orders. Quite clearly if the court orders had confined themselves to granting leave to amend then failure to file the amendments within the time limited must result in their becoming ipso facto void as laid down in Order 28, r. 7. But this failure to file the amendment within the time limited is not irremediable as was contended by counsel for the defendants in the court below citing Ayiwah v. Badu [1963] 1 G.L.R. 86, S.C. and concurred in by the plaintiffs’ counsel who argued similarly concerning the amended statement of defence. Order 28, r. 7 expressly leaves room for the court to grant an extension of time. And the amended pleadings already on the file could have been regularised in this way, assuming that the sought-for amendments had not in fact been made by the court and were therefore dependent on the filing of the amended pleadings in time. As can be seen from the terms of the orders actually made, however, the amendments were in each case effectuated by the court in the terms sought. The decision in Ayiwah v. Badu (supra) excepted amendments made by the court ex proprio motu. It remains only to add that amendments actually effectuated by the court pursuant to an application are also necessarily excepted. And it is to be noted that Order 28, r.12 mandatorily requires the court or judge, to make “all necessary amendments … for the purpose of determining the real question or issue raised by or depending on the proceedings.” For this purpose that rule provides that “The Court or a Judge may at any time, and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings,…” (The emphasis is mine).
Therefore, there was patent error on the part of counsel in the court below in urging the rejection of each other’s amended pleadings and proceeding on the notion that failure to file the amended pleadings within the time limited “cannot,” as Mr. Luguterah counsel for the defendants in the court below put it, “be repaired.” [p.478] of [1972] 2 GLR 469 The learned trial judge made no explicit ruling on counsel’s submissions regarding the amended pleadings filed out of time; but he must be taken to have rejected the contention that they had become void since he treats the plaintiffs as suing in a representative capacity and also expressly deals with the defendants’ counterclaim, which he must otherwise have ignored. In my view he was right to do so. It is to be observed, further, that no real harm was done by the learned trial judge’s rejection of the defendants’ application to amend their pleading on this issue of a gift inter vivos to one of gift by nuncupative will. Defence counsel in the court below felt free to submit that “even if a gift cannot be established on the evidence, the court should hold that there was a nuncupative will,” and he contended further that the plaintiffs’ subsequent conduct, particularly in making exhibit 2; proves that a will was made; and he cited in his support the judgment of Ollennu J., as he then was, in Summey v. Yohuno [1960] G.L.R. 68. These submissions of defence counsel, it is true, were held by the learned trial judge to be unacceptable because “that contradicts his case, is outside his pleadings.” But the learned trial judge nevertheless did consider these submissions, and he decided in regard to them that “no case for a devise by will in favour of the first defendant has been made out.”
Was he right in so holding? The only direct evidence given by the first defendant regarding this
nuncupative will has been reproduced above in the section of this judgment dealing with the defence
contention that there had been an inter vivos gift of the property. It will be recalled that although the first defendant says that one independent witness Alhassan was present together with the first and second plaintiffs at the making of this gift by nuncupative will, he did not call Alhassan to testify in the face of the plaintiffs’ denials in that regard.
For corroboration of his solitary evidence concerning this gift by oral will, the first defendant rather relied on the document exhibit 2. This document, the truth of whose contents was disputed by the plaintiffs, was tendered and initially accepted by the court as a document given to the first defendant by the first plaintiff. The court shortly after some evidence had been given about it, decided to reject it on the ground that “it is not admissible not complying with Order 37, r. 60.” I think, with respect, that it was admissible, and agree with Mr. Campbell’s submission in this regard. However nothing important turns on this purported rejection, because the learned trial judge allowed further evidence to be given in regard to the said exhibit and to be cross-examined upon. What is more, he dealt with it in his judgment as a document very much in evidence. Exhibit 2 is a document in English admittedly thumbprinted by the first and second plaintiffs. It reads as follows: [p.479] of [1972] 2 GLR 469 “House Claim I, Baako the eldest of all the family hereby declare that before the death of Salifu Tailor, the deceased, he Salifu told me that after his death the house should be handed over to the youngest of all the brothers, thus Alhaji Mahama; despite the fact that he is the junior.
We the undersigned elder brothers of Alhaji Mahama have therefore on this day handed the house over to him.”
On the face of it, this document appears to recite the alleged nuncupative will and to witness the
implementation of the gift of the house made thereunder. The problem, however, is that all the parties to it were illiterate in English, and there is nothing in it to show that its contents corresponded with what the signatories or thumprinters understood themselves to be signing or thumbprinting. And the plaintiffs disputed the contents of this document explaining that they had only made a paper authorising the first defendant to be a caretaker of the house for them.
We are thus thrown back to an evaluation of the conflicting oral evidence in regard to it. For, as was
pointed out by the Privy Council in Kwamin v. Kufuor (1914) P.C. ‘74—’28, 28, there can be no
presumption that an illiterate Ghanaian who does not understand English and cannot read or write has appreciated the meaning and effect of an English legal instrument because he is alleged to have set his mark to it by way of signature. The learned trial judge accepted the plaintiffs’ evidence on this issue in the following terms :
“I do therefore accept Ali’s explanation namely, that it does not accurately contain the instructions he and Baako gave and that by the documents they were only allowing the first defendant to be a caretaker of the house for all the beneficiaries. This view is reinforced by the instant reaction of Ali when he heard of the intention on the part of the first defendant to sell the house. He objected without hesitation and sent the defendant’s second witness with a message to him that he should desist. As the second witness for the defendant deposed, Ali said that if the first defendant sold the house they would find no accommodation when they visited Navrongo. This, surely, is not the mentality of a person who knew that the house was the property of the first defendant and that it had been given to him absolutely by Salifu before he died.”
In thus accepting the plaintiffs’ evidence the learned trial judge impliedly rejected the evidence of the
defendants and their witness the Malam Isumaila. That he was justified in accepting the evidence of the plaintiff Ali Hausa and rejecting the defence evidence in this regard was convincingly demonstrated by Mr. Dei Anang, counsel for the plaintiffs-respondents. Ali was patently a witness of truth whose evidence and conduct were entirely consistent with the contention that the first
[p.480] of [1972] 2 GLR 469 defendant had only been made a caretaker of the disputed property by the plaintiffs. By contrast the defendants made a poor showing, and their witness, the Malam, revealed both inconsistent conduct and surprising nonchalance in the testimony he gave. In the result the first defendant’s contention that Salifu Tailor made a gift of the house to him by oral will fails. I am satisfied that the learned trial judge had ample justification for resolving the conflict of evidence on this issue in the way he did.
It remains to observe that on the authority of the High Court judgment in Summey v. Yohuno [1960]
G.L.R. 68 on which his counsel relied on the court below, the first defendant would still have failed to
make out a case for a valid gift by oral will even if the evidence he led about the gift being made in the
presence of senior members of the testator’s family had been believed. For that evidence lacked proof of acceptance or aseda, an element which Ollennu J. (as he then was) laid down at p. 71 in that case as one of the “essential requirements of a valid customary will,” namely that “there must be acceptance, by or on behalf of the beneficiaries, indicated by the giving and receiving of ‘drinks’. . .”
Speaking for myself, I should have had no difficulty in upholding the validity of the gift by will if there had been credible evidence proving that it had been witnessed by two responsible and disinterested persons. Important though it is to insist on strict evidentiary requirements for the nuncupative will, I cannot help thinking, with all due respect to him that Ollennu J. went too far in the requirements he laid down in Summey v. Yohuno (supra). In so doing he virtually equated the requirements of the nuncupative will with those of the ordinary gift inter vivos. No authority was cited in support of the statement of those requirements, and the learned judge reiterated these requirements in Akele v. Cofie [1961] G.L.R. 334.
What is more, although the appellate opinions of Azu Crabbe and van Lare JJ.S.C. in Summey v. Yohuno [1962] 1 G.L.R. 160, S.C. affirmed the decision of Ollennu J. on a different ground turning upon other issues, their silence might be taken as implying agreement with the requirements of a samansiw laid down in the High Court judgment.
What then are the persuasive grounds for suggesting that the requirements laid down by Ollennu J., as he then was, in Summey v. Yohuno [1960] G.L.R. 68 should not be insisted upon? In the first place, although Sarbah is very emphatic about the aseda when he deals with ordinary gifts inter vivos he makes no such stipulation concerning the samansiw (contrast Sarbah Fanti Customary Laws (2nd ed.), pp. 80-82 on gifts with pp. 95-100 on testamentary dispositions). Secondly, and even more significant as positive evidence suggesting less rigorous evidentiary requirements, is the State of Akim Abuakwa (Declaration of Native Customary Law) Proclamation, 1943. This provided concerning the samansiw in section 2 of its schedule as follows:
[p.481] of [1972] 2 GLR 469 “the disposition of property by samansiw is valid as it is made voluntarily and orally in the presence of two responsible and disinterested witnesses, by a person of sound mind in expectation of death from illness however caused.”
The absence of any requirement of a thank-offering or aseda and of any requirement that any member of the family should be among the witnesses is a striking feature of this declaration which represents valid Akim Abuakwa law.
No less suggestive and significant regarding the requirement of the presence of members of the family as witnesses to gifts of self-acquired property was the proposal for the variation of Asante custom adopted by the Asanteman Council in 1942 as follows:
“When a person makes a gift of his own personal or self-acquired property to his children or to any other person in the presence of accredited witnesses, whether the relatives of the donor approve of it or not, it becomes valid.”
See Busia, The Position of the Chief in the Modern Political System of Ashanti, p. 127. Admittedly this resolution did not, in contrast to the Akim Abuakwa Proclamation quoted above, become a proclamation under the procedure laid down in section 4 of the Native Law and Custom (Ashanti Confederacy Council) Ordinance, Cap. 102 (1951 Rev.). But it represents a significant comment on Rattray’s statements regarding the samansiw in his Ashanti, pp. 238-239, where he emphasizes both the aseda and the presence of members of the family as requirements. And it is high-level evidence of a change in custom, such as the courts cannot ignore.
For as long as our legislature abstains from regulating this area of our traditional law, it is evident that the burden lies on the courts to regulate it as best they can; and the requirements laid down by Ollennu J. (as he then was) in Summey v. Yohuno (supra) represent an enterprising attempt in this direction. But there is always a danger, which must be guarded against, of throwing away the baby (some legal right) with the bath water (of formal requirements). The evidentiary requirements deemed necessary for the valid exercise of this right of making a samansiw can be made so rigorous as to render nugatory the acknowledged right to dispose of self-acquired property by samansiw. For the circumstances of oral will-making are often complicated by illness and other difficulties of access. To avoid this danger it becomes imperative for the courts to seek guidance from indications of the kind illustrated above coming from such bodies as the Asanteman Council, the Okyeman Council, etc. No less suggestive as a guide for determining appropriate evidentiary requirements, are the fact that our own Wills Act, 1971 (Act 360), copied from England, stipulates a minimum of two witnesses, and that an oral or written declaration made by an adult person of sound mind in the presence of two witnesses effectuates a valid disposition of property under Islamic law. Our ready acceptance of the [p.482] of [1972] 2 GLR 469 validity of deeds of gift and wills in English form that show no compliance with traditional requirements is, surely, an argument for re-examining those traditional requirements.
From this necessary but somewhat lengthy excursus into our law of oral wills, I now turn to another
strand of Mr. Campbell’s appellate argument on behalf of the defendants. This is the contention that:
“the learned trial judge erred in law and on the facts in failing to hold as against the plaintiffs and in favour of the second defendant that the aforesaid plaintiffs are estopped by their own admission in exhibit 2 from denying that the property passed to the first defendant entitling the latter to dispose of the same.” This contention, however, has been substantially disposed of by the learned trial judge’s holding, which I have affirmed, that exhibit 2 is not what it purports to be. For that holding negatives any contention that the plaintiffs have admitted that the property was gifted to the first defendant by Salifu Tailor. Mr. Campbell therefore argued further that exhibit 2 is a document which on the face of it clothed the first defendant with apparent authority to dispose of the property as he pleased; that, if in reliance upon this representation the second defendant after due inquiry purchased the property, the plaintiffs must be adjudged estopped by their conduct from denying the first defendant’s authority, and the second defendant must be adjudged to be a bona fide purchaser for value without notice of any defects in or equities attaching to the first defendant’s title.
To begin with, as Mr. Dei Anang pointed out, the type of estoppel argued is not the type that was pleaded.
In any case the bona fides of the second defendant was disputed and his evidence of admissions by the second plaintiff rejected. More important still, even if he had been a bona fide purchaser from the first defendant, our law permits sales of family property to be avoided in situations where prompt action is taken by the family concerned or its representatives to prove that the sale had been made without the consent of the principal members of the family. See, e.g. Agbloe v. Sappor (1947) 12 W.A.C.A. 187; Nelson v. Nelson (1951) 13 W.A.C.A. 248; Owiredu v. Moshie (1952) 14 W.A.C.A. 11. See also Bayaidee v. Mensah (1878) Sar.F.C.L. 171; Insilea v. Simons (1899) Sar.F.L.R. 105 and Manko v. Bonso (1936) 3 W.A.C.A. 62. And this is not a case in which the plaintiffs have slept on their rights.
This then brings us to the defendants’ remaining grounds of appeal by which the plaintiffs’ right to bring the action is challenged. Those grounds were formulated as follows:
“Ground 2 (a) The learned trial judge erred in law and on the evidence in failing to dismiss the plaintiffs-respondents’ claim since they failed to prove that they were successors to Salifu Tailor, deceased, and entitled to institute action against the defendants. [p.483] of [1972] 2 GLR 469
Ground 2 (b) The learned trial judge misdirected himself in law in finding that the plaintiffs were entitled to succeed in accordance with Hausa custom and also the custom of the Kassena-Nankani people and further that the defendants admitted the right and title of the plaintiffs to succeed on the intestacy of Salifu Tailor since there was no evidence on record to support these findings.”
On the issue of locus standi it is indeed true that the claim, as originally made, does not show the
plaintiffs as claiming in any representative capacity. But the writ and statement of claim were amended by the court on the first day of the trial pursuant to an application by the plaintiffs’ counsel to which the defendants’ counsel expressed himself as not objecting. And the amendment thus ordered stated that the plaintiffs were claiming “for themselves and for all other persons entitled to the estate of Salifu Tailor deceased.”
Quite apart from this however, as Mr. Dei Anang pointed out, nothing could be clearer from the
proceedings that the quality in which the plaintiffs sued. Averments in the statement of claim that the plaintiffs are brothers and sisters of the deceased Salifu Tailor, and that the deceased died without leaving any issue were explicitly admitted in the statement of defence, which even pleaded further that the first plaintiff is the eldest member of Salifu Tailor’s family. There was uncontradicted evidence that the plaintiffs are brothers and sisters of the deceased by the same father. There was even elicited from the second plaintiff in cross-examination the assertion, which was not denied or disproved by the defence, that there were no other persons apart from the plaintiffs who were entitled to the enjoyment of Salilfu’s properties, although it appears from the plaintiff’s subsequent attempt to join one Amina Hausa as plaintiff that there was at least one other sister. In this connection it is to be noted that the learned trial judge was careful to confine himself to a declaration that the said house “is the family property of the deceased in which the plaintiffs and their other brothers and sisters are principal members.”
The plaintiffs further averred that “in the events which have happened and by Hausa and Moslem custom and or Kassena-Nankani custom” they “as brothers and sisters became entitled to and did succeed to the estate of Salifu Tailor.” This was indeed denied in the statement of defence, and the onus therefore remained on the plaintiffs to prove this averment. But this is an onus which was discharged by the admissions on the pleadings and the evidence referred to above which was accepted.
The basis for the contention that the plaintiffs had no locus standi, no right to bring this action, lurks in the old notion that only a head of family can bring an action in respect of family property. It was
effectively disposed of in cases like Mahmudu v. Zenuah (1934) 2 W.A.C.A. 172; Koran v. Dokyi (1941) 7 W.A.C.A. 78 and Kwan v. Nyieni [1959] G.L.R. 67, C.A. Mr. Campbell, it is true, did not go quite [p.484] of [1972] 2 GLR 469 as far as this. He confined himself to the contention that the plaintiffs failed to prove that they were successors to Salifu Tailor and as such entitled to institute action against the defendants. This contention, however, is effectively negatived by the admissions in the pleadings and the evidence, which disclose that the plaintiffs all but constitute the entire class of persons entitled to Salifu’s property upon his death intestate. Add to this the fact that the essence of their action was patently to preserve the family character of the property and to prevent it from falling into the hands of a stranger to the family, it then becomes plain that this ground of appeal cannot be sustained.
The many decisions of our courts which state that when a man dies intestate his property becomes family property can be understood to mean at least this, that title to such property vests automatically in the class of entitled persons commonly called the family, though the group of persons covered by this term obviously varies according to whether we are dealing with a patrilineal or matrilineal community. If this class of persons is identified, as is the case in this action, then it obviously is “entitled” to institute an action for a declaration of its title to the property where this is disputed. A head of family or successor is patently only a representative or agent of the class of entitled persons. Where the class is numerous, convenience, custom, tradition and court practice dictate that a head of family or successor should normally act on behalf of the class of entitled persons. But this requirement, as the authorities show, is necessarily subject to important exceptions. And one obvious exception is where all or nearly all the members of the class of entitled persons present themselves before the court as plaintiffs claiming a declaration of the title of all the members to the property. This is all the more obvious when, as in the present case, the defendants admit and even plead that the two eldest members of the deceased owner’s family are among the plaintiffs.
We are thus left with the remaining contention on behalf of the defendants that the learned trial judge misdirected himself in finding that the plaintiffs were entitled to succeed in accordance with Hausa custom and also the custom of the Kassena-Nankani people. This, however is a contention that was not backed up with any showing that Hausa custom or Kassena-Nankani custom provides otherwise than as declared by the learned trial judge, when he said that “succession of the Hausas the lex domicile [sic] of Salifu is patrilineal and that of the Kassena-Nankani the lex situs of the property follows the same pattern,” or that any other system of law was applicable.
It is not necessary for me, in this regard, to address myself at any length to the arguments of both
appellate counsel in relation to the inapplicability of Mohammedan law to this estate in view of section 10 of the marriage of Mohammedans Ordinance, Cap. 129 (1951 Rev.). For the claim is based not on the applicability of Mohammedan law but of Hausa and Moslem custom and or Kassena-Nankani custom, and [p.485] of [1972] 2 GLR 469 the learned trial judge’s finding is as to the relevant customary law to be applied. What is more, the authorities cited by counsel, namely, Ollennu on Testate and Intestate Succession in Ghana and Bentsi-Enchill on Ghana Land Law are in substantial agreement on the point that section 10 of the said Ordinance has the effect of retaining the application of customary law to the estate of a Mohammedan whose marriage was not registered under the provisions of that Ordinance. Customary law, it must be remembered, is not static and where the applicable customary law has been deeply modified by Mohammedan law or is identical with it in its rules regarding a particular issue, there is, in my view, nothing in the Marriage of Mohammedans Ordinance prohibiting the application of such customary or modified customary law.
The real question is whether any fault can be found with the learned trial judge’s holding that “succession of the Hausas the lex domicile [sic] of Salifu is patrilineal and that of the Kassena-Nankani the lex situs of the property follows the same pattern.” That holding was, in my view open to question in so far as it implied that Salifu had a domicile in Hausaland. For the evidence shows that even Salifu’s father, who originally came from Kano, had settled in Yariba near Mamprusi, and could have been held to have acquired a Ghanaian domicile. Salifu himself who was born at Yariba, Ghana, lived all his life in Ghana and settled and worked at Navrongo where he acquired the house in dispute. A holding that he had a Ghanaian domicile and had become a member of the Kassena-Nankani community among whom he settled and died in Navrongo would therefore have been the more reasonable conclusion, leading to the application of the Kassena-Nankani customary law rules of succession of this case.
As to the Kassena-Nankani law of succession, the learned trial judge’s holding that it is patrilineal would seem to be well supported by the available literature. See, e.g. Manoukian; The Tribes of the Northern Territories of the Gold Coast Section 50 of the Courts Act, 1971 (Act 372), reproduces the provisions originally enacted in the Courts Act, 1960 (C.A. 9), and re-enacted in the Courts Decree, 1966 (N.L.C.D. 84), which make any question as to the existence or content of a rule of customary law a question of law for the court. That section tells the court what to do if it “entertains any doubt as to the existence or content of a rule of customary law relevant in any proceedings.” In this case the court had no doubt as to the applicable customary law rule. What it did not do, but should have done was to disclose the source of its authority for declaring the applicable rule. For this is an element in the basic obligation of the courts to give reasoned judgments.
It is nevertheless evident that the court derived assistance from the evidence led by the parties. The facts that Salifu died without issue, that the plaintiffs were his surviving paternal brothers and sisters and the [p.486] of [1972] 2 GLR 469 persons entitled to succeed upon his death intestate in these circumstances were admitted for the most part on the pleadings and conclusively in the evidence, the real point of dispute being whether or not there was a gift of the house by Salifu which prevented any intestacy from arising in regard to it, and thus disentitling the plaintiffs from succeeding to it. With the resolution of this factual dispute against the defendants, an intestacy was established in regard to the property, and the plaintiffs, being admittedly the family of the deceased, became entitled to the declaration they sought.
In conclusion then, and for the reasons indicated above, I would dismiss this interesting appeal which was ably argued by counsel for both parties.
JUDGMENT OF APALOO J.S.C.
I also agree that this appeal fails for the reasons given in the full and interesting judgment of my brother Bentsi-Enchill. I should have contented myself only with expressing my concurrence with his conclusion but thought on reflection, that there is one aspect of the judgment with which I should identify myself positively rather than formally.
The first defendant sought to prove a valid gift both inter vivos and by oral customary will. I agree that on the facts, he failed to prove either. But had he succeeded in showing that in addition to Alhassan, one other person was present and witnessed the oral transfer of title to this property, the High Court decision of Summey v. Yohuno [1960] G.L.R. 68 would have stood as an obstacle against the court pronouncing for the gift. Ollennu J. who was the author of Summey v. Yohuno (supra) did not profess to be following any authority when he laid down what he called the essential requirements of a valid customary will. That learned and resourceful judge was only stating what, in his best judgment, an intending donor mortis causa and a would-be beneficiary should do to obtain the sanction of the court to that particular mode of transferring property. I think the purely evidentiary requirement of witnesses is desirable and if they are independent and disinterested, that should suffice. Following the guideline provided by the Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26), two such witnesses should be adequate. I suspect strongly that the declarations of custom made both by the Akim Abuakwa State Council and the Asanteman Council were inspired by this particular provision of the Wills Act. Ollennu J. thinks that one heritable member of the intestate’s family must be a witness to this disposition.
Perhaps the reason underlying this requirement is that if the person has a spes successionis to the
deceased, his testimony that the latter on his death-bed gave the property away might facilitate its
credibility. But such a requirement may well be embarrassing to the deceased, especially if he were
minded of disinheriting his intestate successors. The learned judge himself did [p.487] of [1972] 2 GLR 469 not give the theoretical or policy justification for such a requirement. Whatever it is, it seems to me too much a fetter on a persons right to dispose of his property as he wishes. Ollennu J. also thinks that such a gift must be accepted by the donees or on their behalf “by the giving and receiving of drinks.” There can be little doubt that in laying down this requirement, the learned judge drew inspiration from Sarbah who thought and wrote that a gift inter vivos to be effective, must be accepted by the donee. Sarbah gave four methods by which acceptance should be made. One of such methods is “rendering thanks with thank-offering or presents…” Sarbah did not consider that the giving of drinks was established custom or usage. True, as a national habit, we take to the consumption of liquor on the slightest provocation but I do not think it desirable that we should write this into our jurisprudence even if it were established that an oral will should be formally accepted. But the researches of my brother Bentsi-Enchill show that unlike gifts inter vivos, customary law does not require formal acceptance as a condition of validity of a samansiw.
I cannot think of any strong reasons of public policy which constrain us to hold that a man’s testamentary wishes about his own effects clearly expressed to two independent and disinterested persons should be set at nought only because none of the persons to whom the wishes are expressed happens to be a heritable member of his family or the ritual of giving drinks is omitted. As our law develops and acquires some degree of sophistication, we should make a conscious effort to shear it of some of its trappings which enhance its form but not its social objective.
Notwithstanding his undoubted authority in these matters, I cannot find it in my heart to agree that the formulations of Ollennu J. in Summey v. Yohuno (supra) truly reflect the customary law relating to samansiw. In so far as he lays it down that the witnesses to the gift must necessarily include a heritable member of the donor’s family and that there should be acceptance of this gift by the giving of drinks, that decision should be disapproved.
I also think that this appeal was argued with great ability by counsel on both sides, but as I said before, I concur not only with the conclusion of my brother Bentsi-Enchill, but in the reasons which led him to that conclusion and like him, would dismiss this appeal.
JUDGMENT OF KINGSLEY NYINAH J.A.
I agree.
DECISION
Appeal dismissed.
