Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: SARKODEE-ADDO CJ, OLLENNU AND BLAY JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The plaintiff, respondent in this appeal, is successor to one Kwame Num, late of Bomaa, and the defendants, the appellants, are children of the said Kwame Num who died on or about 28 September 1960. The farm the subject-matter of the suit, called Kradwete farm, is one of five farms of which the said Kwame Num died possessed.
It was the plaintiff’s case that when cultivating the said Kradwete farm, the late Kwame Num declared that he was making it for his family, and that in pursuance of the intention so expressed by him, members of his family assisted the said Kwame Num with finance and labour to make the farm, and therefore the farm acquired the character of family property even during Kwame Num’s lifetime. It was his case further, that in any event Num having died intestate possessed of it, the farm, by customary law, became vested in the family as family property and came under his management as Num’s successor lawfully appointed by the family, and consequently on entering upon his office of successor to Num, he took possession of the farm together with Num’s other four farms, and he was in such possession when the
defendants acting by the first defendant laid claim to it.
The case of the defendants is that their late father Num, made a gift of the said farm to them, the gift being of the nature of samansiw, nuncupative will, reduced into writing, which took effect upon his death. The defendants therefore counterclaimed from the plaintiff, an account of the proceeds of the said Kradwete farm realised by the plaintiff since the date of Num’s death.
The trial proceeded upon the following issues agreed upon by the parties: (i) whether the farm in dispute at Kradwete is the family property of the plaintiff or the self-acquired property of the late Kwame Num, (ii) whether the late Kwame Num made a valid gift of the farm indispute to the defendants, and (iii) whether the defendants are entitled to their counterclaim.
The decision of the high court may be summarised as follows: (i) the farm was the self-acquired property of the late Num, the family having provided only the usual casual labour which members of a family generally provide their relations in making their individual farms, but that the family did not give Num any financial assistance to enable him to make it, (ii) the defendants failed to prove the gift or testamentary disposition as alleged by them, (iii) that Num having died intestate possessed of the farm, and not having made any disposition of it which could take effect upon his death, the farm, by law, automatically became family property immediately upon Num’s death, and therefore the plaintiff, as Num’s successor, is in lawful possession of it as owner for and on behalf of the family.
This decision of the High Court has been attacked on two main grounds.
Firstly, it was submitted that since the plaintiff pleaded that the farm was family property during the lifetime of Num, and the court having found upon the facts that it was not, “erred in giving judgment for the plaintiff on matters not pleaded by him; the plaintiff not having amended or set up an alternative claim.” This submission raises some interesting points of law and procedure. In the first place, the averments made by the plaintiff in this regard are set out in his statement of claim as follows: “The late Kwame Num made members of his family clearly to understand that he was making the farm in dispute for and on behalf of the family as his own contribution to the family properties and for that reason members of the family assisted him with their labour when he was cultivating the farm.” The proper meaning to be given to this statement is: that Num made the farm, but made it with the expressed intention that it should be family property of Num and was designated by Num as family property. It is therefore immaterial whether or not the family contributed in any shape or form to its making; it remained Num’s self-acquired designated family property.
Now the rules of procedure require that facts should be pleaded not law. The pre-Republic legal system regarded customary law as a question of fact, therefore Order 19, rule 31 of the Supreme [High] Court (Civil Procedure) Rules 1954,1 the rules applicable to High Court, provide that:
“In all cases in which the party pleading relies upon a native law or custom, the native law or custom relied upon shall be stated in the pleading with sufficient particulars to show the nature and effect of the native law or custom in question and the geographical area and the tribe or tribes to which it relates.”
This rule of course refers to rules of the customary law which are required to be proved by evidence of witnesses. Even in the pre-Republic legal system, any custom which was proved frequently until it became notorious was taken out of the realm of facts into the realm of law and it no longer required proof, judicial notice was taken of it. The judgment of the Privy Council in Angu v. Atta2 laid down the principle in the following words: “As is the case with all customary law, it has to be proved in the first instance by calling witness acquainted with the native customs until the particular customs have, by frequent proof in the Courts, become so notorious that the Courts take judicial notice of them.” The customary law, that upon a person’s death intestate in Ghana his or her self-acquired property becomes property of his or her family, is such a custom which has become so notorious with proof that it has long passed from the realm of fact into the realm of law, and does not require to be specifically pleaded, the court is bound to take judicial notice of it. Therefore it is not the type of customary law to which Order 19, r. 31 would have applied even in the pre-Republic legal system.
Again this action was instituted after 1 July 1960, Republic Day. By section 67 (1) of the Courts Act, 19603 which was in force at the date of the commencement of the suit: “Any question as to the existence or content of a rule of customary law is a question of law for the Court and not a question of fact.” For that reason also this well-established rule of the customary law of general application in Ghana did not need to be pleaded. We are of opinion, that in view of the fact that customary law is no longer a question of fact, but is a question of law, rule 31 of Order 19 requires reconsideration, as it is inconsistent with the substantive law; and that in any event, so long as it remains part of the procedure regulations, compliance with it should be restricted to the lesser known rules of customary law, those applicable to localities, and the type in respect of which the court may properly resort to the powers given it in section 67 (3) (b) of the Courts Act, 1960, to institute enquiry, when in doubt, for the purpose of ascertaining the customary
law of a particular tribe or locality. The customary law in question in this case is well known, and is of general application. That being the case, the learned judge properly directed himself in applying it upon the material before him when the same has not been pleaded, since it need not be pleaded.
Now it being the case of both the plaintiff and the defendants that the farm was in the possession of late Kwame Num at the date of his death, and since it is the case of the defendants that the deceased made a testamentary disposition of the same to them to take effect upon his death, the onus was upon the defendants to satisfy the court that the said disposition was in fact made and that Kwame Num did not therefore die intestate. The trial judge held that the defendants failed to discharge that onus.
Counsel for the defendants on the second main ground contended that, by the use of the words “So far as the customary law requirements of a gift of one’s personally acquired properties are concerned, I am of the opinion that these were satisfied” the learned judge held that the gift of the farm to defendants had been proved; he therefore submitted that it is a contradiction in terms for the judge to hold afterwards that the defendants had failed to discharge the onus upon them.
It is well to observe that this criticism could only be fair, when the quotation is considered in isolation, and without reference to the careful scrutiny which the learned judge proceeded to make immediately thereafter of the whole of the evidence tendered in an attempt to prove the
said gift. When, however, the passage quoted is taken with other observations made by the learned judge in the course of his judgment it is made abundantly clear that all that the said passage could mean is: that if the facts alleged are proved, they satisfied the requirements of a gift made in accordance with customary law.
One of the essentials of a gift of land by customary law is that the subject of the gift should be
identifiable, and both the parties to the gift and the witnesses to it should be ad idem as to it, though physical demarcation of it need not be made if it can be designated without ambiguity. For example, if to the knowledge of all concerned, the donor has only one farm at Kradwete it will be sufficient to say my farm at Kradwete; but if he had more than one farm at Kradwete, or if having only one farm the gift is in respect of a portion of that one only farm, then the farm being donated, or the portion being donated should be sufficiently described. In the case of a gift inter vivos, the ambiguity is removed when the donee occupies the farm without objection from the donor; in the case of a gift which should take effect upon death, accurate description is required to clear ambiguity.
Now the oral evidence of the gift as given on behalf of the defendants savours more of a gift inter vivos than a testamentary disposition, while the documentary evidence states that it was to take effect upon death. Then again there are some pieces of evidence uncontradicted, which show that while a gift inter vivos might have been made and the defendants might have occupied the subject-matter of that gift during Num’s lifetime, a gift to take effect upon Num’s death is most improbable. We will refer to just a few of the most important of those.
The farm in dispute forms a boundary with a farm in the occupation of the first defendant for himself and on behalf of all the other defendants. About a year before his death, Num had to go to the land to demarcate a boundary between the farm in dispute and the farm occupied by the defendants, because the first defendant had shown the wrong boundary to a new labourer employed by Num, and thus included part of Num’s farm in the farm of the defendants. When Num died and the plaintiff was appointed his successor, the first defendant took the plaintiff to the land and there showed the boundaries of the land to him and introduced him to Num’s labourer, Issifu Kramo, first witness for the plaintiff, as the successor to Num and therefore the present owner of the farm. According to the third defendant, Num, after he had made the gift to them, went with them to the farm, subject-matter of the said gift, and divided it into two portions among the defendants according to their mothers, this line of demarcation said to have been made by planting flowers or so on it, would exist in that farm which is the subject of the gift; no such partitioning line of flowers exists in the farm in dispute. It follows that the farm in dispute cannot be the subject of the gift.
Again all the idea which the most important witness for the defendants, the Bomaahene, who witnessed the making of the gift, formed of the gift and of the farm subject thereof, is what according to him Num told him on the occasion of the gift; he gave it as follows:
“Kwame Num came in with Kwame Siwa the younger brother of Num, Opanin Akwasiwa, Kwadjo Drobo, defendants and many others accompanied Num and his elders Krontihene Kwaku Osei was with them. Num then told us that he had come with his children. That he was becoming old and getting to his grave and that he was giving the farms he had made to his children, Afua Munufie and Yaa Kraah, Kwasi Kuma, Atta Yaw and Adjoa Fordjour and Kwame Krah and Kofi Appiah alias Kofi Akorah, Kwadjo Kusi. Num mentioned his farms on the Teppa Road and on the Yamfo Road. Num said he had given a farm to Atta Yaw, Kwame Krah and Adjoa Fordjour and has given a farm to Afua Munufie and Yaa Kraah. That he had given Kofi Akorah and his sisters one farm. He said he had given a farm to Kwadjo Kusi and Kwasi Kuma. Num further said that Atta Yaw and his brothers and sister, had given an aseda of eight pounds (£G8) and one bottle schnapps. Num said that all donees had given the aseda in his house and had come to inform me of this aseda.”
And at a later stage he said that Kwame Num came to him afterwards and “told me that he had caused a document to be prepared to cover the gift he had made to his children and he wanted me as the chief of the town to sign it. I then touched pen and the clerk K. D. wrote my name on the document. They brought about four documents and I touched pen in respect of each document.” This certainly is an account of a gift inter vivos, apart altogether from the fact that the subject-matter of the gift is vague and ambiguous, and is such that it could only be identified by actual occupation.
The documents exhibits 1 and 2, the written record of the alleged gift, contradict the gift the oral evidence spoke of, which it was meant to confirm; for while upon the oral evidence the gift made had already become effective, according to the documentary evidence it was to take effect only after the death of the donor.
And what is most curious in the whole case is that the first defendant who, upon the evidence, gave instructions, allegedly upon directions of Num, to the plaintiff’s fifth witness to prepare the documents, and who upon the evidence was the leader of the defendants, and who is shown to have played the most important role in the whole transaction, did not deem it fit to go into the witness-box to explain most of these things. Discretion being the better part of valour, the first defendant might have considered it expedient to save himself and his colleagues the embarrassment which would surely have resulted from some very awkward questions he would have faced, and which readily suggest themselves upon the evidence.
Whatever else might have been the subject of the gift inter vivos, or of the alleged testamentary
disposition, it was not identified with the particular Kradwete farm in dispute in this case. The defendants therefore failed to discharge the onus upon them to prove that testamentary disposition of the farm in dispute was made to them.
These two points are enough to dispose of the appeal, and we need say no further, except to remark that the circumstances surrounding the preparation and execution of the documents relied upon by the defendants are most suspicious. In the result the appeal is dismissed.
DECISION
Appeal dismissed.
