DARFOOR v. GYANEWA [1968] GLR 326

DIVISION: HIGH COURT, ACCRA

DATE: 29 MARCH 1968

BEFORE: CHARLES CRABBE J.

NATURE OF PROCEEDINGS

APPEAL against the decision of a district court giving judgment for the plaintiff in an action for the revocation of a gift. The facts are fully set out in the judgment.

COUNSEL

Dua Sakyi for the appellant.

Harold Darko for the respondent.

JUDGMENT OF CHARLES CRABBE J.

This is an appeal from the judgment dated 22 June 1964 of the learned local court magistrate in which he had come to a conclusion that a gift of the nature as the one before him was not irrevocable for good reasons. The facts of this case are very simple. The plaintiff-respondent (hereinafter called the respondent) was the husband of the defendant-appellant (hereinafter called the appellant). He claims that because of his sickness—he was getting blind—and the fact that he valued the care of the appellant then his wife, he decided to make a gift of a portion of his farm to the appellant. This gift was acknowledged in customary form by the acceptance of sheep and drink which the appellant sent to the respondent to express her thanks for the gift of the farm to her. But within about eight months after the respondent had given the portion of his farm as a gift to the appellant, the appellant sought dissolution of the marriage. She was not successful but owing to the persistence of the appellant the respondent was forced to seek a dissolution of the marriage. In his own words: “During the dissolution of the marriage I warned the defendant in the presence of the meeting that since she has divorced me during my sickness I have revoked the gift I made to her and that she is forbidden from entering upon that property as from that date.” The issue for determination in this case is whether the gift made to the appellant by the respondent was a conditional gift which was revocable or an outright gift which is not revocable. Throughout the evidence of the respondent before the court below he referred to the transaction of a gift from him to the wife and it would appear [p.328] of [1968] GLR 326 that it was so understood. Indeed under customary law the gift had been accepted as an outright gift by both parties by the offering and the acceptance of sheep and drink to acknowledge the gift. Again in the words of the respondent, “It was during the same month that the defendant brought drinks and sheep to acknowledge the gift of the farm I had made to her.” I am satisfied on the evidence before me that at the time that the respondent sent his junior uncle to the farm and allocated a portion of the farm to the appellant as a gift the respondent had it in mind to give that portion of the farm as an outright gift to the appellant. The question of revocation arose because the action of the appellant in seeking a dissolution of the marriage after the gift of the farm had outraged the conscience of the respondent and that caused him to doubt the sincerity all along of the wife. In my view this is a moral issue. The point before this court is whether the gift as a gift inter vivos under customary law is revocable. The authority of John Mensah Sarbah is that the gift is not revocable. I quote Sarbah’s Fanti Customary Laws (3rd ed.) at pp. 80-82:

“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. It must be remembered, however, that gifts are oftener made of moveables such as goods and chattels, than of lands and other immovables.

To constitute a valid gift, an intention of giving or passing the property in the thing given to the donee by the donor, who has power so to do, is necessary.

The acceptance of such gift by the donee must be made in the lifetime of the donor.

The giving and acceptance must be proved and evidenced by such delivery or conveyance as the nature of the gift admits of.

What is given by a person in wrath or excess of joy, or through inadvertence, or during minority or madness, or under the influence of terror, or by one intoxicated, or extremely old, or afflicted with grief or excruciating pain, or what is given in sport, is void. Where anything is given for a consideration unperformed, or to a bad man mistaken for a good one, or for any illegal act, the owner may take it back.

The acceptance of a gift may be made publicly or privately, having regard to the nature of the gift; but the acceptance of a [p.329] of [1968] GLR 326 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 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 someone 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.”

This authority of Sarbah was confirmed in Nartey v. Nartey (1953) 14 W.A.C.A. 295 at p. 297 where the court said:

“Mr. Sarbah states several forms of acceptance as necessary to evidence a valid gift of immovable property but it must be observed that if one of them is supplied it is sufficient. In this case there is evidence of publicity in making the gift and user by the donee in that the deceased erected a building for her on the land before his death.” On the authorities cited, I come to the conclusion that the learned local court magistrate erred in law when he came to the conclusion that the gift could be revoked and found in favour of the [p.330] of [1968] GLR 326 respondent. I accordingly reverse the judgment of the learned local court magistrate and enter judgment in favour of the appellant. I must add that I view with horror the attitude of the appellant in seeking a dissolution of the marriage when a gift had been made to her by her husband who, at that time, needed her most. But then that is a moral issue. And this is not a court of morals. I make no order as to costs.

DECISION

Appeal allowed.

S. K. T.