COURT OF APPEAL, ACCRA
Date: 16 MAY 1975
SOWAH ANIN AND HAYFRON-BENJAMIN JJA
CASES REFERRED TO
(1) Summey v. Yohuno [1960] G.L.R. 68.
(2) Mahama Hausa v. Baako Hausa [1972] 2 G.L.R. 469, C.A.
(3) Atuahene v. Amofa, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 154.
NATURE OF PROCEEDINGS
APPEAL against the judgment of the High Court, Cape Coast, reported in [1973] 1 G.L.R. 393 in which the respondent’s action to enforce the directions of her deceased husband’s samansiw was upheld. The facts are fully set out in the judgment of the court delivered by Sowah J.A.
COUNSEL
K. A. Sarpong for the appellant.
S. Annancy (Ampiah with him) for the respondent.
[p.375] of [1975] 1 GLR 374
JUDGMENT OF SOWAH J.A.
Sowah J.A. delivered the judgment of the court. On 7 February 1974, we dismissed the appeal and reserved our reasons for so doing. We now proceed to give them.
The plaintiff was the widow of the late Jacob William Armah who died on 7 July 1970 in the municipality of Cape Coast; the defendant was a sister to the deceased and the contest concerned the validity of a samansiw made by the deceased just before his death. The evidence accepted by the learned judge was that on or about 24 June 1970 the deceased was visited in hospital by his wife, sister and some friends. Before then, he had invited, through his wife, the Archdeacon of the Anglican Church, the Venerable Kofi Pare Sekyiamah to visit him in hospital. He arrived on the same day but later than the two ladies.
On his arrival he was requested by the deceased to excuse him while he spoke to his sister and his wife. Thereafter he was invited into the ward and the deceased informed him that he had made an oral disposition of his properties as he doubted his ability to survive the operation which he would shortly thereafter undergo. In the event his worst fears did occur. The events of that day are so important that we deem it necessary to set down in extenso the relevant portions of the Archdeacon’s evidence.
He stated as set out in [1973] 1 G.L.R. 393 at pp. 401-402:
“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
[p.376] of [1975] 1 GLR 374
read my hand writing properly. After approving of what had been taken down I promised to send back to him a typewritten 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 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 thumb-print of the 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.”
The defendant and her witnesses admitted they were present at the hospital on the day in question, but denied that the deceased made a death-bed declaration to them. Their evidence was that when the Archdeacon arrived, the deceased asked them to leave the apartment and so they retired to the verandah. The deceased and the reverend gentleman appeared to be in conclave for a long time with the latter writing on a piece of paper. They were there when the bell rang for visitors to the hospital to leave and accordingly they went into the apartment and took leave of the deceased. No declaration of the dying wishes of the deceased was ever made to them.
It is not disputed that the deceased did not survive the operation. The learned judge had no difficulty in holding that the deceased made a dying declaration but an issue of law arose whether in the absence of an aseda by the donees the bequest to them was valid in law.
After a review of the cases on the subject and more particularly Summey v. Yohuno [1960] G.L.R. 68 in which Ollennu J. (as he then was) at p.71 enumerated the “essential requirements of a valid customary will” and included in them “there must be an acceptance by or on behalf of the beneficiaries, indicated by the giving and receiving of drinks,” the learned judge unfettered by any authority binding upon him refused to hold that aseda was one of the essential requirements of a samansiw.
At the time of writing his judgment the issue was mootable; but there has since been a further discussion of the Yohuno case (supra) in Mahama Hausa v. Baako Hausa [1972] 2 G.L.R. 469, C.A. The learned judges in
[p.377] of [1975] 1 GLR 374
that case held that evidentiary requirements of a samansiw as enumerated by Ollennu J. (as he then was) went too far. Both Bentsi-Enchill and Apaloo JJ.S.C. (as they then were) were of the view that there should be independent witnesses in the making of a nuncupative will, not necessarily members of the testator’s family; further that the requirement of acceptance by a beneficiary was totally unnecessary. Bentsi-Enchill J.S.C stated inter alia at p. 481:
“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 he 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.”
Apaloo J. S.C. in his supporting judgment stated at pp. 486-487:
“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 not give the theoretical or policy justification for such a requirement. Whatever it is, it seems to me too much a fetter on a person’s 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.”
[p.378] of [1975] 1 GLR 374
These statements of the law in Mahama Hausa v. Baako Hausa (supra) by the learned judges appear to be strictly obiter but coming from such learned brethren, they deserve very serious consideration. No doubt Ollennu J. was endeavouring to bring some order in an area of law where the legislature has been silent, and the mere fact that he cited no authority is no ground for rejecting his view; he was endeavouring to create a precedent which in any case must start from somewhere. Nevertheless I agree that the evidentiary requirements stipulated by him are so stringent as to be almost destructive of a person’s capacity to make a nuncupative will.
We have considered the views expressed in the Yohuno and Baako Hausa cases (supra) and have come to the conclusion that even if Ollennu’s views represent a correct statement of the law in its pristine form (for though Ollennu did not cite an authority it cannot be doubted that he had done considerable research in the matter as evidenced by his book. The Law of Testate and Intestate Succession in Ghana) we prefer the opinions expressed in the Baako Hausa case (supra); for customary law has been developing rapidly and it is the view of some jurists not necessarily shared by all that wherever statute law co-exists side by side with the customary law on the same subject the tendency should be, as far as possible, to equate the latter with the former.
We think failure to pay an aseda should not avoid or nullify a bequest. Firstly, the beneficiary might not be present when the declaration was made. What if he were out of the country and his relations refused to pay an aseda on his behalf? Secondly, what if the declarant died soon after the declaration before an aseda could be given, must the bequest fail? Finally, of what significance will an aseda be if the declarant did not die? For an essence of samansiw is that the bequest is automatically revoked on the declarant’s recovery.
We have asked the questions above to illustrate the unreasonableness of that requirement and, it has often been held that customary law consists in what is reasonable in the circumstance. Apaloo J.S.C. has given very cogent reasons why it is undesirable to insist that the witnesses must include a member of the family. On the presence of a member of the family as a witness at the making of the samansiw, we may perhaps with profit quote the view expressed by Akufo-Addo C.J. in the case of Atuahene v. Amofa, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 154 a panel which included Ollennu:
“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 self-acquired property in the case of Yeboah v. Tse (1957) 3 W.A.L.R. 300 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 witnesses, some of whom may be members of his family.”
[p.379] of [1975] 1 GLR 374
Thus it might well be stated that Ollennu himself had begun to modify his view.
On consideration of the relevant authorities, we will with respect adopt the reasoning and the exposition of the law as contained in the judgments of the Baako Hausa case (supra). In our view it is sufficient:
(a) if the declaration was made in contemplation of death;
(b) credible witnesses were present who could testify that the disposition was made in their presence and to their hearing;
(c) the dispositions concern his self-acquired properties.
The learned judge came to the conclusion that the essential evidentiary requirements have been met and that the deceased disposed of his properties as deposed to by the plaintiff and her witnesses.
No valid legal ground was urged why we should disturb the judgment. It was for the above reasons that we dismissed the appeal.
DECISION
Appeal dismissed.
S. O.
