COURT OF APPEAL, SUNYANI
Date: 11 JULY 1975
SOWAH ANIN AND FRANCOIS JJA
CASES REFERRED TO
(1) In re Garnett; Gandy v. Macaulay (1885) 31 Ch.D.1, C.A.
(2) Thomas v. Times Book Co., Ltd. [1966] 1 W.L.R. 911; [1966] 2 All E.R. 241; 110 S.J. 252.
(3) Hausa v. Hausa [1972] 2 G.L.R. 469, C.A.
(4) In re Armah (Decd.); Awotwi v. Abadoo [1975] 1 G.L.R. 374 C.A.
(5) Summey v. Yohuno [1960] G.L.R. 68 Oll. C.L.L. 223.
(6) Yoguo v. Agyekum [1966] G.L.R. 482, S.C.
(7) Yeboah v. Tse (1957) 3 W.A.L.R. 299.
(8) Atuahene v. Amofa, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C 154.
(9) Quashie v. Baidoe, Court of Appeal, 5 August 1969,unreported; digested in (1969) C.C. 153.
(10) Mensah v. Kyei, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C.97.
(11) Tsrifo V v. Dua VIII [1959] G.L.R. 63.
(12) Yaw (Osei) v. Domfeh [1965) G.L.R. 418, S.C.
(13) Asante v. Bogyabi [1966] G.L.R. 232, S.C.
APPEAL against a judgment of Anterkyi J. in the High Court in an action for a declaration of ownership of a half-share of a cocoa farm alleged to have been gifted to the appellant under a samansiw made by his deceased father. The facts are sufficiently stated in the judgment of Francois J.A.
COUNSEL
Owusu-Yaw for the appellant.
L.B. Akainyah for the respondent
JUDGMENT OF FRANCOIS J.A.
The suit from which this appeal springs originated in the High Court, Sunyani, where the plaintiff, on behalf of the children of the late J.E. Ohene, sought inter alia, a declaration of ownership of a half-share of the deceased’s cocoa farm at “Nyamebekyere-Kookookrom” on Akrodie stool land.
The plaintiff urged in the court below that his late father Ohene had acquired virgin forest and cultivated it extensively into a cocoa farm and that in 1967, a year before his death, being mindful of providing for his children, had made a gift of half the farm to them in the presence of his family.
[p.91] of [1975] 2 GLR 89
It was the plaintiff s further case that prior to the 1967 gift, the late Ohene had in 1962 made an inter vivos gift to his wife, Elizabeth Nyanta, of part of the said farm; consequently the death-bed disposition or samansiw of 1967 should relate to the deceased’s farm excluding what had already been gifted. The failure of the defendant’s family to honour the death-bed wishes of late Ohene had led to the action.
The matter was heard by Anterky J. Who rejected the plaintiff s contentions. The learned judge of the High Court expressed the view that for plaintiff to succeed on the issue of a gift inter vivos, he had an onus to:
“establish that before and at his father’s death the demarcated portion had been vested in the plaintiff’s first witness (Elizabeth Nyanta) and that she had been enjoying beneficially, before his father’s death in 1968, the proceeds from that portion.”
The learned judge further postulated that there should have been a prior family inspection of the farm earmarked for Elizabeth Nyanta before the family could give its consent, which in his view, was a sine qua non of validity. He said: “It was necessary for them to know the subject-matter and the extent of the gift in question.” In the course of the trial the defendant was also most vehement in his challenge of an inter vivos gift, contending that the only gift disclosed to the family was that which was declared at a family meeting in 1967. Accordingly the best complexion to be placed on the plaintiff s argument of an earlier gift in 1962, was that it was an inchoate gift sought to be perfected by the death-bed declaration of the late Ohene in 1967.
Before considering this crucial issue, it is desirable to state now that nothing in this appeal turns on the nuncupative will of 1967. There is the consensus that a valid death-bed disposition had been made by the deceased; all that was to be ascertained was the quantum of the estate to be apportioned whether it should include or exclude the area claimed by Elizabeth Nyanta.
The defendant in his evidence relating to the 1967 samansiw said, inter alia:
“In 1967 late Ohene summoned a family meeting in which he told the members that he was seeking their permission to grant a portion of this farm to his wife and children. And we, the family, gave our consent to his doing so. The late Ohene died before the members of his family of whom I am one, granted the portion of the farm to his wife and children.”
There is no dispute that the family thereafter attempted to comply with the deceased’s behest. It is to be regretted therefore that the trial court held that the samansiw had not been proved. In my view the learned judge fell in error in chasing the will-o’-the wisp of a document which purported to set out the deceased’s bedside wishes which he castigated as spurious. Even if this document were suspect, it could not detract from the overwhelming evidence of samansiw, which it only purported to confirm.
Turning then to the issue of the 1962 gift, it must be noted that it was an off-shoot of the main action for the enforcement of the samansiw. It arose thus: In paragraph (5) of his statement of claim, the plaintiff described the land to which he sought a half share for his brothers and sisters as: “having boundaries with the farms of Adjoa Kuma, Kwame Nsuapim, Kyei, Elizabeth Nyanta, Anto Osei Yaw and Kofi Abiri.” In his answer in paragraph (5) of the defence, the defendant referred to the land in issue with the same boundary neighbours but significantly omitted the name of Elizabeth Nyanta as a boundary owner. The plaintiff s oblique assertion that Elizabeth Nyanta was a boundary owner of the land available for sharing out was thus challenged by the defence.
The plaintiff was compelled in his reply to state as follows:
“(5) In further reply to paragraphs (8) to (11), the plaintiff says that it was some time in 1962 that the late J.E. Ohene made a grant of part of his farm to his wife Elizabeth Nyanta who gave an aseda of one sheep, two cases of Fanta plus £G8 in the same year to the knowledge and in the presence of Ama Dapaa, Mansah Akoto, Afua Manu, Yaw Asante, Kwasi Baafi (all members of the defendant’s family) Akyeamehene Yaw Boateng, Kwasi Adae, Kwame Mensah and Kofi Fofie.
(6) The plaintiff says that the grant of the portion of the farm made to Elizabeth Nyanta is separate.
That was a gift inter vivos, and that took effect and vested in the donee during the lifetime of the late J.E. Ohene, who made a plan for the farm.”
As far as this earlier gift is concerned clearly an onus lay on the plaintiff to establish it. The plaintiff could only succeed, if he could show a perfected gift distinct and separate from the farm that remained for sharing out. It is thus indirectly that proof of the earlier gift has been brought in these proceedings, and has become the crucial issue for determination.
It is true that a claim of a gift from a deceased person must always be approached with caution if not suspicion. In this respect the customary law is no different from the common law. For as was said by Brett M.R. in In re Garnett; Gandy v. Macaulay (1885) 31 Ch.D. 1 at p. 9, C.A.:
“The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any Judge who hears it out to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine [of corroboration] becomes absurd.”
This was a case where beneficiaries executed a release of all suits and causes of action in favour of an aged aunt, in respect of their share of valuable residuary property in ignorance of its true worth. Twenty years after, the beneficiaries having learnt of the true value of what they had
[p.93] of [1975] 2 GLR 89
given away, sought an impeachment of the release. It was held, after a careful scrutiny of the evidence (in view of the demise of the aunt) that the release was invalid and must be set aside as all the parties were ignorant of the true value of the stocks that constituted the residue. Thus also in Thomas v. Times Book Co., Ltd. [1966] 2 All E.R. 241, the court scrutinized with great suspicion evidence of a gift of a manuscript of the late Dylan Thomas to a B.B.C. producer. Plowman J. asserting at p. 244:
“I am enjoined by authority to approach their story with suspicion having regard to the fact that the other actor in this story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place.”
This disability arising from the death of a donor also inspires the concern of our customary law to ensure the impeccability of evidence relating to a gift. The customary law achieves this by insisting on formal acceptance and due publicity. The late Bentsi-Enchill J.S.C. in Hausa v. Hausa [1972] 2 G.L.R. 469 C.A. puts this in incomparable language in the following passage at pp. 474 – 475:
“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 . . . 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 hereby prevented from becoming a gift. Secondly, where no gift was intended by a putative donor, a purported acceptance in the presence of witnesses affords 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 . .
Turning now to the fount and inspiration of all the formulations on this aspect of acceptance of a gift we find Sarbah saying in his Fanti Customary Laws (3rd ed.) at p. 81 as follows:
“Acceptance is made—
(i) By rendering thanks with a thank-offering or presents, alone or coupled with an utterance or expression 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.”
[p.94] of [1975] 2 GLR 89
A donee who proves acceptance by any of the four modes is entitled to demand that the seal for validity be placed on his gift.
It must also be stated that consent by members of a family to a gift inter vivos of the self-acquired property of a donor is no longer necessary. The position remains as Sarbah stated in his Fanti Customary Laws (supra) at pp. 97-98.
“The owner of self-acquired property can in his lifetime deal with it as he pleases, and where he intends to give the whole or a portion of it to his child by a freeborn wife, Adihiwa, or to any person not a member of his family, he does so before his death.”
A number of recent decisions in the superior courts has questioned the power some judges have vouchsafed members of a family to the participation as witnesses and sometimes extending to a veto in the disposal of a donor’s self-acquired property: see the recent case of In re Armah (Decd.); Awotwi v. Abadoo [1975] 1 G.L.R. 374, C.A. To oblige a donor to summon members of his family to ascertain their consent or to witness a gift ceremony is to impose an undesirable fetter on the free exercise of a donative power. It has been pointed out elsewhere that the donor, donee and even the family may well be embarrassed by this procedure and all parties must be spared the ordeal.
The greatest proponent of the contrary view is Ollennu who in his Principles of Customary Land Law in Ghana and the celebrated case of Summey v. Yohuno [1960] G.L.R. 68 made remarks which implied that the presence of members of the family at the gift ceremony was necessary to ensure its validity. Six years after the Yohuno case the learned judge expressed the same view in Yoguo v. Agyekum [1966] G.L.R. 482, S.C. In that case Ollennu J.S.C. (as he then was) said at pp. 493 – 494:
“A valid gift, under customary law, is an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstances of the case may permit. For purposes of the required publicity, the gift is made in the presence of independent witnesses, some of whom should be members of the family of the donor who would have succeeded to the property if the donor had died intestate and, also, in the presence of members of the family of the donee who also would succeed to the property upon the death of the donee on intestacy. The gift is acknowledged by the donee by the presentation of drink or other articles to the donor; the drink or articles are handed to one of the witnesses—preferably a member of the donee’s family, who in turn delivers it to one of the witnesses attending on behalf of the donor; libation is then poured declaring the transfer and the witnesses share a portion of the drink or other articles. Another form of publicity is exclusive possession and the exercise of overt acts of ownership by the donee after the ceremony . . .”
[p.95] of [1975] 2 GLR 89
(The emphasis is mine.) In Yeboah v. Tse (1957) 3 W.A.L.R. 299 Ollennu J. (as he then was) stated that such alienation “must take place in the presence of witnesses, some of whom may be members of his family.” It would seem therefore that the essential validity of a gift inter vivos no longer depended on the presence of witnesses from the donor’s family. One is tempted to think of this as a modification of the learned judge’s views on the matter until one realises that the judgment in Yeboah v. Tse (supra) was given in 1957. It seems therefore that the learned judge’s views were rather crystallising in a direction opposite from those of his learned brethren. Yoguo v. Agyekum (supra) therefore represents a retraction and a recantation of the freedom to dispose of self-acquired property without the family shackles advocated in the Tse case.
However the 1957 view that the presence of members of the family was not obligatory was commended and approved in Atuahene v. Amofa, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 154 in which the learned judge and author participated and concurred. This is the present state of the laws, which in my view is the more progressive approach to an area of law which is fluid with the rapid social changes experienced in this country.
In Quashie v. Baidoe, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 153 Akufo-Addo C.J. reading the judgment which was concurred in by Lassey J.A. said:
“With the rapid development of the concept of absolute ownership in property, has also developed a gradual whittling down of the traditional principles of custom relating to the disposition of property by property owners. When a person has acquired an absolute ownership in property, that is, one that is not in any manner incumbered by a family claim, it sounds unrealistic to require that such an owner, when he is disposing of his property by sale or gift, should do so in the presence of his family. The rationale for any such publication has completely disappeared and the common practice now is that an absolute owner of property is entitled to do with his property as he wishes without any reference to his family.”
We must respectfully endorse this and the further passage in the learned Chief Justice’s judgment, that:
“[T]he requirement that the family must necessarily witness the transaction has ceased to have any meaning in present day Ghanaian society in cases where the property involved is self-acquired property, and has therefore ceased to have any juridical significance.”
It is clear therefore in view of the powerful judicial criticism alluded to, that the old view that members of the donor’s family must participate in a gift either by attesting as witnesses or giving their consent no longer retains any credibility. With respect, therefore, the learned trial judge erred in elevating to the pinnacle of an essential requirement of a gift inter vivos, the consent or prior viewing of the subject-matter of the gift by members of the donor’s family.
[p.96] of [1975] 2 GLR 89
A further criticism of Yoguo v. Agyekum (supra), which must be dealt with in passing, appears in the passage quoted. There is the implication that additional to the aseda ceremony there must be proof of exclusive possession and that the formulation of Sarbah should be read conjunctively rather than disjunctively. The answer to this is also provided by Quashie v. Baidoe (supra), where it was said per Akufo-Addo C.J.:
“It will be observed that the validity of a gift depends initially on the intention of the donor to part with the property in the subject-matter of the gift to the donee. This intention no doubt must be expressed at the time of making the gift. The gift must be accepted in one of a number of ways one of which is by ‘rendering thanks with a thank-offering’.”
(The emphasis is mine.) And again later in the judgment he said: “Sarbah lists four alternative ways of accepting a gift, one of them being the rendering of thanks with a thank-offering.”
Having disposed of this preliminary error in law, into which the learned trial judge fell, I will now turn to the central issue for determination in this case, which is the validity of the 1962 gift inter vivos. It may be useful to refer to authority for some guidelines as to proof of a gift. In Mensah v. Kyei, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C. 97, it was said:
“The donee’s primary duty is to lead evidence to show that it was the intention of the donor to make a gift of the land to him. This onus is discharged by calling witnesses who were present at the gifting ceremony to say that the gift of the land was made voluntarily to the donee by the donor, or by giving evidence of subsequent declarations of the donor of having made a gift of the land to the donee at the same prior date.”
Turning to the facts, I do not see anything inherently unsatisfactory about the evidence relating to a prior gift in 1962, given by the plaintiff s first, second and their witnesses and the defendant’s first witness. It is only natural that a husband would wish to record his appreciation for help received from a wife in establishing his farm. There is no better form of expressing this gratitude than by apportioning some part of the joint effort to the wife. This is of common occurrence. The evidence of a gift was not in any way faulted. The view the trial judge took that evidence led for the plaintiff bore the same hue and therefore might have been rehearsed, finds no support from the record.
The late J.E. Ohene employed a caretaker who had authority over the Kokookrom farms. His surveillance was all embracing as he had power to sell cocoa from the farm and account for the proceeds. An examination into the disposition of the Kokookrom farm must consequently begin with a consideration of the evidence of this caretaker, the defendant’s first witness, Yaw Alfred Asiama. His short crucial evidence, which remained uncriticised by the learned judge was as follows:
[p.97] of [1975] 2 GLR 89
“In or about 1962 late Ohene entrusted to me the caretakership of his cocoa farm – and some time after this late Ohene told me that he wanted to give a portion of this farm to his wife and children, and he took me and my brother-in-law to the farm at the boundary line between this farm and that of one Kye, and from this sport we made a track along this boundary right to a point on the boundary between his farm and that of Anto -there he said that that portion of the farm embraced by that track thus made by us and the timber track there was to belong to his wife and children.”
The defendant’s first witness stated that this demarcation was made two years after his employment in 1962, i.e. in 1964. It follows that this gift was quite distinct from the one contemplated in 1967 when the late Ohene was actually ill and which was later perfected in 1968.
That the gift was perfected and Elizabeth Nyanta placed in possession is evidenced by the fact that traditional boundary flowers were planted to separate and distinguish the late Ohene’s farm from his donee’s. The caretaker also deposed that the late Ohene’s wife and children went into possession of the land demarcated for them, though he continued to oversee the farm and sell the cocoa produce and account to the deceased. (I must however confess that this part of the record is not easy to follow.) It is to the testimony that the caretaker still accounted to Ohene for proceeds from the whole farm that the respondents have attached considerable importance, in urging the inference that there was no gift, and the late Ohene only contemplated making a gift which was announced to the family in 1967 and completed after his death by the family in 1968. But the fact that a donor who is a husband or father continues to made use of revenue from property gifted to a wife or children cannot detract from the validity of the gift. It is usual in the Ghanaian context for husbands and fathers to do so in the general practice of good husbandry: see also Quashie v. Baidoe (supra).
The fact that Elizabeth Nyanta had received an earlier gift was borne out by the plans admitted as exhibits A2 and A3. The learned judge dismissed their effect on the wholely tenuous ground that there was no affidavit verifying them by the deceased and that since the compilation of data had been the work of field assistants of the surveyor who were not called, evidence of the surveyor offended hearsay rules. As to plans the statute only requires that the licensed surveyor certifies his plan: see the Survey Act, 1962 (Act 127), ss. 6-12. This ensures that there is someone to fall on in case of inaccuracy. Acquaintance with survey work, in particular the drawing of plans, as derived from experience in our courts, discloses that survey details and data are invariably collected by field assistants and recorded in field note books. The surveyor utilises these details in drawing up his plans. He vouches for the plans when he imprints his stamp on the plans. One would venture to say that the making of plans would inexorably impeded court work if all surveys and measurements were to be personally undertaken by the licensed surveyor.
[p.98] of [1975] 2 GLR 89
The most telling answer to these criticisms, however, is to be found in the evidence of the caretaker who not only attested to the gift to Elizabeth Nyanta but also to the demarcation of her portion and the donor’s perpetuating the same on a plan. To traduce the plans for the reasons given in the learned judge’s judgment seems in my view an unwarranted and erroneous evaluation of evidence. The learned judge lost sight of the fact that the neutral witness called as the defendant’s first witness, in whose evidence he found no blemish, tilted the scales in favour of the plaintiff on the issue of gift vel non.
In Yoguo v. Agyekum [1966] G.L.R. 482, S.C. Ollennu J.S.C. stated the principle of law, which I feel persuaded must be applied in evaluating the force of neutral evidence. The learned judge said at p. 494:
“The law as I understand it is that, where parties to a suit make contradictory averments and agree that there is one independent person seised of all the facts and whose evidence can therefore resolve the conflict, and that person gives evidence which confirms one of the averments as against the other, the trial court ought to reject the version which is not supported and accept the one which is corroborated by the independent witness except for very good reason which it should clearly state in the judgment.
To the same effect is the following statement in Tsrifo V v. Dua VIII [1959] G.L.R. 63 at pp. 64-65 approved in Osei Yaw v. Domfeh [1965] G.L.R. 418 at p. 423, S.C.:
“Where the evidence of one party on an issue in a suite is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a Court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the Court finds the corroborated version incredible or impossible.”
Again in Asante v. Bogyabi [1966] G.L.R. 232, S.C. Siriboe J.S.C. said at p. 240:
“Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, as appears to be so in the instant case on appeal, then it seems to be right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view…”
There is overwhelming evidence of a gift to Elizabeth Nyanta and her children of part of the deceased’s farms made between 1962 and 1964, with the accompanying aseda or acceptance drink and token, sealing the gift. It is corroborated by the evidence of the defendant’s first witness, the caretaker of the deceased’s farm who of all people should know the state and correct history of the deceased’s farms. There is also the documentary evidence of a plan showing Elizabeth Nyanta as an owner of adjoining
[p.99] of [1975] 2 GLR 89
property; a plan attested to by the surveyor who drew it and the caretaker, as having been commissioned by the deceased and consequently is against his interest. On such prolific evidence any attempt to impeach the gift would fail unless the defence could prove a recall of the gift or its revocation: see Quashie v. Baidoe (Supra). There is not a scintilla of evidence in support of either. In my view the plaintiff s case was made out and judgment should have been entered in his favour.
For the above reasons, I would allow the appeal and declare the plaintiff and his brothers and sisters entitled to a half-share of their late father’s cocoa farm at Kokookrom, as described on the plaintiff s writ. As to the second relief, for an order for payment of amounts due from proceeds on the farm, I would dismiss the same as not proved.
JUDGMENT OF SOWAH J.A.
I agree.
JUDGMENT OF ANIN J.A.
I also agree.
DECISION
Appeal allowed.
S.Y.B.-B.
