COURT OF APPEAL
DATE: 5 JUNE 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) Yeboah v. Tse (1957) 3 W.A.L.R. 299.
(2) Majolagbe v. Larbi [1959] G.L.R. 190.
(3) Klutse v. Nelson [1965] G.L.R. 537, S.C.
(4) Dyer v. Dyer (1788) 2 Cox Eq.Cas.92;2 W. & T.L.C. 749; 30 E.R. 42.
(5) Warren v. Gurney [1944] 2 All E.R. 472, C.A.
(6) Sey v. Abadoo (1885) Sar. F.C.L. 132; 1 Ren. 65.
(7) Vanderpuije v. Plange (1942) 8 W.A.C.A. 170.
(8) Asante v. Gold Coast Drivers Union (1957) 3 W.A.L.R. 5.
(9) Summey v. Yohuno [1960] G.L.R. 68; Oll.C.L.L. 223.
(10) Nartey v. Nartey (1953) 14 W.A.C.A. 295.
NATURE OF PROCEEDINGS
APPEAL from a decision of the High Court, Sekondi, dismissing the plaintiff’s action for, inter alia, declaration of title to land. The facts are fully set out in the judgment of Apaloo J.A.
COUNSEL
C. F. Hayfron-Benjamin Jnr. (with him Owusu Yaw) for the appellant.
T. D. Brodie-Mends for the respondent.
JUDGMENT OF APALOO J.A.
This is from the judgment of the High Court, Sekondi, (Bruce-Lyle J. as he then was) dated 24 January 1964. By the judgment, the court dismissed an action brought by the appellant (hereinafter called the plaintiff) against the respondent (hereinafter referred to as the defendant) for a declaration of title to land and building situate at Ashanti Road, Takoradi, described as plot No. 21 and for recovery
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of the sum of £G312 which the plaintiff claimed the defendant collected as rent form tenants of the said premises.
The plaintiff was born in June 1927. He is the son of the late Osmond Alfred Hughes who died in or about 1959. He has a serious deformity in the leg and is a near cripple. The learned trial judge described this as an abnormality in one leg. His late father was a qualified pharmacist and was, for many years, employed in that capacity by government. Some years before his death, Mr. Hughes retired from government service on pension and thereafter set up private practice as a pharmacist. The plaintiff who left school in 1954, was for a while, in the employment of Messrs. Elder Dempster Lines as a book-keeper but in 1955, he left this employment at his father’s request and joined the latter in his dispensary. He continued to assist his father in his dispensary until his death about 1959. The evidence suggests that the late Mr. Hughes formed a great attachment for the plaintiff and both seemed to have lived together in affection till the former’s death.
In 1937, when the plaintiff was aged ten, his father applied for the leasehold premises the subject-matter of this action. Although the application for the land was admittedly addressed to the Assistant Commissioner of Lands by the late Mr. Hughes, it purported to come from Kofi Osmond which, on the undisputed evidence, is the plaintiff’s name. The applicant gave his address as c/o O.A, Hughes and the application was signed simply as “Kofi Osmond.” The application was successful and on 8 June 1938, the Governor of the Gold Coast acting by the Commissioner of Lands executed a lease in which the land in question was demised to “Kofi Osmond” for a term of 99 years subject to the usual covenants. There is no evidence as to who executed the lessee’s part of the document, but it seems clear that this was done by the plaintiff’s father who merely wrote the name of the lessee as “Kofi Osmond.”
A photostat copy of the original lease was produced in evidence and this shows that it is a building lease. The lessee covenanted to erect on the demised plot a building approved by the Commissioner of Lands within a period of three years from the date of the demise and the lease reserved to the government, a right of re-entry if this covenant be broken. It would seem that the late Mr. Hughes was not particularly well-off from a financial point of view, and by 1941, no building had been erected on the demised plot in accordance with the covenant in the lease. The evidence shows further that although the erection of a building on the land was commenced some time afterwards, it had not been completed by October 1949.
Accordingly, the government sought to re-enter the plot and served on the plaintiff’s father a notice of re-entry.
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The latter’s reaction to this letter is significant. Mr. Hughes procured the plaintiff to write to the Commissioner of Lands to plead for an extension of time. He himself drafted for the plaintiff, a letter in which the delay in completing the erection of the building was said to be caused by the scarcity of building materials necessitated by war conditions and post-war control. The plaintiff got this letter typed out and signed it in his name as Kofi Osmond. According to the plaintiff, his father got him to apply forthe extension because the latter told him that the original acquisition of the plot was made in his name.
This letter which was dated 3 November 1949, was produced from the official file of the Lands Department and the plaintiff identified his signature. The plaintiff’s evidence on this part of the case was not disputed and was in fact found to be true by the learned trial judge. If the late Mr. Hughes did not intend this plot to be a gift for the plaintiff, his conduct on this score seems difficult of explanation. The request in this letter was acceded to and this eventuated in the execution by the Government and Kofi Osmond of a new lease dated 9 August 1952, and two supplementary deeds bearing the dates, 31 October 1955 and 28 September 1956, in which the time was extended for the completion of the building on the demised plot. The lessee’s part of the deed was again executed by the late Mr. Hughes who wrote the name of the lessee again as “Kofi Osmond.” This, it is to be noted, was the same way in which he executed the original lease of June 1938, and this fact would itself have been of no significance but for the matter to be presently mentioned. In the original lease, apart from describing the lessee as Kofi Osmond of Takoradi, no further particulars were furnished of him, but in the supplementary deeds of 1955 and 1956, he was described as a government pensioner. The plaintiff’s father was in fact on pension in 1955 and this description fitted him. It was therefore argued for the defendant and accepted by the court that the late Mr. Hughes obtained the plot in question for himself, using Kofi Osmond his alias for this purpose. Later in this judgment, I would venture to suggest that that argument was wrong.
The evidence shows that the plaintiff’s father intended to erect on the plot a two-storey building but he succeeded in completing only the ground floor. When he retired, he moved into this house with the plaintiff and his other children and this house became their home until Mr. Hughes’ demise in 1959. This litigation arose because upon the plaintiff’s father’s death intestate, the defendant who is his sister, was appointed his customary successor and she, claiming the house to be the property of the deceased, proceeded to collect rents
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from tenants of the house and asserted that the house belonged to the deceased. The plaintiff disputed this and for his part, claimed that the land and building was a gift made to him by his late father in the latter’s lifetime. Accordingly, the plaintiff claimed that both the legal and beneficial ownership of the land and building vested in himself long before his father’s death and that the late Mr. Hughes had no title which he could transmit to the defendant. In addition to providing evidence as to how the lease and the supplementary deeds came to be executed, the plaintiff also led oral evidence which shows that his father’s object in obtaining the lease in his name was to make a gift of it to himself. On this, the plaintiff testified that at about Christmas time in 1939, his late father assembled his children including the plaintiff and in the presence of their mother, the late Mr. Hughes said he had obtained a plot of land at Takoradi in the plaintiff’s name and was going to erect a building on it for him. The reason which, according to the evidence, Mr. Hughes gave for singling out the plaintiff for this bounty, is his physical deformity. This evidence was corroborated by Akua Sumaa the plaintiff’s sister and was accepted by the learned trial judge.
The plaintiff also led oral evidence of two other matters which were not disputed but to which the learned judge did not expressly advert and as the judge did not in any way express dissatisfaction of the plaintiff as a witness, it is reasonable to conclude that had he addressed his mind to it, the judge would have accepted that also. They are firstly, that from 1974 to 1955, the late Mr. Hughes requested the plaintiff to give up his salary to help defray the cost of building materials purchased from the Ghana Consolidated Machinery & Trading Co.,Ltd. (G.C.M.T.), to erect the building on the plot in dispute and that the plaintiff did so. Secondly, that Mr. Hughes even on his death-bed, declared in the presence of the plaintiff’s mother and his brothers and sisters that the land and building in question belonged to theplaintiff. This further evidence goes to strengthen the presumption of advancement which would have arisen by reason of the fact that the plaintiff’s father procured the leasehold in question in the plaintiff’s name.
The defendant did not contest any but one of the main facts of this case. She is herself married and it would seem, lives with her husband and does not appear to know a great deal about her brother’s intimate personal and married life. She knows nothing about the acquisition of the plot in question nor how the building came to be erected on it. She also said, no doubt truthfully, that her brother did not inform her nor any member of her family that he had gifted the property in dispute to the plaintiff or anyone else. She however disputes the fact that in obtaining the plot in dispute in the name of Kofia
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Osmond, the late Mr. Hughes intended to benefit the plaintiff. She claimed that the late Mr. Hughes obtained this plot for his own beneficial enjoyment inasmuch as Kofi Osmond is another name by which her late brother was known. This is vehemently disputed by the plaintiff who said in evidence, “My father’s native name was Kobina Afedzi” and at the tail-end of his evidence, he swore that, “My father was not also known as Kofi Osmond.” To disprove the defendant’s claim that the deceased intended to benefit himself by the lease, he produced in evidence, the originals of two letters which his father wrote to the lands Department while forwarding ground rents for the plot in question. These two letters were received by the Lands Department in the ordinary course of business and bore the received stamp of the department and there is no doubt about their genuineness. The first of those letters was dated at Accra on 21 November 1945, and was acknowledged to have been received by the Lands Department at Sekondi on 26 November. The second was dated at Accra on 12 November 1946, and was acknowledged at Sekondi Lands Department on 14 November of the same year.
In the earlier of the two letters, that is that of 21 November 1945, Mr. Hughes forwarded to the lands Department, Sekondi, a postal order for 35 shillings “for the payment of plot No. 21 Ashanti Road, Takoradi, in favour of Kofi Osmond for one year.” This letter was signed by the late O.A. Hughes “for Kofi Osmond.” The second of the two letters is more revealing. It would seem that Mr. Hughes had before writing the letter of 12 November 1946, forwarded a postal order of 25 shillings to the Lands Department, Sekondi, in payment of the annual ground rent for the plot in question. Perhaps through oversight, he purported to make the payment in his own name and did not indicate, as he had done in his letter of November 1945, that he was making the payment on behalf of “Kofi Osmond.” The Lands Department therefore seemed to have returned the postal order as O.A. Hughes as such was a stranger to the plot. The late Mr. Hughes therefore wrote the letter of 12 November 1946, in which he explained the position and, inter alia, said, “I regret to inform you that I was paying for my son Kofi Osmond, plot No. 21 Ashanti Road, as I am not having the papers with me here. I regret the error.” He then enclosed a postal order of 35 shillings which was received and acknowledged by the Lands Department. It appears therefore that the only issue of fact debated before the learned judge was whether or not the late Osmond Alfred Hughes was otherwise known as Kofi Osmond and if he was, whether he acquired the plot in dispute for his own beneficial enjoyment. There appears to be no difficulty about the law which was applicable to the facts. Although this was not pleaded, the plaintiff’s statement of
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claim proceeded on the footing that the equitable doctrine of advancement applied but in paragraph (2) of the statement of defence, it was pleaded that the gift, if made, sinned against customary law as no member of the late Hughes’ family was present at the date of the alleged gift. To this, the plaintiff replied that the gift was publicised and that it did not offend customary law. When the parties appeared before the judgeon a summons for directions, the plaintiff sought and the judge granted leave to the plaintiff to add to the reply that “And in any event, the transaction was governed by the principles of the common law and equity.”
After hearing evidence, the learned judge expressed himself as willing to apply in the determination of this case, the equitable presumption of advancement if the facts justified the application of that doctrine.
He however held that, “Kofi Osmond was an alias for Osmond Alfred Hughes and that the late Hughes obtained the plot in question in his own name and for his own beneficial enjoyment.” Accordingly, he concluded that there was no room for applying the presumption of advancement. He then proceeded to consider whether the gift could be held valid by customary law. He stated correctly the requirements of a valid donatio inter vivos in accordance with customary law and referred to some decided cases. The judge held that while the late Hughes was entitled to make a valid gift of the plot to the plaintiff without reference to his family, he concluded that this gift failed in customary law inasmuch as there is no evidence that the plaintiff customarily accepted the gift by giving his father, in return, customary drinks or aseda. The judge’s mind seemed to have been troubled by the two letters which the plaintiff’s father wrote to the Lands Department enclosing a postal order in payment of ground rent and in particular, the letter of 12 November 1946, which the late Mr. Hughes acknowledged over his signature that he was making the payments on behalf of his son “Kofi Osmond.” The judge disposed of that question by holding that “they are apparent declarations of the late Hughes’ intention to make a subsequent gift of this plot of land to the plaintiff” but the judge held that that intention was not in fact carried into effect and that no valid gift was thereby made. Accordingly, the judge concluded “that this property belonged to the late Osmond Alfred Hughes at the time of his death and devolved on intestacy on his customary successor.” The judge therefore held that the plaintiff was neither entitled to the declaration of title which he sought nor to the rents of the house and proceeded to dismiss the action. It is against this judgment that this appeal has been brought.
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Before us, it was submitted for the plaintiff, that the judgment was against the weight of evidence. Counsel referred to that part of the statement of claim in which it was averred that when the defendant applied for letters of administration, the plaintiff filed a caveat and the house in question was excluded from the grant. This was pointed out to have been admitted by the statement of defence and it was said this aspect of the matter was overlooked by the learned judge. It is next argued that the learned judge was wrong in holding that the late O.A. Hughes was the owner of the plot in question. Counsel for the plaintiff conceded that no gift was made in accordance with customary law to the plaintiff but he submitted that the transaction in question was governed by the common law which includes the doctrines of equity. It was said the plot in question was obtained by the late Hughes in the name of his son the plaintiff and there was therefore a presumption of advancement which was not rebutted.
For the defendant, it was urged that the only law which was properly applicable to this case was customary law. Counsel strongly relied on section 66(1) of the Courts Act, 1960(C.A. 9), but did not specify which of the rules laid down by that section governs the transaction. On the basis that customary law was the only relevant law in this case, counsel submitted that the judge correctly stated the essential prerequisites of a customary gift and contended that the learned judge was right in holding that no valid customary gift of the plot was made to the plaintiff by his late father. Counsel submitted in the alternative, that even if common law as opposed to customary law was properly applicable to these facts, there could be no presumption of advancement in the plaintiff’s favour as the plot in question was acquired by the plaintiff’s father in his own name and for his own benefit. Counsel referred to the two supplementarydeeds and the evidence that they were executed by the plaintiff’s father who was there described as a government pensioner. Counsel finally submitted that although he was making no concession on that score, if this court held, contrary to his contention, that the equitable doctrine of advancement was properly invokable in the plaintiff’s favour, it could only relate to the plot and not the building erected on it.
In my opinion, if the rights of the parties fell to be determined exclusively by customary law, then no one can justifiably quarrel with the learned judge’s conclusion that no valid customary gift of this plot was made to the plaintiff by his late father. But the plaintiff did not found his claim on customary law but on the principles of the common law. Both systems of law are concurrently administered in this country and the question which falls to be answered on this appeal is: by which of these system of law is the right of the parties
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to be determined? Section 66(1) of the Courts Act, 1960 (C.A.9), prescribes rules by which the court should be guided and rule 3 seems to me particularly apposite on the facts of this case. It provides as follows:
“Subject to Rule 1, where an issue arises out of any unilateral disposition and it appears from the form or nature of the disposition or otherwise that the person effecting the disposition intended that such an issue should be determined according to the common law or any system of customary law effect should be given to the intention.”
The question therefore is: Can it be said on a consideration of the totality of the evidence in this case that the late Mr. Hughes intended that his disposition of this plot be governed by the common law? In my opinion, this question should be answered in the affirmative. It cannot be supposed that Mr. Hughes who was an educated man was unaware of what he was doing when he applied for leasehold property in a name other than the one by which he was commonly known and when he wrote to the government that he was paying rents due in respect of that plot as agent for his son. He also said on diverse occasions that he wanted to benefit his son and a mature man of his age and standing cannot have been ignorant of the method of making a valid gift by customary law. Mr. Hughes thought he had made a valid gift of this plot to the plaintiff and affirmed this even on his death-bed. He did not make it by a method known to customary law and if he thought the gift valid, he must have been conversant with the common law doctrine that the mere acquisition of property in his child’s name presumes a gift in his favour which is perfected by his declared wish to benefit the child. Accordingly, I think, that Mr. Hughes intended that any issue as to whether or not the disposition of this plot was valid should be determined in accordance with common law and effect therefore ought to be given to that intention. But rule 3 is however subject to rule 1 which says:
“Where two persons have the same personal law one of them cannot, by dealing in a manner regulated by some other law with property in which the other has a present or expectant interest, alter or affect that interest to an extent which would not in the circumstances be open to him under his personal law.”
True, both the late Mr. Hughes and his family which the defendant represents, have the same personal law and the family have an expectant interest in his self-acquired property on his death intestate. But since under Mr. Hughes’ personal law, that is Fante customary law, Mr. Hughes could alienate his self-acquired property without
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reference to the family (see Yeboah v. Tse (1957) 3 W.A.L.R.299 at p. 301) he was not precluded by this rule from disposing of the plot in question by a method valid under the common law. It follows that in myjudgment, the law by which the validity or otherwise of the disposition of the plot in question should be determined, is the common law which by virtue of section 17 of the Interpretation Act, 1960 (C.A. 4), includes the doctrines of equity. Accordingly, I reject the contention of counsel for the defendant that the rights of the parties to this appeal should be determined exclusively by customary law. In so holding, I find myself in agreement with the learned trail judge who was himself willing to apply the equitable presumption of advancement to the facts.
If this be the correct law to be applied, the next question which falls to be answered is: Has the plaintiff proved that the plot in dispute was purchased by his late father in his name? There can be no argument that the lease of the plot in question was obtained in the name of Kofi Osmond. There is equally no question that that is the name of the plaintiff and it would seem, prima facie, that this lease was acquired in the plaintiff’s name. The defendant however disputes this and asserted that it was acquired in the name of the plaintiff’s father, Kofi Osmond, being one of the names by which he was known. The plaintiff says this is entirely false as the only other name by which the late Mr. Hughes was called, was Kobina Afedzi.
The plaintiff proved and indeed the defendant admitted that Kobina Afedzi was another name of O.A. Hughes. The defendant therefore took upon herself the onus of proving that one of the names by which her late brother was called was Kofi Osmond. This allegation that Kofi Osmond was one of the aliases for O.A. Hughes was denied by the plaintiff both in the pleadings and in evidence. Yet the only evidence which the defendant led to relieve herself of this onus was a bare assertion that “He was also known as Kofi Osmond.” If indeed the late O.A. Hughes was also known as Kofi in addition to what appears to be his week-day name of Kobina, it should not, I think, be difficult for the defendant to put in the witness-box other persons apart from herself who knew him by that name. The only witness whom the defendant called and who was close enough to the family to know this, was Mr. Otoo the defendant’s husband. He admitted frankly in answer to a question from the court that he did not know that the late O.A. Hughes was also called Kofi Osmond. Thus, the defendant entirely failed to prove that which she asserted and the learned judge ought to have held that it was not proved that the late O.A. Hughes was also known as Kofi Osmond: see Majolagbe v. Larbi [1959] G.L.R. 190 at p. 192 approved in Klutse v.Nelson [1965] G.L.R. 537, S.C.
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That being so, in my judgment, the only conclusion which the proved facts warrant, is that the leasehold plot in question was acquired by the late O.A. Hughes in the name of his son, the plaintiff. Even if the defendant had succeeded in proving that O.A. Hughes was otherwise known as Kofi Osmond, it would have availed her little, because the plaintiff’s father wrote in a letter of 12 November 1946, to which I have already referred, that he was paying the ground rents on their plot for his “son Kofi Osmond.” As I have said, the learned trial judge accepted the argument that Kofi Osmond was the name of the plaintiff’s father because in the supplementary deeds of 1955 and 1956, he executed the deeds as Kofi Osmond who was therein described as a government pensioner. The judge therefore reasoned that if O.A.Hughes did not intend the plot for himself he would have sought to correct the description of the lessee which he must have known to be wrong. But in view of the overwhelming evidence that the late Mr. Hughes obtained this plot for the benefit of the plaintiff and executed the lease and supplementary deeds as the latter’s agent, the description of the lessee as a government pensioner in the 1955 and 1956 documents can only have been mere misdescriptions with hardly any consequence. With respect, I think the learned trial judge put too much weight on and made too much of what are clearly a false demonstration. He was, in my opinion, in error in that. Indeed it would have been plainly contrary to the good conscience of the plaintiff’s father if he had in his lifetime, sought to take advantage of this misdescription and asserted title in himself to this land. But Mr. Hughes never repented of this gift and affirmed it even when he lay dying.Accordingly, the position which resulted at law on the proved facts of this case, was as held in Dyer v. Dyer (1788) 2 Cox Eq.Cas. 92, namely that: if a father buys property whether freehold or leasehold and has it put in the name of his son or daughter, prima facie, it is a gift to the child. This is however a presumption which can be rebutted by evidence of the actual intention of the purchaser. The burden of refutation is on the person who alleges that no gift to the child was intended. It would follow from this, that if the defendant wished to displace the legal presumption of a gift, she was obliged to lead evidence for which it may be inferred that the late Mr. Hughes did not, by purchasing this leasehold in the plaintiff’s name, intend to benefit him. The defendant did not produce a title of evidence from which this presumption can be negatived. On the contrary, the plaintiff produced cogent oral and documentary evidence which leaves one in no doubt that the late Mr. Hughes’s object was to confer a bounty on his physically handicapped son. Indeed, the learned trial judge was constrained to find that the plaintiff’s father
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intended to make a gift of the plot to him. I conclude therefore that the late Mr. Hughes made a perfect donation inter vivos of this plot to the plaintiff and this gift, was at his death, entirely beyond recall.
It was, as I said, finally submitted for the defendant, that even if a gift of this plot could be said to be made to the plaintiff, this did not include the building erected thereon. This is a wholly unattractive submission. If this contention is right, it would mean that while Mr. Hughes intended that the plaintiff should be the owner of the plot, he at the same time intended that the latter should hold the building in trust for himself. There is hardly any reason for this and this submission ignores the evidence which the learned judge accepted, namely, that the late Mr. Hughes said about Christmas time 1939, that he acquired this plot to build a house thereon for the plaintiff. Quite apart from this, this wholly unmeritorious contention can be met by the legal maxim that quicquid plantatur solo, solo cedit. In my opinion, the late Mr. Hughes made a valid gift of the land and building in dispute to the plaintiff in his lifetime and he had no title to either the land or building which could lawfully devolve on the defendant. I think the learned trial judge was wrong in holding the contrary. It follows that in interfering with the plaintiff’s rights thereto and in collecting rents from the tenants in the premises, the defendant was in trespass. In paragraphs (7) of the statement of defence, the defendant admits collecting £G266 as rents from the tenants in the premises in question. She was not entitled to these moneys and she will have to pay them over to the plaintiff.
Accordingly, I would allow the appeal and set aside the judgment appealed from. In lieu of it, I would make a declaration that plot No. 21 Ashanti Road, Takoradi, belongs to the plaintiff together with the buildings and structures thereon. I would order that the defendant do pay to the plaintiff the sum of £G266 collected by her as rent from the said house. I would also order that the defendant also account to the plaintiff any other sums paid to or otherwise received by her by way of rents or profits from the said building. The plaintiff is entitled, as against the defendant, to costs in the High Court and I would assess these £G75 or N¢150. He will also have his costs in this court.
JUDGMENT OF OLENNU J.A
I agree
JUDGMENT OF AZU CRABBE J.A.
I also agree entirely with the conclusions of my brother Apaloo, and only wish to make some few observations of my own.The facts of this case have been fully set out in the judgment of Apaloo J.A. and therefore I do not think that I ought to recapitulate
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them here, except those that are necessary to elucidate my own judgment. The only issue settled for trial was whether the beneficial ownership of the land and house passed to the plaintiff during the lifetime of the plaintiff’s father, the late Osmond Alfred Hughes. In his judgment the learned trial judge stated the plaintiff’s case thus:
“The plaintiff has relied on his evidence that the plot of land was obtained in his name Kofi Osmond and that once the lease was drawn up in accordance with English form the whole transaction is to be governed by the English law. That the plot of land having been obtained by late Hughes in the plaintiff’s name, the equitable principle of presumption of advancement applied and a trust was therefore created by exhibit B in favour of the plaintiff. The plaintiff’s counsel further contended that the existence of such a trust is more strengthened by exhibits D and A the letters written by Hughes to the Lands Department paying the rents in respect of the plot and mentioned that the rents were being paid on behalf of the plaintiff.”
Before considering whether the equitable doctrine of advancement applied in the case the learned judge thought that he must first decide whether or not the plot of land and the subject-matter of the dispute was obtained by the late Hughes for the plaintiff. In the process of deciding this it became necessary, in the view of the learned judge, to consider the subsidiary issue whether or not Osmond Alfred Hughes was also known as Kofi Osmond. As regards this subsidiary issue he found that the late Osmond Alfred Hughes was also known as Kofi Osmond. His main reason for making this finding is contained in the following passage of the judgment:
“Late Hughes was an educated man and it is presumed that he read exhibit B before he executed the same. If it had been his intention from the very onset to be obtaining this lease for the plaintiff, and in the plaintiff’s own name, he would certainly have discovered when reading exhibit B before executing it that the description of Kofi Osmond as “government pensioner” was a mistake and would have done something about it. I am sure he executed exhibit B because he knew that the name Kofi Osmond he had signed on the leases referred to himself and not to his son, the plaintiff. In the circumstances I am satisfied that late Hughes signed as Kofi Osmond because he was aware that he was also known as Kofi Osmond.”
The learned judge then came to the firm conclusion that the late Hughes originally obtained this plot of land for himself and in his
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other name of Kofi Osmond. Consequently, he held that the equitable doctrine of advancement did not apply, and he proceeded to consider whether there was a valid gift to the plaintiff under customary law.
After considering the essential requirements of a gift of land inter vivos under customary law the learned judge again held that the plaintiff had failed to satisfy the requirements. At the hearing of this appeal it was argued that on the admissible evidence the learned judge should have held that Osmond Alfred Hughes was known as Kobina Afedzi and not Kofi Osmond, and that he erred in holding that the late Osmond Alfred Hughes was himself the owner of the land not a trustee for the plaintiff.
On the evidence it is abundantly clear that the late Osmond Alfred Hughes took a lease of the land, the subject-matter in dispute, in the name of his son, the plaintiff, who was suffering from a physical disability, with the object of making provision for him. This in equity would raise a presumption of advancement in favour of the plaintiff. This principle was lucidly stated by Morton L.J. in Warren v. Gurney [1944] 2 All E.R. 472 at p. 473, C.A.:
“It is well established that when a parent buys a property and has it conveyed into the name of his child, therearises a presumption that the parent intended to make a gift or advancement to the child of that property. Of course, that is a presumption which can be rebutted by evidence that that was not the father’s intention.”
The onus was therefore on the defendant to rebut this presumption in favour of the plaintiff by evidence of the actual intention of the purchaser. The best evidence in this regard would be a declaration by the person who supplied the purchase money at the time of the purchase. In Snell’s Principles of Equity (25th ed.)at p.168 it is stated:
“The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration; subsequent acts and declarations are only admissible as evidence against the party who did or made them, and not in his favour.”
In this case the conveyance to the plaintiff was first made in 1938 after the plaintiff had written an application dated 3 July 1937, on the advice of his late father. In this application the plaintiff used his father’s address, and there can be no doubt that the property was intended as a gift to the plaintiff. Subsequent acts and declarations of the plaintiff’s father are evidenced by exhibits A and D and exhibit
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1, all of which show a clear intention to benefit the plaintiff. This is evidence in support of the presumption. Of exhibits A and D the learned trial judge said that these were apparent declarations of the late Hughes’ intention to make a subsequent gift of the plot in dispute to the plaintiff, and that there was no subsequent gift to plaintiff. With the greatest respect to the learned trial judge, I think that he completely misunderstood the equitable doctrine of advancement.
The operation of the presumption is evidential and is not based on the actual intention of the donor. Thus in Dyer v. Dyer (1788) 2 Cox Eq.Cas. 92 at pp. 93-94 Lord Eyre C.B. said: “[t]he circumstance of one or more of the nominees being a child or children of the purchaser, is to operate by rebutting the resulting trust; and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstance of evidence, that we should be disturbing land-marks if we suffered either of these propositions to be called in question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine, if the children had been considered as purchasers for a valuable consideration . . . This way of considering it would have shut out all the circumstances of evidence which have found their way into many of the cases, and would have prevented some very nice distinctions, and not very easy to be understood. Considering it as a circumstance of evidence, there must be of course evidence admitted on the other side. Thus it was resolved into a question of intent, which was getting into a very wide sea, without very certain guides.”
It seems to me that the only rebutting evidence which the learned judge found in the case for the defence were the two supplementary leases, exhibit 2 dated 31 October 1955, and exhibit 3 dated September 1956.
In both documents the lessee is described as Kofi Osmond, “government pensioner.” The learned trial judge made great capital of this description, and this was the only factor which decided him against the presumption of advancement. But with respect, I think the words”government pensioner” are a misdescription, and even if they are not, they are clearly declarations of the plaintiff’s father subsequent to the transaction in 1938 and are therefore inadmissible to rebut the presumption of advancement. A similar point arose in Warren v. Gurney (supra) where a father bought a house in the name of his daughter Catherine in 1929, retaining the title-deeds. By a document written in 1943 he expressed the desire that the house should
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belong to his three daughters. On the father’s death in 1944, Catherine claimed the house. The Court of Appeal rejected the document written in 1943, it not being contemporaneous with the purchase of the house. In his judgment, in which the other members of the court concurred, Morton L.J. said (regarding the document of 1943) at p. 473: “It was in the nature of a subsequent declaration by the alleged donor, which was not against his own interest, and it is clearly established that subsequent declarations by the alleged donor are only admissible if they are against his interest. The reason for that is quite obvious. If the rule were otherwise it would be extremely easy for persons to manufacture evidence, even although at the time when they made the purchase they in fact intended the child to have the gift of the property.”
In my view, therefore, even if exhibits 2 and 3 are evidence of conveyance of the land to the plaintiff’s father himself. I think that these will not avail the defendant as evidence to rebut the presumption of advancement. Both were declarations subsequent to exhibit B and ought to be rejected, and consequently there is no other evidence to rebut the presumption of advancement in favour of the plaintiff. It was, however, contended by Mr. Brodie-Mends on behalf of the defendant that since the late Osmond Alfred Hughes and the plaintiff were Ghanaians the law applicable in this case is the customary law, and that the plaintiff failed to prove a valid customary gift. For the plaintiff Mr. Hayfron-Benjamin contended that English law was applicable. The question therefore that arises for determination is, which system of law applies – the common law or the customary law? This question can sometimes be solved by referring to section 66(1) of the Courts Act, 1960(C.A. 9) which provides that the court ought to be guided by certain rules. Of these rules the only two which appear to be relevant in this case are Rules 1 and 3 which are stated as follows:
“Rule 1. Where two persons have the same personal law one of them cannot, by dealing in a manner regulated by some other law with property in which the other has a present or expectant interest, alter or affect that interest to an extent which would not in the circumstances be open to him under his personal law.”
“Rule 3. Subject to Rule 1, where an issue arises out of any unilateral disposition and it appears from the form or nature of the disposition or otherwise that the person effecting the disposition intended that such an issue should be determined according to the common law or any system of customary law effect should be given to the intention.”
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I do not, however, think that there is need for the application of these rules, unless it is shown that the transaction which forms the subject-matter of the dispute has some features common to both the common law and the customary law. For as Mr. Bennion explains in his book, Constitutional Law of Ghana at p. 451: “The rules in subsection (1) apply in two categories of cases. In the first place they apply where it is necessary for the court to decide whether the common law or customary law should govern a particular issue. In the second place, they apply where it is necessary for the court to decide which of two or more different customary law systems are to apply.
It should be noted that the subsection applies to issues not to cases as a whole. Where a number of different issues arise in one case it may well happen that some issues fall to be decided under the common law, while others are governed by customary law.” The disposition by the late Osmond Alfred Hughes is clearly a gift known to English law, and for the customary law to be made applicable to the transaction, there must be rules of the particular customary law available for the issue in dispute. Mr. Sarbah in his famous book, Fanti Customary Laws (2nd ed.) at p. 81, described customary gifts and states, “Gifts, in the European sense of the term, as far as regards immovables, seem to be unknown here.” As regards gifts to children the learned author again states,“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 declaration.”
A gift to a child or minor according to custom is invalid, unless it is accepted on his behalf by an adult. Nowhere in his chapter on gifts does Mr. Sarbah deal with a gift analogous to the doctrine of advancement in English law, and the difference between the creation of gift inter vivos under customary law and the English law is very obvious. It seems to me, therefore, that the gift created by the late Osmond Alfred Hughes is outside the purview of the customary law, and that it is not therefore necessary for the court to resort to Rule 3: see Sey v. Abadoo (1885) Sar. F.C.L. 132; Vanderpuije v. Plange(1942)8 W.A.C.A. 170 at p. 171; Asante v. Gold Coast Drivers Union (1957) 3 W.A.L.R. 5 at p. 9 per Adumua-Bossman J. (as he then was). In my view, therefore, the submission that the customary law ought to be applied is misconceived. But even if the court considers it necessary to apply Rule 3, I think the
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dominant question would be the intention of the party making the disposition, and this is an issue of fact for the court. In this case the evidence that the late Osmond Alfred Hughes intended a gift by way of advancement for his son is overwhelming, and the only law applicable is the common law. It is perhaps necessary to examine the position from the stand-point of the customary law, since the learned judge examined that aspect of the matter, and to show that he again erred. The learned judge began his examination of the customary law position by saying: “It is the customary law of this land that a person in his lifetime can dispose of his self-acquired property in the way he likes without reference to his family-Yeboah v. Tse (1957) 3 W.A.L.R. 299 at p. 301 – but such dispositions are valid subject to certain conditions being fulfilled.”
Then after citing the case of summey v. Yohuno [1960] G.L.R. 68 in which the requirements of a customary testamentary disposition have been discussed, the learned judge said: “With this position of the law, I find that what late Hughes did in his lifetime by calling his wife and children and declaring that he had acquired the plot of land for the plaintiff and that he would build on it for the plaintiff does not satisfy the legal requirements of either a customary testamentary disposition of the land and building or a gift inter vivos of the land to take effect immediately. The common factor of the requirements in both cases of disposition of property is acceptance by or on behalf of the beneficiary or donee indicated by the giving and receiving of drinks. There is no evidence either by the plaintiff or his sister, Akua Sumaa, that the plaintiff or his mother on his behalf accepted and thanked late Hughes by the giving of the necessary and customary aseda, for the declaration so made by him. I therefore find that there was no gift of this plot of land or the house or both to the plaintiff. If this evidence of the plaintiff and his sister is to be accepted then the most that can be said of it is that late Hughes made known his intentions of a subsequent gift of this land or the house or both to the plaintiff.” With the greatest respect to the learned trial judge, I think that he fell into an error when he said that putting the case at the highest the late Osmond Alfred Hughes only manifested an intention to make a gift of the land or the house or both to the plaintiff. It is sufficient,
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in my view, to refer to Nartey v. Nartey (1953) 14 W.A.C.A 295, where a father acquired property after he had executed a will, and he made a gift of that land to his infant daughter in the presence of her mother and other persons. Thereafter he had buildings erected on the land by contractors, with whom he signed an agreement as executing the agreement with the contractors on behalf of his said infant daughter. The court held that there was a valid gift in customary law as there was publicity in making the gift and user by the donee in that the deceased erected a building on the land for her before his death. Giving hisjudgment in the case Coussey J.A. said at p. 297: “Referring to p. 80 of Sarbah’s Fanti Customary Law, Mr. Benjamin has argued that the evidence establishes only an intention on the part of the deceased to make a gift to the infant in suit No. 22/1951, but that there was in fact no gift. 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.”
Concluding Coussey J.A. said at pp. 297 – 298, “The law of trusts has not been misapplied as learned counsel for the appellants has submitted.” The facts in Nartey v. Nartey (supra) appear to be somewhat similar to those of the present case, for there the issue was, as in this case, whether the property, subject-matter of the suit, was the plaintiff’s property by gift inter vivos or whether it formed part of the residuary estate under the will of the deceased. It would appear that on the facts of the present case one of the essential requirements of a customary gift inter vivos -publicity – was satisfied and that is enough.
It is for the above reasons that I also think that the appeal should be allowed.
DECISION
Appeal allowed.
K.S.N.D.
