Customary gifts in Ghana case law.

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).

IN RE OHENE (DECD.); ADIYIA v. KYERE [1975] 2 GLR 89 [1975] SLR (CA) 20 · Court of Appeal · 1975 · FRANCOIS JA

While it may be said that prescriptive title is unknown to customary law and the mere use and occupation of land cannot itself oust an original title, the very user for a number of years unquestioned, is as much a fact as any other to be taken into account when determining whether there was a gift or not.

AIDOO AND ANOTHER v. GYASI [1975] 1 GLR 267 [1975] SLR (CA) 10 · Court of Appeal · 1975 · FRANCOIS JA

A gift inter vivos is a voluntary and gratuitous transfer of any property from the donor to the donee. The transfer is usually with the clear intention that the thing shall not return to the donor and also with the clear intention that the donee shall obtain absolute dominion over the thing to the exclusion of the donor himself and all other persons. No gift inter vivos of a chose in possession can be effective, in the absence of a deed of gift, without delivery.

SUMMEY v. YOHUNO AND OTHERS [1962] 1 GLR 160 [1962] SLR (SC) 8 · Supreme Court · 1962 · CRABBE JSC

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.”

IN RE OHENE (DECD.); ADIYIA v. KYERE [1975] 2 GLR 89 [1975] SLR (CA) 20 · Court of Appeal · 1975 · FRANCOIS JA

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.”

IN RE OHENE (DECD.); ADIYIA v. KYERE [1975] 2 GLR 89 [1975] SLR (CA) 20 · Court of Appeal · 1975 · FRANCOIS JA

The circuit judge’s scathing rejection of the evidence of a gift, and her criticism of the appellant’s inability to call members of the family to attest to the gift, overlook three facts. Firstly that the late Enninful lived far away from his family at Kyebi, and strangers do not customarily witness gifts made inter vivos; secondly that the time lapse between the execution of the gift and its challenge was such that the natural demise of a lot of witnesses was a biological eventuality. Thus in the context of a sale (and the principle applies equally to this case), Adumua-Bossman J. (as he then was) said in Dodoo v. Gyansa [1960] G.L.R. 9 as reported in the headnote that: “Proof of ownership need not be restricted to the evidence of the vendor and to that of eye-witnesses of the sale, who may or may not be alive when litigation arises. Evidence of acts of ownership in relation to the property during the material years is of no less probative value.”

AIDOO AND ANOTHER v. GYASI [1975] 1 GLR 267 [1975] SLR (CA) 10 · Court of Appeal · 1975 · FRANCOIS JA

Now the plaintiff pleaded a gift of the land made to her by customary law five years before the dispute arose. To establish a gift by customary law, the plaintiff should prove, among other things: (i) the identity of the land satisfactorily, by giving the correct description thereof; (ii) that the gift was made in the presence of witnesses; and (iii) that owners of adjoining lands who were present at the inspection agreed on the boundaries demarcated or shown by the donor or grantor. We cite with approval the following statement of the law as to the essentials of a grant of land by customary law as appears in the Land Court judgment in Asare v. Teing1 which is as follows: “The essentials of a valid gift made in accordance with customary law are: publicity, acceptance, and placing the donee in possession. The way to give publicity to a gift of land is to make the gift in the presence of witnesses, particularly members of the family of the donor who would succeed to the property upon the donor’s death intestate; and the acceptance must be evidenced by the presentation of ‘drink’ or some small amount of money to the donor, part of which is served to or shared among the witnesses to the transaction. Possession is given by taking the donee to the land, owners of the adjoining lands having been given previous information to stand on their boundaries and the donee is taken round the said boundaries.”

BARKO v. MUSTAPHA AND ANOTHER [1964] GLR 78 [1964] SLR (SC) 14 · Supreme Court · 1964 · SARKODEE-ADOO CJ

To claim land as a customary gift enter vivos, therefore, it must be established, quite apart from the usual customary formalities, that (1) the gift was voluntary and gratuitous; (2) that the gift was made in the lifetime of the donor; (3) there was a full intention that the land shall remain the property of the donee without restoring it to the donor; and (4) that the donee accepted the gift and went into possession of the land, either physically or constructively, during the life-time of the donor.

SUMMEY v. YOHUNO AND OTHERS [1962] 1 GLR 160 [1962] SLR (SC) 8 · Supreme Court · 1962 · CRABBE JSC

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 patently lacking in this evidence of the first defendant. 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.

MAHAMA HAUSA AND OTHERS v. BAAKO HAUSA AND ANOTHER [1972] 2 GLR 469 [1972] SLR (CA) 26 · Court of Appeal · 1972 · BENTSI-ENCHILL JSC

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 RE OHENE (DECD.); ADIYIA v. KYERE [1975] 2 GLR 89 [1975] SLR (CA) 20 · Court of Appeal · 1975 · FRANCOIS JA

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.

IN RE OHENE (DECD.); ADIYIA v. KYERE [1975] 2 GLR 89 [1975] SLR (CA) 20 · Court of Appeal · 1975 · FRANCOIS JA

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.

IN RE OHENE (DECD.); ADIYIA v. KYERE [1975] 2 GLR 89 [1975] SLR (CA) 20 · Court of Appeal · 1975 · FRANCOIS JA