AWISI v. NYARKO.[1966] GLR 3

Division: HIGH COURT, SUNYANI

Date: 11 JANUARY 1966

Before: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) Abbey v. Ollennu (1954) 14 W.A.C.A. 567.

(2) Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Co. [1894] 1 Ch. 578; 63 L.J.Ch. 366; 70 L.T. 131; 10 T.L.R. 186.

(3) Lamptey v. Lamptey (1919) F.C. Feb. ‘19, 41.

(4) Tawia v. Danso (1926) F.C. ‘26-’29, 135.

(5) African Association v. Smith (1905) 1 Ren. 358.

(6) Bimba v. Mansah (1891) Sar.F.C.L. 137.

(7) Adai v. Daku (1905) Red. 231; 1 Ren. 348.

(8) Mensah v. Ackwonu (1919) F.C. Feb. ‘19, 31.

(9) Boakye v. Broni (1958) 3 W.A.L.R. 475.

(10) Priestley v. Fowler (1837) 3 M. & W. 1; 150 E.R. 1030.

[p.5] of [1966] GLR 3

NATURE OF PROCEEDINGS

APPEAL from a decision of the Tano Local Court in an action for a declaration of title to and possession of a cocoa farm. The facts are fully set out in the judgment.

COUNSEL

P. D. Anin for the appellant.

Owusu-Ansah for the respondent.

JUDGMENT OF HAYFRON-BENJAMIN J.

This is an appeal from the decision of the Tano Local Court held at Yamfo on 2 March 1965. The plaintiff was by that decision declared the owner of the cocoa farm, the subject-matter in dispute, which is at a place commonly known and called “AHYIAYEM” on Yamfo stool land and bounded by the cocoa farms of Akosua Kraa, Amma Nsuapem, Adwoa Ayisi the defendant and Kofi Darko.

The plaintiff’s case in the trial court was that the farm in dispute is one of two farms given to her by her late husband one Kwame Nyina as a gift. This gift was in the presence of witnesses and she accepted the gift, and gave her husband some drink and some money by way of aseda. She entered into possession by placing a caretaker, one Gruma, in charge of the farm, who harvested the crops twice for the plaintiff. The defendant claiming to have been given this same farm as a gift by the same man collected the third crop which had been harvested by the caretaker, and this was the immediate cause of the litigation. She further said, and this is amply supported by the evidence on the record, that after her husband had subsequently purported to give this farm as a gift to her rival, the defendant, she lodged a complaint to one Kwasi Achiampong, the former Akwamuhene. There was an arbitration and the husband was found in the wrong, and ordered to pacify the plaintiff and to give the farm back to her.

The defendant’s answer to this case is that the farm was given to her as a gift, and that it was never given to the plaintiff at all. The local court magistrate, despite the tortuous style in which he framed his judgment, found as a fact that the farm was first given to the plaintiff and then to the defendant. He also accepted the evidence as to the arbitration. The questions that arise for the determination in this appeal are therefore:

(1) whether the defendant is bound by the arbitration award; and

(2) if not whether the husband could validly revoke a completed gift to the plaintiff.

In Abbey v. Ollennu,1 a vendor sold and conveyed land to the defendant, who built on the land in ignorance of the fact that after

[p.6] of [1966] GLR 3 his purchase, and before he built, the plaintiffs had sued his vendor and obtained a declaration of title in their favour. The plaintiffs then sued the defendant for recovery of possession of the land and argued that the defendant was bound by the declaratory judgment obtained against the defendant’s vendor. It was held by the West African Court of Appeal that the defendant was not estopped as being privy in estate by a judgment in an action against his vendor commenced after the purchase. Foster-Sutton P. delivering the judgment of the court relied on the case of Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Co.2 in which Romer J. said,3 “A prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase.” I am of the view therefore, and I hold that the arbitration award is not binding on the defendant.

However, the local court magistrate as I have said above found as a fact that there were two gifts. There is some evidence on the record to support this finding and even though this court might not have reached the same conclusion as the local court magistrate, had the case been tried here, I am not entitled to reverse this finding of fact unless it is proved or established to be clearly wrong and against the weight of the evidence. As Smyly C.J. said in the case of Lamptey v. Lamptey4:

“Although if I had been the Judge of first instance my verdict might have been different, I do not consider that the verdict of the Native Tribunal, as affirmed by the Provincial Commissioner, was so contrary to the weight of the evidence as would justify me in reversing the judgment given.”

On the question of fact found by a judge trying a case without a jury, an appellate court will presume that the decision of the judge on the facts was correct and will not disturb it unless the appellant satisfactorily makes out that it is wrong: see Tawia v. Danso.5 The evidence need not be conclusive, it will be sufficient if there is some evidence of each necessary element and if the court below was satisfied on such evidence: see African Association v. Smith.6 In this case I am satisfied that there was such evidence to support the local court magistrate’s finding of fact, and that the appellant has failed to discharge the onus that lies on her to make out satisfactorily that the

[p.7] of [1966] GLR 3 finding is wrong or against the weight of the evidence. I therefore accept this finding of fact and proceed to consider the case on that basis. A point of considerable practical importance arises for determination, and it is this: whether under customary law a completed gift is revocable.

It is of importance because as K. Bentsi-Enchill says at pp. 365-366 of his book on Ghana Land Law: “It may be observed that it is only by virtue of the presence of English law that a doubt may be said to arise in the minds of Ghanaian lawyers trained in that law as to whether gifts under the indigenous law are revocable or not, especially as many a gift of land is now made by instruments modelled on English precedents. For with us gifts appear to be made on the basis of a general assumption of continued good relations and gratitude, and while it might be objected that the multifarious grounds listed by Sarbah as grounds for taking back a gift or for the nullity of a gift leave too wide a scope for arbitrariness on the part of a donor, the view that gifts under the indigenous law are revocable on serious grounds can be said to be the prevalent one, and the one which on the fact of past decisions a present-day court would take.” Ollennu in his book on Customary Land Law is clear and categorical that a completed gift is irrevocable. Bentsi-Enchill (supra) says at p. 366 that Sarbah involves himself in a contradiction. At p. 364 of his book he quotes a passage from p. 81 of Sarbah’s Fanti Customary Laws (2nd ed.) where the learned author says:

“What is given by a person in wrath or excess of joy, or through inadvertence, or during minority or madness, or under the influence of terror, or by one intoxicated, or extremely old, or afflicted with grief or excruciating pain, or what is given in sport, is void.

Where anything is given for a consideration unperformed, or to a bad man mistaken for a good one, or for any illegal act, the owner may take it back.”

Bentsi-Enchill says that this is contradicted by Sarbah on the same page when he says:

“Every gift when completed is irrevocable, except in gifts between parent and child, which can be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declarations.” [p.8] of [1966] GLR 3

With the greatest deference to the learned author, I do not see where Sarbah contradicts himself in the passages quoted above at all. In the first part of the quotation Sarbah is saying that where there are circumstances in which an inference can be made that the donor did not intend to make any gift, the purported delivery of the chattel or transfer of the land is null and void. The question as to its revocability does not arise at all. There never was a gift, it is nudum pactum, void and of no effect whatsoever under customary law. In the second part of the first quoted passage all the learned author can be reasonably understood as saying is that where a gift is given subject to a condition, non-performance of that condition effectively prevents the gift from taking effect in law. He is here describing a conditional gift, and I do not see any novelty in the proposition thus stated; that where a gift is made under a mistake, the gift is voidable. He gives one example typical of customary law, i.e. a gift to a bad man mistaken for a good man. We must remember as Bentsi-Enchill himself says that “with us gifts appear to be made on the basis of a general assumption of continued good relations and gratitude.” Examples of this are not difficult to find. Where A. gives a gift of land to B. his good friend to build near to his house so that they both can live in the same neighbourhood, and B. unknown to A. is carrying on an illicit affair with A.’s wife at the time of the gift, customary law says that the reason of the gift is non-existent and therefore the gift can be taken back. It is true that customary law has not gone so far as to divide the subject of mistake into Roman law categories such as error in re, error in persona and error in qualitate, etc. but it is clear that mistake as to the identity of the subject-matter of the gift, or the identity of the donee at least will prevent a gift from coming into effect. When lawyers say that a transaction is voidable, they mean that there is something tainting the execution of that transaction and inherent in it which renders it imperfect. When they say that a sale is voidable, they do not mean that something has subsequently occurred to vest in the vendor the power of revocation. They mean for example that the sale itself was not effected with the necessary consents required by law. In Roman and French law for example ingratitude is a ground for revoking a gift. This obviously must be ingratitude subsequent to the making of the gift. What Sarbah is saying is that if there is a mistake, illegality, etc. at the time of the gift, an essential term which customary law implies in gifts is missing and therefore the transaction is voidable. Where the gift is complete that is when it is not conditional and where there is no mistake, illegality etc., it is irrevocable. I cannot see any contradiction in this.

[p.9] of [1966] GLR 3

I must now consider the decided cases on the revocability of gifts. The first chronologically is Bimba v. Mansah.7 This case is not very relevant as it was decided on the principles of English law. Redwar Ag.J. in his judgment said8:

“A further point was raised by plaintiff’s counsel that, according to native custom, a gift is revocable. He has produced no authority for this proposition, and the cases cited tend rather the other way. In the absence of any authority as to the native law on this point, I feel myself bound to be guided by the settled principles of English law on cases of this kind, and to hold that although it may be doubtful whether this was a purchase, even as a voluntary gift it is good against the grantor himself, and those claiming under him.” The report itself, like all the cases reported in the early compilations of reports in this country is not satisfactory, and we therefore do not know which cases were cited which the learned judge considered to tend the other way. However in Adai v. Daku,9 the Full Court seems to have held that a gift under customary law is revocable for good cause. There is stated in the headnote of the report in Redwar’s Comments that this case overruled the decision in Bimba v. Mansah.10 This is also stated in Griffith’s Digest at p. 90. I shall quote the relevant portions of the judgment of Smith J. with which Griffith C.J. concurred to show that this assertion is not warranted. He says11:

“Defendant said ‘he begged me to beg Plaintiff to give him some land to eat on it’—an expression which I have known used when one asks an owner of land to occupy and cultivate it, the ownership of the land in no way being parted with. Here is a native asking for land of another native, and that land given to him according to native custom. Surely this custom must govern the case. It was admitted by the learned Counsel for the Appellant that lands are not absolutely given away by natives, and it is for this reason that lands are so frequently and willingly given away by natives. The native knows that the land is still his, and that he can take it back should an adverse claim be made by the person to whom it is given. The person to whom it is given knows that he can use the land as long as he likes, provided he recognizes title in the owner. No gifts of land would be made by the natives if such gifts are to be taken as absolute gifts. Nor [p.10] of [1966] GLR 3 can the custom be said to be inequitable, for both parties know and agree to the terms under which the gift is made.”

The learned judge then goes on12:

“The assertion of an adverse claim, and the prosecution of that claim by one who has been allowed to occupy land and use it as against the person from whom he gets the land, I have always known to be considered good and sufficient reason to eject the one setting up the claim from the land.”

It seems to me that the learned judge in this case confused gifts and customary grants of land. The distinction must be drawn; gifts extinguish the title of the donor in land (except the right of reversion in the remote case of the donee dying intestate and without heirs) whereas under customary grants the grantor or donor retains the title or ownership in the land. The early courts frequently confused these two fundamentally different transactions. It was not their fault, as the judges being expatriate had to rely completely on the interpretation of terms by court interpreters whose knowledge of English was not accurate to say the least. Moreover Sarbah’s statement at p. 81 of his Fanti Customary Laws (2nd ed.) that “Gifts, in the European sense of the term, as far as regards immovables, seem to be unknown here” is apt to be misleading to the memory. Where A. asks of B. to give him some land to eat on it, it takes a bold person to say that if B. does so, he has divested himself of his title to the land: Adai v. Daku (supra). I am of the view that this is a case on customary grants and not on gifts. It is undesirable to use the word gift even if qualified or softened by the epithets “limited,” “conditional,” “determinable” or “revocable” to describe a transaction that bears no relation to what is usually known as a gift under customary law. However, even if my view of the ratio decidendi in Adai v. Daku (supra) is not well-founded, I can still find comfort in another decision of the Full Court where that case was considered. In the case of Mensah v. Ackwonu13 (a case which was not considered by Bentsi-Enchill) Smyly C.J. observed that the case of Adai v. Daku only decided that14 “by Native Customary Law an absolute gift was not to be presumed, the tendency of Native Customary Law being against it. It does not decide that an absolute gift cannot be made.”

In Boakye v. Broni15 Ollennu J. (as he then was) came down heavily on the side of the irrevocability of gifts under customary law.

[p.11] of [1966] GLR 3

He said16:

“A gift of land made inter vivos is irrevocable once it is completed and the donee is placed in possession. The defendant therefore is not entitled to revoke the gift, which upon the evidence he effectively made some forty years ago to the plaintiff’s predecessor.”

Bentsi-Enchill at p. 369 of his book (supra) criticises this judgment on the ground that “it asserts without any supporting authority the proposition that such gifts are irrevocable” and that the main reasoning in the case is focused on establishing that the gift was validly made in the first instance and that since the gift was validly made, such gifts are ex hypothesi irrevocable. “This judgment” he submits at the same page, “may well be good persuasive authority on issues such as estoppel by conduct and agreement or contract; but not on the issue as to whether or not gifts are revocable.” I must confess that this is the first time that I have heard that a superior court of competent jurisdiction, in a legal system which abides by the doctrine of precedent is of no persuasive authority, namely, because the pronouncement of the law contained in that judgment is based on no authority. Nobody has ever discovered the origin of Lord Abinger’s dogma in Priestley v. Fowler17 which remained for more than a century the basis of the whole law of common employment until finally uprooted by statute, and yet no one can seriously challenge the proposition that until it was abolished by the legislature, the doctrine of common employment was part of the common law of England. The mere fact that Ollennu J. did not quote any authority for his proposition does not in my view derogate or affect in any way its binding effect on inferior courts or its strong persuasive effects on courts of equal and co-ordinate jurisdiction and even on higher courts. Of all the decisions examined by Bentsi-Enchill this is the only one delivered by a Ghanaian judge of massive experience in customary law, and not subject to the handicaps of language, etc., which afflicted the early expatriate judges and their interpreters. Bentsi-Enchill relies heavily on Adai v. Daku (supra) and states at p. 367 (supra) that the view of the law, i.e. that gifts are revocable for good cause, “might be said to be generally prevalent.” And as I have already said, and as Smyly C.J. said in Mensah v. Ackwonu (supra), Adai v. Daku does not even support the view that absolute gifts are revocable under customary law. It seems strange to me to say the least therefore that the learned author could have observed anywhere a general prevalence of the view that gifts are revocable. [p.12] of [1966] GLR 3

The textwriters and the two reported cases Mensah v. Ackwonu (supra) and Boakye v. Broni (supra) therefore indicate that under customary law a gift once complete is irrevocable except in gifts between parent and child. Applying this principle to this case therefore, I must hold that the purported revocation by the husband of the gift to the plaintiff was ineffectual. The husband therefore had no title or interest in the farm to enable him to make a subsequent gift of it to the defendant. Nemo dat quod non habet is a maxim which has found favour with the customary law. In the result I must dismiss the appeal with costs which I assess at 75 guineas inclusive of 50 guineas for counsel.

DECISION

Appeal dismissed.

E. D. K.