KOOMA ALIAS AIKINS vs. EKUA ALIAS HAYFRON AND OTHERS [1997-98] 1 GLR 831

CASES REFERRED TO

(1) Mensah v Lartey [1963] 2 GLR 92, SC.

(2) Swapim v Ackuwa (1888) Sar FCL 191.

NATURE OF PROCEEDINGS

APPEAL by the defendant-appellants from the judgment of the High Court, Cape Coast in favour of the plaintiff-respondent declaring, inter alia, that an oral customary gift made by the father of the plaintiff to his children including the deceased father of the defendants, created a joint tenancy and not tenants in common for the children and therefore the plaintiff and the only other surviving child were the owners of the property and in the result granted the plaintiff’s claims for trespass and perpetual injunction against the defendants. The facts are sufficiently stated in the judgments of Essilfie-Bonzie and Baddoo JJA.

COUNSEL

Miss Ekua Hafron[sic](1) -Benjamin for the defendant-appellants.

Charles Hayibor for the plaintiff-respondent.

JUDGMENT OF ESSILFIE-BONZIE[sic](2) JA.

This is an appeal from a judgment of the High Court, Cape Coast in favour of the respondent (hereinafter referred to as the plaintiff). The claim made by the plaintiff in the High Court against the appellants (hereinafter referred to as defendants) as appearing in the amended writ of summons for herself and on behalf of her brother Kwesi Pokoo Aikins Jnr. as follows:

“(1) An order of ejectment from house No F 14/4, Kotokoraba Road, Cape Coast.

(2) A declaration that the late Francis Jonas Aikins had no capacity to make dispositions relating to the said house which are contained in paragraphs (2), (3) and (4) of the deceased’s will dated 13 May 1991 and that the said disposition are null and void.

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(3) Mesne profits and a return of all rents and moneys collected by the defendants from the tenants in the said house.

(4) Recovery of possession.

(5) Perpetual injunction restraining the defendants, their agents, servants or workmen or both from having any thing to do with the land.”

The claims of the plaintiff are based mainly on paragraphs (5), (6) and (7) of the amended statement of claim where she pleaded as follows:

“(5) In land suit No 55/1966 entitled Ebusuapanyin Kobina Foh v Jonas Reginald Aikins and Francis Jonas Aikins, it was decided by the High Court, Cape Coast that house No F14/4, Kotokoraba Road, Cape Coast was acquired jointly by Bedford Aikins Jnr and Isaac Rowland Aikins as joint tenants and that therefore on the death of J B Aikins Jnr the house became the sole property of Isaac Rowland Aikins.

(6) Six months before his death, Isaac Rowland Aikins made a customary gift inter vivos of the house to his children: James Reginald Aikins, Kwesi Pokoo Aikins Jnr, Adjoa Esson, Francis Jonas Aikins, the plaintiff and Kwesi Pokoo Aikins Jnr as joint tenants and the donees have held and treated the property as such ever since.

(7) The plaintiff will therefore contend that she and Kwesi Pokoo Aikins Jnr, the surviving children of the late Isaac Rowland Aikins, are the persons entitled to the ownership and possession of the said house.”

The evidence reveals that both parties agree and admit that in land suit No 55/1966 the High Court decided that house No F14/4 Kotokoraba Road, Cape Coast, the property in dispute, was acquired jointly by Jacob Bedford Aikins Jnr and Isaac Rowland Aikins as joint tenants. There is also no dispute that on the death of JB Aikins Jnr the house became the sole property of Isaac Rowland Aikins.

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It was the plaintiff’s case that the gift made inter vivos by the late I R Aikins to his children, including the plaintiff and the late Francis Jonas Aikins (the father of the defendants) created an interest in joint tenancy. The case of the defendants on the other hand was that the said gift created a tenancy in common. So that the central issue joined between the parties at the trial court is “whether or not the children of the late Isaac Francis Aikins owned house No 14/4 Kotokoraba Road, Cape Coast jointly or in common.” In other words, the action called upon the court to interpret the nature of the gift made inter vivos by the late Aikins to his children including the plaintiff.

As indicated above, the learned trial judge gave judgment in favour of he plaintiff. In doing so he said, inter alia, as follows:

“It is clear, therefore, from the above analysis that the transferor, I R Aikins intended to create a joint tenancy and the transferees have displayed conduct from which an inference can sufficiently and conclusively be made of an understanding and knowledge that each of them had a joint interest in the subject matter.”

The learned trial judge then went on to make an order that the defendants should vacate and give the house in dispute to the plaintiff.

The defendants appealed from that judgment on a number of grounds but the only ground argued by learned counsel for the defendants is ground (a) of the original grounds of appeal, namely: “(a) That the learned trial judge erred both in law and on the facts by misdirecting himself when he held that the gift inter vivos made by I R Aikins created a joint tenancy in favour of his children; the terms of the said gift which in evidence was as follows:

‘In the course of the libation he prayed to God and confirmed the gift he had made to his children about the house and wished God’s blessing for his children and their children who would be living in the house forever.’”

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In her submission, learned counsel argued that the evidence in support of the finding that the gift inter vivos created a joint tenancy was inadequate. She contended that since the gift was oral, the claim was based on whether or not the donees took as joint or common tenancy. She maintained, that I R Aikins gifted his property to his children as tenants in common and not as joint tenants as claimed by the plaintiff. In support of this submission, learned counsel for the defendants cited the case of Mensah v Lartey [1963] 2 GLR 92.

The effect of learned counsel for the plaintiff’s reply and submission was that the late I R Aikins’s gift to his children created a joint tenancy and this was the finding of the trial judge. He claimed that I R Aikins intended to create a joint tenancy and therefore the judgment of the trial court cannot be faulted. He urged the court to dismiss the appeal.

The proceedings disclosed that the plaintiff and her brother Kwesi Pokoo Aikins Jnr are the remaining children of the late Isaac Rowland Aikins who died on or about 23 December 1964. The second, third, fourth, fifth, sixth and seventh defendants are the children of the late Francis Jonan Aikins who was one of the children of the late Isaac Rowland Aikins. The first defendant is the mother of the second, third, fourth, fifth, sixth and seventh defendants. There is no dispute that the defendants and Francis Jonan Aikins lived in house No F14/4 Kotokoraba Road, Cape Coast, the house in dispute, until the latter’s death on 28 August 1991. The evidence showed that the defendants are still living in the house.

It must be observed that the proceedings before the trial court reveal that the gift made by the late Isaac Rowland Aikins (I R Aikins) to his children was oral. At the trial there was no eye witness regarding the words used in creating the gift. And throughout the proceedings nobody claimed to be present when the house was gifted to the children. Apart from the plaintiff, none of her witnesses testified as to the nature of the gift made by the late I R Aikins to his children. Concerning the nature of the gift made to them the plaintiff, who is illiterate testified as follows:

“Before my father gifted the disputed property to us he owned it jointly with his brother. However, as the said

[p.837] of [1997-98] 1 GLR 831 brother, joint owner together with my father, died, the house became the property of my father as the sole owner, being the survivor of the joint owners. The gift of the property by my father to the children and our mother was customary. It was not evidenced in writing.”

The plaintiff also tendered in evidence exhibit A, which is the judgment in land suit No 55/1966 between Ebusuapanin Kobinah Foh v James R Aikins and Francis Aikins. In that action the plaintiff was claiming the house in dispute from the children of the late I R Aikins, contending it was family property. The children of the late I R Aikins were the defendants. Judgment in the suit went in favour of the defendants. The whole proceedings in that case was also tendered in evidence without objection and marked as exhibit I.

Exhibit I shows that one Kwesi Ata, the third defendant witness in that case, gave evidence for the defendants, that is the children of the late I R Aikins. This witness gave evidence as an eye witness to the gift made to the said children by their father. He testified, inter alia, as follows:

“I R Aikins was seated together at one side together with a friend of his whose name I don’t know but whom I have pointed out in court. (By court: ‘The second defendant witness Manford has been pointed out’). The second defendants were also present. I R Aikins then told the second defendant witness to inform the first defendant witness Nana Atta Apim that the reason why he invited him was that he had already gifted his house (the one in dispute and where we had assembled) to his children. That he wanted to pour libation over the matter and so wanted Nana (the first defendant witness) to be present and witness what he was going to do. I K Aikins then produced a large bottle of schnapps and poured libation. In the course of the libation he prayed to God and confirmed the gift he had made to his children about the house and wished God’s blessing for his children and their children who would be living in the house for ever.”

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(The emphasis is mine.)

The above quotation and the evidence of the plaintiff clearly show that I R Aikins did make a gift to his children including the plaintiff and the defendants’ late father without any limitation as to the estate which the children were to have in the property. At law, therefore, the plaintiff and each of the beneficiaries took equal shares.

Now, section 14(3) of the Conveyancing Decree, 1973 (NRCD 175) states:

“(3) A conveyance of an interest in land to two or more persons, except a conveyance in trust, shall create an interest in common and not a joint tenancy, unless it is expressed in such conveyance that the transferees shall jointly, or as joint tenants, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an interest in joint tenancy.”

It is significant, to note that section 14(3) of NRCD 175 is framed in mandatory terms. This means that if a grant intends a joint tenancy it must expressly state so. The only exception is where property is conveyed to two or more persons as trustees. Trustees hold the property as joint tenants.

In this case, as already indicated, the late I K Aikins gifted his house to all his children. He never constituted the children as trustees and therefore the children did not hold the property in dispute as trustees. It was, therefore, not open to the learned trial judge and certainly there was no justification for him to use the existence of the will of Francis Jonas Aikins as well as his conduct in his dealings with the property in dispute to conclude that the oral and customary gift made by the late I R Aikins to his children created a joint tenancy. He ought to have confined himself to the evidence of the plaintiff regarding the nature of the gift made to her and her brothers. I hold that the only legitimate construction to be placed on the gift made by I R Aikins is that it created a common tenancy. Be that as it may, since the gift made by the late I R Aikins is a customary gift made by a father to his children, the gift of the house was not limited to his children alone.

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The law relating to gifts by a father to his children was clearly postulated by the Supreme Court in the case of Mensah v Lartey (supra). The Supreme Court held as appearing in the headnote: “that in both patrilineal and matrilineal societies in Ghana where a man makes a gift of property to his children without any limitation as to the estate which the children are to have in the property, such property is considered as family property. The children constitute the family for the purpose of holding the said property in perpetuity … “

In delivering the judgment of the court Akufo-Addo JSC (as he then was) declared at 95 that: “The family of children constituted by a gift from their father is made up of the children, their children’s children and descendants irrespective of sex, for the general notion underlying the customary law in this regard is that a father by a gift to his children evinces a desire that his memory be perpetuated by his descendants.”

This principle can be conveniently applied to the instant appeal. The evidence established that I R Aikins made an oral gift of the house in dispute to his children including the plaintiff and the defendants’ father, Francis Jones Aikins. There is no evidence that set any limitation on the extent of the estate which the children were to have in the property. The children of I R Aikins, therefore, constituted the family for the purpose of holding and enjoying the said property in perpetuity. The family so constituted comprised the children and their descendants, male and female. It follows that the children of the beneficiaries stepped into the shoes of their parents (the children of I R Aikins) as in this case the defendants herein. For this reason, the defendants are not trespassers. I hold that since the concept of family property imports the principles of non-divisibility of the said property, no one child could have the power of testamentary disposition thereover or such as could be inherited by his successor or legal representative. Consequently, the transfer or disposition which the will—exhibit C—of Francis Jonas Aikins made of the property in dispute is null

[p.840] of [1997-98] 1 GLR 831 and void and of no effect. The plaintiff and the defendants being descendants of the late I R Aikins, have equal interest in the house in dispute.

In the light of the foregoing, it is my judgment that the defendants are not trespassers in the house in dispute. Accordingly, the plaintiff’s claim for trespass and for the order of ejectment as well as perpetual injunction sought by the plaintiff should have been dismissed.

In the result, I allow the appeal and give judgment in favour of the defendants.

JUDGMENT OF BADDOO JA.

This is an appeal against the judgment of the High Court, Cape Coast presided over by Quaye J dated 13 January 1994.

The plaintiff-respondent (hereinafter referred to as the plaintiff) claimed the following reliefs against the defendant-appellants (hereinafter referred to as the defendants):

“(1) An order of ejectment from house No F14/4 Kotokoraba Road, Cape Coast.

(2) A declaration that the late Francis Jones Aikins had no capacity to make the testamentary disposition relating to the said house which are contained in paragraphs (2), (3) and (4) of the deceased’s will dated 13 May 1991, and that the said dispositions are null and void.

(3) Mesne profits and a return of all rents and moneys collected by the defendants from tenants on the said house.

(4) Recovery of possession.

(5) Perpetual injunction restraining the defendants, their agents, servants and or workmen from having anything to do with the land.”

The case for the plaintiff was that, house No F14/4 Kotokoraba, Cape Coast was built by their grandfather. That in the course of time their grandfather mortgaged the house but was unable to redeem it. Consequently, the house was put up for sale and his two sons, namely Jacob B Aikins and Isaac Rowland

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Aikins, contributed and purchased the house. The document on the house was therefore prepared in their joint names and they became joint owners of the property. Thus upon the death of Jacob B Aikins, his brother Isaac Rowland Aikins became the sole owner of the property. This was the decision of the court presided over by Sampson Baidoo J in the case of Ebusuapanyin Kobina Foh v James Aikins, High Court, Cape Coast, 20 June 1974, unreported.

The plaintiff further contended that their father, six months before his death, made a customary gift inter vivos of the said house to his six children including the two plaintiffs, to hold as joint tenants, and that they have held the house as such, ever since. The plaintiff claimed that after the death of their father Isaac Rowland Aikins, the management of the house fell into the hands of Francis Jonas Aikins, one of the six children, because he was the only one immediately available to take care of the property. That the said Jonas Aikins kept the proceeds accruing from the property for himself without sharing with the other children. Upon the death of Francis Jones Aikins, he had made a will in which he had devised a portion of the property to his wife and children, the defendants herein. It is this devise that had prompted the present action against the defendants. The plaintiffs finally contend that of the six children the plaintiff and Kwesi Pokoo Aikins are the only surviving children of Isaac Rowland Aikins and therefore the proper persons entitled to the ownership and possession of the said house, because of the joint tenancy.

For the defendants, their case was simply that the two brothers, Jacob B Aikins and Isaac Rowland Aikins who redeemed the property about to be sold, held the property as tenants in common, and not as joint tenants. Further that, the six children of Isaac Rowland Aikins owned the house No F14/4 Kotokoraba Road, Cape Coast as tenants in common and not as joint tenants. Therefore as children of one of the six children of Isaac Rowland Aikins, they were entitled to a portion of the property which belonged to their father.

The trial judge found for the plaintiff and held that Isaac Rowland Aikins intended that the gift of the house to his children, was to be held as joint tenants. Against this judgment, the defendants have appealed to this court on several grounds. At the hearing of the appeal, counsel for the appellant sought for and was

[p.842] of [1997-98] 1 GLR 831 granted leave to argue seven additional grounds of appeal. But she ended up arguing one main ground of appeal. That the grant made by Isaac Rowland Aikins to his children, created a tenancy in common and not a joint tenancy. Therefore Francis Jonas Aikins had an interest which he could transfer to his children, the defendant herein.

The trial judge rightly decided that the first issue which called for determination is whether the gift from Isaac Rowland Aikins to his six children created a joint tenancy or tenants in common. The only evidence on record as to the nature of the gift granted to the plaintiffs was given by the plaintiff. She said: “My mother was a wedded wife, and the ceremony was performed in the Catholic Church; hence my father gifted the disputed house to my mother and her children. I maintain that it was a gift to my mother and her children. In acceptance of the offer, my mother presented drinks to my father in appreciation of his gift. The gift of the property by my father to the children and our mother was customary. It was not evidenced in writing. It was understood among the children, the joint donees that upon the death of anyone of them, the property passed on to another, in the same way as my father’s brother died and my father became the sole owner of the property.”

Thus according to the plaintiff they understood the gift as a joint tenancy. But the court has to consider the intention of the donor not the donees.

There is no evidence that their father told them to take the property as joint tenants. However, the trial judge after reviewing the circumstances which led to the redeeming of the property from sale, by the two brothers, Isaac Rowland Aikins and Jacob B Aikins, concluded that they held the property as joint tenants. Thus when Jacob predeceased Isaac and Isaac became the sole owner of the property, the character of the property became irretrievably that of a joint tenancy. The learned judge then added as follows:

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“In the ensuing settlement, the sole ownership of house No F14/4 Kotokoraba Road was confirmed in Isaac Rowland Aikins. It was in the background of the herein transferor’s knowledge and appreciation of these facts and circumstances of the property that he conveyed or passed the property on to his children without stating any limitations whatsoever to their interests. At law therefore, the plaintiff and each of the beneficiaries took equal interests in the property. Isaac Rowland Aikins knew that if he conveyed the property to his children without specifying or indicating how they should take or enjoy it, then he had necessarily created a joint tenancy, as happened between him and his brother Jacob Bedford Aikins.”

(The emphasis is mine.)

With great respect to the learned trial judge, this conclusion is not supported by any evidence on the record. If Isaac Rowland Aikins had said something during the grant of the gift to the children, then it could be inferred from what he said that he intended their interests to be a joint tenancy. But there is nothing from which an inference could be drawn that Isaac knew he was creating a joint tenancy, when he gave the property to the children without specifying or indicating how they should take or enjoy it.

The trial judge also said that he was fortified in his conclusion that the gift was a joint tenancy by the fact that upon the death of any of the brothers, no claim has ever been made by their descendants on the property. This, he reasoned, indicated that all the six children of Isaac Rowland Aikins knew that the property was held in joint tenancy. The conduct of the descendants of the donees, in not coming forward to claim an interest, showed that they all knew that the property was held in joint tenancy.

Another factor which led the trial judge to conclude that the children believed that the property was held in joint tenancy was the devise which the late Francis Jonas Aikins made to his children. By that devise, Francis Jonas Aikins gave half of the property to his own children, leaving the other half to the plaintiffs herein. By this devise, Francis had extinguished and excluded any rights which belonged to his three other brothers and one sister.

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The trial judge therefore concluded that from these surrounding circumstances, an inference, “can sufficiently and conclusively be made of an understanding and knowledge that each of them had a joint interest in the subject matter” and that I R Aikins intended to create a joint tenancy.

With great respect to the trial judge, I think it will be very speculative to draw an inference that the donor intended the property to be held in joint tenancy by looking at the conduct of the donees. It will be more reasonable to make an inference from the conduct of the donor as to what he intended, than from the conduct of the donees. In the absence of that clear intention, the court must look at the personal law of the donor. It is trite law that a person who makes a customary death-bed declaration, known as samansiw, is deemed to have disclosed an intention that his disposition should be governed by customary law. Isaac Rowland Aikins made his grant to his children under the customary law.

The Courts Act, 1993 (Act 459), s 54(1), r 2 provides as follows:

“54. (1) Subject to this Act and any other enactment, a court when determining the law applicable to an issue arising out of any transaction or situation, shall be guided by the following rules in which references to the personal law of a person are references to the system of customary law to which he is subject or to the common law, where he is not subject to any system of customary law …

Rule 2. In the absence of any intention to the contrary, the law applicable to any issue arising out of the devolution of a person’s estate shall be the personal law of that person.”

What is the personal law of Isaac Rowland Aikins? In the case of Mensah v Lartey [1963] 2 GIR[sic](3)92, SC the Supreme Court per Akufo-Addo JSC (as then was held as follows: “. . . . in both patrilineal and matrilineal societies in Ghana where a man makes a gift of property to his children without any limitation as to the estate which the children are to have in the property, such property is considered as family

[p.845] of [1997-98] 1 GLR 831 property. The children constitute the family for the purpose of holding and enjoying the said property in perpetuity. The concept of family imports the principles of non-divisibility of the said property except by the consent of the family, of the members of the family having joint interest in the property and of the appointment of the head of the family as the ‘caretaker’ of the property.”

Akufo Addo JSC (as he then was) then concluded at 96:

“All the children have a joint interest in the property and no child or any group of children has a distinct share such as he or they could have the power of testamentary disposition thereover or such as could be inherited by his successor or legal representative.”

It is my considered opinion that the case of Mensah v Lartey (supra) is very much applicable in this case. I shall therefore hold that the property in this case is a family property. Equity and good conscience will support such a conclusion. Once the property becomes family property it follows that the six children of Isaac Rowland Aikins and their descendants, male and female, constitute the family for the purpose of holding and enjoying the said property in perpetuity. Therefore the children of Francis Jones[sic](4) Aikins also have an undivided share in the disputed property. It also follows that the late Francis Jonas Aikins did not have any power to make a testamentary disposition relating to any portion of the disputed property. The will therefore is null and void. It would also follow that all rents and moneys collected by the defendants from tenants on the said house must be accounted for, for the benefit of all the members of the family.

I agree with the trial judge that the claim of the defendants was not proved because they could not adduce any evidence to support their claim. However, since it is a fact that the defendants managed the property for so long, they might have spent some money on the maintenance of the property. Again I agree with the learned judge that for this reason there should be accounts, during which all such expenses could be deducted from the rents and moneys collected from the property.

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Since the property is now family property, there will be recovery of possession for all the members of the family, that is to say the children of Isaac Rowland Aikins and their descendants. In the same vein, the order for perpetual injunction must fail. It was established that the parties have been quarrelling and fighting on several occasions and therefore they cannot dwell together. The law is that where the property in dispute is not the self-acquired property of the man the right of occupation of his children is subject to good behaviour. His widow has a right of occupation during her widowhood. Thus if she remarries, she no longer has the right of occupation. In the case of Swapim v: Ackuwa (1888) Sar FCL191 at 192-193 Smith J held that the successor:

“Could ask the children to go out on any occasion for any reasonable grounds, and where the interest of the family is at stake, or their right is disputed or even merely to secure and promote the interests of the family.”

Therefore if the children of Francis Jones[sic](5) Aikins cannot dwell in peace with the rest of the family, they could be asked to leave in the interest of the family, since this is not the self-acquired property of their father. On the other hand, the property could be leased out and the proceeds shared among the members of the family.

For the reasons stated above, the appeal is allowed as indicated. There will be no order as to cost.

JUDGMENT OF GBADEGBE J.

I also agree.

DECISION

Appeal allowed.

Endnotes

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