OKOE vs. OKAI [1997-1998] 2 GLR 980

CASES REFERRED TO

(1) Sese v Sese [1984-86] 2 GLR 166, CA.

(2) Kwantreng v Amassah [1962] 1 GLR 241, SC.

(3) Ramia v Ramia [1981] GLR 275, CA.

(4) Sasu-Twum (Decd), In re; Sasu-Twum v Twum [1976] 1 GLR 23.

(5) Osmond v Hughes [1967] GLR 405, CA.

APPEAL against the judgment of the High Court, Accra upholding the plaintiff ‘’s claims for, inter ahlia, declaration of title

[p.982] of [1997-1998] 2 GLR 980 and possession of ’a house allegedly first gifted to her by their deceased aunt during her lifetime but which house was subsequently devised by the said aunt to both the plaintiff and the defendant.

Nelson-Cofie for the appellant.

E S Aidoo for the respondent.

Essilfie-Bondzie JA. Delivered the first judgment of the court at the invitation of Sapong JA. The appeal is from the judgment of the High Court, Accra dated 15 May 1996. The respondent (hereinafter referred to as the plaintiff) had claimed in respect of a house numbered variously as C333/l and C326/1, situate at Kokomlemle, Accra, a declaration of ownership, possession of the ground floor as well as an order of perpetual injunction.

The plaintiff and the appellant (hereinafter referred to as the defendant) are sisters of the full blood and the subject matter is a house which originally belonged to their deceased aunt who was known to them and acknowledged by all as “mother.” In fact, both counsel and the parties conceded in the evidence, and in the written submission of counsel that “mother” stood in loco parentis to both parties. The evidence was that their aunt, Evelyn Quartey, looked after the two sisters and provided all their needs. Their aunt was to them their mother and she also accepted them as her children. The case of the plaintiff was that during the lifetime of the said deceased aunt she made a voluntary gift of the disputed house in her favour by a document registered as 599/1962 and admitted in evidence as exhibit B. This fact was however not made known to her and the aunt never made it known to anybody during her lifetime. The sisters were living peacefully and apparently happily in the house after the death of their aunt having acknowledged that the house was devised to them by their “mother” in her will dated 18 October 1968 which was tendered during the trial as exhibit E.

Trouble started after the grant of probate of the said will and a vesting assent, exhibit A, was made in favour of the two of them. It was therefore the case of the plaintiff that by virtue of the priori deed of gift in her favour, the aunt could not in law make a devise of the very same property and accordingly contended that the said devise declared in the will— exhibit E —is ineffectual to vest the

[p.983] of [1997-1998] 2 GLR 980 property in them. The plaintiff relied on the presumption of advancement, an equitable doctrine, and contended also by implication that exhibit A, the vesting assent, is also of no effect in law since the deceased aunt did not have the property which she purported to devise.

The record shows that after the discovery of the deed of gift, exhibit B, the plaintiff asked the sister to vacate the house with her family. The plaintiff occupies the ground floor and the defendant occupies the next floor. The defendant refused to vacate the house hence the institution of the writ of summons claiming recovery of possession.

The defendant’s case was that the act of their aunt in devising the property to them is evidence of her real intention not to vest the property to the plaintiff despite the making of exhibit B. The evidence further revealed that in her other earthly dealings , their deceased aunt acquired properties which she gifted to persons but later in her will devised them to persons other than those she had gifted the properties to. The defendant also relied on the defence of limitation as well as estoppel by acquiescence to defeat the plaintiff’s claim. According to her, she made some improvement to the property in the full view of the plaintiff without any interference and that it would be inequitable for her now to insist on her rights to the property. Judgement went in favour of the plaintiff. In concluding his judgment, the learned trial judge said:

“I now wish to consider whether the defendant should have the order for possession made against her? As mentioned earlier on, in the appropriate instances she may be protected by this court, one of equity good conscience and reason ableness (fairness), by an order for compensation. However, having regard to the fact that she has benefited from the property by living therein for a long period without the payment of rent though under a misapprehension that she is a co-owner, I am of the thinking that she must have adequately had more than a sufficient recompense for what I consider to be trifling or slight improvement to the property and as such I do not desire to make any order that her expenses be refunded to her. Accordingly, I propose to make an order to bear this out and in particular, I hereby enter judgment for the plaintiff on the reliefs endorsed in the writ of summons, herein (see endorsement to the writ).”

[p.984] of [1997-1998] 2 GLR 980

Before I proceed to the consideration of the appeal, I will bnriefly deal with the preliminary point raised by counsel for the plaintiff. Counsel has urged the court to dismiss the appeal in lihmine. He claimed that there was an earlier notice of appeal which was not withdrawn until 21 October 1996. That the notice of appeal in the record is not valid because according to him there cannot be more than one valid notice on the docket.

I have read through the record of proceedings and nowhere in the record have I seen the two notices of appeal counsel is alluding to. The complaint of counsel that an earlier notice of appeal was withdrawn does not, per sSe, make a subsequent one filed within the time limited for appeals invalid. In other words, even if an earlier notice of appeal was withdrawn and substituted with a new one that fact alone does not render the current notice invalid. To accede to his request, learned counsel must prove by a documentary evidence that when the first notice of appeal was withdrawn the court made an order dismissing the appeal. In the absence of such an order of the court, I consider the point raised a misconceived and overruled.

The defendant has challenged the judgment of the lower court on various grounds, but the only ground which I consider crucial for the determination of the appeal is ground 3 (c) of the grounds of appeal which is: “His lordship’s finding that the deed of gift took precedent over the will of the testatrix is erroneous.”

Exhibit B contains a deed of gift dated 22 January 1962 from the deceased Madam Evelyn Kwarley Quartey in favour of Rose Tawiah Okai (the plaintiff) whom she described as “daughter”. There is no doubt that the said gift, even though embodied in writing, is a customary gift. In his judgment, the learned trial judge himself accepted the document— – exhibit B— – as evidence of a customary gift. He said: “I must also observe that by proceeding to have the said document, exhibit B, witnessed and registered, the donor had in fact complied with an essential requirement of customary law that of publication and for this purpose beyond the provision of common law, the transaction satisfies customary law as well.”

In the case of Sese v Sese [1984-86] 2 GLR 166 at 174, CA, when the Court of Appeal was confronted with a similar document,

[p.985] of [1997-1998] 2 GLR 980

Abban JA (as he then was) delivering the unanimous decision of the court said:

“I think it ought to be made clear that what was contained in the deed of gift, exhibit B, was only the record of transaction appertaining to a customary gift from father to son. That is, a customary gift which had been evidenced in writing. Thus, the mere recording of the gift in writing could not affect its customary nature. It still remained a customary gift and it continued to be subject to the incidents of customary law. Some of such incidents being that:

‘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.”

(The emphasis is mine.) In the instant case, I hold that the fact that the gift of the house in dispute was reduced in writing does not affect its customary character. It remains a customary gift subject to the incidents of the customary law. For, as Sarbah stated in his Fanti Customary Laws (3rd ed) at pp 80-82: “Gifts in the European sense of the term, as regards immovables seems to be unknown here.”

Now the customary law requirements of a valid gift have been laid down in many judicial decisions. And it is not necessary to reproduce all of them in this judgment. The bare essentials are:

(a) There must be a clear intention of giving or passing the property in the thing given to the donee by the donor.

(b) The acceptance of such gift’ by the donee must be made in the lifetime of the donor.

(c) The giving and acceptance must be proved and evidenced by such delivery or conveyance as the nature of the gift admits of.

As mentioned earlier, both counsel conceded in their written addresses that the donor stood in loco parentis to the plaintiff and the defendant. The plaintiff also gave the following evidence: “Exhibit B evidences a deed of gift from Madam Evelyn Kwarley Quartey in my favour in respect of the disputed property. She is deceased; she was my aunt with whom I lived. I lived with her from age six to the time I got married. 1I was bhorn in 1939 and got married in 1962. The defendant also

[p.986] of [1997-1998] 2 GLR 980 lived with my deceased aunt— – Evelyn Kwarley Quartey. We both went to live with her at the same time . . . We both regarded Evelyn as our mother. She provided us with food, clothing, shelter and sent us to school. She looked after both of us through school; she also approved of our marriage.”

In my view, the facts of the present case justified the finding of the trial judge that the deceased, Evelyn Kwarley Quartey (donor), stood during her lifetime in a situation of a parent in loco to the plaintiff. So that the plaintiff was in the same position as a natural child to the donor.

It must be emphasised that plaintiff testified that during her lifetime her deceased aunt never told her that she had made a deed of gift of the house in dispute in her favour. That fact was not made known to her and was in fact not so known to any otheri person until Madam Evelyn Quartey died on 10 May 1974. After her death, it was discovered that the deceased had made a will in October 1968. In paragraphs (7),(8),(9), (10) and of the statement of claim the plaintiff pleaded as follows:

“(7) The plaintiff says that the said Madam Evelyn Quartey died on 10 May 1974; that she had made a will on 18 October 1968; that that will was read in the presence of the plaintiff among other persons at the High Court, Accra sometime in 1977 and that on 15 March 1977 that will was proved and registered in that High Court.

(8) By the probate granted on the said will on 15 March 1977, the administration of the movable and the immovable property of the deceased testatrix was granted (i) Fortunatus Kofi Nelson and (ii)

Emmanuel Fatoya Sawyerr, the executors named in the said will.

(9) By that will the testatrix purported to devise the said plot of land in this manner:

‘I DEVISE my freehold house at Kokomlemle, Accra known as No C’326/1 to my nieces Nora

Akoley Okait and Rose Tawiah Okine and their issue absolutely.’

(10) The named executors therefore (and probably in ignorance of the said deed of gifit) executed a vesting assent on 1 December 1978 by which they purported to vest the said plot and house thereon in both the defendant and the plainntiff absolutely.

[p.987] of [1997-1998] 2 GLR 980

(11) The plaintiff had been under the impression all along, that is since 1978, that this purported to vesting was in order not only by virtue of the will aforesaid but also in fact and in law.”

(The emphasis is mine.) The plaintiff’s admission that during ti’che lifetime of her aunt, Madam Evelyn Quartey,. the donor (she died in 1974) she did not know of the existence of the deed of gi Iift dated 1962 (exhibit B) and that nobody also knew of its existence was very significant. In fact the evidence disclosed that until the issuance of the writ of summons herein, the plaintiff had been under the impression that the execution of the vesting assent on 1I December 1978 by which the house in dispute was vested in them was in order.

The question is: Why did the plaintiff’s” “mother” execute a deed of gift and kept it to herself without disclosing its existencce tuo anybody including the plaintiff and without allowing her (the donee) to sign it. It is my view that the conduct of the plaintiff’s deceased aunt (“mother”) showed a clear intention at the time ofl executing the deed of gift not to make an absolute gift of the disputed house to the plaintiff and I so hold. I am satisfied that she manifested her true intention in her will of 1968. It is obvious tco me that she executed the deed of gift in 1962 and kept it to herself as a temporary measure. Thus in the said will of 1968 she devised the house, the subject of this dispute, in this maimnner:

“I DEVISE my freehold house at Kokomlemle, Accra, known as No C 362/1 to my nieces Nora Akoley Okai and Rose Tawiah Okine and their issue absolutely.”

The evidence further showed that the gift did not satisfy these other very important requirements of customariy gift which aicre delivery and publicity.

As already accepted, the donor kept it to herself without tel1ling anybody in her lifetime. Moreover, between the execution of thce deed of gift in 1962 and her death, as the evidence reveals, thce donor continued in complete control of the premises as though the house had not been gifted at all. I hold that the evidence as a whole did not support any valid gift to the plaintiff. Ev en if the so -called gift was valid, it is my judgment that it was revoked by thce plaintiff’s late aunt (“mother”) when she executed the will in 1968. ThInis is so becausce as it was laid down in Saribah’s Fanti Custom-

[p.988] of [1997-1998] 2 GLR 980 ary Laws (supra) and which was approved in the Court of Appeal’s case of Sese v Sese (supra) at 174 that:

“Every gift when completed is irrevocable, except in gfifts between parent and child, which can be recalled or exchanged at any time by the parent in his or her lifetime, by his will or dying declaration.”

(The emphasis is mine.) The plaintiff’s “mother” revoked the sup posed gift and in my opinion she effectively did so in her will dated 18 October 1968 and admitted to probate by the High Court, Accra on 15 March 1977.

In the light of the matters canvassed above, I think that the conclusion of the court below was wrong and the judgment ought to be set aside. The appeal is accordingly allowed.

Sapong JA. I have read the opinion of my brother Essilfie -Bondzie JA and I agree with him that the appeal be allowed.

Benin JA. I am in agreement with the facts stated and the reasons as advanced by my brother Essilfie-Bondzie JA in allowing this appeal. I only wish to add these few words of my own, especially in view of the contention that no customary gift was made or intended but rather an advancement.

I intend concentrating on the document that purported to gift this property to the plaintiff in 1962: was it an advancement or a resulting trust intended by the grantor? The law in respect of advancement and resulting trust is very well settled. And it is that where a person buys property or conveys property in the name of another person who is not related to him either as a spouse or as a child, the law often presumed a resulting trust in favour of the purchaser or conveyancer. But if the grantee is the wife or child or stands in loco parentis to the grantor the law presumes an advancement in favour of the grantee: see these cases: Kwantreng v Amassah [19621] 1 GLR 241, SC; Ramia v Ramia [1981] 1 GLR 275, CA; In Re Sasu-Twum (Decd);c1 Sasu-Twum v Twum [1976] 1 GLR 23 at 32-33; Osmond v Hughes [1967] GLR 405, CA. But it is to be noted that none of the authorities denies the important point that whether an advancement or a resulting trust is the subject of an act, it is still a rebuttable presumption only we are talking of. For that reason, both the burden of producing evidence and the burden of persuasion as to the non-existence of the poresumed fact lies on the partvy against whom the presumption

[p.989] of [1997-1998] 2 GLR 980 operated: see section 20 of the Evidence Decree, 1975 (NRCD 323). In this case the evidential burden lies on the defendant.

What is required to be established by way of rebuttal evidence? Snell’s Equity (24th ed) at p 153 has this passage:

“Both the presumption of a resulting trust and the pre- sumption of advancement can be rebutted by evidence of the actual intention of the purchaser. In these cases the court puts itself in the position of a jury, and considers all the circumstances of the case, so as to arrive at the purchaser’s real intention; it is only where there is no evidence to contradict it that the presumption of a resulting trust, or of advancement, as the case may be, will prevail.”

This passage was quoted with approval by the Supreme Court in the Kwantreng v Amassah case (supra). And in Snell’s Principles of Equity (25th ed) at p 168 appears this relevant passage:

“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 this 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.”

(The emphasis is mine.) In this case the defence was that theiri deceased aunt was in the habit of buying or conveying property in the name of a member or some members of her family but without any intention to gift it to that person or those persons. From the totality of the evidence she was very caring for all her family whilst she lived, and made provision for them also in her will. Her way of doing things was known to the family. At least the co- nveyance— – exhibit L— – she made to the defendant was witnessed by the plaintiff herein but that property was later willed to another member of the family which plaintiff finds nothing wrong with. That document is dated earlier in time to exhibit B.

Besides, there was this land at Achimota which deceased conveyed in the name of Theophilus Kwartei Quartey and the defendant but which was willed away by the deceased and shared amongst them all including the plaintiff. It was thus clear that the deceased had a consistent course of dealing or conduct in relation to her properties. She acquired and/or conveyed same in the name

[p.990] of [1997-1998] 2 GLR 980 of a family member but without the least intention of making a gift thereof to the grantee. Thus, even before exhibit B was made, that conduct and intention were manifest. The trial court completely ignored this thereby leading it into error.

The proper inference to be drawn from the accepted facts was that the family especially the plaintiff who witnessed exhibit L in 1957 knew that the deceased used only the name of her family relations for the title to some of her properties without any intention to make a gift to them. In my view, a resulting trust was clearly intended by her and I so hold. For that reason, all the dispositions she made of such properties by her will were valid. The appeal is accordingly allowed.

Appeal allowed.

SA