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Property
– Ownership -
Intestacy -
Letters of Administration –
Deathbed gift (donatio
mortis causa) – Whether
or not Application for letters
of Administration without any
notice to the Plaintiffs nor the
Head of the deceased’s family
contravenes the law on the
Administration of Estates -
Whether or not plaintiffs
together with the defendant and
her children are beneficiaries
of the said estate - Whether or
not the Intestate Succession
Act, 1985 (PNDCL 111) does not
apply to his estate - Whether
the writ of summons is void,
therefore all proceedings held
under it are void as well -
Whether the evidence on record
established donatio mortis causa
- Service outside the
jurisdiction. - Order 2 Rule 7
(5) - served outside the
jurisdiction. Order 2 Rule 7 (5)
- High Court (Civil Procedure)
Rules, 2004 (C. I. 47)
HEADNOTES
Mrs.
Salamatu Marbell is the widow of
Victor Adolphus Tsate Marbell.
The couple were the joint owners
of House Number 29 Mensah Wood
Street East Legon. In 1982, the
couple migrated to England where
they both acquired citizenship.
They never came back to Ghana
until Mr. Marbell died intestate
on 7th February 2009.
The appellant per an attorney
applied and obtained Letters of
Administration to administer the
estate of her late husband here
in Ghana. Her position is that
the late husband made a deathbed
gift of his interest in N0. 29
Mensah Wood Street to her;
therefore, she is the sole owner
of the said property
The respondents are biological
sons of Mr. Marbell (deceased)
by different women. They
maintain the property, No.29
Mensah Wood Street is family
property and they have interest
in the property as well. The
appellant therefore has no right
to obtain Letters of
Administration without involving
the family and cannot claim sole
ownership of the property. They
sued the appellant in the High
Court, Accra seeking The trial
High Court dismissed the
respondents’ claims and found
that the disputed property was a
donatio mortis causa to the
appellant. The court therefore
partly granted the appellant’s
counter claim and declared the
appellant sole owner of house N0
29 Mensah Wood Street East Legon.
The respondents appealed against
this decision. The Court of
Appeal allowed the appeal in
part, reversed the decision of
the High Court and held that the
respondents have interest in
their father’s 50% share of No
29 Mensah Wood Street. The court
of appeal further ordered that
the said 50% share of the
property be distributed in
accordance with the provisions
of the Interstate Succession Law
1985 PNDCL 111. The appellant
has appealed against the
decision of the Court of Appeal
praying that this court sets
aside the decision of the Court
of Appeal
HELD
It has been amply demonstrated
in the analysis above that the
jurisdiction of the High Court
was properly evoked; the writ of
summons and the proceedings in
the High Court are not void. The
first ground of appeal therefore
has no merit and must fail.
It
is part of the undisputed
evidence on record that the
deceased executed a deed of
assignment in favour of his two
sons, the respondents in this
appeal, making a gift of a piece
of land in Accra to them.
Exhibit 3 is the deed of
assignment and it was made on
the 3rd of April
2008. The alleged danatio mortis
causa was made in or around
September 2008, only five months
after the deed of assignment was
made. If indeed the deceased had
the intent of making a gift of
his portion of the No 9 Mensah
Wood property to the appellant
it is highly probable that he
would have followed the same
procedure as the deed of
assignment to his sons.
It
is my view that there is no
evidence from which the court
can reasonably infer that there
was a donatio mortis causa. The
holding of the Court of Appeal
that donatio mortis causa had
not been established is in
place.
The
appeal fails in its entirety and
it is hereby dismissed, the
judgment of the Court of Appeal
is hereby affirmed.
STATUTES
REFERRED TO IN JUDGMENT
High
Court (Civil Procedure) Rules,
1954 (LN 140 A),
High
Court (Civil Procedure) Rules,
2004 (C. I. 47)
Intestate Succession Act, 1985
(PNDCL 111)
CASES
REFERRED TO IN JUDGMENT
Republic
v High Court, Accra Ex-parte
Allgate Company Ltd.
(Amalgamated Bank Ltd.
Interested Party) [2007 -2008]
SCGLR 104
Republic
v High Court, Accra; Ex-parte
Allgate Co Ltd. [2007-2008]
SCGLR 1041
Boakye v Tutuyehene [2007-2008]
2 SCGLR 970
Friesland Frico Domo Alias
Friesland Foods BV v Dachel Co
Ltd. [2012] 1 SCGLR 41
Ayikai v Okaidja [2011]1 SCGLR
205
Standard Bank Offshore Trust
Company Ltd. (Substituted) by
Dominion Corporate Trustees Ltd
v National Investment Bank Ltd.
& Ors Civil Appeal N0 J4/63/2016
dated 21/06/2017
Cain v Moon [1896]2 QB 283
Asante
v University of Ghana [1972]2GLR
86
Gardner v. Parker 3 Madd. 184
Cosnaham
v Grice [1862]15 Moore 216
Heitman
v Mace & Another [1903]41 NZLR
1242
King v Dubrey [2016] Ch 221
Abadoo v Awotwi [1973]1GLR393
Atuahene v Amofa (1969) CC 154
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England
(Fourth Edition) Vol 37
(Practice and Procedure)
DELIVERING THE LEADING JUDGMENT
DORDZIE (MRS.) JSC:-
COUNSEL
C. AMON-KOTEI FOR THE
PLAINTIFFS/APPELLANTS/RESPONDENTS.
ALI GOMDAH ABDUL-SAMAD FOR THE
DEFENDANT/RESPONDENT/APPELLANT
DORDZIE (MRS.) JSC:-
Facts:
The appellant
Mrs.
Salamatu Marbell is the widow of
Victor Adolphus Tsate Marbell.
The couple were the joint owners
of House Number 29 Mensah Wood
Street East Legon. In 1982, the
couple migrated to England where
they both acquired citizenship.
They never came back to Ghana
until Mr. Marbell died intestate
on 7th February 2009.
The appellant per an attorney
applied and obtained Letters of
Administration to administer the
estate of her late husband here
in Ghana. Her position is that
the late husband made a deathbed
gift of his interest in N0. 29
Mensah Wood Street to her;
therefore, she is the sole owner
of the said property
The respondents are biological
sons of Mr. Marbell (deceased)
by different women. They
maintain the property, No.29
Mensah Wood Street is family
property and they have interest
in the property as well. The
appellant therefore has no right
to obtain Letters of
Administration without involving
the family and cannot claim sole
ownership of the property. They
sued the appellant in the High
Court, Accra seeking the
following reliefs:
1.
A declaration that
defendant’s
Application for letters of
Administration without any
notice to the Plaintiffs nor the
Head of the deceased’s family
contravenes the law on the
Administration of Estates.
2.
An order, revoking the
letters of Administration
granted to the Defendant.
3.
A declaration that
plaintiffs together with the
defendant and her children are
beneficiaries of the estate of
the late Victor Adolphus Tsate
Marbell.
4.
An order of injunction to
restrain the defendant either by
herself or her agents, assigns
and heirs from dealing with
H/NO. 29 Mensah Wood Street,
Ambassadorial Enclave in
whatsoever manner to the
exclusion of plaintiffs.
Counter Claim
The appellant resisted
plaintiffs’ claims and
counterclaimed as follows:
a)
A declaration that Mr.
Marbell had made a deathbed
donation of his interest in
house number 29 Mensah Wood
Street, East Legon, Accra to the
Defendant;
b)
A further or in the
alternative, declaration that
the estate of late Mr. Marbell
and the defendant are jointly
liable to pay about 100,000.00
British Pound Sterling being a
mortgage debt in respect of flat
number 128 Elizabeth House,
Gosbrook Road Reading in the
United Kingdom to the Santander
Bank;
c)
A further or in the
alternative declaration that the
late Mr. Marbell had ceased to
be of Ghanaian domicile and
therefore the
Intestate
Succession Act, 1985 (PNDCL 111)
does not apply to his estate, if
any;
d)
A further or in the
alternative declaration that by
operation of English law the
defendant is entitled to the
house with number 29 Mensah Wood
Street, Ambassadorial Enclave,
East Legon, Accra absolutely;
e)
A further or in the
alternative declaration that the
defendant by operation of
English law was entitled to
125,000 British Pounds Sterling
from the estate of the late Mr.
Marbell, if any, with that
amount attracting interest at 6%
per annum from the date of death
of late Mr. Marbell;
f)
Perpetual injunction to
restrain the plaintiffs, their
agents, assigns, personal
representatives and any person
claiming through them from
interfering with the ownership,
possession and/or interest
and/or in any manner dealing
with the house number 29 Mensah
Wood street, Ambassadorial
Enclave, East Legon Accra.
g)
Cost including legal
fees.
The trial High Court dismissed
the respondents’ claims and
found that the disputed property
was a donatio mortis causa to
the appellant. The court
therefore partly granted the
appellant’s counter claim and
declared the appellant sole
owner of house N0 29 Mensah Wood
Street East Legon.
The respondents appealed against
this decision. The Court of
Appeal allowed the appeal in
part, reversed the decision of
the High Court and held that the
respondents have interest in
their father’s 50% share of No
29 Mensah Wood Street. The court
of appeal further ordered that
the said 50% share of the
property be distributed in
accordance with the provisions
of the Interstate Succession Law
1985 PNDCL 111.
The appellant has appealed
against the decision of the
Court of Appeal praying that
this court sets aside the
decision of the Court of Appeal.
The following are the grounds of
appeal canvassed before us:
1.
The Court of Appeal erred in law
in not setting aside the writ of
summons and service of it as
void.
The alleged error is
particularized as follows:
a) The lawyer who issued the
writ of summons for the
Plaintiff/Appellant/Respondent
had no practicing license for
the year the writ of summons was
issued i.e. 2013. (This was
abandoned)
b.
The
Plaintiff/Appellant/Respondent
did not obtain leave of the
trial court before issuing the
writ of summons against the
Defendant/Respondent/Appellant a
foreign resident person.
c.
The
Defendant/Respondent/Appellant
was served with the writ of
summons outside the jurisdiction
contrary to law.
B)
The Court of Appeal
erred in law in holding that
donatio mortis causa was not
established by the Defendant/
Respondent/Appellant
The error alleged under this
ground are:
a)
The essential indicia of
the property in issue could only
be the lease document which was
jointly owned and possessed.
b)
Late Mr. Marbell had no
more right to the lease document
than the
Defendant/Respondent/Appellant.
c)
The delivery of essential
indicia of the gift should have
been deemed in the peculiar
facts of this case.
C)
The Judgment was against
the weight of evidence before
the Court of Appeal;
D)
Additional grounds of
appeal with leave of the Supreme
Court will be filed on receipt
of a copy of the record of
appeal.
No additional grounds were filed
and ground 3 was abandoned.
Grounds 1 & 2 therefore are the
only grounds to be determined in
this appeal. Two issues can be
deduced from these grounds as
issues for our determination in
this appeal and they are:
i.
Whether the writ of
summons is void, therefore all
proceedings held under it are
void as well.
ii.
Whether the evidence on
record established donatio
mortis causa
The first issue is based on the
first ground of appeal and it is
a legal issue being raised by
the appellant for the first time
in this 2nd appellate
court. In his submission,
counsel for the appellant
concedes that the general rule
of law is to raise such issues
of law at the trial court but
justifies his doing so in the
appellate court on the ground
that the issue goes to the
jurisdiction of the trial court;
this is an exception to the
general rule. This argument is
well placed.
The offending act of the
respondents which is the basis
for seeking to have proceedings
in this whole suit set aside as
void is that they failed to
obtain leave of the court before
issuing the writ of summons. The
defendant /appellant is not
ordinarily resident in Ghana.
Her permanent residence is in
the United Kingdom; notice of
the writ of summons issued
against her therefore, would
have to be
served
outside the jurisdiction. Order
2 Rule 7 (5) of the High Court
(Civil Procedure) Rules, 2004
(C. I. 47) requires that
leave be obtained before the
writ of summons is issued. The
respondents however failed to
comply with this rule. The
appellant’s position is that,
the effect of non-compliance
with Order 2 Rule 7 (5) of C. I.
47 is that the jurisdiction of
the High Court was not properly
evoked; the writ of summons is
void, consequent proceedings and
decisions taken by the court in
the suit are void as well.
Order 2 Rule 7 (5) of the
High Court (Civil Procedure)
Rules 2004 C. I. 47 provides “No
writ, notice of which is to be
served out of the jurisdiction,
shall be issued without leave of
the Court as provided in Order
8.”
(Order 8 outlines the process of
service out of jurisdiction).
The general position of the law
however is that non-compliance
with the rules of court would
not render proceedings void
unless the non-compliance
amounts to a breach of the rules
of natural justice, a breach of
the Constitution or of a
statute other than the rules of
court; or that the breach goes
to the jurisdiction of the
court.
The question is whether the
non-compliance in question
affects the jurisdiction of the
trial court therefore renders
the writ and the subsequent
proceedings void.
Order 81 of The High Court
(Civil Procedure) Rules 2004, C.
I. 47 generally provides that
non-compliance with the
procedural rules would not
render proceedings void. The
said order reads:
“Non-compliance with Rules not
to render proceedings void
1.
(1) Where, in beginning or
purporting to begin any
proceedings or at any stage in
the course of or in connection
with any proceedings, there has,
by reason of anything done or
left undone, been a failure to
comply with the requirements of
these Rules, whether in respect
of time, place, manner, form or
content or in any other respect,
the failure shall not be
treated as an irregularity and
shall not nullify the
proceedings, any step taken in
the proceedings, or any
document, judgment or order in
it.” (Emphasis supplied)
Sight must not be lost of the
fact that the word ‘not’
in the phrase “the failure shall
not be treated as” underlined
above distorts the meaning of
order 81. In the case of
Republic
v High Court, Accra Ex-parte
Allgate Company Ltd.
(Amalgamated Bank Ltd.
Interested Party) [2007 -2008]
SCGLR 104 this court pointed
out that the word ‘not’ is an
error in drafting or a
typographical mistake in the
said phrase. Until the
appropriate amendment is made to
correct the error, it is
important to omit the word ‘not’
in reading the phrase to avoid
the distortion.
Commentary by
Halsbury’s Laws of England
(Fourth Edition) Vol 37
(Practice and Procedure)
at paragraph 36 has a
comment on the effect of Order 2
of the Supreme Court Rules of
Practice in England. The wording
of Order 81 of C. I. 47 is
exactly the same as the wording
of Order 2 of the English
Supreme Court Rules of Practice.
For a better understanding of
the effect of order 81 of C. I.
47, I would quote the said
commentary from Halsbury’s Laws
of England.
“Effect of non-compliance
with rules.
This is one of the most
beneficent rules of the Rules of
the Supreme Court. It is
expressed in the widest terms
possible to cover every kind of
non-compliance with the rules,
and in both the positive and
negative forms, so as to ensure
that every non-compliance must
be treated as an irregularity
and must not be treated as a
nullity. Under the former rule,
which it replaced, a distinction
was drawn between a
non-compliance which rendered
the proceedings a nullity, in
which case the court had no
discretion and no jurisdiction
to do otherwise than set the
proceedings aside, and a
non-compliance which merely
rendered the proceedings
irregular in which case the
court had a discretion to amend
the defective proceedings as it
thought fit. The modern rule has
done away with this old
distinction, and every omission
or mistake in practice or
procedure is to be regarded as
an irregularity which the court
can and should rectify as long
as it can do so without
injustice.
It should, however, be
emphasized that this rule
applies only to non-compliance
with the requirements of the
Rules of the Supreme Court, so
that non-compliance with
requirements prescribed by
statute or other authority may
still render the proceedings in
which they occur a nullity.”
Since the promulgation of C. I
47 this court has followed the
trend as stated in this
commentary. Thus Professor Date
Baah JSC speaking for the court
in the case of
Republic v High Court, Accra;
Ex-parte Allgate Co Ltd.
[2007-2008] SCGLR 1041
said,“where there had
been non-compliance with any of
the rules contained in the High
Court (Civil Procedure) Rules,
2004 (C. I. 47), such
non-compliance is to be regarded
as an irregularity that does not
result in nullity, unless the
non-compliance is also a breach
of the Constitution or of a
statute other than the rules of
court or the rules of natural
justice or otherwise goes to the
jurisdiction.”
In the case of
Boakye v Tutuyehene [2007-2008]
2 SCGLR 970 This
court held that by the plain
meaning of Order 81
“perhaps apart from lack of
jurisdiction in its true and
strict sense, any other wrong
step taken in any legal suit
should not have the effect of
nullifying the judgment or the
proceedings”
A more recent decision of this
court which is on all fours with
the present case before us, on
the non-compliance issue is
Friesland Frico Domo Alias
Friesland Foods BV v Dachel Co
Ltd. [2012] 1 SCGLR 41.
The appellant to this court in
that case, as in the present
case contented that the
plaintiff had not complied with
the rule of procedure under
Order 2 rule 4 of the old
High Court (Civil Procedure)
Rules, 1954 (LN 140 A),
which provides that an intended
plaintiff must obtain leave of
the court before issuing a writ
out of the jurisdiction; and
must also seek leave to serve
notice of the writ out of
jurisdiction under Order 11
rules 6 & 7 of (LN 140 A).
Non-compliance with these rules
goes to jurisdiction therefore
renders the proceedings void.
This court held at page 50 of
the report that: “Both
order 81 of the new High Court
(Civil Procedure) Rules, 2004
(C. I. 47), and Oder 70 of the
old High Court (Civil Procedure)
Rules, 1954 (LN 140 A), had
provided in clear terms that
non-compliance with the rules of
procedure should not render any
proceedings void but be regarded
as a mere irregularity which
might be allowed, amended or set
aside on terms at the discretion
of the court upon application
brought within a reasonable time
and the person applying had not
taken a fresh step after
becoming aware of the
irregularity,”
The court however emphasized its
position as held in the Ex-parte
Allgate Co Ltd. (cited supra)
that provisions under Order 81
cannot be interpreted to waive a
High Court’s actual lack of
jurisdiction and said at page 53
of the report: “So where,
for example, the whole
subject-matter of the action
affect an immovable property
situate outside the jurisdiction
of Ghana, then non-compliance of
Order 2 r 4 of LN 140 A (now
Order 8 r 1 of C. I. 47), cannot
be waived to cure the deficiency
in jurisdiction.
The subject matter of the action
which was began by the writ
issued by the plaintiff for
compensation for the termination
of the agency agreement executed
in Ghana on behalf of the
defendant company is manifestly
within the jurisdiction of the
court. Accordingly, we would
hold that the non-compliance of
Order 2 r 4 of LN 140 A in this
case was a mere irregularity
which did not derail the
jurisdiction of the court.”
The subject matter of litigation
in the instance case is equally
‘manifestly’ within the
jurisdiction of Ghana. The High
court therefore had jurisdiction
to entertain the suit. There is
no reason why we should depart
from this court’s decision in
the Friesland Frico Domo
Alias Friesland Foods BV v
Dachel Co Ltd. Case and
hold otherwise on the
issue.
The appellant herein upon
entering a conditional
appearance obviously was aware
of the irregularity in the
issuing of the writ however;
there is no indication on the
record that she took any steps
to apply to set it aside. Rather
she filed her defence and fully
participated in the trial and
even pursued a counter claim.
What nails the coffin on this
ground finally is that the
appellant gave her address for
service in her notice of
appearance as N0 29 Mensah Wood
Street Accra. Incidentally, that
is the address of the subject
matter of the suit, which is
situate within the jurisdiction
of Ghana. This means the
appellant from the onset
accepted to defend the suit from
the address within the
jurisdiction. She is deemed to
have waved her right under Order
81 rule 2 and cannot validly
raise this issue at this level.
There is no evidence that the
irregularity complained of has
occasioned any injustice to the
appellant.
Counsel for the appellant in
support of his submission on
this ground cited the following
cases:
Ayikai v Okaidja [2011]1
SCGLR 205 and Standard
Bank Offshore Trust Company Ltd.
(Substituted) by Dominion
Corporate Trustees Ltd v
National Investment Bank Ltd. &
Ors Civil Appeal N0 J4/63/2016
dated 21/06/2017.
I must say the circumstances
under which this court dismissed
the suit for non-compliance in
these cases are distinguishable
from the instant case. In Ayikai
v Okaidja the court dismissed
the writ because there was no
cause of action; it was
therefore incompetent. The court
found that the complaint of the
plaintiffs was non-compliance
with Order 43 rule 3 (3) of C.
I. 47. The said non-compliance
rendered execution of a judgment
obtained by the defendants from
the Greater Accra Regional House
of Chiefs irregular. The remedy
open to the plaintiffs was to
apply to have the execution
process set aside. They however
issued a writ. This court’s
position was that the default
did not create a separate cause
of action, the writ was
incompetent therefore, it was
dismissed.
In the case of Standard Bank
Offshore Trust Company Ltd.
(Substituted) by Dominion
Corporate Trustees Ltd v
National Investment Bank Ltd. &
Others,
the issue had to do with the
capacity of the plaintiffs. The
writ was issued by a foreign
based firm who claimed to be
suing on behalf of “certain
investors” the identity of the
‘certain investors’ was not
disclosed on the writ. The court
held that the capacity of the
plaintiff must exist before the
writ is issued, the authority to
issue the writ must appear in
the endorsement and / or the
statement of claim accompanying
the writ. A writ that does not
meet the requirement of capacity
is null and void. The default
cannot be cured under Order 81
because capacity cannot be
acquired while the case was
pending.
It has been amply demonstrated
in the analysis above that the
jurisdiction of the High Court
was properly evoked; the writ of
summons and the proceedings in
the High Court are not void. The
first ground of appeal therefore
has no merit and must fail.
In determining the second issue,
that is whether the appellant
succeeded to establish the gift
of donatio mortis causa to her,
I would briefly discuss what the
doctrine entails and the
circumstances under which the
gift could be said to have been
validly made.
Donatio mortis causa is a
common law doctrine and it is
referred to as deathbed gift. It
has been defined in many decided
cases as a gift made by the
donor in anticipation of death.
The gift becomes effective only
when the donor dies. This means
when the anticipated death does
not occur the gift reverts to
the donor. Three elements have
evolved from decisions of the
courts which must exist to make
a donatio mortis causa valid.
In
Cain v Moon [1896]2 QB 283
these three elements
were set out per Lord Russell in
his judgment in the following
words: “first,
the gift or donation must have
been made in contemplation,
though not necessarily in
expectation, of death; secondly,
there must have been delivery to
the donee of the subject-matter
of the gift; and, thirdly, the
gift must be made under such
circumstances as shown that the
thing is to revert to the
donor in case he
should recover.” Decisions
of courts in our jurisdiction
follow the same principles.
In the case of
Asante v University of Ghana
[1972]2GLR 86 Abban
J following the Common Law cases
gave the following definition to
the doctrine: "A
donatio
mortis causa is a singular
form of gift. It may be said to
be of an amphibious nature,
being a gift which is neither
entirely inter vivos nor
testamentary. It is an act
inter vivos by which the donee
is to have the absolute title to
the subject of the gift not at
once but if the donor dies. If
the donor dies the title becomes
absolute not under but as
against his executors. In order
to make the gift valid it must
be made so as to take complete
effect on the donor's death.
The court must find that the
donor intended it to be absolute
if he died, but he need not
actually say so.”
Another common law decision that
defines the doctrine of donatio
mortis causa is
Gardner v. Parker 3 Madd. 184,
where Sir John
Leach V.C. says
'It is to be inferred that it
was the intention of the donor
that it should be held as a gift
only in case of his death. If a
gift is made in expectation of
death, there is an implied
condition that it is to be held
only in the event of death. It
is a question of fact: the
inference may be drawn that the
gift was intended to be
absolute, but only in case of
death."
By the nature of the gift, which
is made in circumstances of
contemplation of death by the
donor, the likelihood of such a
donor being open to persuasion
or influence is very high. It is
therefore important that the
courts tread cautiously in the
type of evidence they accept as
proof of a valid donatio mortis
causa.
In the case of
Cosnaham v Grice [1862]15
Moore 216
at 223 Lord
Chelmsford in delivering the
judgment of the Court of Appeal,
Isle of Man, sounded this
caution and said “Cases of
this kind demand the strictest
scrutiny. So many opportunities,
and such strong temptations,
present themselves to
unscrupulous persons to pretend
these deathbed donations, that
there is always danger of having
an entirely fabricated case set
up. And without any imputation
of fraudulent contrivance, it is
so easy to mistake the meaning
of persons languishing in a
mortal illness, and, by a slight
change of words, to convert
their expressions of intended
benefit into an actual gift of
property, that no case of this
description ought to prevail,
unless it is supported by
evidence of the clearest and
most unequivocal character.”
Stout CJ of the New Zealand
Supreme Court added his voice to
this caution when he held in the
case of
Heitman v Mace & Another
[1903]41 NZLR 1242
that “Evidence by a
claimant of a gift by a deceased
person always require the
strictest scrutiny”
One thing that boggles my mind
is whether it is necessary to
cling to the common law doctrine
of donatio mortis causa in our
jurisdiction. What the doctrine
seeks to do is to give validity
to a deathbed gift. It is clear
from decided cases from other
common law jurisdictions that
proof of a valid donatio mortis
causa poses a challenge. In the
United Kingdom, for example the
doctrine is being given a second
look in line with modern day
development of the law and
social circumstances. In the
case of
King v Dubrey [2016] Ch
221 the
English court per Jackson LJ
held the view that the
doctrine had outlived its
usefulness; to quote him:
“Indeed I must confess to some
mystification as to why the
common law has adopted the
doctrine of donatio mortis causa
at all. The doctrine obviously
served a useful purpose in the
later Roman Empire. But it
serves little useful purpose
today, save possibly validating
deathbed gifts. Even then a
considerable caution is
required.”
In our jurisdiction, it is my
view that our customary law
will; (Samansiw) provides a more
reliable alternative to a
deathbed testator. In the sense
that, case law has developed
stated requirements of a valid
customary law will, thus making
the ascertainment of its
validity easy to the courts.
In the case of
Abadoo v Awotwi [1973]1GLR393
for example the requirements
of a valid customary law will
were spelt out as follows: a) It
must be made in anticipation of
death b) the deathbed
declaration must be made in the
presence of witnesses. c) The
witnesses must know the content
of the declaration and be able
to testify about same.
It had been held that samansiw
is akin to donatio mortis causa.
Akufo-Addo CJ (as
he then was) in the case of
Atuahene v Amofa (1969) CC 154
held the view that:
"Samansiw as the name implies
(it is an Akan expression which
literally means `a ghost
behest') is a disposition of
property which takes effect
after death, and it is the
customary law mode of
testamentary disposition. In its
origin it is akin to donatio
mortis causa in English law.
Like all customary transactions
samansiw is a verbal disposition
and requires publication for the
purpose of perpetuating the
testimony thereof."
This supports my view that
Samansiw provides a better
alternative to the ancient Roman
Empire common law doctrine of
donatio mortis causa.
Coming back to the issue as to
whether a donatio mortis causa
had been established by the
appellant, I would say that the
appellant presented very scanty
evidence on the alleged gift to
her. There is undisputed
evidence that the deceased had a
terminal decease, cancer. The
possibility that he might die of
that decease was high. However,
that the deceased made a gift of
half share of the property he
jointly owned with the wife, to
her, five months prior to his
death has not been proved by any
evidence whatsoever.
The evidence adduced by the
appellant’s attorney on the
alleged gift is at page 172 of
the record, and it is this:
“Q: In respect of the East Legon
property, do you know if the
late Victor Marbell has done
something in respect of the
house before his death?
A: Yes my Lord, he told the
defendant that he was giving her
his interest in the land at East
Legon.
Q: When was this made
A: It was in September 2008.”
That the deceased actually made
the gift is seriously doubtful.
A possible way of scrutinizing
the circumstance of the gift is
to examine the words or the
manner in which the deceased
expressed the giving of the
gift. The evidence provided by
the appellant as stated above
offers the court nothing to work
with in that regard.
One other ingredient of a valid
donatio mortis causa that the
evidence on record failed to
prove is the delivery of the
subject matter of the gift or
the essential indicia of title
to the gift. There is no
evidence on record to prove the
deceased made a parting of the
gift to the appellant. Counsel
for the appellant argued that
proof of this ingredient is not
applicable to the appellant
because they both (deceased
husband & appellant) jointly
owned and possess the lease
documents on the land. What this
argument is suggesting is that
the court should assume that the
lease document was parted with
in fulfilment of the 3rd
ingredient of proof of the
deathbed gift. Accepting such
suggestion would lead to
injustice. If in deed the
deceased intended to gift his
half share of the property to
the appellant the law requires
that, he parted with the lease
document to her. There is no
justification in arguing that
the said requirement should be
waived.
It is part of the undisputed
evidence on record that the
deceased executed a deed of
assignment in favour of his two
sons, the respondents in this
appeal, making a gift of a piece
of land in Accra to them.
Exhibit 3 is the deed of
assignment and it was made on
the 3rd of April
2008. The alleged danatio mortis
causa was made in or around
September 2008, only five months
after the deed of assignment was
made. If indeed the deceased had
the intent of making a gift of
his portion of the No 9 Mensah
Wood property to the appellant
it is highly probable that he
would have followed the same
procedure as the deed of
assignment to his sons.
It is my view that there is no
evidence from which the court
can reasonably infer that there
was a donatio mortis causa. The
holding of the Court of Appeal
that donatio mortis causa had
not been established is in
place.
The appeal fails in its
entirety and it is hereby
dismissed, the judgment of the
Court of Appeal is hereby
affirmed.
A. M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
C. AMON-KOTEI FOR THE
PLAINTIFFS/APPELLANTS/RESPONDENTS.
ALI GOMDAH ABDUL-SAMAD FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
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