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ARYEETEY, J.A.
A brief background to this
appeal is as follows: Until his
death on 25th February 1997 the
late Emmanuel Kotei Kwashie
carried out a business as
dressmakers and tailors with his
son and daughter, the appellants
herein. It is the contention of
the appellants that even though
their late father on his own
acquired the land on which besic
built the house where they
jointly carried out the
dressmakers and tailoring
business with him they gave
monetary assistance to him for
the construction of the house.
They did that from the United
Kingdom where they studied. On
their return from the United
Kingdom to Accra, they brought
with them industrial and
domestic machines as well as
other tools to reactivate the
business, of which they became
partners with their late father.
In acknow- ledgement of the
contributions made by the
appellants in various forms the
late Emmanuel Kotei Kwashie
executed a conveyance, exhibit B
transferring the property, House
No F390/1, Osu from himself as a
Donor to the plaintiffs and
himself as donee being tenants
in common. That took place on
13th September 1984. However,
upon his death it was discovered
that the late Emmanuel Kotei
Kwashie devised the said house
in his Will to his second wife
Emma Telfah and her children.
The appellants contend that
because of the execution of
exhibit B of which they are
beneficiaries their late father
lacked the capacity to devise in
his Will, exhibit A, House No.
390/1, Osu in favour of Emma
Telfah and her children, which
adversely affects their interest
in the said house. Therefore by
their writ of summons in the
court below, the
plaintiffs/appellants sued the
executors of their father’s
will, the defendants/respondents
herein claiming the following
reliefs:
(a) Declaration of title of all
that parcel of land situate at
Osu, Accra with building thereon
which land is particularly
described in the schedule
hereinafter referred and
commonly known as House No.
F390/1 Osu, Accra.
(b) Perpetual Injunction against
the defendants, their agents and
assigns restraining them from
interfering with the interest of
the plaintiffs in House No.
F390/1, Osu Accra.
(c) An order declaring the
devise of House No. F390/1 Osu
Accra to Emma Telfah and
children as contained in the
Last Will and Testament of
Emmanuel Kotei Kwashie as void
and of no effect.
The defendants counterclaimed
for:
(a) Account of all rents and
proceeds from House No. F390/1,
Osu Gorsee, Accra and payment
over to the defendant/executors.
(b) Account of all proceeds,
from the Testator’s tailoring
business, Kwashie Tailors and
payment to the
defendant/executors.
(c) An order nullifying the
incorporation and/or conversion
of the Testator’s sole
proprietorship into a limited
liability company—namely Kwashie
Tailors Limited.
The High Court dismissed the
appellants' claim as well as the
respondents' counterclaim.
The appellants appealed to this
Court and filed the following
four grounds of appeal:
(i) The judgment is against the
weight of evidence.
(ii) The learned trial judge
erred in law in holding that the
gift contained in Exhibit B was
customary gift.
(iii) The learned trial judge
erred in law in holding that the
Testator Emmanuel Kwashie never
executed the Deed of Gift.
(iv) The learned trial judge
erred in holding that the
plaintiffs/appellants never
contributed to the construction
of House No. F390/1 Gorsee,
Osu-Accra.
I would first like to take
grounds (i) and (iv) of the
Grounds of Appeal together,
namely: (i) The judgment is
against the weight of evidence
and (iv) The learned trial judge
erred in holding that the
plaintiffs/appellants never
contributed to the construction
of House No. F390/1 Gorsee,
Osu-Accra. By paragraphs 6, 9
and 11 of the Statement of Claim
the plaintiffs give the
impression that they gave their
father monetary and other
assistance towards the
construction of the house, the
subject matter of this
litigation, which motivated
their late father to execute
exhibit B, making them part
owners of the house. They
challenge the trial judge's
conclusion that they never
contributed to the construction
of the house. It would therefore
be appropriate for us to look
briefly at the evidence adduced
on their behalf it support of
their stand that they indeed
contributed substantially
towards the construction of the
said House No. F390/1 which
caused their late father to
execute exhibit B in their
favour.
At page 27 of the record of
appeal, we have the relevant
portion of the sworn evidence
of the first plaintiff as
follows:
"On June 4th 1989 there was a
fire outbreak at our fathers
former workshop on the Labadi
Accra Road near St Barnabas
Anglican Church, Osu. After the
fire outbreak, all the workers
deserted him so he moved to his
residence at Nyaniba Estate
where he commenced work again in
his sitting room. By then, he
had started constructing House
No. F390/1 with a mortgage loan
from Ghana Commercial Bank but
because his workers had deserted
him and work was at a
standstill, he could not honour
the payment of the loan, He
therefore visited us and
requested us to assist him in
completing the building, By then
the building had been roofed,
and wired. We the plaintiffs
contributed to its present
habitable state. Our
contribution was financial. We
also acquired the machinery for
the failing business. The
failing business was solely in
our father’s name but we were
working as partners.
As a result of our
contributions, our father
prepared a document giving we
the plaintiffs a share in the
property.
The first appellant, in his
evidence, merely repeats the
averments in the Statement of
Claim that he and his sister
gave financial assistance to aid
their late father in the
construction of the building.
There is no evidence coming from
the appellants' quarters to
corroborate the said averments.
When he mounted the witness box,
it was expected of him to adduce
evidence, which would lend
credence to the bare assertions
and allegations contained in the
Statement of Claim. (See the
case of Majolagbe v. Larbi &
Ors. (1959) G. L. R. (190.) The
plaintiffs tendered in evidence
a document, exhibit E, which
contains an invitation to them
dated 4th May 1983, to attend an
Executive Meeting with their
late father. The agenda of the
meeting, which appears at page
99 of the record of appeal,
includes the following: Review
of business operations,
Discipline, Finance, Production
Control, Staffing and Property.
At pages 100 and 101 of the
record of appeal, we have what
is supposed to be the minutes of
that meeting.
It begins as follows:
"THE BUSINESS PREMISSES - F390/1
CARL QUIST LINK
The present business premises
was originally planned for
residence and construction
commenced slowly In 1965. By
1972, it had been roofed, wired
and slumbered; but financial
restraints brought further work
to a standstill. When later
Michael decided to enter the
trade, some of the partitions
were removed to create more
space suitable for workshops. In
1978 work on the building
recommenced slowly until the
then workshop at Labadi Road
suffered the unfortunate fire
disaster. Later Adelaide also
took interest in the trade and
together with Mike they
contributed to its present
habitable state. It has been
agreed by all that the ownership
of the building shall be
separated from the tailoring
business. Share holdlngs as at
the moment are as follows:—
Emml K. Kwashie
.. ... 50%
Adelaide K. Kwashie
.. ... 30%
Michael N. Kwashie
... ... 20%
It is worthy of note that from
what is reproduced above it is
not very clear whether the
'shareholdings' quoted above
refers to the shares in the
business or shares in building.
In any case, at page 101 of the
record of appeal we have an
uncompleted table of "INDIVIDUAL
CONTRIBUTIONS” of the plaintiffs
and their late father in respect
of the "BUILDING" as well as the
"BUSINESS". In addition, at the
top of page 101 of the record of
appeal we have a heading
"Further proposals' which
suggests what we have in exhibit
E respecting shares, whether of
the building or of the business
were mere proposals that could
be implemented. In any case,
there is nothing in exhibit E to
indicate the value of any
monetary assistance given by the
plaintiffs to their late father
for the construction of the
house, which is the subject
matter of this litigation.
According to what we have at
page 100 of the record of appeal
quoted above the plaintiffs
"contributed to its present
habitable state". In exhibit B
it appears at page 100 of the
record of appeal that "The
property shall remain in the
name of Emmanuel K. Kwashie.
Even if we take the view that
the appellants assisted their
father with monetary
contributions to complete the
building we would still have to
consider the issue as to whether
such financial assistance would
make perfect a customary gift.
Before we go on further we would
have to deal with the issue of
customary gift as represented by
the second and third grounds of
appeal namely: (ii) The learned
trial judge erred in law in
holding that the gift contained
In Exhibit B was a customary
gift. (iii) The learned trial
judge erred in law in holding
that the Testator Emmanuel
Kwashie never executed the Deed
of Gift.
In his invaluable book,
Principles of Customary Land Law
in Ghana, (second edition) while
he dwelt on subject 'ALIENATION
AND TRANSFER' the learned author
Nii Amaa Ollennu had this to say
at page 127 of the book:
"While on this point it should
be emphasised that tenure of all
lands in Ghana is regulated by
customary law, and any
alienation therefore must be in
accordance with customary law.
Parties to a transaction in
respect of land cannot by their
contract agree to change the law
of the land with respect to a
particular subject matter. They
may agree that their obligations
should be regulated by some law,
forming part of the common law
of Ghana, other than customary
law (that is any law in force in
Ghana, other than customary
law), but they cannot by the
agreement import into their
transaction law not in force in
Ghana. The only law governing
land tenure in Ghana is
customary law.”
Section 4 (1) of the
Conveyancing Decree, 1973
(N.R.C.D. 175) requires that an
oral grant of an interest in
land under customary law should
be in writing as follows:
”An oral grant of an interest in
land under customary law shall
be recorded in the form
contained in the first schedule,
or as near thereto as
circumstances permit,
incorporating the essential
features of the transaction
sought to be effected, signed by
the person making the transfer
or by his agent lawfully
authorised for that purpose, and
certified by a registrar having
jurisdiction within any part of
the area to which the
transaction relates . . .
According to Ollennu at page 119
of his book, "This did not
remove the need to comply with
the customary law requisites,
but rather added an additional,
statutory requite.”
I think that the learned trial
judge was right when relied on
the case of Sese v. Sese
reported in [1984-86] 2 G.L.R.
78 C.A., where it was held "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" and
therefore "subject to the
incidents of customary law".
Again, in his book, Principles
of Customary Land Law in Ghana
(2nd Edition) N. A. Ollennu,
explain what constitutes a valid
customary gift at page 119-20 as
follows:
"To constitute a valid gift
there must be:
(i) a particular estate or
interest in land which is to
pass from the donor to the
donee.
(ii) an acceptance of the gift
by the donee in the lifetime of
the donor.
(iii) the delivery of the land
by the donor to the donee.
The making of the gift should
have as much publicity as the
circumstances of each case
warrant . . .
In the judgment of the Land
Court in Beatrice N. Asare vrs.
Teing & anor. [1960] G. L. R.
155 the court summed up the
essential.5 of a valid gift as
follows:
'The essentials of a valid gift
made in accordance with
customary law are: publicity,
acceptance, and placing the
donee in possession. The way to
give publicity to a gift of land
is to make the gift in the
presence of witnesses,
particularly members of the
family of the donor who would
succeed to the property upon the
donor’s death intestate; and the
acceptance must be evidenced by
the presentation of 'drink' or
some small amount of money to
the donor, part of which is
served to or shared among the
witnesses to the transaction.
Possession is given by taking
the donee to the land owners of
the adjoining lands having been
given previous information to
stand on their boundaries and
the donee is taken round the
said boundaries.
In the absence, however, of
publicity of the gift at the
time of its making,, possession
and occupation by the donee and
the open exercise of him of
rights over the land, which is
incapable of any other
explanation except that the
person in such possession is
the owner, will be sufficient
evidence and publication, of the
gift.'
But apart from the drink which
the donee should give as an act
of acceptance on the occasion
when the gift is made to him, he
must, within a reasonably short
time after the making of the
gift, present some articles, a
small sum of money and drinks to
the donor”.
In the case of Effuah Kwekuwah
v. Effuah Nahenna reported in
(1938) 4 W.A.C.A. 165, Effuah
Kwekuwah had lived together with
Kwamin Assikumah as man and
wife. In the course of their
marriage, Effuah Kwekuwah
rendered monetary and other
assistance to her husband as he
carried out a building project,
which became the subject matter
of litigation. In his lifetime,
Kwamin Assikumah gave a part of
the building to his wife, Effuah
Kwekuwah, and the other part to
his sister and nieces. After the
death of Kwamin Assikumah, in a
litigation between Effuah
Kwekuwah and the family of her
late husband the Native Tribunal
ruled that although the late
Kwamin Assikumah intended to
make a gift of a portion of the
house to Effuah Kwekuwah the
course adopted by him was
improper, since it was
"tantamount to private
transaction or dealing; gifts of
this kind must be made public,
that is relatives of both the
donor and the donee and some
outside persons must be present
to act as witnesses, and the
donee in accordance with custom
acknowledges or accepts the gift
by giving some present or
presents in return as a thanks
giving . . . The gift to the
said Effuah Kwekuwah which
failed automatically went to the
family". The Court of the
Provincial Commissioner, Central
Province reversed the decision
of the Native Tribunal. On
appeal, the West African Court
of Appeal held that the findings
of the Native Tribunal should
not have been disturbed. The
appeal before that court was
therefore allowed.
There is no evidence before on
record that exhibit B
represented a customary law gift
transaction, which has been
reduced into writing. All the
same, even if we hold the view
that exhibit B constituted a
valid customary gift, we would
have to look at another aspect
of the matter, namely whether
the testator could devise the
house in dispute to Emma Telfah
and her children after he had
given a portion of it to the
plaintiffs before the execution
of the will. In other words,
could a gift made under
customary law be revoked? That
issue was adequately addressed
in the case of Sese v. Sese
(supra). In that case, Abban J.
A., (as he then was) had this to
say about the incidents of a
customary gift which has been
reduced in writing, at page 174
of the report as follows:
"It may be recalled that the
learned judge held in the
alternative that assuming there
was even a customary gift, that
gift was revoked by the will of
the plaintiff's late father,
exhibit F4. It was this holding
that learned counsel for the
plaintiff complained about in
his last submission.
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
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.'
See Sarbah’s Fanti Customary
Laws (3rd ed) at 80-82. In the
circumstances, the so-called
gift, even if it was valid,
could still be revoked by the
plaintiff’s late father by
adopting one of the means stated
above. The father did not need
any special deed of revocation,
specially prepared and couched
in any strong language as
advocated by learned counsel,
before the gift could be
revoked. So long as the
intention to revoke is clearly
and unequivocally expressed by
the parent, be it orally or in
writing or in a will, the
revocation would be effective
and would be in accord with
customary law. The plaintiff’s
late father could Therefore
revoke the supposed deed of gift
by his will; and in my opinion
he effectively did so in clause
3 of his will dated 22 July
1982.
Consequently, as I have said,
even if it had been held that
there was an intention to make
an absolute customary gift and
the transaction which took place
between the plaintiff and his
late father was a valid
customary gift, that gift was
effectively and decisively
revoked by the father by the
said will.”
In the instant appeal even if we
take the view that the late
Emmanuel K. Kwashie made a valid
gift of a portion of the house
in dispute to the appellants in
1984 that gift was effectively
revoked when on 13th March 1996
he devised the same property to
Emma Telfah and her children in
his Will, exhibit A. For the
reasons given in this judgment,
the appeal is dismissed.
B.T. ARYEETEY
JUSTICE OF APPEAL
I agree.
R. T. ANINAKWAH
JUSTICE OF APPEAL
I also agree.
G. M. QUAYE
JUSTICE OF APPEAL
COUNSEL
AGYABENG GYAM AKRASI FOR
PLAINTIFF/APPELLANTS
WILLIE AMARFIO FOR
DEFENDANTS/RESPONDENTS |
