IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
ATTA KWAKU AGYEI AND KWAME KONADU - (Plaintiff)
ELDER YAW ASARE BEDIAKO AND 3 OTHERS - (Defendants/ Respondents)
DATE: TUESDAY, 23RD MAY 2017
CIVIL APPEAL NO: H1/24/2016
JUDGES: E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
VALENTINE BOAMAH FOR PLAINTIFFS/APPELLANTS
WILLIAM MARK ADEOLWINE FOR DEFENDANTS/RESPONDENTS
1. This is an appeal against the judgment of a Fast Track High Court, Sunyani, dated 7th day of July 2014 by the plaintiffs. The sole ground of appeal is that the judgment is against the weight of evidence.
2. Initially, the claim of the plaintiffs was against the 1st defendant for:
(a) A declaration that H/No. SNT 8, New Town, Sunyani is a property commonly acquired by the late Opanin Kwasi Anomah and Opanin Kofi Mensah and that same is part of their estate.
(b) A declaration that H/No. SNT 8, New Town, Sunyani, by operation of PNDCL 111 devolves on the children and wives of Opanin Kofi Mensah and Opanin Kwasi Anomah.
(c) An order of injunction restraining the defendants, their agents, privies, etc. from dealing with the disputed house and the vacant portion thereof.
3. The plaintiffs in their statement of claim pleaded that they are children of the late Opanin Kwasi Anomah and Opanin Kofi Mensah who were uterine brothers and who jointly acquired the subject house through their joint enterprise. The defendant (1st defendant) is the nephew of the deceased brothers. It is their case that Kwasi Anomah told them that when he and his brother die, they (their children) should take the house as theirs.
4. In paragraph 18 of the accompanying statement of claim, they alleged that, at the first anniversary celebration of the death of Kwasi Anomah, the family claimed an interest in the property and an agreement was reached to share the house and a vacant piece of land in front of it between them. But while waiting for the sharing to be done, they saw the vacant piece of land being developed. From their averment, they suspected the defendant (now 1st defendant) to be behind the development going on. This is the basis of the claim against him.
5. The defendant duly entered an appearance and in his defence, he denied any claim or interest in the property. He asserted that he was wrongly sued because at the meeting plaintiffs referred to in paragraph 18, he got to know that the property belongs to the family and the proper members to answer the claim of the plaintiffs are the family head and the principal members. He mentioned specifically the 2nd to 4th defendants/respondents as some of the principal members.
6. It would appear that the plaintiffs were satisfied with the statement of defence that they had no cause of action against the defendant. The plaintiffs therefore applied to the court to join the 2nd to 4th defendants to the suit because they are the proper persons to respond to their claim. The court granted the motion for joinder on 11th July 2011 and ordered the plaintiffs to amend writ and statement of claim accordingly, and when served on the 2nd to 4th defendants, they should enter an appearance.
7. In compliance with that order, the plaintiffs filed an amended writ of summons which added the names of Akua Nsiah, Yaa Bommo and Afia Mmeraa as 2nd, 3rd and 4th defendants respectively to the suit to answer the claim of the plaintiffs (see page 19 of the record of appeal). Conspicuously absent from the record of appeal however is any service of statement of claim either in its original form as filed on 4th May 2011 or an amended form on the 2nd to 4th defendants.
8. According to Order 16 rule 8 of C.I. 47, the High Court (Civil Procedure) Rules, 2004, if a party fails to amend a writ, pleading or other document within 14 days of the order or the period stated in the order, the order shall cease to have effect without prejudice of the power of the court to extend the period. In this case, the plaintiffs have completely failed/neglected to comply with the order of the court and conducted their case on the basis of the statement of claim filed against the 1st defendant who was sued without cause and should have been struck off as a party.
9. What is the effect of the failure of the plaintiffs to serve any form of statement of claim on the 2nd to the 4th defendants? In Hammond vrs Odoi [1982/83] GLR 1215 at 1235, the function of pleading in a trial was profoundly stated. It is stated that the trial judge can only consider the evidence of the parties in the light of the pleadings. This is because pleadings are nucleus around which the whole case revolves as it bind and circumscribe the parties and place fetters on the evidence they would lead at the trial. As regards a statement of claim in particular, it must state the relief or remedy the plaintiff seeks against the defendant – see Order 11 rule 15(1) of C.I. 47.
10. In the particular circumstances of this case, although the 2nd to 4th defendants were not served with the statement of claim as ordered pursuant to the order of joinder, they filed a joint statement of defence. The plaintiffs filed a reply to it and issues were raised and joined. The trial was concluded and judgment delivered accordingly. I have read cases in which failure to amend pleadings as ordered by the court was raised at the conclusion of taking evidence or after judgment. I notice that at the appellate court, the decision is influenced by the peculiar circumstances of each case.
11. In Atta vrs Adevor  2 GLR 343 for example, counsel for the appellant failed to amend the writ of summons within the time limit under the Rules of Court until six months later when the trial was almost ended without extension. The trial judge disregarded any notice of the amended writ in his judgment and dismissed appellant’s claim. On appeal, counsel for appellant invited the court to extend time to amend because the court has that power and then admit the amended writ of summons. The court was persuaded, allowed the appeal and remitted the suit to the lower court to grant the extension and try the case de novo.
12. In the case of In Re Okine (dec’d); Dodoo vrs Okine [2003/04] SCGLR 582, counsel for defendant alleged that he was granted leave to plead a claim based on “samansiw”, customary law will. The trial judge in his judgment upheld the samansiw as proved but dismissed defendant’s claim based on statutory will. Both parties appealed. But in the record of appeal, there was no process showing that leave was granted the defendant to plead customary law will. The Court of Appeal therefore reversed the trial judge’s finding on the customary law will because it has not been pleaded.
13. In the Supreme Court, counsel for defendants blamed the trial judge for not recording the grant. The court disagreed with him because he failed to be vigilant or attentive. The court again disagreed with the Court of Appeal for rejecting the finding of the trial judge on the customary law will and upheld it. The court explained that the evidence led on the customary law will was contested by the plaintiff and not objected to. The trial judge was therefore justified to consider it in the light of section 6 of the Evidence Act, 1975 (NRCD 323), moreso when the evidence led is not inadmissible per se by any statute.
14. In the present case, counsel for the plaintiffs failed in his duty to ensure compliance with the order of the court to amend also the statement of the claim and serve the 2nd to 4th defendants. Similarly, counsel for the 2nd to 4th defendants was also indolent or careless in not ensuring that the orders of the court was fully complied with before he plunged the 2nd to 4th defendants into the contest. That notwithstanding, it cannot be said that the2nd to 4th defendants suffered any disadvantage or surprise when the plaintiffs presented their case at the trial. The claim of the plaintiff is for a declaration that the subject house was jointly acquired by their late fathers and it is therefore part of their estate. The 2nd to 4th defendants both in their joint statement of defence and evidence, marshalled the required evidence to contest the claim of the plaintiffs. The judgment also addressed the issue in controversy between the parties. Despite the non-compliance of the order of the court, we will uphold the proceedings rather than declare it invalid.
15. Now the case of the plaintiffs/appellants (referred to simply as plaintiffs) is that the 2nd to 4th defendants/respondents (referred to simply as defendants) are the uterine sisters of their late fathers and therefore their aunts. The mother of their late fathers and the defendants was Ama Konamah. According to the plaintiffs, their fathers operated a chop bar popularly known then as “Gold Coast Chop Bar”. Out of the income they realized, they jointly acquired the plot and put up the subject house. Since Opanin Kwasi Anomah was the elder, they agreed that the property should be registered in his name.
16. On completion of the house Opanin Kwasi Anomah moved his mother and sisters (defendants herein) who were living in a single room at Area 2 into the house. His brother Opanin Kofi Mensah also moved in with his family. But Opanin Kwasi Anomah himself continued to live in his father’s house at Area 1. He lived there until his death in 1997 but diligently paid all outgoings on the house. Opanin Kwasi Anomah also put up a house for his mother Ama Konamah at New Town Extension, Sunyani, which he could not complete. This house has now been taken over by the defendants.
17. The further case of the plaintiffs is that, before Opanin Kwasi Anomah died, he told his son Kwaku Barnieh (PW1) that the subject house was jointly acquired by him and Opanin Kofi Mensah and that upon his death, the house should go to their respective children. So on the 40th day celebration of the death of Opanin Kwasi Anomah, PW1 his son made this fact known to the family. Opanin Kofi Mensah who was then alive and present, confirmed the gift and no member of the family raised any objection.
18. But on the first anniversary celebration of the death of Opanin Kwasi Anomah when they presented an aseda to the family for the gift of the house to them, the plaintiffs said the family claimed an interest in it. The plaintiffs said eventually, the family requested that the house and the undeveloped plot be divided equally between the family of the deceased on the one side and the children and the widows on the other. The plaintiff said in the interest family cohesion, they agreed to the request. But while waiting for the sharing to be done, they saw that someone was developing the vacant piece of land in front of the house, hence their claim against the defendants.
19. Denying the claim of the plaintiffs, the defendants asserted that the subject house belongs to their mother Ama Konamah as the bona fide owner. According to them, their late mother, a royal, was an industrious cocoa farmer and large food crop farmer for sale. Their mother they said gave money to Opanin Kwasi Anomah, as the eldest son then to acquire the plot and oversee/supervise the construction of the house. It is their case that unknown to them in the acquisition of the land Opanin Kwasi Anomah used his name because their mother was an illiterate.
20. The defendants say that because the house belonged to their mother, on completion, Opanin Kwasi Anomah reported to her. Together with their mother, they moved into the house. They say they have been living in the house ever since. Opanin Kofi Mensah also moved in with them, lived there until he passed away in 2002. They agreed Opanin Kwasi Anomah never lived in the house until his death in 1997.
21. The defendants say that in the lifetime of Opanin Kwasi Anomah, their mother paid the property rate on the house through him and after the death of their mother, they have been paying up to date still in the name of Opanin Kwasi Anomah. According to them they moved into the house when they were young girls during the reign of Nana Kwaku Barnieh alias Kwaku Mosi, Sunyanihene and had all their children in the house. They are still living in the house.
22. The defendants disclosed that Opanin Kwasi Anomah once contested the Sunyani Stool with some others. The contest resulted into a dispute culminating in the disqualification of all the contestants. He however incurred a heavy debt. Because he had no job, on the advise of their mother, he tapped palm-wine at their farmstead at the present day site of Sunyani Polytechnic but the income was meager considering the debt. He was therefore compelled to travel to Tema where he stayed for two years without success. He returned to Sunyani and with the blessing of their mother, he went into the chop bar business.
23. It is their case that the subject house had long been built and they were living in it before the chop bar business was started by Opanin Kwasi Anomah. They said Opanin Kofi Mensah and their very selves assisted their brother to ran the chop bar in order to raise money to defray the debt. They said their mother and 4th defendant provided the money which Opanin Kwasi Anomah used to put up the uncompleted house at New Town Extension, Sunyani.
24. The defendants maintained that the subject house is the property of their mother and that is why they rejected outright the suggestion by the plaintiffs that they should have a share in it. According to them, the house is the family property of Ama Konamah’s Abakoma division/branch where meetings are held and deceased members are laid in state before burial. The plaintiffs are therefore not entitled to their claim.
25. From the pleadings, the plaintiffs are claiming the subject house because it was self-acquired by their fathers who subsequently made a gift of it to them in their life time. Defendants on their part, claimed the house as the self-acquired property of their mother from her own resources. Defendants did not make a counter-claim. The law is settled that a party who makes a claim must prove it in order to avoid a ruling against him. And being a civil case, proof must be on the preponderance of probabilities.
26. In case law, it was held in Yaa Kwasi vrs Arhin Davis & Or. [2007/08] SCGLR 580 on the party with the burden of proof that:
“Since the plaintiff/appellant sued not only for a declaration of title but also damages for trespass and an order of perpetual injunction, he assumed the onerous burden of proof of title to the disputed land by the preponderance of the probabilities as required by section 11(1) & (4) and 12 of the Evidence Decree, 1975 (NRCD 323) or else risks the prospect of losing his case”.
27. Many years ago, before the Evidence Act, 1975 (NRCD 323) was enacted the principle was stated in Amah vrs Kaifio  GLR 23 thus:
“The plaintiff having pleaded ownership of the land, the defendants having denied that averment in their statement of defence and the plaintiffs having joined issues with the defendant thereon, the onus of proof lay on the plaintiff, for it was he who would fail if no evidence were led after the close of pleadings”.
28. But as explained in Adjetey Agbosu vrs Kotey [2003/04] SCGLR 420, although at common law, a defendant who has not counter-claimed is not required to prove anything, by the provisions of sections 11(1) and 14 of the Evidence Act, if the defendant fails to lead any evidence, and the determination of an issue depends on the evaluation of facts and evidence, the court will rely on the only evidence before it which is that of the plaintiff and if the court believes it, the probability of defendant losing the case is very high. What that exposition of the sections of the Evidence Act means is that counter-claim or no counter-claim, defendant must also lead evidence in proof of his case.
29. Now in the writ of summons of the plaintiffs, three reliefs were claimed and endorsed on it. Relief (b) seeks a declaration that H/No. SNT 8, Now Town, Sunyani by operation of PNDCL 111 devolves on the children and wives of Opanin Kofi Mensah and Opanin Kwasi Anomah. I noticed that in the written address of the counsel for the plaintiffs at the trial court, this relief (b) was not stated. No reason was given for omitting it. But it is stated in the address of the defendants and considered in the judgment of the trial court. The omission of relief (b) will not affect anything because no evidence was led to that effect. And then unless the plaintiffs succeeded on their claim that the house is a self-acquired property of their fathers, that relief (b) cannot be granted. No issue therefore turned on relief (b) which was not addressed by the trial judge.
30. The judgment of the trial court is to the effect that the house was not jointly acquired by the fathers of the plaintiffs. It does not form part of their estate. The instant appeal is against this conclusion that the judgment is against the weight of evidence. The meaning or implication of this ground of appeal is trite. In simple language, the ground implies that when the evidence adduced by the appellant is weighed against that adduced by the respondent, the judgment given in favour of the respondent is against the totality of the evidence before the court or that the evidence relied on or accepted by the trial judge does not support the judgment. The meaning or implication of the ground of appeal has been summarized neatly in cases like Djin vrs Musa Baako [2007/08] SCGLR 686 and Tuakwa vrs Bosom [2001/02] SCGLR 61.
31. The cases also noted that all appeals are by way of re-hearing the suit. The onus is therefore on the appellant to demonstrate to the appellate court in what way the judgment is against the weight of evidence or where and how the trial judge went wrong just as a plaintiff who makes a claim at the trial court has the obligation to prove his case. Having so demonstrated the appellate court will then be in a position to evaluate the whole evidence on the record before it comes to a conclusion on the complaint on the preponderance of probabilities.
32. It bears emphasizing that the ground that the judgment is against the weight of evidence is a complaint against the totality of evidence on the record. It is therefore not a complaint against a finding of fact on a specific issue or document. So where an appellant is aggrieved by a finding of fact on a specific issue or document, the complaint must be raised in a substantive ground of appeal and argued.
33. In the instant appeal, counsel for appellants based his submission on the property rate receipt which is the name of Opanin Kwasi Anomah. The submission observed that the defendants admitted that Opanin Kwasi Anomah honestly documented the house he built at New Town Extension for their mother. That being so, the evidence of the defendants failed to explain why Opanin Kwasi Anomah will be so dishonest as to register the subject house in his own name if indeed it was their mother who gave him money to acquire the house for her. Counsel submitted that the defendants failed to introduce sufficient evidence to support their claim or explain the alleged dishonest conduct of their late brother.
34. As evidence of ownership of the house, counsel again referred to the admission of the defendants that when Opanin Kwasi Anomah completed the subject house, he personally moved his mother and the defendants into it. And at a point in time when Opanin Kofi Mensah drove them out of the house, it took the intervention of Opanin Kwasi Anomah to put them back. In reference again to the property rate receipt, counsel reminded the court of the practice of the courts in giving priority to documentary evidence over oral evidence. Counsel in conclusion urged on us to make a ruling in favour of the plaintiffs because defendants introduced no sufficient evidence on the issue.
35. I admire very much the conciseness of the submission of counsel for the appellants. But as I stated above, the omnibus ground of appeal is a complaint against the totality of the evidence on the record and not one specific issue as demonstrated in the written submission of the appellants. On the record, defendants led evidence to support their claim on the issue discussed and then there are other pieces of evidence which favour the claim of the defendants. Despite my admiration for the brevity or conciseness of the submission on behalf of the plaintiffs, it failed in my view to do justice to the entire evidence on record.
36. The law on declaration of title to land is trite. In Asante-Appiah vrs Amponsa  SCGLR 90 at holding (5), it is stated:
“The law is well-established that where a party’s claims are for possession and perpetual injunction, he puts his title in issue. He assumes the onus of proving his title by a preponderance of probabilities, like any party who claims declaration of title to land …. …… by operation of law, the onus was on the plaintiff to establish his title. However, the plaintiff could not lead any evidence as to how he bought the property, when he bought it, the auction or sale at which he bought it, the price that he paid for it and the documentary proof establishing his title after the alleged sale”.
37. Also in Mondial Veneer (Gh) Limited vrs Amuah Gyebu IV  1 SCGLR 466, the court held that:
“In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title and on whom the burden of persuasion falls as in the instant case, to prove his root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation”.
38. In this case, the 3rd defendant who gave evidence on behalf of the defendants, told the court that their mother acquired the land at £7 with a bottle of schnapps from the Sunyani Stool during the reign of Kwaku Mosi. She said Opanin Kwasi Anomah as his eldest son ran the errand for her. DW1 corroborated her evidence on how the land was acquired but not how the house was built. He revealed that in those days it was Sanitary Inspectors who demarcate the plots for developers. DW1 further told the court the advice Ama Konamah’s husband gave her to engage her sons to assist her on the cocoa farm rather than caretakers (labourers) in order to raise enough to put up the house. It is in these circumstances that Opanin Kwasi Anomah became involved in the acquisition and construction of the house and then got his name registered in respect of the subject house, the defendants explained.
39. On the record, the plaintiffs never led any such evidence from whom the property was acquired and the price paid for it. Although the plaintiffs have denied the circumstances in which Opanin Kwasi Anomah’s name was registered in respect of the subject house as described by the defendants, they want the court to accept the evidence that Opanin Kwasi Anomah jointly acquired the property with Opanin Kofi Mensah. And yet on the record there is absolutely no evidence as to anything Kofi Mensah did or the role he played in the acquisition of the subject house.
40. Similarly, the plaintiffs tendered no document in the name of Ama Konamah on the New Town Extension house allegedly acquired by Opanin Kwasi Anomah for his mother. Indeed, the case of the defendants about that house is that their mother and 4th defendant financed its acquisition. The house they said was uncompleted and it fell into ruins in the lifetime of Opanin Kwasi Anomah. Is it the suggestion of the plaintiffs then that because Opanin Kwasi Anomah acquired the New Town Extension house for his mother, his mother could not have acquired the subject house through him? It is very possible.
41. This is because by the evidence of the defendants, their mother had the means to acquire the land and build the house. Their evidence that their mother was an industrious cocoa farmer and a large scale food crop farmer which she sold was not challenged by the plaintiff because they could not have challenged it. On the other hand, the evidence of the defendants showed that their brother Opanin Kwasi Anomah although not irresponsible according to DW1, lacked the means to put up the house.
42. According to them, their brother incurred a heavy debt when he contested to ascend the Sunyani Stool and lost. Because he had no job then, he took to palm-wine tapping. When that did not help he travelled to Tema, stayed there for two years and then returned empty handed to Sunyani to start the chop bar business. Again the plaintiffs could not challenge or deny this more or less damaging evidence.
43. In terms of age, the plaintiffs are children of the defendants. The matters they raised in this suit occurred before they were born or they grew up. While the evidence of the defendants and DW1 appeared to be direct or eye-witness account, plaintiffs could only give secondary evidence based on what they claimed Opanin Kwasi Anomah told them. According to the plaintiffs, from the income realized from the operation of the chop bar, their fathers put up the subject house. Defendants sharply denied that evidence because they have been living in the subject house long before the chop bar business was started. Again the plaintiffs could not challenge the defendants because they confessed that the subject house and the chop bar were existence before they were born or grew up.
44. That is the handicap which disabled the plaintiffs from marshalling evidence credible and cogent enough in proof of their claim. The individual circumstances of a claimant in a suit is not a ground to lower the standard of proof on the claim in his favour. This is because any party, irrespective of his circumstances, who makes a claim in a litigation, must marshal the necessary evidence to prove it. In the absence of evidence of personal knowledge of an event, circumstantial evidence is resorted to and acceptable. But whatever circumstantial evidence there is in this case further favoured the defendants rather than the plaintiffs.
45. The plaintiffs admitted that Opanin Kwasi Anomah never lived in the subject house even though they alleged he self-acquired it. The answer of the defendants is that he never lived in it because it belonged to their mother. And it is also admitted by the plaintiffs that the defendants and their mother has been living in the house before they grew up. Defendants say they moved into the house with their mother immediately after it was completed. Even after the death of their mother, they continued to live in the house and currently they are still living in the house. The 3rd defendant who gave evidence on their behalf gave her age as 90 years.
46. The plaintiff also led no evidence to show that in his lifetime, Opanin Kwasi Anomah exercised any authority/control over the house. Defendants admitted that at a point in time, they had to vacate the house temporarily because Opanin Kofi Mensah who was a drunkard, was quarrelling with and assaulting them including their mother. They say Opanin Kwasi Anomah only intervened and they returned to the house after six months. During the lifetime of their mother, she was paying the property rate and after her death, they have been paying it up to today. Plaintiffs admitted that they have never paid any property rate.
47. Further, the defendants say that the subject house is the family house of their mother’s Abakoma family where meetings are held and deceased members are laid in state. From the record, I found no evidence led by the plaintiffs to rebut these claims.
48. Acts of possession are veritable guides to the courts in the resolution of rival claims as portrayed by the evidence in this case. Apart from the property rate receipt tendered, whose probative value I shall discuss presently, the plaintiffs led no evidence of acts of possession even by themselves in their own right. In Hilodje vrs George [2005/06] SCGLR 974, the court held that:
“where a court is bent on choosing one of two conflicting traditional evidence, it must opt for the version of the party who additionally leads evidence of undisputed acts of possession of ownership over the subject matter”.
49. There is similar holdings in In Re Krobo Stool (No.1)  SCGLR 347, Ago Sai & Ors. vrs Kpobi Tetteh Tsuru III  SCGLR 762 and several other cases. Accordingly, on the evidence, we prefer the case of the defendants as the more reasonable probable one.
50. It is clear from the submission of counsel for the appellants that much reliance has been placed on the property rate receipts in support of plaintiffs claim. But it has been held in several cases that evidence of payment of property rates, ground rent, water and electricity bills are not conclusive evidence of ownership of the property in respect of which the payment was made. In Tonado Enterprise vrs Chou Sen Lin [2007/08] 1 SCGLR 135, the court held that (i) it is not an invariable rule that any payment of ground rent should be construed as evidence of ownership and (ii) demand for ground rent on a person does not establish conclusive proof of ownership. It continued that such payment raises a presumption of ownership which is rebuttable. In law, a person possesses what he owns – section 48 of NRCD 323 and possession is nine-tenths of the law. It is our finding that the evidence led in favour of the defendants has sufficiently rebutted the plaintiff claim of ownership of the subject property based on the property rate receipt.
51. The last issue to comment on is the plea in paragraph 14 of the statement of claim and the evidence of PW1 that his father Opanin Kwasi Anomah told him that the house was jointly acquired by him and Opanin Kofi Mensah; and that on his death, the house should go to their respective children. This evidence was not given attention at the trial and in this appeal. But it appears to be one of the reasons why the plaintiffs lay claim to the subject property and denied it is a family house after the death of their fathers.
52. I find the claim bizarre. This is because if the property is jointly owned by the two brothers, it is not PW1, a child, who had duty to inform the family especially his aunts. Again, if indeed the property was co-owned by the two brothers, it should have been common knowledge to the members of the family long ago.
53. Again, if indeed the two brothers jointly owned the house and they have agreed it should go to their children after their death, then the beneficial interest of the children could not have matured until after the death of Opanin Kofi Mensah. It is my finding that since PW1 made a claim to the house as a gift to the children during the life time of Opanin Kofi Mensah, it shows that Opanin Kofi Mensah had absolutely no interest or claim to the house.
54. Then what is the nature of gift PW1 talked about? Clearly from the evidence of PW1, it was not a gift inter vivos. It is a declaration of intention by Opanin Kwasi Anomah to make his children beneficiaries of the house after his death. The evidence of PW1 of the gift resembles a customary law will called “samansiw”. In Summey vrs Yohuno  GLR 68, Ollennu J (as he then was) laid down the essential requirements of a valid customary law will to include acceptance indicated by the giving and receiving of drinks and that witnesses should be members of the donor/testator’s family.
55. In Mahama Hausa vrs Baako Hausa  2 GLR 469 however, the learned justices held that the evidentiary requirements of a valid ‘samansiw’ stated by Ollennu J (as he then was) went too far. That being so in In Re Armah (dec’d); Awotwi vrs Abadoo  1 GLR 374, the court accepted the reasoning in the Hausa case (supra) and held that to constitute a valid oral customary will:
(a) The declaration should have been made in contemplation of death;
(b) There should be credible witnesses present who could easily testify that dispositions were made in their presence and to their hearing; and
(c) The dispositions should concern the self-acquired properties of the deceased.
56. PW1 in his evidence told the court that his late father made the declaration to him alone and he kept it to himself until after his death. In In Re Okine (dec’d); Dodoo vrs Okine (supra), the court per Prof. Kludze JSC held that:
“The court would refuse to enforce the samansiw relied upon by the defendants because, on the evidence, it was made by the deceased in deliberate secrecy even though there was no emergency, as the transaction occurred when the deceased was in perfect health”.
57. Exactly, this is the kind of evidence PW1 gave of the gift. It cannot be enforced. The gift also fails as not being valid because as I have determined, the plaintiffs failed to prove by their evidence that the subject house was jointly acquired by their fathers. Consequently, the appeal fails and it is dismissed.
E. K. AYEBI
(JUSTICE OF APPEAL)
G. TORKORNOO (MRS.), I agree G. TORKORNOO
(JUSTICE OF APPEAL)
A. M. DOMAKYAAREH (MRS.), I also agree A. M. DOMAKYAAREH
(JUSTICE OF APPEAL)