IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
IBRAHIM GYAMFI & ANOR - (Plaintiff)
CECILIA BOAHENE & ANOR - (Defendant)
DATE: 1ST DECEMBER, 2015
SUIT NO: TOCC/156/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
KWABENA OBIRI YEBOAH FOR VIVIAN MFODWAA GYAN FOR PLAINTIFFS
AKUA ADOMAH ADDAE FOR WILLIAM KUSI FOR DEFENDANTS
As the executors of the estate of Nicholas Ashong (Deceased), the Plaintiffs herein commenced the instant action against the Defendants herein who are a daughter and customary successor of the deceased respectively. The 1st Defendant is also said to be a beneficiary under the will of Nicholas Ashong. These are the reliefs sought:
A declaration that H/N0. Plot 5 Block D, Bohyen, Kumasi is the bona fide property of the deceased testator Nicholas Ashong.
A declaration by the Honourable Court that the Deceased testator never made any inter vivos gift to the Defendants or any group of persons in his lifetime.
An order for the issuance of Probate to the Plaintiffs executors to distribute the estate of the late
Nicholas Ashong in accordance with the provisions of his last will and Testament dated 15th February, 2000.
A perpetual injunction restraining the defendants, their agents, assigns, privies and anyone claiming title through them from interfering with the disputed property.
Any other order or orders as the justice of the case would require in terms of the rules of this Honourable Court.
In sum, the Plaintiffs case is that the deceased, Nicholas Ashong is the bona fide owner of H/No. Plot 5 Block D, Bohyen and he did not make any inter vivos gift of any rooms in the said house either before or after his will dated 15th February, 2000. It is also the Plaintiffs case that the deceased was at all times in possession and occupation of the boys quarters on the said plot. The Plaintiffs further averred that this is the second time a caveat has been filed, after an earlier one which had culminated in a suit instituted at the High Court, Numbered C1/79/12 ( now struck out as discontinued).
The Defendants challenged the validity of the will said to have been executed by the Deceased on the basis that the deceased, being a teacher by profession, and able to walk and talk at that time, he would have signed that document and not use the thumb. It is their case that the deceased during his lifetime gifted rooms in the said house to his mother and his seven (7) children of which three (3) are from Offinso and four (4) from Bohyen respectively . They added that the 1st Plaintiff and elders of the family witnessed the said gift. The Defendants further alleged that the deceased intimated to the witnesses that he was going to rent out those rooms temporarily for his upkeep. Concluding, the Defendants averred that the Plaintiffs are not the rightful customary successors of the deceased and called upon the court to dismiss their claims as being unfounded. They then counterclaimed as follows:
A order of the Court for House Number Plot 5 Block D, Bohyen- Kumasi to be shared among all the children of the deceased
An order of the court declaring that the last Will of Nicholas Ashong was not prepared and executed by the said Nicholas Ashong.
The main issues for determination, apart from the omnibus clause are:
Whether or not the Deceased Nicholas Ashong gifted any part of his property to anyone in his lifetime?
Whether or not the Last Will and Testament of Deceased Testator Nicholas Ashong dated 15th February, 2000 is valid?
Whether or not the Plaintiffs are entitled to their claim? Whether or not the Defendants are entitled to their counterclaim.
WHETHER OR NOT THE DECEASED NICHOLAS ASHONG GIFTED ANY PART OF HIS PROPERTY TO ANYONE IN HIS LIFETIME?
In BARKO V MUSTAPHA (1964) GLR 78, the Supreme Court held among other things that the burden of proof is on an alleged donee to prove the existence of a customary gift. The Court outlined the ingredients of a customary gift as follows (i) publicity, (ii) acceptance and (iii) placing the donee in possession.
This standard of ascertaining a customary gift was also applied in Asare v Kumoji (2000) SCGLR 298 at 302 per Aikins JSC: His Lordship stated thus:
With regard to customary gifts inter vivos, our courts have stressed that the acceptance of gift, especially land, "must be made by the presentation to the donor of some token acknowledgement and gratitute in the presence of witnesses. " There are two ways of making such valid gift, either by a conveyance where a deed of gift is granted to evidence the transaction, or orally where it is governed by customary law.
Another case worth discussing is ASARE V TEING & ANOR (1960) GLR 155. It also dealt with the elements of a valid customary gift. In that case the Plaintiff alleged that her father had made a customary gift of a piece of land to her in his lifetime , but she had allowed the father to be in possession for twenty years, and his family, four years after his death, so as to use the rent accruing there from to erect a monument. In an action to claim her title to the disputed property, the High Court held, inter alia:
The plaintiff had failed to prove the essential requirements of a valid gift in accordance with customary law, which were, publicity, acceptance and placing the donee in possession. See also Atta Panyin v Sani II (1961) GLR 305.
In the instant case, I must say that the burden of proof of the alleged gift rests on the Defendants. Has that evidential burden been adequately discharged? This can only be determined after a careful analysis of the evidence on record.
Counsel for the Defendants in his closing submissions relied on the legal definition of gifts in the Black's Law Dictionary 8th ed. i.e. "the voluntary transfer of property to another without compensation." She described the customary requirement that there must be witnesses to the gift and the recipient is also required to present "aseda". In her view, the Defendants have led evidence to show that Nicholas Ashong gifted two rooms in his self acquired property being Plot No. 5 Block 'D' to his mother, his three children from Offinso and his four children from Bohyen.
Counsel submitted that evidence has been led by the Defendants to show that the Testator in the year 1994 made a gift of two rooms to the said Offinso and Bohyen Children. And, two of the beneficiaries also corroborated the gift i.e. Justina Eshun and Michael Eshun. She added that one of the people who witnessed the ceremony has also testified i.e. Mr. Alex. Counsel then made reference to a portion of the evidence of the 2nd Plaintiff where she admitted that Nicholas Ashong in fact gifted two rooms in his house to his two sets of children from Offinso and Bohyen.
Concluding, Counsel made referred to the statement of Lartey JSC in Manu v Nsiah (2006) 3MLRG as follows:
... the evidence of a party on a point in issue is corroborated by the witness of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witness, a court ought not accept the uncorroborated version in preference to the corroborated one unless for some good and apparent reason the court finds the uncorroborated version incredible, impossible or unacceptable.
She therefore urged the court to find that Nicholas Ashong (deceased) in fact gifted two rooms in his Bohyen house to two sets of children from Bohyen and Offinso.
The evidence of the 2nd Defendant who is on record as the customary successor of Nicholas Ashong (decd) will be considered at this point. According to him, Nicholas Ashong (decd) lived in the disputed house with his wife and children from Bekwai in his life time. He had two other sets of children from Offinso and Bohyen who approached him and requested to be accommodated in the said house but his wife disagreed. However, these children pleaded to be allowed to develop the vacant portion of the land on which the house stands.
As regards the gift, the 2nd Defendant said Nicholas Ashong gave one room to his children from
Offinso and another room to his children from Bohyen. Continuing, the 2nd Defendant said Nicholas Ashong invited some people to witness the sharing of these rooms by mentioning he had allocated a particular room to his biological mother, one to his children and so on. He gave the names of these witnesses as Opanin Nyamekye, Mr. Alex, an uncle /grandfather of the Bohyen children and
Ibrahim Gyamfi i.e. the 1st Plaintiff herein.
Whilst under cross-examination, the 2nd Defendant said he could not remember when the ceremony at which these rooms were gifted took place. Later, he told the court that the gift to Nicholas Ashong's mother was first in time and that it took place in the year 1978, but when she died, nobody took steps to claim this property.
The evidence on the gifting of rooms to the biological mother and children of the late Nicholas Ashong was corroborated by the 1st plaintiff who testified next. However, she gave an inconsistent date as the date Nicholas Ashong gifted a room to his Biological mother. She told the court the gift to Nicholas Ashong's biological mother was in the year 1972 as opposed to 1978 indicated by the 2nd Defendant. Whereas the 2nd Defendant could not remember the date when rooms were gifted to the children of Nicholas Ashong from Bohyen and Offinso, the 1st Defendant said the gift was made in the year 1996.
The three witnesses called by the Defendants all testified to the gifting of the rooms in issue to the two sets of children of Nicholas Ashong (decd). DW1, Alex Badu Gyamfi, who is on record as an uncle to the set of children from Bohyen, told the court that the gifts were made in his presence in the year 1994. He mentioned one Theresah, Yaw Saahene (decd), Yaw Bonsi, Maame Nimo ( Nicolas Ashong's mother), Pinaman (one of the beneficiary children from Offinso) & her mother , and Ibrahim Gyamfi ( 1st Plaintiff) as the other witnesses to the making of the gift. DW1 added that the gift was to take effect after the death of Nicholas Ashong.
DW2 , Pinaman is also known as Justina Amoah. She stressed that her father gifted rooms to his biological mother and children from Bohyen & Offinso in his life time. Her credibility was attacked during cross-examination where she gave contradictory accounts. First, she stated that Nicholas Ashong's mother lived in the room which was gifted to her for twenty years and that she lived with her son by name Kwadwo Boahene. When Counsel for the Plaintiff confronted her with the evidence of the 2nd Defendant to the effect that Nicholas Ashong's mother never lived in the said room in the disputed house and that the room had been rented out by the Testator, DW2 at that point changed her story. This time round, she said Nicolas Ashong's biological mother lived there for a while but decided to relocate to her village, Fufuo. In yet another breath, DW2 said at the time the room was gifted to Nicolas Ashong's mother, she was too old and unable to come to the Bohyen house and so Nicholas Ashong rented the same out to pay for his medications. So, from these inconsistent stories, can it be said that any such gift took place? I will revert to the venue where the gift is said to have taken place after bringing on board the evidence of DW3.
DW3 is also a son of the deceased Testator and one of the beneficiaries of the said gift. His version of the story is that three weeks before their father's wedding, his children from the two previous relationships summoned him before a chief, Nana Adom Danquah (decd) in respect of their interests. Nicholas Ashong attended the meeting with members of his church and family. And, it was at this meeting that Nicholas Ashong gave his children two rooms and the children presented Aseda in the form of drinks and an undisclosed amount of money. He said the ceremony took place in June, 1994. He gave the names of those who were present as Agya Boansi ( head of family), Mr. Brobbey, Alex Badu Gyamfi, Mrs. Theresah Karikari and the Late James Karikari. He also told the court that when the children wanted to occupy the rooms, Nicholas Ashong had rented them out and so they pleaded with him to be allowed to develop a vacant portion of the land.
Now, I will point out the inconsistency as to the venue where the gift is said to have taken place. Both DW2 and DW3 describe themselves as beneficiaries of the gift made by Nicholas Ashong. Whereas DW2 said the gift was made in her father's Hall in the Bohyen House, DW3 insisted that the gift was made by his father at a meeting held in Nana Adom Danquah's house because of the concerns raised by his children three weeks to his wedding. DW3 could not give any plausible answer when counsel for the Plaintiff suggested to him that Nicholas Ashong married Charlotte Appiah on or about 1983/84 and so his marriage could not have been the subject of any meeting in the year 1994 where rooms were allegedly gifted to his two sets of children. How come the same property was gifted at two different ceremonies ? Also, there are wide variations in the names of the people who are said to have witnessed these events. So, was there any event at all?
Counsel for the Defendants had earlier on relied on what he termed "an admission by the 2nd Plaintiff that Nicholas Ashong had gifted rooms to his children in his life time." The following part of cross-examination of the 2nd Plaintiff by counsel for the Defendant will help put things in perspective:
Q. Before Nicholas Ashong died, did he at any point allocate rooms in his house to his other children?
A. Yes. He allocated some of the rooms in his house to his other children
Q. Did he allocate rooms to you?
A. No. I used to live there but i have left the place.
Q. But you admit that he gave rooms to his other children?
A. Yes i admit he allocated rooms to his other children.
Q. Tell the court how he distributed the rooms?
A. The seven children have their own share and the other four with his present wife had theirs, i.e. the quarters.
It is on record that some of the Children of the late Nicholas Ashong from his previous relationships did construct rooms on a vacant portion of the land , but the four room-boys quarters was solely occupied by himself, his wife from Bekwai and his children with her. The rooms which have resulted in this suit form part of the said boys quarters. It is reasonable for anyone to assume that once Nicholas Ashong owned the land in issue, everything built on it belongs to him. In effect, it is not out of place for the 2nd Plaintiff to say that Nicholas Ashong had given a portion of the rooms to his other children in view of the fact that they actually occupied those rooms built on Nicholas Ashong' s vacant land by his house. I do not accept this as an admission that Nicholas Ashong gifted rooms in the boys quarters to his other children because the totality of the evidence suggests otherwise . Moreover, Counsel throughout that segment of cross-examination used the word "allocate" which is synonymous with the words "allot, apportion, distribute or give out". These connote a presumption of advancement which is always rebuttable. I will comment on this at a later stage. The Plaintiffs have all along denied that any such gift of rooms was ever made to anyone.
The following findings can be made from the evidence adduced by the Defendants and their witnesses on the issue under consideration: that there are irreconcilable differences between the dates given by the 1st and 2nd Defendants as the time Nicholas Ashong gifted a room to his mother i.e. 1978 as against 1972; there are also unexplained contradictions in respect of the date two rooms were said to have been gifted to the two sets of children- 1994 as opposed to 1996; another serious inconsistency exists as regards the venue where the gift to the children took place i.e. Nicholas Ashong's Hall versus Nana Danquah's house. Again, I find that there are differences in the names and number of witnesses said to have been present at the time these gifts were made- Whereas the 2nd Defendant mentioned Opanin Nyamekye, Mr. Alex, an uncle/ grandfather of the Bohyen Children and Ibrahim Gyamfi, DW1 mentioned Yaw Saahene, Yaw Bonsi, Maame Nimo, Pinaman from Offinso her mother and Ibrahim Gyamfi. DW3 also gave a third set of names of witnesses- Agya Boansi, Mr. Brobbey, Alex Badu Gyamfi, Mrs. Theresah Karikari and the Late James Karikari. Ibrahim Gyamfi has constantly denied that he witnessed any such ceremony. I find these stories and various accounts on the gifts to be highly incredible!
With these inconsistencies as found, I conclude that the Defendants' case that the late Nicholas Ashong gifted rooms to his mother and two sets of children from Offinso and Bohyen is highly doubtful and very unreliable. The Plaintiffs' version that the Late Nicholas Ashong did not gift any of the rooms in his four-room boys quarters to his two sets of children from Bohyen and Offinso is preferable . I have had no course to doubt the credibility of the Plaintiffs on this issue as opposed to the Defendants and their witnesses whose evidence are pregnant with contradictions. I therefore come to the conclusion that no customary gift inter vivos was made by Nicholas Ashong to anyone relative to rooms in the boys quarters.
Whether or not the Last Will and Testament of Deceased Testator Nicholas Ashong dated 15th February, 2000 is valid?
Going by the well established principle of proof in civil suits, the onus of proof of validity of the Will of Nicholas Ashong rests on the Plaintiffs. What evidence have they led to discharge this evidential and burden of persuasion?
The Plaintiffs gave oral evidence to the effect that Nicholas Ashong made a valid Will and at that time, he suffered an ailment which caused him to be shaking. As the 2nd Plaintiff put it, he suffered from " stroke awosoawosoo". The 2nd Plaintiff is one of the two executors to the Will in issue. I will quote in extenso what she said in her evidence -in- chief relative to the execution of the Will:
I know Nicholas Ashong (deceased). He was also my brother. During his lifetime, he requested me to accompany him to a certain place. He put me in a car and went to the place... One man asked me my relationship to Ashong. I told him I am his sister. He asked me whether I can read and write. I told him I am not literate. He told me to thumbprint on a certain document which I did. The man whom Ashong took me to is a lawyer but I did not know him previously... Apart from us, one Agyei witnessed the document. He was literate so he signed. Even though Ashong was unwell and his hand was shaking as a result of stroke, he thumb printed. I can identify the document he thumb printed. My brother also placed his thumb print on the first page of exhibit A. During all that time, Agyei was present because the three of us went together. That is all I know about exhibit A.”
Whilst under cross-examination by Counsel for the Defendants, the 2nd Plaintiff maintained that the Testator's ailment affected all parts of his body and he could not even brush his teeth. And, even though he was a teacher , he stopped teaching because he could no longer write as a result of his sickness. She emphasized that Nicholas Ashong was able to thumb print his Will in her presence and that she is not a beneficiary under the said Will.
The other executor to the Will testified as PW1. He said among other things thus:
When Nicholas Eshun was alive, i did go with him to his lawyer. We were 3 in number who went to see the lawyer. A day before the visit to the lawyer, Eshun sent someone to check and that i should come to accompany him to execute some document. So myself, Eshun and Maame Maanu went along with him. At the lawyer's office, he told me he was writing his Will and so he wanted me to witness. He also told me he was doing so in his own free will. As regards the content of the Will, he never told me. I was made to sign on the Will. When signing the Will, 3 people were present, Ashun, a woman - Maame Manu and the lawyer. Also Maame Manu made her mark on the Will as one of the Witnesses. The late Ashun did not do anything in my presence. I know the testator was a teacher by profession. At the lawyer's office, i found Ashun to be very healthy.”
PW2 is the lawyer who prepared the Will of Nicholas Ashong. Currently, PW2 is a Justice of the Court of Appeal but he came to testify on a subpoena served on him by counsel for the Plaintiffs. He gave evidence to the effect that the Testator and his friend , both natives of Adumanu , used to come to his office at Adum and that he wrote three letters on the instructions of the Testator pertaining to some developments on a portion of his land by some of his children without his authorization. His evidence on the preparation and execution of the will is quoted below for emphasis:
... So one day, he brought a Will that he had made in 1987 that he wanted me to prepare a new Will and revoke the one that had been prepared for him in October, 1987. I took instructions from him and prepared the Will according to his wishes. He was given a day to come and sign. I told him to come with two witnesses to attest to the Will. On the said day, he came with the two witnesses and i called him to my office which was then at Adum. Mmodenmo house., 1st Floor. And when he was signing, I saw that the hand was shivering and could not make the mark. At that time, in my office we were using electronic typewriter machine. so I told my secretary to put in a jurat clause. I drafted the jurat clause. We drafted a new one. The first one was wasted. He told me he left his spectacles so i read the contents to him in English Language. And, having approved of the contents I told him to thumbprint. He thumb printed in the presence of the two attesting witnesses.
Initially, I did not know the man could not sign because he was coming to me in good condition. But as soon as he touched the pen, his hands were shivering. He told me he suffered from Parkinson's and when he touched anything, his hands shivered. I sealed the will. They were registered at the High Court, Probate Division, and he was given a copy...
Counsel for the Defendants could not discredit the above piece of evidence during cross-examination. He did not also comment on this in his written submissions for obvious reasons. The Defendant's side of the story is that Nicholas Ashong was in good health at the time the Will was allegedly executed. And, being literate, he would have appended his signature instead of thumb printing. This piece of evidence was corroborated by DW2 , a daughter of the Testator.
On this issue, Counsel for the Defendants in his closing submissions argued that the said Nicholas Ashong who was literate and a teacher by profession would have signed his Will instead of thumb printing. Counsel further argued that by section 2(3) of the Wills Act, 1971 Act 360, the Testator ought to have executed the Will in the presence of two or more witnesses, present at the same time. And, to the extent that PW1 has said that the testator did not do anything in his presence, the Will ( exhibit A) does not satisfy the conditions of section 2(3) of Act 360. Counsel for the Plaintiffs waived her right to address the court.
It stands undisputed from the evidence on record that the property in issue is the self acquired property of Nicholas Ashong (deceased). Being of full age and sound mind, he could legally devise that property according to his wishes. However, for the Will to be valid, it must be executed in strict compliance to section 2 of the wills Act, Act 360. It states:
2. Execution of a will
(1) A will is not valid unless it is in writing and signed by the testator or by any other person at the direction of the testator.
(2) A signature is not operative to give effect to a disposition or direction which is underneath or which follows it, or which is inserted after the signature has been made.
(3) The signature of the testator shall be made or acknowledged by the testator in the presence of two or more witness present at the same time.
(4) A signature by any other person at the direction of the testator shall be made by that other person in the presence of the testator and two or more witnesses present at the same time.
(5) The witnesses shall attest and sign the will in the presence of the testator, but a form of attestation is not necessary.
(6) Where the testator is blind or illiterate, a competent person shall carefully read over and explain the contents of the will before it is executed, and that competent person shall declare in writing on the will that the will had been read over and its contents explained to the testator and that the testator appeared perfectly to understand the will before the will was executed.
I have scrutinized the Will in issue, Exhibit A. At the bottom of the first page these are the words indicated against the Right thumb print of the Testator:
SIGNED THUMBPRINTED by the within-named TESTATOR NICHOLAS ASHONG as his Last Will and Testament in the presence of us, present at the same time, who in the presence and at his request and in the presence of each other have hereunto subscribed our names as witnesses.
The witnesses appear on the second page. The first witness was Adwoa Manu and she placed her right thumbprint against her name, address and occupation. Similarly, Adjei Frimpong signed as the second witness against his name and particulars right beneath that of Adwoa Manu. Underneath Adjei Frimpong's signature is a declaration made by lawyer Dennis Adjei (as he then was) as follows:
This Will was read in English language to the testator herein by Dennis Adjei as the Testator did not bring his spectacles and having approved of the contents he decided to thumbprint as his hands was then shivering and may affect his usual signature.
To the left side of this declaration on page two, the Testator again placed his right Thumbprint.
From the totality of the evidence adduced by the 2nd Plaintiff and PW1, both of them accompanied the Testator to the office of PW2 for a common purpose- i.e. to witness the execution of the Testator's
Last Will. PW1 even knew about this duty prior to the event. The 2nd Plaintiff and PW2 have stated in clear terms that the testator executed the Will in the presence of two witnesses, being PW1 and PW2. Looking at the content and form of exhibit A, it is obvious that the witnesses that the Testator took to PW2's office and who also admit going to the said office to witness the execution of a Will, were present at the same time when the Will was executed by the testator. PW1's evidence that the " Testator did not do anything in his presence" cannot be interpreted to mean that the Testator did not execute the Will in his presence. PW1 is literate and he perfectly understood what he did when he signed as a witness. Why will PW1 sign as a witness if the Testator did not execute exhibit A in his presence? If PW1 insists the Testator did not do anything whilst the three of them were before the Testator's lawyer, then what was he witnessing by his signature? The answer is obvious- the execution of a Will in his presence!
The 2nd Plaintiff is not a beneficiary under exhibit A and has no personal interest whatsoever. Her evidence was corroborated by PW2 who acted professionally. PW2 is also a credible witness. On the totality of the evidence on record in respect of the execution of the Will, I find that the provisions of Section 2 of the Wills Act was complied with.
Is it mandatory that a person who is literate must always sign his or her signature on a Will or any other Legal document? Put differently, is it permissible for a literate person to thumb print his or her Will? The answer is affirmative, depending on the circumstances as demonstrated by judicial precedents.
In the case of WILBERFORCE V WILBERFORCE (1999-2000) GLR 311, the Testator who was literate, thumb printed his Will instead of signing his signature. The Cape Coast High Court pronounced on the use of a mark in the execution of a Will depending on the circumstances of the Testator. I fully endorse what the court said and which i have quoted below (holding 3):
Section 2(1) of the Wills Act, 1971 ( Act 360) required the signature of the testator or some other person at his direction. But where the circumstances dictate otherwise, a mark of any kind made by the testator, whether he could write or not, or indeed by anyone under his authority or direction was sufficient provided it was intended to represent his name or in acknowledgement of the execution of the will by the testator or done to authenticate the will. In the instant case the uncontroverted evidence from witnesses present during the execution of the will indicated that W, though mentally alert, was physically weak and was therefore assisted to thumbprint the will. Under such circumstances of physical weakness, the law allowed an assistance to the testator to make his mark, including thumb printing. Hence the fact that W, though literate had thumb printed the will was not a ground for nullifying same. Baksmaty v. Baksmaty (1964) GLR 56; In re Sackitey (Decd); Dzamioja alias Ashong v. Sackitey (1982 - 83) GLR 119 also cited.
In the case before me, there is sufficient evidence on record to proof that the Testator suffered from a disease which caused him to shiver and that the shivering was more pronounced when he touched anything. This has variously been described as Parkinson's disease by PW2 and "stroke awosoawosoo" by the 2nd Plaintiff. On the face of exhibit A, the lawyer who guided the Testator to thumb print also declared that he did so because of the shivering.
With this overwhelming evidence, I find that the Testator, though literate, thumb printed exhibit A in view of his state of health which would have affected his usual signature. Having thumb printed exhibit A in the presence of two witnesses who were present at the same time, i find that the testator's mark on exhibit A satisfied the requirements of section 2 (3) of Act 360. Thus, exhibit A is a valid Will and i so declare.
I indicated that i will revert to the issue of customary gift and i do so now. I will pose this question-what would have been the situation if a customary gift in favour of the children of the testator had been proved to the satisfaction of the court? The legal position is quite interesting and worthy of discussion. Two cases on this point will be discussed. These are SESE V SESE (1984) 2 GLR 166, CA; and OKAI V OKOE (2003/2004) SCGLR 393.
In the Sese case, referred to, supra, the court held as follows:
Customary gift cannot be revoked except in gifts between parent and child, which could be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declaration. In the circumstance, 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 before the gift could be revoked. So long as the intention to revoke was 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. Even if 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 his will.
The decision in the Okai case, supra, further supports the above position in respects of customary gifts by parents (or persons in loco parentis) to their children . One of the issues for determination at the court below was whether or not an earlier deed of gift takes precedence over the subsequent Will of the grantor. Here, the testator had earlier made a gift of the land in issue to plaintiff alone. Testator, who stood in loco parentis to both parties, later devised the same land to both Plaintiff and Defendant (being sisters of the same blood) in his Will.
On appeal to the Supreme Court, it was held (affirming the decision of the Court of Appeal) that:
The deed of gift was a customary grant, the grant created a presumption of advancement that can be rebutted by evidence of the actual intention of the grantor. Since on the findings of the case, as supported by the evidence, the grantor by her conduct, did revoke the earlier grant made in favour of the Plaintiff and subsequently devised in his Will, the same disputed property to both the Plaintiff and the defendant, the Court of Appeal was justified in setting aside the wrong decision of the trial court to the effect that , the earlier gift inter vivos took precedence over the Will of the testatrix. Consequently, the devise under the subsequent will of the testatrix had properly vested the disputed property in both the Plaintiff and the defendant. Kwantreng v Amassah (1962) 1 GLR 241, SC Sese v Sese (1984) 2 GLR 166 at 174, CA cited.
Applying these legal principles to the facts of this case, even if a customary gift to the children of Nicholas Ashong had been sufficiently proved, that presumption of advancement was clearly rebutted by his subsequent conduct in devising the same property to beneficiaries under his Will. Under those circumstances, the devises in his Will would take precedence over the earlier customary gift.
ARE THE PLAINTIFFS ENTITLED TO THEIR CLAIMS?
On the basis of the findings and conclusions reached in the foregoing paragraphs, the court will grant the reliefs sought by the Plaintiff. It is hereby declared that H/No. Plot 5 Block D, Bohyen, Kumasi is the bona fide property of the deceased testator, Nicholas Ashong and that he never made any gift inter vivos to any group of persons in his life time.
It is to be noticed from the record that the testator's name has variously been spelt " Ashun" , "Eshun" and "Ashong". It refers to the same person and the spelling which appears in the Will, exhibit A, and which is further endorsed on the writ of summons, is to prevail. And that is, Ashong.
It is further ordered that Probate be issued to the executors of the Will of Nicholas Ashong (decd), to distribute his estate in accordance with the provisions of the said Will and testament made on 15/02/2000.
The Defendants, their agents, assigns, privies , or anyone claiming title through them are perpetually restrained from interfering with the disputed property.
The parties to this suit are closely related. Irrespective of the outcome of this case, they must remain united. The least the court can do is to order that the parties bear their own legal expenses. On that note, there will be no order as to costs.