Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ on line 101 ACKUN AND ANOTHER v. YANNEY | GhanaLegal - Resources for the legal brains


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  • 1962-06-13
  • 1 GLR 464-471
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Customary law?-Essential ingredients of a valid gift.Estoppel?-Estoppel per rem judicatam?-Whether judgment proved to be perverse but valid and subsisting can operate as estoppel.


In a suit in the local court for declaration of title to a house originally self-acquired by J. E. Morgan deceased, the defendant, who was the wife of the deceased contended that the late Morgan gifted the house to her before his death. The evidence showed, inter alia, that the late Morgan had tried to have a formal document prepared substituting the name of the defendant for his as the owner of the house. This could not be done before he died. The plaintiffs contended that the absence of this valid document proves that the alleged gift remained in intention only, and was never completed.Prior to these proceedings there had been an interpleader suit in the local court with respect to this house; the defendant herein, as claimant, lost the said suit. The judgment and the proceedings in that suit were tendered in evidence in this case and relied upon by the plaintiffs as estopping the defendant per rem judicatam from laying any claim to the house. The local court magistrate gave judgment for the plaintiffs. The defendant appealed [p.465]


APPEAL from a judgment of the Amansie Local Court, Div. 1, Bekwai, in a land case.

This is an appeal from the judgment of the Amansie Local Court Division 1, Bekwai, dated the 25th January, 1961, by which that court gave judgment for the plaintiffs-respondents "for the title and ownership of house No. T.F. 30 Bekwai."

The first respondent claimed that the house was built by the late J. E. Morgan who died intestate, and that he as the accredited head of the deceased's family was entitled to the ownership of the house which by the death of J. E. Morgan had become family property. The appellant based her title to the premises on what she alleged was a valid gift to her. under custom by the late J. E. Morgan who was her husband.

The issue was a clear-cut one. It was for the appellant to prove the alleged gift to her by custom. In the judgment of the Land Court, Accra, in Asare v. Teing1 the court summed up the essentials 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. [p.466]

In the absence, however, of publicity of the gift at the moment of its making, possession and occupation by the donee and the open exercise by 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 a gift."

According to custom apart from the offer of this drink, the donee must also make valuable presentation to the donor, and this is usually done by the donee's representatives (usually relatives) on his behalf. By this means these relatives and the others in whose presence the presentation would be made become witnesses to the confirmation of the gift. By the authority of Yeboah v. Tse2 it is not necessary for the whole family to be present when a gift is made.

The defendant gave evidence that the gift was made to her. This is what she said:

?"Before my husband left for England one day at Ejisu, Afua Takyiwa, my husband's 1st cousin and Kofi Afedey a relative of my husband, and one Teacher Nunoo, another relative, and my uncle J.S. Ward, J.E. Morgan (Junior) came to us. My husband told them that he had made a present of his house T.F. 25 to his mother and the newly built house T.F. 30 to me. In the presence of all these people I bought 2 bottles of schnapps to stamp the present made to me by my husband at his own request. I served all present there some of the bottle of schnapps myself, and Afua Takyiwa took the other bottle away. Three days after I went with the husband and my uncle J.S. Ward to Afua Takyiwa with 12 guineas, out of which my husband gave 4 guineas to Afua Takyiwa, to further stamp the present of the house T.F.30 to me, his wife, and the balance of 8 guineas he said he was going to buy whisky to drink by himself.?"

The defendant also told of how later on she sent her uncle with G10 10s. to be presented to her late husband and how the money was distributed. She further told of the several occasions when this gift was acknowledged by members of her late husband's family especially by Afua Takyiwa, when she was being troubled, as she alleged, by the ghost of the late Morgan for not telling the family that the house had been gifted to the defendant. Of course, Takyiwa denied that there had been a gift of the property to the defendant. She denied everything. The defendant said that it was because Takyiwa had been threatened not to speak the truth that she denied. I shall advert to this again.

But there were other witnesses who supported the story of the defendant, notably the Bekwaihene and one Philip Alfred Corri. The Bekwaihene said in evidence:

"About the year 1956 November, when I was Bekwai Paramount Chief the late J. E. Morgan accompanied by Mr. Adjei Sarpong, the then clerk of urban council and the defendant came to me at the ahenfie that he wanted to transfer his house T.F. 30 to Madam Helena Yanney the defendant. He brought the customary fee of G1 1s. and a bottle of schnapps. He had previously brought the original lease through the clerk of council (urban) for my signature. This lease was in his name J. E. Morgan. He came to verify if it has not been signed for the wife's name to be inserted on the lease as owner of the house. I could not trace the original lease in the name of J. E. Morgan as my secretary was away. I told the then clerk of council that as I was mourning they should come again after I have completed the mourning. I asked him the late J. E. Morgan whether his relatives know of this gift of house to his wife and he answered in the affirmative." [p.467]

As I understand this evidence the property in dispute had already been allotted to late Morgan. He therefore came to the chief and said: "I have gifted this house to my wife. I have told my family. Please make an assignment to her." I think that in this case the effect of the assignment was only evidential. I do not think that that would make the gift valid. Once the customary formalities are perfected, lease or no lease, I think the gift must be considered valid.

Then there was the evidence of the then local council clerk, Adjei Sarpong:

?"Two weeks later the late J. E. Morgan came to verify whether the lease has been executed and I replied in the affirmative that it was in his name, and he told me he wanted the lease to be prepared in the name of his wife. I accompanied him to Nana Bekwaihene to withdraw the lease and get another one prepared. The late J. E. Morgan gave Nana Bekwaihene G1 1s. and a bottle of schnapps. The G1 1s. was customary fee and also the bottle of schnapps. Nana Bekwaihene could not trace the lease and asked us to call another time. The deceased then asked me to see to the preparation of the new lease. I made several attempts but failed to get the original lease from Nana Bekwaihene. The late J. E. Morgan called last before he left for England and instructed me to get the lease ready against his return from England. I did prepare a new lease in the name of Madam Helena Yanney and sent it to the Bekwai State Council.

Later on we heard of the death of Mr. J. E. Morgan in England. And no one further approached me about the leases with the State. I left the lease with the State Council. Before I left I gave verbal instructions to the clerks working with me to alter the name of Mr. J. E. Morgan in the books and to substitute the name of Madam Helena Yanney."

This substantially confirms the testimony of the defendant both that the husband informed these people of the gift already made to defendant, and also of his intention of changing the lease into the wife's name. Before I comment on the submission of the plaintiff on these pieces of evidence I have to review the evidence of the others. Philip Alfred Corri deposed as follows:

"In September 1955, Mr. Sam Morgan came to me at Bekwai and told me he had got a job with Mr. Abraham Poku of Kumasi as a cocoa buyer and requires security and asked me to accompany him to his brother at Ejisu to secure him in the business or to allow him to mortgage his building as security I accompanied him to Ejisu but did not meet his brother the late J. E. Morgan. We met his wife Madam Helena Yanney. After some time the late Mr. J. E. Morgan arrived. I told him of the purpose of our call. He then called his wife Madam Helena Yanney. The late Morgan said as he is in a company's employment he cannot stand as surety and of his two houses he has given the first of them T.F. 25 as a present to his mother and the newly built T.F. 30 he has given it to his wife Madam Helena Yanney as a present."

Under cross-examination Kwadjo Frempong too said: "I was told the building belongs to the defendant by the late J. E. Morgan." The evidence of J. E. Morgan (Junior) confirmed all this in their material particulars. But this witness was discredited by the local court.

It was submitted on behalf of the plaintiff-respondent that all this evidence only points to the fact that the late J. E. Morgan intended to make the gift, but that that intention never really materialised. It was further contended that the clear intention of the deceased was that the gift was to take effect only after the formalities of transfer by English form, namely the assignment, were complied with, and that since J. E. Morgan died without effecting that form of transfer there was no valid gift. The case [p.468] of Kwesi-Johnston v. Effie3 was cited in support of this. In my view that case enunciated no new principle. It was an application of the facts of that case to the law that:

?"No party shall be entitled to claim the benefit of any local law or custom, if it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions should be regulated exclusively big English Law."

What the plaintiff-respondent is saying is that the intention of the late J. E. Morgan was that a formal transfer be made to his wife and that that transfer was never made. I think that the defendant-appellant's case is that there is no question of J. E. Morgan intending to make a gift of the house to her; she insists that the gift was in fact made according to custom. What J. E. Morgan intended to do and which did not materialise was to make a permanent record of the gift for evidential purposes by way of what is wrongly called a lease. I think that if the gift can be proved then that would be a complete answer to the plaintiff's claim.

Evidence as to the fact that the gift was made was given by the defendant and the following of her witnesses: Nana Bekwaihene, the former clerk of council, Adjei Sarpong, Philip Alfred Corri and Frempong. These are all independent witnesses. The effect of their evidence was that the late J. E. Morgan told them in various circumstances that he had gifted the house to his wife. Of these the evidence of Adjei Sarpong was most hotly challenged. I agree that Sarpong acted in a rather biased sort of way in favour of the defendant. But in my view his action is defensible. He was convinced that the intention of the late J. E. Morgan was to substitute the wife's name for his, and he did his best, albeit irregularly, to bring this about. But I believe that in the main, like the others of these witnesses, the story he told of the gift to the defendant is true.

But it is also essential that the defendant proves the actual gifting. This she sought to do by her own evidence and that of Afua Takyiwa and J. E. Morgan (Junior). The evidence of these persons as also that of the plaintiffs and their witnesses must be examined with great care. The main theme of their evidence was either in proof of or denial of the main points, (a) that before some members of his family late J. E. Morgan gifted the house to his wife, that is, the defendant, and that the defendant accepted it and thanked him with a bottle of schnapps; and (b) that later the defendant sent a present of G10 10s. per her relative or relatives and others to the donor as custom demands, to confirm the gift.

I have already referred to the evidence of the defendant-appellant as to the manner in which the gift was made and accepted. She called Takyiwa to corroborate this but Takyiwa denied everything that she could possibly deny. The defendant explained this apparent set-back as the result of members of Takyiwa's family threatening her not to give evidence. There was evidence that she was hostile. There was also evidence that she called the defendant before witnesses and poured libation to the ghost of the late J. E. Morgan explaining to the ghost that the family were opposed to the lift that had been made to the defendant. I am inclined to think that this witness did not intend to assist either the defendant or the court at all. It is noteworthy that in similar circumstances, namely when she was subpoenaed to give evidence for the defendant, as claimant in an interpleader suit when this same house was attached, this witness [p.469] failed to attend court and the court, erroneously, ordered that she be arrested. This witness was a sister or cousin to the late J. E. Morgan. I think she was not keen on telling, if not the truth, at least what she knows of the transaction. She tried to dismiss it all by saying that she was drunk and did not know what happened.

Then there was the evidence of J. E. Morgan (Junior) the only son of the late J. E. Morgan by a former wife. His evidence was solidly in favour of the defendant's case and corroborated it in all material particulars. The local court magistrate appeared to have placed no reliance on this man's evidence. It was suggested that he was hostile, like the defendant and Adjei Sarpong. I do not think that a hostile witness is necessarily untruthful or unreliable. Maybe the hostility stemmed from disgust at what the witness thought was an unreasonable attitude of the particular person against whom the hostility was directed. I am not prepared to agree with the local court magistrate when he thus discountenanced their testimony. There is something to be said for the submission of the defendant's counsel that J. E. Morgan Junior's evidence should have been given greater weight as tantamounting to a declaration against interest. This man though by custom he is not in his father's family, yet he is entitled to live in his father's house provided there is room there. I agree with the defendant's counsel's said submission. But to my mind what weighs the scales in favour of the veracity of the defendant and her witnesses is the evidence provided by the interpleader proceedings tendered by the plaintiffs. I have no hesitation in pronouncing that the judgment in that interpleader suit was perverse in the extreme. Six persons gave evidence for the defendant, then claimant. They all supported in one way or the other the defendant's claim. The challenge to their testimony in my view, was very feeble. The judgment-creditor did not give any evidence, nor did he call any evidence to counter that of the claimant. Yet in face of all this the interpleader was dismissed. Even at that stage some of the claimant's subpoenaed witnesses had not given evidence. The judgment completely misconceived the issues. Judgment should have been entered for the claimant. But that was not done. Now in this case some of the witnesses were not called. These included one Wood. Fortunately he gave evidence in the interpleader suit and his evidence, therefore, was in evidence in this case. I do not think the local court magistrate directed himself properly or indeed understood the value of the interpleader proceedings as evidence. Most of the defendant's witnesses in this case gave evidence in the interpleader suit. Their evidence was the same there as in this one. But Wood's evidence was not available in this one. Here is what he said in the interpleader suit:

"My full name is Joseph Samuel Ottoo Wood, manager, Hana Reel Timber Syndicate of Kumasi. The claimant is my niece whose husband is late Morgan. About four years ago I was in Kumasi at about 9.30 p.m. when the late Morgan came to me. He called me to Ejisu where he told me in the presence of his brother who had gone to him to ask for financial help or security. The late Morgan said he had offered his two houses to his mother and wife, Helena Yanney respectively and so he could not meet the request of his brothers. Claimant therefore was advised by me to pay rum and so she therefore gave me bottle schnapps; however, I advised her to buy two bottles. She bought two bottles but offered only one which was drunk there. About a week or two more after the drink claimant offered G10 10s. to the late Morgan as aseda. G4 was given to Efua Takyiwa and late Morgan took the remainder for himself.

xxd. by claimant:?- Although I said G4 was given to Efua Takyiwa, however, it was G4 4s. The late Morgan made a statement to Efua Takyiwa declaring his donation to you of the house T.F. 30. [p.470]

xxd. by decree-holder: ?- The number of the donor's relatives were about four people. All I met there as relatives were males except Efua Takyiwa. I did not know their names. Had late Morgan not told me, I would not know whether they were his relatives.

I cannot positively say they were relatives to him, if Morgan had not said it. They may not be his relatives. If I dash anything to my wife I would expect the wife herself to render thanks (aseda) to me. It was late Morgan's son who was sent for the drink. I was not given any reception drink.

Q. I put to you that the drink you mentioned was a reception drink.

A. It might be. I do not care. It is the duty of the court to decide whether my statement that two bottles of drink, or the claimant's one bottle was correct. I saw only the four people.

xxd. by court:?- I was given no part of the G10 10s. as witness. The ten guineas was given to relatives only. The drink was served by the donee. I did not know there what happened to the other bottle of drink brought by the donee.

I was in Kumasi, Odum Street, when the offer of the G10 10s. aseda took place in Efua Takyiwa's house."

The effect of the whole of the defendant's evidence is that we have the defendant, J. E. Morgan (Jnr.) and Wood giving evidence of the actual making of the gift to the defendant and the subsequent presentation made by defendant to the donor; and Adjei Sarpong, the Bekwaihene, and the contractor Corri, giving evidence to the effect that late Morgan told them that he had already made the gift of the house to the defendant. The evidence in support of her defence that the house was gifted to her cannot be complete without proof of acceptance of the gift. I think that of this too, there is ample evidence. The fact that she acted as landlord of the house while the late J. E. Morgan was alive can be considered a convenient family arrangement not necessarily pointing to the fact that she was exercising acts of ownership. But there is ample evidence that since the death of her husband these acts of ownership have been persisted in more than ever before.

I think that the evidence that the house was gifted to the defendant is strong, and I have to consider how the first plaintiff and his witnesses countered it.

In the first place all the plaintiffs' witnesses were their relatives. The first plaintiff was the uncle to the late Morgan. The second plaintiff was the brother; Araba was the mother of late Morgan and the second plaintiff; Grace Morgan was the sister. I leave out Adjei Sarpong because he gave evidence in favour of the defendant. The sum total of the evidence of the plaintiffs was a complete denial by all the members of the family of all knowledge of the gift. According to the defendant's evidence only Takyiwa was present at the making of the gift, and it was to her that the part of the donor's present in acceptance that was to have gone to the family was given. It was given to her to report to the rest of the family. She had denied that there was any such gift. She probably did not therefore tell the others. I am not surprised, therefore, that the members of the family denied that they knew of the gift. One fact, however, that impressed itself upon me most forcibly, is that none of the members of late J. E. Morgan's family liked the defendant. In fact she [p.471] was intensely disliked by the female members, at least those who gave evidence, particularly Grace Morgan. I am completely satisfied that she was not telling the truth about the relationship between her late brother and the defendant. I am inclined to believe that even if she knew of this gift she would deny it. It is quite plain from her evidence that that is so. To some extent the mother too impressed me similarly from her evidence. She said both the defendant and the properties were left in her care, but she did not appear to have concerned herself with either until the dispute arose. Naturally of course she would fight to retain the property in the family. Apart from denying that he went to the late J. E. Morgan at Ejisu to negotiate for this building to be used in securing him in business, neither Sam Morgan nor the first plaintiff had much to say about the making of the gift to the defendant. They were not told of it. But by Yeboah v. Tse 4 they need not all be informed.

After due consideration of all the evidence on record, and reminding myself that this appeal is by way of a rehearing, and that if I found that the judgment appealed from was wrong I should not allow it to stand, I find that the story of the defendant that she was made this gift and that she accepted same and presented her late husband with the customary present in that behalf, and that she had since been performing acts of ownership in respect of the property is the correct version of what happened, and that this is amply supported by independent unbiased witnesses. My impression of the plaintiffs and their witnesses is that they were taking advantage of the fact that the lease or the assignment into the name of the defendant was unavoidably and unfortunately delayed to say that there was in fact no gift. It seems to me that this advantage was seized upon because of the disharmony, bordering, in some of the members, on hatred, between the defendant and the plaintiffs' family. I do not think it is right. I do not think it is equitable. Although this was vaguely challenged, there is no doubt that the defendant was married to the late Morgan for about 17 years, within which they had worked hard together for their future.

In my view the defendant proved that she was made the gift by custom and I do not think that the absence of a written document can invalidate this gift. I will allow the appeal, set aside the judgment appealed from including any order as to costs and give judgment for the defendant. The defendant will have the costs of this appeal assessed at 45 guineas.


Appeal allowed.

Plaintiff / Appellant

N. Y. B. Adade

Defendant / Respondent

J. Owusu-Yaw for C. F. Hayfron-Benjamin (Snr.)


1.  Asare v. Teing [1960] G.L.R. 155

2.  Yeboah v. Tse (1957) 3 W.A.L.R. 299

3.  Kwesi-Johnston v. Effie (1953) 14 W.A.C.A. 254

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