Introduction
When immovable property is conveyed to a person, but another pays the purchase price, there is a prima facie presumption that a resulting trust has been made in favor of the purchaser unless a gift is intended. [1] Hence, gifts are a way to transfer property rights and interests by law. The ninth edition of Black’s Law Dictionary defines a gift as the voluntary transfer of property to another person without consideration. Ghanaian law recognizes two types of immovable property gifts according to how they are created: customary law gifts and common law gifts.[2] Given that the recipient of the property gives nothing in return for the interests conferred on him, gifts belong to the class of agreements or promises that are not enforceable should the gift be revoked or when the requirements to make the gift valid are not complied with. [3]
This article analyzes key legal issues a court is likely to determine when ascertaining the validity of a gift of property. First, the type of interest a donor can pass on to a donee will be discussed. Next, the requirements for making each type of gift will be highlighted, and the final part will focus on whether a gift can be revoked.
Ascertaining the donor’s interest
As part of the preliminary inquiries, the court must determine the interest the donor purports to pass on. As the maxim succinctly puts it, nemo dat quod non habet, meaning one cannot give what he does not have. Hence, it must be shown that the donor has a proprietary interest in the subject matter of the transferable gift. Proprietary interests in land include but are not limited to, freehold interests, usufructuary interests, and leasehold interests. [4] The character of the immovable property in which the interest is held determines its transferability.
Immovable property can be characterized as self-acquired property, family property, or stool property. Property is self-acquired when obtained through the owner’s private means or independent efforts. Family, as the name suggests, is property inheritable by another who shares the particular relation of belonging to a family. In contrast, stool property is granted to a person because he is a subject of the stool. Self-acquired property can be freely transferred by its owner without the concurrence of any person.[5], but any transfer of interests in family or stool property absolutely requires the consent of the principal members of the said family or stool.
However, under customary law, if a person uses his resources to develop bare family land, he acquires a life interest in the property.[6]. This means that he can enjoy the property only during his lifetime and may transfer it to another person. Upon his death, the property vests in the family, and any interest he holds or gives out is extinguished. Consequently, self-acquired property can be alienated by inter vivos or testamentary disposition, whereas life interest can be alienated inter vivos only.
Inter vivos gifts
An inter vivos gift is made by the transfer of immovable property by the donor during his lifetime. The gift may take effect during or after the donor’s death. The transfer may be made by complying with the rules of common law or customary law. A gift made under the former rules must be put in writing and evidenced by the deed of the gift[7]. The presentation of a duly executed deed, signed by the donor, is prima facie proof of the transfer to the donee.
A valid gift under customary law must be made with publicity; the donee must show his acceptance by giving “aseda” in the form of drinks or a token, the final step is to place the donee in possession.[8]. Publicity is done by making the gift in the presence of witnesses other than the donor and donee to whom part of the “aseda” is served or given.[9]. Although no acknowledgment of family members is needed, a purported acknowledgment provides evidence of the gift to quell future disputes.[10]
Generally, after a gift is completed, it is irrevocable,.[11] except for gifts between parents and their children, which can be revoked or exchanged by the parent in his lifetime or by his will[12]. Instances in which the deed’s validity may be impugned include when it is claimed to have been acquired fraudulently, when the donor has revoked the gift, or when the deed was executed to fulfill a secondary purpose rather than to transfer ownership to the donor.
In Sese v Sese[13], the plaintiff was not allowed to rely on a deed of gift executed by his father because the evidence showed that the donor lacked the intention to make a gift. The deed was made to enable the plaintiff to secure a bank loan. Thus, he was deemed to hold the property in trust for his father.
Testamentary dispositions
Property transfer through written or oral wills is referred to as testamentary dispositions. Where a will is written, it must be executed by the Wills Act, 1971 (Act 360). According to Section 2 of Act 360, a will is valid if it is in written form and signed by the testator or someone he directs. The signature must also be made in the presence of two or more witnesses, and the witnesses must attest and sign the will in the presence of the testator. The oral will, known as the samansiw, is governed by customary law principles in case law.
Samansiw is a death-bed disposition of the deceased’s self-acquired property. It represents the dying wishes of the deceased and is enforceable.[14]. Much ink has been spilled by judges in propounding the essential elements of a valid samansiw.
The famous formulation by Ollenu J in cases[15] Summey v. Yohuno and Akele v. Cofie can be summed up into three essential characteristics to comply with. First, the disposition must be made before witnesses who know the contents of the declaration. Secondly, some of the witnesses ought to be the family members who would have inherited the maker of the dispositions had he died intestate. Lastly, there must be an acceptance, by or on behalf of the beneficiaries, indicated by the giving and receiving of “drinks or aseda”. This formulation has not been without much critique from the bench.
In Abenyewaa V Marfo[16], Taylor J disagreed with Ollenu J’s formulation. In his view, the paramount requirement is consent or approval of the family, the reason being that the property would have become family property had he died intestate. His requirement has been described as regressive because it limits the right to dispose of a person’s self-acquired property in Abadoo v Awotwi.[17]
In the latter case, the essential requirements stated by Wiredu J are that The declaration must be made in anticipation of death, the property must be the declarant’s self-acquired property, and the declaration must be made in the presence of witnesses, preferably including some family members, who must hear the declaration and understand it as representing the declarant’s dying wishes. Wiredu J also disagrees with Ollenu J’s requirement of giving an “aseda” to make a semantic valid. Despite their points of divergence, all three judges agree that publicity is essential if the simansiw is to be upheld. A review of recent decisions shows that the courts have adopted this requirement to determine the validity of oral wills.[18].
It is good to note that a person who has made a will under Act 360 is not precluded from making a samansiw. However, the validity of the samansiw is restricted to portions of the estate that the statutory will has not effectively disposed of because an oral will cannot amend a statutory will. However, if an inter vivos gift is made of property disposed of in a will, it will lead to the ademption of the gift in the will without revoking the will.[19].
Conclusion
Gifts are a valid legal means of transferring property rights. They may be made while the donor is alive or as a disposition in his will to take effect after his death. It is essential that the requirements for making a gift are complied with for title to pass on validly to the intended donee. While the statute clearly states the legal requirements to be followed when conveying property under common law, decided judicial cases must be examined to ascertain what rules apply to gifts made under customary law.
[1] BJ da Rocha and CHK Lodoh; Ghana Land Law and Conveyancing (2nd Edn.) page 113-114, In Re Koranteng (Dec’d): Addo v. Koranteng and Ors. [2005-2006] SCGLR 1039, Quartey v. Armah [1971] 2 G.L.R. 231 @ 237 and Fianko and Anor. v. Djan and Ors. [2007-2008] 1 SCGLR 165.
[2] MARGARET DUNCAN WILLIAMS V. EDWARD DUNCAN WILLIAMS (2018) JELR 107897 (HC) https://www.judy.legal/case/margaret-duncan-williams-v-edward-duncan-williams?q=gift&type=case&court=all&country=ghana
[3] BUTT v. CHAPEL HILL PROPERTIES LTD (2003-2004) SCGLR 636, MARFO AND ORS. V. ADUSEI [1964] G.L.R 365
[4] SECTION 1 OF THE LANDS ACT, 2019 (ACT 1036)
[5] https://www.judy.legal/case/abadoo-v-awotwi-0050e?q=self%20acquired%20property&type=case&court=all&country=ghana
[6] Biney v Biney
[7] SECTIONS 32, 34 AND 35 OF ACT 1036
[8] https://www.judy.legal/case/margaret-duncan-williams-v-edward-duncan-williams?q=gift&type=case&court=all&country=ghana Asare v. Teing and Another [1960] GLR 155, In Re Suhyen Stool; Wiredu and Obenewaa v. Agyei and Others (2007) 11 MLRG 14; Comfort Darko v. Julian Darko [2016] 97 GMJ 153 at pages 166-167, C.A.; Serwaa v. Mensah [2009] 9 GMJ 130, and Nana Akua Ampomah II v. Adu Yeboah and Another (2014) 69 GMJ 137 at page 150, NARTEY v. NARTEY (1953) 14 WACA 259 and IN RE OHENE (DECEASED); ADIYIA v. KYERE (1975) 2 GLR 89 C/A
[9] Giwah v. Ladi [2013- 2014] 2 SCGLR 1139
[10] Mensah v Lartey
[11] Sarkodie v. FKA Co. Ltd. [2009] SCGLR 65, Dovie and Dovie v. Adabunu [2005-2006] SCGLR 905; Benyak Co. Ltd. v. Paytell Ltd. and Ors. [2013-2014] 2 SCGLR 976 at page 977 and Justice Gilbert Mensah Quaye (substituted by Daniel Mensah Quaye) v. Koiwa Investment Co. Ltd and 3 Ors, Civil Appeal No. J4/42/2018, dated 30th January 2019, S.C. (Unreported), per Marful-Sau JSC.
[12] https://www.judy.legal/case/abadoo-v-awotwi-0050e?q=self%20acquired%20property&type=case&court=all&country=ghana, Sese v Sese
[13] SESE V. SESE AND OTHERS (1986) JELR 65597 (CA), Kwantreng v. Amassah [1962]
[14] https://www.judy.legal/case/abadoo-v-awotwi-0050e?q=self%20acquired%20property&type=case&court=all&country=ghana
[15] Summey v. Yohuno [1960] G.L.R. 68, Akele v. Cofie [1961] G.L.R. 334 at p. 337
[16] https://www.judy.legal/case/abenyewa-another-v-marfo-and-others-77b83
[17] https://www.judy.legal/case/abadoo-v-awotwi-0050e?q=self%20acquired%20property&type=case&court=all&country=ghana
[18] IN RE OKINE (DECD); DODOO AND ANOTHER V. OKINE AND OTHERS (2004) JELR 68329 (SC), https://www.judy.legal/case/re-okine-decd-dodoo-another-v-okine-and-others-9741b?q=death%20bed%20disposition&type=case&court=all&country=ghana
[19] https://www.judy.legal/case/re-okine-decd-dodoo-another-v-okine-and-others-9741b?q=death%20bed%20disposition&type=case&court=all&country=ghana
