Case of the Week: Obaapanin Abena Manu & Forty-three others v. Opanin Kwaku Mensah & Four Others

_{Court of Appeal, Suit No. H3/58/2016 | Judgment delivered on 27^th  February 2018}

Introduction:

Does the fact that parents build a house for their family to live in mean that they have legally gifted the house to their wives and children?

This case examined what must be proved to establish a valid gift of property under customary law and the nature of ownership where property is jointly acquired by several persons.

Facts:

The dispute concerned House No. ME 32, Block 12, Manhyia Extension, Kumasi. The house had been jointly built by five brothers -Yaw Bour, Yaw Adusei, Kwadwo Adutwum, Amoako Atta Senior and Amoako Atta Junior- who farmed together and acquired properties from their joint endeavours.

The Appellants, comprising the surviving wife and children of the deceased brothers, claimed that their fathers had built the house for their wives and children. Some of the Appellants continued to occupy rooms in the house after the deaths of the brothers.

According to the Appellants, when Amoako Atta Junior became old and unemployed, they permitted him to rent some of the vacant rooms to enable him to earn a living. Some of the rooms were rented to relatives who later became Respondents in the action. The Appellants alleged that the Respondents subsequently claimed ownership of the house and threatened to eject them.

The Respondents denied that the house had been gifted to the Appellants. They maintained that the deceased brothers had conducted their affairs jointly and that the house was family property.

The High Court dismissed the Appellants’ claims. Dissatisfied, they appealed to the Court of Appeal.

Issues for Determination:

1. Whether the trial judge erred by confusing a customary law gift with the common-law doctrine of advancement.
2. Whether the judgment was against the weight of evidence.

The Court’s Holding:

The Court of Appeal found that:

1. There was no evidence that the deceased brothers had made a customary gift of the house to their wives and children. Although the house had been used by the brothers and their families, that fact alone did not establish a transfer of ownership.

1. For a valid customary gift to be established, there must be a clear intention by the donor to make a gift, publicity of the gift and acceptance by the donee, which may be demonstrated by aseda or other conduct showing gratitude and acceptance. Those requirements were absent in this case.

1. The evidence showed that the five brothers acquired the property together and intended to hold it as tenants in common. Consequently, each had an interest in the undivided property rather than the entire property passing to the surviving co-owners upon the death of one of them.

1. The trial judge had properly assessed the evidence and reached the correct conclusion. The Court therefore rejected the argument that the judgment was against the weight of evidence.

• Accordingly, the appeal was dismissed, with costs of GH¢5,000 awarded against the Appellants.

Implication of the Decision:

The decision demonstrates that allowing a spouse, child or other relative to live in or enjoy property does not, without more, make that person the owner of the property.

A person who claims that property was gifted to him or her under customary law must prove the essential elements of the gift, particularly the donor’s clear intention to give away the property and the donee’s acceptance of it. The case therefore underscores the importance of clearly documenting arrangements concerning family property, particularly where property is jointly acquired or intended to benefit several generations.

Significant Quote:

“The requirements of a gift at customary law were: (i) there must be a clear intention on the part of the donor to make a gift; (ii) publicity must be given to the making of the gift; and the donee must accept the gift…”

• Welbourne JA.

Commentary and Insight:

This case is an important reminder that family use of property is not necessarily family ownership of property. The fact that parents build a house in which their spouses and children live does not automatically mean that they have surrendered ownership of that house to them.

Where a person intends to give valuable property to a spouse, child or relative, that intention should be made clear and accompanied by the acts required by law to complete the gift. Otherwise, after the owner’s death, what may have been understood informally within the family can become the subject of prolonged litigation between spouses, children and extended family members.