In the case of ABDUL RAHMAN OSUMANU GIWAH & ORS v BABA LADI (2013) SCGLR Benin, JSC giving the judgement of the court said “we have to examine the ownership of the houses; first as to the person who originally acquired them, then whether there was any gift inter vivos”. He went on further to say that on proof of a customary gift, a relevant case in point is BARKO v. MUSTAPHA and Another (1964) GLR 78 at p. 81 where the Supreme Court said this, per Sarkodee-Addo, CJ: “In this case all the evidence we have that a gift was made to the plaintiff of land which included the plot of land in dispute is the bare assertion made by the plaintiff and also by her first witness, her brother, that a gift was made; no evidence was led as to the demarcation of the land in the presence of witnesses……” See also IN RE OHENE (DECD.); ADIYIA v. KYERE (1975) 2 G.L.R. 89 CA
This being said I am of the initial opinion that the judges are of the view that in any valid customary gift, there must be the giving of the gift in the presence of witnesses at the place or site where the gift is located. Thus, the witnesses should be witnesses of the gift, so as to know the size, content and nature of the gift being given. This I think is what the judges are implying that the witnesses are not to witness only the giving of the gift but the gift itself as to constitute a proper grant of customary gift, which in our instance case was never done.
Benin, JSC in the Abdul Case (supra) continued “Indeed the 1st respondent said the deceased “gave” the house to Ramatu in her lifetime. The trial court understood that the word “gave” in the context meant gifted. It might well be the case, but that evidence did not constitute proof of a gift, in view of the consistent case put up by the appellant that the Tudu house has at all material times remained the property of Fatima Suka, and also in view of the denial of a gift by the appellant both in the pleadings and during his own cross examination. The appellant had denied that a gift was made thereby putting the onus of proof on the respondents. The proper inference to be drawn from all the evidence on record was that apart from the bare assertion of a gift, there was no evidence to support it; the defence was not an afterthought but was based on the true state of affairs in the family. In other words the circumstances of the case would negate any gift, in the absence of evidence to prove the ingredients of the gift. The law on this is settled that the requirements of a valid customary gift must be placed before the court when the issue was joined on the pleadings. The true position is this. The respondents seemed to have rested their claim on the fact that their grandmother, as well as their own fathers and now they themselves have been in undisturbed possession of this property for several decades. That is not enough to constitute a gift. They were in undisturbed possession just as the appellant, his father and grandfather have been in undisturbed possession of the Cow Lane house for several decades. All of them occupy any of these properties by virtue of their blood relationship with Fatima Suka. Possession of property in such circumstances, however long it may last, does not ripen into ownership. We will thus set aside the finding that there was a gift of the Tudu house to Ramatu; that house remained the property of Fatima Suka until she died. Ground a) of the appeal thus succeeds”.
Thus, the court held in my view that, the fact that a property is given out to a person to use for his or her personal use, no matter how long it takes, does not constitute a customary gift.
Also on the following cases, MAHAMA HAUSA v. BAAKO HAUSA (1972) 2 GLR 469; ASARE v. KUMOJI (2000) SCGLR 298; AKUNSAH v. BOTCHWAY & JEI RIVER FARM LTD. (2011) 1 SCGLR 288, the most important element of a customary gift that runs through these authorities and several others is that the gift must be offered and accepted and must be witnessed by somebody else other than the donor and donee. Thus when the fact that a gift has been made is challenged, it will not be sufficient to state barely that a gift was made; you have to go on to show the occasion, if any, on which the gift was made; the date; the time, if possible; the venue and most importantly, in whose presence it was made.
In the case Maakye Korkor Akunsah V Nai Ashalley Botchway & Anr (2010) SCGLR the court in determining the issue of a valid customary gift, accepted Ollennu JSC’s explanation on the law on essential requirements of customary gifts in the case of Yoguo & Anr. V. Agyekum & Ors. Where he said: “A valid gift, under customary law, is an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstances of the case may permit. For purposes of the required publicity, the gift is made in the presence of independent witnesses, some of whom should be members of the family of the donor who would have succeeded to the property if the donor had died intestate and, also, in the presence of members of the family of the donee who also would succeed to the property upon the death of the donee on intestacy. The gift is acknowledged by the donee by the presentation of drink or other articles to the donor; the drink or articles are handed to one of the witnesses — preferably a member of the donee’s family, who in turn delivers it to one of the witnesses attending on behalf of the donor; libation is then poured declaring the transfer and the witnesses share a portion of the drink or other articles. Another form of publicity is exclusive possession and the exercise of overt acts of ownership by the donee after the ceremony: see Kwakuwah v. Nayenna, (1938) W.A.C.A. 165, Asare v. Teing, [1960] GLR 155, Addy v. Armah, (1960) Oll. C.L.L. 240 and Asante v. Bogyabi. [1966] GLR 232. Sarbah emphasizes these principles of acts of transfer and acceptance and proof of those two acts when he says in his Fanti Customary Laws (2nd ed.) at pp. 80-81: “Gift consists in the relinquishment of one’s own right and the creation of the right of another, in lands, goods, or chattels, which creation is only completed by the acceptance of the offer of the gift by that other . . .”
The alleged customary gift will not be validated by the mere fact that Lucy Baiden has been in an undisturbed possession of the said house for many years, or that the pictures tendered as evidence is a customary rite of the alleged gift. This is because Mr. Bernard Owusu cannot by himself be the party on the other side in the said alleged customary rite. The self-acquired property from all indications would have become a family property after Mr. Bernard’s death unmarried. It will therefore be in accordance with any valid customary rite for the witnesses (his family members) on Mr. Bernard’s side to be present as well, so as to prevent any future disputes which may arise between the two parties regarding the ownership of the said house. That not being the case, the customary gift rite which the defendant has alleged cannot be said to qualify as a valid customary rite. If for nothing at all, the wife of Mr. Bernard should have been present at the said alleged customary rite, since after her marriage to Mr. Bernard and before the said alleged customary gift rite was performed, she was entitled to a portion of any property that the husband has acquired, of which the said house in dispute is no exception. It therefore behooves of the wife, a legal shareholder of the disputed house to be present, as a way of seeking her consent in the disposal of any marital property as a gift, sale or whatever. Once her consent was not sought in disposing of such family property, the said disputed house, which was no longer a self-acquired property, the whole allaged idea of customary gifting of the said house by Mr. Bernard Owusu to Mrs. Lucy Baiden can be said to have been invalidated.