COURT OF APPEAL ACCRA (FULL BENCH)
APALOO, LASSEY, ARCHER AND
KINGSLEY-NYINAH J.J.A. AND ABBAN J.
[Apaloo J.A. delivered the decision of the court.] The late Jacob William Armah who died on 7 July 1970, was a member of the Anglican Church, Cape Coast. Some time in June 1970, he was taken ill and was admitted at the government hospital there. His illness required surgical treatment and he was told he was going to be operated upon. He had a premonition of his approaching end and he sought to dispose of his earthly possessions. On 24 June 1970, when his wife and sister visited him at the hospital, he requested to see the Archdeacon of the Anglican Church. He was the Venerable Kofi Pare Sekyiamah.
The latter dutifully called to see his sick parishioner about noon of that day. Mr. Armah asked whether the priest could return at 4 p.m. as he was expecting to see his wife and sister by then. They happened to be the parties who are locked in conflict to this case. The priest obliged and returned to see the deceased at 4 p.m. At that time, the deceased had, besides his sister and wife, a number of other visitors. The deceased requested Rev. Sekyiamah to excuse them for a while. He retired into the main ward of the hospital. Mr. Armah was apparently in a side-ward. After a while, Rev. Sekyiamah was sent for. When he returned to the deceased’s ward, he was alone. He then told the priest, “I want you to put into writing what I have already told my wife and sister.” The bed next to the deceased was unoccupied and so the priest sat by the deceased who then dictated his wishes. Rev. Sekyiamah put these down in writing.
After taking them down, he read them over to the deceased who approved. The Reverend then left the deceased and returned the next day with original and duplicate typed copies. The deceased read his type-written wishes and made a minor correction. He asked that the Bank of West Africa be substituted for Barclays Bank appearing on the document.
On account of this, Rev. Sekyiamah returned and typed out two fresh copies. He took these to the deceased the next day. The latter read them over and when he felt satisfied that what the Reverend recorded represented his wishes, he signed both copies. This was on 26 June 1970. Perhaps out of abundance of caution the priest took the deceased’s thumbprints as well. After Mr. Armah signed his wishes, the priest did the same in the former’s presence. The deceased then gave two instructions to the Reverend and these clearly reflected his state of mind. He was to keep these documents in strict confidence and was to part with them to no one, nor inform anybody about them. If he survived the operation, the priest was to return these documents to him, but if he succumbed to it, he was to give one each of the documents to his (deceased) head of family, and his wife’s (the respondent’s) family.
The evidence is imprecise as to the exact date the deceased was operated upon. It is clear however that he did not survive it for long. Within ten days of declaring his last wishes, he was no more. The principal objects of Mr. Armah’s bounty were his wife who was the plaintiff in the action (now the respondent) and his sister the defendant. She is the applicant in this review. These parties were in disagreement as to the true expressed wishes of the deceased and as they were unable to compose their differences, the respondent sought the assistance of the court. Although the deceased was compos mentis and had a full disposable power over the properties which he sought to bequeath, his wishes, though reduced into writing, were not attested in the manner required by section 2 (3) of the Wills Act, 1971 (Act 360). It was therefore not a valid statutory will that can be admitted to probate. But the respondent claimed that it was a valid nuncupative will enforceable according to customary law and that she was entitled to the bequests made to her by such disposition. The applicant disputed the facts and contended in the alternative, that even if the facts were as recited, the disposition was not made in accordance with the formal requirements of customary law and was invalid therefore. It was on these that issue was joined.
The High Court accepted the facts recited above and examined, at considerable length, the customary law relating to the making of oral wills. In particular, the court was pressed with the oft-cited case of Summey
- Yohuno  G.L.R. 68, in which the formal requirements of this type of will were set out. In the end, the judge felt unable to accept that decision as truly reflecting the formal customary requirements of a samansiw—as an oral will is usually called. He pronounced for the validity of the will: see Abadoo v Awotwi  1 G.LR. 393. The applicant appealed. At the date the High Court rendered its decision, there was no judgement of a court superior to the High Court which laid down the formalities required
for a valid will. By the time the appeal came before the ordinary bench of this court, namely, 7 February 1974, the decision of this court in Mahama Hausa v. Baako Hausa  2 G.L.R. 469 had been given. It was given on 31 July 1972. That decision disapproved of the formalities for validating a customary will laid down in Summey v. Yohuno (supra) in so far as that decision denies validity to a samansiw if (1) a heritable member of the deceased’s family was not present when the declaration was made, and (2) if the bequest was not formally accepted by the payment of aseda. The court felt that if the deceased was compos mentis and was of full age, he could make a valid and enforceable samansiw in respect of his self-acquired property provided the declaration was made in the presence of two responsible and disinterested witnesses.
The holding in Hausa v. Hausa in so far as it dispensed with some of the formalities laid down in Summey v. Yohuno, was not necessary for that decision and was obiter. When this appeal came before the ordinary bench its attention was drawn to it. It observed that it was obiter but felt nevertheless that it deserved “very serious consideration”: see In re Armah (Decd); Awotwi v. Abadoo  1 G.L.R. 374 at p. 378. The court then cited, at some length, the views expressed in that case and considered it against the formulations made in the Summey case. It considered that the formalities laid down in that case may well have represented the customary law “in its pristine form,” but nevertheless expressed preference for the Hausa v. Hausa formulation. It must be pointed out that the ordinary bench was not making a choice between the decision of the High Court and the Court of Appeal. Had the pronouncements in the Hausa case not been obiter, it would have had no alternative but to follow it under our principle of stare decisis.
In preferring the Hausa decision to Summey, the court itself subjected the later decision to a critical but respectful analysis and thought, in the end, that customary law was developing fast and that the Hausa but not the Summey decision accorded with changed and modern conceptions.
Having endorsed the Hausa decision, it proceeded to dismiss the appeal and affirmed the validity of the oral will. The position which the court thus affirmed, is that a samansiw would be valid if the “death bed declaration” was made in the presence of two responsible and disinterested witnesses. The decision assumed, of course, that the properties sought to be disposed of were self-acquired by the deceased and that he was at the time of the declaration of sound mind. It also accepted the Hausa holding that neither the formal acknowledgment of the gift by the giving of aseda nor the presence of a heritable member of the family was necessary. But the evidence which was available and upon which the ordinary bench affirmed the trial court was as we recited above. This shows that the “death bed declaration” of the deceased was made only in the presence of one responsible and disinterested witness.
Accordingly, the applicant who lost in both courts seized upon this obvious divergence between the proffered law and evidence and applied to this court to review the judgment of the ordinary bench. The only ground stated for the application was formulated as follows:
“Error-in-law and miscarriage of justice in that both the trial judge and the learned judges of appeal failed to apply the principles of law governing a valid samansiw laid down in such cases as Summey v. Yohuno  G.L.R. 68 and Mahama Hausa v. Baako Hausa  2 G.L.R. 469 to the facts disclosed by the evidence and thereby caused a miscarrige of justice by wrongly deciding and affirming the existence of a samansiw in favour of the plaintiff.”
The grounds lumped together two statutory grounds for review, one of which requires leave. In so for as this application can be said to be based on a ground of law, leave to apply to this court should first have been given by the ordinary bench under section 3 (2) (a) of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101). No such leave is required if the only ground of the application is the amorphous one that the decision occasions “a miscarriage of justice.” We first considered this matter in chambers. It did not appear to us that the well-reasoned decision of the ordinary bench occasioned a miscarriage of justice. We felt that notwithstanding the infelicitous manner in which the ground for the review application was formulated, the applicant’s real complaint was one of law. At least in view of the ordinary bench’s own position on the law and its application of it to the facts, the applicant’s complaint was plausible. We treated the application as one brought under section 3 (2) (a) and granted leave so that we could hear full argument on the law in open court. We heard this on 19 April last.
Although the ground of application suggests that the applicant would invite this court to affirm the formalities laid down in Summey v. Yohuno, no such request was made. What counsel in fact invited us to do was to affirm the Hausa decision and to hold that the death bed declaration to qualify as a valid and enforceable samansiw, must be made in the presence of at least two witnesses. Counsel invited us to take our cue from the provisions of section 2 of the Wills Act, 1971. He said validating an oral will made to only one witness was fraught with the type of danger that the Wills Act foresaw and provided against.
Counsel then pointed to us the very obvious—that if probate had been sought for this parol will, it would have been refused because it was attested in a manner contrary to the requirement of the Wills Act. Counsel said if his argument should prove acceptable to the court, we should hold that the deceased’s death bed declaration not only failed as a statutory will but also as a customary parol will because on the evidence, the declaration was made only to one person. For his part, counsel for the respondent, relied on the Hausa judgment and invited us to affirm it subject to one variation, namely, instead of two “responsible and disinterested witnesses,” we should hold that a samansiw is valid if made in the presence of one credible witness.
Mr. Sarpong’s pre-occupation with the provisions of the Wills Act, 1971, is understandable and the comparative analysis he made of a statutory and a customary will was fair and right-minded. Indeed although according to the common law, the evidence of a single witness may ordinarily be accepted in proof of a contested issue, in claims against the
estate of deceased persons, a court normally requires corroboration. This rule of practice claims its rationale in prudence. In passing the Wills Act, the legislature itself seems to be fully aware of a customary will. Section 19 (3) of the Wills Act provides, “This Act shall not affect the validity of oral testamentary dispositions made in accordance with customary law.” That seems an acknowledgment by the legislature that customary wills may continue to be validly made even though they might not be made in accordance with the statutory law regulating the making of wills. If there were not divergence between the two systems, this provision would have been otiose. It is well to notice some obvious differences between a statutory will and a customary will. The former must be in writing or in permanent form, the latter need only be oral although if it is reduced into writing conformably with modern notions, it would not be invalid as a samansiw only on that account. The function performed by witnesses in both wills is different. In samansiw, the witnesses hear the declaration made by the deceased, and being fully cognisant of its terms testify to it. Witnesses to a statutory will are only required to acknowledge the testator’s signature and may be wholly ignorant of the provisions of the will. There are other differences we do not consider necessary to detail but we think the dissimilarities in both wills are enough to inhibit our laying down as the formal requirements for samansiw, the same formalities required by the Wills Act, 1971, for validating a written statutory will.
It is not necessary today to go back to the old days of Sarbah Rattray or even Danquah all of whom conceived that a man cannot, as it were, dispose of his properties away from his clan or relatives. Today the right of testation is fully acknowledged. A man is entirely free to dispose of his self-acquired property to any person he chooses. He may make a gift of it to a stranger inter vivos, sell or pledge it, alienate it by a statutory will to strangers and to the detriment and prejudice of his relations subject only to the High Court slicing a portion off for designated dependants under section 13 of the Wills Act, 1971. He may dispose of his property in like manner under a customary samansiw. The right of a man to do whatever he wishes with his own self-acquired property being almost wholly absolute, the manner in which this right may be exercised ought not to be hemmed with formalities which either impede the free exercise of that right or renders its exercise illusory. We can, with profit, recall to mind the admonition by Bentsi-Enchill J.S.C. in the Hausa case at p. 481 that we should guard against the danger “of throwing away the baby (some legal right) with the bath water (of formal requirements).”
Sight should not also be lost of the fact that samansiw is a peculiar form of nuncupative will. It is normally always made in contemplation of imminent death and could aptly be described as an “emergency will.” Accordingly, we consider that no hard and fast rules should be laid down as to what forms the exercise of that right should take. It is in this light that we approve broadly, the liberal principles enunciated in the Hausa decision. In that case, the court considered that a samansiw made by a person of sound mind of his self-acquired property in the presence of two
responsible and disinterested witnesses should be held valid. It seems the requirement of two witnesses was laid down to obviate the danger of pronouncing for an oral will on the testimony of a single witness in as much as a claim of this nature is analogous to a claim against the estate of a deceased person. The court was also obviously influenced by the provisions of the Wills Act. Such caution is understandable.
Nevertheless, it would enhance rather than impede the right of testation if a court pronounces for an oral customary will if made in the presence of at least one credible and disinterested witness. No doubt a court would exercise the caution that is normally exercised when it is asked to resolve a disputed question on the testimony of a single witness and should decline to pronounce for a samansiw on the evidence of one person where there are circumstances of suspicion. Indeed we consider it desirable that the death bed declaration should, if practicable, be made in the presence of more than one person. We do not however consider that a samansiw should fail simply because the declaration was not made in the presence of a plurality of persons. With present-day Ghanaian mobility engendered by the availability of means of transport, a man who is otherwise competent to make a samansiw may be far away from his relations, or may find himself about to die when only one person was about. He should not be disabled from making a valid oral will only on that account. To deny validity to a samansiw today because it is not made to persons or in the manner conceived by Sarbah in 1896 or noted by Rattray over half a century ago, would be an admission that customary law is static and unlike the English common law, is irresponsive to change or adaptation to meet changed social conditions. We do not accept this role for our customary law.
Accordingly, as we said, provided the declarant is able to speak and is of sound disposing mind, a death bed declaration made by him in the presence of one or more credible witnesses should be held valid.
That being our conception of the modern customary law relating to the formalities of a valid samansiw, the only question to be answered is whether the death bed declaration of the late J. W. Armah was valid.
We hold positively that it was. The deceased was of sound mind. He could speak and expressed his wishes very clearly to Rev. Sekyiamah. The latter was considered a credible witness by the trial judge. He was also clearly disinterested. Indeed it is difficult to conceive of a more trustworthy witness than one’s parish priest. The fact that the priest carefully put down the deceased’s wishes and obtained his signature to which he appended his own, is further evidence of the samansiw’s reliability. We accordingly agree with the holding of both the trial court and the ordinary bench of this court that the samansiw of the late J.
- Armah was a valid parol will and is enforceable at law.
There is one matter which although not specifically raised seems to us to require attention and which both counsel wish us to deal with. Rev. Sekyiamah recorded the deceased’s last wishes in paragraph (2) in these words:
“If she so desires, my sister Mad. Efua Awotwi should live in that part of my out-house occupied by my mother. The other part in which I occupy, should be rented, and its proceeds used partly in paying house-rates and taxes, ample provision of my mother and the balance shared by my wife and sister.”
When the deceased’s sister disputed the validity of the samansiw and obliged his wife to institute these proceedings, she sought a declaration endorsed as claim (2) in the writ the following words: “A share in the rents collected from the outhouse of house No. E.49/4 Jukwa Road formerly occupied by the plaintiff and her husband J. W. Armah after deduction of rates and taxes.” She sought three other declarations.
When the learned judge pronounced for the validity of the oral will, he acceded to all the declarations sought save the one endorsed as (2). The judge concluded: “I find the plaintiff’s claim proved and hereby grant her the reliefs sought save her claim (2) which cannot be legally enforced for uncertainty.” See
The only sense in which that relief can be said to be uncertain, is that the court cannot say at a glance how much the wife’s share would be at any particular time. But nothing is uncertain in law if it is capable of being ascertained. If the house is rented and the bill for rates and taxes is met and an agreed deduction is made for the upkeep of the deceased’s mother, the balance available for sharing can be easily ascertained.
The wife is entitled to a share of that. The deceased did not specify in what proportion the wife and sister should share this sum. Plato said equality was a sort of justice. Where there is no other basis, equality ought to be the proper basis. There is also, of course, the equitable maxim that “equality is equity.” It would be equitable that the wife and sister share this sum in equal shares.
We accordingly vary the judgment of the court below and grant the declaration sought in claim (2) of the writ. Save as aforesaid, we affirm the decision of the ordinary bench and dismiss this application with costs.