MAHAMA HAUSA AND OTHERS v. BAAKO HAUSA AND ANOTHER
July 31, 1972
COURT OF APPEAL
CORAM
- APALOO
- BENTSI-ENCHILL JJ.S.C.
- KINGSLEY-NYINAH J.A
Areas of Law
- Property and Real Estate Law
- Probate and Succession
- Civil Procedure
- Evidence Law
- Conflict of Laws
July 31, 1972
COURT OF APPEAL
CORAM
AI Generated Summary
This appeal concerns House No. C.32 Navrongo, self-acquired by the late Salifu Tailor, a Ghana-resident Hausa who died intestate and without issue. After Salifu’s death, his cousin, first defendant Mahama Hausa, purported to sell the house to second defendant Alhaji Seidu Kantosi, a stranger to the family. Salifu’s paternal siblings sued, seeking declarations that the house is family property and that Mahama’s sale is void. The defendants asserted that Salifu gifted the property to Mahama either inter vivos or by oral customary will, relied on an illiterate thumbprinted “House Claim” document (exhibit 2), and argued estoppel and bona fide purchase. The High Court found for the plaintiffs, declaring the sale void and the house family property; the defendants appealed. The appellate court, per Bentsi-Enchill J.S.C., held the inter vivos gift unproven for lack of customary acceptance, the oral will unproven, rejected estoppel and bona fide purchase, affirmed the plaintiffs’ standing, and dismissed the appeal. Apaloo J.S.C. concurred, disapproving strict Summey v. Yohuno requirements for oral wills; Kingsley-Nyinah J.A. agreed.
JUDGMENT OF BENTSI-ENCHILL J.S.C.
The subject-matter of these proceedings is a parcel of land with buildings on it, known as house No. C.32 Navrongo. It was once owned by one Salifu Tailor, a Hausa man whose parents originally came from Kano in Northern Nigeria. Salifu Tailor had died some three years prior to the action without leaving any issue. The dispute arose when the first defendant, one Mahama Hausa, a cousin of Salifu Tailor, purported to sell Salifu's said property to the second defendant, one Alhaji Seidu Kantosi, a stranger to the family.
[p.473]
The plaintiffs, who are acknowledged by the defendant to be paternal brothers and sisters of the deceased Salifu Tailor, challenged the first defendant’s right to alienate the said property and brought the action herein claiming a declaration of title to the property and a declaration that any purported sale of it by the first defendant is null and void.
This claim was hotly contested on three principal grounds, and backed up with a counterclaim for a declaration affirming the validity of the sale and for other reliefs. While admitting that the plaintiffs are the brothers and sisters of the deceased Salifu Tailor, that the first and second plaintiffs are the eldest members of the deceased's family and that the deceased had left no issue after him surviving, the first defendant contended that the deceased had made a gift of the said property to him before he died. As to whether this was a gift by oral will, or a straightforward oral gift inter vivos, the defence wavered somewhat between the one and the other, first pleading a gift by oral will, later amending this to an oral gift, and later seeking leave, which was refused, to amend again back to the original plea of a testamentary gift. But I do not think that much can reasonably be made concerning this vacillation between the two kinds of gift. For whether it was an oral gift or a gift by oral will would be a conclusion of law from the first defendant's contention and evidence that it occurred in the presence of witnesses including the first and second plaintiffs who, he said, were the eldest members of the deceased's family. And, if validly made, as he contended, then either type of gift would have operated to prevent the property from passing by way of intestate succession, and would have vested him with title to dispose of the property as he pleased.
The defence contended secondly that the plaintiffs had in the presence of witnesses admitted