A: Introduction

The year 2020 has written its name in the annals of history. It was the year the whole world succumbed to the scourge of COVID-19. Who will ever forget the unforgettable ‘lockdown?’ The deserted streets. The dominance of nose masks. The everlasting hand sanitizers. As the world was reeling under the oppressive corona virus, donatio mortis causa paid us a visit at the Supreme Court.

This article discusses the Supreme Court case of Marbell & Another v Marbell where the defendant pleaded that he had received a certain property at East Legon from her late husband under a donatio mortis causa. The defendant had sought to take letters of administration in respect of the house – the documents on which was in their joint names. She alleged that the house had been bequeathed to her under a donatio mortis causa. What is donatio mortis causa? Is it applicable in Ghana?

As stated earlier, the property that was the subject matter of the case that had reached the Supreme Court was acquired by the defendant and her late husband in their joint names. What was the legal effect of the married couple – the late Marbell and his wife, the defendant - acquiring the East Legon property in their joint names? This was not raised as an issue before the trial High Court. Neither was it raised in the Court of Appeal and the Supreme Court. Therefore, it was not discussed in any of the courts. It appears to have escaped the parties at the various stages of the case on the courts’ hierarchy.

Though the issue of joint ownership of property by the couple was not raised for determination, this article discusses it to throw light on the import and legal effect of spouses acquiring property in their joint names. It is contended that if the effect of joint ownership of property is the right of survivorship, then Mrs. Marbell’s (the widow) application for Letters of Administration to administer property which had devolved on her by operation of law was strange. Sadly, it was the application for Letters of Administration that sparked the entire litigation, which she ultimately lost at the Supreme Court.

B: The case of Marbell & Another v Marbell

The case of Marbell v Marbell & Another[1] is an intriguing one.

Facts: What happened in the case was that the appellant, Mrs. M, was the widow of one Mr. M. The couple bought a house together as joint owners. The house was located at Ambassadorial Enclave, East Legon, Accra.  They moved to England, became UK citizens and never came back to Ghana. Mr. M died intestate from a terminal illness in 2009. Mrs. M applied for Letters of Administration to administer Mr. M’s estate in Ghana. Mrs. M took the East Legon house for herself. Her reason was that Mr. M made a deathbed declaration giving his interest in the house to her before he died.

Mr. M had two son in Ghana from other relationships. Let us call them the M brothers. When the M brothers heard that Mrs. M had applied for Letters of Administration, contended that the house was family property and they had interest in it.  As such, they argued further, Mrs. M had no right to obtain Letters of Administration (L/A) without involving the family. Secondly, Mrs. M could not claim the house as a sole owner.

Based on these contentions, the M brothers sued Mrs. M in the High Court, Accra for orders to revoke the L/A, declare that the beneficiaries of the estate of Mr. M are all his children plus Mrs. M under the, the Intestate Succession Act, 1985 (PNDCL 111), as well as an order of injunction.  Mrs. M did not take the case lightly. She counterclaimed for a declaration that Mr. M had made a deathbed donation of his interest in the house to her. Also, since Mr. M had ceased to be a Ghanaian, the Intestate Succession Act, 1985 (PNDCL 111) did not apply to his estate, among other claims.

High Court judgment: The trial High Court dismissed the M brothers’ case. It was held that the house was a donatio mortis causa gift of Mr. M’s 50% interest to Mrs. M. Therefore, Mrs. M was the sole owner of house.

Court of Appeal: The M brothers were dissatisfied with the High Court’s judgment so they filed an appeal at the Court of Appeal. The Court of Appeal reversed the decision of the High Court and allowed the appeal in part. It was held that the M brothers had an interest in Mr. M’s (their father) 50% share of the house. The Court of Appeal
further ordered that the said 50% share of the property was to be distributed based on the provisions in PNDCL 111.

Supreme Court: Mrs. M was unhappy with the changes made by the Court of Appeal that negatively affected her interest in the house so she appealed to the Supreme Court. The main issue the Supreme Court had to determine – which is relevant to our discussion – was this: Whether the evidence on record established donatio mortis causa? It was held that Mrs. M had failed to prove all the essential ingredients of a valid donatio mortis causa. Therefore, her appeal was dismissed. The Court of Appeal judgment was affirmed.

C: Donatio mortis causa – The principle and its applicability in Ghana

As stated earlier, Mrs. M argued in the High Court that she had received the house as sole owner since Mr. M had given his 50% share in it to her by a gift through a donatio mortis causa. Before delving into the main subject of this article, namely, the legal effect of Mr. and Mrs. M’s joint ownership of the house, a discussion of the concept of donatio mortis causa will be necessary. This will explain why Mrs. M was unable to prove that the essential elements of a valid donatio mortis causa were satisfied. It will also throw light on why she lost her appeal at the Supreme Court.

i)     What is donatio mortis causa?

Donatio mortis causa is a gift that is made during the lifetime of the donor (the person making the gift) but which takes effect only after the donor’s death. Unlike an ordinary gift inter vivos, it does not immediately pass a perfect title to the donee (the person receiving the gift. It takes effect in the future.[2] So, it is only when the donor dies that the gift becomes absolute.

A donatio mortis causa is similar to the wills that are made under our local customary laws. The customary law ‘will’ is what is also generally known as “death bed declaration” or “nuncupative” will. In Twi, it is called “samansie” (Asante Twi) or “samansiw” (Akuapem Twi).[3] It is a will that is made orally by a person to announce how he or she wants their property to be shared or used when they die. For example, in Atuahene v Amofa[4] Akufo-Addo, CJ explained “samansiw” as follows:

"Samansiw,’ as the name implies, (it is an Akan expression which literally means (‘ghost behest') is a disposition of property which takes effect after death, and it is the customary law mode of testamentary disposition. In its origin, it is akin to donatio mortis causa in English law. Like all customary transactions,’ samansiw’ is a verbal disposition and requires publication for the purpose of perpetuating the testimony thereof.”

In Asante v University of Ghana,[5] Abban, J (as he then was) defined the concept as follows:

“A donatio mortis causa is a singular form of gift. It may be said to be of an amphibious nature, being a gift which is neither entirely inter vivos nor testamentary. It is an act inter vivos by which the donee is to have the absolute title to the subject of the gift not at once but if the donor dies. If the donor dies, the title becomes absolute not under but as against his executors. In order to make the gift valid, it must be made so as to take complete effect on the donor’s death. The court must find that the donor intended it to be absolute if he died, but he need not actually say so.”

For a valid donatio mortis causa to be made, three (3) conditions must be satisfied:[6]

(a) The gift must be in contemplation of the death of the donor, but not necessarily in expectation of his death;

(b) The subject-matter of the gift must be delivered to the donee; and

(c) The circumstances under which the gift is made must be such as to indicate that the donor is to get his property back if he does not die and survives.

To explain how the concept of donatio mortis causa works, let us see Cain v Moon.[7] The donor gave her mother, the donee, a deposit note for safe keeping. Two years later, the daughter fell seriously ill and she told her mother: “The bank note is for you if I die.” It was held that this was a valid donatio mortis causa. The reason was that when the daughter expressed her intention to make the donatio mortis causa, it was not necessary for her to re-deliver the bank note and for the mother to also hand it back to her. Thus, the gift in the banknote had been delivered to the donee.

Conditions for a valid donatio mortis causa: There are certain conditions that must be satisfied before a valid donatio mortis causa could be made. The conditions for a valid donatio mortis causa, and the fact that it can be made where the subject matter of the gift is immovable property, were restated in Sen v Headley.[8]

The facts of Sen v Headley^[9]  were that, the deceased (T) was diagnosed with terminal cancer. While in hospital, T told the claimant (C) that his house would later belong to C. He told C that she would find the deeds to the property in a steel lockbox. T slipped the keys to the box into C’s bag. T passed away several days later. C sued T’s estate, claiming to be entitled to the property on the basis that T’s actions amounted to a valid donatio mortis causa. The trial judge found that what T did was not a valid donatio mortis causa. C appealed. The issues before the appellate court were first, whether there was a valid donatio mortis causa and secondly, whether real property could form the subject-matter of a valid donatio mortis causa.

It was held, allowing the appeal, that land could be the subject of a valid donatio mortis causa. Also, from the evidence, the requirements of a valid donatio mortis causa were made out. Therefore, C could take the gift given to her by T.  Nourse LJ, re-visited the conditions considered essential for making a valid donatio mortis causa and enumerated some of them.

In a nutshell, five essential conditions must be met to make a valid donatio mortis causa. These are listed below:

“i. The gift must be made in contemplation, although not necessarily in expectation, of impending death;[10]

ii. The gift must be made on the condition that it is to be absolute and perfected only on the donor’s death;[11]

iii. There must be a delivery of the subject matter of the gift or title to it, which amounts to a parting with dominion, possession or control;”[12]

iv. The property must be capable of being the subject matter of a donatio mortis causa;[13] and

v. The gift must have been made in circumstances so as to show that the gift is to revert to the donor should they recover.

ii)    Did the evidence in Marbell v Marbell & Another prove Mr. M made a valid donatio mortis causa to Mrs. M?

As noted in the earlier section, in Marbell v Marbell & Another,[14] the main issue the Supreme Court had to decide was whether the evidence on record established donatio mortis causa. It was held that Mrs. M had failed to prove that the property had been handed over to her by the deceased alleged donor – Mr. M. Agnes Dordzie, JSC stated as follows:

“One other ingredient of a valid donatio mortis causa that the evidence on record failed to prove is the delivery of the subject matter of the gift or the essential indicia of title to the gift. There is no evidence on record to prove the deceased [Mr. M] made a parting of the gift to the appellant [Mrs. M]. Counsel for the appellant argued that proof of this ingredient is not applicable to the appellant because they both (deceased husband & appellant) jointly owned and possessed the lease documents on the land. What this argument is suggesting is that the Court should assume that the lease document was parted with in fulfilment of the third ingredient of proof of the deathbed gift. Accepting such suggestion would lead to injustice. If, indeed, the deceased intended to gift his half share of the property to the appellant, the law requires that he parted with the lease document to her. There is no justification in arguing that the said requirement should be waived.”

iii)   Need for caution when the doctrine is invoked

As Agnes Dordzie, JSC rightly notes in Marbell v Marbell & Another,^[15] by the nature of the gifts made under donatio mortis causa - which is made in circumstances of contemplation of death by the donor - the likelihood of such a donor being open to persuasion or influence is very high. Therefore, it is important that the courts tread cautiously in the type of evidence they accept as proof of a valid donatio mortis causa. In Cosnaham v Grice^[16] the English Court of Appeal sounded this note of caution:

“Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong temptations, present themselves to unscrupulous persons to pretend these deathbed donations that there is always danger of having an entirely fabricated case set up. And without any imputation of fraudulent contrivance, it is so easy to mistake the meaning of persons languishing in a mortal illness, and, by a slight change of words, to convert their expressions of intended benefit into an actual gift of property, that no case of this description ought to prevail, unless it is supported by evidence of the clearest and most unequivocal character.”

iv)  Has the doctrine of donatio mortis causa outlived its usefulness?

In recent years, the continuous application of the doctrine has been called into question, not least, by the courts of the citadel of the Common Law world – United Kingdom. For instance, in 2016 Jackson, LJ stated in unequivocal terms in the English case of King v Dubrey^[17] that the doctrine has outlived its usefulness:

“Indeed, I must confess to some mystification as to why the common law has adopted the doctrine of donatio mortis causa at all. The doctrine obviously served a useful purpose in the later Roman Empire. But it serves little useful purpose today, save possibly validating deathbed gifts. Even then a considerable caution is required.”

The opportunity presented itself for the Supreme Court to express its opinion on the continuous application of the doctrine of donatio mortis causa in Ghana in Marbell v Marbell & Another.^[18] Agnes Dordzie, JSC seized the moment to question the continuous application of the doctrine in Ghana when its usefulness in modern times is doubted in the land of its birth. She went on to state that our customary law wills (samansiw)^[19] are preferable to donatio mortis causa, a view one cannot help but endorse. She expressed herself as follows:

“One thing that boggles my mind is whether it is necessary to cling to the common law doctrine of donatio mortis causa in our jurisdiction. What the doctrine seeks to do is to give validity to a deathbed gift. It is clear from decided cases from other common law jurisdictions that proof of a valid donatio mortis causa poses a challenge. In the United Kingdom, for example, the doctrine is being given a second look in line with modern day development of the law and social circumstances… In our jurisdiction, it is my view that our customary law will (samansiw) provides a more reliable alternative to a deathbed testator. In the sense that case law has developed stated requirements of a valid customary law will thus, making the ascertainment of its validity easy to the courts.”[20]

In conclusion, by relying on a so-called donatio mortis causa as the basis for claiming sole ownership of the house, Mrs. M lost her appeal. By losing the appeal, she lost property that, by law, should have devolved onto her absolutely when Mr. M died. In the next section, the reasons for this assertion are discussed.

D: The legal effect of a couple owning property together as joint tenants

It will be recalled that in narrating the facts of the case, it emerged that Mr. and Mrs. M acquired the East Legon house together as joint owners. The land documents were in their joint names. From the facts, they left Ghana in 1982 and stayed in England till Mr. M died intestate (that is, without making a will) in 2009. They remained a married couple until Mr. M died. The question that arises is this: Since Mr. and Mrs. M bought and held the house jointly as a married couple, what is the position of the law regarding such joint ownership of property by spouses?

The issue regarding the legal significance and effect of the couple’s joint ownership of the house was not raised at the trial High Court. Neither was it raised in the Court of Appeal and the Supreme Court. It is submitted that had that issue been raised, it is very likely that Mrs. M would have had a favourable outcome. This is especially so as her plea of donatio mortis causa cut no ice with the two appellate courts.

a)    What is joint tenancy?

In land law, there are situations where two or more persons may own property together. This is known as ‘co-ownership.’ There are different types of co-ownership. Joint tenancy is one type of co-ownership. It refers to a situation where two or more people own property together. When one of them dies, the remaining person or persons (survivor or survivors) will take the property. This is known as the ‘right of survivorship.’

For property to be owned on a joint tenancy basis, the ‘four unities’ must be present. These are:

1.    Unity of possession - This means every joint tenant will be as much entitled to any part of the land as every other;

2.    Unity of title - Means every joint tenant’s title to the land derives from the same act or document;

3.    Unity of time – Means each joint tenant’s interest must be vested at the same time; and

4.    Unity of interest - Every joint tenant’s interest must be the same ‘in extent, interest and duration’, meaning no one tenant can act by himself to, for example, surrender a lease or give a notice.[21]

b)   The legal effect of a couple holding property as joint tenants

The opening words of the Supreme Court judgment read as follows:

“The appellant, Mrs. Salamatu Marbell, is the widow of Victor Adolphus Tsate
Marbell. The couple were the joint owners of House Number 29, Mensah Wood Street, East Legon.”

In simple terms, where a couple such as Mr. and Mrs. M acquire property together and put both of their names in the land document as owners of the property, each individual has an interest in it as a joint tenant. In that regard, there will be a right of survivorship. That means if either of them dies, the surviving spouse will take the property. The survivor will take the property whether the other spouse died intestate or not. But to be certain that the property was held on a joint tenancy, the court would have to determine whether the ‘four certainties’ were present.

In the case of Mr. and Mrs. M, the four certainties were present because there was:

•      Unity of possession – Both of them owned and possessed the East Legon property in their joint names while they lived in Ghana and for the entire period between 1982 and 2009 when Mr. M died.

•      Unity of title – They both derived their title from the same land document covering the property, which was in their joint names.

•       Unity of time – Both of them had their interest in the property vested at the same time, that is, when they bought the property.

•      Unity of interest – Both Mr. and Mrs. M’s interest in the property was same ‘in extent, interest and duration.’ That explains why in early 2008 when Mr. M realized his end was near and decided to put his earthly affairs in order, he gave the M brothers a piece of land in Accra. He likely foresaw the M brothers staking a claim to the East Legon house in his absence. That was why he decided to give them his own personal property in his lifetime.  

In all the circumstances, one could legitimately conclude that when Mr. M died, Mrs. M automatically became the sole owner of the East Legon house. In that wise, it is submitted that it was unnecessary for her to apply for L/A before vesting the property in herself. The property vested in her as the sole owner automatically. If the land was registered, what Mrs. M had to do was to inform the Land Registration Division of the Lands Commission about Mr. M’s death (with supporting evidence) for the necessary changes to be made in their official records to show that Mrs. M was now the sole owner.

Unfortunately, she rather chose to apply for L/A to enable her vest the already vested property in herself. As it turned out, it was the application for L/A that triggered the legal tussle between her and the M brothers. The trial High Court gave judgment for Mrs. M all right, but it was premised on the ill-fated donatio mortis causa which both the Court of Appeal and Supreme Court held was inapplicable to the case. It is unfortunate that this aspect of land law was not raised at all in the trial High Court, Court of Appeal and the Supreme Court. Of it had been raised, or if any of the appellate courts had adverted its mind to it, Mrs. M would not have lost one-half of property that was legitimately hers. Mr. M's intention of saving the house for Mrs. M’s sole future use and enjoyment did not materialize. Mr. M must be a disappointed man in his grave.

E: Conclusion

As Hayfron-Benjamin, J said (albeit obiter) in the case of Yeboah v Yeboah,[22]

“If a wife by contributing to the acquisition of the matrimonial home or any other property becomes a joint owner with her husband, then by the application of the doctrine of survivorship, she becomes the sole owner in the event of her husband predeceasing her. The rights which the family have hitherto claimed in the estate of the deceased's husband would have to be re-examined accordingly in order to ascertain more carefully what forms part of that estate. In such circumstances the matrimonial home would not form part of the estate of the deceased.”