Common law - Application - Will made in Ghana - Common law rules on accumulations and perpetuities applicable to wills made under Wills Act but not to wills made under customary law - Courts Act 1971 (Act 372) ss 49(2) and 111(2) & (4) - Wills Act (Act 360) - Law of Property Act 1925 (15 16 Geo 5) ss 161, 164(1) & (2).

Section 49(2) rule 2 of the Courts Act 1971 (Act 372) provides:

In the absence of any intention to the contrary the law applicable to any issue arising out of the devolution of a person’s estate shall be the personal law of that person.”

Section 111(2) and (4) also provides:

“(2) Until provision is otherwise made by law, sections ... 161, 164(1) and (2) ... of the Law of Property Act, 1925 ... shall apply in Ghana subject to such verbal amendments, not affecting substance, as may be necessary to enable those sections to be conveniently applied in Ghana.

(4) The Statutes of England referred to in sub-sections (1) and (2) of this section shall be treated as if they form part of the common law, prevailing over any rule thereof other than a rule of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application.”

In his will the testator bequeathed and devised all his assets to his niece, Asantewaa “and after her death to pass to her descendants”. The plaintiffs, children of the testator, brought an action in the High Court, seeking a declaration that the gifts offended the rule against perpetuities since the descendants of Asantewaa born twenty-one years from the death of the testator or born after the death of all beings living at the death of the testator would benefit. They contended also that the disposition being a class gift, was null and void for the uncertainty of the number of beneficiaries and also sinned against the rules on accumulations and inalienabilities. The defendants contended that the rules on perpetuities, accumulations and inalienability did not apply to Ghana; that the personal law of the testator, i.e. customary law, applied and that in Akan customary law the gift to Asantewa was valid. Alternatively they contended that even if those principles of English law applied the gifts were saved by the class-closing rule since, at the time of the late testator’s death, twenty-four descendants of Asantewaa were alive. The trial judge held that the rules against accumulation and perpetuities still applied in Ghana but that the personal law of the testator, which he held to be Kwahu-Akan customary law, was applicable. On appeal to the Court of Appeal by the plaintiffs,

Held - (1) Under section 49(1) of Act 372 the rules against accumulation and perpetuities applied to wills made under the Wills Act. Rule 2 of sub-section 49(1) of Act 372 applied only in the absence of any intention to the contrary on the part of the deceased. An election to make a will under the Wills Act (Act 360) could be said to be a clear unambiguous manifestation of such a contrary intention.

(2) Any rule of customary law relating to devolution of property and accepted to be of general application would take precedence over the rules against accumulation and perpetuities. The rules of customary law in respect of samansiw were of general application and by the provisions of sub-section (4) of section 111 of the Courts Act, the rules against accumulation and perpetuities could not prevail over them. Therefore in considering a will made under customary law, one could not import the English rules. Hagan v Ackom DC (Land) ’38-’47, 26 distinguished.

Cases referred to:

Andrews v Partington (1791) 3 Bro CC 401, [1775-1802] 2 All ER Rep 209, 51 Digest (Reissue) 28.

Hagan v Ackom DC (Land) ’38-’47, 26

Sey v Sey [1963] 2 GLR 220, SC.

APPEAL from the judgment of the High Court.

E D Kom (with him Charles Hayibor) for the appellants.

Chinbuah for the respondents.

KPEGAH JSC. On the 5th day of September 1987, the late Mr Patrick Kwaku Anim-Addo made a will in which he provided as follows:

“I appoint Mrs Addae-Mensah alias Nana Abena Biama as one of Executors to administer my interest in the company of Ghana Textile Manufacturing Company Limited and pay the benefits, profits to Abena Asantewaa my niece in her life time and after her death should pass on to the descendants of her children.

I give and bequeath all my trinkets (gold) to my niece Abena Asantewaa and after her death to pass to her descendants.

I appoint Yaw Asirifi and Gideon Nyarku to run Kwamin Trading Company Limited as Directors and to administer the company and invest the benefits and profits for the descendants of Abena Asantewaa.

I devise and bequeath the residue of my real estate to my Trustees upon trust as follows: As to house: to collect rents and after paying annual rates, taxes etc., to invest the net rents in Government Bonds, and as to personal estate upon trust to call in and convert into money and if need arises and (sic) to invest for the benefit of the descendants of Abena Asantewaa.

I direct that any property of mine including investments which have been left out and not mentioned under this will including lands should pass on to Abena Asantewaa and after her death should pass on to her descendants.”

The children of the late Anim-Addo brought an action in the High Court, seeking a declaration that the devises “to the descendants of Abena Asantewaa” and “her descendants” are null and void as offending the rule against perpetuities since the descendants of Abena Asantewaa or to Abena Asantewaa born 21 years from the death of the testator or born after the death of all beings living at the death of the testator would benefit.

The plaintiffs also contended that the dispositions being a class gift, are null and void because of uncertainty of the number of beneficiaries under the will. The plaintiffs’ case was also founded on the grounds that the dispositions sin against the rules on accumulations and inalienabilities.

The plaintiffs therefore endorsed on their writ of summons a claim for the following reliefs:

“(a) an order of injunction restraining the first four defendants from granting vesting assent in respect of properties complained of;

(b) a declaration that the bequests are null and void;

(c) an order for account of all rents and profits accruing from these properties.”

The cumulative effect of all these is that if the dispositions are null and void then the late Anim-Addo died intestate and his estate must be distributed in accordance with PNDCL 111, which will benefit the children with a portion of their father’s estate.

The defendants, in resisting the claim of the plaintiffs, denied that the dispositions in the will sin against the rules on perpetuities, accumulations and inalienability. Their contention is that these rules do not apply to Ghana and that it is the personal law of the late Anim-Addo, that is “Kwahu/Akan customary law”, which applied. They took the argument to its logical conclusion by contending that in “Kwahu/Akan customary law” a bequest to a female and her descendants is a gift to the family she originates; and a gift to a family cannot offend the rules against perpetuities which is a principle of English Law.

The defendants further contended that even if these principles of English Law are held to be applicable and the dispositions are held to be class gifts, the class-closing rule enunciated in the case of Andrews v Partington (1791) 3 Bro CC 401 applied since at the time of the late Anim-Addo’s death, twenty-four descendants of Abena Asantewaa were alive. The rule in Andrews v Partington is that a numerically uncertain class of beneficiaries normally closes when the first member of the class becomes entitled to his share, so that the class closes as soon as the first share vests in possession. Anybody born subsequently cannot enter the class, although any potential member of the class already in being is included.

The case was contested on purely legal arguments. No evidence was led by either side. Perhaps the most important question one has to answer in this appeal is whether the rules against perpetuities, accumulations and inalienability do apply in Ghana; if yes, the extent of their application. The learned trial judge after an exhaustive examination of relevant legislative provisions properly, in my view, concluded that “the rules against perpetuities and accumulations are applicable to Ghana”. Section 111(1) and (2) of Act 372 makes applicable in Ghana certain English statues of general application. For the purposes of this case, section 111(2) provides:

His Lordship referred to the section above.

Section 161(1) of the Law of Property Act 1925 abolishes the double possibility rule which prohibits a life interest to an unborn child or other issue of an unborn person. The abolition of the double possibility rule is in the words of the section, “without prejudice to any other rule relating to perpetuities”. Section 164 provides general restrictions on accumulation of income; sub-section (1) states:

“No person may by any instrument or otherwise, settle or dispose of any property in such manner that the income thereof shall, save as hereinafter mentioned be wholly or partially accumulated for any longer than one of the following...”

Four exceptions are created by the sub-section; none of these is applicable to the instant case. The learned trial judge therefore has ample legislative justification for saying that the rules against accumulation and perpetuities are still applicable to Ghana.

In his effort to answer the question whether these rules are applicable to the instant case, the learned trial judge held the view that rule 2 of section 49(2) of the Courts Act 1971 (Act 372) has an overriding effect and therefore the personal law of the testator, which he held to be “Kwahu/Akan customary law”, is applicable.

This is what rule 2 says:

His Lordship referred to the rule above.

“Personal Law” in this context means the rules of customary law to which that person is subject.

Section 49(1) itself states in no uncertain terms that the rules are “subject to the provision of this Act”, that is Act 372; and this should include section 111 which makes the rules against perpetuities and accumulation applicable to Ghana. The section also makes the rules “subject to the provisions of ... any other enactment”. The words “any other enactment” within our context must be referable to the Wills Act.

There are two types of wills known to our laws, a will made under the Wills Act (Act 360), and what is often referred to as a nuncupative will or samansiw. There is one incidence which is common to both types of wills: anybody who makes any of them and dies is said to have died testate in so far as the bequests covered are concerned. A samansiw is therefore a customary process which permits a person to die testate. It has its own attributes as to formal validity; and possibly, if one is minded to carry the comparison further, as to essential validity. The question I would like to ask, and it is crucial in this case, is whether samansiw with its own customary peculiarities can ever be said to have been made by a testator intending English rules on accumulation and perpetuities to be applied? To put the question simply, but perhaps more elegantly, is samansiw subject to the rules against accumulation and perpetuities? If it is not, as I tend to accept, to which kind of will does section 111 of Act 372 make the rules applicable?

Before attempting an answer I would like to refer to sub-section (4) of section 111 of Act 372. This is what it states:

“The Statutes of England referred to in sub-sections (1) and (2) of this section shall be treated as if they form part of the common law, prevailing over any rule thereof other than a rule of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application.”(Emphasis mine.)

My understanding of the above provision is that any rule of customary law relating to devolution of property, which said law is accepted to be of general application will take precedence over the rules against accumulation and perpetuities made applicable to Ghana by section 111(1) of Act 372.

I think one can safely, and maybe confidently, say that the rules of customary law in respect of samansiw are of general application and by the provisions of sub-section (4), the rules against accumulation and perpetuities cannot prevail over them. In other words when one is considering a will made under customary law, one cannot import the English rules.

The question may again be posed: if a will made under customary law is insulated by sub-section (4) of section 111 of Act 372 from the effects of the perpetuities and accumulation rules made applicable to this country by sub-section (2) of the same section 111, to which other type of will must they be applicable? The answer to me is obvious - a will made under the Wills Act (Act 360). In this wise, may I say that rule 2 of sub-section 49(1) of Act 372 is not a peremptory provision. It applies only “in the absence of any intention to the contrary” on the part of the deceased. To me, an election to make a will under the Wills Act (Act 360) can be said to be a clear unambiguous manifestation of such a contrary intention.

It is also important to remember that rule 2 of section 49(1) of Act 372 relied upon by the learned trial judge is subject to the provisions of section 111 (2) of the same Act which retains the English rules against perpetuities and accumulation.

Two cases, namely, Hagan v Ackom DC (Land) ’38-’47, 26 and Sey v Sey [1963] 2 GLR 220, were relied upon to support the submission that since under customary law land can be held in perpetuity, a devise made under the Wills Act cannot be void on grounds of perpetuity. The quickest answer is that Hagan v Ackom (supra) was decided before the Law of Property Act 1925 applied in Ghana and the two cases were decided before the Courts Act 1971, (Act 372). In Hagan v Ackom (supra) the devise was as follows:

“Unto and to the use of” [ABC] “and their heirs and Successors in title absolutely for ever to use as family house according to Fanti customary Law.” (Emphasis mine.)

In his judgment, Doorly J said:

“That devise attempts to create a perpetuity which would be bad in English law, but it is settled law that land held by native tenure in the Gold Coast is subject to the Customary Law of the Colony and the devise in perpetuity is good.”

I have no problem with the conclusion reached in this case. The cardinal rule in the construction of a will is that effect must be given to the intention of the testator as expressed in the will. In Hagan v Ackom (supra) the testator expressly stated that the house was to be used “as family house according to Fanti customary law”. The court was only giving effect to the intention of the testator in applying Fanti Customary law in construing the will. I do not think this case is authority for the proposition that in the construction of wills in Ghana, customary law can be imported.

I had tried earlier to demonstrate the absurdity of such a submission when the rule against perpetuities and accumulation are applicable to us. The validity of such a submission can be maintained only if the rules against perpetuities and accumulation are not applicable in this jurisdiction at all. Admittedly, these rules are applicable. If they are not applicable to wills made under the Wills Act (Act 360), are they rather applicable to customary law wills, namely samansiw?

I hold the view that the will of the late Mr Patrick Anim-Addo is subject to the rules against accumulation and perpetuities, as I cannot conceive these rules being applied rather to wills under customary law.

Mr Chinbuah, learned counsel for the respondents contended that if the rule against perpetuities is held to be applicable, the class-closing rule will apply. I do not think so. The devises are clearly seeking to create interests in perpetuity.

For the views so far expressed, I would allow the appeal, set aside the judgment of the court below and grant the reliefs of the appellants in terms of the endorsement on their writ.

AMPIAH JSC. I agree.

OFORI-BOATENG JA. I also agree.

Appeal allowed.

S Kwami Tetteh, Legal Practitioner.