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JUDGMENT
BENIN, JA.:
The late William Bart-Plange
(hereinafter called the deceased) who died in 21:3:87
left behind a will, probate of which was taken in May,
1987 by the defendants/appellants herein, who are among
the children left by the deceased. The 2nd and 3rd
plaintiffs/respondent are also children of the deceased.
But it is in dispute whether the 1st
plaintiff/respondents was ever married to the deceased,
and if so whether she was a wife of the deceased at the
time of his death. The 2nd plaintiff who was not catered
for by the deceased in his will was a student at the
time of his father’s death. The 3rd plaintiff, a cripple
and mentally retarded child from birth, was also not
catered for, not to mention the 1st plaintiff. Hence
this action by the plaintiffs whereby they sought an
order to make provision under the Will of the ……deceased
for the plaintiffs……. for whom the deceased testator
made no provision.”
Besides this relief,
the plaintiffs also averred that the devises made to the
2nd defendant under the Will were null and void in so
far as the beneficiary was also an attesting witness to
the Will. This is contained in paragraph 8 of the
statement of claim. This averment was denied and
plaintiffs were put to strict proof by the defendants.
It was the defence
case, as pleaded, that the 1st plaintiff was never
married to the deceased, and that she only lived in
concubinage with him. In short she was not a wife so as
to qualify as a dependant within the meaning of section
13 of the Wills Act, 1971 (Act 360) (hereinafter
referred to as the Act). It was also contended at the
trial that since both the 2nd and 3rd plaintiffs were
over 18 years at the time deceased died, they did not
qualify as a “child” under S. 13(1) of the Wills Act,
The trial judge found
as a fact that the 1st plaintiff was a wife who was
lawfully married by custom to the deceased. The Court
upheld the contention that the devises to the 2nd
defendant were contrary to S. 3(4) of the Act and thus
falls into residue under S.8 (1) of the Act. It also
held intestacy under the Intestate Succession Law, 1985
(PNDCL 111) applied to the residuary estate. The Court,
having found that the 2nd plaintiff was a student and
the 3rd plaintiff was physically and mentally
handicapped, held they were dependants of the deceased
who would suffer hardship if no provision was made for
them. So the Court upheld the plaintiff’s claim and made
certain orders in their favour including costs of
¢50,000.00.
It was against this
judgment and the consequential orders that the trial
court made that the defendants appealed to this court on
these grounds:
a. That the judgment is
against the weight of evidence adduced.
b. That the learned
Acting Judge misdirected herself in law on the provision
of section 13 of the Wills Act by taking into
consideration matters which should be excluded and by
applying the Intestate Succession Law, PNDCL 111 to the
action which was not permissible in this case.
c. The learned Acting
Judge was biased and thereby failed to exercise her
discretion in accordance with judicial principles.
d. The costs of ¢50,000
awarded to the plaintiffs was excessive and not in
accordance with the spirit and letter of section 13 of
the Wills Act.
Additional grounds of
appeal were filed. I shall take only those grounds
argued by Counsel for the appellants.
Ground (a) Counsel
for the appellants dwelt largely on the marital
relationship that existed between the 1st plaintiff and
the deceased. Counsel concedes that they were a married
couple for some time but his contention is that events
that existed prior to the demise of the testator clearly
showed the marriage was at an end. There was
unchallenged and unrebutted evidence that the couple
were customarily married in 1950. Counsel concedes that
no steps were taken “to formally dissolve the marriage”
but they lived apart without anything to show they were
married at all. But in my view, the fact that they could
not patch up their differences whilst they lived apart
did not mean the marriage was dissolved. It is clear
that the 1st plaintiff always cherished the belief the
husband would return to the marriage just as he did in
1963 or thereabouts after eight year separation. And
when the deceased deserted the 1st plaintiff in 1955 he
never dissolved the marriage. After eight years he
returned to live together with the 1st plaintiff during
which period they had about five children before he
deserted her again. A line of conduct had been
established. Hence the 1st plaintiff’s hope he would
come back to her and that explains the steps she took to
bring the husband back, though without success. There
was evidence, which was unrebutted, that it was the
deceased himself who allowed the 1st plaintiff to go and
live in her mother’s house for some time, except that he
would not allow her to return into the matrimonial home
for having over stayed. Thus the initial decision for
her to stay away from the matrimonial home was mutual.
And thus however long that lasted; it did not amount to
dissolution of the marriage especially when no steps
were taken in that direction. The 1st plaintiff tried to
go back to the matrimonial home but the deceased refused
her that right for no just reason. In view of his
previous conduct, the 1st plaintiff would be justified
in waiting for him to return at his pleasure without
compromising her status as a person married to the
deceased. However long the separation might be, it would
not ripen into dissolution of the marriage unless the
couple clearly intended it to be so and did acts
inconsistent with a marriage relationship, for instance
where the woman in particular re-marries or goes to live
with another man elsewhere and the husband does not
complain. That was not the position here. I therefore
agree with the trial court’s conclusion that the
marriage was still subsisting at the time deceased
passed away.
Next, Counsel submitted
that the plaintiffs were not dependants of the deceased
so as to qualify for consideration under S,13(1) of the
Act, which provides that:
a. If, upon application
being made, not later than three years from the date
upon which probate of the will is granted, the High
Court is of the opinion that a testator has not made
reasonable provision whether during his lifetime or by
his will, for the maintenance of any father, mother,
spouse or child under 18 years of age of the testator,
and that hardship will thereby be caused, the High Court
may, taking account of all relevant circumstances,
notwithstanding the provision of the will, make
reasonable provision for the needs of such father,
mother, spouse or child out of the estate of the
deceased.
It is Counsel’s
submission that to qualify as a dependant, “the
particular individual apart from being either a parent
or a child or a spouse must have been dependent
substantially on the testator for his sustenance during
the lifetime of the testator. The contribution of the
testator must be regular and substantial to make an
application qualify under section 13 of the Wills Act.”
The Act does not define
when a dependency may arise. But I think it’d not be
wrong to suggest that in the case of a child, if the
evidence establishes that he/she relies on his parent,
wholly or in part, for his/her means of subsistence,
then a dependency will have been established. But in the
case of a father or mother of a deceased, the evidence
must establish that they were, or either of them was,
substantially dependent on the deceased testator. Gifts
given to one’s parent/s occasionally will not qualify
the parent/s as dependant/s. In the case of a spouse, I
think the court will have to examine the extent of
his/her earnings, earning capacity and contribution to
the upkeep and maintenance of the other. If the
surviving spouse was contributing more than the deceased
or ever in equal shares with the deceased, in my view a
dependency will not arise.
In this case, the
evidence was that whilst they lived together, it was the
deceased who maintained the 1st plaintiff and the
children. When the separation or desertion, if one
chooses to call it so, occurred, the deceased did not
regularly maintain the 1st plaintiff. However he
continued to pay for the 2nd plaintiff’s education as
well as for 3rd plaintiff’s medication. Besides these,
from time to time, as and when the deceased liked, he
gave them money through one of their daughters. With
these facts, Counsel submission was that the 1st
plaintiff was not substantially dependent on the
testator. She failed to prove any hardship. Counsel
urged the Court to adopt the reasoning in Jelley vs.
IIIiffe (1981)2 ALL E.R 29 at p. 36 that the court
should compare what each spouse was contributing, and if
the applicant was contributing more, or even in equal
shares as the testator, then there is no dependency.
In this case the
evidence is that the deceased wholly maintained the 2nd
and 3rd plaintiffs. It was the maintenance allowance to
the 1st plaintiff that was irregularly paid. But the
evidence on record is that it was the deceased himself
who refused to allow the 1st plaintiff to return to the
matrimonial home, in other words, he himself created the
situation that enabled him to shirk his matrimonial
responsibility to the 1st plaintiff. In a situation like
this, the law will not permit him to say because he was
not maintaining the 1st plaintiff regularly the latter
was not a dependant. In the words of Lord Robson in New
Monckton Collieries, Ltd. v. Keeling (1911) A.C. 648 at
page 662: “The wife does not necessarily cease to be
dependant on the husband simply because the latter
refuses to recognise or perform his obligation and
succeeds in throwing the burden of her maintenance for
the time being on the wife’s parents or friend, or on
the state. They may fulfil the husband’s duty for him,
but the wife’s legal dependence is still on him and not
on them and his death deprives her of the proper stay
and support on which alone she is entitled to rely. The
circumstances, however, are wholly different where the
wife herself has for years clearly asserted and
definitely maintained her complete independence of her
husband.”
In my view, the
deceased, having created the situation that enabled him
to abandon his responsibility in large measure, was not
legally absolved. He would be responsible as though the
parties were living together. The 1st plaintiff who was
a pensioner with no monthly pension and no significant
source of income was dependent on the husband, before
the separation and I hold he continued to be responsible
for her.
Unfortunately, both 2nd
and 3rd plaintiffs were more than 18 years old at the
time the testator died. And so by S. 13(1) of the Act
they do not qualify as dependants, however much pain or
grief one has for them, especially the 3rd plaintiff. I
say this without relish, but that is what the
legislation says, there is no ambiguity about it. The
rule is that if the language of a statute is clear, it
must be enforced however harsh the result may appear to
be. As Tindal C.J. put it in the case of WARBURTON v.
LOVELAND (1831)2 D & CL. (H.L.) 480 at p. 489: “Where
the language of an Act is clear and explicit we must
give effect to it whatever may be the consequences, for
in that case the words of the statute speak the
intention of the legislature.” The law maker clearly
intended the natural age of a child to prevail. I
believe this case brings to the fore the urgent need to
amend this law so that certain handicapped and dependant
children, however old they may be, will benefit form
their parent’s estate. But so long as the law stands,
the court is bound to give effect to it notwithstanding
the apparent hardship it may cause; so the case of Quaye
v. Quarcoo (1991)2 GLR 437 was rightly decided by the
High Court. However, in this case one even wonders why
the 2nd and 3rd plaintiffs have not taken advantage of
those properties devised to the 2nd defendant which have
fallen into residue in order to claim a share of the
estate by virtue of PNDCL 111.
Let me return to the
dependency of the 1st defendant. It is an undisputed
fact that since the death of the testator the
responsibility for the upkeep and maintenance of the 2nd
and 3rd plaintiffs has fallen on her, with the help of
some family members. It is clear that this is causing
hardship to her especially in view of the fact that 3rd
plaintiff is permanently incapacitated physically and
mentally and has to be on medication throughout his
life. These factors will have to be considered in making
a reasonable provision to the 1st plaintiff. It is clear
that the statue requires that hardships be established
by an applicant. As a question of fact hardship, I
think, would include any matter of appreciation
detriment whether financial, personal, physical, social
or otherwise. The peculiar facts of each case will have
to be considered.
Ground (b) This ground
which was next argued reads: “That the trial Judge erred
when she ordered that all rents obtainable from the
house known as number C142/4 Kokomlemle, which was a
specific valid devise be applied as to reasonable
maintenance of the 1st plaintiff herself, and the 3rd
plaintiff—the cripple son of the testator— for the rest
of their respective natural life when there were
sufficient funds in the residue that could be used to
give reasonable maintenance to 1st and 3rd plaintiffs.”
I’ll first refer to the
trial court’s findings and then the orders that were
made to see whether the orders are supportable in law.
The court said: “Having declared that the beneficial
disposition in paragraphs 2(b) and 2(c) of the Will of
the late, William Bart-Plange are void, and have
therefore lapsed into residue under section 3(4) of the
………Act………..the Court hereby further declares that the
plaintiffs are entitled to the enjoyment of these
dispositions together with the defendants and others in
accordance with the provision of section 2(2) of PNDC
Law 111. I therefore order that a refund of all expenses
and education of the 2nd plaintiff in Vocational School
into which the testator put her before his death be
borne by the estate of the testator.”
In respect of the 3rd
plaintiff, the Court considered his physical and mental
disablilities from birth, and related matters and
expenses and ordered that “under the provision of
section 13(1) of the Wills Act, 1971……all the rents
obtainable from the house known as No. 142/4 Kokomlemle
be paid over to the Chief Registrar of the Court as
Trustee, for the reasonable maintenance of the 1st
plaintiff herself and the 3rd plaintiff……..for the rest
of their respective natural lives.”
This property, No
C.142/4 Kokomlemle was specifically devised to the 1st
defendant, which devise was held valid by the Court. It
was the appellants’ Counsel’s view that in view of the
fact that some of the devised properties had lapsed and
fallen into residue, the trial court ought to have made
the awards from the residue. He cited for his support
the High Court case of IN RE ALLOTEY (decd.), ALLOTEY
and Another v. OTOO and another (1981) GLR 393. That
decision followed the English case of IN RE SIMSON
(decd.), SIMON v. NATIONAL PROVINCIAL BANK LTD. (1950) 1
ch 38 where the court held that “in a situation where
the court considered to make provision to dependants of
a testator, the residue is the normal and obvious place
from which provision is made”. But the court did not
hesitate to point out that it is not a rule of law, it
was only a practice that was being followed by the
courts. So it is only an ideal situation to follow by
applying the residue to such payments, as the High Court
did in case (supra) rightly stated. There is no such
specific law in place that an award under S. 13 of the
Act must be made from the residue, if any. Indeed it
becomes a charge on the entire estate of the testator.
But the court, in its avowed aim of doing what is
reasonable and just in the circumstances of any case,
would not deprive specific legatees or beneficiaries
some other property or fund which could be applied to
satisfy an award made under section 13(1) of the Act. So
in my view since some of the properties have fallen into
residue, it is those ones which must first be applied to
satisfy the award. Again, since there is no residuary
clause in the Will, it follows that the residuary
properties have fallen under intestacy to be distributed
in accordance with the provisions of PNDCL 111. Thus it
could not be said now that the testator has not catered
for the plaintiffs. I would think therefore that since
the plaintiffs, among other persons including the
defendants, have a share in the residuary estate by law,
the court would have to determine whether their share
would be sufficient to satisfy the genuine and
reasonable needs of the plaintiffs. If it would, then
the matter should rest there. If not, then the testator
would be said to have made no reasonable provision for
them within the meaning of S. 13(1) of the Act. In such
a situation, the Court would be justified in making
provision from the specific devise/s.
In my view, therefore,
the trial court having found that some of the properties
devised by the testator had become void and thus fallen
into residue and had become subject to PNDCL 111, the
order to pay compensation to the plaintiffs should have
fallen on the residue, to begin with. It was not right
in the circumstances to side-step the residuary estate
in which plaintiffs have a legal right, and attach the
specific property devised to the 1st defendant. To this
extent only I’d allow the appeal which otherwise I
dismiss.
A. A. BENIN.
JUSTICE OF APPEAL
TWUMASI, JA.:
This is an appeal
against the judgment of the High Court, Accra, delivered
on the 24th March 1989 by the which the trial judge
ordered that all rents accruing from a house which a
testator had devised to his favourite daughter be
appropriated as 'reasonable provision' for the 1st and
3rd plaintiffs because testator has made no provision
for them in his will. The 1st plaintiff was the wife of
the testator. The 3rd was a son to the testator. The
defendants were his daughters who benefited under the
will. As the facts of the case unfold it would be found
that specific bequests were made but some were by law
rendered void and fell into residue.
The house affected by
the court's order did not suffer the fate of falling
into the residue. The 1st and 2nd defendants being
aggrieved by this order have appealed to this court.
Four grounds of appeal were filed on the 4th July 1989
and on the 30th June 1999 an additional ground was
filed. Going by the written submissions, however, only
two of the grounds survived the hearing of the appeal.
They were:
a. That the judgment
is against the weight of the evidence.
b. That the trial Judge
erred when she ordered that all rents obtainable from
the house known as house number C. 142/4 Kokomlemle
which was specific valid device be applied as to
reasonable maintenance of the 1st Plaintiff herself and
the 3rd plaintiff, the cripple son of the testator, for
the rest of their respective natural life when there
were sufficient funds in the residue that could be used
to give reasonable maintenance to the 1st and 3rd
plaintiff.
The pith of the
submission by Counsel for the defendants was, as far as
the 1st plaintiff was concerned, that although the
testator conceded her status as a wife, she had been
guilty of desertion for ten years and consequently had
by her own conduct terminated the marriage.
The facts of the case
showed that a man by the name William Bart-Plange died
on the 21st March 1987 in Accra survived by seven
children. A woman by the name Beatrice Akweley Quaynor
bore him four out of the seven children. In fact the
said Beatrice bore him seven children but three out of
the lot predeceased him. The surviving children by
Beatrice were: Peter Bart-Plange, James Kpakpo
Bart-Plange, Mary Bart-Plange and Grace Bart-Plange.
The three other
surviving children were: Mrs. Humphrey Bonsu, Janet
Bart-Plange and William Allottey Bart-Plange. By all
accounts this man was an accomplished businessman in the
well-known 'Contractor’ business in this country. In
terms of material wealth he could boast of not less than
four self-acquired houses all constructed in the city of
Accra. The evidence on record further showed that the
death of William Bart-Plange was preceded by a
protracted terminal ailment which necessitated
hospitalization. But despite this calamity which all we
mortals are heir to, William enjoyed the requisite
degree of physical and mental capacities which enabled
him to contemplate to and in deed did distribute his
worldly possessions by a testamentary disposition—a
Will. The highlights of the Will make interesting
reading but at the same time teach significant moral
lessons. The testator gave two of the houses No.
C.502/1A Nsawam road Accra and No. 142/4 Kokomlemle
Accra to a most-favoured daughter, Mrs. Agnes
Humphrey-Bonsu and explained that that daughter had
satisfactorily fulfilled her filial obligations to him.
Next he devised House No. 444/4, Accra New Town and a
share in, and absolute control of house No. 348/1A
Korle Gonno, Accra, to another loving daughter, Janet
Bart-Plange. These beneficiaries were children born to
the testator by women other than Beatrice Akweley
Quaynor. The testator then in exercise of his
prerogative invested Janet with the power to give quit
orders to any of the surviving children or other
occupants of the said house if any of them misbehaved
and in his own words in the Will "especially William
Bart-Plange who drinks like a fish and does what he
likes". This order was issued by the testator after
stating that he had .given the house to Janet and the
other children Robert Allotey Bart-Plange and William
Bart-Plange. Fortunately or unfortunately for the
testator or the beneficiaries, however, these
dispositions were foredoomed to failure for they
contravened the provisions of section 3(4) of the Wills
Act, 1971 (Act 360). The testator so much loved and
trusted Janet that he asked her to attest the execution
of the Will, contrary to the statutory mandatory
injunction under section 3(4) of the Wills Act which
provides that:
3(4) Any beneficial
disposition of or affecting any property other than
charges or directions for the payment of any debt, given
by a will to a person who attests the execution of that
will, shall be void unless the will is duly executed
without his attestation and without that of any other
such person.
For the validity of a
will section 2(3) of the Wills Act, 1971 (Act 360)
insists upon a minimum of two attesting witnesses. They
could be more in which case, as the Court of Appeal held
in Norga v. Kadjijatu (1984-86) 1 GLR 443 (holding 2),
where there were more than two witnesses and the
attestation of one happened to be defective whereas the
other two remained valid the will was valid. Whether my
view of this case is right or wrong is inconsequential
because in the instant case only Janet and one other
signed the will. What made the disposition a forlorn
hope is that it is not an example of a disposition of a
charge or direction given to Janet to pay any debt. The
disposition to Janet therefore became void ex vigore
legis and by virtue of the provisions of section 8 (1)
of the Wills Act, 1971 (Act 360) the affected properties
fell into residue and since the testator did not
incorporate a residuary clause to cater for such
eventuality the properties fell into intestacy to be
governed by the Intestate Succession Law 1985 (PNDCL
111). In such a case the executors appointed under the
will are treated as trustees charged with the
responsibility of distributing the said properties under
the aforementioned law: see Afanie II v. Quarcoo (1992)
2 GLR 561 approving the case Re Skeats, Thain v. Gibbs
(1936) 2 ALL ER 298.
This case law finds
statutory backing right within the Wills Act, 1971 (Act
360) itself under section 7(6) of which it is provided
that:
"7(6) residuary
disposition shall include property comprised in lapsed
and void dispositions, unless a contrary intention
appears from the will".
The plain meaning of
this provision insofar as it affects the instant case is
that, a void or lapsed disposition falls into intestancy
where the will does not contain a residuary clause. I
would revisit this issue in due course. In the meantime
I would proceed with the factual analysis of the case
before the trial court. As I have already hinted in the
introductory of this judgment Beatrice Akweley Quaynor
and all her four surviving children namely were
callously rebuffed and disowned by the testator. So
implacable was the testator's disgust for Beatrice and
these children of his that not even the misfortune of
James Kpakpo Bart-Plange being mentally and physically
disabled could assuage his bitter aversion. In his will
tendered as Exhibit A the testator referred to somebody
as his ex-wife:
It is stated therein as
follows:
"In making this will I
do not want any quarrel or misunderstanding between my
children and my ex-wife or my family, generally".
That word 'ex-wife' was
an apparent reference to Beatrice Akweley Quaynor the
1st plaintiff. Predictably enough, this naked act of
discrimination inflicted upon the children of Beatrice
Akweley Quaynor jointly with her children triggered off
this litigation. Obviously, the testator harboured the
ill-intention to vent his anger upon the children and
their mother. This explains why on the 9th September
1987 the plaintiffs caused a writ of summons to be
issued claiming the following relief:
"An order to make
provision under the will of the late William Bart-Plange
(deceased) for the plaintiffs as the wife and children
respectively of the deceased and for whom the deceased
testator made no provision."
The action was
instituted against Mrs. Bonsu as 1st defendant and
Janet Bart-Plange as 2nd defendant. It was a joint
action by Beatrice Akweley Quaynor as 1st plaintiff,
Grace Bart-Plange as 2nd plaintiff and James Kpakpo
Bart-Plange as the 3rd (with the 1st plaintiff as his
next friend). They invoked the provisions of section
13(1) of the Wills Act, 1971 (Act 360) which provides
that:
"13(1) if upon an
application being made, not later than three years from
the date upon which probate of the will is granted, the
High Court is of the opinion that a testator has not
made reasonable provision whether during his lifetime or
by his will, for the maintenance of any father, mother,
spouse or child under 18 years of age of the testator,
and that hardship will thereby be caused, the High Court
may, taking account of all relevant circumstances,
notwithstanding the provisions of the will, make
reasonable provision for the needs of such father,
mother, spouse or child out of the estate of the
deceased.
(2) payment of a lump
sum, whether immediate or deferred, or grant of an
annuity or a series of payment;
(b) grant of an estate
or interest in immovable property for life or any lesser
period."
In their statement of
claim the 1st plaintiff claimed to be the surviving
widow of the testator. This claim was denied by the
defendants who averred in their statement of defense
that the 1st plaintiff could not claim the status of a
wife because, as they contended, she was a concubine to
the testator. At the trial, however, the defendants when
confronted with overwhelming evidence which tended to
establish a lawful customary marriage between the 1st
plaintiff and the testator, shifted their position by an
allegation that the 1st plaintiff led evidence to prove
that the late William Bart-Plange married her under the
customary law way back in 1950 and that her marital
status remained unchanged ever since till the death of
William Bart-Plange. She admitted that the marriage life
was not trouble free throughout the period because she
could recall a period of bitter misunderstanding between
the couple which threatened the very foundation of the
marriage but those gloomy clouds were weathered away by
the intervention of their respective families. On a
second sinister event the late William had grown so
incensed and angered by the fact that Beatrice had
overstayed permission granted her to attend to her late
mother’s funeral.
William therefore
rebuffed Beatrice and would not like to see her any
longer despite all entreaties by Beatrice’s family. The
result was that for a period of ten years the couple
never co-habited. Nevertheless, there was unchallenged
evidence that the 1st plaintiff performed customary
rites assigned to widows upon the death of William
Bart-Plange. The learned trial judge accepted the
evidence and found that a valid customary marriage
subsisted between the late William Bart-Plange and the
1st plaintiff Beatrice, and cited the case of Asumah v.
Khair (1959) GLR 353 CA. This famous case decided by the
Court of Appeal and other numerous subsequent cases
including Quartey v. Martey (1959) GLR (Part II) 573 and
Re Sakitey’s Caveat (1962) 1 GRL 180 recognise the
existence of a valid customary marriage between a man
and a woman where it is proved that the man or his
family asked of the hand of the woman in marriage and
the request was accepted by evidence that the woman’s
family received gifts or drinks and money from the man’s
side; that even in certain cases a marriage is deemed to
have been in existence between a man and a woman if it
is established that upon the death of the man the woman
was permitted by the deceased’s family to attend the
funeral and she in fact performed the funeral rites
assigned only to surviving widows. The learned trial
judge preferred the 1st plaintiff’s version of the
controversy and found that the 1st plaintiff was
lawfully married to the testator at the time of the
latter’s death. Her findings on the facts were amply
supported by the unchallenged evidence on record. It
must be stressed that a strong prima facie case made by
a plaintiff, as it is in the instant case, cannot be
dislodged by the inconsistent defense put up by the
defendants, namely, shifting their case from the
concubinage to desertion:
See Odametey v. Cloucuh
and Another (1989-90) 1 GLR 14 SC. The testator
erroneously thought that the 1st plaintiff was no longer
his wife because of the long period of separation but
his family proved him wrong by allowing the woman to
perform customary rite assigned to widows. In my view
the testator was rather guilty of constructive
desertion. The learned judge therefore correctly applied
the cases of Hughes v. Hughes (1973) 2 GLR 342 and
Caveat By Clara Sackitey (1962) 1 GLR 180 on the legal
effect of separation that it does not constitute
dissolution though it may be a prelude to it. I need not
catalogue legal authorities to drive home the point that
there are special customary rites essential for the
valid dissolution of a customary marriage. The general
rule is the family of the woman must return to the
husband’s family something to symbolise the dissolution.
The custom differs from one ethnic group to the other in
the country. For example among the Frafras of Northern
Ghana it requires the return of “calabash” by the
woman’s family to the man: See Ginobuuro v. Kaba (1971)
2 GLR 416, and among the Akans the return of the “Tsir
Nsa” see Atta v. Annan (1975) 1 GLR 366. Counsel for the
defendants conceded that there was no evidence to
suggest that the testator himself took steps to formally
dissolve the marriage even though they were separated
for ten years before the testator breathed his last. As
counsel for the 1st plaintiff rightly responded, the 1st
plaintiff in the eyes of the law remained the wife of
the testator and this supported by case law: see Re
Caveat By Clara Sackitey (supra). There was unchallenged
evidence that attempts by the families of the parties at
reconciliation proved unsuccessful due to the testator’s
refusal to forgive the wife for overstaying the
permission given to her to attend her mother’s funeral.
There was no evidence that the 1st plaintiff remarried
during the period of separation but it is on record that
the testator had other women at his disposal who had
born him the other beneficiaries of his will. The
following extract from the cross-examination of 1st
plaintiff at page 36 of the record was interesting but
revealing.
Q. How long did the
funeral rites of your mother take
A. About two months
Q. When did you return
to your husband’s house (the marital home)
A. I was frequenting
the home—but when my husband told me not to come back to
the house I stayed away.
Q. Did you try to find
out when the testator told you not to come back to him
for co-habitation, his reason.
A. Yes I did. But he
told me he would come to call me when he felt the need
i.e. when he missed me.
Q. Did he come back to
call you before he died.
A. No. He did not come
back to call me before he died.
From the foregoing it
is clear that Counsel for the 1st plaintiff was
unquestionably right when he apportioned total blame to
the testator for the ten years separation. In Beckley v.
Beckley (1974) 1 GLR 393 Abban J (as he then was) held
that even where it where it was doubtful as to which of
the parties was guilty of separation, the law imposed a
duty upon the husband to continue with the maintenance
of the wife. This decision applied with even greater
force to the instant case. In his book “Law Of Testate
And Intestate Succession In Ghana” 1st edition P.225 the
learned author Justice Ollennu (of blessed memory) said:
“ So great is the
importance which customary law attaches to a man’s
liability to maintain his wife that his failure to
maintain her is one of the very few grounds upon which a
wife obtain divorce……….” (See Sarbah Fanti Customary Law
(1897) 44-45; D.A.L.C. pp 156-158.
In my view it is
precisely this customary rule of law to which the Wills
Act 1971 (Act 360) provides a much-needed statutory
backing under section 13(1). The principle is equally
applicable to Gas: See “Social Organisation Of The Ga
People” by Field pages 54-57. This legal responsibility
of a husband spans the entire lifetime of the woman. It
implies that the man must discharge this responsibility
either during his lifetime or after his death by his
will. My view of the law is that a man may do something
specially contingent e.g. establish a business for the
wife on the understanding that she maintain herself out
of the proceeds of the business or make a gift of some
property to his wife in similar vein. The question which
a court ought to pose when faced with any proceeding
under section 13(1) of Act 360 is: What provision for
the maintenance of his wife did the man make either
during his lifetime or by his will. If the court is
satisfied having regard to all the circumstances
including the financial standing in terms of property or
otherwise and the condition of the wife that the man did
make reasonable provision then, any application under
section 13(1) must be refused otherwise it must be
granted. If on the other hand the man maintained his
wife by reasonable payments of cash or goods in
installments during his lifetime then, in such case, he
is required to make reasonable provision in his will to
cater for continued payments out of his estate. The
instant case falls under the later category. The other
considerations that ought to be taken into account are a
(a) the needs of the 1st plaintiff (b) that hardship
would be caused to her if reasonable provision was
refused. The evidence on record was that since 1980 when
the 1st plaintiff received the sum of ¢12,000 as pension
and gratuity from her employers she never received any
monthly pension payments. It seems to me unquestionable
that the learned judge had before her sufficient
evidence to defend the exercise of her discretion in
favour of the 1st plaintiff that she was entitled to a
reasonable provision from the estate the testator. On
this issue I would apply the same test which Morton J
suggested in the English case of Restyler 1942 Ch 387 at
389 cited by Counsel for the appellant where the learned
judge said:
“I think that the court
has to find it was unreasonable on the part of the
testator to make no provision for the person in
question………”
This test was applied
in other English cases such as Re Pugh (1943) C 387 at
385. Re Inns (1947) 576 at 580-581 and Re Franks (1948)
Ch 62 at 64-65. These cases were cited by Counsel for
the appellant to assist the court and I found them
useful and feel grateful. Another case he cited which
again did not benefit him but assisted the court was the
English case of Jelley v Illife (1981) 2 All ER 29 where
the English Court of Appeal laid another test which in
its true perspective implied that the court in
determining the question of whether a spouse was a
dependant, the test was to ascertain the contributions
which each spouse made to the family budget and to
decide which of them weighed heavier than the other. In
this court one can think of a situation both spouses may
belong to the same lucrative profession. But the case
before this court does not pose this
contribution-balancing test. The relationship between
William Bart-Plange and the 1st plaintiff was that of a
prosperous businessman and a meager paid public servant
who eked out a living. The plight of low-income publish
servants of this country is a matter judicially noticed.
The scales therefore favour the 1st plaintiff even by
English case law test. But looking at our own situation,
our Wills Act 1971 (Act 360) section 13(1) gives the
court a very wide room to maneuver its discretion. One
important and relevant fact which weighed heavily on the
mind of the trial judge and rightly in my view was that
in his lifetime the testator himself realised that the
plaintiffs needed his help in their maintenance and in
fact he was doing something about it by way of
remittances except that they were irregular and
inadequate. There was therefore no reason why in his
will the testator on the false contention made by him
that the 1st plaintiff was no longer his wife he denied
her reasonable provision. Also important was the
unchallenged evidence by the 1st plaintiff that at the
inception of their marriage the testator had only one
house but he added three in quick succession to make
four while she also worked hard to bear him as many as
seven children. Ironically non of these facts did win
the sympathy of the testator to leave something for the
1st plaintiff. The trial judge was perfectly right in
interfering with the will.
The curtain now turns
on the 2nd plaintiff. There was unchallenged evidence
that the testator maintained and sponsored her at a
vocational school. The 1st plaintiff however claimed
that she continued with the maintenance and educational
sponsorship of the 2nd plaintiff after the death of the
testator. The learned trial judge therefore ordered that
the 1st plaintiff out of the estate of the testator In
fact by their statement of defense the defendants
admitted by their paragraph 13 thereof that their
deceased father maintained and looked after the 2nd and
3rd plaintiffs even during the period of separation of
their parents. The question obviously arises as to
whether arrears of maintenance of children are
recoverable. On this question I have studied two decided
cases of the High Court. The first is Sekyere vrs.
Hanson alias Akua Mercy (1974) 1 GLR 56 where the High
Court, Accra held that under section 8 of the
Maintenance of Children Act, 1965 (Act 297) such arrears
were not recoverable. The court held that the enactment
contemplated future, not past expenses in the form of
maintenance. In the second case Amartey v. Sraha (1976)
1 GLR 279 it was held also by the High Court Accra
differently constituted that under the said section 8 of
Act 279, arrears of maintenance were recoverable
provided there was proof of such expenses having been
made on a child. The Maintenance Of Children Act 1965
(Act 297) was repealed by The Maintenance Of Children
Decree, 1977 (SMCD 133) but the Decree retained the
provisions of section 8 of the Act under Part 2 thereof.
The decision in Amartey’s case, unlike the earlier case,
took cognizance of the obligation under customary law
that lay upon a man to maintain his child from birth to
the age of 21 as explained in numerous cases: See
Sirebour v. Dome (1962) GLR 82.
An important canon of
statutory construction is that it must take account of
existing laws especially the customary law on the
subject. However, whatever may be the desirability the
opinion of this court on this vexed question of law on
the status of arrears of maintenance raised by the two
seemingly conflicting views of the High Court, this
court is precluded from doing so simply because that
issue has not be raised in this appeal as the defendants
did not appeal against the order of the trial court and
I prefer to leave the point open. The claim of the 3rd
plaintiff provided the clearest archetype of the moral
dimension in exercise of judicial discretion. This
plaintiff suffers mental and physical disability from
birth yet strict compliance with the letter of section
13 (1) of the Will Act 1972 (Act 360) disqualifies him
from applying for a reasonable provision because the
statute covers children under 18 years of age which he
had passed at the date of the will. As Ampiah J (as he
then was) held in Quaye v. Quarcoo (1991) 2 GLR 437 even
though there was no age limit to a father, mother or
spouse who could apply for a reasonable provision under
section 13(1) of the Wills Act, 1971 (Act 360) such
limitation existed to a child and any one above eighteen
could not benefit. Counsel for the defendants relied on
this case and re-inforced his argument by quoting from a
passage in the recent book “The Law of Wills” by the
Hon. Justice Azu-Crabbe ex-Chief Justice of Ghana at
page 111: as follows:
“Unfortunately, the Act
makes no provision for a child who though above the age
of 18 years, is by reason of physical or mental
disability, incapable of maintaining himself or herself.
Nor does the Act make any provision directed towards
alleviating the hardship of a child who is above the age
of 18. In these circumstance the court is powerless, and
it cannot make any order of relief”
In the course of his
argument, however, Counsel apparently by a prick of
sympathy for the poor child softened his stance and
caved in to some undercurrent moral pressure by urging
upon this court to exercise its discretion in favour of
the said child despite the appeal, thus by necessary
implication abandoning the appeal on that score. The
learned trial judge for her part took a divergent
approach by arguing that a child in the predicament the
3rd plaintiff who was mentally and physically
incapacitated, age was an irrelevant consideration
because she opined that growth or development of the
mental and physical faculties of a normal being was
non-existent to the 3rd plaintiff. In my view the
learned trial judge was right because there was credible
medical evidence in support of the view she held.
With regard to the
question of the applicability of the provision of
section 13(1) of Act 360 to the 3rd plaintiff I have
found the construction placed on that subsection by the
learned author of “The Law of Wills” to be too draconian
and harsh with the greatest respect to the author.
Clearly he adopted the literal approach of statutory
construction. But I conceive it to be a solemn duty of a
court to construe a statue in such a way as would accord
with commonsense and justice. Thus in the English case
Re Margon-Wilson’s Will Trust 1968 Ch 268 at 282 Upgoed-Thomas
J said:
“If the court is to
avoid a statutory result that flouts common and justice
it must do so not by disregarding the statute or
overriding it, but by interpreting it in accordance with
the judicially presumed parliamentary concern for
commonsense and justice.
The Court of Appeal in
English confirmed this dictum in Verdin v. Conghtrie
(Inspector of Taxes) (1961) Ac. 880 while at our own
shores here in Ghana the Supreme Court in a recent
published case Essilfie v. Anafo (1992) 2 GLR (Review)
Archer CJ (as he then was) presiding, adopted the
commonsense approach to the construction of statutes and
emphatically stated that the legislature would not
intend what is unreasonable. The policy-rationale behind
the age limitation to children under section 13(1) of
the Wills Acts, 1971 (Act 360) proceeds on the
understanding that at 18 a normal child would have been
capable of maintaining himself or herself by his or her
own effort.
The 3rd plaintiff did
not fulfil this condition so the age limitation cannot
be applied to him. The last criticism of the Judgment
was that the learned judge erred by not applying funds
in the residue to settle the claim of the 1st and 3rd
plaintiffs. This ground of appeal has no merit because
as it have already explained above the residue fell
into intestacy and as such could not be applied under
the Wills Act 1971 (Act 360). Interested parties would
therefore have to advise themselves no application
relation to the intestate succession Law 1985 (PNDCL
111) was made before the High Court under the normal
procedure rules.
I must explain that
under the PNDCL 111 interested persons extend beyond
widows and children to parents and customary successors
of intestate property. In the such circumstances the
ends of justice would not be served if the court which
is called upon to provide reasonable provision under the
Wills Act 1971 (Act 360) assumed jurisdiction over
property treated as residue as in the instant case. For
the foregoing reasons I would dismiss the appeal and
affirm the judgment of the court below.
P. K. TWUMASI
JUSTICE OF APPEAL
ESSILFIE-BONDZIE, JA:
I agree
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL |
