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JUDGMENT
DOTSE JSC;
This is an appeal by the
Plaintiffs/Respondents/Appellants,
hereafter referred to as the
Plaintiffs against the judgment
of the Court of Appeal dated 23rd
May 2013 in favour of the
Defendants/Appellants/Respondents,
which set aside the decision of
the High Court as per the
judgment of Ofosu-Quartey J
dated 26th day of
October 2009.
Since this is an appeal which
touches and concerns the
construction of a WILL, I intend
to commence the delivery of this
judgment by reference to an old
English case in which the Master
of the Rolls laid down some
general rules of construction in
the celebrated English case of
Thelluson v Woodford, (1798)
4. VES. 227, 329 E.R. 117, 167
also referred to by the Learned
Author of Modern Law of
Succession in Ghana, A.K.P.
Kludze, page 83, in which a
rule on the construction of
Wills was laid down by the court
in the following terms:-
“I know only one
general rule of construction,
equally for courts of Equity
and Courts of Law, applicable to
all wills, which the courts
are bound to apply
however they may condemn the
object, the intention is
to be collected from
the whole will taken
together. Every word is to
have its effect.
Every word is to be taken
according to the natural and
common import; and if
words of art are used, they are
to be construed
according to the technical
sense, unless upon the
whole will it is plain, the
testator did not so intend. The
Courts are bound to carry the
will into effect, provided it is
consistent
with the rules of law.”
This being a case which is based
entirely on the interpretation
of a will executed by Edward
Kabu Otoo on the 9th
day of February 1944 (deceased
of Accra) who died on the 8th
day of May 1944 and whose Will
was admitted to probate on the
28th day of June
1944, it is important and
desirable to set out in extenso
the entire devises and bequests
in the Will. This is to afford
us an opportunity to read the
will and inteprete same as a
whole in terms of the decision
in the English case of
Thelluson v Woodford,
referred to supra.
The Will reads as follows:-
“This is the last will and
testament of me Edward Kabu Otoo
of No. E 251/2 Russia in
Christiansborg in the Accra
District in the Eastern Province
of the Colony of the Gold Coast,
Goldsmith and I hereby revoke
all former testamentary
dispositions hereto made by me.
I appoint Daniel Sackey Quacoo
of Castle Road Adabraka, Accra,
Auctioneer and C.D Adotey
Produce Buyer of Coaltaw to be
the Executors and Trustees
(hereinafter called my said
Executors) of this my will.
1. I direct that my said
Executors shall advance to my
two sons Gederah Tei Otoo
and Joseph Kabufio Otoo
who are Goldsmiths the sum of
one hundred pounds (£100)
each out of the proceeds of work
already done and on hand
for sale when there is no more
gold in the form of jinkets or
otherwise to work with
and my said sons shall in turn
pay into my banking
account in the Colonial Bank the
sum of twenty five pounds (£25)
annually. All my other sons
who are not Goldsmiths by trade
are to pay into such banking
account the sum of six pounds
(£6) annually.
2. I give and devise to my
trusted servant Tetteh Owusu
a plot of my freehold
land situate near the Royal
cemetery in Christiansborg the
extent and dimensions of
which shall be sixty (60) feet
by eighty (80) feet.
3. I give and devise to my
wife Dora and her son Tetteh
Nkunor ahd his wife
Adoleyfio and the issues of
the said Tetteh Nkunor and
Adoleyfie in joint tenancy my
freehold land situate at Kuku
Hill in Christiansborg which
I acquired from the
Ashanti Blohum Quarters of
Christiansbory and I
direct my said Executors to
build a self contained dwelling
house on the said
land if my said wife Dora shall
remain faithful to my memory
and look after my
household for five (5) years
after my demise.
4. I give and devise to my
daughter Ashiorkor the
room she occupies in my
house No. E. 252/2 Russia
aforesaid and also a plot of my
freehold dimensions
of which shall be sixty (60)
feet by eight (80) feet.
5. I direct my said
executors to let or lease my
freehold house No. E. 251/2
at Russia aforesaid and the rent
accruing therefrom shall after
payment for repairs and
municipal rates and taxes be
paid into my said banking
account annually.
6. I direct my said
executors to build or let on
building leases my
Freehold land situate
at Labadi Road Christiansburg,
Accra and at Achimota village
in the Accra District and the
rents accruing therefrom
shall after payment for
repairs and municipal rates
and taxes be paid into my said
banking account annually.
7. I direct my said
executors in their discretion if
need be to sell and convert
into cash my freehold
land situate at the bottom of
Kuku to the North of
Christiansborg near
the property of Mr.
Omarboe and pay the proceeds
thereof into my said banking
account.
8. I give and devise all my
Freehold properties not
specifically devised to all
my sons (namely Gederah Tei
Otoo, Joseph Kabufio
Otoo, Tetteh Nkunor employed
in the Railways at
Obuasi-Elija , also employed in
the Railways,Edward Kabu
Nkunor Otoo (alias
Akwetey) John Narh Otoo and
Nartey Tawiah Otoo in
joint tenancy.
9. I direct my said
executors to educate to the
extent of giving him a
profession one of my
grandson-Nortey or Ntoboahene
who may have himself
promising with inclination or
attitude to literacy attainment
and whatever shall be spent on
such an one shall be refunded by
him to my estate
within three (3) years from the
date of commencement of
practice in such profession by
him.
10. I direct my said
executors on the
recommendations of my sons
Gederah Tei Otoo and
Joseph Kabufio Otoo to give
out loans from my said
banking account to such of my
children as may be deserving
and in real need of
financial assistance and to
collect same with interest of
four Shillings on a
pound sterling.
11. I direct my said
executors to divide the residue
of my personal estates that is
to say all goods and chattels
trinkets and cash on deposit in
the Colonial Bank
aforesaid four (4) years after
the completion of the
professional education of
one of my aforesaid grandsons
Nortey or Ntoboahene among
all my aforesaid sons
mentioned in clause 8, hereof
and my daughter
Asiorkor in equal shares. In the
event of my said executors not
considering any of my said
grandson suitable to be so
educated then in such default I
direct that the residue of
my personal estate shall be
divided among my said sons and
daughter ten (10) years after my
demise and not until then.
12. It is my wish that all
my children shall bear the
funeral and burial expenses of
Omeche.
13. I direct that my said
executors shall pay all my
funeral and testamentary
expenses and if necessary retain
the services of a Solicitor to
assist and direct them in
carrying out the directions
herein contained. In witness
whereof I the said Edward Kabu
Otoo have to this my Will set my
hand this 9th day
of February, One thousand Nine
hundred and forty four
(1944).
Signed and acknowledge by the
above-named Edward Kabu Otoo as
his Will in the presence of us
present at the same time who in
his presence and in the presence
of each other have hereunto
established our names as
witnesses.
(Sgd) S. D. Nortey
House No.G 50/13
Christiansborg
(Sgd) J.W. Nortey
House No.E 164/12
Christiansborg”
Now that the Will of the
Testator, Edward Kabu Otoo has
been referred to above, it is
pertinent at this stage to
narrate the circumstances that
led to the institution of this
suit in the High Court by the
Plaintiffs.
BRIEF FACTS OF THE CASE
Mr. Edward Kabu Otoo by his Will
dated 9th February
1944 made certain devises. It is
the properties listed in clause
six which has brought about the
litigation, fought tooth and
nail all the way to the Supreme
Court.
The trial Judge in the High
Court entered judgment for the
Plaintiffs and on Appeal, the
Court of Appeal set aside the
judgment of the High Court.
Obviously dissatisfied, the
Plaintiffs have mounted this
appeal in the Supreme Court.
It is apposite to give a brief
background to the cause of
disaffection between the
Plaintiffs and the Defendants.
They are all grandchildren of
the testator, Edward Kabu Otoo,
who died testate in 1944. This
patriarch begat a total of
eighteen (18) children, made up
of ten (10) sons and eight (8)
daughters from the evidence
taken in the High Court. In
clause 8 of the Will, he devised
all his properties not
specifically devised to “all
my sons” and proceeded to name
them specifically, to be held in
joint tenancy.
These legatees managed the
properties including the
Achimota and Labadi Road,
Christianborg in joint tenancy
till the death of the last
survivor Frank Narteh Otoo,
father of the third Plaintiff.
After his death, a group of
family members constituted
themselves into the family
heads, elders and principal
members of the Otoo Kofi family
and represented to Mobil Ghana
Limited that they were in charge
of the properties which had now
been designated as family
property. Mobil then paid an
amount of Ninety-Six Million
cedis to the family, now headed
by the first Defendant.
With these facts at the
background, it was not
surprising that the plaintiffs
claimed the following reliefs in
the High Court:
1. “A declaration that by
the Will of the late Edward Kabu
Otoo dated the 9th of
February 1944 the late Gederah
Tei Otoo, Jospeh Kabufio
Otoo, Tetteh Nkunor, Edward Kabu
Nkunor Otoo, John Narh
Otoo and Nartey Tawiah Otoo were
the beneficiaries of
the income from the properties
at Achimota, known as the Mobil
Service Station and Osu known as
the American Embassy Annex.
2. A declaration that the
Plaintiffs and other
beneficiaries being the
successors of the said
beneficiaries are rightfully
entitled to the income from the
properties at Achimota and Osu.
3. An order for the refund
of the sum of Ninety-Six million
cedis (¢96,000,000.00)
and interest thereon from 2001
to date of payment which the
Defendants fraudulently claimed
from Mobil Oil Ghana Limited
as rent for the Achimota Service
Station by
misrepresenting themselves as
head and elders of the Otoo
family.
4. An order of perpetual
injunction restraining the
Defendants, by themselves
their agents, assigns or workmen
from interfering with
the said properties.
5. Cost”
After trial, the High Court
delivered judgment in favour of
the plaintiffs and dismissed the
counterclaim of the Defendants
in no uncertain terms.
Continuing further, the learned
High Court Judge stated thus:
I find that the
defendant had no legal
justification for collecting the
¢96 million and I make an
order that the defendants
account to the plaintiffs in
respect of the money.
In sum I give judgment
in favour of the plaintiff in
terms of the relief endorsed on
the writ of summons.
I declare that by the
Will of the late Edward Kabu
Otoo dated the 9th
February 1944, the late Gederah
Tei Otoo, Joseph Kabufio Otoo,
Tetteh Nkunor, Edward
Kabufio Nkunor Otoo, John Narh
Otoo and Nartey Tawiah Otoo
were the beneficiaries of the
income from the properties of
Achimota, known as the
Mobil Services Station, at Osu
known as the American
Embassy annex.
I also declare that
the plaintiff and other
beneficiary being the successors
of the said beneficiaries are
rightfully entitled to the
income from the
properties at Achimota and Osu.
I make an order that
the defendant account for the
¢96 million for plainitiff
within 30 days from the date of
this judgment.
I finally perpetually
injunct the defendants by
themselves their agents,
assigns and workmen from
interfering with the said
properties at Achimota and Osu.
I assess costs of
GH¢1,000.00 in favour of the
plaintiffs.”
An appeal lodged by the
Defendants to the Court of
Appeal found favour with the
court which upheld the arguments
of the Defendants in part and
accordingly set aside the
judgment of the High Court in
the following terms:-
“Orders
By The Court Of Appeal
In my view, reading of
the whole will suggests that the
trial Judge misconstrued
clause 8. A combined reading of
clauses 6 and 7 suggests
that it was not the
testators intention to limit the
enjoyment of rent proceeds
from the properties mentioned
therein to a selected few,
namely the beneficiaries
mentioned in clause 8.
It is clear to me that
the testator intended that all
the freehold properties
mentioned in clauses 5 and 6
i.e. properties in Russia,
Labadi Road and Achimota
village, Accra, be let on lease.
Per clause 7 of the property at
Kuku Hill is to be sold or
converted into cash. The
proceeds from rent or
sale were to be paid into the
testator’s bank account. By
clause 10 of the Will the
proceeds of the said accounts
were to be given out as loans to
any of the testator’s
deserving children by the
executors, upon
recommendation. Nowhere in these
clauses did the Testator vest
ownership interest in
any of the said properties in
any particular children.
In my considered
opinion, a proper construction
of clause 8 of the Will
depended on the meaning of the
phrase “freehold properties not
specifically devised.”
All the freehold properties
mentioned in clauses 6 and
7, and for that matter,
clause 5 must be deemed to have
been specifically devised.
The testator had given the
executors specific directions
concerning the use to
which accruing income from the
properties be put. Clearly
if the testator had intended
that only a few persons should
benefit from that income, he
would have expressly stated so.
So, in my view the trial
judge took clause 8 of the Will
out of context and thus fell
into error.
Ground (a) and
additional grounds (2) and (3)
therefore succeed.
The appeal accordingly
succeeds and the judgment of the
trial court is set aside.”
The above then constitute the
judgment of the Court of Appeal.
GROUNDS OF APPEAL IN THE SUPREME
COURT
Feeling naturally dissatisfied
with the judgment of the Court
of Appeal, the plaintiffs have
appealed to this court with the
following as the grounds of
appeal:
a. The Court of Appeal
misdirected itself on the
principle of Joint Tenancy
when it held that
inspite of the testator
expressly devising all his
freehold land “not
specifically devised to all his
sons namely Late Gederah Tei
Otoo, Jospeh Kabufio Otoo,
Tetteh Nkunor, Edward Kabu
Nkunor Otoo, John Narh
Otoo and Nartey Tawiah Otoo” the
true intention of the testator
was for all the children to
benefit from said devise in
clause 8 of his will.
b. The Court of Appeal
erred when it held that the use
of the words “Joint
Tenancy” was not relevant in
determining the intention of the
testator as to whether the
beneficiaries named in Clause 8
of the will took the devised
properties as joint
tenants or not.
c. The Court of Appeal
erred in its interpretation of
the will of the testator
when it failed to avert its mind
to the uncontroverted fact that
apart from Clause 8
the testator had devised other
properties to other
beneficiaries as joint
tenants.
d. The Court of Appeal
erred in its interpretation of
the will of the testator
when it held that properties
mentioned in Clause 5, 6, and 7
were deemed to have been
specially devised.
e. The judgment is against
the weight of evidence.
f. Further ground of
appeal would be filed upon
receipt of the reasons for
the judgment and the
Record of Proceedings.
From the above grounds of
appeal, it is quite clear that
ground (a) through to (d) deals
specifically and inferentially
with the issue of whether the
devises by the Testator in
clauses 6, 7 and 8 of the Will
amount to creating an estate in
joint tenancy with the right of
survivorship. That being the
situation, it might be more
neater to combine all those
grounds of appeal into one and
deal with them holistically. It
was not surprising that learned
counsel for the parties in their
well written statements of case
also adopted the same approach.
I will therefore in this
judgment combine these grounds
(a) to (d) as one ground of
appeal and the remaining ground
dealing with the omnibus ground
(e) as distinct. The issues
therefore that call for
determination in this appeal are
therefore the following:
ISSUES
1. Did the Testator,
Edward Kabu Otoo, create words
of limitation in the use of
the words “Joint Tenancy”
in the devises in the will he
executed especially devises in
clauses 6, 7 and 8 of the said
Will to specific
beneficiaries?
2. Was the judgment of the
Court of Appeal against the
weight of evidence?
Issue 1
The learned author A.K.P Kludze,
in his invaluable book, Modern
Law of Succession in Ghana,
Chapter 5 on page 81 stated as
follows:
“The cardinal rule
in the construction of a Will is
that the intention of the
testator, as declared by him and
apparent in the words of his
will, must be given effect, so
far as, and as nearly as may be,
consistent with law.” See
the following cases
which were cited in support of
the above general
proposition of law by the
learned author, Hickling v
Fair [1899] A.C. 15,
27; Beaudry v
Barbeau [1900] A.C. 569,
575: Papillion v Voice
(1728) Kel. W.27, 32, 25 E.
R. 478, 481; Re Palmer
[1893] 3 ch. 369, 373-374.”
Expatiating further on the above
principle, the learned author
explained further in his book at
page 81 as follows:-
“If the
intention of the testator can be
ascertained from the Will
itself, that intention must
prevail. If the court of
construction is in a
difficulty when trying to deduce
the true intention of the
testator, it applies what are
known as the rules or canons of
construction in order to
ascertain that intention. The
testator may not have had these
rules of construction
in mind when he made his Will,
they are, however
employed as a matter of
convenience dictated by
necessity, to give a meaning to
the Will.” emphasis supplied.
This same principle was stated
by Lord Wensleydale in
the case of Grey v Pearson
(1857) 6 HLC 61, as follows:-
“In
construing wills, and indeed
statutes, and all written
instruments, the grammatical
and ordinary sense of the words
is to be adhered to, unless
that would lead to some
absurdity, or some repugnancy or
inconsistency in the
rest of the instrument, in which
case, the grammatical and
ordinary sense of the
words may be modified, so as to
avoid that absurdity and
inconsistency but no further.”
In the fairly recent case of
In re Atta (decd) Kwako v
Tawiah [2001-2002] SCGLR
461, the Supreme Court, in a
unanimous decision and speaking
through Adzoe JSC of blessed
memory held that:
“When the Courts
set out to construe a will, what
they do is to look for the
intention of a testator as
expressed by him, having regard
to the other
provisions of the Will. The
intention which the will itself
declares either
expressly or by necessary
implication is what the Courts
will act upon… that the
object in all cases is to
discover the intention of the
testator by reading the will
as he had written it and
collecting his intention from
his words. If his intention
cannot be made to appear by the
writing, explained by
circumstances, there is no will.”
Emphasis supplied.
It is a further trite canon of
interpretation that in
construing documents, the
document must be read as a
whole.
The resolution of this matter
will therefore turn on the
ascertainment of the intention
of the testator and the proper
interpretation to be given to
clauses 6, 7, 8 and 10 of the
1944 Will.
See also Law of Wills in Ghana
1998, page 226 authored by a
former distinguished Chief
Justice and Jurist, S.A. Crabbe
which is to the same effect.
There is therefore that
uniformity among both the text
book writers and case law that
in construing Wills, the
foremost guide is the
intention of the testator.
This is because, once the
testator has indicated his
intention on paper, and it is
generally accepted that dead
persons tell no tales, that
intention, whatever meaning and
understanding can be made of it
must be ascribed to it.
I have perused the written
statement of case filed by
learned counsel for the parties,
and they all took pains to
explain this issue at some
length.
For example, learned counsel for
the plaintiffs, Nene Amegatcher
put it this way in his write up:
“The essential
character trait of a Will is
that it is a product of the
testator’s intent.” A
will reflects the thoughts and
intentions of the
testator and he may express it
in any way he likes”.
Learned Counsel for the
Plaintiff referred to the
distinguished works of Aharon
Barak in his book
Purposive Interpretation of Law,
Princeton University Press, 2005
when he stated that the
intent of the testator is an
expression of his or her
constitutional right to dignity
and property.
On his part, learned counsel for
the Defendants Edward Sam Crabbe
after a review of the text book
writers and case law delivered
himself thus:
“My Lords, it is
a basic rule of interpretation
that the construction of a
Will must be near to the mind
and intention of the maker as
the law would permit.
The intention must be gathered
from the written instrument
itself and that instrument must
be read as a whole.
It is the duty of a court to
discover the true intention of
the testator in order
to arrive at an interpretation
that gives the Will its real
meaning.”
See the case of Biney v Biney
[1974] I GLR 313, C.A. It was
basically because of the above
realization that a Will must be
read as a whole that is why we
decided to incorporate the
entire Will of the testator in
this judgment for everyone to
attempt to read the true and
actual intent of the testator.
It is now important for us to
proceed to look at the judgment
of the Court of Appeal in order
for us to appreciate how they
handled the interpretation
issues involved therein.
The pith of the Appeal Court’s
analysis of the case is gleaned
from their judgment which states
as follows:
“However, in my opinion in
the instant case, the
interpretation of the phrase
“joint tenancy” is neither here
nor there. The case for the
Plaintiffs is that going by the
canons of the construction of
wills, the intention of the
testator, Edward Kabu Otoo, in
clause 8 of the Will was to
specifically devise his
properties in clauses 6 and 7 to
the beneficiaries mentioned in
clause 8 “in joint tenancy”;
that is to take the said
properties as joint tenants.
It is also a basic rule of
interpretation that the
construction of a Will must be
near to the mind and intention
of the maker as the law would
permit. The intention must be
gathered from the written
instrument itself and that
instrument must be read as a
whole. It is the duty of a court
to discover the true intention
of the testator in order to
arrive at an interpretation that
gives the will its real meaning…
In my view, a reading of the
whole will suggests that the
trial judge misconstrued clause
8. A combined reading of clauses
6 and 7 suggests that it was not
the testator’s intention to
limit the enjoyment of rent
proceeds from the properties
mentioned therein to a selected
few; namely the beneficiaries
mentioned in clause 8.
It is clear to me that the
testator intended that all the
freehold properties mentioned in
clauses 5 and 6 i.e. the
properties in Russia Labadi Road
and Achimota Village, Accra be
let on lease. Per clause 7, the
property at Kuku Hill is to be
sold or converted into cash. The
proceeds from rent or sale were
to be paid into the testator’s
bank account. By clause 10 of
the Will, the proceeds of the
said account were to be given
out as loans to any of the
testator’s deserving children by
the executors, upon
recommendation. Nowhere in these
clauses did the testator vest
ownership interest in any of the
said properties in any
particular children.
In my considered opinion, a
proper construction of clause 8
of the Will depended on the
meaning of the phrase “freehold
properties not specifically
devised” All the freehold
properties mentioned in clauses
6 and 7, and for that matter,
clause 5 must be deemed to have
been specifically devised. The
testator had given the executors
specific directions concerning
the use to which accruing income
from the properties be put.
Clearly, if the testator had
intended that only a few persons
should benefit from that income,
he would have expressly stated
so. So, in my view the trial
judge took clause 8 out of
context and thus fell into
error”.
In our considered opinion, the
judgment of the Court of Appeal
correctly stated the applicable
legal principles in the
construction of Wills but in
relating those principles to the
circumstances of this case went
outside permissible limits and
thereby ended into error
themselves.
The learned trial Judge in our
opinion correctly appreciated
the legal principles and applied
same in the interpretation of
the Will.
The following are indeed some of
the reasons why we are of the
view with respect that the
learned Judges of the Court of
Appeal rather fell into error
and gave wrong interpretation to
the Will of the testator.
We are in agreement with learned
Counsel for the Plaintiff when
he stated in his written
submission that the court of
Appeal erred by stating that the
phrase “joint tenancy” as stated
in clause 8 was neither here nor
there. It was not as if the
phrase was surplusage. It was an
integral part of the testator’s
wishes. The testator knew
perfectly what he was doing when
he directed that the freehold
estate not specifically devised
must go to named beneficiaries.
At this point, it is not
disputed nor is it in doubt,
from the evidence that the
testator had eighteen children.
Those he made devises to, he
mentioned them specifically in
the will. In clause 2 for
example, he made a specific
devise to his “trusted servant”.
In clause 3, he specifically
devised to his wife Dora, her
son Tetteh Nkunor and his wife
Adoleyfio. In all these clauses,
he mentioned specifically the
legatees.
In clause 8, he directed that
all Freehold properties not
specifically devised are to go
to ALL my sons namely…” and
specifically went ahead to name
them. One can see that there was
a deliberate pattern here. Why
did he use the phrase ALL his
sons but still went ahead and
named only seven of them when we
are aware that he had eighteen
children including ten sons? He
certainly did not have it in
mind to make any devises to the
remaining sons and clearly, as
Plaintiff’s Counsel submits, the
expressio unius est exclusio
alterius rule must apply. We are
in total agreement. What the
rule means is that the express
mention of one or more things of
a particular class may be
regarded as silently or
inferentially excluding all
other members of the class. This
is exactly what Edward Kabu Otoo
did by his will of 1944.
SCOPE OF THE RULE
It may perhaps be somewhat
useful to comment briefly on
this rule or canon of
interpretation to which
reference has been made by
learned counsel for the
plaintiffs and this is the
“expressio unius est exclusion
alterius” which has been
interpreted by Chitty, in his
book on Contracts, Vol. 1.
General Principles p. 606-607 28th
Ed. Sweet and Maxwell as,
“the express
mention in an instrument of a
particular person, power or
thing may show an
intention to exclude any other
person, power or thing.”
Thus in the instant case, where
the testator has specifically
mentioned in clause 8 of the
Will as follows:-
“I give and devise
all my Freehold properties not
specifically devised to all
my sons (namely…)”
and he then proceeded to name
the sons as stated therein in
clause 8 of the Will, it should
be deemed that the testator did
not intend to refer to the sons
not specifically mentioned.
From the appeal record, it is
established that the testator
had 18 children, 10 of whom were
sons and 8 daughters. However, a
count of the names of the sons
mentioned in clause 8 of the
Will reveals that only the
following had been mentioned
seriatim as follows:
1. Gederah Tei Otoo
2. Joseph Kabufio Otoo
3. Tetteh Nkunor
4. Elijah Kabu
5. Edward Kabu Nkunor Otoo
6. John Narh Otoo and
7. Nartey Otoo
The count therein is only 7 out
of the total number of 10 sons.
Was this an omission or
inadvertence on the part of the
testator?
The intention of the testator is
not far to find. This is
because, in clause 11 of the
Will, he again made specific
reference as follows:
..“among my aforesaid
sons mentioned in clause 8,
hereof and my daughter
Ashiorkor in equal shares.”
It is thus to be noted that,
when the testator again repeated
only the sons referred to in
clause 8, he had the presence of
mind to refer again to that list
as he pleased. He also had the
presence of mind to add the name
of his daughter Ashiorkor out of
the 8 daughters that is known on
record and even went ahead to
name his grandsons Nortey
or Ntoboahene in
clause 11 of the Will.
In our considered opinion, the
repetitive nature of the
reference to the sons as
contained in clause 8 with a
reference to that description in
clause 11 of the Will must
clearly be evincing an intention
on the part of the testator
which a court of law such as
ours should not gloss over.
This is because, it is a
cardinal rule of law and
interpretation that the
intentions of a testator however
imperfectly or unfairly viewed
unless contrary to law must be
given effect to and respected.
The intention of the testator,
that only those of his sons
named specifically must be
deemed to be referred to in the
Will for purposes of benefitting
from the residuary devises must
therefore be deemed to be the
case using this “expressio
unius est exclusio alterius”
rule of interpretation.
We have considered both the
advantages and disadvantages of
the said maxim and the caution
that normally goes with it, such
as was expressed by Aikins JSC
of blessed memory in the case of
G.P.H.A. v Isoufou [1993-
1994] I GLR 24 where he stated
thus:-
“The maxim
“expressio unius est exclusio
alterius” must be applied with
caution because the
omission to mention things which
appeared to be excluded
might be due to inadvertence or
accident or because it never
occurred to the draftsman that
they needed mention. The maxim
was no more than an aid
to construction and had very
little weight where it was
possible to account for the
inclusion unius on grounds other
than an intention to effect
the exclusion alterius”.
In this appeal, we realise the
regular pattern of the testator
that whenever he wanted to make
a specific devise, he never
shied away from doing that,
reference trusted servant Tetteh
Owusu in clause 2, his wife Dora
and son Tetteh Nkunor and his
wife Adoleyfio in clause 3,
daughter Ashiorkor in clause 4,
of the will. It is that pattern
that the testator again applied
when he came to make class
devises to his sons, he not only
ended there, but continued by
naming those of his sons that he
considered worthy to benefit.
We therefore hold and rule on
the basis of the above maxim
notwithstanding the caution in
the application of the rule that
the testator intended such of
his sons not mentioned in the
clause 8 and 11 of the Will not
entitled to benefit from those
devises.
What Then Are The Effects of The
Devises In Clauses 6 & 7?
The question that begs for an
answer is whether the devises in
clauses 6 and 7 were specific
devises? We have already
reproduced the said clauses in
the body of the judgment and it
would be unnecessary to repeat
them.
In our considered opinion, these
two clauses by their ordinary
grammatical meaning, admit of no
ambiguity or complexity
whatsoever. In clause six, the
executors were to build or lease
the freehold estates of Achimota
and Labadi Road and pay the
rents accrued from there into a
bank account after taxes and
municipal rates had been paid
and repair works had been
carried out on the buildings.
In clause 7, he gave the
executors the discretion to
sell, only if need be the
Christianborg property and pay
the proceeds into his banking
account. It is obvious that the
executors felt no need to
exercise that discretion as that
property was never sold.
From a plain reading therefore,
it can be seen that these
properties were devised to no
one in particular. In fact, the
Court of Appeal came to that
conclusion in their judgment;
where they stated:-
“Nowhere in these
clauses did the testator vest
ownership interest in any
of the said properties in any
particular children. “
Their reasoning, with all due
respect would then become
illogical if they recognized
and appreciated the fact that
ownership was not vested in any
particular child. This is where
the Court of Appeal again fell
into great error, with all due
respect, they had stated that a
proper construction of clause 8
fell within the phrase
“freehold property not
specifically devised”. This
is how they delivered themselves
on this particular issue.
“In my considered
opinion, a proper construction
of clause 8 of the Will
depended on the meaning of the
phrase “freehold properties not
specifically devised”
All the freehold properties
mentioned in clauses 6 and
7, and for that matter,
clause 5 must be deemed to have
been specifically devised.”
How the learned judges could
have come to this conclusion
that the properties in clauses 6
and 7 are deemed to be
specifically devised is
startling, to say the least. If
they recognize that the testator
did not vest ownership of any of
the said properties in any
particular children, then the
logical conclusion would be that
they became properties
“not specifically devised”
which would then kick in clause
8 in which that class of
property not specifically
devised was to go to specified
class of beneficiaries to hold
as joint tenants!
Again with due deference to the
learned Judges of the Court of
Appeal, their conclusion is not
supported by the record, it is
perverse and cannot be allowed
to stand.
The testator himself left no
stone unturned and tied all
loose ends when in Clause 10 and
11 of the will, he directed as
follows
10. “I direct my said executors
on the recommendation of my sons
Gederah Tei Otoo and Joseph
Kabufio Otoo to give out loans
from my said banking
account to such of my children
as may be deserving and
in real need of financial
assistance and to collect same
with interest of four shillings
on a pound sterling
11. I direct my said
executors to divide the residue
of my personal estate that is
to say all goods and chattels
trinkets and CASH
(emphasis mine)on deposit
in the colonial Bank aforesaid
four (4) years after the
completion of the
professional education of one of
my aforesaid grandsons Nortey or
Ntobuahun among all my
aforesaid sons in clause 8
hereof and my daughter
Asiorkor in equal shares. In
the event of my said executors
not considering
any of my said grandsons
suitable to be so educated, then
in such default, I direct that
the residue of my personal
estate shall be divided among my
said sons and daughter ten
(10) years after my demise and
not until then.”
Clause 10 made provision for
loans to be granted to family
members, to be repaid with
interest. Not by any stretch of
the imagination can this be said
to be a legacy. A loan to be
paid back to the estate with
interest is not a devise.
Clause 11 speaks for itself. The
residue of the estate was to go
to the sons mentioned in Clause
8 and to one specific daughter.
The Court of Appeal regrettably
dug a deep hole for itself when
it upturned the judgment of the
High Court. The issues were
clear and were amply supported
by the record. No where did the
learned trial judge fall in
error when he entered judgment
for the Plaintiffs.
The freehold properties in
clause 6 and 7 were not
specifically devised and cannot
be deemed to have been
specifically devised as the
Court of Appeal wrongly
concluded, on both the law and
the facts.
Again, looking at it from
another angle, even if the
properties were specifically
devised, they were dealt with by
the specific legatees in Clause
8 until the last beneficiary
passed. The properties had never
been enjoyed or dealt with as
property of the whole Otu Kofi
Family. These beneficiaries were
survived by their children and
from the evidence, they all died
testate. These properties would
have therefore devolved on their
successors and not on the wider
family, so which ever way this
case is looked at, the wider
family is a long way off from
benefitting from these
properties.
For the reasons stated above, we
frown upon and deprecate the
conduct of the defendants in
seeking to usurp and covet
property that is definitely not
theirs. The first Defendant’s
father was not mentioned in the
will of 1944.
He was clearly disinherited. The
Third Defendant inherited the
paltry sum of Ten cedis from his
own father, even though his
father was among the
beneficiaries in the 1944 Will.
From the above, it is quite
clear that the freehold
properties named in clauses 6
and 7 therefore fall into
residue of the estate and
therefore passed to the sons
mentioned in clause 8 as joint
tenants.
Before we conclude our
discussion of this joint tenancy
limitation, it is instructive to
note that the testator must be
deemed to have intended the
beneficiaries named in clause 8
to enjoy the properties as such.
The legal incidents that go with
the term “Joint tenancy” as
opposed to “tenancy in common”
must be deemed to be applicable
unless the contrary is shown.
We have perused the submissions
of learned counsel for the
Defendants, who has urged a
contrary meaning on us.
Unfortunately, no compelling
authority has been urged on us
such as will make us submit to
that view point.
Accordingly, we endorse learned
counsel for the Plaintiff’s
assertion that the words
“joint tenancy” should be
given their ordinary and
technical English law meaning
and that is, all parties take
the property devised under the
principles of “jus
accresendi” till it passes
to a single hand and the tenancy
ceases. This is by way an
endorsement of the principle of
the right of survivorship.
This contention is even
supported by operation of
section 14 (3) of the
Conveyancing Act 1973 NRCD 173
which states as follows:-
“A conveyance of an interest in
land to two or more persons,
except a conveyance in
trust, shall create an interest
in common and not in joint
tenancy, unless it is
expressed in such conveyance
that the transferees
shall take jointly, or as joint
tenants, or to them and the
survivor of them, or
unless it manifestly appears
from the tenor of the instrument
that it was intended to
create an interest in joint
tenancy”
The testator definitely intended
to create an estate in joint
tenancy of the properties
devised under the specific
clauses mentioned, especially 8.
Based on the above analysis, it
is apparent that there were no
real and genuine basis for the
Court of Appeal to have departed
from the findings of fact and
law made by the learned trial
Judge.
In view of the decisions we have
come to on the first issue there
is no need to deal with the
omnibus ground of appeal, which
by inference has been adequately
dealt with supra. Under that
ground of appeal, we find that
the judgment of the Court of
Appeal is against the weight of
evidence.
CONCLUSION
In conclusion, we allow the
appeal by the Plaintiffs against
the judgment and orders of the
Court of Appeal dated 23rd
May 2013 which we hereby vacate
and set aside.
Instead, we enter judgment for
the 3rd plaintiff who
has the right of survivorship
under the will and specifically
as per the writ of summons filed
in this case. Save for the above
variation we affirm the judgment
of the High Court, dated 26th
October 2009.
J. V. M.
DOTSE
JUSTICE OF THE SUPREME COURT
CONCURRING OPINION
AKAMBA, JSC:
It is impossible to differ from
the decision which my respected
brother Dotse, J.S.C, has come
to and concurred in by my other
equally distinguished sister and
brothers. I equally concur in
the decision and wish to add the
following for emphasis. The view
is often espoused that when a
person writes a Will making
provisions by which his/her self
acquired properties would be
distributed upon his/her demise
that this would lead to a
peaceful distribution and
enjoyment of the estate upon
his/her demise. However, like
many human endeavors, the
writing of a Will has its share
of conflicts and does not
necessarily conjure a peaceful
acceptance of the contents
thereof as the present appeal
demonstrates. Little wonder that
the English say, believing has a
core of unbelieving, meaning
belief and unbelief are closely
related, and sometimes there is
need to start from a position of
skepticism to arrive at the
truth.
BRIEF FACTS
By his will made in 1944, the
testator Edward Kabu Otoo,
provided for the distribution of
his estate upon his demise.
Sixty five years after the
testator’s demise came the test
of the clarity of the provisions
of the Will when the plaintiffs
herein issued a writ in the High
Court. The plaintiffs sought
among others, a declaration that
by the will of the late Edward
Kabu Otoo dated 9th
February 1944 the late Gederah
Tei Otoo, Joseph Kabufio Otoo,
Tetteh Nkunor, Edward Kabu
Nkunor Otoo, John Narh Otoo and
Nartey Tawiah Otoo were the
beneficiaries of the income from
the properties at Achimota,
known as the Mobil Service
Station and Osu known as the
American Embassy Annex. They
further sought a declaration
that being the successors of the
aforesaid beneficiaries they
were rightfully entitled to the
income from the said properties
at Achimota and Osu. After a
full trial, the High Court,
Accra on the 26th
October 2009 entered judgment
for the
plaintiffs/respondents/appellants
who would be referred herein
simply as the appellants. The
defendants/appellants/respondents,
who would also be simply
referred herein as respondents,
appealed against the decision.
The Court of Appeal allowed the
appeal on the grounds that the
trial High Court had fallen into
error in its construction of
clause 8 of the Will.
GROUNDS OF APPEAL
The appellants have filed six
grounds of appeal for
determination by this court
namely:
1.
The
Court of Appeal misdirected
itself on the principle of Joint
Tenancy when it held that in
spite of the testator expressly
devising all his freehold land
“not specifically devised to all
his sons namely late Gederah Tei
Otoo, Joseph Kabufio Otoo,
Tetteh Nkunor, Edward Kabu
Nkunor Otoo, John Narh Otoo and
Nartey Tawiah Otoo” the true
intention of the testator was
for all the children to benefit
from said devise in clause 8 of
his will.
2.
The
Court of Appeal erred when it
held that the use of the words
“Joint Tenancy” was not relevant
in determining the intention of
the testator as to whether the
beneficiaries named in Clause 8
of the Will took the devised
properties as joint tenants or
not.
3.
The
Court of Appeal erred in its
interpretation of the will of
the testator when it failed to
avert its mind to the
uncontroverted fact that apart
from Clause 8 the testator had
devised other properties to
other beneficiaries as joint
tenants.
4.
The
Court of Appeal erred in its
interpretation of the Will of
the testator when it held that
properties mentioned in Clauses
5, 6 and 7 were deemed to have
been specifically devised.
5.
The
judgment is against the weight
of evidence.
6.
Further grounds of appeal would
be filed upon receipt of the
reasons for the judgment and the
Record of Proceedings.
EVALUATION OF GROUNDS OF APPEAL
The appellants argued grounds
one (1) to four (4) together for
the simple reason that they are
basically the same. This also
prompted the Respondents to
respond to the grounds together
in similar fashion. For our part
we think there is merit in
considering the four grounds
together which we proceed to do.
What is before us in this appeal
is a call to ascertain and give
effect to the intention of the
testator as expressed in his
Will of 1944. This undertaking
requires that we look for the
intention of the testator as
expressed by him in his/her
actual words having regard to
all the other provisions of the
Will. By so doing, the intention
which the Will itself declares
either expressly or by necessary
implications would be what a
court of law would act upon.
(See in re Atta (dec’d) Kwako v
Tawiah (2001-2002) SCGLR 461 at
467.)
Thus the core issue emerging for
determination from the four
grounds lumped together is the
ascertainment of the intention
and meaning of clause 8 in the
Will of the testator, Edward
Kabu Otoo, in particular, as
well as its relationship with
clauses 5, 6 and 7 of same. In
essence we are called upon to
construe the meaning and intent
of the Will at issue and in
particular the relevant clauses
indicated above.
The court in this instance is
called upon to construe the will
so as to give effect to the
intention of the testator. This
is because the will is the
declaration or embodiment of the
wishes and intention of its
maker, the testator. This
principle is well stated in the
Law of Wills in Ghana (1998)
authored by Samuel Azu Crabbe
at page 226 thus:
“In the construction of a will
by the court, the overriding
principle is that effect must,
as far as possible, be given to
the intention of the testator.
This intention is to be
ascertained from the words of
the will.”
I have stated above that the
contentious clauses in the 1944
will which call for
interpretation are clauses 5, 6,
7. The will of Edward Kabu Otoo
is exhibited at page 303 to 308
of the ROA. The relevant clauses
provide as follows:
“5. I direct my said executors
to let or lease my Freehold
house No E 251/2 at Russia
aforesaid and the rent accruing
there from shall after payment
for repairs and municipal rates
and taxes be paid into my said
banking account annually.
6.
I
direct my said executors to
build or let on building leases
my Freehold lands situate at
Labadi Road Christiansborg Accra
and at Achimota village in the
Accra District and the rents
accruing there from shall after
payment for repairs and
municipal rates and taxes be
paid into my said banking
account annually.
7.
I
direct my said executors in
their discretion to if need be
to sell and convert into cash my
Freehold land situate at the
bottom of Kuku Hill to the north
of Christiansborg near the
property of Mr. Omarboe and pay
the proceeds thereof into my
said banking account.
8.
I give
and devise all my Freehold
properties not
specifically devised to all
my sons (namely Gederah Tei
Otoo, Joseph Kabufio Otoo,
Tetteh Nkunor employed in the
Railways at Obuasi – Elijah Kabu
employed in the Railways, Edward
Kabu Nkunor Otoo (alias
Akwetey), John Nar Otoo and
Nartey Tawiah Otoo in joint
tenancy.” (Underlined for
Emphasis)
The Court of Appeal in
construing the relevant clauses
above referred did advert to
this court’s decision in
British Bata Shoe Co. Ltd v
Roura & Forgas Ltds (1964) GLR
190, SC. This is what this
court said:
“In the construction of
documents the attitude of the
courts in Ghana (then Gold
Coast) has invariably been to
construe every document
reasonably strictly, giving it
such effect as it is capable of
having by the strict application
of the principles of (a) English
law, where the document is
relied on as constituting a
transaction known and recognized
by English law or (b) customary
law, where the document is
relied on as evidencing a
transaction known and recognized
only by customary law.”
It is obvious to me that this
position of the law is not
altered by the current legal
disposition wherein the
individual’s freedom to deal as
he/she desires with his/her
property is guaranteed. What is
important is for the individual
to state clearly his/her
intentions to avoid any
conflicting interpretations
arising from absence of clarity
of the intentions. The
Conveyancing Decree 1973 (NRCD
175) even though
inapplicable to the instant case
has some useful lessons on
devolutions made after its
passing. This is evident from a
reading of section 14 (3)
thereof which provides that:
“14 (3) A conveyance of an
interest in land to two or more
persons, except a conveyance in
trust, shall create an interest
in common and not in joint
tenancy, unless it is expressed
in such conveyance that the
transferees shall take jointly,
or as joint tenants, or to them
and the survivors of them, or
unless it manifestly appears
from the tenor of the instrument
that it was intended to create
an interest in joint tenancy.”
The above provision reiterates
the point that even though the
Decree creates a presumption
that interests expressed in a
conveyance shall be interests in
common, such presumption is
rebutted by, an express or a
manifest statement of the true
intention of the maker. In
essence a testator can by clear
words state his/her intentions
that would rebut the presumption
created by the Decree. Indeed
section 20 of the Evidence
Decree, NRCD 323 imposes upon
the party against whom a
rebuttable presumption operates
the burden of producing evidence
and the burden of persuasion as
to the non-existence of the
presumed fact.
The intention of the maker of
the Will can only be construed
by reference to the words used
therein. This position was aptly
stated by Lord Wensleydale
in Grey v Pearson 1857 6 HLC
p 106 as follows:
“In construing wills and indeed
statutes and all written
instruments the grammatical and
ordinary sense of the words is
to be adhered to, unless that
could lead to some absurdity or
some repugnancy or inconsistency
in the rest of the instrument in
which case the grammatical and
ordinary sense of the word may
be modified so as to avoid that
absurdity and inconsistency but
no further.”
The document under consideration
in this appeal is undoubtedly a
Will which is known and
recognized by English law. Apart
from that, the testator
expressed himself using words
and expressions well known to
English law. This is obviously
not a document evidencing a
transaction known and recognized
only by customary law. Two
expressions emerging from the
clauses above referred and which
are underlined for emphasis, are
the bone of contention in this
appeal and therefore call for
interpretation. These are:
“Freehold properties not
specifically devised and joint
tenancy”
A devise is a testamentary
disposition of land or realty; a
gift of real property by will.
The phrase ‘freehold properties
not specifically devised’ is
devoid of any complexities in
understanding as it can only in
the context used stand for
specific pronouncement gifting a
particular land to a particular
person or persons. But for the
desire of the parties to lock
horns for the sake of it, the
phrase is devoid of any
complexity. It means what it
says. A specific devise of a
property is one that disposes or
gifts a particular property to a
particular or identifiable
person or persons. A specific
devise is detailed and exact and
leaves no room for doubt or
speculation. With this
understanding in mind, to who
did clause 5, 6, and 7
specifically devise the said
landed properties? The answer is
obviously a negative one because
those properties were not
specifically devised. There is
no specific mention of any
persons to whom those properties
are devised under those clauses.
It is unfortunate that the Court
of Appeal was dismissive of or
did not give due consideration
to the Plaintiff’s
submission/argument that the
intention of the testator Edward
Kabu Otoo, in clause 8 of the
will was to specifically devise
his properties in clauses 6 and
7 to beneficiaries mentioned in
clause 8. Let me repeat the
clause 8 here below for emphasis
thus:
“8. I give and devise all my
Freehold properties not
specifically devised to all
my sons (namely Gederah Tei
Otoo, Joseph Kabufio Otoo,
Tetteh Nkunor employed in the
Railways at Obuasi – Elijah Kabu
employed in the Railways, Edward
Kabu Nkunor Otoo (alias
Akwetey), John Nar Otoo and
Nartey Tawiah Otoo in joint
tenancy.” (Underlined for
Emphasis)
The testator’s intention in
clause 8 above, following the
literal construction of the
words used, is so clear it
warrants no interpretation other
than that the freehold
properties not specifically
devised (to which category
clauses 5, 6 and 7 fall) are
given to his seven children
listed therein (clause 8). (See
Lowther v Bentinck, Rolls Court,
Sir George Jessel, M.R.) 31 L.T.
719; 23 W.R. 156)
In the case of Fenuku and
Anor v John-Teye and Anor
(2001-2002) SCGLR 985, this
court similarly confronted with
the construction of a disputed
Will held, among others per
Ampiah, JSC as follows: “It is
not disputed that in 1954, the
English common law rule of
interpretation was applicable.
Under that common law rule, a
conveyance of an interest in
land to two or more persons
simply without words of
severance gave rise to a
presumption in favour of a joint
tenancy; in that event, the
persons became joint tenants
holding a single undivided title
or interest in the land.
Accordingly, the incidence of
jus accrescendi by
which the property vested wholly
in the survivor or survivors
upon the death of one or two of
the joint purchasers, became
applicable.”
The trial High Court was thus
right when it concluded that
when a clause in a Will created
a joint tenancy for
beneficiaries as clause 8 did
the last survivor took the
residue of the devise on the
death of the other devisees by
virtue of the principle of jus
accrenscendi. In such case the
survivor has the ultimate right
to take absolutely to the
exclusion of all others. Thus in
the circumstance of this case
this devolves on the 3rd
plaintiff/appellant who takes
all.
The next phrase worthy of
interpretation in the context of
this appeal is ‘joint tenancy’
as used in the aforesaid clause
8. According to Black’s Law
Dictionary, Eight Edition by
Bryan A. Garner (Chief Editor) a
joint tenancy is “a tenancy with
two or more co-owners who take
identical interests
simultaneously by the same
instrument and with the same
right of possession. A joint
tenancy differs from a tenant in
common because each joint tenant
has a right of survivorship to
the other’s share.” The author
further states the rules for
creating a joint tenancy as
follows: “The joint tenants must
get their interests at the same
time. They must become entitled
to possession at the same time.
The interests must be physically
undivided interests, and each
undivided interest must be an
equal fraction of the whole –
e.g., a one-third undivided
interest to each of three joint
tenants. The joint tenants must
get their interests by the same
instrument – e.g., the same deed
or will. The joint tenants must
get the same kinds of estates –
e.g., in fee simple, for life,
and so on.”
The devise as per clause 8 is
clear enough as to its
beneficiaries, namely the seven
sons of the testator therein
listed. It was made to them at
the same time.
The testator having precisely
devised those properties not
specifically devised as stated
in clause 5, 6 and 7, this time
round to the children listed in
clause 8 was clear enough as to
the nature of their holding
which is stated to be as joint
tenants. The implication of the
grant to the beneficiaries as
joint tenants is that they hold
undivided interests in the said
properties. As indicated above,
each joint tenant has a right of
survivorship to the other’s
share. In this context therefore
it is the 3rd
appellant who gains the ultimate
right to take the said
properties absolutely to the
exclusion of all others. The
Court of Appeal fell into error
when it held that ‘it was not
the testator’s intention to
limit the enjoyment of rent
proceeds from the properties
mentioned therein to a selected
few; namely the beneficiaries
mentioned in clause 8’. The
testator indeed intended exactly
what the appellate court ruled
against. I would allow the
appeal against the decision of
the Court of Appeal which I
hereby do. I affirm the decision
of the trial High Court.
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD)
R. C. OWUSU (MS.)
JUSTICE OF THE SUPREME
COURT
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
COUNSEL
NENE AMEGATCHER ESQ.(WITH HIM
LESTAR OHIMENG AND DIANA ASONA
DAPAAH FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
EDWARD SAM CRABBE ESQ. (WITH HIM
NATASHA LAMPTEY) FOR THE
DEFENDANTS
/APPELLANTS/RESPONDENTS.
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