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Wills -
Executors - Renunciation of
right to executorship - Vesting
assent - Interpretation 1992
Constitution Article 22(1) -
whether or not the High Court
exceeded its jurisdiction by
making orders for the reasonable
provision - whether the High
Court purported to re-write the
will of the Testator by making
the orders - Whether or not it
was it was proper to bring an
action for reasonable provision
out of the deceased’s estate
against his personal
representative, Whether or not
such provision could be granted
out of the estate even without
the vesting assent
HEADNOTES
The Appellant and the Respondent
were both married to the late
George Asare Ntim who died
testate The will of the deceased
was read in Under the will, the
testator gave the respondent and
her six children, jointly, a
house at Mateheko in Accra known
as Number B262/15 West Abossey
Okai; two thirds of his farm at
Odwaa near Akokoaso and a
portion of his house also at
Odwaa. The testator also gave
three rooms in his house at
Odwaa and a third of his farm at
Odwaa to his three children
which he had with the appellant.
The testator did not make any
provision for the appellant
under his will. The executors
that were named in the will
renounced their right to
executorship., Letters of
Administration with Will
annexed, was granted by the High
Court to the respondent. The
appellant took an action by
originating summonsto the High
Court 2002 for reasonable
provision out of the estate of
the testator. The High Court
granted the application The
respondent appealed against the
ruling of the High Court. The
Court of Appeal set aside the
ruling of the High Court and in
place of it, substituted an
order refusing the application.
The reasons for reversing the
decision of the High Court by
the Court of Appeal, which were
essentially procedural lapses
HELD
We hold the view that the
decision of the Court of Appeal
should be set aside and the
decision of the High Court
restored with modifications. The
reliefs granted by the trial
Judge should be reviewed and
fresh orders made for the
reasonable provision out of the
estate of George Asare Ntim for
the appellant The decision of
the Court of Appeal is set aside
and the decision of the High
Court is restored with
modifications
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Administration of Estates Act,
1961, (Act 63
Supreme Court Rules, 1996 (CI
16).
CASES REFERRED TO IN JUDGMENT
In Re Anim-Addo (Deceased)
Nkansah alias Anane and Another
v Amomah - Addo and Another
[1989-90] 2 GLR 67
Bird v Luckie (1850) 68 ER 373:
In Re Arthur (Deceased) Abakah
and Another v. Attah-Hagan and
Another [1972] 1 GLR 435 Archer
JA
Okofoh Estates Ltd v Modern
Signs Ltd (1996- 1997) SCGLR
224.
In Re White (1914) CH 192
Humphrey- Bonsu and Another v
Quaynor and Others (1999- 2000)
2 GLR 781
TUAKWA v BOSOM [2001-2002] SCGLR
61; ARYEH v AYAA [2010] SCGLR
891
ACKAH v PERGAH TRANSPORT LTD
[2010] SCGLR 728,
Hanna Assi (No. 2) [2007-2008]
SCGLR 16
Ex-parte Yalley; (Gyane & Anor –
Interested Parties) [2007-2008]
SCGLR 512
Amoah v The State [1966] GLR 737
– CA.
MENSAH v MENSAH [2012] 1 SCGLR
ARTHUR (No. 1) v ARTHUR (No. 1)
[2013-2014] 1 SCGLR 543
Dexter Johnson v The Republic
[2011] SCGLR 601
BOOKS REFERRED TO IN JUDGMENT
Law of Wills in Ghana, Azu
Crabbe
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE JSC:
COUNSEL
FRANK DONKOR FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
HARUNA MAAMAH WITH HIM JERRY
JOHN ASIEDU FOR THE DEFENDANT/
APPELLANT/RESPONDENT.
_______________________________________________________________
JUDGMENT
BAFFOE-BONNIE JSC:
This is an appeal by the
Appellant/ Respondent/ Appellant
(hereinafter, Appellant) against
the decision of the Court of
Appeal, allowing the appeal from
the judgment of the High Court
in Accra, dated the 25th
day of February, 2006. The
judgment against which this
appeal is brought was delivered
on 31st March 2006.
The facts are fairly simple and
generally uncontroverted.
The Appellant and the Respondent
were both married to the late
George Asare Ntim who died
testate on 15th July,
1995. The will of the deceased
was read in 1995. Under the
will, the testator gave the
respondent and her six children,
jointly, a house at Mateheko in
Accra known as Number B262/15
West Abossey Okai; two thirds of
his farm at Odwaa near Akokoaso
and a portion of his house also
at Odwaa. The testator also gave
three rooms in his house at
Odwaa and a third of his farm at
Odwaa to his three children
which he had with the appellant.
The testator did not make any
provision for the appellant
under his will.
The executors that were named in
the will renounced their right
to executorship. On 10th
June, 2002, Letters of
Administration with Will
annexed, was granted by the High
Court to the respondent. The
appellant took an action by
originating summons to the
High Court on 6th
July, 2002 for reasonable
provision out of the estate of
the testator. The High Court
granted the application and made
the following orders:
1)
One plot of the Testator’s land
known as House Number B262/15,
West Abossey Okai, Accra.
2)
One room in the house of the
testator at Odwaa near Akokoaso
for life.
3)
The testator’s farmland at Odwaa
near Akokoaso should be divided
into equal parts and one portion
to go to appliacant (Akua Marfoa
) and her children Nancy Abena
Pokua, Rosina Yaa Gyanmea and
Andrews Kwabena Nti.
The respondent appealed against
the ruling of the High Court.
The Court of Appeal set aside
the ruling of the High Court and
in place of it, substituted an
order refusing the application.
The reasons for reversing the
decision of the High Court by
the Court of Appeal, which were
essentially procedural lapses
are captured in the statement by
Gbadegbe JA(as he then was)as
follows;
“In this regard, the requirement
of placing all the facts before
the court that might indicate
the Appellant’s needs in terms
of bare necessities and other
requirements of a decent
standard of living become
relevant in order to assist the
court to consider the extent and
mode of its interference as
provided in sub-section 2 of
section 13. Where, however,
these vital facts are absent as
was the case in the court below
then the court is precluded from
a fair determination of the
discretion available to it. We
venture to say that on the
materials before the court below
on which the decision on appeal
is based the determination made
was without regard to the
“relevant circumstances” and may
thus be said to be based purely
on speculation and or
conjecture, a situation that
defeats the clear statutory
intention discernible from the
enabling section”.
Grounds of Appeal:
Before us the appellant has
argued as follows;
a.
That, the Court of Appeal erred
by placing excessive burden of
proof on the Appellant/
Respondent/ Appellant regarding
her dependence on the testator
in his life-time and the
likelihood of hardship without
reasonable provision.
b.
That the Court of Appeal erred
in making findings of fact not
borne out by the affidavit –
evidence.
c.
That the Court of Appeal erred
in not ordering a re-trial in
the light of the findings made
by itself.
d.
The Court of Appeal erred by not
looking at the merits of the
case but dwelt on the
technicalities which led to
miscarriage of justice.
e.
That the Court of Appeal erred
by not exercising its original
jurisdiction to correct the
mistakes of the trial Court.
f.
That the Court of Appeal erred
by applying principles and
practices incompatible with our
society and not envisaged by our
laws, in particular the 1992
Constitution.
g.
The judgment is against the
weight of evidence on record.
Addressing of Issues:
A preliminary issue was raised
by the respondent in the High
Court that since she was not the
only beneficiary of the estate
and also that she has not been
given the vesting assent, she
did not have the capacity to
defend the action. We do not do
not think this is so.
Section 1(1) of the
Administration of Estates Act,
1961, (Act 63)
provides that:
“The movable and immovable
property of deceased person
shall devolve on his personal
representatives with effect from
his death”.
Under section 108 of Act 63,”
personal representative” is
defined as;
“the executor, original or by
representation, or administrator
for the time being of a deceased
person”
“Administrator” means “a person
to whom representation is
granted by the Court”.
“Administration” means “letters
of administration whether
general or limited, or with the
will annexed or otherwise, when
that term is used with reference
to the estate of a deceased
person”.
From the facts, evidence was
given that the executors had
renounced their right to
executorship. Letters of
administration with will annexed
was granted to the respondent
and as such she became the
personal representation of the
deceased. As the Administratrix
of the estate, and since the
assets had not been distributed,
the respondent was in charge of
the deceased’s whole estate. The
defendant was therefore sued in
her capacity as the personal
representative of the deceased
and not as a beneficiary.
On the point that the respondent
lacks capacity to defend the
action because the properties
have not been vested in her by
way of vesting assent, see the
case of In Re Anim-Addo
(Deceased) Nkansah alias Anane
and Another v Amomah - Addo and
Another [1989-90] 2 GLR 67
. In that case there was an
application by a widow under
section 13(1) of the Wills Act,
1971 (Act 360), praying the
court for an order for financial
provision to be made for herself
and her infant son aged eight.
The executors of the estate
raised a preliminary objection
to the power of the Court to
entertain the application before
grant of probate. It was
contended that the application
was premature, since the
executors had no access to the
estate of the testator and were
therefore incapable of executing
any orders of the court.
In dismissing the preliminary
objection, Emelia Aryee, Ag.
J said:
“ Section 13(1) of the Wills
Act, 1971 (Act 360), had its
purpose; it was to warn
beneficiaries and any persons
claiming any interest in the
estate of the testator or under
the will to come within three
years before the estate was
shared out. Executors unlike
administrators, derived their
power under the will and not
from the grant of probate or
letters of administration”
By contrast administrators get
their power from the instrument
appointing them as such, in this
case, the Letters of
Administration. As such, once
the letters of administration
were granted to the respondent
it was proper for the appellant
to bring an action for
reasonable provision out of the
deceased’s estate against the
respondent as his personal
representative, even without the
vesting assent.
The Court of Appeal also
intimated that the other
beneficiaries under the will
should have been included in the
action because the outcome will
affect their interests. We do
not think this was necessary
because the respondent was sued
in her capacity as administrator
and not as a beneficiary. So it
is her duty to protect the
interest of the whole estate of
the deceased. Again the
respondent had not yet
distributed the properties and
prepared vesting assets in
respect of the properties, so
the beneficiaries could not be
sued.
Azu Crabbe
in his book, Law of Wills in
Ghana, at page 175,
paragraph three wrote:
“It is now well established that
a will made by a Ghanaian
becomes operative and no more,
as from the date of the
testator’s death. His intention
expressed in the will has no
legal effect, until the will is
admitted to probate”.
From this, the inference that
can be drawn is that the
property divulged to the various
beneficiaries does not take
effect until probate is granted
and so since the Administrator
has not yet been granted
probate, the devolutions to the
various beneficiaries have no
legal effect yet. As such it is
only the personal representative
who should be sued.
The main issue before us is
whether the High Court exceeded
its jurisdiction by making
orders for the reasonable
provision of the defendant out
of the estate of the late George
Asare Ntim?
It is the respondent’s position
that the High court acted in
excess of its jurisdiction by
purporting to enforce and
interpret Article 22(1) of the
1992 Constitution. Rather, it
should have referred the matter
to the Supreme Court under Rule
67 of the Supreme Court Rules,
1996 (CI 16). I believe that
this application of the law is
misconstrued.
In our opinion, the provision in
Article 22(1) does not call for
any interpretation for which the
jurisdiction of the Supreme
Court under Article 130(2)
should be invoked. There is a
plethora of decided cases to the
effect that where the words used
in a provision in the
constitution are clear and
unambiguous there is no need to
refer same to the Supreme Court
for interpretation. The court
merely goes ahead to implement
the provision as it is. Article
22(1) which is the basis of the
Appellant’s claim provides
22(1) A spouse shall not be
deprived of a reasonable
provision out of the estate of a
spouse whether or not the spouse
died having made a will.
This provision is so clear and
unambiguous that we do not see
why the High Court judge was
required to call on the Supreme
Court for interpretation. We
hold that the High Court was
perfectly within jurisdiction
when he applied Article 22(1)
without reference.
Another relevant issue was
whether the High Court purported
to re-write the will of the
Testator by making the orders it
did.
The general or common law rule
is that a testator of a will is
free to make his will and
distribute his estate as he
pleases. He is not bound to
leave any fixed portion of his
estate to any particular person
and he is permitted to be
capricious and improvident. As
Knight Bruce said in
Bird v Luckie (1850) 68 ER 373:
“No man is bound to make a will
in such a manner as to deserve
approbation from the prudent,
the wise or the good. A testator
is permitted to be capricious
and improvident, and is more at
liberty to conceal the
circumstances and the motives by
which he has been actuated in
his dispositions. Many a
testamentary provision may seem
to the world arbitrary,
capricious and eccentric, for
which the testator, if he could
be heard, might be able to
answer most satisfactorily.”
In
the case of In Re Arthur
(Deceased) Abakah and Another v.
Attah-Hagan and Another [1972] 1
GLR 435 Archer JA (as he
then was) said:
“What should be borne in mind is
that whenever a will is granted,
the court is not giving its
blessing and support to all the
contents of the will. The court
is only expressing its
satisfaction that the will has
been validly executed and that
the named executors are at
liberty to administer the
estate. The Court should be
extraordinarily slow in
interfering with the will of a
deceased person because the will
constitutes hallowed ground and
no one should tread upon it. If
the Court decides to interfere,
it does not expunge anything
from the will. If it decides to
omit anything on the well-known
grounds, the omission is made in
the probate and not in the will
itself. For instance, the court
will exclude from a will any
words introduced into the will
by mistake without the
instructions or knowledge of the
testator. The court may exclude
from the probate and from
registration words of atrocious,
offensive or libellous character
and it will exclude words of a
blasphemous character.”
However, Section 13(1) of the
Wills Act, 1971 (Act 360)
provides that:
“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
life time 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”.
This has been given a
constitutional in Article 22(1)
of the Constitution of Ghana,
1992 provides that:
“A spouse shall not be deprived
of a reasonable provision out of
the estate of a spouse whether
or not a spouse died having made
a will.”
The effect of Article 22(1) of
the Constitution, 1992 and
Section 13(1) of the Wills Act,
1971 is that even though a
testator may have made certain
devolutions in his will, if he
does not make reasonable
provision for either his father,
mother, spouse or child under 18
years, and as a result great
hardship will befall them, then
upon an application to the High
Court, the Court may make orders
for reasonable provision out of
the deceased’s estate for such a
person, irrespective of what is
in the will.
However, this power given to the
court is not limitless. The
Court must be satisfied:
a)
that the Appellant is a
dependant on the testator
b)
that the application has been
brought within three years after
the granting of the probate of
the will
c)
that the testator failed, either
during his lifetime, or by his
will, to make reasonable
provision for the Appellant
d)
that the Appellant is suffering,
or likely to suffer hardship,
and
e)
that having regard to all the
relevant circumstances the
Appellant is entitled to support
out of the estate of the
testator.
The respondents contends that by
making the orders which
purported to make provision for
the appellant, the Trial Court
judge was re-writing the will
and that amounted to exceeding
its powers.
We think that this claim is
unfounded and seeks to defeat
the whole purpose of section
13(1) of the Wills Act. The
High Court has the authority to
make such orders which will
cause changes to be made in the
testator’s will, however as
admitted earlier, the exercise
of such authority should be
guided, and with the sole
purpose of preventing great
hardship from befalling the
Appellant.
The court of appeal conceded
that the Wills Act permitted the
rewriting of a testator will to
make provision for certain
categories of people, but opined
that in a matter under section
13(1) of the Wills Act, the
parties must place before the
trial court all the “relevant
circumstances”. However, they
found that those facts were
absent and so the trial Court’s
decision was based on
speculations. Gbadegbe J.A
(as he then was) made the
following statements:
“In this regard, the requirement
of placing all the facts before
the court that might indicate
the Appellant’s needs in terms
of bare necessities and other
requirements of a decent
standard of living become
relevant in order to assist the
court to consider the extent and
mode of its interference as
provided in sub-section 2 of
section 13. Where, however,
these vital facts are absent as
was the case in the court below
then the court is precluded from
a fair determination of the
discretion available to it. I
venture to say that on the
materials before the court below
on which the decision on appeal
is based the determination made
was without regard to the
“relevant circumstances” and may
thus be said to be based purely
on speculation and or
conjecture, a situation that
defeats the clear statutory
intention discernible from the
enabling section”.
The learned Justices were of the
opinion that the Appellant
should have shown in her
affidavit all relevant
circumstances which included:
a.
her current means of support and
income (if any)
b.
her previous means of support
during the lifetime of the
deceased testator
c.
how she was maintained in the
past
d.
her special needs such as
nursing and or medical care to
be provided for beyond that
which is normally required for
an ordinary person (if any)
e.
her age
f.
her requirements in monetary
terms
The respondent as the
administrator of the estate also
had the responsibility of
presenting to the court the
particulars of the net value of
the assets and indicate whether
there are income earning assets.
She should have also shown the
quantum of the liabilities to be
discharged. As well as the full
particulars of the beneficiaries
and any other facts that are
likely to affect the court in
the exercise of its discretion.
We agree that this was the
proper thing to be done and it
would have made the work of the
trial court easier.
That notwithstanding, we think a
greater part of “the relevant
circumstances” were deposed in
the affidavit evidence and some
reasonable inferences could also
be made from the available
evidence and the will, which
provided enough facts for the
trial Judge to rely on in order
to make his determination.
It is clear that the appellant
had been living in the
deceased’s Odwaa house since her
marriage to him in 1971 at 18
years. She continued to live
there after his death. She also
was farming on the testator’s
farm in Odwaa before his death
and even after his death she was
taking proceeds from the farm to
maintain herself. She stated
that she had nowhere to go if
she was sacked from the house.
This showed that the appellant
had been relying on her deceased
husband for all her adult life
and so taking her out of the
house and denying her of any
proceeds from the farm will
render her homeless and cause
great hardship to her.
The respondents also attached
the will and so all the
information on the extent of the
deceased’s estate was available
to the trial judge. It was based
on these facts that the trial
judge made the determination and
not on speculation or conjecture
as found by Court of Appeal.
Azu Crabbe
in Law of Wills in Ghana
stated at page 110, paragraph
two:
“… The rest whether the testator
had not made a reasonable
provision is an objective one,
and a Court of Appeal will
seldom interfere with the
decision of the trial Judge,
unless it can be demonstrated
that the trial Judge
misapprehended the facts, or
some question of principle is
involved, or where serious
injustice would occur without
reassessment of the law and the
facts.”
We do not think there were
enough grounds to completely
reject the findings of the trial
Judge. The trial Judge found
that the appellant will suffer
great hardship if she is
excluded from the benefit of her
deceased husband’s estate. We
agree with the learned judge and
we do not think this should be
disturbed.
More so, the courts have said in
several cases that they will
rather look at the substance of
a case rather than the form. As
such the court will not allow
their primary aim of doing
justice be turned aside by
technicalities. The Court of
Appeal’s decision appears to be
based on technicalities and so
should be dismissed – Okofoh
Estates Ltd v Modern Signs Ltd
(1996- 1997) SCGLR 224.
Another issue was whether the
testator had good reason for
excluding the appellant from his
will? The respondent continues
to press on the court that the
testator, George Asare Ntim,
excluded the appellant from his
will because she was
disrespectful to him and never
allowed the deceased to have a
happy marriage. They rely on the
English case of In Re White
(1914) CH 192 and appear to
be telling the Court that that
is good enough reason for the
appellant to be excluded. In
that case, the court held that
the ordinary relationship of
mother and daughter had never
existed between the deceased and
the Appellant. See paragraph 23
of the respondent’s statement of
case at the Court Appeal. We do
not think our courts should be
persuaded by this case.
The highest law of the country,
the 1992 Constitution, in
article 22(1) requires that a
person should be reasonably
provided for from the estate of
his or her spouse. This
provision was not required to
take effect only when a marriage
was thriving or peaceful; but in
all marriages. In the case of
Humphrey- Bonsu and Another v
Quaynor and Others (1999- 2000)
2 GLR 781, an application
under section 13(1) of the Wills
Act was also made. It was an
application by the widow of the
testator and her two children
who were dispossessed by the
testator’s will.
The Court of Appeal through
Benin J.A in deciding that
the widow was entitled to
reasonable provision said:
“The first plaintiff (wife) 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 that he
continued to be responsible for
her… The rule is that if the
Language of the statute is
clear, it must be enforced
however harsh the result may
appear to be”.
In this case, even though the
testator and the widow were
separated, it did not prevent
the Court of Appeal from making
reasonable provision from the
will for the widow.
This shows that whatever the
situation in a marriage is, a
spouse should be reasonably
provided for. As such, the
appellant in this case is
entitled to receive reasonable
provision from her deceased
husband’s estate.
The last question to answer is
whether in all the circumstances
of the case the orders that the
High Court made justifiable and
just. We must bear in mind the
general rule that a court cannot
re-write a testator’s will. The
High Court under section
13(1) of Act 360 can only
make orders that will alleviate
the hardship on an Appellant. It
does not give the court the
power to totally redistribute
the deceased’s estate.
Section 13(2) of the wills Act,
1971 states that:
“Without prejudice
to the generality of subsection
(1), such reasonable provision
may include—
(a) payment of a lump sum,
whether immediate or deferred,
or grant of an annuity or a
series of payments;
(b) grant of an estate or
interest in immovable property
for life or any lesser period.
This provision does not demand
that only the reliefs stated can
be granted by the court.
However, the court should not
abuse this power or appear to be
re-writing the will of the
testator.
On that note, we agree with the
respondents that the orders made
by the trial Judge were in
excessive in the circumstances.
For example, the High Court
Judge made an order that one
plot of the Testator’s land
known as House Number B262/15,
West Abossey Okai, Accra should
be given to the appellant. We
think this order was not
necessary to prevent the
hardship of the appellant since,
from the evidence given, it was
never stated that she was living
in that house rather she had
lived in the Odwaa house
throughout her married life.
CONCLUSION AND ORDERS
We hold the view that the
decision of the Court of Appeal
should be set aside and the
decision of the High Court
restored with modifications. The
reliefs granted by the trial
Judge should be reviewed and
fresh orders made for the
reasonable provision out of the
estate of George Asare Ntim for
the appellant as follows;
1.
The appellant be permitted to
occupy the Akokooaso room in
which she lived at the time of
the testator’s death.
2.
With regard to the farm at Odwaa
the testator’s wish was that it
be divided into 3 parts; two
parts to the respondent and her
six children and the third part
to the appellant’s 3 children.
This is reviewed only to the
extent that the third part
should go to the appellant and
her 3 children while the other
two parts to be given to the
respondent and her six children.
3.
It should be added that
pursuant to Section 13 (2) (d)
of the Wills Act the appellant
is to have the benefit of the
room and the farm for her life,
thereafter they revert to the
devisee’s under the will.
The decision of the Court of
Appeal is set aside and the
decision of the High Court is
restored with modifications.
(SGD)
P. BAFFOE – BONNIE
JUSTICE OF THE SUPREME
COURT
CONCURRING OPINION
YAW APPAU, JSC.
I had the opportunity to read
beforehand the lead judgment of
the President of the Court and I
agree with him that the appeal
be allowed in part. I, however,
wish to make some few
observations of my own.
This appeal is against the
judgment of the Court of Appeal
dated 31st March
2006. The appeal arose from an
originating notice of motion
filed in the High Court on 15th
July 2002 by the Appellant
herein against the Respondent.
The Appellant was successful in
the trial High Court but lost in
the Court of Appeal when the
Respondent challenged the
decision of the trial High court
in the Court of Appeal. She has
therefore come before us for
another post-mortem of the
decision of the Court of Appeal.
The facts culminating in this
appeal are that; one George
Asare Ntim died testate on 15th
July 1995. He was survived by
two wives. In his last will and
testament, he gave out his
properties making up his estate
as follows:
“1. I give and bequeath jointly
to my wife Margaret Akosua
Agyeiwaa and her children by me
namely (i) Comfort Dufie, (ii)
Beatrice Asare Ntim, (iii)
Gladys Yaa Serwaa, (iv) Patrick
Kwasi Asiedu, (v) Joseph Asare
Ntim and (vi) Christiana Asare
Ntim my dwelling house known as
House No. B.262/15 West Abossey
Okai.
2. I devise my house known as
House No. D1 Akokoaso as
follows: - (a) Three (3) rooms
facing the motor road, one each
to my children Nancy Abena
Pokuaa, Rosina Yaa Gyammea and
Andrews Kwabena Nti; (b) The
remaining portion of the said
house to my wife Margaret Akosua
Agyeiwaa and our children named
in clause 1 above.
3. I direct that my farm at
Odwaa near Akokoaso should be
divided into three parts and
one-third portion given to my
children Nancy Abena Pokuaa,
Rosina Yaa Gyammea and Andrews
Kwabena Nti – see clause 2 (a)
above. The remaining two-thirds
portion should be given to my
wife Margaret Akosua Agyeiwaa
and our children – see clause 1
above.
4. I direct further that any
furniture or fixtures in the
houses or rooms as devised
should pass with the house or
room as devised.
5. I give the residue of my
estate including any property to
be acquired hereafter to all my
children in equal shares…”
The testator did not make any
provision at all for one of his
two wives in the said will
though he did provide for the
three children he begat with the
said wife. This wife happens to
be the Appellant herein. Being
aggrieved after she had
unsuccessfully challenged the
validity of the will in the High
Court, Appellant applied to the
High Court, praying the court to
make reasonable provision for
her out of the estate of her
late husband since she was not
mentioned at all in the will.
She did so on the authority of
the Wills Act, 1971 [Act 360],
particularly section 13(1) and
then article 22 (1) of the 1992
Constitution.
Section 13 of the Wills Act,
1971 [Act 360] provides as
follows:
“13. (1) If, on an application
made, not later than three years
from the date on which probate
of the will is grated, the High
Court is of the opinion
(a)
that a testator has not made
reasonable provision whether in
life or by will of the testator
for the maintenance of a father,
mother, spouse or child under
eighteen years of age of the
testator, and
that hardship will be caused,
the High Court may, taking
account of the relevant
circumstances, despite the
provisions of the will, make
reasonable provision for the
needs of the father, mother,
spouse or child out of the
estate of the deceased.
(2) Without prejudice to the
generality of subsection (1),
the reasonable provision may
include
(a) payment of a lump sum,
whether immediate or deferred,
or grant of an annuity or a
series of payments, and
(b) grant of an estate or
interest in immovable property
for life or a lesser period.”
{Emphasis mine}
Article 22. (1) of our
Constitution, 1992 also
provides: “A spouse shall
not be deprived of a
reasonable provision out of
the estate of a spouse whether
or not the spouse died having
made a will.” {Emphasis
mine}
The application was brought
against her rival spouse who had
been granted letters of
administration with will annexed
to administer the estate
according to the will when the
executors appointed in the will
by the testator renounced
probate. Though the Respondent
deposed to the fact that she was
only a devisee in the will which
had other devisees or legatees
for which she could not defend
the application, she strongly
opposed the application and
deposed to facts justifying why
it must not be granted. It is
proper she did so because, as an
administratrix of the estate of
her late husband, Respondent was
the proper person to be dragged
to court on such an application.
Her argument therefore that she
could not defend the action
because she was a legatee was
neither here nor there.
It is appropriate to stress that
the grant of an application
under section 13 (1) to a
surviving spouse is not premised
only on the fact that he/she was
a spouse and was not mentioned
in the testator’s will. It is
trite learning that before a
court could grant an application
under section 13 (1) of Act 360,
it must be satisfied that:
a.
The applicant was dependent on
the testator;
b.
The application has been brought
within three years after the
grant of probate of the will;
c.
The testator failed, during his
lifetime, or by his will, to
make reasonable provision for
the applicant
d.
The applicant is likely to
suffer hardship if no reasonable
provision is made for her; and
e.
Having regard to all the
relevant circumstances, the
applicant is entitled to support
out f the estate of the deceased
testator.
The High Court, after hearing
arguments from both parties,
granted the Appellant’s motion
as prayed. This was on 25th
February 2003. The trial High
Court held that the Appellant
had fully satisfied the
requirements under section 13
(1) of the Wills Act, [Act 360]
and article 22 (1) of the 1992
Constitution. It therefore
concluded as follows:
“Having found on the totality of
the evidence before the court
that the testator did not make
provision during his lifetime
and in his will as required by
law and the applicant having
come to this court under section
13 (1) of the Wills Act, Act 360
and having proved that she was a
spouse (wife) of the testator,
the court under the authority of
section 13 (2) of the Wills Act,
Act 360, makes the following
reasonable provision for the
applicant as a charge on or
attachment to the estate of the
testator the late George Asare
Ntim as follows: -
(1)
One plot of the testator’s land
known as House No. B.262/15,
West Abossey Okai, Acca.
(2)
One room in the house of the
testator at Odwaa near Akokoaso
for life.
(3)
The testator’s farm land at
Odwaa near Akokoaso should be
divided into two equal parts and
one portion to go to the
applicant (Akua Marfoa) and her
children Nancy Abena Pokuaa,
Rosina Yaa Gyammea and Andrews
Kwabena Nti”
From the above conclusion, it
could be gleaned easily that the
reason behind the trial court’s
grant of the application was
that:
(i)
the Appellant was a spouse of
the testator, and
(ii)
the testator did not make any
provision for her either during
his lifetime or in his last
will.
The Respondent initially
appealed against the ruling of
the trial High Court to the
Court of Appeal on the sole
ground that the judgment was
against the weight of evidence
on the record. She later filed
four additional grounds of
Appeal. The original ground of
appeal called for a total
re-hearing of the matter by the
Court of Appeal as if it was the
trial court, as was expounded by
this Court in several
authoritative decisions
including the following: TUAKWA
v BOSOM [2001-2002] SCGLR 61;
ARYEH v AYAA [2010] SCGLR 891
and ACKAH v PERGAH TRANSPORT LTD
[2010] SCGLR 728, etc.
The Court of Appeal, after
examining the record, allowed
the appeal and set aside the
decision of the trial High
Court. According to the Court of
Appeal, though the Appellant
proved that she was a spouse and
again brought the application
within time, the application
itself was incompetent because
the Appellant did not place all
the necessary material before
the court upon which the court
could make determinations as
envisaged under section 13 (1)
of Act 360/71.
In the words of Gbadegbe, JA (as
he then was), which I endorse,
an applicant who comes to court
under section 13 (1) of Act
360/71; “must be able to show
from the processes filed in
support of the application that
taking all the ‘relevant
circumstances’ of the estate
into account, he has not been
reasonably provided for and that
he is likely to suffer
‘hardship’ as a result of the
inadequacy of the provisions
made for him or in the absence
of any provision for him in the
last will of the deceased
testator. Therefore…to sustain
the application, the applicant
must demonstrate from the
affidavit in support that having
regard to his needs, if the
court does not intervene to make
‘reasonable provision’ for him
out of the estate of the
deceased testator, ‘hardship’
will thereby be caused to him”.
The Appellant has, in his notice
of appeal, called on us to set
aside the judgment of the Court
of Appeal and to remit the case
for re-trial in the High Court
on the following grounds:
a.
That the Court of Appeal erred
by placing excessive burden of
proof on the Appellant regarding
her dependence on the testator
in his lifetime and the
likelihood of hardship without
reasonable provision.
b.
That the Court of Appeal erred
in making findings of facts not
borne out by the affidavit
evidence.
c.
That the Court of Appeal erred
in not ordering a re-trial in
the light of the findings made.
d.
That the Court of Appeal erred
by not looking at the merits of
the case but dwelt at length
with technicalities which led to
a miscarriage of justice.
e.
That the Court of Appeal erred
by not exercising its original
jurisdiction to correct the
mistakes of the trial court.
f.
That the Court of Appeal erred
by applying principles and
practices incompatible with our
society and not envisaged by our
laws in particular, 1992
Constitution.
g.
That the judgment is against the
weight of evidence.
Though the grounds are seven in
all, the Appellant, in her
statement of case filed on
17/12/2013, argued all the
grounds together as one ground,
since according to her; “they
are all interrelated”. She
chided the Court of Appeal for
relying heavily on
technicalities in deciding the
appeal instead of re-hearing the
matter afresh as if it was the
trial court, as the authorities
indicate. She attacked or
impeached the judgment of the
Court of Appeal on three fronts.
Firstly, she argued that the
Court of Appeal did not consider
the relative hardship that would
occasion her in setting aside
the orders of the trial High
court. She referred to the case
of Humphrey-Bonsu & Anor v
Quaynor & Ors [1999-2000] 2 GLR
781 and the enabling section of
the Wills Act, section 13 and
contended that the Court of
Appeal relied on foreign
judgments in arriving at its
decision instead of the
Humphrey-Bonsu case (supra),
which is on all fours with the
instant matter. She re-called
the dictum of Ocran, JSC on the
over-reliance on foreign
judgments when there are local
authorities in the case of Hanna
Assi (No. 2) [2007-2008] SCGLR
16 at pp. 34 and 35. She
contended that she depended on
the testator for everything and
was residing in the matrimonial
home at Akokoaso, which she has
been asked to vacate.
Secondly, she was of the view
that the Court of Appeal did not
consider the appeal on the
merits but on technicalities to
deny Appellant reasonable
provision. She referred the
Court to the case of Ex-parte
Yalley; (Gyane & Anor –
Interested Parties) [2007-2008]
SCGLR 512 on the duty of a court
to do substantial justice but
not to rely on technicalities.
She said the Court of Appeal
should have referred to Rules 31
and 32 of C.I. 19 of 1997 to
call for further evidence. She
supported this argument with the
case of C
The third and last leg of
Appellant’s submissions was
that, the Court of Appeal should
have ordered for a trial
de novo when it realised
that the material placed before
the trial court by both parties
was not sufficient or adequate
to merit the orders it made, for
the matter to be determined on
the merits. She referred to the
provision under article 22 (1)
of the 1992 Constitution and
suggested that the Court of
Appeal could even have referred
the matter to this Court for
this Court to make a
constitutional determination on
that provision.
In concluding her submissions,
Appellant introduced some new
matters which were not in issue
before both the trial court and
the Court of Appeal for the
consideration of this Court.
This is in respect of the share
of a spouse in ‘spousal
property’ or in other words;
‘marital property’. After
referring to recent decisions of
this Court on the distribution
of spousal property, viz; MENSAH
v MENSAH [2012] 1 SCGLR 391 and
ARTHUR (No. 1) v ARTHUR (No. 1)
[2013-2014] 1 SCGLR 543,
Appellant contended that what
she was praying for in her
application was; to be allowed
to enjoy properties of which she
was a part-owner as of right. In
support of this contention,
Appellant quoted the dictum of
Date Bah, JSC in Arthur (No. 1)
v Arthur (No. 1) (supra) as
follows:
“Marital property is thus to be
understood as property acquired
by the spouses during the
marriage, irrespective of
whether the other spouse has
made a contribution to its
acquisition…It should be
emphasized that in the light of
the ratio decidendi in Mensah v
Mensah, it is no longer
essential for a spouse to prove
a contribution to the
acquisition of marital property.
It is sufficient if the
property was acquired during the
subsistence of the marriage.”
{Emphasis added}
According to her, the above
decisions applied to her case as
she is entitled to a share of
the marital property ex
debito justitiae and by
implication, the nemo dat
quod principle caught up
with the deceased testator as he
could not have disposed of
property of which she had
beneficial interest. Since the
testator had two wives, this
Court should consider what
rightly belongs to her under the
law. She said, since the demand
she is making is a
constitutional one, it could be
raised for the first time in
this Court, referring to the
decision of this Court in Dexter
Johnson v The Republic [2011]
SCGLR 601 and the Hanna Assi
(No. 2) case (supra). She
submitted as follows:
“My Lords, we submit with
respect that, although not
specifically asked for at the
trial, the Supreme Court,
exercising its inherent
jurisdiction, should award the
appellant a share in the
matrimonial properties as of
right. In the alternative in the
interest of justice, we pray
that the Court sets aside the
decision of the Court of Appeal
and restore the ruling of the
High Court awarding reasonable
provision out of the deceased
estate for the benefit of the
appellant”.
Judging from the Notice of
Appeal filed in this Court on
20/06/2006 by the Appellant and
the submissions made in her
statement of case filed on
17/12/2013, it appears the
Appellant is not very sure of
the actual relief(s) she is
seeking from this Court. While
in her notice of appeal, the
relief sought by the Appellant
from this Court was to set aside
the judgment of the Court of
Appeal together with the costs
and to remit the case to the
High Court for re-trial; her
prayer in her submissions before
us is to set aside the judgment
of the Court of Appeal for this
Court to invoke its inherent
jurisdiction to grant her a
share in what she called
‘matrimonial properties’ or in
the alternative, to restore the
ruling of the trial High Court.
My Lords, notwithstanding the
seeming contradictions in the
reliefs sought from us by the
Appellant in this appeal, I find
it as a duty bestowed on us by
law and on the strength of our
own decisions as the highest
court of the land, to
re-consider the whole case
before us as if we were the
trial court to determine whether
the Appellant’s application was
worth any consideration at all.
This is particularly so when one
of the grounds of appeal before
us is that; ‘the judgment of the
Court of Appeal in setting aside
the decision of the High Court
in its entirety was against the
weight of evidence adduced at
the trial.
In this light, I find it
appropriate to commence our
determination of the appeal by
looking at the last leg of
Appellant’s submissions on the
distribution of ‘spousal’ or
‘marital’ property, which is a
new issue altogether that the
Appellant never raised in any of
the two lower courts. Appellant
centred all his arguments on the
recent decisions of this Court
on the distribution of spousal
property as spelt out in the
Mensah v Mensah case (supra) and
later affirmed in the Arthur v
Arthur case (supra).
This Court derived its strength
mostly from article 22 of the
1992 Constitution and other case
law in arriving at its decision
in Mensah v Mensah (supra) and
the others that followed
afterwards, which the Appellant
has referred this Court to. The
whole of article 22 of the 1992
Constitution provides:
22. (1) A spouse shall not be
deprived of a reasonable
provision out of the estate of a
spouse whether or not the spouse
died having made a will.
(2) Parliament shall, as soon as
practicable after the coming
into force of this Constitution,
enact legislation regulating the
property rights of spouses.
(3) With a view to achieving the
full realisation of the rights
referred to in clause (2) of
this article –
(a) spouses shall have equal
access to property jointly
acquired during marriage;
(b) assets which are jointly
acquired during marriage shall
be distributed equitably between
the spouses upon the dissolution
of the marriage.”
A proper reading of the whole of
article 22 of the Constitution
quoted above shows clearly that
the legislative intent with
regard to the provisions under
clause (1) of the article in
question is different from the
one in respect of the provisions
under clause (3). Though the two
clauses fall under the same
article; i.e. article 22, they
speak different languages. There
is nothing ambiguous about that.
Clause (1) gives constitutional
backing to section 13 (1) of the
Wills Act, 1971 [Act 360] on the
power of the court to make
reasonable provision out of the
estate of a deceased spouse in
favour of a surviving spouse
where the deceased spouse died
testate but made no such
provision. The rationale behind
this provision is to avoid
hardship being caused to a
spouse who wholly depended on
the testator during his/her
lifetime, but in whose favour no
provision was made by the
testator either in his lifetime
or in his last will and
testament.
The section does not talk about
reasonable provision out of
‘matrimonial property’, or
‘marital property’, or ‘spousal
property’, or property jointly
acquired during the subsistence
of the marriage. It talks about;
‘reasonable provision out of
the ‘estate of a spouse’,
which presupposes that the
estate from which the provision
is to be made belongs solely to
the deceased spouse. The
cardinal principle underlying
this section is therefore that
the estate must be that of the
deceased spouse but not a joint
estate acquired by the two.
Clause (3), on the other hand,
talks about distribution of
property jointly acquired during
marriage upon the
dissolution of the marriage. It
talks of distribution of
property acquired during
marriage upon dissolution of
marriage but not upon
death. Such property that is
to be distributed is called;
‘spousal property’ or ‘marital
property’ since it was jointly
acquired during the subsistence
of the marriage, irrespective of
who contributes what or not. The
major yardstick for equitable
distribution is that the
property was acquired by the two
spouses in the course of their
marriage.
The Court, in the Mensah v
Mensah case (supra) held:
“Common sense and principles of
general fundamental human rights
would require that a person who
was married to another, and had
performed various household
chores for the other partner
like keeping the home, washing
and keeping dirty laundry
generally clean, cooking and
taking care of the partner’s
catering needs as well as those
of visitors, raising up the
children in a congenial
atmosphere and generally
supervising the home such that
the other partner had a free
hand to engage in economic
activities, must not be
discriminated against in the
distribution of properties
acquired during the marriage
when the marriage was dissolved.
The reason was that the
acquisition of the properties
had been facilitated by the
massive assistance that the one
spouse had derived from the
other”
What article 22 (3) means was
amply stated by this Court in
Mensah v Mensah (supra) at page
393 thus; “it was quite
clear that the provisions in
article 22 (3) (a) and (b) of
the 1992 Constitution had
espoused the principle of having
equal access to property
jointly acquired during marriage
and that of equitable
distribution of such property
upon divorce”. {Emphasis
mine}
From the above provisions of the
Constitution, 1992, there is no
doubt to the fact that the
principles governing actions for
claims under article 22 (3) are
different from those governing
actions under section 13 (1) of
the Wills Act and article 22 (1)
of the 1992 Constitution. While
a claimant under article 22 (3)
(a) and (b) must establish that
the property in question was
jointly acquired during the
marriage without the need to
prove contribution in any form
in order to succeed, an
applicant under section 13 (1)
of Act 360/71 and article 22 (1)
of the 1992 Constitution need
not do so. What such an
applicant needs to do is to show
or establish that:
1.
he/she was a surviving spouse;
2.
he/she was dependent on the
deceased spouse during the
deceased’s lifetime;
3.
the deceased spouse died testate
but made no provision for
him/her either in his/her
lifetime or in the will;
4.
he/she is likely to suffer
hardship as a result of the
testator’s failure to make any
provision for him/her.
There is no need for such a
spouse to establish that the
property, from which the
reasonable provision is made,
was jointly acquired during the
marriage.
In the Appellant’s application
before the trial court, she
never said anywhere, either in
her affidavit in support or in
her submissions before the court
that the properties forming the
estate of the deceased testator
from which she was praying for a
reasonable provision, was
jointly acquired by she and the
late husband during their
marriage. She mentioned two
houses (one in Accra and the
other in their village Akokoaso)
and then one farm belonging to
the deceased testator. She did
not say that those two houses
and the farm were acquired
during the subsistence of her
marriage with the deceased. She
did not tell how the deceased
who had two wives at the time of
his demise, came to own or
acquire those properties.
In paragraph (8) of her own
affidavit in support, she
deposed; “That my late
husband had two houses (one in
Accra and the other at Akim
Akokoaso in the Easter Region)”.
This was an admission that the
properties in question belonged
solely to the deceased testator
in the absence of any evidence
to the contrary. What the law
calls ‘marital property’ or
‘spousal property’ is property
acquired by a couple during the
subsistence of their marriage.
When a spouse acquires property
solely before marriage, such
property cannot be called
‘marital property’ or ‘spousal
property’ stricto sensu, to be
distributed under the provisions
of article 22 (3) of the 1992
Constitution.
It is on record that before
applying to the trial High Court
for a reasonable provision to be
made out of the testator’s
estate, Appellant challenged the
validity of the testator’s will
and lost. The will was therefore
declared valid by the High Court
and admitted to probate upon
proof in solemn form. When the
Appellant therefore filed her
application in the trial High
court, she knew she was making a
request under section 13 (1) of
the Wills Act and article 22 (1)
but not under article 22 (3).
The Appellant’s prayer that she
should be provided for on the
authority of article 22 (3) and
the decisions in Mensah v Mensah
and Arthur v Arthur (supra),
cannot therefore succeed as she
has not established the
necessary ingredients that call
for the application of the
principles laid down in those
decisions.
On the point that the Court of
Appeal decided the appeal on
technicalities and resorted to
foreign judgments instead of the
authority laid down in the
Humphrey Bonsu case (supra), I
wish to state that the
requirements that the Court of
Appeal laid down in its judgment
as those required for a
successful applicant under
section 13 (1) of Act 360 are
not different from those
expressed in the Humphrey-Bonsu
case and other cases decided
locally, though the Court of
Appeal never referred
particularly to any of those
local cases.
The Court of Appeal, in the
Humphrey-Bonsu case (supra),
held at page 784-785 that;
“Although Act 360 did not
define when dependency might
arise, it would not be wrong to
suggest that … in the case of a
spouse the court would have to
examine the extent of his or her
earnings, earning capacity and
the contribution to the upkeep
and maintenance of the other and
if the surviving spouse was
contributing more than the
deceased or even in equal shares
with the deceased, a dependency
would not arise”.
As has been stated above, before
an applicant can succeed on such
an application after she has
filed it within the three year
period after the grant of
probate or administration with
will annexed, she must establish
four ingredients:
1.
That he/she was a spouse of the
deceased testator;
2.
That he/she was dependent on the
deceased during his/her
lifetime;
3.
That the deceased spouse made no
provision for him/her during
his/her lifetime or in his/her
will;
4.
That he/she is likely to suffer
hardship if no provision is made
for him/her.
In the Humphrey-Bonsu case,
unlike in this case,
overwhelming evidence was led to
establish that the applicant was
dependent on the deceased
testator notwithstanding the
rifts in their marriage
therefore if no reasonable
provision was made for her, she
would suffer hardship. In this
case, nothing substantial was
placed before the trial judge,
as the Court of Appeal rightly
found, to suggest that the
Appellant herein wholly depended
on the deceased testator so
there is the likelihood of her
suffering hardship if no
provision is made for her. From
her affidavit in support, the
major reason that propelled her
application was that when she
goes to her village; i.e.
Akokoaso, where she was residing
with the deceased during his
lifetime, she resides in the
Akokoaso house of the testator
so if she is kicked out from
that house as the Respondent
intended to do, she would have
nowhere to stay at Akokoaso.
These were her own depositions
in her affidavit in support of
the application, which need no
further clarification:
“8. That my late husband had
two houses (one in Accra and
the other at Akim Akokoaso in
the Eastern Region).
9. That whereas the respondent
was provided for both houses, I
was not.
10. That meanwhile the
respondent has caused her
solicitor to write to me to
vacate from the Akokoaso house
where I stay anytime I go
there as I hail from there.
11. That meanwhile, I have
nowhere to stay should I be
ejected.
12. That I am advised by my
solicitor and verily believe
same to be true that it is
lawful and reasonable that
provision is made for me by the
court by virtue of both the 1992
Constitution and the Wills Act
of 1971.
13. That greater hardship shall
be visited on me unless
provision is made for me.
14. That I pray that the court
will order that I should be
given part of the deceased’s
Accra house (which comprises
two plots of houses) and
also part of the Akokoaso house
as well as part of the
deceased’s farmland.”
{Emphasis mine)
Appellant did not explain or
indicate in anyway, either in
her affidavit in support of the
application or in her
submissions before the trial
court, how she depended on the
deceased testator during his
lifetime and the likelihood of
her suffering any hardships
without any reasonable provision
for her out of the deceased’s
estate aside of her complaint
that she would have nowhere to
stay anytime she goes to
Akokoaso if she was ejected from
the said house.
It is very difficult to explain
why the testator made provision
for one of his two wives and all
his children with both wives but
shut out completely the
Appellant. It has been alleged
that the Appellant deprived the
testator of a happy marriage
life. However, no meat was added
to this skeletal allegation
which was not denied anyway by
the Appellant. Could this be the
reason behind the testator’s
decision to black-out Appellant
in his will?
There is no doubt that each and
every one has the unchallenged
right to distribute his/her
self-acquired property the way
he/she wants subject to the
provisions of section 13 (1) of
Act 360 and article 22 (1) of
the 1992 Constitution. To quote
the words of a retired Chief
Justice of this land Samuel Azu
Crabbe in his book; “The Law of
Wills in Ghana”, published by
Vieso Universal (Ghana) Limited,
Accra-Ghana (1998); “The
general rule …is that the court
has no power to redraft a will,
or add words to it. The duty of
the Court is to construe the
testator’s will in accordance
with the established rules of
construction and not to make a
new will for him. To relieve the
family of the testator from
unwarranted hardship, therefore,
Section 13 was enacted. This
section confers a limited
power on the court
notwithstanding the provisions
of the will, to make a
reasonable provision for the
needs of the testator’s parents,
spouse or children under 18
years of age out of his estate,
where the testator had failed to
make adequate provision for
them.” {Emphasis mine}
However the application of the
above provisions is not
automatic but also subject to
established principles or
criteria as outlined supra. The
reasons that the trial court
gave in granting the
application, i.e. (i) that the
testator did not make any
provision for the Appellant
during his lifetime and in his
will and (ii) that the Appellant
has proved that she is a spouse,
were short of what the Appellant
should have placed before the
trial court. In fact, she should
have gone further to establish
her dependency on the deceased
testator during his lifetime,
and the likelihood of hardships
she was to suffer in the absence
of any reasonable provision for
her out of the estate.
From the record before us, the
only likelihood of hardship that
the Appellant said she would
suffer, granted that she did
establish any, was where she
would stay any time she
travelled to her village
Akokoaso. So if the trial court
was minded in making any
provision at all, it should have
been the second order it made in
its ruling; i.e. that the
Appellant be given one room in
the testator’s house at Odwaa
near Akokoaso for life. What the
trial judge did in ordering the
Appellant to be given one plot
of land from the deceased’s
Abossey-Okai property when there
was no evidence that there was a
vacant one plot in that premises
and also that the deceased’s
Akokoaso farmland be divided
into two for the Appellant and
her three children with the
deceased to take half, whilst
the Respondent and her six
children took the other half,
contravened subsection (2) of
section 13 of Act 360.
Subsection (2) of section 13
says any provision or grant of
an estate or interest made in
respect of immovable property
must be for life or a lesser
period. However, the provisions
the trial High Court made in
respect of the two immovable
properties in favour of the
Appellant were orders made to
run in perpetuity.
The power granted the courts
under section 13 of Act 360 and
section 22 (1) of the
Constitution, 1992 to make
reasonable provision from the
estate of a deceased spouse to a
surviving spouse did not clothe
the trial court with authority
to re-write the will of the
testator and to re-distribute
his properties the way the trial
court did. That power is limited
as was rightly stated by Azu
Crabbe, C.J in his book under
reference. That is why the
authorities define a spouse who
qualifies for reasonable
provision as a spouse who was
mostly dependent on the deceased
testator during the testator’s
lifetime and was likely to
suffer hardship should such a
provision be denied. The
hardship to be suffered must be
indicated and known and the sort
of dependency must be stressed
and explained. The Appellant
offered none of these aside of
the fact that she would have
nowhere to stay any time she
visited Akokoaso in case she is
ejected from that house.
The testator in his will,
devised one-third (1/3) of his
Akokoaso farm to the Appellant’s
three children and the remaining
two-thirds (2/3) to the
Respondent and her six children.
Appellant’s children did not
complain about their share. By
ordering that the testator’s
Akokoaso farmland be divided
into two equal halves for the
Appellant and her three children
to take half whilst Respondent
and her six children took the
other half was tantamount to
making more provision for the
children of the Appellant when
they had not applied to the
court for any such provision.
This means the trial court was
making provision for persons who
never applied before it for such
provision. This conduct was
tantamount to re-distributing
the deceased testator’s
properties but not making
reasonable provision flowing
from the needs of the Appellant
as applicant.
The Appellant, in her
application before the trial
court, did not indicate where
she lives or stays to make a
living, the work she does, her
age, whether she is in any other
difficulty apart from where to
live or stay any time she goes
to Akokoaso, etc. As the Court
of Appeal rightly found, not
much was placed before the trial
court in the form of affidavit
evidence to merit the orders the
court made. The trial court,
during its ruling, did not
demonstrate that it considered
any relevant circumstances
arising out of the application
before it as the basis or
foundation for its orders. To
borrow the words of Gbadegbe, JA
(as he then was), it appeared
the trial judge proceeded with
the matter, “as though the
mere absence of a testamentary
provision for the applicant in a
case where her rival was
provided for justified him in
making an intervention under the
law”. The trial court
had it all wrong.
The only problem I have with the
judgment of the Court of Appeal
is the position it took in not
deciding the appeal on its
merits but dismissed it for the
failure of the Appellant to
place all the necessary material
before the trial High Court to
merit the orders it made in its
ruling. However, I do not think
this is a matter that should be
remitted to the trial High Court
for re-consideration in a trial
de-novo as prayed by the
Appellant. I am of the view
that, having come to the
conclusion that the Appellant
did not place enough material
before the trial court to merit
the provisions it made in favour
of the Appellant and her
children, the Court of Appeal,
instead of allowing the appeal
and setting aside the judgment
of the trial High court in its
entirety, should have considered
the case as a whole in order to
appreciate the merits and
demerits in the provisions the
trial court made in favour of
the Appellant.
From my consideration of the
application made before the
trial High Court, the
Appellant’s major concern was
that she had been written to by
the Respondent’s lawyer to
vacate the Akokoaso house where
she lives any time she goes to
Akoakoaso and that if that is
made to materialise, she would
have nowhere to stay any time
she goes to her hometown at
Akokoaso. This fact was not
denied by the Respondent. The
Respondent’s answer was that the
Appellant is residing in the
portion devised to her three
children in the testator’s will.
Whether that is the correct
position or not, I think it is
fair that the Appellant is given
one room of her own in the
Akokoaso house for life as the
trial High Court did order in
its ruling.
Again, it appeared the testator
intended to give his nine
children equal shares in the
Akokoaso farm. That is why he
gave the Respondent’s six (6)
children two-thirds (2/3)
portion of the farm and
Appellant’s three (3) children
one-third (1/3) portion. The
only thing he did differently
was that he made the Respondent
a beneficiary of the 2/3 share
to her children but failed to do
same for the Appellant. I think
it is reasonable to add the
Appellant to her three children
as a beneficiary of their
one-third (1/3) portion, but for
life.
It is for the above reasons that
I endorse the decision of my
brother Baffoe-Bonnie, JSC to
allow the appeal in part.
(SGD) Y. APPAU
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) A. A BENIN
JUSTICE OF THE SUPREME COURT
(SGD) G. PWAMANG
JUSTICE OF THE
SUPREME COURT
COUNSEL
FRANK DONKOR FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
HARUNA MAAMAH WITH HIM JERRY
JOHN ASIEDU FOR THE DEFENDANT/
APPELLANT/RESPONDENT. |
