Practice and procedure – Writ of summons – Indorsement – Construction of will – Action by writ of summons for construction of will irregular – Court may order continuation of proceeding as originating summons – High Court (Civil Procedure) Rules (LN 140A) Order 54A.

Wills – Bequest and devise – Construction – Whether perpetuity rule applicable  – Law of Property Act 1925 ss 161, 164(1), (2) – Courts Act 1972 (Act 372) ss 49(1) r 2, 111(1) and (2), Wills Act 1971 (Act 360) s 7(2).

Common law – Scope and content – Application in Ghana – Whether perpetuity rule applicable in Ghana – Law of Property Act (15 & 16 Geo 5, c 20)  ss 161, 164(1) and (2), Courts Act 1971 (Act 372) s 111(1) and (2).

Wills – Beneficiaries – Class – Gift to – Possibility that a beneficiary might become entitled after the perpetuity period – Executor may close class by distributing estate within executor’s year – Administration of Estates (Amendment) Law 1985 (PNDCL 113) section 8.

Common law – Scope and content – Application in Ghana – Whether common law rule against accumulation applicable in Ghana.

Common law – Scope and content – Application in Ghana – Common law rule against inalienability or restraint on anticipation inapplicable in Ghana – Married Women’s Property Ordinance (Cap 131).

Law reform – Common law – Need to revoke perpetuity rule in Ghana.

Words and phrases – “Descendants.”

In his will, the testator made the following bequests and devises:

“1    I appoint Mrs Addae Mensah alias Nana Abena Biama as one of the executors to administer my interest in the company Ghana Textile Manufacturing Co Ltd and pay the benefits and profits to Abena Asantewa my niece in her life time and after her death should pass on to the descendants of her children.

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

7     I appoint Yaw Asirifi and Gideon Nyarku to run Kwanin Trading Co Ltd as directors and to administer the company and invest the benefits and profits to the descendants of Abena Asantewa.

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

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

The plaintiffs issued a writ for a declaration that the above provisions offended the rules on inalienability, perpetuities and accumulations and that the dispositions had lapsed into intestacy, to be distributed under the provisions of the Intestate Succession Law 1985 (PNDCL 111).

The High Court judge held that under section 111(2) of the Courts Act 1971 (Act 372), sections 161 and 164(1)(2) of the English Law of Property Act (15 & 16 Geo 5, c 20) formed part of the laws of Ghana and that those common law rules applied. However, relying on the Courts Act 1971 (Act 372), section 49(1) rule 2, he held that those rules did not apply to the devolution of the testator’s estate, which was governed by customary law and dismissed the action. The Court of Appeal held on appeal that those common law rules applied to wills made under the Wills Act 1971 (Act 360) and that the dispositions fell into intestacy. On appeal to the Supreme Court,

Held, Amua-Sekyi, Aikins JJSC dissenting: (1) The construction of wills and other documents was assigned to originating summons under Order 54A of the High Court (Civil Procedure) Rules (LN 140A) and the action by writ of summons was irregular, though not void. At such appellate level, justice and fairness required that any irregularity in the issue of the writ be waived under Order 70 rule 1 of LN 140A. Besides the Supreme Court Rules CI 13 rule 23(3) empowered the court to make the necessary order to determine the real issue or question in controversy between the parties. The proceeding would therefore be treated as one by originating summons for the construction of the provisions of the will.

(2) Under the Courts Act 1971 (Act 372) s 49(2), the personal law of a deceased applied to the devolution of his estate, in the absence of contrary intention. A disposition of immovable property without words of limitation passed the entire interest in the estate under section 7(2) of the Wills Act 1971 (Act 360). However, where the testator devised immovable property with words of limitation, the provisions of the English Law of Property Act (15 & 16 Geo 5, c 20) as applied in Ghana under section 111(2) of the Courts Act would apply to such devise. In the instant appeal, the provisions of section 161 of the Law of Property Act could not be applied with the customary law.

(3) Section 161(1) of the Law of Property Act of England (15 & 16 Geo 5, c 20) abolished the double possibility rule but preserved the perpetuity rule. Under the latter rule, a future interest must either vest within 21 years after the death of the testator or within 21 years after a life in being, including a child en ventre sa mere. An interest that vested after either period was too remote and void. Hagan v Ackon DC (Land) ‘38-’40 28, Thompson v Thompson [1981] GLR 537, Sey v Sey [1963] 2 GLR 220 and Youhana v Abboud [1974] 2 GLR 201 referred to.

(4) The class-closing rule which formed part of the rule against perpetuities provided that in a class gift, the share of each member of the class ought to be ascertainable within the perpetuity period. The possibility that a beneficiary might become entitled after the perpetuity period avoided the entire gift. Under section 8 of the Administration of Estates (Amendment) Law 1985 (PNDCL 113), a personal representative was obligated to distribute the estate within a year from the grant of probate or letters of administration. The provision thus enabled the vesting of such gifts to be advanced, thus closing the class earlier than required under the perpetuity rule. Andrews v Partington (1791) 3 Bro CC 401, Thompson v Thompson [1981] GLR 537, Re Kebty-Fletcher’s Will Trusts [1969] 2 WLR 34 referred to.

(5) The Wills Act 1971 (Act 360) did not admit of the application of foreign law unless expressly so provided. The rule against accumulation did not apply to a will to be construed under section 7 of the Wills Act. Similarly, the rule against inalienability, otherwise known as restraint on anticipation, had no place under the Wills Act or at customary law. It was designed at common law to protect married women in England from the improper “solicitations” of their husbands from parting with the beneficial ownership in their property and had since been abolished. It never applied in customary law, which had always recognised the right of a woman, married or single, to dispose of her property real and personal, at will. Besides the Married Women’s Property Ordinance (Cap 131) had since 24 September 1890 recognised the right to separate property of the Ghanaian woman.

(6) Since a will was ambulatory, the applicable rule would be ascertained from the state of affairs as at the date of the testator’s death. In the light of the above, the gift in clause 1 to Asantewaa, after her death to the descendants of her children was patently remote and failed. Asantewa therefore took all the “benefits and profits” accruing from the company. The bequest of trinkets to Asantewaa and after her death to “pass to her descendants” was a gift of personalty and in the absence of any expression implying a trust Asantewa took absolutely. The appointment in clause 7, of Asirifi and Nyarko as directors to administer Kwamin Trading Company Limited and invest the benefits and profits due to the descendants of Asantewaa was void for uncertainty. By law members appointed directors at a meeting and it was not open to the testator to appoint directors, as it were, from his grave. In any event the assent in writing of the appointees was necessary for the assumption of their positions as directors. The investment of the benefits and profits due to the descendants of Asantewa was uncertain and remote. A company might not necessarily pay dividends to its shareholders and the fund for the investment was therefore uncertain. Besides, it would be difficult to ascertain the number of beneficiaries at any given moment. The class-closing rule did not apply because the income was not derived from landed property. The gift failed, resulting in intestacy.

(7) In clause 10, the testator purported to create a trust of the residue of his real and personal estate for the benefit of the descendants of Asantewaa. The trustees thus had the discretion to call in and convert the personal property into money. Apart from the continuing nature of the source of the trust income, it was possible that the trustees in their discretion might withhold the investment for more than 21 years and therefore exceed the permissible period of accumulation. The descendants of Asantewa alive at testator’s death, alleged to be 18 in all, did not close the class of descendants. For, by definition “descendants” implied a trail of members of the class that would never close. Since some of the descendants might be born outside the perpetuity period the provision failed, resulting in intestacy. The direction in clause 13 did not affect the residue as only property left out of the will would go to Asantewaa. Although Asantewa survived the testator, the gift to her descendants constituted an invalid class gift since some of those descendants would definitely not be born within the perpetuity period. Mmra v Donkor [1992-93] GBR 1636, SC referred to.

Per Hayfron-Benjamin JSC: I cannot conclude without echoing the cry of Archer JA in Youhana v Abboud [1974] 2 GLR 201, that some of these common law rules should be scrapped in order to allow for a more sensible and beneficial approach to the interpretation and construction of our laws.

Cases referred to:

Abakah (Decd), In re (1957) 3 WALR 236.

Abenser v Hesse [1981] GLR 411.

Addo v Mensah [1992-93] GBR 373, CA.

Agyepong v Prempeh [1992-93] GBR 710, SC.

Andrews v Partington (1791) 3 Bro CC 401.

Asiedu v Ofori 6 December 1932, DC.

Attorney-General v Stewart (1817) 2 Mer 14, 8 Digest (Repl) 382.

Bells, re, [1947] Ch 228.

Cocks v Manners (1871) LR 12 Eq 574.

Compton Re, Powell v Compton (1945) Ch 123, CA.

Ekam v Nerva (1947) DC (Land) ‘38-’47, 26.

Hagan v Ackon DC (Land) ‘38- ’47, 26.

Impraim v Baffoe [1988] GLR 522.

Jex v McKinney (1889) 14 AC 77, 58 LJPC 67, 60 LT 287, 37 WR 577, 5  TLR 258, PC, 8 Digest (Repl) 382.

Kebty-Fletcher’s Will Trusts, re [1969] 2 WLR 34.

Mayor of Lyons v East India Co (1836) Moo PCC 175.

Mmra v Donkor [1992-93] GBR 1636, SC.

Pearks v Moseley, Re Moseley’s Trusts (1880) 5 App Cases 714, [1874-80] All ER Rep Ext 1352, 50 LJ Ch 57, 43 LT 449, 29 WR 1, HL, 37 Digest (Repl) 69.

Perrin v Morgan [1943] AC 399, [1941] 1 All ER 187, 112 LJ Ch 81, 168 LT 177, 59 TLR 134, 87 Sol Jo 47, HL, 50 Digest (Reissue) 722.

Re Clarke v Clarke [1901] 2 Ch 110.

Re Mensah (Deceased) Barnier v Mensah [1978] 1 GLR 225.

Sey v Sey [1963] 2 GLR 220.

Stanley v Leigh (1732) 2 PWms 686, 49 Digest (Repl) 1212.

Thompson v Thompson [1981] GLR 537.

Thompson, re [1906] 2 Ch 199, 75 LJ Ch 599, 95 LT 97, 54 WR 613.

Tijani v Secretary of State, Southern Nigeria [1921] 2 AC 399.

Whicker v Hume (1858) 7 H L Cas 124, [1843-60] All ER Rep 450, 28 LJCh 396, 31 LTOS 319, 22 JP 591, 4 Jur NS 399, 59 LJCh 485, 62 LT 771, 38 WR 337, CA, Digest (Repl) 73.

Whitby v Mitchell (1889) 42 Ch D 494, 59 LJ Ch 8, 61 LT 353, 38 WR 5; affd (1890) 44 Ch D 85, 59 LJ Ch 485, 62 LT 771, 38 WR 337, CA.

Yerenchi v Akuffo (1905) Ren 367.

Youhana v Abboud [1974] 2 GLR 201.

APPEAL to the Supreme Court against the decision of the Court of Appeal in Anim-Addo v Mensah [1992-93] GBR 373, CA.

A B Chinbuah for the appellants.

E D Kom for the respondents.

ABBAN CJ. I have had the opportunity of reading in advance, the learned judgment of my brother Hayfron-Benjamin JSC, and I agree entirely with the conclusions he has arrived at in this appeal. But I would like to make a few observations, as a sort of footnote. I think what was involved in this suit was essentially the construction of five clauses in the will of the testator. The will was dated 5 September 1987, and the testator died on 5 February 1988. Those five clauses were clearly set out in the statement of claim, paragraph 4. They are as follows:

“1   I appoint Mrs Addae Mensah alias Nana Abena Biama as one of the executors to administer my interest in the company Ghana Textile Manufacturing Co Ltd and pay the benefits profits to Abena Asantewa my niece in her life time and after her death should pass on to the descendants of her children.

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

7 I appoint Yaw Asirifi and Godson Nyarku to run Kwanin Trading Co Ltd as directors and to administer the company and invest the benefits and profits to the descendants of Abena Asantewa.

10 I devise and bequeath the residue of my real estate to my Trustees upon trust as follows: As to houses, to collect rents and after paying annual rates, taxes etc to invest the net rents in government bonds, and as to personal estate upon trust to call in and convert into money if the need arises and to invest for the benefit of the descendants of Abena Asantewa.

13. I direct that any property of mine including investments

which has been left out and not mentioned under this will including lands should pass on to Abena Asantewa and after her death should pass on to her descendants.” (My emphasis.)

The formal validity of the will of the testator, the late Anim-Addo, was not in dispute. That is, the will complied with the formal requirements of the Wills Act 1971 (Act 360), and probate was therefore granted to the named executors, who together with Abena Asantewa (a beneficiary under the said will) are the defendants in the present suit.

In the construction of a will of such nature made under the Wills Act 1971, it seems to me that it was not right for the learned High Court judge, (to borrow his own words) “to look outside the Wills Act to determine the law to be applied in deciding on the consequences and effectiveness of the will.” The learned judge went further and held: “It is my considered opinion that the law applicable to the issues concerning the devolution of the estate of late Anim-Addo in terms of rule 2 of section 49(1) of Act 372 is the Kwahu Akan customary law.” The latter statement would have been correct if the late Anim-Addo had died intestate and before 1985. The late Anim-Addo passed away after 1985, that is on 5 February 1988; and in case he had died intestate the Intestate Succession Law 1985 (PNDCL 111) which governed devolution of estates on intestacy would have become applicable to his estate, and in those circumstances the personal law of the deceased, that is, Akan system of customary law, would have been irrelevant. The law applicable would have been PNDCL 111. More importantly, however, with due respect to the learned High Court judge, it is wrong to apply customary law to the construction of a will made under the Wills Act 1971 (Act 360) unless the Act itself permits it.

The general principle has been that effect must be given to the wishes or the intention of the testator as expressed in his last will, unless there are some legal impediments. Thus in order to decide the effectiveness or otherwise of any clause in a will, first and foremost the meaning of the words employed by the testator must be determined. In endeavouring to arrive at their meaning some weight may be given to the consideration that it is better to effectuate than to destroy the intention especially where the words are not obscure and unambiguous. It is when the meaning of the words has been ascertained that it must be considered whether that meaning brings the clause or the clauses in question within or outside any legal impediments.

In the construction of a will of this type, it is wrong to ignore the provisions of the Wills Act 1971 (Act 360) especially the rules of construction as laid down in section 7 of that Act. For example section 7(2) of Act 360 provides that:

“7(2) A disposition of immovable property without any words of limitation shall pass the whole of the estate or interest therein which the testator has power to dispose of by will.” (My emphasis.)

The clauses of the will in question involved the dispositions of real and personal estates; and all those clauses contain not only words of limitation but also words whose meaning appear to place legal impediments “in the way.” It was therefore obligatory that those clauses should be properly construed, and in doing so the meaning of the words used in each clause must be determined in order to consider whether the disposition made therein is completely void or passed the “whole estate or interest therein” to Abena Asantewa alone.

Furthermore apart from the Wills Act (Act 360) other provisions of the Courts Act 1971 (Act 372) must also be considered in the construction of the will. It was again wrong to rely solely on rule 2 of section 49(1) of Act 372, without reference to other provisions of the same Act 372. This reference to the other provisions of the Act is very necessary, because section 49(1) was made “subject to the provisions of this Act [Act 372] and any other enactment” and some of such provisions are those found in section 111(1) and (2) of Act 372.

Section 111(1) and (2) clearly provided that the provisions of certain English statutes “shall continue to apply in Ghana as statues of general application.” These include sections 161 and 164(1) and (2) of the English Law of Property Act 1925. So the effectiveness or otherwise of those clauses will depend upon whether the devises or the gifts comply with the rules of perpetuity and accumulation.

I must remark that the local cases, relied upon by the learned High Court judge, for example, Hagan v Ackon DC (Land) ‘38-’47 at 28-29, and Sey v Sey [1963] 2 GLR 220 were decided at a time when the Wills Act (Act 360) and Act 372 had not been passed. The decisions in those cases cannot over-ride the statutory provisions made in section 111(1) and (2) of Act 372. This section in turn made English Law of Property Act 1925 sections 161 and 164(1) and (2), which contain rules relating to perpetuity and accumulation, applicable in Ghana.

Briefly stated, section 161(1) of the Law of Property Act 1925 did abolish what was known as the double possibility rule. This rule, in a nutshell, prohibited a life interest to an unborn child or issues of an unborn person. However, the said abolition, as provided in that section, was “without prejudice to any other rule relating to perpetuities.” In other words, the rules against perpetuity have been left intact.

In the case of section 164(1) its provisions place restrictions on accumulation of income longer than a certain period. It provides that:

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

(a) the life of the grantor or settlor; or

(b) a term of twenty-one years from the death of the grantor, settlor or testator; or

(c) the duration of the minority or respective minorities of any person or persons living or en ventre sa mere at the death of the grantor, settlor or testator; or

(d) the duration of the minority or respective minorities only of any person or persons who under the limitations of the instrument directing the accumulations would, for the time being, if of full age, be entitled to the income directed to be accumulated.”

In my view, the present case did not fall within those exceptions. The rule against accumulation resembles, in some respect, the rule against inalienability since it is directed against “remoteness of control over a vested interest rather than against interests which may vest at too distant a date.” These rules apply whether the limitations are contained in a deed or a will and “whether the accumulation is at simple interest or compound interest, whether there is a positive discretion or a mere power to accumulate and whether the whole or any part of the income of the fund is to be accumulated.” Consequently if the period for which accumulation is directed would exceed the perpetuity period, the discretion or the direction to accumulate would be void and the gift, in the case of a will, would pass under a residuary gift or in default to the persons entitled under intestacy.

I should observe further that the perpetuity rule is applicable also to class gifts in that if there is the possibility that one member of the class might take a vested interest outside the period, then the whole gift would fail,

“¼even as regards those members of the class who have already satisfied any required contingency. A class gift cannot be good as to part and void as to the rest: “the vice of remoteness affects the class as a whole, if it may affect an unascertained number of its members.” Until the total number of the members of the class has been ascertained, it cannot be said what share any member of the class will take, and this state of affairs will continue so long as it is possible for any alteration in the number to be made.”

See the Law of Real Property by Megary and Wade 3rd ed page 235 and Pearks v Moseley (1880) 5 App Cases 714 HL at 723 per Lord Selborne.

Having examined carefully those disputed five clauses in the will in the light of the principles enunciated above, I agree with the way and manner my learned brother Hayfron-Benjamin JSC has treated them in his judgment. Devises, bequests or incomes “to the descendants of Abena Asantewa” would definitely include descendants born more than 21 years from the death of the testator as well as those born more than 21 years after the death of living beings on the death of the testator. In the circumstances such bequests or devises offended against the rules of perpetuity and accumulation and are therefore void.

It ought to be emphasised that the words “to the descendants of Abena Asantewa” meant all those persons who may claim descent from Abena Asantewa. It cannot be assumed that because the testator was an Akan Kwahu and therefore subject to Akan customary law, by using the words “to descendants of Abena Asantewa,” the testator necessarily meant the maternal family originated by Abena Asantewa. Rather they are bequests to all those who would descend lineally from Abena Asantewa or could claim their lineage to Abena Asantewa. By Akan customary law, the children of a male member of Akan family do not belong to their father’s family. They rather belong to their mother’s family. It follows that the children of all the male members in the maternal family originated by Abena Asantewa will not fall within the said maternal family. Speaking generally Akan family consists of those persons lineally descended through females from a common ancestor.

So according to the decision of the High Court those children would be excluded. They would not be entitled to benefit from those bequests, not being members of Abena Asantewa’s maternal family, even though they could claim to have descended lineally from Abena Asantewa. Descendants of a person cannot be equated only to the members of the maternal family of that person. I think the word “descendants” has a wider implication and should not be restricted to the members of the maternal family of Abena Asantewa.

Thus it was not right for the High Court to hold that “a gift to descendants by her which will have a permanent existence as part of the larger family to which Anim-Addo belonged.” The truth of the matter is that the gifts were intended by the testator to benefit not only members of the maternal family but also all those who could claim descent from Abena Asantewa, a numerically uncertain class of beneficiaries. It is impossible to identify those descendants within any foreseeable period. The meaning of the words used brings the clauses within the rules of perpetuity and accumulation as stated above and nothing can be done to alter or save the situation. If the construction is one about which the court would have no doubt, that construction cannot be altered to something different in order to escape the consequences of the law. So the gifts in clauses 7, 8 and 13 fail and should pass to the persons entitled under intestacy. But in the case of clauses 1 and 6 the gifts, benefits and profits therein would go to Abena Asantewa alone. In Re Bells [1947] Ch 228, a gift to “my son A or his dependants” was held void for uncertainty as to the dependants and the son took absolutely. This appears to be the case in respect of clauses 1 and 2 in dispute; and so Abena Asantewa must take everything absolutely, so far as the bequests in those clauses 1 and 6 are concerned.

The Court of Appeal was right in holding that in the construction of the disputed clauses, the rules of perpetuity, accumulation and class-closing were applicable. However, I am of the opinion that having properly come to that conclusion, the Court of Appeal should also have gone further to decide whether the gifts or any of them are valid in favour of Abena Asantewa or are void as offending the rule against perpetuities and to what extent. The Court of Appeal should have made pronouncement on the fate of each clause. In other words, the court should have made declarations on each of the five clauses in dispute.

To that extent, with the greatest respect, the Court of Appeal erred and on that ground the appeal succeeds; and the judgment of the Court of Appeal granting the “reliefs in terms of the endorsement on the writ” is set aside. The judgment of the High Court is also set aside and in place thereof I would substitute the declarations which have been clearly spelt out at the tail end of the judgment of my learned brother Hayfron-Benjamin JSC.

AMUA-SEKYI JSC. The three plaintiffs are sons of the late Patrick

Anim-Addo, who died on 5 February 1988, leaving a will bearing the date 5 September 1987. The first defendant is a daughter of the deceased and one of the executors of his said will. The second, third and fourth defendants are also executors of the will. The fifth, Abena Asantewa, is a niece of the deceased. The action is said to be brought on behalf of “all the surviving children” of the deceased and seeks to upset and have declared null and void certain dispositions made by their late father under his said will. The plaintiffs say that gifts made to the descendants or the descendants of the children of the fifth defendant infringe the rules on inalienability and perpetuities, and the prohibition against accumulations, and are consequently null and void. They contend that their late father died intestate as far as the properties intended to be conveyed or bequeathed by these clauses are concerned, and they seek an enforcement of their right to a nine-sixteenth share of the intestate estate of their father under the provisions of the Intestate Succession Law 1985 (PNDCL 111).

In the High Court, Brobbey J agreed with the plaintiffs that section 111(2) of the Courts Act 1971 (Act 372) had made sections 161 and 164(1)(2) of the English Law of Property Act 1925 part of the law of this country and that in consequence thereof the rules and the prohibition mentioned above were part of our law. However, relying on rule 2 of section 49(1) of Act 372, he held that as the late Anim-Addo was a person the devolution of whose estate was governed by customary law, the rules and the prohibition did not apply to him. He dismissed the action. The Court of Appeal drew a distinction between a person who died leaving a customary death-bed declaration or samansiw and one who died leaving a will made under the provisions of the Wills Act 1971 (Act 360), and held that while the rules and the prohibition did not apply to the former, they applied to the latter. The court allowed the appeal and, as it appears, decreed that Anim-Addo died intestate as far as the offending clauses of his will were concerned.

In this court, the defendants have complained that the effect of the judgment of the Court of Appeal is to set aside the gifts of a life interest in the various properties devised and bequeathed to the fifth defendant under clauses 1, 6 and 13 of the will. For their part, the plaintiffs concede that in so far as the Court of Appeal purported to set those gifts aside their action was not warranted by any rule of law and their error ought to be corrected. Therefore the appeal before us is not concerned with the validity of any devises or bequests as were made to her descendants or the children of her descendants.

For reasons that have not been disclosed to us, the full text of the will was not put in evidence in the High Court. What the plaintiffs did instead was to quote verbatim the text of the five dispositions they wished to challenge. The correctness of the text having been admitted by the defendants, the case proceeded to trial without any evidence being adduced. Counsel, it seems, were agreed that the will was not required. However, it is apparent from the judgment of the learned judge of the High Court that he did see the probate copy of the will. This fact can be deduced from his statement that the children’s share of the estate under the will was “infinitesimal.” We now have the will before us. It received probate in the registry of the High Court, Accra on 29 September 1988. The provisions which are being challenged are the following:

“Clause 1:

I appoint Mrs Addae Mensah alias Nana Abena Biama as one of the executors to administer my interest in the company Ghana Textile Manufacturing Co Ltd and pay the benefits and profits to Abena Asantewa my niece in her life time and after her death should pass on to the descendants of her children.

Clause 6:

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

Clause 7:

I appoint Yaw Asirifi and Gideon Nyarku to run Kwanin Trading Co Ltd as directors and to administer the company and invest the benefits and profits to the descendants of Abena Asantewa.

Clause 10:

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

Clause 13:

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

Clause 1 makes the first defendant a trustee of the shares of the deceased in Ghana Textile Manufacturing Co Ltd for the benefit of the fifth defendant during her lifetime, and thereafter “the descendants of her children.” Clause 6 makes a gift of all the gold ornaments of the deceased to the fifth defendant for her life, and thereafter to “her descendants.” Clause 7 appoints one Yaw Asirifi and the second defendant managers of Kwanin Trading Co Ltd to hold the profits for the benefit of “the descendants” of the fifth defendant. Clause 10 is rather inexpertly drawn up. It devises and bequests the residue of the “real estate” of the deceased, which is described as comprising (a) houses, and (b) “personal estate” to the executors upon trust for the benefit of “the descendants” of the fifth defendant. Finally, clause 13 devises and bequests all property, including “investments” and lands not otherwise disposed of under the will to the fifth defendant for life, and after her death to her “descendants.” As those devises would be valid if customary law applies, the issue to be resolved here is the extent to which the rules of law by which property in England is governed apply to property in Ghana devised under the will of a Kwahu man whose personal law is Akan customary law.

It must be remembered that from colonial times, our courts have been enjoined to respect the traditions and customs of our people. The only limitation on the application of customary laws during that period of our history was that those laws should not be “repugnant to natural justice, equity and good conscience”; see section 87(1) of the Courts Ordinance (Cap 4). Customary laws on land tenure and the devolution of estates upon intestacy were given recognition and enforced by the courts. Customs which were rejected were few and far between, such as the custom that successors were responsible for the payment of the debts of a deceased person even if he left nothing; see Asiedu v Ofori 6 December 1932, DC.

When Cap 4 was repealed, the cases on the application of customary law were examined and a number of rules distilled therefrom for the guidance of the courts. They were introduced by section 66(1) of the Courts Act 1960 (CA 9) in these words:

“66(1) Subject to the provisions of any enactment other than this subsection, in deciding whether an issue arising in civil proceedings is to be determined according to the common law or customary law and, if the issue is to be determined according to customary law, in deciding which system of customary law is applicable, the court shall be guided by the following rules, in which references to the personal law of a person are references to the system of customary law to which he is subject or, if he is not shown to be subject to customary law, are references to the common law¼”

Then follow the rules. For our purposes, the important rule is that dealing with testacy and other unilateral dispositions of property. It is rule 3 which provided as follows:

“Subject to Rule 1, where an issue arises out of any unilateral disposition and it appears from the form or nature of the disposition or otherwise that the person effecting the disposition intended that such an issue should be determined according to the common law or any system of customary law effect should be given to the intention.”

Thus, in deciding whether common law or customary law was applicable to the estate of a deceased person who died leaving a will, rule 3 laid it down that the intention of the testator was to prevail. Such intention may be gathered from “the form or nature or otherwise” of the disposition.

Applying rule 3, the courts regarded a person who made a customary deathbed declaration or samansiw as disclosing an intention that the dispositions be governed by customary law, while one who made a testament was taken to intend that common law should apply. This was understandable because at the time one could make a formal written will only under the English Wills Act 1837 (7 Will 4 & 1 Vict c 26); see Re Abakah, deceased (1957) 3 WALR 236. Indeed long before CA 9 was passed, and for some years thereafter, it was a conveyancing practice to refer to the Act of 1837 in the body of a will and state that the dispositions made therein were to be interpreted in accordance with “the law of England, any native law or custom to the contrary notwithstanding.” The effect of these words was to exclude customary law. But where a testator made a will under the Act of 1837 without those fateful words and in terms, which indicated that he intended customary law to apply, effect was given to his intention. Thus, in Hagan v Ackon DC (Land) ‘38-’47, 26 and Arbenser v Hesse [1981] GLR 411, effect was given to devises to named persons and their heirs as family property; in Sey v Sey [1963] 2 GLR 228 SC and Impraim v Baffoe [1988] GLR 522, the devise contained a direction that the properties should never be sold.

The Act of 1837 ceased to apply when the Wills Act 1971 (Act 360) came into force. Although Act 360 is based on the English statute, a person who makes a written will under it cannot be said to have shown an intention that the dispositions made by him should be governed by common law. What he intended must be sought from indicators other than the mere act of making a written will. In the new situation, rule 3 of CA 9, which had been re-enacted in the Courts Decree 1966 (NLDC 84), had outlived its usefulness. It was not re-enacted in the Courts Act 1971 (Act 372). But it has since been held that if a testator adopts the former conveyancing practice and states that his written will is to be interpreted in accordance with the law of England, any native law or custom to the contrary notwithstanding effect must be given to his wishes as those words are a clear affirmation that he intends that common law be applied to the dispositions he has made: see Agyepong v Prempeh [1992-93] GBR 710, SC. For the record, let it be said that the will of late Anim-Addo contained no such statement of intention.

Under CA 9, intestate succession to land was regulated by rule 4 and rule 5 regulated succession to property other than land. When CA 9 was repealed, NLCD 84 re-enacted rules 4 and 5 in section 64. Like rule 3 of CA 9 and NLCD 84, rule 4 was not re-enacted in Act 372. However, rule 5 was extended to cover land and became rule 2 of section 49(1) of Act 372. It is now rule 2 of section 54(1) of the Courts Act 1993 (Act 459). It reads:

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

As with CA 9 and NLCD 84, references in Act 372 and Act 459 to the personal law of a person are references to the system of customary law to which he is subject or to the common law where he is not subject to any system of customary law.

Rule 2 applies only upon intestacy. It caters for the situation where a person dies intestate and the court is called upon to decide whether the devolution of his estate is to be governed by customary law or the common law. In the case of a person who dies leaving a will, it is his intention, which determines whether customary law or common law is to apply. By custom, although a person may devise property with a direction that it be held as family property and passed on from one generation to the next, it may, with the necessary consents, be sold; and a requirement that property be held by the donee of a gift and his successors in perpetuity with no right or sale may, in appropriate cases, be ignored. This is in keeping with the dictum of Griffith CJ in Yerenchi v Akuffo (1905) Ren 367 that: “Native custom generally consists of the performance of the reasonable in the special circumstances of the case.”

As is well known, the common law has none of the flexibility of our customary laws. Since the fifteenth century it has imposed limits on dispositions, which fetter future alienation, devolution and enjoyment of property. The rules were developed by the courts of England from considerations of public policy on “the mischief that would arise to the public from estates remaining for ever or for a long time inalienable or untransferable from one hand to another, being a damp to industry and prejudice to trade, to which may be added the inconvenience and distress that would be brought on families whose estates are so fettered:” per Jekyll MR in Stanley v Leigh (1732) 2 PWms 686 at 688. As expounded in the books, the modern law on this subject comprises (a) the rule against inalienability, that is, the rule which invalidates limitations and trusts that impose restrictions on future alienation of property; (b) the rule against remoteness of vesting, generally known as the rule against perpetuities and (c) the rule prohibiting accumulation of income for longer than one or other of the periods prescribed by statute.

The rule against inalienability makes void perpetual trusts for non-charitable institutions and objects. What objects are charitable has been set out in a near-comprehensive list in the preamble to the Statute of Charitable Uses, 1601. Other such enactments are the Statute of Mortmain 1736, the Mortmain and Charitable Uses Act 1888 and the Mortmain and Charitable Uses Act 1891. Whether they were in abrogation or derogation of the common law, or declaratory of it, these statutes and acts apply only to land in England. They do not apply to Scotland or Ireland. They do not apply to the West Indies: Attorney-General v Stewart (1817) 2 Mer 143; or to India or Pakistan: Mayor of Lyons v East India Co (1836) Moo PCC 175; or to New South Wales: Whicker v Hume (1858) 7 H L Cas 124 at 151; or to British Honduras: Jex v McKinney (1889) 14 AC 77 PC.

In Attorney-General v Stewart, the question was whether the Statute of 1736 extended to the island of Grenada. Grant MR held that it did not. He said that it was a purely local law which has grown out of circumstances prevailing in England and was designed to regulate devises to charitable uses of land in England. He said at 162:

“For a long series of years, devises to charitable uses has in this country been wholly unrestrained, and, until they began to grow excessive in their amount, it was not reckoned necessary to restrain them. What the Legislature had to consider was, whether, as there was so much of the land of England already in mortmain, it was not expedient to lessen the facility of putting more of it into that situation. That was a consideration purely local. It related to land in England, and to land in England only.”

In Mayor of Lyons v East India Co, Lord Brougham said at 276: “Sir William Grant’s reasons for confining the Mortmain Act to England have a manifest application to this case” and described its provisions as “manifestly inapplicable to the circumstances of” Calcutta. In Whicker v Hume, the House of Lords held that neither by common law nor by Act of Parliament were the Mortmain Acts applicable to a devise of land in New South Wales. In Jex v McKinney, the Judicial Committee of the Privy Council referred to these cases and said at page 82: “Their Lordships think the reasoning on which those decisions are founded is sound reasoning, and is applicable to British Honduras as the court below has applied it.” I am satisfied that the reasoning applies even more clearly to Ghana and West Africa as a whole where, as in India, there were settled populations with laws and customs of their own before the Europeans arrived.

Section 161 of the Law of Property Act abolished the rule against remoteness of vesting, sometimes called the rule against remote possibilities or the double possibility rule, and also frequently referred to as the rule in Whitby v Mitchell (1890) 44 Ch D 85 CA. It reads:

“161. (1) The rule of law prohibiting the limitation, after a life interest to an unborn person, of an interest in land to the unborn child or other issue of an unborn person is hereby abolished, but without prejudice to any other rule relating to perpetuities.”

This provision of the law of England was made part of our law by section 111(2) of Act 372. Counsel for the plaintiffs has suggested that the italicised words show that the rule against inalienability applies in Ghana as it does in England. I disagree. It seems to me that if the rule against inalienability were applicable in this country, section 162 would have been made part of our law. That provision restricted the rule by stating that in the cases listed in the section it did not and should be deemed never to have applied. It would be strange indeed if we applied the rule in situations where by the law of its country of origin it did not and was deemed never to have applied.

In my opinion, the rule against inalienability can have no place in our land law whose distinguishing feature is communal, rather than individual, ownership of land. In Amodu Tijani v Secretary of State, Southern Nigeria [1921] 2 AC 399 their Lordships of the Privy Council observed that whereas in England title to land is nearly always in some form or the other that of the individual, in countries like India and Nigeria it may be that of the community. “Such a community,” they said, “may have the possessory title to the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession.” Then at pages 404-405 they quoted with approval the following passage from Rayner CJ’s Report on Land Tenure in West Africa:

“The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land, but in every case the chief or headman of the community or village, or head of the family, has charge of the land, and in loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it, but the land so given still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger. This is a pure native custom along the whole length of this coast, and wherever we find, as in Lagos, individual owners, this is again due to the introduction of English ideas. But the native idea still has a firm hold on the people and in most cases, even in Lagos, land is held by the family. This is so even in cases of land purporting to be held under Crown grants and English conveyances. The original grantee may have held as an individual owner, but on his death his family claim an interest, which is always recognised, and thus the land becomes again family land. My experience in Lagos leads me to the conclusion that except where land has been bought by the present owner there are few natives who are individual owners of land.”

This study was made in 1898. Eleven years later, Redwar J also noted in his Comments on some Ordinances of the Gold Coast Colony that individual ownership of land was the exception rather than the rule, although it was likely to become more extensive as European ideas gained a firmer foothold on these shores. Well, European ideas of individual ownership of land have, indeed, gained a firmer foot-hold these past ninety years, but it is as true today as when Rayner CJ submitted his report that quite often land held by an individual reverts into family ownership on his death.

A more cogent argument can be made with regard to section 164 of the English statute. Sub-sections (1) and (2) which have been made part of our law by section 111(2) of Act 372 lay down certain periods beyond which income may not be accumulated. It is further provided that:

“In every case where any accumulation is directed otherwise than as aforesaid, the direction shall (save as hereinafter mentioned) be void; and the income of the property directed to be accumulated shall, so long as the same is directed to be accumulated contrary to this section, go to and be received by the person or persons who would have been entitled thereto if such accumulation had not been directed.”

 The words “save as hereinafter mentioned” refer to the exceptions set out in sub-section 2. It should be remembered, however, that since section 111(4) of Act 372 requires that section 164(1)(2) of the Law of Property Act and the English statutes of general application be treated as if they formed part of the common law, these statutes do not override the customary law.

If the Court of Appeal is right that the rule against inalienability applies to the dispositions made by the late Anim-Addo, we shall be hard pressed to find a yard-stick to determine whether the gifts “to the descendants of Abena Asantewa” or “the descendants of her children” are charitable and lawful because the statutes which list charitable gifts do not apply here. For the moment, however, let us assume that these statutes do apply and consider the English case of Re Compton, Powell v Compton (1945) Ch 123 CA, where the testatrix set up an educational trust for the descendants of three named persons. At the time the issue was determined, there were twenty-eight such descendants entitled to benefit from the gift. It was held that the object being to provide for the education of the deceased’s relatives rather than a section of the community or the community at large, the gift was not a valid charitable trust and as it tended towards perpetuity it was void.

But even in England, a gift in perpetuity of property for a non-charitable purpose may be upheld if the beneficiaries can deal with the property as they please. Two cases may be cited to illustrate this. In Cocks v Manners (1871) LR 12 Eq 574, the testatrix bequeathed the residue of all her property to four religious institutions. Of these institutions two were convents where Roman Catholic women lived together by mutual consent in a state of celibacy under a common Superior for the purpose of sanctifying their own souls by prayer and contemplation. Upon enquiry it was established that inmates of one of the convents also undertook, as a necessary part of their vocation, teaching among the poor and nursing of the sick, while those of the other did not engage themselves in any works of piety or charity. It was held that the gift to the former was good as a charitable trust. As regards the latter, Wickens VC said at 586:

“¼the gift is ordered to be paid to the superior for the time being; and the superior, when she receives it, will be bound to account for it to the convent - to put it, so to speak, into the common chest; but when there it will be subject to no trust which will prevent the existing members of the convent form spending it as they please. It would, I conceive, be an extreme stretch of the rule against perpetuity to hold that it applies to a gift of this sort.”

He held that since the money was payable to the Superior without any directions as to how it was to be spent, it was valid as an absolute gift to individuals.

In Re Clarke v Clarke [1901] 2 Ch 110, the gift was to “the committee for the time being of the Corps of Commissionaires in London to aid in the purchase of their barracks, or in any other way beneficial to that corp.” Dealing with the law, Byrne J said at page 114:

“It is, I think, established by the authorities that a gift to a perpetual institution not charitable is not necessarily bad. The test, or one test, appears to be, will the legacy when paid be subject to any trust which will prevent the existing members of the association from spending it as they please? If not, the gift is good. So also if the gift is to be construed as a gift to or for the benefit of the individual members of the association. On the other hand, if it appears that the legacy is one which by the terms of the gift, or which by reason of the constitution of the association in whose favour it is made, tends to a perpetuity, the gift is bad.”

He then examined the constitution of the association and the purposes to which the money was to be put and continued at pages 121 - 122:

“Now, it is true enough that “to aid in the purchase of their barracks” rather points to something that is to last for a considerable time but it does seem to me that all the members of a society constituted as this one could, if they so please, and unless the building of the barracks be a charity, deal with the funds intended for building or with the buildings just as they please. If it is a charity they could not deal with them as they please, but then the gift is perfectly good. If it is not a charity they could deal with them as they please, because there is nothing to prevent all the members of the association joining together to dispose of the funds or of the barracks.

The gift goes on “or in any other way beneficial to that corps.” That gives discretion to the committee for the time being when they get the money, as I read it, to apply the fund as they shall consider to be beneficial. They may put it into the building fund or into the general funds of the corps, or they may deal with it in any way they please for the benefit of the corps. When once it forms part of the funds of the corps, it may be dealt with by the governing body of the corps in any way they may think best for the benefit of the corps.

It appears to me that the result is this: if and so far as any of the objects of this gift may be considered to be charitable, the gift is good on that ground. If and so far as the objects are not charitable the gift is good, because, within the meaning of the authorities I have referred to it does not tend to perpetuity. I hold, therefore, that the gift is good.”

We were told that at the time of the death of Anim-Addo there were eight children. It is arguable that even though in England the gifts would be classified as non-charitable, they might be held to be good if they were seen as intended for the benefit of these persons to be dealt with as they pleased.

In my opinion, since the deceased left a written will it is his intention that determines whether common law or customary law is to govern the dispositions made by him. The fact that he chose to make such a will raises no presumption in favour of common law. That was a colonial legacy to which we bid a final farewell when we enacted Act 360. We need therefore to look at the terms of the will to discover the intention of the testator. Looking at the will, one gets the impression that the late Anim-Addo was a man steeped in tradition; one who felt he has a greater obligation to cater for the needs of members of his maternal family than for those of the children begotten by him. Although this may sound quaint to modernists, it is in keeping with Akan traditions.

The devises and bequests do not infringe any rule of the customary law to which the late Anim-Addo was subject. Those made in clauses 1, 6 and 13 recognise that among the Kwahus, as among most Akans, succession is matrilineal. They do not have the effect of tying down the property in perpetuity because by custom the family constituted by Abena Asantewa and her descendants can at any time sell, mortgage or otherwise dispose of them. By the same token, although clauses 7 and 10 require the accumulation of funds for the benefit of the descendants of Abena Asantewa these descendants can at any time bring the accumulation to an end. I am satisfied that there is more than ample evidence in the will of an intention to be bound by customary law. Following Hagan v Ackon, Sey v Sey, Impraim v Baffoe and Arbenser v Hesse effect can be given to that intention.

For the above reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the order of the High Court dismissing the action.

AIKINS JSC. This appeal is from the decision of the Court of Appeal overturning the decision of the High Court which gave judgment for the defendants in respect of the will of the testator, Patrick Kwaku Anim-Addo as against the claim of the plaintiffs, the children of the testator, that they are entitled to 9/16 share of their late father’s estate.

The will was made on 5 September 1987 and the relevant statute governing it is the Wills Act 1971 (Act 360), section 1(1) which empowers any person of the age of eighteen years to make a will in writing and in accordance with the Act disposing of any property which is his and to which he will be entitled at the time of his death or to which he may be entitled thereafter. The Act itself does not deal with the law applicable to the devolution of a person’s estate, and this is taken care of by section 49(1) of the Courts Act 1971 (Act 372) which provides that in determining the law applicable to any issues arising out of any transaction or situation, the court shall be guided by the seven rules stated within the subsection in which references to the personal law of a person are references to the system of customary law to which he is subject or to the common law where he is not subject to any system of customary law. Two of the rules are germane to the issues in this case. These are rules 1 and 2. They provide as follows:

“Rule 1. An issue arising out of a transaction shall be determined according to the system of law intended by the parties to the transaction to govern the issue or the system of law which the parties may, from the nature or form of the transaction be taken to have intended to govern the issue.

Rule 2. In the absence of any intention to the contrary, the law applicable to any issue arising out of the devolution of a person’s estate shall be the personal law of that person.”

The force of the subsection is not absolute but subject to the provisions of the Act itself and any other enactment. The language of the subsection is clear and unambiguous, and since the testator hailed from Kwahu the requisite personal law in this context is surely Kwahu Akan customary law.

It is pertinent to note that the Wills Act 1971 itself does not define the word “devolution” in rule 2 above, and in a situation like this the courts take judicial notice of definitions stated in acknowledged judicial dictionaries. Earl Jowitt’s Dictionary of Law at p 626 defines “devolution” as “the transmission of an interest in property from one person to another by operation of law, eg on death, bankruptcy or insolvency, when the estate becomes vested in the personal representatives or official receiver or trustees.” And Stroud’s Judicial Dictionary, 4th ed Vol 2, p 270 also defines “devolve” as “to pass from a person dying to a person living.” It is clear from these definitions that the provisions of section 49(1) appropriately deal with the issues arising out of the will made by the testator Anim-Addo. Had he not been subject to customary law he would have been subject to the common law and sections 161 and 164(1) and (2)

of the English Law of Property Act 1925. This common law has been defined in section 17(1) of the Interpretation Act 1960 (CA 4) as follows:

“The common law, as comprised in the laws of Ghana, consists, in addition to the rules of law generally known as the common law, of the rules of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application.”

Section 111(2) of Act 372 makes sections 161 and 164(1) and (2) of the Law of Property Act 1925 applicable to Ghana subject to such verbal amendments, not affecting the substance, as may be necessary to enable those sections to be conveniently applied in Ghana, subject to a proviso that is irrelevant to this case. And subsection (4) specifically states that those two sections of the 1925 Act of England “shall be treated as if they formed part of the common law, prevailing over any rule thereof other than a rule of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application.’

To appreciate the background of the case for the plaintiffs-respondents, it is necessary to examine the provisions of sections 161 and 164 of the 1925 Act of England. Section 161(1) simply abolished the double possibility rule, which prohibits a life interest to an unborn child or other issue of an unborn child. In other words what the section did was to abolish one of the rules against perpetuities, without prejudice to any other rule relating to perpetuities. Section 164 provides restrictions on accumulations of income. For ease of reference I quote below what the sections say:

“161(1) The rule of law prohibiting the limitation, after a life interest to an unborn person, of an interest in land to the unborn child or other issue of an unborn person is hereby abolished, but without prejudice to any other rule relating to perpetuities.

(2) This section only applies to limitations or trusts created by instrument coming into operation after the commencement of this Act.

164(1) No person may by any instrument or otherwise, settle or dispose of any property in such manner that the income thereof shall, save as hereinafter mentioned, be wholly or partially accumulated for any longer period than one of the following, namely-

(a) the life of the grantor or settlor; or

(b) a term of twenty-one years from the death of the grantor, settlor or testator; or

(c) the duration of the minority or respective minorities of any person or persons living or en ventre sa mere at the death of the grantor, settlor or testator; or

(d) the duration of the minority or respective minorities only of any person or persons who under the limitations of the instrument directing the accumulations would, for the time being, if of full age, be entitled to the income directed to be accumulated.

In every case where any accumulation is directed otherwise than as aforesaid, the direction shall (save as hereinafter mentioned) be void; and the income of the property directed to be accumulated contrary to this section, shall go to and be received by the person or persons who would have been entitled thereto if such accumulation had not been directed.”

It will be seen that section 161 did not re-enact the perpetuity rule.

The will of the testator Anim-Addo contained the following bequests and devises:

“(1) I appoint Mrs Addae Mensah alias Abena Biama as one of the executors to administer my interest in the company Ghana Textile Manufacturing Co Ltd and pay the benefits profits to Abena Asantewa my niece in her life time and after hear death should pass on to the descendants of her children.

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

(7) I appoint Yaw Asirifi and Gideon Nyarku to run Kwanin Trading Co Ltd as directors and administer the company and invest the benefits and profits to the descendants of Abena Asantewa.

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

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

The plaintiffs claim that:

(a) The dispositions “to the descendants of Abena Asantewa” sin against the perpetuities rule as the descendants of Abena Asantewa born 21 years from the testator’s death or born after the death of all lives in being living at the death of the testator would benefit.

(b) As a class gift, the dispositions are all null and void for uncertainty of the number of the class which would benefit under the bequests.

(c)  The bequests are void because they are against the rule on accumulations.

(d) The bequests are void as one against the rule on inalienability; and

(e) Since the bequests and devices are void as far as the dispositions are concerned the testator died intestate, and by the provisions of the Intestate Succession Law 1985 (PNDCL 111) the children of the testator are entitled to 9/16 of the estate.

The plaintiffs therefore asked for:

(1) A declaration that the devises and bequests are null and void;

(2) Perpetual injunction restraining 1st, 2nd, 3rd and 4th defendants from giving vesting assents in respect of dispositions complained of;

(3) An order for accounts for all rents and profits accruing from the said properties.

In their defence, the defendants deny that the devises or bequests sin against the rules of perpetuities, accumulations and inalienability, and contend that these rules do not apply to Ghana. They further contend that the personal law of the testator which is Kwahu Akan customary law is the applicable law, and argue that even if the rule against perpetuities is applicable, the rule in Andrews v Partington, otherwise known as the class-closing rules would apply to validate the bequests because at the testator’s death 24 descendants of Abena Asantewa were alive, ie her 8 children and 16 grandchildren, and these could have taken the properties affected by the bequests. Lastly they contend that if the bequests are void on account of these rules the gifts fall into residue in terms of section 8(1) of the Wills Act 1971 (Act 360).

The High Court per Brobbey J held that section 161 of the 1925 Act of England did not re-enact the perpetuity rule, neither did it abolish that rule. He also adopted the interpretation put on the tail end of section 161(1), ie “without prejudice to any other rule against perpetuities” by Halsbury’s Statutes of England, 2nd ed p 768 to mean the so-called modern rule against perpetuities which is left as the sole rule applicable to all forms of property for limitations operating after 1925. He further held that by virtue of section 111 of Act 372 and sections 161 and 164 of the 1925 Act of England, the common law rules of perpetuities and accumulation were applicable to Ghana. The court further held that “apart from the provisions expressly mentioned in section 111(4) any other English enactment has no direct application to Ghana as a statute per se, since the passing of the Courts Act (Act 372). This is of much significance because even though Act 372 with its section 111 came into force on 22 September 1971, the Wills Act 1971 (Act 360) had already come into force on 1 June 1971 and section 19 of the Act specifically states that “the English statutes relating to wills as they apply in Ghana shall cease to apply.” The statutes of England therefore mentioned in subsections (1) and (2) of section 111 should only be treated as if they formed part of the common law.

The High Court considered the will as having been made under the Wills Act 1971 (Act 360) by the testator who had devised his property to his niece for life and thereafter her descendants. In construing the will under Act 360, the court held that since the testator was an Akan subject to Kwahu customary law, a devise of his property to his niece for life and after her death, to her descendants, constituted a gift to the customary family originated by the niece forming part of the larger customary family to which the testator belonged, the family being the basis, among the Akans, of ownership of property of a deceased member. The trial judge said:

“The fact that a Ghanaian like the late Anim-Addo, made a will in English language and in form similar to the making of wills in England does not make the will an English will. It is a Ghanaian will, made by a Ghanaian under the laws of Ghana, and to be interpreted in the light of the laws of Ghana. In the instant case, the relevant law of Ghana is the Wills Act 1971 (Act 360).”

As to whether the class-closing rule is applicable in Ghana, the court held that if it was to be applied in Ghana at all, it was to be applied as part of the rules of common law.

Dissatisfied with this decision the plaintiffs appealed to the Court of Appeal which affirmed the decision of the High Court that the common law rules of perpetuities and accumulations were applicable in Ghana by virtue of section 111(1) and (2) of Act 372, but reversed the decision of the High Court that the common law rules of perpetuities and accumulations were not applicable to the devises made by the testator. The Court of Appeal held that the rules were rather applicable to the devises made by the testator under the Wills Act 1971 (Act 360), but were not applicable to wills made under customary law. The court held further that the common law rule of class-closing as enunciated in Andrews v Partington was inapplicable in determining the effect of the devise made by the testator. It is against this judgment that the defendants have appealed to this court.

Learned counsel for the defendants-appellants has contended that the Court of Appeal confused itself into thinking that in addition to asking for a declaration that the devise in the will of the testator to the descendants of Abena Asantewa was null and void, the children of the late Anim-Addo were also seeking a declaration in respect of the devises “to Abena Asantewa and her descendants” as null and void as offending the rule against perpetuities since the descendants of Abena Asantewa born 21 years from the death of the testator or born after the death of all beings living on the death of the testator would benefit.” Learned counsel argued that no such limitation existed in the will of the testator, and the Court of Appeal slipped into serious error in lumping Abena Asantewa’s interest with the gift to her descendants and declaring them void. He stressed that Abena Asantewa’s gift vested immediately on the death of the testator and cannot be affected by the rule. I think learned counsel is right in this contention and his view must be upheld. I hold therefore that the limitation to Abena Asantewa is not void.

In resolving the question whether the rules against perpetuities, accumulations and inalienability apply in Ghana and the extent of their application, Kpegah JSC, reading the lead judgment of the Court of Appeal reported in Addo v Mensah [1992-93] GBR 373 at 378 said:

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

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

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

It seems to me that the Court of Appeal failed to appreciate the proper meaning of section 49(1) and the difference between an enactment and an assimilated English statute, which is only part of the common law. As counsel for the defendants-appellants rightly urged, the words “subject to the provisions of this Act and any other enactment” in section 49(1) of Act 372 cannot have the meaning attributed to them by the court. Section 49(1) cannot have the meaning attributed to them by the court. The section cannot be subject to section 111 because all that section 111 does is to make sections 161 and 164 of the 1925 Act of England part of the common laws of Ghana.

I must say that the Wills Act 1971 (Act 360) deals solely with the making of wills, and it is difficult to appreciate the reasoning of the Court of Appeal that a Ghanaian who makes a will under the Wills Act 1971 (Act 360) manifests an intention not to be subject to customary law, and must be taken as intending English rules on accumulation and perpetuities to be applied.

I seem to agree with learned counsel for the appellants that the Court of Appeal’s explanation on samansiw is entirely unnecessary and irrelevant in determining the issues before the court. There is no gainsaying the fact that a will made under the Wills Act 1971 (Act 360) is a Ghanaian will made under the laws of Ghana, and a devolution under it must be subject to the application of Ghana law, the relevant law being section 49(1), rule 2 of the Courts Act 1971 (Act 372). That being the case a gift to the descendants of Abena Asantewa cannot be affected by the rules of accumulation and perpetuities, more especially as under the Akan family system a woman member as its potential originator, is presumed to exist in perpetuity - see Ollennu’s Testate and Intestate Succession 1966 ed at pages 67-78.

A sharp conflict between the common law and customary law appears to rear its head in respect of land holding in this country. The common law as comprised in the laws Ghana, is said to consist of (1) rules generally known as the common law (perhaps English common law), (2) rules generally known as the doctrines of equity and (3) rules of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application; see section 17(1) of the Interpretation Act 1960 (CA 4). Subsection (2) of that section provides that in the case of inconsistency (ie between the rules), an assimilated rule shall prevail over any other rule, and a rule of equity shall prevail over any rule other than an assimilated rule. And customary law is also defined in section 18 of CA 4 as consisting of “rules of law which by custom are applicable to particular communities in Ghana, not being rules included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application.”

It would seem that under customary law land could be held in perpetuity (and there are quite a few cases supporting that view) even though this is not the case under English law. In Hagan v Ackon DC (Land) ‘38- ‘40 at pp 28-29 the devise was “unto and to the use of A, B, C and their heirs and successors in title absolutely for ever to use as family house according to Fanti customary law.” The court rightly, in my view, held that the devise attempted to create a perpetuity which would be bad in English law, but in the Gold Coast (as Ghana was) land held by native tenure was subject to customary law of the Gold Coast Colony and that the devise in perpetuity was good.

Learned counsel for the respondents, Mr E D Kom has criticised this decision as bad law and that the English judge, who happened to be Doorly J had forgotten his English law. I disagree with counsel. The testator specifically expressed that the house should be used “as family house according to Fanti customary law,” and the court was giving effect to the wishes of the testator as expressed in the will. Another case is Sey v Sey [1963] 2 GLR 220 where a testator devised to his brother Kwamin Abadoo his two chambers and a hall, one extra room occupied by one Hazel and the testator’s store with the instruction that: “My brother Kwamin Abadoo is not to sell this house for any reason thereby to cause my children to go astray. He is to look after my children well and live with them peaceably and quietly as I had been doing.” The plaintiff, a daughter of the testator, sued on behalf of herself and her brothers and claimed that the will, when properly interpreted or construed created Kwamin Abadoo a “trustee with respect to the house the subject of the several devises.”

After hearing arguments of counsel for the parties the trial High Court judge rejected the plaintiff’s contention and held that:

“By clause (a) [ie I give to my brother Kwamin Abadoo my two chambers and hall, one extra room occupied by Hazel and my big store] Kwamin Abadoo takes the devises in perpetuity. On his death the entire house does not rest in the plaintiff and her brothers absolutely as owners thereof. Clause (b) [ie that Kwamin Abadoo should not sell the house] does not create Kwamin Abadoo a trustee with respect to the house.”

On appeal to the Supreme Court by the plaintiff the court held that the learned trial judge gave a correct interpretation of the two clauses of the will submitted to him. The will was therefore not set aside because it sinned against the rule on perpetuity.

The next issue to be considered is whether the rule in Andrews v Partington (1971) 3 Bro CC 401 otherwise known as the class-closing rule is applicable to avoid the rigours of the common law rule of perpetuity. For my part it becomes necessary to consider this issue not just in relation to the will of Anim-Addo, but because of my view that the common law rule of perpetuity is relevant to the case of a person not subject to any system of customary law, but under section 49(1) of Act 372 would be subject to the common law.

Meggary and Wade have this to say about the application of the rule of perpetuity to class gifts in their Law of Real Property (4th ed) at p 229:

“At common law the perpetuity rule applies to class gifts in the following way. If a single member of the class might possibly take a vested interest outside the period, the whole gift fails, even as regards those members of the class who have already satisfied any required contingency. A class gift cannot be good as to part and void as to the rest: “the vice of remoteness affects the class as a whole, if it may affect an unascertained number of its members.” Until the total number of members of the class has been ascertained, it cannot be said what share any member of the class will take, and this state of affairs will continue so long as it is possible for any alteration in the number to be made. Commonly the offending possibility is that the number may be increased; but the possibility that it may be decreased is equally fatal. Even though in such a case the minimum amount of each share is fixed within the period, the whole gift is void if the shares could be augmented by an event which is too remote.”

To avoid the rigours of the common law rule of perpetuity the rule in Andrews v Partington was enunciated as part of the common law rules which governed the closing of classes. The rule in Andrews v Partington was not abolished by the 1925 Act of England. Meggary and Wade emphasise that if the gift is contingent, eg upon the members of the class attaining the age of 21 years, the class will close on the attainment of 21 years by the first member who will be entitled in possession; others who are in existence but under the age of 21 years will take their shares on attaining 21; but those not yet born will be excluded so as to fix the minimum size of the shares.

Though the trial High Court held in an obiter that the class-closing rule was to be applied as part of the rules of common law if the rule was to be applied in Ghana, the Court of Appeal overruled it and held that the rule was inapplicable. I would agree with the Court of Appeal if it meant that the rule would be inapplicable in determining the effect of the devises made by the testator, for the reason I have already given that the perpetuity rule does not apply to the will of the testator because he is subject to customary law. But if as the reasoning of the Court of Appeal went it means that the class-closing rule does not apply in Ghana at all, I would not agree, since at common law the perpetuity rule applies to class gifts, and by section 111(2) and (4) the provisions of sections 161 and 164(1) and (2) of the 1925 Act of England are made applicable in Ghana as if they formed part of the common law.

For my part this would have been the end of the matter. However, assuming for the sake of argument, that the rules of perpetuities and accumulation apply to the will of the testator, or supposing this will had been made by a person not subject to customary law but to the common law as enunciated in section 49(1) of Act 372, it may not be incongruous if I comment on the contention that the common law rules of perpetuities and accumulation adversely affect the devises-bequests of the testator.

Taking the devise in clause 6, a gift “to Abena Asantewa my niece in her life time and after her death should pass on to the descendants of her children”, the second part is a class gift the members of which are descendants of Abena Asatewa’s children. Therefore if on the testator’s death there is living any child of Asantewa, the gift is saved, but the class will close at the end of Abena Asantewa’s life interest. It is said that at the time of the testator’s death Abena Asantewa’s eight children had between them sixteen children. The rule therefore would apply for these grandchildren to qualify to take at the time of the testator’s death.

As to the devise in clause 13 “to Abena Asantewa and after her death should pass to her descendants” the descendants are Abena Asantewa’s children and the children of her children, ie her grandchildren. At the time of the testator’s death, these descendants were eight plus sixteen, ie twenty-four members of the class living. The rule would apply. The third devise is “to the descendants of Abena Asantewa.” Here the twenty-four descendants living at the time of the testator’s death qualify. The fourth gift is “for the benefit of the descendants of Abena Asantewa.” As the twenty-four descendants of Abena Asantewa were living at the time of the testator’s death the rule would apply. The fifth gift is to Abena Asantewa and after her death should pass to her descendants. The rule would apply here again to qualify the twenty-four descendants living at the testator’s death to take.

As to the application of the rule of accumulation, the seventh and tenth clauses run thus:

(7) I appoint Yaw Asirifi and Gideon Nyarku to run Kwanin Trading Co Ltd as directors and to administer the company and invest the benefits and profits to the descendants of Abena Asantewa.

(10) I devise and bequeath the residue of my real estate to my trustees upon trust as follows: As to houses to collect rents and after paying annual rates, taxes etc to invest the net rents in Government bonds, and as to personal estate upon trust to call in and convert into money if the need arises and to invest for the benefit of the descendants of Abena Asantewa. (Emphasis supplied.)

The word “accumulation” has been defined in Earl Jowitt’s Dictionary of English Law (1959 ed) p 32 as: “Piling by of dividends, rents and other incomes and converting them into principal by investing them and again investing the income arising from the new principal and so on.” The issue for determination is whether the direction in the third clause amounts to accumulation. I do not think so. The dividends are to be invested once for the benefit of the descendants of Abena Asantewa who thus become entitled to the proceeds thereof immediately. It would amount to accumulation if the dividends were to be reinvested again and again, making it impossible for the descendants to enjoy it until a time after the statutory period. Likewise the direction in the fourth clause to invest in government bonds for the benefit of the descendants of Abena Asantewa, without the proceeds being invested again and again thus making it difficult for the descendants to control the funds and use them.

With reference to the personal estate, the direction is to convert it into money for the benefit of the descendants of Abena Asantewa if the need arises. The descendants can enjoy the money immediately without waiting for the need to arise. The gifts are therefore valid and not in conflict with section 164(1) and (2) of the 1925 Act of England. If, however, accumulation were said to have been created, the void gift would fall into residue under section 164(2) of the 1925 Act of England, which provides that the void disposition should be received by the person or persons who would have been entitled thereto if no such accumulation has been directed.

Before I deal fully with the question as to the disposal of the residue, I would like to comment briefly on the direction in clause (3) which says: “I appoint Yaw Asirifi and Gideon Nyarku to run Kwanin Trading Co Ltd as directors.” Surely the testator cannot be taken to be serious on this since as an experienced, astute and shrewd business executive he should know that he was dealing with a limited liability company and not a partnership. Section 179 of the Companies Code 1963 (Act 179) defines “directors” as persons who are appointed to direct and administer the business of the company, and section 181 thereof provides that the person so appointed shall consent in writing to be a director before he is appointed. Section 272 which deals with the appointment and removal of directors of a private company provides that such appointment shall be regulated by the company’s regulations, and in the absence of any contrary provision in the company’s regulations, the company may at any time by ordinary resolution make such appointment to fill any vacancy in the total number of directors. The state of the law is such that the appointment of Yaw Asirifi and Gideon Nyarku in the will cannot be enforced.

Now on the question of the disposal of the residue section 8(1) of the Wills Act 1971 (Act 360) provides:

“8(1) A disposition made to a person who predeceases the testator or which is contrary to law or otherwise incapable of taking effect shall lapse and fall into residue, unless a contrary intention appears in the will.” (Emphasis mine.)

Clause 5 of the will states as follows:

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

Learned counsel for the respondents has urged that the residuary clause is void for perpetuity with the result that the testator died partly testate and partly intestate. He submitted that the gift “to her descendants” sins against the perpetuity rules so that after the life interest of Abena Asantewa the residuary gift lapses and the plaintiffs take by way of intestacy under PNDCL 111. I find it difficult to appreciate his line of argument because as pointed out earlier, section 8(1) of Act 360 specifically states that unless a contrary intention appears in the will, the gift should fall into residue. It follows that where there is a direction in the will as to the disposal of the residue, effect must be given to this intention or directive. The contrary intention is that such properties should pass on to Abena Asantewa and after her death to her descendants, which means that after the death of Abena Asantewa her 24 descendants should take. I think this court can take judicial notice of the fact that if a disposition of property in a will is held to be void, such property must be taken as if it had not been mentioned at all in the will.

In the result I would allow the appeal and set aside the decision of the Court of Appeal.

BAMFORD-ADDO JSC. I have had the privilege of reading in advance the judgement of my brother Hayfron-Benjamin JSC. I am in complete agreement with him and would add my own reasons. This is an appeal from the decision of the Court of Appeal which reversed the decision of the High Court giving judgment for the defendants in a claim by the plaintiffs that certain dispositions of property contained in certain clauses of the will of the late Dr Anim-Addo dated 5 September 1987 were void. The High Court held that since the Courts Act 1971 (Act 372) applied to Ghana, sections 161 and 164 of the English Law of Property Act 1925 (15 & 16 Geo 5, c 20) dealing with the rules against perpetuities and accumulations formed part of the common law of Ghana, but was not applicable to the will under consideration, for the reason that by virtue of s 49(1) rule 2 of Act 372 the devolution of Dr Anim-Addo’s estate was governed by his personal law or customary law to which he was subject, that is Kwahu customary law. Therefore the court held that since the common law did not apply, the devises challenged were not void. The Court of Appeal however held that the common law rules applied to the will of the testator Dr Anim-Addo and allowed the appeal.

It is to be noted that the testator made his will under the Wills Act of 1971 (Act 360). Prior to the passage of this law the English Wills Act 1837 applied to wills made in this country but after its passage this Act ceased to apply. See s 19 of Act 360. The Act was also not to affect oral testamentary dispositions, ie nuncupative wills or samansiw made in accordance with customary law. If the testator had made a customary will then the common law and rules of prohibition and other rules of construction under Act 360 namely sections 7 and 8 would not have applied, but Anim-Addo having made his will under Act 360, these laws certainly applied to that will.

Section 111(2) of Act 372 applied sections 161 and 164 of the Law of Property Act 1925 to Ghana with such verbal amendments, not affecting the substance as may be necessary to enable those sections to be conveniently applied in Ghana. Section 111(4) states:

“The Statutes of England referred to in subsection (1) and (2) of this section shall be treated as if they formed part of the common law, prevailing over any rule of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as suitable for general application.”

Section 161(1) of the Law of Property Act 1925 provides as follows:

“The rule of law prohibiting the limitation after a life interest, to an unborn person, of the interest in land to an unborn child or other issue of an unborn person, is hereby abolished but without prejudice to any other rule relating to perpetuities.

(2) This section only applies to limitations or trusts created by instrument coming into operation after the commencement of this Act.”

All that section 161 of the English Act of 1925 did was to abolish the double possibility rule but left unaltered the other rules relating to perpetuities or the so called “modern rule against perpetuities.” It left unaltered all other perpetuity rules including in my opinion the class-closing rules, which applies to wills made under Act 360. The rule, stated briefly, is that a limitation of any interest in any property real or personal was void, if it is capable of vesting after the dropping of a life or lives in being at the time of the gift, with a further period of gestation if any. Dr Cheshire in his treatise entitled Modern Real Property (9th edition) stated the rule as follows:

“The vesting of a future interest may not be postponed for a larger period than a life or any number of lives in being (including the life of a person en ventre sa mere) at the time of the limitation and 21 years after the dropping of the life or, if there are several lives, after the dropping of the last surviving life, but at the end of this period the limitation may still take effect, if the person in whom the interest is to vest is en ventre sa mere.”

The class-closing rules are stated in Andrews v Partington (1791) 3 Bro CC 401 also apply to class gifts and is designed by the courts to save class gifts if possible, which would have otherwise failed for remoteness. Section 164 of the Law of Property Act 1925 also prohibited accumulation of income beyond certain specified periods. The rules against perpetuities and accumulations form part of the common law and are applicable to wills made under Act 360 including Anim-Addo’s will. However, they are not applicable to customary wills. Section 49(1) rule 2 of Act 372 deals with the choice of law applicable to the devolution of property on intestacy. See Hagan v Ackom DC (Land) 1938-47 p 26; Ekam v Nerva [1947] DC (Land) ‘38-’47, 268; Youhana v Abboud [1974] 2 GLR 201; Thompson v Thompson [1981] GLR 537.

Section 49(1) rule 2 therefore has no application in this case and the validity of the will has to be determined by the application of the relevant common law rules as well as rules of construction specified in sections 7 and 8 of Act 360, to determine whether any clause of the will offends against rules of prohibition contained in the common law. According to section 7(2) of Act 360 “a disposition of immovable property without words of limitation shall pass the whole of the estate or interest therein which the testator has power to dispose of by will.” This implies that in the disposition of immovable property where there are words of limitation, the interest has to vest within the perpetuity period or fail for remoteness. It is in the light of the applicable common law rules as well as rules of construction contained in sections 7 and 8 of Act 360 that the various clauses would be individually examined to determine their validity or otherwise.

General principles of construction should also be applied as well. The object of the court in construing a will is to ascertain the intention of the testator as expressed in his will when it is read as a whole. As Lord Simon LC put in Perrin v Morgan [1943] AC 399, 406.

“The fundamental rule in construing the language of a will is to put on the words used a meaning which, having regard to the terms of the will, the testator intended. The question is not, of course what the testator meant to do when he made the will, but what the written words he uses mean in the particular case - what are the expressed intention of the testator.”

It is the function of the court to construe the will not to make a new will or to speculate on what the testator may be supposed to have intended but to give effect to the dispositions actually made as appearing expressly or by necessary implication from the language of the will. Generally words would be given their ordinary dictionary meaning, ie the strict, plain, common meaning of the words used except where a word is used in a technical sense or there is an intention in the will that the word must be construed in a different sense. But in such a case it is for the party claiming such interpretation of the words to show clearly from the context of the will that the testator intended to give it that different meaning. See the case of Abenser v Hesse [1981] GLR 411. In Re Mensah (Deceased) Barnier v Mensah [1978] 1 GLR 225, it was stated that:

“The policy of the courts in matters affecting testamentary dispositions was to give effect to the last wishes of the deceased and to uphold them unless there were overriding legal obstacles in the way.”

It has been argued here that the word “descendants” used in the clauses of the will under consideration should not be construed in the ordinary sense of the word but must be construed in another sense, so as to mean “customary descendants” connoting a family originated by Abena Asantewa as found in Kwahu or Akan customary law, even though there is nothing in the four corners of the will to show that this was the meaning intended by the testator. The fact that he was a Kwahu man is no reason for giving such an interpretation. The reason I see for this submission is that, if customary meaning were given then the rules of prohibition would not apply to the devises. I cannot agree with this interpretation of the word “descendants” because, if this were the intention of the testator he would have said so. In cases where property devised was directed to be held eg as “family property” the testator so indicated. See Abenser v Hesse [1981] GLR 411. In any case the word “descendants” has been defined in the case of Mmra v Donkor [1992-93] GBR 1636, SC. Amua-Sekyi JSC defined the word thus:

“In English language a child is a descendant in the first degree, hence the use of the prefix, “grand,” “great-grand” and “great-great-grand” when referring to remote descendants. As a great grandchild of Yaa Badu, the plaintiff is not among the class of persons who benefit under clause 7 of the will.”

In the same case, Wuaku JSC also stated “children in its primary meaning means descendants of the first degree, ie not grand-children.” I agree with my brothers, that “descendants” include many generations of relatives, an uncertain class at any given time. It is my view that this is the ordinary meaning of the word “descendants” to be given in this case. I now proceed to use the above principles and rules of law to test the validity of the various clauses of the will.

(1) I appoint Mrs Addae Mensah alias Abena Biama as one of the executors to administer my interest in the company Ghana Textile Manufacturing Company Ltd and pay the benefits, profits to Abena Asantewa my niece in her life time and after her death should pass on to the descendants of her children.

The gift to Abena Asantewa is valid but the future interest to “the descendants of her children” is too remote and fails.

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

Abena Asantewa takes the trinkets absolutely since the property is personal.

(7) I appoint Yaw Asirifi and Gideon Nyarku to run Kwanin Trading Co Ltd as directors and administer the company and invest the benefits and profits to the descendants of Abena Asantewa.

Directors of a limited liability company can only be appointed as provided for under the Companies Code 1963 (Act 179) and not by the will of a testator. Therefore the appointment of Yaw Asirifi and Gideon Nyarko is contrary to law and the disposition fails.

 (10) I devise and bequeath the residue of my real estate to my trustees upon trust as follows: As to houses to collect rents and after paying annual rates taxes etc to invest the net rents in government bonds and as to personal estate upon trust to call in and covert into money if the need arises and to invest for the benefit of the descendants of Abena Asantewa.

This disposition offends against both the rules against perpetuities and accumulations and fails.

(13) I direct that any property of mine including investment which has been left out and not mentioned under this will including lands should pass on to Abena Asantewa and after her death should pass on to her descendants.

Since (10) above refers to all of the residuary property, and has already been mentioned, there is no property to be disposed of under (13). That clause fails.

The failed gifts would fall into residue under s 7(6) of Act 360 and be distributed in accordance with the provisions of section 2 of the Intestate Succession Law 1985 (PNDCL 111). The appeal succeeds to