SUPREME COURT

2

Wills – Devise – Attesting witness – Validity  – Devise to attesting witness invalid – Wills Act 1837 (7 Will 4 & 1 Vic c 26) s 15, Wills Act 1971 (Act 360) s 3(4).

Wills – Devise – Construction – Whether devise to “children” of testator’s aunt a devise to descendants of said aunt.

Courts – Jurisdiction – Objection – May be raised at any time.

Courts – Circuit court – Jurisdiction – Value of property exceeding jurisdiction of court – Court may entertain action by consent of parties – Objection to jurisdiction to be raised in limine or in the pleadings to be set down for trial – Courts (Amendment) Law 1983 (PNDCL 47) s 32(a)(i), Courts Act 1972 (Act 372) s 32(2).

Evidence  - Wills – Admissibility  - Test for admission in evidence.

Wills  - Validity  - Unprobated will - Legal effect.

Administration of estates - Letters of Administration - Deceased dying testate  - Administrator disposing of an asset - Whether disposition valid – Administration of Estates Act 1961 (Act 62) s 97(1).

Limitation of actions - Title to land - Adverse possession - Time runs only when the defendant in adverse possession.

In his will the testator devised the disputed house to his niece B for life, after her death to all the children of the testator’s aunt, YB except one. YB had four children but was survived by O only. After the death of one of the executors appointed under the will, the surviving executor distributed the estate in accordance with the will without obtaining probate. The 1st defendant, as the customary successor, obtained letters of administration of the estate and, on the instructions of B and O, sold and assigned the property to D in settlement of a loan advance.

Dissatisfied with the disposition the plaintiff, claiming to be a member of the testator’s maternal family and a grandniece, instituted an action against the 1st defendant and the 2nd defendant, D’s successor, in the circuit court for herself and on the alleged authorisation of the family, claiming the disputed property as family property. The 2nd defendant contended that the action was statute-barred and counterclaimed for a declaration that D was a bona-fide purchaser for value and claimed perpetual injunction to restrain the plaintiff from interfering with her occupation of the property.

The circuit judge gave judgment for the plaintiff and dismissed the counterclaim. The Court of Appeal dismissed the 2nd defendant’s appeal and she appealed by leave to the Supreme Court.

The appellant’s counsel submitted at the hearing of the appeal in the Supreme Court that on the plaintiff’s own showing, the circuit court had no jurisdiction to entertain the suit as the value of the disputed property exceeded its jurisdiction. Counsel submitted further that the trial court ought to have ascertained the value of the property or sought the written consent from the parties to enable it proceed in the matter. Counsel submitted further that the action was commenced fifteen years or so after the sale of the house to D, long after the twelve-year limit in the Limitations Decree (NRCD 54); the action was therefore statute-barred. Finally, counsel submitted that the circuit court ought not to have admitted in evidence the unprobated will.

The respondent’s counsel replied that the jurisdictional point ought to have been raised in the court below, failing which the court rightly entertained the action. On limitation counsel submitted that the property is family property and limitation did not apply. Counsel argued additionally that since the will was not probated it could not be admitted in evidence; that O was disqualified from taking the remainder because he attested the will; that in so far as there was a will the grant of letters of administration to the 1st defendant was void and could not operate to pass title to D.

Held: (1) The house being the self-acquired property of the deceased the devise created a class gift of which B and YB’s son, O constituted the class entitled to the beneficial interest. YB took a life interest with the remainder to O. The prevailing provision in section 15 of the Wills Act 1837 of England, (now Wills Act 1971 (Act 360) s 3(4) of Ghana) avoided a gift by a testator to an attesting witness. O was thus disqualified as a beneficiary and his interest lapsed into residue and vested in B and the 1st defendant as the administrator. Together they could dispose of the entire estate, which they did. The property was therefore not family property and neither the plaintiff nor the persons she purported to represent had locus standi and the action ought to have been dismissed in both courts below.

(2) Where a person chose a particular language to express himself, he must be presumed to intend the normal meaning of his words. The testator decided to use the English language in a will prepared by a lawyer, who would be deemed to know the difference between “children” and “descendants.” In the 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. There being no evidence on record that the attestation was false, “children” must be taken to mean what it meant in the English language, viz “sons and daughters.” Therefore surviving children of the said aunt meant her children living at her death. The plaintiff not being a daughter of the said aunt or representing a son or daughter of the said aunt did not qualify as a member of the class and had no interest in the property or locus standi. Mensah v Lartey [1963] 2 GLR 92, SC referred to.

(3) Under the Courts (Amendment) Law 1983 (PNDCL 47) s 32(a)(i) the circuit court had jurisdiction in a land suit where the value of the land did not exceed ¢100,000. Under s 32(2) of the Law if the value were disputed, the court would take evidence on the value and cause the case to be transferred to the High Court if it exceeded the jurisdiction of the court. The court could entertain the action even if the value exceeded the value provided the parties so agreed. Such agreement would be required only where it was apparent on the face of the writ of summons or pleadings that the value exceeded the jurisdiction of the court or where the parties agree that the value exceeded the jurisdiction of the court. On the other hand, section 32(2) of the Courts Act 1971 (Act 372) contemplated an objection to jurisdiction in limine or in the pleadings to be set down for trial. A dispute would then have arisen to be determined by evidence. The testimony of the respondent upon which the appellant relies in support of the jurisdictional point was equivocal and unreliable and the objection must fail. Ababio II v Akro & Co [1963] 1 GLR 195, SC referred to.

(4) The test for the admissibility of a will is that the document proffered is the solemn unilateral act of the testator, intended to take effect after his death and that the document was on its face executed in accordance with the relevant statute, in this case the English Wills Act 1837. A will did not depend for its validity upon probate. However probate was necessary for vesting titles in device or for executors to conclude litigation commenced by them without probate. Meyappa Chetty v Subramaniam Chetty [1916] 1 AC 603, referred to.

(5) Under section 97(1) of the Administration of Estates Act 1961 (Act 63) a conveyance by the holder of a probate or letters of administration was valid notwithstanding the subsequent revocation or variation of the probate or letters of administration. A court had the power to recall, vary or revoke a probate or letters of administration but till then an assignment by the personal representative could not be invalidated. The letters of administration granted to the 1st defendant was not void and the conveyance of the disputed property to Dwamena was lawful. Hewson v Shelley [1914] 2 Ch 13 referred to.

(6) Under the Limitation Decree 1972 (NRCD 54) s 10, if an occupier was not in adverse possession, the period of limitation could not run against the true owner. A person was said to be in adverse possession if he went into possession or dealt with the property without the knowledge or consent of the owner. Dwamena remained in possession under a mortgage that blossomed into the assignment of the title to him.

(7) An objection to the jurisdiction of a court may be raised at any time. It may be raised at the commencement of the trial or after the close of the case for the defendant or on a first appeal or a second or subsequent appeal. Quist v Kwantreng [1961] GLR 605; Zotorglo III v Gabienu & Akpakli [1962] 2 GLR 155, Hausa v Dawuda [1961] 2 GLR 550, Atoo v Town Clerk of Sekondi-Takoradi [1961] GLR 413, SC, Amoasi III v Twintoh, Supreme Court, 21 June 1988 referred to.

Cases referred to:

Ababio II v Akro & Co [1963] 1 GLR 195, SC.

Abraham v Conyngham (1676) 2 Lev 182, 1Vent 303, 2 Mod Rep 146, TJo 72, 3 Keb 725, 1 Freem KB 445, 23 Digest (Repl) 246.

Ali v Ali (1939) 5 WACA 94.

Amankwa v Akwawuah [1962] 1 GLR 324.

Ameko v Agbo [1961] GLR 747.

Amoasi III v Twintoh, Supreme Court, 21 June 1988.

Amoku v Duro (1953) 14 WACA 257.

Atoo v Town Clerk of Sekondi-Takoradi [1961] GLR 413, SC.

Boxall v Boxall (1884) 27 Ch D 220, 53 LJCh 838, 51 LT 771, 32 WR 896, 23 Digest (Repl) 81.

Meyappa Chetty v Subramanian Chetty [1916] 1 AC 603, LR 43, Ind App 113, 114 LT 1002, sub nom Chetty v Chetty 85 LJPC 179, PC, 23 Digest (Repl) 54.

Ellis v Ellis [1905] 1 Ch 613, 74 LJCh 296, 92 LT 727, 53 WR 617, 23 Digest (Repl) 246.

England v Palmer (1955) 14 WACA 659.

Folawiyo v Folawiyo (1944) 10 WACA 259.

Graysbrook v Fox (1565) 1 Plowd 275, 23 Digest (Repl) 53.

Hausa v Dawuda [1961] 2 GLR 550.

Hewson v Shelley [1914] 2 Ch 13, 83 LJCh 607, 110 LT 185, 30 TLR 402, 58 Sol Jo 397, CA, 23 Digest (Repl) 246.

Kwan v Nyieni [1959] GLR 67, CA.

Mensah v Lartey [1963] 2 GLR 92, SC.

Quist v Kwantreng [1961] GLR 605.

Ussher v Darko [1977] 1 GLR 476, CA.

Zotorglo III v Gabienu Akpakli [1962] 2 GLR 155.

APPEAL against the judgment of the Court of Appeal to the Supreme Court.

Richard Asamoah for the appellant.

W A N Adumua-Bossman for the respondent.

HAYFRON-BENJAMIN JSC. By a tenancy agreement made on 18 January 1947 between the Asantehene and Kwame Asiama all that piece and parcel of land known and numbered as BA 142, Kumasi, was let to the latter and he constructed “some buildings” on the said plot. Kwame Asiama died at Tanoso, Kumasi on 31 March 1962. It appears that initially there was some confusion as to what the family should do with respect to the estate. A will dated 19 December 1960 had been found. The will was executed by Opanin Kwame Asiama, Asomfehene, and duly attested by two witnesses namely Kwadwo Afum, a farmer of Tanoso and Kwasi Binim, also described as farmer of Tanoso. I have no doubt in my mind that this Opanin Kwame Asiama is the same person to whom the Asantehene gave the plot of land designated BA 142, Kumasi. Kwasi Binim is also the same person as Kwasi Obinim referred to in the record and the son of Opanin Kwame Asiama’s aunt by name Yaa Bedwa, the latter according to his will having predeceased him. Thus Kwasi Obinim was a cousin to the testator, Opanin Kwame Asiama.

The will of the Opanin Kwame Asiama named his two friends, Kwaku Buor and Kwabena Anane, both of Tanoso as his executors. Kwabena Anane, the second of the two executors died soon after the testator’s death. The surviving executor, Kwaku Buor, though he did not obtain probate of the will of Opanin Kwame Asiama, nevertheless distributed the estate in accordance with the wishes of the testator. The relevant paragraph of the will of the late Opanin Kwame Asiama with which we are concerned in this appeal is paragraph 7 wherein the testator stated:

“I give all that my freehold house No BA 142 in the Bantama District of Kumasi, to my niece Yaa Bedwa alone, that after her death, the said premises should be succeeded by the surviving children of my aunt, Yaa Badu. That Yaa Badu’s son Kofi Buor shall not succeed any property of mine whatsoever.”

As a result of the informal distribution of the estate of Opanin Kwame Asiama by the executor Kwaku Buor, Yaa Bedwa became the life tenant and Kwasi Obinim the remainderman, and together entitled to the house and plot No BA 142, Bantama, Kumasi. In these capacities they secured a loan of ¢1,420 from one Opanin Kwaku Dwamena upon the security of the property. The document evidencing this loan agreement is dated 31 May 1967.

However, it appears that in accordance with custom, Kwaku Addai, the 1st defendant in this case, was appointed successor to the testator and assumed the name of Asiama Ababio II of Tanoso.

Under this name he obtained letters of administration of the estate of Opanin Kwame Asiama from the High Court, Kumasi. In evidence before the Circuit Court, Kumasi on 10 June 1986 Kwaku Addai alias Asiama Ababio II (1st defendant) stated thus: “I succeeded to my uncle Kwame Asiama. When I succeeded him, all these properties came into my possession.”

The surviving executor took no steps to obtain probate of the will, It was later when Yaa Bedwa and Kwasi Obinim could not pay back the loan from Opanin Kwaku Dwamena that, upon their decision to sell the property to their creditor, they realised that there was no probate. When the parties consulted their solicitors about the possibility of effecting a valid transfer of the property, they showed both the will and letters of administration to them. According to the parties, the solicitors advised them to ignore the will and rather rely on the letters of administration. Thus assured, an assignment dated 22 January 1970 was executed wherein Asiama Ababio II, the 1st defendant alias Kwaku Addai, as successor and administrator assigned the right, title and interest in the property of the late Kwame Asiama to Kwaku Dwamena for a consideration of ¢3,000.

It must be stated at this stage that the loan agreement dated the 31 May 1967 discloses so much material relevant to some of the matters of law raised in this appeal that reference must be made to three clauses namely (b) (c) and (d):

“(b) That the creditor shall in pursuance of this agreement collect and receive from the said premises the monthly rent of twelve rooms as part payment of the said debt of N¢1,420 until the same is liquidated, commencing from the date of the execution of this agreement: provided that the principal debtor and the head of family/surety shall reserve to themselves jointly and severally the right to pay to the said creditor the balance which may be due and owing on the said debt after a period of two (2) years from the date hereof and upon the exercise of this right hereby reserved by the debtor and security of this loan transaction shall cease and the right vested in the creditor to collect the house rents shall also become determined.

(c) The creditor has agreed with the other parties herein the occupation of one (1) room in the said house by the principal debtor free of rent during the continuance of this agreement.

(d) The payment of the annual town rates, water rates and other taxes in respect of the said premises shall be made by the creditor herein without any reimbursement from the principal debtor and the head of family/surety during the continuance of this agreement.”

The present appeal arises because Madam Yaa Donkor as plaintiff, who in this appeal shall hereafter be referred to as the respondent, claiming to be a member of Kwame Asiama’s maternal family and by her own showing a grandniece of the late Kwame Asiama, on the death of her aunt Yaa Badu assumed that the house No BA 142, Bantama, Kumasi had became family property. The respondent contends that after the death of Yaa Badu she was told that house No BA 142 had been sold to one Dwamena (Gyamera) the brother of the 2nd defendant, who is the appellant before us and shall hereafter be referred to as such.

The appellant’s contention before the trial circuit court was that there was a valid assignment of the property to her brother Dwamena whom she succeeded, by Asiama Ababio II the holder of letters of administration of the estate of Kwame Asiama, the original owner of house No BA 142, Bantama, Kumasi. Further, and by way of counterclaim, the appellant claimed:

(a) A declaration that her predecessor, Kwaku Asiama, bought the house as a bona fide purchaser of a legal estate for value without notice of any equitable interest.

(b) A declaration that she is in lawful occupation of the said house.

(c) Perpetual injunction restraining the plaintiff’s from so interfering with her occupation.

Upon issues being joined evidence was led by all parties and the learned circuit judge delivered his judgment and gave full reasons for coming to the conclusion that the respondent was entitled to the reliefs she prayed for and dismissed the appellant’s counterclaim. Unfortunately the learned circuit judge did not direct his mind to the many legal issues raised by the evidence which had been led before him.

From the record of appeal, it appears that before Their Lordships in the Court of Appeal, the appellant’s counsel got short shrift. Counsel for the appellant, not making any headway before Their Lordships of the Court of Appeal concluded his argument, whereupon Their Lordships did not call upon the respondent and dismissed the appeal to the effect that “there is no merit in this appeal, which is accordingly dismissed.” It is from this summary dismissal of the appellant’s appeal that, upon leave granted by this court, this appeal comes before us.

I have gone to some length to set out the facts giving rise to the appeal before us because I am satisfied upon reading the record that there are many interesting points of law raised by the appeal which merit our consideration. It must however, be mentioned in passing that the 1st defendant, Kwaku Addai alias Asiama Ababio II, has not appealed from the decision of the circuit court and is therefore not a party to this appeal.

Both the appellant and the respondent have, pursuant to the rules of this court, filed their statements of case, more properly called briefs, in which they have raised several matters of law for our consideration. For the sake of brevity I will sum them up as follows:

For the appellant the contentions are that:

(i) the action was statute barred by reason of the Limitation Decree;

(ii) the trial court had no jurisdiction to try the case;

(iii) the wrong admission of an unprobated will of the late Kwame Asiama as the basis of the judgment of the circuit court;

(iv) lack of capacity or locus standi of the respondent to institute the action;

(v) error in holding that Yaa Bedwa and Kwasi Obinim had no right or capacity to convey the beneficial interest in the house in dispute;

(vi) the appellant’s predecessor was a bona fide purchaser for value without notice of any equitable interest.

For the respondent, counsel’s brief contends that:

(a) she had capacity or locus standi;

(b) the circuit court had jurisdiction to try the case;

(c) the suit was not barred by the Limitations Decree;

(d) the will was properly admitted in evidence even without the benefit of probate;

(e) the will by reason of the acquiescence of the beneficiaries in the distribution prevails over the letters of administration whether the same was registered or not;

(f) the appellant ‘s predecessor was not a bona fide purchaser for value without notice of the will.

Of the matters raised on the briefs three are in reality objections in limine, that is to say if any or all are determined in the appellant’s favour, then this court need not proceed to consider the other legal matters canvassed on the briefs. Therefore, even though they have not been set down in proper order I will deal with them in the manner, which I believe will conduce to coherency in this judgment.

The appellant contends that the circuit court had no jurisdiction to entertain the suit, as the value of the land was more than the ¢100,000 limit imposed by law. The appellant concedes that this point of jurisdiction was not raised in the court below, but that it is now trite learning that the issue of jurisdiction can be raised at any level of the hierarchy of our courts. The appellant is right. The appellant’s complaint is that by reason of certain answers elicited from the respondent in cross-examination, the circuit court should have been put on enquiry as to whether it had jurisdiction to hear and determine the case. The relevant questions and answers are as follows:

“Q The house is very small?

A   It is a complete house.

Q   If you sell it, you can’t get ¢500,000?

A   We can get.”

In support of this contention counsel for the appellant sought support from the Courts (Amendment) Law 1983 (PNDCL 47) which constituted a new paragraph for the old paragraphs (a)(i) and (iii) of subsection (i) of section 32 of the principal Act, the Courts Act 1971. The new paragraph therefore reads:

“(iii) in all causes and matters involving the ownership, possession, occupation of or title to land where the value of the land does not exceed ¢100,000.”

To these submissions counsel for the respondent replied by relying first on section 32 subsection (3) of the Court Act 1971 which runs as:

“Where the amount claimed or the value of any land or property exceeds the amount or value specified in subsection (1) of this section, the Court shall, notwithstanding that subsection, proceed to hear the case if the parties agree that it should do so.”

Counsel submits that on the authority of the above-cited subsection the issue of the value not having been raised anywhere else in the proceedings there was jurisdiction in the circuit court to hear the case.

Counsel for the respondent further relies on subsection (2) of section 32 of the Courts Act 1971, which also runs as follows:

“Where there is a dispute as to whether or not any amount claimed or the value of any land or property in any action, cause or matter is in excess of the amount or value specified in subsection (1) of this section in relation to that action, cause or matter, the Circuit Court in question shall call evidence as to the said amount or value and if it finds that it exceeds the amount or value specified in subsection (1) it shall transfer the case to the High Court.”

Counsel for the respondent submits that with respect to this subsection the defendant in the case must raise some objection either at the time of appearance or by his pleading or otherwise as to the value and so raise a “dispute” which the circuit court would then be duty bound to hear evidence thereon with a view to resolving the same.

The appellant’s counsel contends that the evidence reproduced above in this judgment should have inclined the circuit judge either to enquire into the issue of jurisdiction or seek, in his view “the written consent from the parties before continuing with the matter.” Counsel relies on Ababio II v Akro & Co [1963] 1 GLR 195, SC.

That case turned inter alia on the interpretation of section 5(2) of the Forests Ordinance (Cap 157) which provided that where the Reserve Settlement Commissioner had begun an enquiry but had not completed the enquiry under section 9 of that Ordinance “the person appointed to act on his behalf or in succession to him shall not be obliged to begin the enquiry de novo but may, if he so thinks fit and with the consent of all the parties thereto, continue and complete the enquiry so begun but not completed.” (Emphasis mine.)

Counsel implies that since the word “consent” is synonymous with the word “agree”, the expression “if the parties agree” occurring in section 32(3) of the Courts Act 1971, should be interpreted as in holding (i) of Ababio II v Akro & Co, that is to say, the agreement “should be express, precise and unambiguous. It must not be presumed.”

I must say here that I do not find anything or words in the Ababio II case, which even remotely supports counsel’s contention that such consent or agreement must be in writing. The holding (i) in Ababio II v Akro & Co is in my view a correct statement of the law. But in respect of the Courts Act 1971, the expression “if the parties agree” is predicated on the existence of certain situations. Thus before the parties can be called upon by the court to “agree” to vest the court with jurisdiction, it must either be clear on the face of the writ of summons that the property or land claimed is valued in excess of the jurisdiction conferred on the circuit court or in their pleadings both or all parties agree that the value of the land is in excess of that conferred on the circuit court. In either of these instances the circuit court is then by law required to seek the agreement of the parties to hear the case and failing such agreement to dismiss the case.

On the other hand section 32(2) of the Courts Act 1971 contemplates the situation where objection is taken to jurisdiction in limine or the value of the land being in excess of the jurisdiction of the circuit court is raised on the pleadings and made an issue for trial. Then a “dispute” arises and the duty of the circuit court is then to hear evidence and if the value exceeds the jurisdiction of the circuit court, transfer the case to the High Court and if not to proceed to hear and determine the case.

The evidence upon which the appellant invites this court to oust the jurisdiction of the circuit court is in my view, equivocal. The principal question put by the appellant’s counsel to the respondent was: “If you sell it, you can’t get ¢500,000.” Clearly if it was known to the appellant that the building was worth ¢500,000 then it could be worth anything less. The appellant’s counsel had in the immediately preceding question described the house as “very small.” In the circumstances I hold that the Circuit Court, Kumasi had jurisdiction to hear the case.

Next, the appellant takes issue with the respondent on her capacity to commence the action or her locus standi. I confess I do not fully understand the arguments advanced by the appellant in support of this ground. The respondent as plaintiff in the circuit court described herself in the title of her writ as suing “for herself and members her family.” It is interesting to note that in the statement of claim and the amended writ of summons the respondent made no other reference to her capacity other than in the title to the writ of summons as amended. The appellant as 2nd defendant and the 1st defendant also did not in their respective statements of defence and the 2nd defendants (appellant’s) amended statement of defence allude to any want of capacity in the respondent. However, the fourth issue in the summons for directions agreed for trial was “whether or not the plaintiff (respondent) has capacity to sue.”

On the record the respondent, plaintiff in the circuit court, gave uncontroverted evidence that she had the authority of the members of her family “to take this action against the defendants.” Under cross-examination she gave the following answer:

“Q     When you say you are suing for yourself and members of your family what do you mean?

A       My uncle 1st defendant should have sued for the property, but because the house was sold by 1st defendant, I have sued.”

The respondent by this answer brought herself fully and squarely within the ambit of one of the exceptions in Kwan v Nyieni [1959] GLR 67. I have no doubt in my mind that the respondent had capacity to sue. Whether armed with that kind of capacity the respondent could successfully pursue her claims remains to be discussed.

My difficulty in appreciating the arguments of the appellant with respect to this ground of appeal stems from a confusion of thought on the part of both parties to this appeal as to the real issues in controversy and the laws which are applicable to them. The appellant and the respondent seemed to think that the pith of the litigation was paragraph 7 of the unprobated will of the late Kwame Asiama, which I have reproduced above, and the interpretation placed on the expression “surviving children” used in that paragraph by the learned circuit judge in his judgment. The appellant contends that by so interpreting those words as including the “descendants” of Kwame Asiama, the learned circuit judge “was thus enabled to clothe the plaintiff-respondent with locus standi, for the plaintiff-respondent was a great-grandchild of the late Yaa Bedu.” The appellant contends that this finding is wrong and that the respondent could not by reason of this finding have the capacity to maintain the claims.

The respondent on the other hand is in agreement with the learned circuit judge when he stated in his judgment “the plaintiff herein is the daughter of Asamoah. Now, the words “surviving children of the late Yaa Badu” stated in paragraph 7 of the will, are not difficult to interpret. In my humble view, simply mean ‘children emanating from the womb of Yaa Badu.’ That is to say simply descendants of Yaa Badu.”

In support of this interpretation placed on the clause in paragraph 7 of the will of Kwame Asiama the respondent’s counsel relies on Mensah v Lartey [1963] 2 GLR 92 for the proposition that paragraph 7 of the will of Kwame Asiama created a “family” for the enjoyment of the property so devised under the will.  Counsel for the respondent contends that by reason of the respondent’s inclusion in the membership of this “special family” the respondent has capacity.

Now I have carefully read Mensah v Lartey and I am of the view that it is a very doubtful authority. Akufo-Addo JSC who read the judgment in which Adumua-Bossman and Blay JJSC concurred began by reviewing the evidence at page 93 of the report in the following manner.

“The said Robert Tetteh was the owner of a piece of land with a building thereon situate at Osu.

In 1919 he conveyed property by a deed to three of his children namely, Edward Daniel Lartey (hereinafter called Edward), Jacob George Laud Lartey (hereinafter called Jacob) and Emmanuel Tetteh Lartey (hereinafter called Emmanuel) by way of absolute gift to be held by them in trust for themselves and their brothers and sisters. The three children aforesaid were respectively children of the three wives and each of them was the eldest of his mother’s children.” (Emphasis mine.)

I cannot comprehend that there is anything deducible from the brief facts of the case stated here that Robert Tetteh intended that customary law should apply to the interpretation of a deed in English from, in which he sought to create a trust in favour of his children. In Mensah v Lartey, Their Lordships did not rely on authority or learned treatise for the proposition that customary law allowed the constitution of such a “family” “for the purpose of holding and enjoying the said property in perpetuity.” I cannot imagine that customary law, whether matrilineal or patrilineal, would permit the constitution of an amorphous group of people as a family for the enjoyment of any interest in perpetuity. In my view family at customary law connotes ethnicity, kinship, consanguinity and succession. Mensah v Lartey can therefore be no ground for saying that the respondent had capacity.

However, on a true construction of paragraph 7 of the will, it will be seen that what the testator has done is to create a class gift. In Dr Cheshire’s learned treatise The Modern Law of Real Property (9th ed) the learned author defines a class gift as “a limitation to an uncertain number of persons who answer to a general description and who are to take one indivisible subject-matter in proportionate shares. These shares will depend upon the number of persons who ultimately satisfy the description.”

It is not my desire in this judgment and in connection with the principles of class gifts to discuss either the rules against perpetuities or the class-closing rules formulated by the courts for the purposes of ascertaining the class of persons entitled to the ultimate beneficial interest. It will suffice to say that the object of the class-closing rule is to promote the early vesting of the property by limiting the degree of the beneficiaries entitled to the ultimate enjoyment. Dr Cheshire writes that: “the words of the gift are not given their full and natural meaning.” These class-closing rules apply to wills and settlements.

I cannot better conclude this part of my judgment than by setting out in extenso one of the examples given by Dr Cheshire in his book to which I have referred. Writes the learned author:

“where a testator makes a class gift to take effect in remainder after a life interest, the class is artificially closed at the determination of the life interest, if any members of the class are in existence at that date. It cannot thereafter be increased. So if a testator leaves realty or personalty to X for life, remainder to the children of Y any children of Y alive at the death of X, are entitled to shares, but those born later will be excluded. On the other hand, if no children having been born at X’s death, all those subsequently born constitute the class.”

It is clear that the above example is on all fours with the contents of the paragraph 7 of the will and the latter would be interpreted accordingly.

From the evidence on record, after the death of Yaa Badu the life tenant, only Kwasi Obinim, the son of Yaa Badu was alive and he therefore constituted that class which got the beneficial interest. The respondent is therefore not a member of that class of persons entitled to the beneficial enjoyment of the property, house No BA 142, Bantama, Kumasi.

The respondent however, claims that house No BA 142 is family property and that she has the authority of the family to institute the claims. She cannot be denied her right to approach the court in this capacity.

Third, the appellant contends that the respondent’s action was statute barred by reason of the provisions of the Limitations Decree 1972 (NRCD 54). The appellant refers in particular to section 10(1), (2) and (6) of the Decree and says that as the meaning of these sections is clear, no question of construction arises. The only question which arises is whether those sections are applicable to the facts of this case.

The sections under reference run thus:

“10(1) No action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.

(2) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour a period of limitation can run (in this section referred to as “adverse possession”).

(6) On the expiration of the period fixed by this Decree for any person to bring an action to recover land, the title of that person to the land shall be extinguished.”

The appellant contends that the present action was commenced some fifteen years after the sale of the house to her predecessor, Kwame Dwamena and therefore since the Decree provides for a twelve year limit, the action was statue-barred. The respondent in reply to this ground maintains that the property is family property. Inferentially the respondent contends that being family property the Limitation Decree should not apply to an action by a family member to recover the property. In short the family must only act timeously. With respect to the applicability of the Limitation Decree the respondent agreed with the circuit judge that time only began to run the year before she instituted the action and therefore she was not caught by the provisions of the Decree.

It is my respectful view that both parties and, indeed the learned circuit judge misconceived the law on this all-important subject. The operative expression in section 10 of the Limitation Decree is “adverse possession.” If a party is not in adverse possession then time can never run against the true owner. Who then is a person in adverse possession?

I would like to return to Dr Cheshire’s book to which I have already referred. At page 787 thereof, his footnotes discuss “adverse possession” within the meaning of section 10(1) of the English Limitation Act 1939 and concludes:

“¼[so] ‘adverse possession’ is now a useful expression to describe the possession of those against whom a right of action has accrued to the owner.”

In my view a person is said to be in adverse possession if he is in possession of or deals with another’s property without his knowledge or consent but in such circumstances that if the owner of the property was ordinarily diligent, he would have discovered the interference with his property.

In the present appeal even though it is the appellant who as the defendant in the circuit court is putting up the defence of the Limitation Decree, I find that it is unnecessary that she should do so. The appellant’s predecessor was in possession as a mortgagee and this mortgage blossomed into the assignment of the title to him. The assignment having been registered the appellant’s predecessor obtained the legal title. The difficulty of the appellant with the ground of appeal stems from the erroneous impression gained from the pleadings and evidence that since Yaa Bedwa and Kwesi Obinim originally pledged or mortgaged the property to Dwamena, it was they who persuaded the 1st defendant, Kwaku Addai alias Asiama Ababio II to assign the property to Dwamena. The document assigning the house to Dwamena shows quite clearly that it was Kwaku Addai, the 1st defendant who as the successor and administrator of the estate of Kwame Asiama assigned the house No BA 142, Bantama, Kumasi, to Dwamena. This assignment introduces a new factor into the equation which will hereinafter be discussed.

The appellant raises the issue of a bona fide purchaser and contends that her late brother, Dwamena, was a bona fide purchaser for value without any notice of the plaintiff-respondent’s claim. Counsel for the appellant contends that in so far as the learned circuit judge found that Dwamena was not a bona fide purchaser for value, he fell into error. Counsel submitted that there was no evidence on record to show that Dwamena knew of the contents of the will. The evidence of Kofi Buor showed that before the sale, 1st defendant (Kwaku Addai, the holder of the letters of administration) had registered the letters of administration; that the lawyer ignored the existence of the will because the lawyer knew there were letters of administration in existence; that there is evidence that the will had been read by the lawyer to Dwamena; that the trial circuit judge had imputed knowledge of the contents of a legal document to an illiterate man, such as Dwamena, when the contents had not been read over, explained and interpreted to him. Counsel therefore submitted that the appellant’s evidence demonstrated that her predecessor Dwamena, came within the ambit of the doctrine of a bona fide purchaser for value without notice of the respondent’s interest. Counsel relied on Ussher v Darko [1977] 1 GLR 476, CA.

With respect to counsel, I do not think Ussher v Darko is relevant to the arguments which he had advanced. The respondent has nothing to say in reply except to contend that in the light of the existence of a will, the letters of administration granted to the 1st defendant, Kwaku Addai, were null and void. In counsel’s view if the letters of administration were null and void, then the assignment made under the authority of the void letters of administration, even if registered, was void. Consequently Dwamena acquired no title and therefore could not be said to be a bona fide purchaser for value of any equitable interest.

On this matter the learned circuit judge in his judgment stated thus:

“The main point raised by the 2nd defendant was that Gyamena was a bona fide purchaser of the legal estate for value without notice of any equitable interest. Now, Bedwa’s children Krah (DW1) and Buor (DW2) told this court that Gyamena himself accompanied them to the Lands Department where they met lawyer Ansong and they showed the will to him. That, they again showed the will to the lawyer before the lawyer prepared the deed of assignment exhibit A for them to sign. The lawyer thus acted on the instructions of the vendor and the purchaser thus knew of the effect of paragraph 7 of the will. Gyamena was therefore affixed with notice of the plaintiff’s equitable interest in the property. The 2nd defendant herein (predecessor (sic) of Gyamena) cannot therefore now be heard to say that Gyamena had no notice of the plaintiff’s equitable interest in the house.”

I think both parties and the learned circuit judge, misconceived the law. If I understand the doctrine correctly, it refers to a person who in good faith, honestly, without fraud, collusion or participation in wrong doing gives valuable consideration that is to say money, money’s worth in the cognition of a legal estate without notice, actual, constructive or imputed of an equitable interest.

I need not in this judgment explain the types of notice to which I have referred. But it is clear that both the respondent and the learned circuit judge rely on “imputed” notice to defeat the appellant. They say that there is uncontroverted evidence that at all stages in the transaction leading to the execution of the assignment by Kwaku Addai to Dwamena, the lawyer was shown the will and therefore notice to the lawyer is notice to his client. This no doubt is the correct view of the law. When a purchaser engages an agent, such as a solicitor or some such professional person, any actual or constructive notice which such agent receives will be imputed to the purchaser.

In this appeal the evidence shows that Dwamena purchased the property from Kwaku Addai (1st defendant) in his capacity as the administrator of the estate of Kwame Asiama. Kwaku Addai by virtue of the letters of administration had the whole of the interest of Kwame Asiama in the property vested in him. It is said that Yaa Bedwa, the life tenant was alive and that she was entitled to the protection of her equitable interest in the property. I will say, as will soon be demonstrated, that an administrator disposing of property under the authority of letters of administration is not bound by any interest equitable or otherwise affecting the property. In any case the respondent had no equitable interest either by herself or derivative in the property against which it was open to the respondent to plead that she was a bona fide purchaser. The respondent commenced this action for herself and as representing the other members of her family for a declaration that house No BA 142, Bantama, Kumasi is family property. I understand the law to be that when a party claims that property is family property, that party claims the whole of the interest in the property. The basis of such a claim is either that the transaction is void on account of want of consent by the head and principal members of the family or voidable on account of some defect in the quality or character of the grantors. The doctrine of a bona fide purchaser for value does not arise.

In this appeal the appellant has raised this doctrine of bona fide purchaser for value as the main plank of her counterclaim. A counterclaim is a cross-action and a counterclaiming defendant stands in the position of a plaintiff with respect to the counterclaim. The doctrine of a bona fide purchaser is, however, an affirmative defence, that is to say, it is a defence in which the defendant resists the claim of the plaintiff by demonstrating his bona fides and proving want of notice of an equitable interest. The appellant has not so pleaded in her defence. In my view the doctrine does not apply in this appeal.

However, in the interest of justice, I will not dismiss this relief of her counterclaim. I think that this is a proper case in which an amendment of the counterclaim will enable the court to effectively determine the real issues in controversy between the parties. In the short but instructive judgment of Coussey JA in England v Palmer (1955) 14 WACA 659, the learned judge expressed himself that upon the authorities it was right on appeal for the appellate court to effect an amendment for the sake using the evidence on record to settle the real controversy between the parties.

 On the record the appellant has firmly relied on the purchase of the house by Dwamena as her defence. The evidence shows that Dwamena was in possession of the property in his lifetime and exercised acts of ownership over the property. See clauses (b)(c) and (d) of the mortgage or pledge document reproduced above in this judgment. I will therefore amend relief (a) of the counterclaim to read “(a) a declaration that her predecessor Kwaku Dwamena was entitled to the ownership and possession of house No BA 142 Bantama, Kumasi.”

Finally, the appellant urges upon this court the ground that the circuit court ought not to have admitted in evidence the unprobated will of Kwame Asiama. Appellant contends that by admitting the will in evidence, the learned circuit judge had been enabled to place an interpretation on paragraph 7 of the will, that Kwaku Addai had no capacity to effect the assignment to Dwamena. Counsel submits that the unprobated will of Kwame Asiama passed nothing to the beneficiaries. According to counsel it was only after the grant of probate that the provisions of the will could be carried out. Counsel further submitted that in the absence of probate only the holder of the letters of administration of the estate of Kwame Asiama could validly assign the property in dispute. Kwaku Addai therefore had the requisite legal capacity to effect the assignment at the material time by virtue of the registered letters of administration that had been granted to him by the High Court in respect of the properties of the late Kwame Asiama.

Respondent’s counsel in reply submits that the unprobated will was properly admitted in evidence; that the admissibility of the will in evidence did not depend on probate; that the admissibility of a will depends on the statutorily required evidence of attesting witnesses to due execution; that in any case the properties had been distributed in terms of the will to the satisfaction of all beneficiaries.

Further, the respondent counsel submits that appellant’s submission that the letters of administration of Kwame Asiama’s estate prevails over the unprobated will is untenable. In the view of the respondent’s counsel the moment the will was produced the letters of administration automatically ceased to have any effect and became void. Kwaku Addai in possession of what was after all void letters of administration could not pass title to Dwamena.

There is no quarrel with the validity of the will. On examination I find that it was duly executed according to the intendment of the applicable statute, the English Wills Act 1837. In my view, the will was properly admitted in evidence. The learned circuit judge in his ruling on the objection which he made on 10 June 1986 gave as his reasons for admitting the will “for what it is worth” the reasons that there had been no challenge as to the genuineness of will; that all members had accepted the contents of will and taken the bounty which the testator had bestowed upon them.

In my respectful view the tests for determining the admissibility of a will in evidence are that the document is the solemn unilateral act of the testator, intended to take effect after his death and that the document was ex facie executed in accordance with the intendment of statute, in this appeal the English Wills Act 1837.

The appellant’s objection however, is that since there was no probate the will could not be admitted in evidence. A will does not depend for its validity upon the obtaining of probate. Probate is evidence of an executor’s title and of the validity and contents of a will. In fact many acts and steps can be taken in respect of an unprobated will. However probate is necessary for vesting titles in devises or for executors to conclude litigation commenced by them without probate. See Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603 at 608.

While dealing with the will of Kwame Asiama, I note that respondent’s counsel has raised the objection that while it is conceded that the will is valid, nevertheless Kwasi Obinim, the remainderman is not entitled to the remainder given to him under the will of his cousin, Kwame Asiama, because he attested the will as a witness. In support of counsel’s submission he referred the court to section 15 of the Wills Act 1837.

Section 15 of the Wills Act 1837 provides that if any person attests a will to whom or whose spouse any beneficial interest whatsoever is purported to be given, the attesting witness even though a good witness, yet any gift in the will to him or to his spouse shall be void. Examination of the will of Kwame Asiama dated the 19 December 1960 shows quite patently that Kwasi Obinim was an attesting witness. By the clear provisions of section 15 of the Wills Act 1837 if any beneficial interest whatsoever was bestowed upon him, then even though he was a good witness, yet the gift to him would be void. It is not denied that Obinim was within the contemplation of the testator of those to benefit from his estate. The gift to Kwasi Obinim contained in the will of Kwame Asiama is void. This finding would seem to determine this appeal in favour of the respondent. But it cannot be so because the document by which Dwamena got title to house No BA 142, Kumasi was not executed between Kwasi Obinim and Dwamena. The document was in fact executed by Kwaku Addai as personal representative (holding letters of administration) in favour of Dwamena. It may be noted that Yaa Bedwa and Kwasi Obinim were only witnesses to the transaction. Whether or not the subscription of Yaa Bedwa and Kwasi Obinim to the document assigning the property to Dwamena would constitute them persons through whom the period of limitation could run against their successor, the respondent, I am not prepared to express any opinion now. But it will suffice to say that the execution of the assignment by Kwaku Addai in favour of Dwamena is the new factor in the equation which I will now discuss.

Learned counsel for the respondent, Mr Adumua-Bossman has submitted that in so far as there was a will the letters of administration obtained by Kwaku Addai were automatically null and void and could not operate to enable Kwaku Addai to pass title to Dwamena. Learned counsel is wrong. Section 97(1) of the Administration of Estates Act 1961 (Act 63) provides as follows:

“All conveyance of any interest in movable or immovable property made to a purchaser either before or after the commencement of this Act by a person to whom probate or letters of administration have been granted are valid, notwithstanding any subsequent revocation or variation, either before or after the commencement of this Act, of the probate or administration.”

The text writers explain that this section applies only to a purchaser, the word purchaser including lessees, mortgagees or other persons who in good faith acquire an interest in property for valuable consideration. Thus the presence of a valid unprobated will will not affect dispositions made to purchasers by a person holding letters of administration with respect to the same estate. All such acts of the personal representative pursuant to the grant of the letters of administration are valid and will not be affected by subsequent revocation of the grant.

To buttress the authority of the personal representatives I refer to sections 67 and 69 of the Administration of Estates Act 1961 (Act 63) which read as follows:

“67 Where administration has been granted in respect of any estate of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate composed in or affected by the grant until the grant has been recalled or revoked.

69 Every person to whom administration of the estate of a deceased person is granted shall, subject to the limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.”

These two sections clearly recognise the right of the personal representative to administer the estate subject to any limitations imposed by the courts when granting probate or letters of administration or at any time thereafter. The grant of probate or letters of administration is an order of the court. The court has the power whenever it considers it fit to recall the probate or administration and revoke or vary its terms. Therefore so long as such probate or administration remains unrecalled or unrevoked an assignment made by a personal representative will not be invalidated on the ground of want of jurisdiction, or want of concurrence, consent, notice or service, whether the purchaser has notice of any such want or not. Thus in the English case of Hewson v Shelley [1914] 2 Ch 13 an administratrix sold and conveyed certain real estate of a person who had died intestate. Later, when a will was discovered and the executors therein named obtained probate, the executors disputed the title of the purchaser. The Court of Appeal in England held that the administratrix could sell and convey the title as she had done and the purchaser got a good title.

In this appeal it seems to me that the parties fought their battles on the basis of the customary law and considered the operations of the Wills Act 1837 and the Administration of Estates Act 1961 (Act 63) as peripheral to their respective stands. The learned circuit judge fell into the same error though he tried to grapple with one or two of the issues raised in this appeal.

The real factor in the equation was whether the assignment made by Kwaku Addai as the successor and personal representative in favour of Dwamena was valid. The parties and the circuit judge thought that Kwaku Addai was persuaded by Yaa Bedwa and Kwasi Obinim to execute the transaction in favour of Dwamena. Kwaku Addai also probably thought that he had been prevailed upon by Yaa Bedwa and Kwasi Obinim to execute the assignment. But he was emphatic about the reason which made him apply for the letters of administration even though he knew there was a will. Said he in evidence: “I took the letters of administration to control the properties of the deceased”, meaning Kwame Asiama. Thus armed with the letters of administration he gave good title to Dwamena.

I therefore hold that Dwamena obtained a valid title to house No BA 142, Bantama, Kumasi, which inures to the benefit of the appellant, the successor to Dwamena. The appellant therefore succeeds in her appeal. The judgments of the circuit court dated 17 November 1986 and of the Court of Appeal dated 4 November 1988 are hereby set aside. The appellant succeeds on her counterclaim, as amended.

There will therefore be judgment for the appellant dismissing the plaintiff-respondent’s claims. The appellant shall have judgment on her counterclaim as amended. The appellant will have her costs in this court, in the Court of Appeal and the circuit court.

ADADE JSC. I agree that the appeal succeeds and ought to be allowed. This appeal turns essentially on the construction of clause 7 of the will of the late Asiama (exhibit D). That construction will determine:

(a) whether the plaintiff has capacity to institute this action;

(b) whether the sale transaction exhibit A dated 22/1/1970 can be sustained or not.

The said clause 7 reads:

“7. I give all that my freehold house No BA 142 in the Bantama District of Kumasi, to my niece Yaa Bedwa alone, that after her death, the said premises should be succeeded by the surviving children of my late Aunt Yaa Badu. That Yaa Badu’s son Kofi Buor shall not succeed any property of mine whatsoever.”

The circuit court which tried the action in the first instance construed “children” to mean “descendants”, in which case the plaintiff will be fully covered, she descending directly and matrilineally from Yaa Badu, through Akua Pima and Yaa Amoasah. So also will the descendants of Yaa Badu surviving in 1979, after the death of Yaa Bedwa, and there would be quite a few.

It must be observed, however, that when a person chooses a particular language to express himself, he must be presumed to mean what the words he has used normally mean in that language. Here the testator decided to use the English language. From the language of exhibit B more particularly the attestation clause, it almost certainly appears that exhibit B was prepared by a lawyer, who must be deemed to know the difference between children and descendants. Besides, exhibit B explains that the testator:

“signed... with his mark and thumbprint ... after the same had

been read over interpreted and explained to [him] in the Twi language by N Samuel Ofori of Kumasi, when he appeared perfectly to understand the same and approved by him in the presence of [certain witnesses]...”

There is no evidence on record to show that this testimony is incorrect. Accordingly children must be taken to mean what it means in the English language viz “sons and daughters” of any person. Therefore the “surviving children of Yaa Badu” in clause 7 simply means the sons and daughters of Yaa Badu who might be alive on the death of Yaa Bedwa. The plaintiff is not a daughter of Yaa Badu, and it is not shown that any of the persons allegedly represented by the plaintiff is a son or daughter of the said Yaa Badu. Accordingly neither the plaintiff nor any of those represented by her has any interest in the subject of dispute to be able to prosecute a claim in respect thereof. None has any locus standi. And as for the family generally, it has no interest in the property: the house was self-acquired by Asiama, who disposed of it under his will.

Clause 7 of exhibit B gave a life interest to Yaa Bedwa, with the remainder of the estate to the surviving children of Yaa Badu. The life estate together with the estate expectant upon it exhaust the whole of the legal estate. Therefore the persons who had these two estates have, between them the totality of the legal estate. Yaa Badu died before 1960, ie before exhibit B, having had four children, viz, Kwaku Gyau, Kwame Appiah, Akua Dinah and Kwasi Obinim. By 1970, when exhibit A was executed, all the children of Yaa Badu had died, with the exception of Kwasi Obinim. Between them therefore Yaa Bedwa and Kwasi Obinim hold the full legal estate, Yaa Bedwa the life tenancy, and Kwesi Obinim the future interest. They could, acting in concert, dispose of the legal estate, which is precisely what they did, viz exhibit A. Of course, they decided to act through Kwaku Addai alias Asaima Ababio II, but that is neither here nor there. Kwesi Obinim died a few months afterwards, predeceasing Yaa Bedwa by as many as nine years.

It is conceded that an attesting witness cannot take any beneficial interest under a will, unless, apart from him, there remained two or more attesting witnesses. In that event, the gift to him will not lapse. The will in this case, exhibit B, was attested by only two witnesses, Obinim and Kwadjo Mfum. If Obinim is disqualified, there will be only one witness to the will, as far as the gift to Obinim is concerned. That part of the will will therefore be invalid and the gift to Obinim void. The general validity of the will, however, is not affected. For the current statutory provision on this see the Wills Act 1971 (Act 360) s 3(4). Therefore if it is conceded that having attested the will, the beneficial future interest to Obinim lapsed, the effect will still be the same: the plaintiff will have no locus standi. The lapsed devise would fall into the residuary estate, to be enjoyed by the named residuary devisees, Yaa Bedwa and Kwaku Addai and Asiama Ababio II. The two of them could team up to dispose of the whole estate - Yaa Bedwa’s life interest together with the future interest belonging to both of them. From the circumstances surrounding the sale to Gyamena, 2nd defendant’s predecessor, neither Yaa Bedwa nor Kwaku Addai could validly resile from the transaction, even though Yaa Bedwa signed only as a witness. Both will be estopped from denying the validity of the sale: and there is no third party with interest in the property to mount an action to set aside the sale, which stays valid.

Accordingly, I am of the opinion that the plaintiff has no locus standi, so also are all the persons she purports to represent. The action should have been dismissed by the trial court and the Court of Appeal.

The learned circuit judge misappreciated the evidence and misled himself on the law. Unfortunately the Court of Appeal treated the appeal in a cavalier manner, dismissing it off-hand, in only one sentence: “There is no merit in this appeal which is accordingly dismissed.” On the contrary, I think there is merit in the appeal. The plaintiff and all those she represents have no locus standi.

Having come to this conclusion it is unnecessary to discuss any of the other interesting matters raised in this appeal.

I will also allow the appeal, dismiss the plaintiff’s action, and enter judgment for the appellant on her counterclaim.

WUAKU JSC. I also agree that the appeal be allowed. The plaintiff based her claim on clause 7 of the will of the late Opanin Asiama who died testate in 1962. The testator made a will in 1960 in respect of which no probate was ever taken. The plaintiff-respondent, to qualify as a beneficiary under clause 7 of the said will, must prove that she is one of the surviving children of Madam Yaa Badu at the death of the testator or the surviving child of the tenant for life Madam Yaa Bedwa. That she failed to do.

‘Children’ in its primary meaning means descendants of the first degree, not grandchildren. See The Construction of Deeds and Statutes by O B Odgers 4th edition at page 164. My learned brothers, Adade, Amua-Sekyi and Hayfron-Benjamin JJSC whose opinions I have read beforehand have adequately dealt with the law involved and I do not wish to add more than what I have stated. I therefore agree that the appeal be allowed with costs in favour of the appellant.

AMUA-SEKYI JSC. I agree that the appeal be allowed. Even though the appeal from the judgment of Piesare, circuit court judge, was summarily dismissed by the Court of Appeal it seems to me that it raises a number of issues of law which require the attention of this court. The most important of these are:

(a)  whether  the  plaintiff was a beneficiary under clause 7 of the
unproved will of Kwame Asiama;