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Wills –
Evidence - Executor and
administrator - Family property
– Self-acquired properties -
Capacity – vesting assent -
Conveyance of the property -
Movable and immovable property
of a deceased person – Whether
or not there was a need for
executing any formal vesting
assent by the executor so as to
clothe her with the capacity to
sue and be sued - Section 1(1)
of the Administration of Estates
Act, 1961 (Act 63)
HEADNOTES
This is an
appeal which turns principally
on an assessment of the weight
of
evidence adduced at the
trial High Court and a point of
law argued before this court.
The plaintiff’s action was
dismissed by the trial High
Court. His appeal to the Court
of Appeal against this dismissal
also failed. He has now turned
to this Court for redress.
Madam Akua Attaa (deceased)
by her last
Will
dated 11th August
1983 made several devises to the
second defendant Akua Adomaa.
These devises were challenged by
the plaintiff on behalf of the
Anima Korkor family of Seniagya,
Asante, on the ground that the
subject-matter of the devises
were the
family property of that
family and therefore the
deceased testatrix lacked
capacity
to make the devises. In
response, the second defendant
counterclaimed that the
properties devised to her by the
testatrix were the testatrix’s
self-acquired properties.
The trial High Court entered
judgment for her on her
counter-claim. The first
defendant was the sole executor
of the will under which second
defendant counterclaimed. Faced
with these concurrent adverse
findings of fact of the courts
below, the
plaintiff/appellant/appellant
before this court has an uphill
task to persuade this Court to
reverse these findings of fact.
In consequence, he has, wisely,
sought to base his appeal to
this Court on errors of law
HELD
The import of
the judgment in this case is
this: when a person died testate
or intestate, his estate
dissolves on the executor or
personal representative until
vesting assent have been
executed to the beneficiaries or
devisees; until that granted the
beneficiaries and devisees have
no …………or locus standi over any
portion of the estate. In the
light of the peculiar
circumstances that sometimes
bedevil the administration of
estates in this country, it is
felt that some clarification is
necessary on the interpretation
of the law as given in this
judgment so that we may not be
taken as interpreting the law to
result in absurdity. It is
common knowledge that in this
country some estates are
dissipated by the inaction of
the executors or personal
representatives. Others go to
waste or are lost as a result of
the active misuse or abuse of
the estate left by deceased
persons when executors or
personal representatives refuse
or fail to attend to duties
entrusted to them under estates
or selfishly make use of the
estate to their benefit or
benefit of undeserving others.
If the law is that a beneficiary
or devisee has no title to sue
or be sued until the grant to
him of a vesting assent, what
does he do in any of situations
postulated above? At equity,
such a person should be able to
mount an action to protect the
estate, or to save it from being
dissipated or wasted.
.The appeal
is thus allowed on the
counter-claim. In other words,
the fourth ground of appeal
based on the contention of no
locus standi for the second
defendant because no Assent had
been vested in her by the
Executor succeeds, in the light
of the finding of fact by the
two courts below in this case
that the property in question
was the self-acquired property
of the testatrix. After
reviewing the record of appeal,
we also confirm this finding of
fact. Incidentally, with the
holding that the second
defendant could neither sue or
be sued in this case, the
findings of fact made in
relation to her probably fall
away. In any case, in our view,
the third ground of appeal does
not provide a basis for
reversing the Court of Appeal’s
decision.In the result, the
appeal succeeds in part.
STATUTES
REFERRED TO IN JUDGMENT
Administration of Estates Act,
1961 (Act 63)
English Land
Transfer Act of 1897
Land Transfer
Act, 1897 [60 & 61 Vict., c.
65],
Wills Act,
1837 [7 Will. 4 and 1 Vict., 26]
CASES
REFERRED TO IN JUDGMENT
Elliot v King
[1966] GLR 654
Conney v
Bentum-Williams [1984-86] 2 GLR
301
France v
Quartey (1925) DCt '21-'25, 194
Hammond v
Lamptey, High Court, Accra 10
May 1961
Brown v Darko
[1961] GLR (Pt II) 539
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
OBENG MANU JNR. FOR THE
APPELLANT.
KWABENA
PEPRAH NYANTAKYI FOR THE
RESPONDENTS
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
BROBBEY JSC:
I have had the benefit of
reading in advance the opinion
of my learned brother Date-Bah
JSC. I agree with his analyses
of the facts and the law as well
as his interpretation of the
law, particularly in respect of
the devolution of the state of
deceased persons to
beneficiaries and devisees
before vesting assents are
granted
The import of the judgment in
this case is this: when a person
died testate or intestate, his
estate dissolves on the executor
or personal representative until
vesting assent have been
executed to the beneficiaries or
devisees; until that granted the
beneficiaries and devisees have
no …………or locus standi over any
portion of the estate.
In the light of the peculiar
circumstances that sometimes
bedevil the administration of
estates in this country, it is
felt that some clarification is
necessary on the interpretation
of the law as given in this
judgment so that we may not be
taken as interpreting the law to
result in absurdity. It is
common knowledge that in this
country some estates are
dissipated by the inaction of
the executors or personal
representatives. Others go to
waste or are lost as a result of
the active misuse or abuse of
the estate left by deceased
persons when executors or
personal representatives refuse
or fail to attend to duties
entrusted to them under estates
or selfishly make use of the
estate to their benefit or
benefit of undeserving others.
If the law is that a beneficiary
or devisee has no title to sue
or be sued until the grant to
him of a vesting assent, what
does he do in any of situations
postulated above? At equity,
such a person should be able to
mount an action to protect the
estate, or to save it from being
dissipated or wasted.
The plaintiff in such an action
will be acting on the basis of
his expectant interest in the
estate, not in his capacity as a
title holder under a will or
grant at customary or statutory
law. The plaintiff is such an
action may take the advantage to
apply to the court to the
executor to renounce probate or
to appoint another person to
administer the estate. It is
obvious that in such an action,
the lackadaisical or
disinterested executor may fail
or refuse to participate or
mount any opposition. If he does
oppose the action, he will put
to the necessary inquiries which
will not only protect the estate
but enable the tribunal, as a
court of equity, to give
directions on the appropriate
management of the estate.
In his capcity as persons with
expectant interest, any member
of the family of a deceased who
dies intestate or beneficiary of
such estate will qualify to
mount such an action. Similarly,
any devisee or beneficiary under
any will may qualify to mount
such an action.
These will be additional to any
action that may be taken against
any executor de son tort.
This view is necessary to be
expressed so as to dispel any
wrong impression that the
interpretation of the law in
this judgment may give rise to.
[SGD]
S.
A. BROBBEY
JUSTICE OF THE SUPREME COURT
DR. DATE-BAH
JSC:
This is an
appeal which turns principally
on an assessment of the weight
of evidence adduced at the trial
High Court and a point of law
argued before this court. The
plaintiff’s action was dismissed
by the trial High Court. His
appeal to the Court of Appeal
against this dismissal also
failed. He has now turned to
this Court for redress.
Madam Akua
Attaa (deceased) by her last
Will dated 11th
August 1983 made several devises
to the second defendant Akua
Adomaa. These devises were
challenged by the plaintiff on
behalf of the Anima Korkor
family of Seniagya, Asante, on
the ground that the
subject-matter of the devises
were the family property of that
family and therefore the
deceased testatrix lacked
capacity to make the devises.
In response, the second
defendant counterclaimed that
the properties devised to her by
the testatrix were the
testatrix’s self-acquired
properties. The trial High
Court entered judgment for her
on her counter-claim. The first
defendant was the sole executor
of the will under which second
defendant counterclaimed.
In the Court
of Appeal, after a careful
review of the record of the
proceedings at the trial High
Court, Ansah JA, who delivered
the judgment of the Court,
concluded that (at p. 342 of the
Record):
“In this
case, as I have striven to say,
the trial judge weighed the
evidence before him and accepted
that of the second defendant and
her witnesses but rejected that
of the plaintiff and his
witnesses. The probabilities
weighing in favour of the second
defendant according to him, he
entered judgement for her on her
counterclaim. We have not
spared ourselves the task of
reading the record over and have
come to agree that the evidence
supported all the findings made
and they are preponderated more
in favour of the counterclaim
than the claim. We must be very
slow and loth to interfere with
his findings of facts and rather
hold him better entitled to a
verdict of this court than the
plaintiff on his claims both in
the court below and here too.”
Faced with
these concurrent adverse
findings of fact of the courts
below, the
plaintiff/appellant/appellant
before this court has an uphill
task to persuade this Court to
reverse these findings of fact.
In consequence, he has, wisely,
sought to base his appeal to
this Court on errors of law.
The grounds
of appeal filed by the appellant
before this Court were as
follows:
“GROUNDS OF
APPEAL
1.
The Court of Appeal erred in law
when it failed to evaluate the
legal effect of Section 1(1) of
the Administration of Estate
Act, 1961 (Act 63) and to apply
the said effect to 1st
Defendant/Respondent who failed
to enter an appearance, file a
Defence or defend the action by
entering judgment against him.
PARTICULAR OF
ERROR IN LAW
(a)
Failing to appreciate that by
provisions of Section 1(1) of
Act 63, the movable and
immovable property of deceased
person shall devolve on his
personal representatives with
effect from his death.
(b)
Failing to appreciate that as
executor, the 1st
Defendant was a personal
representative of the deceased
testator as defined by Sect. 108
(1) of Act 63.
(c)
Failing to appreciate that as
executor, 1st
Defendant denied (sic)
his title and authority from the
will of the Testator and that
the personal property of the
Testator including all rights of
action vested in him upon the
Testator’s death and that his
right to sue of course
reciprocated by his ability to
be sued.
(ii)
The Court of Appeal erred in law
when it held that the failure of
the Plaintiff/Appellant to move
a Motion for default judgment
debarred him from inviting the
Court of (sic) to enter
judgment for him in his written
address at the close of the
case.
(iii)
The Court of Appeal decided the
case on a wrong premise and
perception that the Plaintiff
and Defendant are members of the
same family, the members of
which trace their origin to a
common ancestress ANIMA KORKOR.
(iv)
The Court of Appeal erred in law
when it failed to address the
locus standi of 2nd
Defendant to Counter-claim in
view of the fact that no Assent
had been vested in her by 1st
Defendant executor. “
The appellant
has argued before this Court
that since, by
section
1(1) of the Administration of
Estates Act, 1961 (Act 63),
“the
movable and immovable property
of a deceased person shall
devolve on his personal
representatives with effect from
his death”, a default judgment
should have been entered against
the first defendant, who had not
defended the plaintiff’s
action. This same point had
been argued before the Court of
Appeal, which had effectively
dealt with it as follows, per
Ansah JA:
“Another
additional ground was that the
trial judge should have entered
interlocutory judgment in
default of appearance and
defence by the first defendant.
I think that point was
misconceived. Where there was
default of pleadings, or
appearance, the trial judge did
not enter judgment suo motu.
Such judgments were always given
upon application so that the
plaintiff should not ask for the
judge to enter one for him in
his written submissions to this
court or the court below.
The plain fact in this case was
that the plaintiff filed a
motion for judgment in default
of defence on 9/3/93; the
second defendant opposed the
application but the plaintiff
never moved the court for a
ruling on it. Thus the
application was never heard and
was presumably abandoned. On
21/4/93, the 2nd
defendant filed a motion for
interim injunction and an order
to account and the suit
progressed to trial and
eventually, judgment. It was
wrong for the plaintiff to
appeal to this court to enter
the judgment at this stage of
the proceedings, for he should
have been more vigilant and seen
to it that his motion was heard
and default judgment entered for
him. His indolence contributed
in no default judgment being
entered for him.”
We consider
that this position of the Court
of Appeal is correct and
therefore the appellant’s appeal
to this Court on this identical
ground is dismissed.
The appellant
further argued that the second
defendant had no locus standi
to defend a title suit against
her until a Vesting Assent had
been executed in her favour by
the first defendant. This
argument was also held by the
Court of Appeal to be mistaken.
Ansah JA said (at pp. 340-1):
“There was no
doubt that the testatrix gave
and bequeathed landed properties
to Akua Adoma in her will that
on the pleadings has been
admitted to probate. The
Administration of Estates Act,
1963, Act 63 governs the
administration of estates in
Ghana and provided in section
1(1) that:
“The movable
and immovable property of a
deceased person shall devolve on
his personal representatives
with effect from his death.”
By the
interpretation in section 108 of
Act 63, ‘personal
representative’ means executor,
original or by representation,
or administrator for the time
being of a deceased person’. In
her will, the testatrix
appointed Opanin Kwaku Pusuo and
Kwabena Apenteng as her
Executors/Trustees of her will.
The properties in dispute
devised to the second defendant
in the will became vested in her
on the death of the testatrix;
see
Elliot v King [1966] GLR 654
which decided among others
that:
“The will was
regarded as a
conveyance of the property
…took effect from the death of
the testator or testatrix to
vest the property in the
devisee.” The properties having
been devised to the second
defendant in the will, they
vested in her by the operation
of law and the fact of the death
of the testatrix, hence
there was
no need for executing any formal
vesting assent by the executor
so as to clothe her with the
capacity to sue and be sued in
respect thereof.”
This
statement of the law is
problematic. The appellant is
right to point out, in his
Statement of Case, that this is
a statement of the old common
law position and that the law in
Ghana, after the enactment of
the Administration of Estates
Act, 1961 (Act 63), is
different.
Under the
common law of England, before
the enactment of the Land
Transfer Act, 1897, the real
estate of a deceased did not
vest in his personal
representative, but passed
immediately to his heir or
devisee, as the case may be.
There was thus no need for
probate or letters of
administration. An
executor
or an administrator would
not have any rights over the
devised property, since it was
already vested in the devisee.
This common law position was
changed by the Land Transfer
Act, 1897, which, however, never
applied in Ghana. Under this
Act, in relation to deaths
occurring after 1897, all the
property of a deceased became
vested in his or her personal
representative. The personal
representative had full powers
of management and could
therefore sell the property
vested in him or her in order to
pay debts owed by the estate.
To transfer title to a devisee,
a personal representative had to
execute a conveyance or an
assent. An assent did not need
to be in writing. Any conduct
of the personal representative
which showed that he had
assented to the gift was
sufficient. This led to the
unsatisfactory situation where
to establish the title of a
devisee, he or she might have to
prove facts showing the personal
representative’s assent. This
mischief was cured by the
provision in the Administration
of Estates Act, 1925 that no
assent made after 1925 could
pass a legal estate in land
unless it was in writing and
signed by the personal
representative. This had the
effect of making provision for a
proper paper title for the
interests of devisees. This
provision made it clear that a
devisee’s title was based on the
assent and not on the will. The
Administration of Estates Act,
1961 of Ghana borrowed these
building blocks from the 1925
Act of England. The current
Ghanaian law is no longer the
common law position stated by
Ansah JA (as he then was).
Abban JA
confirms the current Ghanaian
law as follows in the judgment
of the Court of Appeal which he
delivered in
Conney
v Bentum-Williams [1984-86]
2 GLR 301, 314-316:
“Furthermore,
the executors should have
transferred the legal estate in
the land to the defendant's
vendors by formally executing a
vesting deed or assent in their
favour. The contention of
counsel for the defendant would
have been valid in the absence
of the Administration of Estates
Act, 1961 (Act 63). Before the
passing of that Act, real estate
devised under a will vested in
the devisee at the death of the
[p.315] testator; because the
English
Land Transfer Act of 1897
which on the death of a testator
vested the property first in the
personal representative never
applied in this country and so
they had no power to assent to
its vesting in the devisee: see
France v
Quartey (1925) DCt '21-'25, 194.
In that case Michelin J at 196
stated the position in the
following words, "The law simply
regarded the will as a
conveyance of the property." And
in
Hammond v Lamptey, High Court,
Accra 10 May 1961,
unreported Ollennu J (as he then
was) made the position even
clearer when he said:
"First, the
real estate: by the law
applicable to this country which
is the same as was in England in
1874 and before 1898, as under
the Wills Act, 1873, real estate
devised vested at the death of
the testator in the devisee
thereof and not in the personal
representative. The devisee
therefore takes the devised
property without the necessity
of formal conveyance thereof to
him by the executor."
In
Brown v
Darko [1961] GLR (Pt II) 539,
the same view was expressed by
the same learned judge where at
541-542 he said:
"But neither
the said
Land Transfer Act, 1897 [60 & 61
Vict., c. 65], nor the
Conveyancing Act, 1911 [1 & 2
Geo. 5, c. 37] applies to Ghana
they not being statutes of
general application in force in
England on July 24, 1874. Under
the Wills
Act, 1837 [7 Will. 4 and 1
Vict., 26] which is the
statute applicable to Ghana,
real estate does not vest in
personal representatives and so
they have no power to assent to
its vesting in a beneficiary, or
to convey it to such person.
The situation
has now been altered completely
by the provision in Act 63 which
came into effect on 7 June 1961;
and the testator Cleland having
died after this date, his will
was caught squarely within the
ambit of this Act. The relevant
sections of the Act, ie sections
1 (1), 2 (1) and 96 (1), are as
follows:
"1. (1) The
movable and immovable property
of a deceased person shall
devolve on his personal
representatives with effect from
his death ...
2. (1) The
personal representatives shall
be the representative of the
deceased in regard to his
movable and immovable
property...
96. (1) A
personal representative may
assent to the vesting, in the
form set out in the Third
Schedule to this Act, in any
person who (whether by devise,
bequest, devolution,
appropriation or otherwise) may
be entitled thereto..."
It is
therefore necessary that before
carrying out the intentions of
the testator, the will must
first be admitted to probate and
thereafter a beneficiary of any
real estate under the will must
have a vesting assent executed
in his favour by the executors
to whom probate has been
granted. Until this is done, any
purported sale of the real
estate by the beneficiary or the
devisee will be of no legal
consequence and the purchaser
thereof will not have a valid
title. The defendant's vendors
were in this serious
predicament; for the evidence
clearly showed that no vesting
assent was executed in their
favour by the executors in
respect of the disputed land and
this has still not been done.
It followed that they could not
transfer or confer a valid and
effective title on the
defendant.”
It is clear
from this passage from Abban
JA’s judgment that the statement
of law by Ansah JA, relying on
Elliot v King (supra),
was per incuriam and
should be overruled. A devisee
cannot sue or be sued in
relation to the devised property
before a
vesting
assent has been executed in his
or her favour. Accordingly, in
the absence of a vesting assent
executed in favour of the second
defendant, she could neither sue
or be sued on her devise. The
appellant’s complaint on this
score is justified and has to be
upheld.
What then is
the impact of this point of law
on the success of the appeal?
It means, first, that the Court
of Appeal’s affirmation of the
learned trial judge’s dismissal
of the action of the
plaintiff/appellant/appellant is
upheld. The first ground of
appeal is dismissed, since there
is even more reason to affirm
the dismissal of the action
against the second defendant
since, as explained above, she
lacked the capacity to be sued
in relation to her devise, not
having been a beneficiary of a
vesting assent.
It must also
mean that the second
defendant/respondent/respondent’s
counter-claim is dismissed. She
had no locus standi to
bring it. The appeal is thus
allowed on the counter-claim.
In other words, the fourth
ground of appeal based on the
contention of no locus standi
for the second defendant because
no Assent had been vested in her
by the Executor succeeds.
The third
ground of appeal, even if it
were conceded, would not make
any difference to the outcome of
this appeal. Whether or not the
plaintiff and the defendants are
members of the same family has
no impact on the validity of the
devises made by the testatrix to
the second defendant,
in the
light of the finding of fact by
the two courts below in this
case that the property in
question was the self-acquired
property of the testatrix.
After reviewing the record of
appeal, we also confirm this
finding of fact. Incidentally,
with the holding that the second
defendant could neither sue or
be sued in this case, the
findings of fact made in
relation to her probably fall
away. In any case, in our view,
the third ground of appeal does
not provide a basis for
reversing the Court of Appeal’s
decision.
In the
result, the appeal succeeds in
part.
[SGD] DR.
S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
[SGD]
S. O. ADINYIRA (MRS.)
JUSTICE OF THE SUPREME COURT
[SGD]
P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
[SGD]
B. T. ARYEETEY
JUSTICE OF THE SUPREME COURT
COUNSEL:
OBENG MANU JNR. FOR THE
APPELLANT.
KWABENA PEPRAH NYANTAKYI FOR
THE RESPONDENTS.
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