HUMPHREY-BONSU AND ANOTHER vs. QUAYNOR AND OTHERS [1999-2000] 2 GLR 781

CASES REFERRED TO

(1) Jelley v Iliffe [1981] 2 WLR 801; [1981] 2 All ER 29; (1980) 125 SJ 355, CA.

(2) New Monckton Collieries Ltd v Keeling [1911] AC 648.

(3) Warburton v Loveland (1832) 2 D&CI 480; 6 ER 806, HL.

(4) Quaye v Quarcoo [l991] 2 GLR 437.

(5) Allotey (Decd), In re; Allotey v Otoo [1981] GLR 393.

(6) Simson, In re (Decd); Simson v National Provincial Bank Ltd [1950] 1 Ch 38; [1949] 2 All ER 826; 65 TLR 721.

(7) Norga v Kadjijatu [1984-86] 1 GLR 443, CA.

[p.787] of [1999-2000] 2 GLR 781 (8) Afranie II v Quarcoo [1992] 2 GLR 561, SC.

(9) Skeats, Re; Thain v Gibbs [1936] Ch 683; [1936] 2 All ER 298; 105 LJCh 262. (10) Asumah v Khair [1959] GLR 353, CA.

(11) Quartey v Martey [1959] GLR 377.

(12) Caveat by Clara Sackitey, Re [1962] 1 GLR 180.

(13) Odametey v Clocuh [1989-90] 1 GLR 14, SC.

(14) Hughes v Hughes [1973] 2 GLR 342.

(15) Ginbuuro v Kaba [1971] 2 GLR 416.

(16) Atta v Annan [1975] 1 GLR 366.

(17) Beckley v Beckley [1974] 1 GLR 393.

(18) Styler, Re; Styler v Griffith [1942] Ch 387; [1942] 2 All ER 201; 111 LJ Ch 263. (19) Pugh (Decd), In re; Pugh v Pugh [1943] Ch 387; [1943] 2 All ER 361; 112 LJCh 311. (20) Inns, Re (Decd); Inns v Wallace [1947] 1 Ch 576; [1941] 2 All ER 308; [1947] LJR 1207. (21) Franks, Re; Franks v Franks [1948] Ch 62; [1947] 2 All ER 638; 63 TLR 583 (22) Sekyere v Hanson alias Akua Mercy [1974] 1 GLR 56.

(23) Amartey v Sraha [1976] 1 GLR 279.

(24) Sirebuor v Dome [1962] 1 GLR 82.

(25) Maryon-Wilson’s Will Trust, Re; Blofield v St Hill [1968] Ch 268; [1967] 3 WLR 1476; [1967] 3 All ER 636.

(26) Verdin v Conghtrie (Inspector of Taxes) [1961] AC 880; [1961] 2 WLR 318; 105 SJ 176, HL. (27) Essilfie v Anafo [1992] 2 GLR 654, SC.

Appeal by the defendants from the judgment of the trial High Court, Accra which, inter alia, ordered provision to be made for the plaintiffs, the spouse and children, respectively, of the deceased testator, out of the estate. The facts are sufficiently stated in the judgment of Benin JA.

Anthony Norvor for the defendant-appellants.

Odoi Sykes for the plaintiff-respondents.

Benin JA. The late William Bart-Plange (hereinafter referred to as the deceased) who died on 21 March 1987 left behind a will, probate of which was taken in May 1987 by the defendant-appellants (hereinafter referred to as the defendants) who are [p.788] of [1999-2000] 2 GLR 781 among the children left by the deceased. The second and third plaintiffs-respondents (hereinafter referred to as the second and third plaintiffs, respectively) are also children of the deceased. But it is in dispute whether the first plaintiff-respondent (hereinafter refer-red to as the first plaintiff) was ever married to the deceased, and if so, whether she was a wife of the deceased at the time of his death. The second plaintiff who was not catered for by the deceased in his will was a student at the time of his father’s death. The third plaintiff, a cripple and mentally retarded child from birth, was also not catered for, not to mention the first plaintiff. Hence, this action by the plaintiffs whereby they sought an order “to make provision under the will of the . . . deceased for the plaintiffs. . . .for whom the deceased testator made no provision.” Besides this relief, the plaintiffs also averred that the devises made to the second defendant under the will were null and void in so far as the beneficiary was also an attesting witness to the will This is contained in paragraph(8)of the statement of claim. This averment was denied and the plaintiffs were put to strict proof by the defendants.

It was the case of the defence, as pleaded, that the first plaintiff was never married to the deceased; and that she only lived in concubinage with him. In short she was not a wife so as to qualify as a dependant within the meaning of section 13 of the Wills Act, 1971 (Act 360) (hereinafter referred to as the Act). It was also contended at the trial that since both the second and third plaintiffs were over eighteen years at the time the deceased died, they did not qualify as a “child” under section 13(1) of Act 360.

The trial judge found as a fact that the first plaintiff was a wife who was lawfully married by custom to the deceased.The court upheld the contention that the devises to the second defendant were contrary to section 3(4) of the Act and thus falls into residue under section 8(1) of Ac 360. It also held that intestacy under the Intestate Succession Law, 1985 (PNDCL 111) applied to the residuary estate. The court, having found that the second plaintiff was a student and the third plaintiff was physically and mentally handicapped, held that they were dependants of the deceased who would suffer hardship if no provision was made for them. So the court upheld the plaintiff’s claim and made certain orders in their favour including costs of ¢50,000.

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It was against this judgment and the consequential orders that the trial court made that the defendants appealed to this court on these grounds:

“(a) That the judgment is against the weight of evidence adduced.

(b) That the learned acting judge misdirected herself in law on the provision of section 13 of the Wills Act, 1971 (Act 360) by taking into consideration matters which should be excluded and by applying the Intestate Succession Law, 1985 (PNDCL 111) to the action which was not permissible in this case.

(c) The learned acting judge was biased and thereby failed to exercise her discretion in accordance with judicial principles.

(d) The costs of ¢50,000 awarded to the plaintiffs was excessive and not in accordance with the spirit and letter of section 13 of the wills Act.”

Additional grounds of appeal were filed. I shall take only those grounds argued by counsel for the appellants.

Ground (a)

Counsel for the appellants dwelt largely on the marital relationship that existed between the first plaintiff and the deceased. Counsel concedes that they were a married couple for sometime but his contention is that events that existed prior to the demise of the testator clearly showed that the marriage was at an end. There was unchallenged and unrebutted evidence that the couple were customarily married in 1950. Counsel concedes that no steps were taken “to formally dissolve the marriage” but they lived apart without anything to show they were married at all. But in my view, the fact that they could not patch up their differences whilst they lived apart did not mean the marriage was dissolved. It is clear that the first plaintiff always cherished the belief that the husband would return to the marriage just as he did in 1963 or thereabouts after an eight-year separation. And when the deceased deserted the first plaintiff in 1955 he never dissolved the marriage. After eight years he returned to live together with the first plaintiff during which period they had about five children before he deserted her again. A line of conduct had been established. Hence the first plaintiff’s hope that he would come back to her, and that

[p.790] of [1999-2000] 2 GLR 781 explains the steps she took to bring the husband back, though without success.

There was evidence, which was unrebutted, that it was the deceased himself who allowed the first plaintiff to go and live in her mother’s house for some time, except that he would not allow her to return into the matrimonial home for having overstayed. Hence, the initial decision for her to stay away from the matrimonial home was mutual. Thus, however long that lasted; it did not amount to dissolution of the marriage, especially when no steps were taken in that direction. The first plaintiff tried to go back to the matrimonial home but the deceased refused her that right for no just reason. In view of his previous conduct, the first plaintiff would be justified in waiting for him to return at his pleasure without compromising her status as a person married to the deceased. However long the separation might be, it would not ripen into dissolution of the marriage unless the couple clearly intended it to be so and did acts inconsistent with a marriage relationship, for instance where the woman in particular remarries or goes to live with another man elsewhere and the husband does not complain. That was not the position here. I therefore agree with the trial court’s conclusion that the marriage was still subsisting at the time deceased passed away.

Next, counsel submitted that the plaintiffs were not dependants of the deceased so as to qualify for consideration under section 13(1) of Act 360, which provides that:— 13. (1) If, upon application being made, not later than three years from the date upon which probate of the will is granted, the High Court is of the opinion that a testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of any father, mother, spouse or child under 18 years of age of the testator, and that hardship will thereby be caused, the High Court may, taking account of all relevant circumstances, notwithstanding the provision of the will, make reasonable provision for the needs of such father, mother, spouse or child out of the estate of the deceased.”

It was counsel’s submission that to qualify as a dependant,

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“the particular individual, apart from being either a parent or a child or a spouse, must have been dependent substantially on the testator for his sustenance during the lifetime of the testator. The contribution of the testator must be regular and substantial to make an applicant qualify under section 13 of Act 360.”

Act 360 does not define when a dependency may arise. But I think it would not be wrong to suggest that in the case of a child, if the evidence establishes that he or she relies on his parent, wholly or in part, for his or her means of subsistence, then a dependency will have been established. But in the case of a father or mother of a deceased, the evidence must establish that they were, or either of them was, substantially dependent on the deceased testator. Gifts given to one’s parent(s) occasionally will not qualify the parents as dependants. In the case of a spouse, I think the court will have to examine the extent of his or her earnings, earning capacity and contribution to the upkeep and maintenance of the other. If the surviving spouse, was contributing more than the deceased or even in equal shares with the deceased, in my view a dependency will not arise.

In this case, the evidence was that whilst they lived together, it was the deceased who maintained the first plaintiff and the children. When the separation or desertion, if one chooses to call it so, occurred, the deceased did not regularly maintain the first plaintiff. However, he continued to pay for the second plaintiff’s education as well as for third plaintiff’s medication. Besides these, from time to time, as and when the deceased liked, he gave them money through one of their daughters. With these facts, counsel’s submission was that the first plaintiff was not substantially dependent on the testator. She failed to prove any hardship. Counsel urged the court to adopt the reasoning in Jelley v Iliffe [1981] 2 All ER 29 at 36, CA that the court should compare what each spouse was contributing, and if the applicant was contributing more, or even in equal shares as the testator, then there, is no dependency.

In this case the evidence is that the deceased wholly maintained the second and third plaintiffs. It was the maintenance allowance to the first plaintiff that was irregularly paid. But the evidence on record is that it was the deceased himself who refused to allow the first plaintiff to return to the matrimonial home; in other words, he himself created the situation that enabled him to shirk his matri-

[p.792] of [1999-2000] 2 GLR 781 monial responsibility to the first plaintiff. In a situation like this, the law will not permit him to say because he was not maintaining the first plaintiff regularly the latter was not a dependant. In the words of Lord Robson in New Monckton Collieries Ltd v Keeling [1911] AC 648 at 662, HL:

“The wife does not necessarily cease to be dependant on the husband simply because the latter refuses to recognise or perform his obligation and succeeds in throwing the burden of her maintenance, for the time being on the wife’s parents or friend, or on the State. They may fulfil the husband’s duty for him, but the wife’s legal dependence is still on him and not on them, and his death deprives her of the proper stay and support on which alone she is entitled to rely. The circumstances, however, are wholly different where the wife herself has for years clearly asserted and definitely maintained her complete independence of her husband.”

In my view, the deceased, having created the situation that enabled him to abandon his responsibility in large measure, was not legally absolved. He would be responsible as though the parties were living together. The first plaintiff who was a pensioner with no monthly pension and no significant source of income was dependent on the husband before the separation and I hold he continued to be responsible for her.

Unfortunately, both the second and third plaintiffs were more than 18 years old at the time the testator died. And so by section 13(1) of Act 360 they do not qualify as dependants, however much pain or grief one has for them, especially the third plaintiff. I say this without relish, but that is what the legislation says, there is no ambiguity about it. The rule is that if the language of a statute is clear, it must be enforced however harsh the result may appear to be. As Tindal CJ put it in Warburton v Loveland (1832) 2 D & CI 480 at 489, HL: “Where the language of Act is clear and explicit we must give effect to it whatever may be the consequences; for in that case the words of the statute speak the intention of the legislature.” The lawmaker clearly intended the natural age of a child to prevail. I believe this case brings to the fore the urgent need to amend this law so that certain handicapped and dependant children, however old they may be, will benefit form their parent’s estate. But so long as the law stands, the court is bound to give effect to it notwithstanding the apparent hardship it may cause; so

[p.793] of [1999-2000] 2 GLR 781 the case of Quaye v Quarcoo [1991] 2 GLR 437 was rightly decided by the High Court. However, in this case, one even wonders why the second and third plaintiffs have not taken advantage of those properties devised to the second defendant which have fallen into residue in order to claim a share of the estate by virtue of the Intestate Sucession Law, 1985 (PNDCL 111).

Let me return to the dependency of the first plaintiff. It is an undisputed fact that since the death of the testator the responsibility for the upkeep and maintenance of the second and third plaintiffs has fallen on her, with the help of some family members. It is clear that this is causing hardship to her especially in view of the fact that plaintiff is permanently incapacitated physically and mentally and has to be on medication throughout his life. These factors will have to be considered in making a reasonable provision to the first plaintiff. It is clear that the statute requires that hardship be established by an applicant. As a question of fact, hardship, I think, would include any matter of appreciable detriment whether financial, personal, physical, social or otherwise. The peculiar facts of each case will have to be considered.

Ground (b)

This ground which was next argued reads:

“That the trial judge erred when she ordered that all rents obtainable from the house known as No CI42/4, Kokomlemle, which was a specific valid devise be applied as to reasonable maintenance of the plaintiff herself, and the third plaintiff—the cripple son of the testator—for the rest of their respective natural life when there were sufficient funds in the residue that could be used to give reasonable maintenance to the first and third plaintiffs.”

I will first refer to the trial court’s findings and then the orders that were made to see whether the orders are supportable in law. The court said:

“Having declared that the beneficial disposition in paragraphs 2(b) and 2(c) of the will of the Iate William Bart-Plange are void, and have therefore lapsed into residue under section 3(4) of Act 360 . . . the court hereby further declares that the plaintiffs are entitled to the enjoyment of these dispositions together with the defendants and others in accordance with the

[p.794] of [1999-2000] 2 GLR 781 provision of section 2(2) of PNDC 111. I therefore order that a refund of all expenses and education of the plaintiff in the vocational school into which the testator put her before his death be borne by the estate of the testator.”

In respect of the third plaintiff, the court considered his physical and mental disabilities from birth, and related matters and expenses and ordered that:

“under the provision of section 13(1) of the Wills Act, 1971 . . . all the rents obtainable from the house known as No 142/4, Kokomlemle be paid over to the chief registrar of the court as trustee for the reasonable maintenance of the first plaintiff herself and the third plaintiff for the rest of their respective natural lives.”

This property, No C 142/4 Kokomlemle, was specifically devised to the first defendant, which devise was held valid by the court. It was the view of counsel for the appellants that in view of the fact that some of the devised properties had lapsed and fallen into residue, the trial court ought to have made the awards from the residue. He cited for his support the High Court case of In re Allotey (Decd); Allotey v Otoo [1981] GLR 393. That decision followed the English case of In re Simson (Decd) Simson v National Provincial Bank Ltd [1950] 1 Ch 38 where the court held that “in a situation where the court considered to make provision to dependants of a testator, the residue is the normal and obvious place from which provision is made.” But the court did not hesitate to point out that it is not a rule of law, it was only a practice that was being followed by the courts. So it is only an ideal situation to follow by applying the residue to such payments, as the High Court did in the In re Allotey case (supra). There is no such specific law in place that an award under section 13 of Act 360 must be made from the residue, if any. Indeed, it becomes a charge on the entire estate of the testator. But the court, in its avowed aim of doing what is reasonable and just in the circumstances of any case, would not deprive specific legatees or beneficiaries of what was given to them under the will where there is some other property or fund which could be applied to satisfy an award made under section 13(1) of the Act.

So in my view, since some of the properties have fallen into residue, it is those ones which must first be applied to satisfy the

[p.795] of [1999-2000] 2 GLR 781 award. Again, since there is no residuary clause in the will, it follows that the residuary properties have fallen under intestacy to be distributed in accordance with the provisions of PNDCL 111. Thus it could not be said now that the testator has not catered for the plaintiffs. I would think therefore that since the plaintiffs, among other persons including the defendants, have a share in the residuary estate by law, the court would have to determine whether their share would be sufficient to satisfy the genuine and reasonable needs of the plaintiffs. If it would, then the matter should rest there. If not, then the testator would be said to have made no reasonable provision for them within the meaning of section 13(1) of Act 360. In such a situation, the court would be justified in making provision from the specific devise/s.

In my view, therefore, the trial court, having found that some of the properties devised by the testator had become void and thus fallen into residue and had become subject to PNDCL 111, the order to pay compensation to the plaintiffs should have fallen on the residue, to begin with. It was not right in the circumstances to side-step the residuary estate in which the plaintiffs have a legal right, and attach, the specific property devised to the first defendant. To this extent only, I would allow the appeal which otherwise I dismiss.

Twumasi JA. This is an appeal against the judgment of the High Court, Accra, delivered on 24 March 1989 by which the trial judge ordered that all rents accruing from a house which a testator had devised to his favourite daughter be appropriated as “reasonable provision” for the first and third plaintiffs because the testator has made no provision for them in his will. The first plaintiff was the wife of the testator. The third plaintiff was a son to the testator. The defendants were his daughters who benefited under the will. As the facts of the case unfold, it would be found that specific bequest were made but some were by law rendered void and fell into residue.

The house affected by the court’s order did not suffer the fate of falling into the residue. The first and second defendants being aggrieved by this order, have appealed to this court. Four grounds of appeal were filed on 4 July 1989 and on 30 June 1999 an additional ground was filed. Going by the written submissions, however, only two of the grounds survived the hearing of the appeal. They were:

[p.796] of [1999-2000] 2 GLR 781

“(a) That the judgment is against the weight of the evidence.

(b) That the trial judge erred when she ordered that all rents obtainable from the house known as house No C 142/4, Kokomlemle which was specific valid devise be applied as to reasonable maintenance of the first plaintiff herself and the third plaintiff, the cripple son of the testator, for the rest of their respective natural life when there were sufficient funds in the residue that could be used to give reasonable maintenance to the first and third plaintiffs.”

The pith of the submission by counsel for the defendants was, as far as the first plaintiff was concerned, that although the testator conceded her status as a wife, she had been guilty of desertion for ten years and consequently had by her own conduct terminated the marriage.

The facts of the case showed that a man by the name William Bart-Plange died on 21 March 1987 in Accra, survived by seven children. A woman by the name Beatrice Akweley Quaynor bore him four out of the seven children. In fact the said Beatrice bore him seven children but three out of the lot predeceased him. The surviving children by Beatrice were: Peter Bart-Plange, James Kpakpo Bart-Plange, Mary Bart-Plange and Grace Bart-Plange. The three other surviving children were: Mrs Humphrey-Bonsu, Janet Bart-Plange and William Allottey Bart-Plange.

By all accounts this man was an accomplished businessman in the well-known “contractor” business in this country. In terms of material wealth he could boast of not less than four self-acquired houses all constructed in the city of Accra. The evidence on record further showed that the death of William Bart-Plange was preceded by a protracted terminal ailment which necessitated hospitalisation. But despite this calamity which all we mortals are heir to, William enjoyed the requisite degree of physical and mental capacities which enabled him to contemplate to and indeed did distribute his worldly possessions by a testamentary disposition—a will. The highlights of the will make interesting reading but at the same time teach significant moral lessons. The testator gave two of the houses, No C 502/1A, Nsawam road, Accra and No C 142/4 Kokomlemle, Accra, to a most-favoured daughter, Mrs Agnes Humphrey-Bonsu, and explained that that daughter had satisfactorily fulfilled her filial obligations to him. Next, he devised house No 444/4, Accra New Town and a share in, and

[p.797] of [1999-2000] 2 GLR 781 absolute control of house No 348/1 A, Korle Gonno, Accra to another loving daughter, Janet Bart-Plange. These beneficiaries were children bom to the testator by women other than Beatrice Akweley Quaynor. The testator then, in exercise of his prerogative, invested Janet with the power to give quit orders to any of the surviving children or other occupants of the said house if any of them misbehaved and, in his own words, in the will, “especially William Bart-Plange who drinks like a fish and does what he likes.” This order was issued by the testator after stating that he had given the house to Janet and the other children Robert Allotey Bart-Plange and William Bart-Plange.

Fortunately or unfortunately for the testator or the beneficiaries, however, these dispositions were foredoomed to failure for they contravened the provisions of section 3(4) of the Wills Act, 1971 (Act 360). The testator so much loved and trusted Janet that he asked her to attest the execution of the will contrary to the statutory mandatory injunction under section 3(4) of Act 360 which provides that:

“3. (4) Any beneficial disposition of or affecting any property other than charge or directions for the payment of any debt, given by a will to a person who attests the execution of that will, shall be void unless the will is duly executed without his attestation and without that of any other such person.”

For the validity of a will, section 2(3) of Act 360 insists upon a minimum of two attesting witnesses. They could be more, in which case as the Court of Appeal held in Norga v Kadjijatu [1984-86] 1 GLR 443, CA (holding (2)), where there were more than two witnesses and the attestation of one happened to be defective whereas the other two remained valid, the will was valid. Whether my view of this case is right or wrong is inconsequential because in the instant case only Janet and one other signed the will. What made the disposition a forlorn hope is that it is not an example of a disposition of a charge or direction given to Janet to pay any debt. The disposition to Janet therefore became void ex vigore legis and by virtue of the provisions of section 8(1) of Act 360 the affected properties fell into residue and since the testator did not incorporate a residuary clause to cater for such eventuality, the properties fell into intestacy to be governed by the Intestate Succession Law, 1985 (PNDCL 111). In such a case the executors

[p.798] of [1999-2000] 2 GLR 781 appointed under the will are treated as trustees charged with the responsibility of distributing the said properties under the aforementioned law: see Afanie Il v Quarcoo [1992] GLR 561, SC, approving the case of Re Skeats, Thain v Gibbs [1936] 2 All ER 298.

This case law finds statutory backing right within Act 360 itself, under section 7(6) of which, it is provided that: “7(6) A residuary disposition shall include property comprised in lapsed and void dispositions, unless a contrary intention appears from the will.” The plain meaning of this provision insofar as it affects the instant case is that, a void or lapsed disposition falls into intestacy where the will does not contain a residuary clause. I will revisit this issue in due course. In the meantime, I would proceed with the factual analysis of the case before the trial court. As I have already hinted in the introductory part of this judgment, Beatrice Akweley Quaynor and all her four surviving children were callously rebuffed and disowned by the testator. So implacable was the testator’s disgust for Beatrice and these children of his that not even the misfortune of James Kpakpo Bart-Plange being mentally and physically disabled could assuage his bitter aversion. In his will tendered as exhibit A, the testator referred to somebody as his ex-wife. It is stated therein as follows: “In making this will I do not want any quarrel or misunderstanding between my children and my ex-wife or my family generally.” That word “ex-wife” was an apparent reference to Beatrice Akweley Quaynor, the first plaintiff.

Predictably enough, this naked act of discrimination inflicted upon the children of Beatrice Akweley Quaynor jointly with her children triggered off this litigation. Obviously, the testator harboured the ill-intention to vent his anger upon the children and their mother. This explains why on 9 September 1987 the plaintiffs caused a writ of summons to be issued claiming the following relief:

“An order to make provision under the will of the late William Bart-Plange (deceased) for the plaintiffs as the wife and children respectively of the deceased and for whom the deceased testator made no provision.”

The action was instituted against Mrs Humphrey-Bonsu as the first defendant and Janet Bart- Plange as the second defendant. It was a joint action by Beatrice Akweley Quaynor as the first plaintiff, Grace Bart-Plange as the second plaintiff and James

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Kpakpo Bart -Plange as the third plaintiff (with the first plaintiff as his next friend). They invoked the provisions of section 13(1) of Act 360 which stipulates that:

“13. (1) If, upon an application being made, not later than three years from the date upon which probate of the will is granted, the High Court is of the opinion that a testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of any father, mother, spouse or child under 18 years of age of the testator, and that hardship will thereby be caused, the High Court may, taking account of all relevant circumstances, notwithstanding the provisions of the will, make reasonable provision for the needs of such father, mother, spouse or child out of the estate of the deceased.

(2) Without prejudice to the generally of subsection (1), such reasonable provision may include—

(a) payment of a lump sum, whether immediate or deferred, or grant of an annuity or a series of payment;

(a) grant of an estate or interest in immovable property for life or any lesser period.”

In their statement of claim the first plaintiff claimed to be the surviving widow of the testator. This claim was denied by the defendants who averred in their statement of defence that the first plaintiff could not claim the status of a wife because, as they contended, she was a concubine to the testator. At the trial, however, the defendants, when confronted with overwhelming evidence which tended to establish a lawful customary marriage between the first plaintiff and the testator, shifted their position by an allegation that the first plaintiff had been guilty of desertion at the time of the death of the testator. The first plaintiff led evidence to prove that the late William Bart-Plange married her under customary law way back in 1950 and that her marital status remained unchanged ever since till the death of William Bart-Plange. She admitted that the marriage life was not trouble-free throughout the period because she could recall a period of bitter misunderstanding between the couple, which threatened the very foundation of the marriage but those gloomy clouds were weathered away by the intervention of their respective families. On a second sinister event, the late William had grown so incensed and angered

[p.800] of [1999-2000] 2 GLR 781 by the fact that Beatrice had overstayed permission granted her to attend to her late mother’s funeral. William therefore rebuffed Beatrice and would not like to see her any longer despite all entreaties by Beatrice’s family. The result was that for a period of ten years the couple never cohabited. Nevertheless, therewas unchallenged evidence that the first plaintiff performed customary rites assigned to widows upon the death of William Bart-Plange.

The learned trial judge accepted the evidence and found that a valid customary marriage subsisted between the late William Bart-Plange and the first plaintiff Beatrice, and cited the case of Asumah v Khair [1959] GLR 353, CA. This famous case decided by the Court of Appeal and other numerous subsequent cases including Quartey v Martey [1959] GLR 377 and Re Caveat by Clara Sackitey [1962] 1 GLR 180 recognise the existence of a valid customary marriage between a man and a woman where it is proved that the man or his family asked of the hand of the woman in marriage and the request was accepted by evidence that the woman’s family received gifts or drinks and money from the man’s side; that even in certain cases a marriage is deemed to have been in existence between a man and a woman if it is established that upon the death of the man the woman was permitted by the deceased’s family to attend the funeral and she in fact performed the funeral rites assigned only to surviving widows. The learned trial judge preferred the first plaintiff’s version of the controversy and found that the first plaintiff was lawfully married to the testator at the time of the latter’s death. Her findings on the facts were amply supported by the unchallenged evidence on the record. It must be stressed that a strong prima facie ease made by a plaintiff, as it is in the instant case, cannot be dislodged by the inconsistent defence put up by the defendants, namely shifting their case from concubinage to desertion: see Odametey v Clocuh [1989-90] 1 GLR 14,SC.

The testator erroneously thought that the first plaintiff was no longer his wife because of the long period of separation but his family proved him wrong by allowing the woman to perform the customary rite assigned to widows. In my view, the testator was rather guilty of constructive desertion. The learned judge therefore correctly applied the cases of Hughes v Hughes [1973] 2 GLR 342 and Re Caveat by Clara Sackitey (supra) on the legal effect of separation, that it does not constitute dissolution though it may be a prelude to it. I need not catalogue legal authorities to drive home

[p.801] of [1999-2000] 2 GLR 781 the point that there are special customary rites essential for the valid dissolution of a customary marriage. The general rule is that the family of the woman must return to the husband’s family something to symbolise the dissolution. The custom differs from one ethnic group to the other in the country. For example among the Frafras of Northern Ghana it requires the return of “calabash” by the woman’s family to the man: see Ginbuuro v Kaba [1971] 2 GLR 416, and among the Akans the return of the tsir nsa: see Atta v Annan [9751] 1 GLR 366. Counsel for the defendants conceded that there was no evidence to suggest that the testator himself took steps to formally dissolve the marriage even though they were separated for ten years before the testator breathed his last. As counsel for the first plaintiff rightly responded, the first plaintiff in the eyes of the law remained the wife of the testator and this is supported by case law: see Re Caveat by Clara Sackitey (supra). There was unchallenged evidence that attempts by the families of the parties at reconciliation proved unsuccessful due to the testator’s refusal to forgive the wife for overstaying the permission given to her to attend her mother’s funeral. There was no evidence that the first plaintiff remarried during the period of separation but it is on the record that the testator had other women at his disposal who had born him the other beneficiaries of his will. The following extract from the cross-examination of the first plaintiff in the record was interesting but revealing:

“Q How long did the funeral rites of your mother take?

A About two months.

Q When did you return to your husband’s house (the marital home)?

A I was frequenting the home, but when my husband told me not to come back to the house I stayed away.

Q Did you try to find out when the testator told you not to come back to him for co habitation, his reason?

A Yes, I did. But he told me he would come to call me when he felt the need, ie when he missed me.

Q Did he come back to call you before he died.

A No. He did not come back to call me before he died.

From the foregoing, it is clear that counsel for the first plaintiff was unquestionably right when he apportioned total blame to the testator for the ten years separation. In Beckley v Beckley [1974] 1 GLR 393 Abban J (as he then was) held that even where it was

[p.802] of [1999-2000] 2 GLR 781 doubtful as to which of the parties was guilty of separation, the law imposed a duty upon the husband to continue with the maintenance of the wife. This decision applied with even greater force to the instant case. In his book, Law of Testate and Intestate Succession In Ghana (1st ed) at 225, the learned author, Justice Ollennu (of blessed memory), said: “So great is the importance which customary law attaches to a man’s liability to maintain his wife that his failure to maintain her is one of the very few grounds upon which a wife may obtain divorce . . .” See also Sarbah, Fanti Customary Law (1897) at pp 44-45 and Danquah, Akan Laws and Customs (1928) at pp 156-158. In my view, it is precisely this customary rule of law to which Act 360 provides a much-needed statutory backing under section 13(1). The principle is equally applicable to Gas: see Social Organisation of the Ga People by Field, pp 54-57. This legal responsibility of a husband spans the entire lifetime of the woman. It implies that the man must discharge this responsibility either during his lifetime or after his death by his will.

My view of the law is that a man may do something specially contingent, eg establish a business for the wife on the understanding that she maintain herself out of the proceeds of the business or make a gift of some property to his wife in similar vein. The question which a court ought to pose when faced with any proceeding under section 13(1) of Act 360 is: What provision for the maintenance of his wife did the man make either during his lifetime or by his will? If the court is satisfied, having regard to all the circumstances, including the financial standing in terms of property or otherwise and the condition of the wife, that the man did make reasonable provision then, any application under section 13(1) of Act 360 must be refused, otherwise it must be granted. If on the other hand the man maintained his wife by reasonable payments of cash or goods in instalments during his lifetime then, in such a case, he is required to make reasonable provision in his will to cater for continued payments out of his estate. The instant case falls under the latter category. The other considerations that ought to be taken into account are: (a) the needs of the first plaintiff; and (b) that hardship would be caused to her if reasonable provision was refused. The evidence on the record was that since 1980 when the first plaintiff received the sum of ¢12,000 as pension and gratuity from her employers, she never received any monthly pension payments. It seems to me unquestionable that the

[p.803] of [1999-2000] 2 GLR 781 learned judge had before her sufficient evidence to defend the exercise of her discretion in favour of the first plaintiff that she was entitled to a reasonable provision from the estate the testator.

On this issue I would apply the same test which Morton J suggested in the English case of Re Styler; Styler v Griffith [1942] Ch 387 at 389, cited by counsel for the defendant, where the learned judge said: “I think that the court has to find that it was unreasonable on the part of the testator to make no provision for the person in question . . .” This test was applied in other English cases such as In re Pugh (Decd); Pugh v Pugh [1943] Ch 387 at 385; Re Inns (Decd); Inns v Wallace [1947] 1 Ch 576 at 580-581 and Re Franks; Franks v Franks [1948] Ch 62 at 64-65. These cases were cited by counsel for the appellant to assist the court and I found them useful and feel grateful. Another case he cited which again did not benefit him but assisted the court was the English case of Jelley v Iliffe [1981] 2 All ER 29, CA where the English Court of Appeal laid another test which in its true perspective implied that the court in determining the question of whether a spouse was a dependant, the test was to ascertain the contributions which each spouse made to the family budget and to decide which of them weighed heavier than the other. In this court one can think of a situation both spouses may belong to the same lucrative profession. But the case before this court does not pose this contribution-balancing test. The relationship between William Bart-Plange and the first plaintiff was that of a prosperous businessman and a meager paid public servant who eked out a living. The plight of low-income public servants of this country is a matter judicially noticed. The scales therefore favour the first plaintiff even by, the English case law test. But looking at our own situation, section 13(1) of Act 360 gives the court a very wide room to maneuver its discretion. One important and, relevant fact which weighed heavily on the mind of the trial judge and rightly in my view was that in his lifetime the testator himself realised that the plaintiffs needed his help in their maintenance and in fact he was doing something about it by way of remittances except that they were irregular and inadequate. There was therefore no reason why in his will the testator, on the false contention made by him that the first plaintiff was no longer his wife, denied her reasonable provision. Also important was the unchallenged evidence by the first plaintiff that at the inception of their marriage the testator had only one house but he added three in quick

[p.804] of [1999-2000] 2 GLR 781 succession to make four while she also worked hard to bear him as many as seven children. Ironically, none of these factors did win the sympathy of the testator to leave something for the first plaintiff. The trial judge was perfectly right in interfering with the will.

The curtain now turns on the second plaintiff. There was unchallenged evidence that the testator maintained and sponsored her at a vocational school. The first plaintiff however claimed that she continued with the maintenance and educational sponsorship of the second plaintiff after the death of the testator. The learned trial judge therefore ordered that the first plaintiff should be reimbursed all that she spent on the second plaintiff out of the estate of the testator. In fact by their statement of defence the defendants admitted by their paragraph (13) thereof that their deceased father maintained and looked after the second and third plaintiffs even during the period of separation of their parents. The question obviously arises as to whether arrears of maintenance of children are recoverable. On this question, I have studied two decided cases of the High Court.

The first is Sekyere v Hanson alias Akua Mercy [1974] 1 GLR 56 where the High Court, Accra held that under section 8 of the Maintenance of Children Act, 1965 (Act 297) such arrears were not recoverable. The court held that the enactment contemplated future, not past expenses in the form of maintenance. In the second case, Amartey v Sraha [1976] 1 GLR 297, it was held also by the High Court, Accra, differently constituted that under the said section 8 of Act 297, arrears of maintenance were recoverable provided there was proof of such expenses having been made on a child. Act 297 was repealed by the Maintenance of Children Decree, 1977 (SMCD 133) but the Decree retained the provisions of section 8 of Act 297 under Part 2 thereof. The decision in the Amartey case (supra), unlike the earlier case, took cognisance of the obligation under customary law that lay upon a man to maintain his child from birth to the age of 21 as explained in numerous cases: see Sirebour v Dome [1962] 1 GLR 82. An important canon of statutory construction is that it must take account of existing laws especially the customary law on the subject. However, whatever may be the opinion of this court on this vexed question of law on the status of arrears of maintenance raised by the two seemingly conflicting views of the High Court, this court is precluded from doing so simply because that issue has not be raised in this

[p.805] of [1999-2000] 2 GLR 781 appeal as the defendants did not appeal against the order of the trial court and I prefer to leave the point open.

The claim of the third plaintiff provided the clearest archetype of the moral dimension in exercise of judicial discretion. This plaintiff suffers mental and physical disability from birth, yet strict compliance with the letter of section 13(1) of Act 360 disqualifies him from applying for a reasonable provision because the statute covers children under eighteen years of age which he had passed at the date of the will. As Ampiah J (as then Was) held in Quaye v Quarcoo [1991] 2 GLR 437 even though there was no age limit to a father, mother or spouse who could apply for a reasonable provision under section 13(1) of Act 360, such limitation existed to a child and anyone above eighteen could not benefit. Counsel for the defendants relied on this case and reinforced his argument by quoting from a passage in the recent book, The Law of Wills by the Hon Mr Justice Azu Crabbe, ex-Chief Justice of Ghana, at p 110 as follows: “Unfortunately, the Act makes no provision for a child, who though above the age of 18 years, is by reason of physical or mental disability, incapable of maintaining himself or herself. Nor does the Act make any provision directed towards alleviating the hardship of a child, who is above the age of 18 years. In these circumstances the court is powerless, and it cannot make any order of relief.”

In the course of his argument however, counsel, apparently by a pick of sympathy for the poor child, softened his stance and caved in to some undercurrent moral pressure by urging upon this court to exercise its discretion in favour of the said child despite the appeal; thus by necessary implication abandoning the appeal on that score. The learned trial judge for her part took a divergent approach by arguing that in respect of a child in the predicament of the third plaintiff who was mentally and physically incapacitated, age was an irrelevant consideration because she opined that growth or development of the mental and physical faculties of a normal being was non-existent to the third plaintiff. In my view the learned trial judge was right because there was credible medical evidence in support of the view she held.

With regard to the question of the applicability of the provision of section 13(1) of Act 360 to the third plaintiff, I have found the construction placed on that subsection by the learned author of

[p.806] of [1999-2000] 2 GLR 781

The Law of Wills to be too draconian and harsh, with the greatest respect to the author. Clearly, he adopted the literal approach to statutory construction. But I conceive it to be a solemn duty of a court to construe a statute in such away as would accord with commonsense and justice. Thus in the English case of Re Maryon-Wilson’s Will Trust, Blofield v St Hill [1968] Ch 268 at 282 Upgoed-Thomas J said: “If the court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice.”

The English Court of Appeal confirmed this dictum in Verdin v Conghtrie (Inspector of Taxes) [1961] AC 880, HL; while on our own shores here in Ghana the Supreme Court in Essilfie v Anafo [1992] 2 GLR 654, Archer CJ (as he then was) presiding, adopted the common sense approach to the construction of statutes and emphatically stated that the legislature would not intend what is unreasonable. The policy-rationale behind the age limitation to children under section 13(1) of Act 360 proceeds on the understanding that at eighteen a normal child would have been capable of maintaining himself or herself by his or her own effort. The third plaintiff did not fulfil this condition, so the age limitation cannot be applied to him.

The last criticism of the judgment was that the learned judge erred by not applying funds in the residue to settle the claim of the first and third plaintiffs. This ground of appeal has no merit because, as I have already explained above, the residue fell into intestacy and as such could not be applied under Act 360. Interested parties would therefore have to advise themselves as no application in relation to the Intestate Succession Law, 1985 (PNDCL 111) was made before the High Court under the normal rules of procedure. I must explain that under PNDCL 111, interested persons extend beyond widows and children to parents and customary successors of intestate property. In the such circumstances the ends of justice would not be served if the court which is called upon to provide reasonable provision under Act 360 assumed jurisdiction over property treated as residue as in the instant case. For the foregoing reasons I would dismiss the appeal and affirm the judgment of the court blow.

[p.807] of [1999-2000] 2 GLR 781

Essilfie-Bondzie JA. I agree with the decision read by my brother Benin JA. Since he has covered all the various issues rasied in this appeal, I have nothing useful to add to the said judgment.

Appeal allowed in part.

SA