IN RE KUKEBAH (DECD); THE COMMISSIONER, CHRAJ AND ANOTHER vs. ASUMINA AND OTHERS [2001-2002] 1 GLR 515

IN RE KUKEBAH (DECD); THE COMMISSIONER, CHRAJ AND

ANOTHER v ASUMINA AND OTHERS

[2001-2002] 1 GLR 515

Division: HIGH COURT, BOLGATANGA

Date: 21 MAY 2002

Before: QUAYE J

Pensions scheme—Social Security Pension Fund—Power of nomination—Variation of nominees—Deceased nominating two nephews as beneficiaries—Deceased subsequently marrying and having two children without changing nominations—Deceased dying while still employed—Application by widow and children to vary nominations and include them as beneficiaries—Son a minor but daughter adult—Widow and daughter unable to show they have been denied of reasonable provision from estate of deceased—Application granted

[p.516] of [2001-2002] 1 GLR 515 only in respect of son—Social Security Law, 1991 ( PNDCL 247), ss 37 and 40—Children’s Act, 1998 (Act 560), s 1—PNDCL 247, s 40(8).

Pensions scheme—Social Security Pension Fund—Contributions of deceased person—Beneficiaries—contributions not part of estate—Whether contributions available to administrators of estate of deceased person to administer.

Administration of estates—Letters of administration—Mandatory statutory requirement of inventory of property of deceased—Inventory prerequisite to grant of letters of administration—No inventory presented in application for grant—Consequential constraints on functions of court—Whether court to grant application for variation outside scope of estate.

The deceased died intestate at the Navrongo War Memorial Hospital on 30 November 1998 survived by his widow and two children, a daughter and a son. During his lifetime, the deceased who worked as a teacher under the employment of the Ghana Education Service contributed to the Social Security and National Insurance Trust (SSNIT) Pension Fund. Upon his death, inquiries at the SSNIT Office, Bolgatanga revealed that the deceased had nominated two of his nephews, both adults of over 30 years, as beneficiaries. A joint application for letters of administration was then filed by the second and third applicants, the surviving spouse and daughter of the deceased. Even though the application did not include an inventory of the deceased’s properties, the application was granted by the Circuit Court, Bolgatanga. However, an application by the second applicant to the district manager of SSNIT, the third respondents, to have the nominations of the deceased varied to include the second and third applicants as well as a son of the deceased was refused. Subsequently, the widow and daughter sought the assistance of the Commission on Human Rights and Administrative Justice (CHRAJ) to ventilate their claims. In an application made to the High Court, Bolgatanga the applicants contended it was appropriate that the nominees of the deceased under the SSNIT pension fund be varied to include the second applicant and the two children of the deceased because: (a) the funds formed part of the estate of the deceased; and (b) they were automatically entitled by law to a share of the estate of the deceased, particularly as the deceased’s nominees were not qualified to benefit. The court found on the evidence, inter alia, that the daughter of the deceased was 22 years old, unmarried and had one child; but the son was twelve years old.

Held, granting the application in part:

(1) Under sections 37 and 40 of the Social Security Law, 1991 (PNDCL 247) the criteria for the operation of the Social Security and National Insurance Trust Pension Scheme required that a worker who was a contributor or member of the scheme should at the inception of his working life nominate the beneficiaries to the scheme from among his dependants. Moreover, under section 40(6) of PNDCL 247, a member was at liberty to change his nominees anytime, and in any case under the Children’s Act, 1998 (Act 560) every worker was mandated to review his nomination once every five years. Consequently, where a bachelor at the time he was first employed as a worker nominated his beneficiaries and subsequently married

[p.517] of [2001-2002] 1 GLR 515 and procured his own children and yet failed to review his nomination and died, there would be a presumption in favour of unwillingness on his part to change his original nominees. However, section 40(8) of PNDCL 247 which provided that a deceased member’s child of school going age was entitled to 60 per cent of the contributions had revolutionalised the whole concept of nominating beneficiaries under the scheme and transformed the nomination of beneficiaries from the purely voluntary exercise of choice. Accordingly, an applicant seeking to vary the nomination of beneficiaries to the SSNIT Pension Fund had to satisfy the court that he was a dependant of the deceased; he was a child under 18 years of age; he was not sufficiently provided for from the estate of the deceased nor was the estate large enough nor solvent enough to satisfy the expectation of the applicant. Although it was not a prerequisite, it might also be necessary to state the number of beneficiaries to the estate with whom the applicant was to share the estate and to show the applicant’s special or peculiar circumstances that qualified him for a variation of the nomination of beneficiaries to the pension fund and not any of his joint-beneficiaries to the estate. Since under section 40(8) of PNDCL 247, a child of the deceased who was of school going age should be entitled to 60 per cent of the fund, only the son of the deceased who was twelve years old when the application for the grant of letters of administration was filed was of school going age. The application on his behalf would therefore be sustained. The other applicants did not even remotely show that any of them had been deprived of a reasonable provision out of the estate of their husband or father. Consequently, the application in respect of the second applicant, the widow, and the elder child, who was 22 years old but failed to demonstrate that she was still in school or was dependant on the deceased and therefore within the scope of the persons envisaged, would be dismissed.

(2) Contributions by a deceased person to the SSNIT Pension Fund did not form part of the estate of the deceased since a special application had to be made to have nominations varied. The fund was a special one to which only the named nominees qualified and was therefore not available to the grantees of letters of administration to administer in the same way they would deal with the deceased person’s estate unless the required conditions had first been fulfilled. The administrator of a deceased person’s estate would therefore not, while gathering in the estate, ordinarily demand the release to him of the fund for distribution to beneficiaries whether named or unnamed. Since the contributions constituted money that had previously been given away by the deceased, the principle of nemo dat quod non habet would without more apply.

(3) Under the Administration of Estates Act, 1961 (Act 63), and Orders 1 and 2, r 3 of the Probate and Administration Rules, 1991 (LI 1515) any applicant for the grant of letters of administration in respect of a deceased person’s estate was enjoined by law to, inter alia, declare the property of the estate and file an inventory of items of property that the deceased owned at the time of his death.

That would enable the court to ascertain the value of the movable and immovable property of the deceased in order to accurately judge

[p.518] of [2001-2002] 1 GLR 515 how solvent, large, financial or non financial the estate was. The determination of such issues would also help the court weigh the merits of the application before it: whether the applicants had been well catered for out of the estate of the deceased, or their share of the estate was significant to the extent that each of the beneficiaries or applicants, as the case might be, could be said to have received or stood to have a fairly large share. In the instant case, however, the application for the grant of letters of administration filed in the circuit court did not include an inventory of the estate.

The court could therefore not determine whether the estate which was randomly estimated at ¢13 million was either large or too small and to feel justified to consider a variation outside the immediate scope of the estate.

APPLICATION by the surviving wife and children of the deceased to vary his nominees under the Social Security and National Investment Trust Pension Fund to include the applicants on the ground that they, as wife and children, were entitled to benefit from the deceased’s estate and not the nominees of the deceased who were aged more than 30. The facts are sufficiently set out in the judgment.

Robert Tater for the applicants.

No appearance for the respondents.

Quaye J. The deceased, Kukebah Charles Baba, died intestate at the Navrongo War Memorial Hospital on 30 November 1998. During his active life, and presumably until his death, Kukebah Charles Baba worked as a teacher under the employment of the Ghana Education Service. Upon his death, a joint application for grant of letters of administration of his estate was filed and successfully pursued in the Circuit Court, Bolgatanga by his wife and daughter respectively. The second applicant is the said surviving widow of the deceased. On the face of it, the application for the grant of letters of administration was filed in the circuit court. However, for reasons yet to unfold, the grant was made by the High Court. I will come back to consider the application for the grant of letters of administration later in this ruling.

Armed with the grant of the letters of administration, which was obtained on 15 March 1999, the widow, the second applicant, made an application to the district manager of the Social Security and National Insurance Trust (SSNIT), the third respondents, for a share in the lump sum benefit of her husband. When this application was refused, the

[p.519] of [2001-2002] 1 GLR 515 widow next approached the office of the first applicant, the Commission on Human Rights and Administrative Justice to help ventilate her claim. The above provides the genesis of the instant application which was filed in this court on 14 December 2001. In the format of this ruling I feel bound to reproduce excerpts from the affidavits that were filed in support of the application. With respect to the affidavit of the first applicant, only two paragraphs thereof will be reproduced. They are:

“(4) That I am advised by counsel and believe same to be true that the refusal of the officials of SSNIT to vary the nominations to include the second applicant and the two children of the deceased is unjust, unfair and a violation of their rights under the Constitution, 1992 as spouse and children, respectively of the late Charles Kukebah (deceased) …

(6) That I am advised by counsel and believe same to be true that this is an appropriate case to apply for a variation of the nominee/beneficiaries of the SSNIT pension contributions of Charles Kukebah (Deceased).”

On her part the second applicant, inter alia, made the following depositions:

“(4) That my late husband was a contributor to the SSNIT Pension Fund with social security identity No 001670876.

(7) That my late husband is also survived by two children of a first (divorced) wife, namely Ophelia Kukebah (22 years) and Jonathan Kukebah (12 years).

(8) That subsequent inquiries at the office of SSNIT, Bolgatanga, disclosed that my late husband nominated his nephews, George Asumina and John Asumina, both of whom are now adults of over 30 years respectively, as beneficiaries under his SSNIT pension contributions.

(9) That all efforts to get the officers of SSNIT to understand the situation and vary the said nominations to include me (his wife) and the two children, Ophelia and Jonathan proved futile.

[p.520] of [2001-2002] 1 GLR 515

(10) That I am advised by counsel and believe same to be true that the children and myself are entitled by law to a share of the estate of our late father and husband.

(11) That I am advised by counsel and believe same to be true that this is a proper case in which the nominees with SSNIT ought to be varied and replaced with my name Francisca Kukebah and the names of the children, namely Ophelia Kukebah and Jonathan Kukebah.”

In arguing this application on 7 May 2002 counsel for the applicants made far-reaching submissions which I intend to address generally but exhaustively in this ruling. The fact is settled that the deceased made contributions to the SSNIT. The said body, the third respondents herein, as an organised institution, has laws and regulations setting out processes, procedures and rules for conducting its affairs, while in the same instance imposing conditions and directions to its contributors as to how the contributions shall be disbursed. These rules and conditions have been legislated upon and are embodied in the Social Security Law, 1991 (PNDCL 247). The relevant provisions are contained in sections 34 through 41 of PNDCL 247. I intend to refer extensively to these provisions, as well as any amendments now in force since a correct interpretation of them would stand me in good stead and inform a final decision in this application.

It comes out clearly from the stand point of the second applicant that this application is centrally premised upon the fact that she (herself) and the two children are automatically qualified by virtue of their relationship with the deceased to call for, and have his nominated beneficiaries varied. By extension from the immediately preceding situation, there is the follow up assertion as contained in paragraph (11) of the second applicant’s affidavit of 24 April 2002 that the named beneficiaries, as nephews of the deceased, live in borrowed robes, are less qualified or not qualified at all to benefit and therefore their names should be replaced altogether with those of the widow and the two children of the deceased.

It appears to me the above position is contrary to the position and intendment of the law. I believe strongly that before a variation can be considered, the applicant must first meet certain criteria, failing which

[p.521] of [2001-2002] 1 GLR 515 the application for variation must fail. The criteria are in part set out in PNDCL 247, and we must now turn to consider them. It is provided in section 37 that payment of pension of a member/contributor who dies will be made “to his nominated dependants.” Section 40 of PNDCL 247 shows how the dependants are, or can be nominated:

“40. (1) Every person who is required or entitled to become a member of the Scheme shall be asked forthwith by his employer to furnish and shall, on such demand, furnish to the employer particulars concerning himself and his dependants for the receipt of benefits on his death. .

(3) Every employer shall before taking any person into employment ask him . . . whether he had nominated anyone to receive the benefits as his survivor. .

(6) Subject to the provisions of subsection (3) a member of the Scheme shall be free to update his nomination and such revised nomination shall be forwarded to the Trust.

(7) Where payment of benefits has been made to a person validity nominated under this section, no other person shall have any other claim against the Trust.”

The criteria, therefore, as it existed in its original or pristine form was that every member was to nominate from among his dependants those of them whom he would like to benefit from his contributions upon his death. An interesting issue arises here. Counsel for the applicants has sought to draw a thin line of distinction between the applicants herein as dependants and the deceased’s own nominees too as dependants. The line that is sought to be drawn forcefully and conclusively creates a class or tier of dependants. Such a point of view is erroneous and unfortunate. It is a truism in law that the fact that one person might, if given the chance to name his beneficiaries, settle on entirely different persons, should not derogate from the member’s own right to exercise his discretion and appoint those he would like, of his own free will, to benefit from his contributions. To state otherwise, would completely erode the voluntary exercise of free will and discretion, and instead impose fetters and undue limitation on his exercise of choice.

Another truism relating to the nomination of beneficiaries to the Social Security contributions is the fact that invariably, employees were

[p.522] of [2001-2002] 1 GLR 515 confronted with the requirement to exercise their right of nomination at the inception of their employment, ie when they were beginning their working life. Most often the worker was too young, had not started raising a family of his own and was, with unreserved apologies, inexperienced. It is in order to meet such a situation that the law provides in section 40(6) of PNDCL 247 the right of updating the nomination at any time that the worker wants to do so. This particular provision has recently been amended by the Children’s Act, 1998 (Act 560) which makes it compulsory for every worker to “review his nomination once every five years.”

What would it amount to where a member failed to review or update his nomination of beneficiaries? The simple answer is that he did not want to change the original nomination. Where therefore a bachelor, at the time he entered his first employment as a worker, nominated his beneficiaries and subsequent to that married and procured his own children and yet failed to update his nomination and died, then there was a presumption in favour of an unwillingness or undesirability on his part to change his original nominees. Such must have been the position in which the third respondents found themselves and informed their decision to decline the application of the widow and the two children of Kukebah Charles.

The criteria for the operation of the scheme as provided under PNDCL 247 can be set out as follows:

(1) there must be a worker who is a contributor/member of the scheme;

(2) he must at the beginning of the employment nominated his beneficiaries to the scheme from among his dependants. This fact presupposes that he is not obliged or bound to benefit every one or all of his dependants necessarily;

(3) he is at liberty at any time, or now during every five year period to update or review his nominated beneficiaries;

(4) the Trust is bound to honour, respect and abide by the member’s own choice of nominee dependants as standing in their records at the time of his death.

An in-road has been made into the provision relating to the named nominees as valid at the time of the death of the member by the addition of subsection 8 to section 40 of PNDCL 247. The new section

[p.523] of [2001-2002] 1 GLR 515

40(8) of PNDCL 247 reads as follows:

“40. (8) Notwithstanding subsection (7) if a member of the Scheme has a child of school going age 60% of the contribution shall be distributed to the child and 40% to the person nominated by the member.”

To say the least, the above provision has revolutionarised the whole concept of the contribution and the nomination of beneficiaries under the scheme and transformed it from a purely voluntary exercise of choice. I must confess that I have not been able to access the memorandum to the passage of Act 560 so as to help me fully appreciate the concerns expressed and the factors which led to the imposition of the condition as contained in the new subsection 8 of section 40 of PNDCL 247.

It seems to me that I should now turn to look at the other criteria regulating the scheme in order to find answers to the questions that arise. I do not agree with counsel for the applicants in his submission that the contributions to the scheme form part of the deceased person’s estate. This view finds justification from the very fact that a special application must be made to have the nomination varied. Such application and effort would not be necessary at all, if the fund were part of the estate. It is a special fund to which only the named nominees qualified. Even where a variation was made, it was not open to each and every beneficiary of the estate of the deceased. A variation so made was limited and went only in favour of the persons so named or designated. The fund was not available to an executor of the deceased person’s will nor to the grantee of letters of administration to administer in any way as they would deal with the deceased person’s estate unless the required conditions had first and foremost been fulfilled. Neither the executor nor administrator of a deceased person’s estate would, while gathering in the estate, ordinarily demand the release to him of the fund for distribution to beneficiaries whether named or unnamed. I will therefore reiterate my understanding and conviction that the SSNIT contributions or pension fund does not form part of the estate. It is money that had previously been given away by the deceased and the principle of nemo dat quod non habet (he who has not cannot give) would, without more, apply.

[p.524] of [2001-2002] 1 GLR 515

Upon the presumption therefore that the fact that the SSNIT pension money does not form a part of the estate is appreciated and accepted, my effort will now turn to a consideration as to who can apply for variation, and upon what requirements would a successful application be made. It is my modest assessment that any applicant for the grant of letters of administration in respect of a deceased person’s estate was enjoined by law to, inter alia, declare the property of the estate as he knew it and file, among other things, an inventory of the items of property that the deceased owned at the time of his death: see the Administration of Estates Act, 1961 (Act 63) and also the Probate and Administration Rules, 1991 (LI 1515), Orders 1 and 2, r (3). Where this information had been provided, that would enable the court to ascertain the value of the movable and immovable property of the deceased. The relevance of this requirement to the instant application is, additionally, that the court before which an application for variation was made would be in a position to know how solvent or not; how large or small; how financial or non-financial the estate was. Where the estate was large enough, that would help the court decide upon the merit of the application for, if the applicants had been well catered for under the estate, or their share of the estate was significant to the extent that each of the beneficiaries, or for that matter, each of the applicants could be said to have received or stood to have a fairly large share, that fact would go a long way to inform the decision of the court and determine the fate of the application for variation. Regrettably, the application for the grant of letters of administration that was filed in the circuit court on 15 March 1999 did not include an inventory of the estate; it did not even include a certificate or evidence of death. It is not in doubt that the applicants were aware of the legal requirements, for it was stated in paragraph (7) of their affidavits in support of the application for letters of administration that: “A correct and true inventory shall be exhibited and just debts paid-off as required by law.” In spite of this evidence of clear knowledge of what was required by law, the estate was lamentably not inventorised. With this denial of information, this court is unable to conclusively say whether the estate which was randomly estimated at ¢13 million was either large or too small, and in relation to the latter, to feel justified in the first place, and then proceed to consider a variation outside the

[p.525] of [2001-2002] 1 GLR 515 immediate scope of the estate.

It may now be stated, albeit not upon any claim of authority, that in addition to the criteria set out in the relevant legislation, an applicant seeking a variation of the nominees to the pension fund must satisfy the court that: he was a dependant of the deceased; that he was a child under 18 years of age as provided in section 1 of the Children’s Act, 1998 (Act 560), that he was not sufficiently provided for from the estate. He must prove to the satisfaction of the court the extent of the estate and that the estate was not large or solvent enough to satisfy his expectations. It may be necessary for instance to add the number of beneficiaries to the estate with whom he would share whatever there was; he must show his special or peculiar circumstances that qualify him, and not any or the rest of his co-beneficiaries or joint beneficiaries to the estate. I may state a caution at this stage that an application for variation of nomination of beneficiaries to the pension fund that was premised only upon the fact that the applicants were the immediate dependants and consequently more qualified to benefit than the valid nominees must fail. While I agree with the submission of counsel for the applicants that the Constitution, 1992 makes provision that where it was detected upon the death of a spouse that he did not make reasonable provisions for his spouse or child, the whole question could be reopened by the court, yet in this application the applicants have failed to lead any evidence whatsoever as to the nature of the estate or what share went to them. With respect the same onus of proof existed when one had to apply the provisions of article 222 of the Constitution, 1992. The applicants have not even remotely shown that they or any of them has been deprived of a reasonable provision out of the estate of their husband or father. All they contend is that they have a better claim to the pension fund than the persons nominated by the deceased. With due deference, that assertion was not a recognised or strong ground to justify variation or replacement.

Lastly, section 34(1)(d) of PNDCL 247 adds to the criteria. It states the scope of nominees. They must be members of the family of the deceased; who are dependent on him; and who have been nominated by him. I have stated earlier in this ruling that the member has election to choose from among what might be a wide field or large class of qualified beneficiaries, those of them whom he would like to

[p.526] of [2001-2002] 1 GLR 515 benefit. The proviso to the subsection is without prejudice to the nomination where the nomination was valid.

Before I conclude, I will ask: are the applicants entitled to the relief being sought? Evidence shows that while the Constitution, 1992 mentions spouse, the scope envisaged under its provisions are limited to the estate of the deceased. With respect to the second applicant, the widow, she has failed to satisfy the court why a variation should be made in her favour. I must say quickly that where the law-makers specifically wanted to provide against a known mischief they did not mince words at all in attacking same. Such is the distinction between the protection of rights of spouses and those of children as exemplified by the amendment to section 40 of PNDCL 247 by Act 560 by adding a new subsection (8) thereto and specifically stating thereunder and in mandatory terms that a child of the deceased who was of school going age shall be entitled to 60 per cent of the fund. Even though there are two children in this application, only one of them was of school going age when the father died. Jonathan Kukebah’s age as at 14 December 2001 when this application was filed was stated to be twelve years. He was eleven years old when his father died on 30 November 1998. In fact the affidavit in support of this application when read together with the application for grant of letters of administration reveals a falsehood in respect of the ages of the children. Ophelia Kukebah was 21 years old in 1998. In 1999 when the application for the grant of letters of administration was filed, she was 22 years old. She had her own child. Although counsel submitted that she had no husband, the applicants failed in respect of Ophelia to demonstrate that she was still in school or that she was dependent on the deceased and therefore within the scope of persons envisaged. The onus of producing satisfactory evidence lay on the applicants. This they failed to discharge.

I hereby dismiss the application in respect of the second applicant, Francisca Kukebah and also in respect of Ophelia Kukebah, and sustain it in respect of Jonathan Kukebah. I proceed consequentially to order that in respect of Jonathan Kukebah, section 40(8) of PNDCL 247 be invoked.

Application granted in part.

AD