IN RE TUFUOR (DECD.); KWABENA v. NIMO [1966] GLR 732

Division: HIGH COURT, KUMASI

Date: 11 NOVEMBER 1966

Before: FRANCOIS J.

CASES REFERRED TO

(1) G. B. Ollivant & Co., Ltd. v. Haroun Brothers (1934) 2 W.A.C.A. 159.

(2) France v. Quartey (1925) D.Ct. ‘21-’25, 194.

(3) Timbo v. Jalloh (1953) 14 W.A.C.A. 339.

(4) Studd v. Cook (1883) 8 App.Cas. 577; 10 R. (Ct. of Sess.) 53; 20 Sc.L.R. 566, H.L.

NATURE OF PROCEEDINGS

ORIGINATING SUMMONS by a beneficiary of a residuary devise. The facts are fully set out in the ruling.

COUNSEL

Kofi Sackey for the applicant.

Abeyie for the respondent.

JUDGMENT OF FRANCOIS J.

By his will of 16 September 1964 the testator Philip Melanchton Kwadwo Tufuor devised the realty comprised in his residuary estate as follows: “I give unto and to Abena Kwabena my sister and Kwame Poku my grandson residue of my real properties at Kumasi, Konongo, Kurofa and Kumawu that I may die possessed of.” The schedule of real properties filed by Mr. Abeyie, solicitor acting for the executor left out all mention of a house at Kumawu E.B.22 and a second farm at Aworotwe, but this omission was rectified by the two vesting assents I have seen which take account of all the testator’s residual property. The executor of this will aforesaid, one Kwame Nimo, in a purported exercise of his powers thereunder made the following distribution by way of vesting assents to the two beneficiaries:

(A) To Abena Kwabena:

(1) House No. O.I.42, Kumasi.

(2) Half share of house No. E.B.22, Kumawu.

(3) Half share of house No. N.T.E. 32, Konongo.

(4) Half share of the proceeds of cocoa farm at Krofa.

(5) Half share of proceeds of cocoa farm at Aworotwe No. 1 and No. 2.

[p.734] of [1966] GLR 732

(B) To Kwaku Donkor in trust for Kwame Poku:

(1) House No. K.O.100, Kumasi.

(2) Half share of house No. E.B.22, Kumawu.

(3) Half share of house No. N.T.E. 32, Konongo.

(4) Half share of the proceeds of the cocoa farm at Krofa.

(5) Half share of the proceeds of cocoa farm at Aworotwe No. 1 and No. 2.

It would appear therefore that whereas the executor saw fit to apportion to the beneficiaries in equal moities the residuary realty of the testator outside Kumasi, he gave to them in sole ownership one each of the houses in Kumasi, namely, O.I.42 and K.O.100.

The originating summons challenges this apportionment and seeks a declaration that the executor’s vesting assent has no legal validity. It is in the terms following:

“Let Kwame Nimo of Kumasi in the Ashanti Region of Ghana within eight days after service of this summons on him, inclusive of the day of such service, cause an appearance to be entered for him to this summons which is issued upon the application of Abena Kwabena of Kumawu who claims to be one of the principal beneficiaries for the determination of the following questions:

(a) On the true construction of paragraph (7) of the will of P. M. K. Tufuor (deceased) to the extent to which the vesting assent executed by the respondent hereto a copy of which is exhibited hereto gives the applicant hereto only an interest in O.I.42, Kumasi the same is null and void and of no legal effect since the said vesting assent contravenes paragraph (7) of the said will.

(b) On the true construction of paragraph (7) of the will of P. M. K. Tufuor (deceased) to the extent to which any vesting assent executed by the respondent hereto gives Kwame Poku a residuary devisee in the will of P. M. K. Tufuor (deceased) the sole ownership of the house situate at No. K.O.100 Kumasi the same is null and void and of no legal effect since any said vesting assent contravenes the said paragraph (7) of the said will.

(c) That the respondent hereto is in breach of the terms of settlement of the 3rd of June, 1966 filed at the High Court, Kumasi by his failure to withdraw his criminal prosecution against the applicant and her relations and to request the police to hand over the exhibits held by the police in respect of the said criminal prosecutions; consequently the respondent should not be discharged from his executorship. [p.735] of [1966] GLR 732

(d) The respondent should personally bear the costs of this summons.”

I must confess that the summons as filed is not easy to comprehend and not till learned counsel had begun his argument did it become apparent what was sought. For instance, alluding paragraph (a) to “only an interest in O.I.42” and in paragraph (b) to “sole ownership of K.O.100” which to say the least are inaccurate by the terms of’ the vesting assent filed could not help but add to the confusion. Again as far as paragraph (c) is concerned I do not think that relief by way of originating summons is apposite, as the aforesaid paragraph does not seek the court’s aid in the construction of any deed, will or other written instrument but rather lodges a complaint about misbehaviour and asks the court to keep the executor in office. I think it is wrongly conceived.

On paragraphs (a) and (b) of the application Mr. Sackey has urged that upon a true construction of the will, the testator intended to make specific devises of his residuary estate to the beneficiaries stated in the said paragraph (7) and as the law stands, a residuary devise is a specific devise and the executor therefore has no right to deviate from the fullest compliance with the testator’s wishes. Mr. Sackey urges further, that in residual clauses which devise land, there is no compulsion to sell. The Law of Property Act, 1925,1 which creates a trust for sale in joint tenancies is not applicable in. Ghana; and in any case the executor did not purport to sell, but rather made an arbitrary division of the residual estate. I agree that the devises are specific at law. Even on the face of the will the testator sufficiently particularised his real property in paragraph (7) that it can hardly be described as residual except it be understood in the ordinary English connotation of remainder. I am clearly of the opinion therefore that the executor acted ultra vires in his purported division of the residual realty and for the following reasons. Prior to the coming into operation of the Land Transfer Act, 1897,2 a will of realty vested the said realty in the devisees immediately upon the death of the testator. At law therefore these devisees unless they disclaimed the land, were regarded as owners of it. The law merely regarded the will as a conveyance of the property. This differed materially from the will of personalty which operated in vesting the personal property in the executor irrespective of to whomsoever it might have been bequeathed. [p.736] of [1966] GLR 732

Subsequent to the Land Transfer Act, therefore, that is after 1 January 1898 the difference in wills of realty and personalty no longer existed in England. Freeholds now vest in the executor who is a trustee of them, subject to the testator’s debts, for the devisee. In Ghana however the law applicable is what obtained prior to the passing of the Land Transfer Act, 1897: see G. B. Ollivant & Co., Ltd. v. Haroun Brothers3 and France v. Quartey.4

In this case there is no suggestion in the will that the real property was specifically devised to trustees in trust for the beneficiaries mentioned in the said will. In fact in this will the executors are not even trustees.

I hold therefore that the beneficiaries were each individually entitled on the death of the testator to the devises contained in paragraph (7) of the will. It follows that they each had an undivided half share in all the residual properties. It was for them to decide whether to sell or share the same in any particular way. By the English Law of Property Act, 1925, no legal estate can subsist or be created in an undivided share of land. A trust for sale is immediately created and the net proceeds of the sale is divided, subject to such powers and provisions as may be requisite for giving effect to the rights of the persons interested in the land. That law is applicable to England not Ghana.

As far as our law is concerned, there is nothing against the creation of a joint or common tenancy, and the frequency by which suitors in these courts rush for a determination whether the incidents of survivorship in joint tenancies flow from particular devises in wills is the surest indication of the legal acceptance of both joint and common tenancies in this country.

In the case of Timbo v. Jalloh5 (a Sierra Leonean case where the system is identical with ours), the West African Court of Appeal construed the devise of a house to a testator’s sons etc. so as to give the testator’s desires the fullest effect: the court held that the sons held jointly; they would have severed a direction that the house should remain a family house and thus created a tenancy in common but they felt in the circumstances that the testator’s great desire to keep the house as a family house should be honoured. One of the elementary canons of construction is that a will of immovables should be construed in accordance with the system of law intended by the testator which is presumed to be the law of his [p.737] of [1966] GLR 732 domicile unless a contrary intention appears. If the interest so created is not recognised by the lex situs then the latter should prevail: see Studd v. Cook.6

If I may venture into the unknown I would give the opinion that both the testator’s law of domicile and his lex situs do not frown upon joint or common tenancies. I see therefore no reason why the testator’s wishes should not be given its full effect.

Finally, I must say I am not unaware that Kwame Poku is a minor, but the court has appointed or approved a guardian ad litem for him, his parents will also at law, be his natural guardians, and in any case his minority cannot affect the principle herein enunciated. I hold therefore that the vesting assent is without effect.

I award costs of ¢48.00 for the applicant herein to be borne by the estate.

DECISION

Declaration accordingly.

Judgment for the applicant.

S. K. T.