TAWIAH vs. BAAH AND OTHERS [1997-1998] 2 GLR 815

CASES REFERRED TO

(1) Doe (Decd), In re; Hisocks v Hiscocks, (1839) 5 M & W 363; [1835-42] All ER Rep 380; 90 ULJ Ex 27.

(2) Biney v Biney [1974] 1 GLR 318, CA.

APPEAL against the ruling of the High Court, Kumasi in an application by originating summons for the interpretation of clause 13 of the will of a deceased member of family wherein the court held that by clause 13 of the will the devisee was to take the residuary estate as customary successor in trust for the family and to manage it for and on behalf of the family.

J Ahenkorah (with him Danso Alckyeampong) for the appellant.

Agudetse for the respondent.

Sapong JA. The plaintiff-appellant (hereinafter called the plain tiff) took out an originating summons in the court below for the interpretation of clause 13 of the will of Isaac Ottie alias Agya Atta, dated 26 January 1982. He specially called upon the court to decide whether or not having regard to the devises in the last will of Isaac Ottie alias Agya Atta (deceased), dated 26 January 1982, more particularly the devises made in clauses 7 and 13 of the said will, the testator, Isaac Ottie, by clause 13 devised his residual estate to Kwadwo Kwarko personally forever or to him in his capacity as customary successor who is to hold the properties in trust for the immediate family.

At the end of the day the court held that by clause 13 of the will, Kwadwo Kwarko was to take the residuary of estate of the testatotr in his personal capacity. Aggrieved by this decision, the plaintiff is in this court for redress.

I must say here and now that the trial judge in taking evidence from the lawyer who prepared the will to appraise herself of the

[p.818] of [1997-1998] 2 GLR 815 intention of the testator fell into error. She has no business relying on an extrinsic evidence in order to interpret clause 13 of the will. Clause 13 reads: “Kwadwo Kwarko is to inherit me on my death and all the properties which I have not devised must go to him.” Learned counsel for the defendant-respondent (hereinafter called the defendant) contends that the words: “to inherit me” means to take for himself absolutely. What is the law here? In customary law it is only the family that chooses a customary successor and not otherwise. A person may nominate or desire a person to succeed him. This is made known to the family and if the family agrees then that person is made the successor to administer the estate for and on behalf of the family.

This was what actually happened here. The testator gave the name of Kwadwo Kwarko to be his successor. The family obliged so Kwadwo Kwarko become the customary successor of the deceased. And as such successor, he is duty bound in law and custom to hold and administer the estate in trust for the family and nothing more. If the testator was minded to settle the residuary estate on Kwadwo Kwarko he would have done so in no uncertain terms as he did in clause 7 of the will. Clause 7 reads: “I devise and give twelve rooms in my house No 54 Block 12 to my grand niece Yaa Dwomo and her brother Yaw Asante, four rooms to Ama Serwaa. The upstairs chamber and haill must be given to Kwadwo Dua alias Abokyire Driver for life, the chamber and haill downstairs are to be given to Kwame Ottie of Pankrono for life. I devise the six rooms left to Kwadwo Kwarko.”

(The emphasis is mine.) What therefore prevents the testator from making a specific devise of the residuary esate under the will to Kwadwo Kwarko? Nothing!

I therefore hold that the appeal be allowed and the decision of the court below is accordingly set aside. Kwadwo Kwarko is to take the residuary .estate in trust for the family. He is to administer and manage it for and on behalf of the family.

Farkye J. I agree with the judgment just read by my brother Sapong JSC and would therefore also allow the appeal.

Afreh JA. This is an appeal against the judgment of Rose Owusu J, sitting at the High Court, Kumasi on 5 July 1991, in

[p.819] of [1997-1998] 2 GLR 815 favour of the defendant-respondents (hereinafter referred to as the respondents).

On 7 July 1991 the plaintiff-appellant (hereinafter referred to as the appellant) issued an originating summons for the determina tion of following question:

“Whether or not having regard to the devises in the last will of Isaac Ottie alias Agya Atta (deceased), dated 26 January 1982, more particularly the devises in clauses 7 and 13 of the said will the late testator Isaac Ottie by clause 13 of the said will devised his residuary estate to Kwadwo Kwarko per sonally forever or the devise was made to Kwadwo Kwarko in his capacity as the customary successor who is to hold the properties in trust for his immediate family.”

The first and second respondents are the executors of the will under consideration while the third respondent is a beneficiary under the will. The appellant too, is a beneficiary under the will and brought this action on behalf of himself and other members of the Kenkase (Ashanti) Bretuo clan or family.

It appears from his will that Isaac Ottie was a man of substance who at the time of his death owned, inter alia, several self-acquired houses in Kumasi. In his will he made specific devises. Under clause 7 of the will the third respondent was given six rooms in a house No 54 Block 12 (presumably in Kumasi). In clause 13 of the will he made the following disposition which is the source of the dispute between the parties: “Kwadwo Kwarko is to inherit me on death and all the properties which I have not devised must go to him.” The appellant took out the originating summons because in his view and that of other members of the family, clause 13 was not clear. According to the affidavit in support of the summons, before his death Isaac Ottie pleaded orally with the elders of the his Bretuo family of Kenkase-Ashanti that Kwadwo Kwarko should become his customary successor when he died. This “wish”, the family later discovered, had been repeated by Isaac Ottie in his will. They honoured it by appointing Kwarko his customary successor. The appellant therefore conten ded that the residuary estate was given to the third respondent, Kwadwo Kwarko, in his capacity as the customary successor who is to hold the properties in trust for his immediate family.

Kwadwo Kwarko denied in his affidavit in opposition that his uncle, the testator, Isaac Ottie, before his death pleaded with the

[p.820] of [1997-1998] 2 GLR 815 elders of the Bretuo family to make him (Kwarko) his customary successor. He said his appointment as the customary successor was not due to any request by Ottie but by consensus of the family after his uncle’s death. On his appointment he was given only the family stool and no property or properties were given to him to look after for and on behalf of the family. He maintained that he inherited his uncle’s properties in accordance with the devise in the will and that the properties were devised to him in his personal capacity.

The learned trial judge thought the “second leg” of clause 13 was ambiguous. She posed this question: “Does Kwarko take the residuary estate as a customary successor and therefore in trust for the family or he takes as a beneficiary in his personal capacity? She remarked:

“By clause 7 of the will the testator devised six (4) rooms in H/No 54 Block 12 to the said Kwadwo Kwarko and it is this devise which if read together with clause 13, creates the impression that under clause 13, Kwadwo Kwarko takes the residuary estate as a customary successor.”

The judge found that the condition upon which the family was to have the residuary estate did not materialise. Consequently, she held that the devise under clauses 13 of the will was to Kwadwo Kwarko personally and he took the residuary estate in his personal capacity.

It is against this decision that this appeal has been brought. The two original grounds of appeal are:

“(a) The judgment cannot be supported having regard to the contents of the deceased’s will.

(b) The trial judge erred in law by receiving extrinsic evidence and using the same to ground her judgment.”

Leave was also granted to counsel for the appellant to argue the following additional ground: “(1) That the interpretation given by the learned High Court judge sins against the spirit and letter of section 1 of the Wills Act, 1971 (Act 360).” All the grounds of appeal were argued together.

After carefully considering the judgment of the learned judge and section 1 of the Wills Act, 1971 (Act 360), I cannot find any basis for the additional ground because there is nothing in the judgment that sins against any part of section 1 of Act 360. I shall

[p.821] of [1997-1998] 2 GLR 815 deal first with the second original ground. It deserves serious consideration. The evidence given by the court witness was evidence of a prior declaration of intention by the testator. Such evidence cannot be admitted to contradict the terms of a will: see section 177 (1) of the Evidence Decree, 1975 (NRCD 323). It is however clear that the evidence was admitted for the purpose of interpreting a term of the will which the judge thought was ambi guous. Whether or not evidence of prior declaration of intention given by the court witness was admissible for this purpose should depend upon what type of ambiguity the judge had in mind. Unfortunately, she did not say what type of ambiguity, patent or latent, clause 13 of the will created.

Ambiguity means uncertainty in meaning, an expression capable of more than one meaning. A patent ambiguity is clear on the face of the document. In my opinion if there is any ambiguity in clause 13 it is not patent. Given its ordinary meaning, clause 13 on the face of it is not capable of more than one meaning. On perusal, the clause looks quite clear and its intention plain, viz that Kwarko should inherit the testator and all his residuary estate. It only becomes ambiguous if it is thought that Kwarko was appointed customary successor by the will. It is only then that it may be wondered whether he took in his capacity as customary successor.

If the judge thought the ambiguity was patent, then she was wrong to admit the evidence of prior intention. According to Odgers, Construction of Deeds and Statutes (5th ed), p 77, to explain patent ambiguity:

“extrinsic evideçnce may be given of the circumstances surrounding the testator at the time he made his will; of his knowledge of the person or persons concerned; of the literal meaning of the words he used; the intrinsic evidence, if any, afforded by the document itself. What may not be given is direct evidence of the testator ‘’s intention, e.g. by instructions for his will or conversations on the subject with his solicitor, and it is most probably that this is meant when it is said that no extrinsic evidence may be given to explain a patent ambiguity . . .”

(The emphasis is mine.) But evidence of intention may be given to resolve a latent ambiguity: see Odgers, ibid, pp 79– 80. As I have said, if there is any ambwiguitvy it is not patent., it can only be latent.

[p.822] of [1997-1998] 2 GLR 815

In that case the judge did not err when she took evidence of a prior declaration of intention by the testator.

But is there a latent ambiguity? A latent ambiguity arises when a term in a document, such as a devise in a will, is on the face of it perfect and intelligible but from some of the circumstances admitted in proof, uncertainty arises as to which of two or more things or which of two or more persons each answering the words in the document the author had in mind. It is only in such a case that evidence of intention may be admitted: see Doe (Deecd), In re, Hiscocks v Hiscoecks; (1839) 5 M & W 363 at 369 per Lord Abinger CB. The evidence of intention is admitted as a fact inde pendent of the words used in the document and is directed as to who or what the party had in mind when he made that particular provision. The evidence is intended to support the express words used in the document and therefore does not infringe the rule in section 71 of NRCD 323 against contradicting the terms of a document by oral evidence.

In the instant case I do not think that there is (or can be) any doubt that the testator had only one person in mind when he provided in clause 13 that “Kwadwo Kwarko is to inherit me.” That person was the third respondent, Kwadwo Kwarko. No doubt has been raised about the properties that constituted the residuary estate. In my opinion there was no latent ambiguity. The judge therefore erred when she called a court witness to give extrinsic evidence of the intention of the testator in respect of clause 13. The intention should have been sought for in the will itself.

I now turn to ground (1) of the original grounds of appeal. This ground is in fact saying that the conclusion of the judge that the devise under clause 13 was to Kwadwo Kwarko personally and he took the residuary property in his personal capacity cannot be supported on the true interpretation of the will. As I have said, the meaning of clause 13 should have been sought for in the will itself. This the judge should have done by applying the general rules of interpretation of documents. In fact this is what counsel on both sides tried to do in this court and in the court below. And this is what I propose to do.

In Biney v Biney [1974] 1 GLR, 318, CA this court laid down some basic rules of interpretation, among them the following: The construction must be as near to the mind and intention of the author as the law would permit; and the intention must be gathered from the written expression of the author’s intention. To these

[p.823] of [1997-1998] 2 GLR 815 should be added, for the purpose of interpreting the will under consideration, the other established basic rules of interpretation that words are to be taken on their ordinary meaning and the document must be read and construed as a whole in order to get the meaning of any particular part or expression.

If the words of the will are given their plain, ordinary meaning there cannot be any doubt about the intention of testator. The Shorter Oxford English Dictionariy (3rd ed), Vol 1 at p 100 defines the word “inherit” as “(1) To make heir, put in possession; (2) To take or receive (property esp realty, title etc) as heir of the former possessor (usu an ancestor) at his decease . . .” And the Collins English Dictionary (2nd ed) at p 785 defines it as “(1) to receive (property, right, title etc) by succession or under a will.”

In this case, confusion and doubt arises only if the word is interpreted to mean “be my customary successor.” Perhaps there would have been more force in this interpretation if it was agreed by the parties that before his death the testator pleaded with his family to make Kwarko his successor. But the plaintiff’s averment to that effect was strongly denied by Kwarko. The burden of proof lay on the plaintiff. In the face of Kwarko’s strong denial, I do not think the burden was discharged. In any case any evidence of intention to appoint Kwarko as customary successor would have been inadmissible.

The court can modify the literal or grammatical meaning of words used in a document if they would lead to absurdity, repugnancy or inconsistency with the rest of the document. But was there any absurdity, repugnancy or inconsistency in the appointment of Kwarko by the testator to inherit his residuary estate? It was argued that in customary law a person cannot appoint his own successor, that is someone to succeed to his self-acquired property. But this is only true if the person dies intestate. The correct statement of the rule can be found in Ollennu, The Law and Testate and Intestate Succession in Ghana (1966), p 95:

“The customary law, therefore, lays down that a person cannot appoint his own successor i.e., someone to succeed to his self-acquired property upon his death interstate, because such an appointment can only take effect after his death, i. e. at a time when he longer owns the said property and has no control over it, the same having become vested in a new

[p.824] of [1997-1998] 2 GLR 815 owner, that is his family. At that date, the family is the only competent body or authority by customary law who can appoint a person take charge and control of that property and to administer the same for the benefit of all members of the family.”

(The emphasis mine.) The rule cannot obviously apply where a person makes a will. A testator can appoint his heir or heirs under his will. Indeed every beneficiary under a will is an heir. He takes or receives the property in accordance with the wish of the testator and not that of his family. Therefore there can be no absurdity about giving the property to Kwarko personally. The beneficiary’s nright to succeed to any office or title held by the testator does not depend upon the will. If a beneficiary is appointed by the family on its own or out of respect for the testator, to succeed to any office or title held by the testator, that should not in my opinion, affect his right to take and enjoy in his personal capacity any property bequeathed or devised to him unless there is a clear intention to the contrary in the will.

There is nothing in the will of Ottie which indicates that Kwarko was to take the residuary estate other than in his personal capacity. There is nothing there from which it can be inferred that Kwarko was inte”nded to take as a trustee or on condition he looked after the wife of the testator or any other person or to acquire life interest only. I cannot see any ground for reading such intention or purpose into the will.

If the appellant’s contention is right, then it means the residuary estate was intended to vest in the family and that was why the testator asked the family to appoint Kwarko as his customary successor. It would also mean that if the family had not appointed Kwarko as Ottie’s customary successor, the devise to Kwarko under clause 13 would have lapsed. And it would also mean that if at any time Kwarko is removed as Ottie’s customary successor he will lose the property. But did the testator have any of these intentions? The answer should be, No!

Whenever the testator wanted a beneficiary to take condition ally, e.g. a life interest, he said so expressly. Thus in clause (11) he ordered that Kofi Sarkodie should be given a chamber and hall for life and after his death the rooms were to revert to his family. And in clause (12) he gave one flat to Kwadwo Poku alias S B

[p.825] of [1997-1998] 2 GLR 815

Kwarteng for life. If he had wanted to limit Kwarko’s interest in the residuary estate he would have done so.

I therefore think the appeal should be dismissed.

Appeal allowed

LSNA