COURT OF APPEAL, ACCRA
WUAKU J.S.C., AMPIAH AND ESSIEM JJ.A.
Wills Act, 1971 (Act 360), s. 9(3).
Wuaku JSC. This appeal raises a very simple but an important issue. The issue is, can a testator who by his will devised his two self-acquired properties, one to each of his two wives and had made known the devises to the wives and accepted customary thank-offerring (aseda) from the wives, by revoking the first will in a subsequent will prevent the wives from taking the properties for which they had given the customary aseda?
The facts found by the learned trial judge which I fully indorse are supported by the evidence. In 1968 the testator devised an estate house at Kaneshie, Accra to one of his wives, the plaintiff-appellant, and the children begotten by her to the testator. The testator devised his building at Konongo to his other wife, the co-defendant, and her children and other children of the testator begotten by a third wife whom he had earlier divorced. The testator gave a copy of the will to each of his said wives who, in pursuance of the devises to them, accompanied by their respective relatives went and thanked the testator customarily. The thank-offering (aseda) was accepted by the testator. Some years later the testator divorced the plaintiff-appellant; thereafter the testator made another will in 1974 which revoked the 1968 will. The 1974 will gave nothing to the plaintiff-appellant and her children. The Administrator-General was appointed the executor and trustee.
The plaintiff-appellant has brought the action claiming the Kaneshie estate house arguing that it had already been given to her and her children and the testator therefore could not by his 1974 will devise the Kaneshie house to another person.
Learned counsel for the appellant had argued that the customary thank-offering (aseda) given and accepted by the testator had reduced the devise in the 1968 will into a customary gift inter vivos, because the essential conditions of a customary gift were satisfied. Learned counsel cited in support of his argument the cases of Mensah v. Kyei, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C. 97 and In re Ohene (Decd.); Adiyia v. Kyere  2 G.L.R 89, C.A. Learned counsel had submitted that the 1974 will had no effect in so far as the Kaneshie
house is concerned because at the time the will was made the house no longer belonged to the testator which he could dispose of by his will, on the maxim of nemo dat quod non habet.
Learned counsel for the respondents argued that there was never any gift inter vivos to the plaintiff-appellant; therefore the 1974 will revoked the 1968 will. A customary gift, learned counsel argued, is different from a gift made in a will which takes effect on the death of the testator, citing Yoguo v. Agyekum  G.L.R. 482 at 484, and that a copy of the 1968 will given to the appellant did not convert the devise in the will into a customary gift and cited Anaman v. Eyeduwa  G.L.R. 114 at 155. All the authorities cited by counsel for the parties deal with customary gifts inter vivos simpliciter and in my view are not directly applicable to the present case.
The evidence shows that the plaintiff never had exclusive use of the house which was inconsistent with the testator’s ownership. The plaintiff-appellant alleged that the house was bought in her name, however she failed to produce any evidence in support of that allegation. It turned out that the title deed she alleged was given to her was a copy of the 1968 will. The house in question was leased to the testator by the State Housing Corporation. The testator remained the lessee until his death, paying the rents, and keeping the receipts. The rents continued to be paid in the testator’s name after his death on behalf of his estate.
I think, however, that as stated at the beginning of this judgment, the main issue is the effect of the customary aseda given publicly and accepted by the testator: Did the acceptance of the aseda change the character of the house and it ceased to be a devise under the 1968 will?
All the evidence shows that the thank-offering (aseda) was made pursuant to the devises contained in the 1968 will. The plaintiff appellant went and thanked the testator because she had hoped and anticipated that she was going to derive a benefit under the 1968 will The 1968 will if not revoked will only become operative on the death of the testator. Customary law in my view cannot override the testator’s legal right to make a will and the right to revoke the same. The acceptance of aseda will not make the property cease to be a devise under the 1968 will.
There are many ways of revoking a will: see section 9 of the Wills Act, 1971 (Act 360). Section 9 (3) provides that: “A will may be revoked by the execution of another will which is expressed to revoke the previous will.” That was precisely what the testator did in this case. If the gift was properly made in accordance with custom before the 1968 will, and the 1968 will merely purports to confirm the customary gift, and the 1974 one also purports to revoke the 1968 will, I think that a different situation will arise whether the revocation will affect the
prior customary gift. That situation may call for consideration should it ever happen. For the purpose of this appeal I would however say that since the 1974 will effectively revoked the 1968 will, the plaintiff-appellant cannot claim to have a customary gift which could not be revoked, and I would say that under the circumstances custom cannot override the clear provision of statute law.
The plaintiff-appellant claimed alternatively that a reasonable provision out of the estate be made for her children under section 13 of Act 360. The learned trial judge after a very careful examination of all the relevant circumstances which the law enjoins him to do, made the following order:
“I therefore order that the executor vest in Kwasi Boadu, Kwaku Kyei and Akosua Argo, the children of the late Yaw Opuni, three out of the seven rooms in the house on plot No. 423 Konongo devised by the said Yaw Opuni to the co-defendant under the will dated 12 March 1974, together with separate conveniences, i.e. toilet, bathroom, kitchen and lounge, if more than one, for their lives.”
The appellant now argues that her children should be given rooms in the Kaneshie house instead of the Konongo house. The learned trial judge found that the Kaneshie house comprises four rooms and the usual conveniences. By the 1974 will the Kaneshie house was given to the testator’s other children numbering twelve. If the appellant’s request is acceded to, it would mean that her three children would have three out of the four rooms in the Kaneshie house and the other twelve children will be entitled to one room. Unless it can be shown that a trial judge did not exercise his discretion judicially, that discretion cannot be interfered with by the appellate court. It has not been shown that the trial judge did not exercise his discretion judicially. I would therefore under the circumstances dismiss the appeal.
Ampiah JA. I agree.
Essiem JA. I also agree.