Anim-Addo and Others v. Mensah and Others [1992] 2 GLR 44.

ANIM-ADDO AND OTHERS v. MENSAH AND OTHERS [1992] 2 GLR 44

HIGH COURT, ACCRA

BROBBEY J.

STATUTORY REF.

Wills Act, 1971 (Act 360)

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Brobbey J. The facts which gave rise to this dispute are relatively straightforward and are as follows: Patrick Kwaku Anim-Addo (hereinafter referred to as the testator) who died on 5 February 1988 left a will dated 5 September 1987. In the will, he made, inter alia, the following bequests:

“I appoint Mrs. Addae Mensah alias Nana Abena Biama as one of the executors to administer my interest in the company of Ghana Textile Manufacturing Co. Ltd. and to pay the benefits and profits to Abena Asantewa my niece in her lifetime and after her death should pass on to the descendants of her children. I give and bequeath all my trinkets (gold) to my niece Abena Asantewa and after her death to pass on to her descendants. I appoint Yaw Asirifi and Gideon Nyarku to run Kwanin Trading Co. Ltd. as directors and to administer the company and to invest the benefits and profits to the descendants of Abena Asantewa. I devise and bequeath the residue of my real estate to my trustees upon trust as follows: As to houses, to collect rents and after 

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paying annual rates, taxes, etc. to invest the net rents in government bonds, and as to personal estate upon trust to call in and convert into money and if need arises and to invest for the benefit of the descendants of Abena Asantewa. I direct that any property of mine including investments which has been left out and not mentioned under this will including lands should pass on to Abena Asantewa and after her death should pass on to her descendants.”

(The emphasis is mine.)

It is the case of the plaintiffs who are the children of the testator that the dispositions “to the descendants of Abena Asantewa” sin against the perpetuities rule as the descendants of Abena Asantewa born 21 years from the testator’s death or born after the death of all those living at the death of the testator would benefit. Secondly, the plaintiffs contend that as a class gift, the dispositions are null and void for uncertainty of the number of the class which would benefit under the bequests. Thirdly, the plaintiffs argue that the bequests are void because they are against the rule on accumulations. Fourthly, the plaintiffs maintain that the bequests are void as they are against the rule on inalienability.

On those premises, the plaintiffs contend that if the bequests are void, the testator died intestate and therefore the testator’s properties, as far as the plaintiffs’ children are concerned, should be distributed in accordance with the provisions of the Intestate Succession Law, 1985 (P.N.D.C.L. 111). Consequently, the plaintiffs by their writ claim:

(i) an order of injunction restraining the first four defendants from granting vesting assents in respect of the properties complained of;

(ii) a declaration that the bequests are null and void; and

(iii) an order of accounts for all rents and profits accruing from those properties.

In their defence, the defendants denied that the bequests sinned against the three rules of perpetuities, accumulations and inalienability. They contended that those rules do not apply to Ghana. Instead, it is their case that the personal law of the testator which is the Kwahu Akan customary law was the applicable law. In the alternative, the defendants argued that even if the rule against perpetuities is applicable, the rule in Andrews v. Partington (1791) 3 Bro. C.C. 401, otherwise known as the class-closing rules, would apply to validate the bequests because at the time of the death of the testator, there were 24 descendants, made up of 

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eight children and sixteen grand children of the testator, who were alive and who could have taken the properties affected by the bequests. Finally, the defendants contend that if the bequests were to be void on account of those rules already referred to, the gift would fall into residue in terms of the Wills Act, 1971 (Act 360), s. 8 (1).

Not unnaturally, the basic issues for determination in the pleadings were:

(a) whether or not the rules against perpetuities, accumulations and inalienability were applicable to the instant case;

(b) whether or not the personal law of the testator was applicable to the instant case;

(c) whether or not the devises and bequests were null and void; and

(d) if they were null and void, whether or not the bequests fell to be distributed under P.N.D.C.L. 111 or Act 360, s.8 (1).

No evidence was led in the case as the basic facts are not in dispute. The entire case was fought on arguments by counsel for the plaintiffs and defendants.

The first question to be determined is what law is applicable to the issues raised? For the plaintiffs, it has been argued that English law should be applicable. For the defendants, it has been argued that by virtue of section 49(1) of the Courts Act, 1971 (Act 372), the law applicable should be the personal law of the testator.

As Mr. Kom rightly pointed out in his submissions, section 49(1) is made subject to, inter alia, section 111(1) and (2) of Act 372, which in turn specifically make applicable to Ghana, sections 161 and 164 of the English Law of Property Act, 1925.

Section 111(2) of Act 372 reads as follows:

“(2) Until provision is otherwise made by law, sections ... 161, 164(1) and (2) ... of the Law of Property Act, 1925 (15 Geo.V. c. 20) shall apply in Ghana subject to such verbal amendments, not affecting the substance, as may be necessary to enable those sections to be conveniently applied in Ghana…”

Section 161 of the Law of Property Act, 1925 provides:

“161. Abolition of the double possibility rule

(1) The rule of law prohibiting the limitation, after a life interest to an unborn person, of an interest in land to the unborn child or other issue of an unborn person is hereby abolished, but without prejudice to any other rule relating to perpetuities.

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(2) This section only applies to limitations or trust created by an instrument coming into operation after the commencement of this Act.”

Quite clearly, the section did not re-enact the perpetuities rule. It however did not abolish the perpetuities rule either. In any case, the tail end of section 161(1) of the English Law of Property Act, 1925 which reads “without prejudice to any other rule relating to perpetuities” has been interpreted to mean “the so-called modern rule against perpetuities which is left as the sole rule applicable to all forms of property for limitations operating after 1925” : see Halsbury’s Statutes of England, (2nd ed.), p.768. Under the Law of Property Act, 1925 the rule was re-enacted under section 162, but that is not one of the sections saved under section 111 of Act 372.

Section 164 of the Law of Property Act, 1925 also provides:

“164. General restrictions on accumulation of income (1) No person may by any instrument or otherwise settle or dispose of any property in such manner that the income thereof shall, save as hereinafter mentioned, be wholly or partially accumulated for any longer period than one of the following, namely: —

(a) the life of the grantor or settlor; or

(b) a term of twenty-one years from the death of the grantor, settlor or testator; or

(c) the duration of the minority or respective minorities of any person or persons living or en ventre sa mere at the death of the grantor, settlor or testator; or

(d) the duration of the minority or respective minorities only of any person or persons who under the limitations of the instrument directing the accumulations would, for the time being, if of full age, be entitled to the income directed to be accumulated.

In every case where any accumulation is directed otherwise than as aforesaid, the direction shall (save as hereinafter mentioned) be void; and the income of the property directed to be accumulated shall, so long as the same is directed to be accumulated contrary to this section, go to and be received by the person or persons who would have been entitled thereto if such accumulation had not been directed.”

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It would be seen from this that by virtue of section 111 of Act 372 and sections 161(2) and 164 of the Law of Property Act, 1925 the rules against perpetuities and accumulations are applicable to Ghana.

Apart from the provisions expressly mentioned in section 111 (2) of Act 372, any other rule of English statute has no direct application to Ghana as a statute per se since the passing of Act 372. The class-closing rule to the extent that it was re-enacted under the Law of Property Act, 1925 but was not included in sections 161 and 164, does not apply to Ghana. If it has to apply at all, it can only be applied as part of the statutes of general application or part of the rules of common law. All the views expressed herein on the common law and statutes of general application apply, mutatis mutandis, to the class-closing rule.

This case which basically involves the construction of a will made in English form, may be for the purpose of determining the formal validity of the document proffered as a will or for the purpose of determining the effect or consequences of the will in so far as it involves the distribution of the properties of the testator. To my mind, a clear distinction is necessary whenever one talks of construction of a will for the main reason that the rules of law pertaining to the formal validity of a will may not necessarily be the same as the rules of law pertaining to the determination of the effectiveness and consequences of a will. The formal validity pertains to requisites on signatories, witnesses, their presence and the need to sign before the testator, etc. The fact that a Ghanaian like the late Anim-Addo made a will in the English language and in a form similar to the making of wills in England does not make that will an English will.

It is a Ghanaian will made by a Ghanaian under the laws of Ghana and is to be interpreted in the light of the laws of Ghana. In the instant case, the relevant law of Ghana is Act 360.

The will of the late Anim-Addo under consideration, should first and foremost comply with the requisites for making a will as contained in Act 360. These requisites, as are well known, are that the will should be signed by the testator before two or more witnesses who must be present at the same time and sign before each other, and before the testator as well as witness the testator’s signature simultaneously. It is significant to point out that even though the will was made in an English form, the current Wills Act operative in England, is not considered at all in interpreting its formal validity. We only look at Act 360 for what should be satisfied to make the will valid.

The rules pertaining to the effectiveness and consequences of the devises and bequests under a will cannot be found in Act 360. The 

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validity of the will, exhibit A, to the extent that it complies with Act 360 is not in dispute in this case.

What is at stake here, or what has to be determined in this case, is the effect of the devises or bequests made in the will, exhibit A. In actual fact, the effect or consequences of the will directly concerns the beneficiaries under the will and interests created under the will which are to be transferred to and enjoyed by the beneficiaries.

When a testator makes a will affecting his interests, there is a specific statutory law expressly governing those interests. It is to be found in section 49(1) of Act 372 which provides:

“49. (1) Subject to the provisions of this Act and any other enactment, the Court when determining the law applicable to an issue arising out of any transaction or situation, shall be guided by the following rules in which references to the personal law of a person are references to the system of customary law to which he is subject or to the common law where he is not subject to any system of customary law.”

I entirely agree with Mr. Kom in his submission that in the phrase “subject to the provision . . . of any other enactment” the word “enactment” is referable to Act 360. To my mind, however, reference to Act 360 is basically for the purpose of determining the formal validity of the document put forward as a will, that is to say to determine to what extent exhibit A complies with the requisites in Act 360 to qualify to be a will qua will. Act 360 does not determine the effect or consequences of the bequests and devises in a will. This is why I hold the view already stated that one has to look outside Act 360 to determine the law to be applied in deciding on the consequences and effectiveness of the devises in the will. To some extent, I somehow agree with Mr. Kom in his contention that the phrase “subject to the provisions of this Act” is referable to section 111 of Act 372.

It is obvious however, that Mr. Kom ignored other sections of Act 372 which are of equal relevance to the issue at stake pertaining to the interests created and transferred by the will. I refer specifically to rule 2 of section 49 (1) of Act 372 which provides: “In the absence of any intention to the contrary, the law applicable to any issue arising out of the devolution of a person’s estate shall be the personal law of that person.”

Section 49(1), r.2 is one of the provisions of Act 372 which surely cannot be ignored. Although counsel for the plaintiffs argued strenuously 

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that the section is not applicable to the instant case, the authorities indicate that his submission cannot be accurate. The operative word in rule 2 is “devolution.” In ordinary English parlance, devolution means “A passing from one person to another”: see Twentieth Century Dictionary (1983 ed.), p. 341. In law, the word “devolution” has acquired a specific technical connotation and meaning and this can be found in the definition of that word in The Dictionary of English Law by Earl Jowitt, which Mr. Kom relied on in making his submission on this issue. “Devolution” is defined therein at p. 627 as:

“. . . the transmission of an interest in property from one person to another by operation of law, e.g. on death, bankruptcy, or insolvency, when the estate becomes vested in the personal representative or official receiver or trustee.”

A similar meaning in law of the word can be found in Stroud’s Judicial Dictionary (4th ed.), Vol 2, p. 770 which also defines “devolve” as “to pass from a person dying to a person living.” Quite clearly, the whole case concerns the passing or transfer of interest in properties both movable and immovable left by the late Anim-Addo to certain individuals upon his death and is therefore caught squarely by the word “devolution.” This case concerns the devolution or transfer of interest in the properties of the late Anim-Addo upon his death to named beneficiaries. Rule 2 of section 49 (1) of Act 372 is certainly applicable to the instant case. Mr Kom’s submission that it is inapplicable is untenable and is consequently dismissed.

It is at this juncture that the distinction I have drawn between the rules of law pertaining to the formal validity of a will in terms of Act 360 and the rules of law pertaining to the effectiveness and consequences of the devises and bequests in the will becomes significant. The very fact of the existence on our statutes of Act 360 which deals with formal validity in contradistinction to provisions in Act 372 dealing with devolution of properties seems to buttress my view that the laws in Act 360 cannot be the same laws which are applied when determining issues relating to the devolution of a deceased person’s estate.

Rule 2 of section 49(1) of Act 372 expressly provides that in determining issues arising out of the devolution of a person’s estate, the personal law of that person is to be applied. Section 49(1) also provides that “. . . references to the personal law of a person are references to the system of customary law to which he is subject. . .” and if the person is not subject to customary law, then it shall be reference to the common 

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law. The late Patrick Kwaku Anim-Addo was subject to a system of customary law which Mr. Chinebuah, who appeared for the defendants, was at pains to highlight throughout his submissions. It is my considered opinion that the law applicable to the issues concerning the devolution of the estate of the late Anim-Addo, in terms of rule 2 of section 49(1) of Act 372 is the Kwahu Akan customary law.

Earlier on, I stated that I partially agreed with Mr. Kom in his submission that: “Subject to the provisions of this Act” in section 49(1) of Act 372, also refers to section 111 of Act 372. Section 49(1) of Act 372 itself provides further that if the person is not subject to customary law, then the common law would apply. Therefore, if the late Anim-Addo were not subject to any customary law, the rules of perpetuities and accumulations under the Law of Property Act, 1925 made applicable to Ghana by virtue of section 111 of Act 372 would have applied to issues concerning the devolution of his estate.

It is well-settled law that English statutes of general application made applicable in Ghana after independence have no force of statute. They merely have the force of common law. This was made clear in the Interpretation Act, 1960 (C.A. 4), s.17 and especially subsections (1) and (3) which state:

“17. (1) The common law, as comprised in the laws of Ghana, consists, in addition to the rules of law generally known as the common law, of the rules generally known as the doctrines of equity and of rules of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application.

(3) While any of the statutes of general application continue to apply by virtue of the Courts Act, 1960 (C.A. 9), they shall be treated as if they formed part of the common law, as defined in subsection (1), prevailing over any rule thereof other than an assimilated rule.”

This was further emphasised in section 111(4) of Act 372 which also provides:

“(4) The statutes of England referred to in subsections (1) and (2) of this section shall be treated as if they formed part of the common law, prevailing over any rule thereof other than a rule of customary law included in the common law under any

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enactment providing for the assimilation of such rules of customary law as are suitable for general application.”

Even if the rules against perpetuities and accumulations are applicable to Ghana by reason of sections 161 and 164 of the Law of Property Act, 1925 and section 111 of Act 372, those rules have the force of common law but not the force of statute as such. To the extent that the rules remain part of the common law, they cannot be applied to the late Anim-Addo in terms of rule 2 of section 49(1) of Act 372 since he was, as held already, subject to a specific customary law and secondly, since the provisions of Act 372 have the force of statute which should override the common law rules.

A critical examination of the law seems to reveal a conflict between the common law and customary law in respect of land holding in this country. It appears that under customary law, land can be held in perpetuity and our courts have held that such holdings are perfectly valid, even though they would have been undoubtedly invalid under English law. Two illustrations will suffice. As far back as 1938, in Hagan

Ackon (1938) D.C. (Land) ‘38-’47, 26 the Divisional Court of the Central Region sitting at Cape Coast, was called upon to determine the effect of a devise in a will couched in the following terms: “unto and to the use of A.B.C. and their heirs and successors in title absolutely for ever to use as family house according to Fanti Customary Law.” In his judgment, Doorly J. stated at 28:

“That devise attempts to create a perpetuity which would be bad in English law, but it is settled law that land held by native tenure in the Gold Coast is subject to the customary law of the Colony and the devise in perpetuity is good.”

In the more recent case of Sey v. Sey [1963] 2 G.L.R. 220, S.C. a house bequeathed to a person with a directive not to sell was interpreted by the High Court to mean a devise in perpetuity. On appeal, the Supreme Court held that the High Court’s interpretation of the will was valid. The will was not set aside because it sinned against the rule on perpetuity or inalienability.

The position on the rule against perpetuities is simply that there is a conflict between the customary law and common law. In a situation like this, the customary law should prevail for two main reasons: First, I have held that the late Anim-Addo was subject to customary law and so the common law has no application to him, and secondly, in all cases involving land, even if the two cases just stated were wrongly decided, the principle is well-settled that the law applicable is the lex situs, i.e. the law of the place where the land is situated. This principle is so hackneyed that I do not need to expound any justification for it. As one American judge Swayze J. put it in Lees v. Harding, Witman & Co. (1905) 65 NJ Eq 622 at 629: “The rule which looks to the law of the lex situs has the means of adopting the jurisdiction which has the actual control of the goods and merits of certainty.”

For the foregoing reasons, I hold that the rule against perpetuities has no application to the will in question left by the late Anim-Addo.

I have already ruled that the rule on accumulations made applicable to Ghana has only the force of common law which, by virtue of rule 2 of section 49(1) of Act 372, applies to people who are not subject to customary law. The same principle is applicable to the principle on inalienability. The rule against inalienability was not and has never been a common law rule. That rule was originally the statute of Mortmain, described as “An Act to restrain the disposition of lands, whereby, the same become inalienable”: see Dr. W.C Ekow Daniels, The Common Law in West Africa (1964 ed.), p.323. The rule against inalienability was not one of the rules saved by Act 372. Therefore, its application to Ghana after independence can only be considered as part of the statutes of general application. Many years ago when the application of the statute of Mortmain arose for determination, Sir William Grant, Master of the Rolls, ruled in no uncertain terms that it was of no application to any colony of England, but that it was a statute of local application. In his judgment in the case of Attorney-General v. Stewart (1816) 2 Mer 143 at 162-163, the Master of the Rolls said while considering its application to the then British Colony of Grenada:

“Whether the statute of mortmain be in force in the island of Grenada, will, as it seems to me, depend on this consideration — whether it be a law of local policy adapted solely to the country in which it was made, or a general regulation of property equally applicable to any country in which it is by the rules of English law that property is governed. I conceive that the object of the statute of mortmain was wholly political — that it grew out of local circumstances, and was meant to have a merely local operation. It was passed to prevent what was deemed a public mischief, and not to regulate, as between ancestor and heir, the power of devising, or to prescribe, as between grantor and grantee, the forms of alienation. It is incidentally only, and with 

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reference to a particular object, that the exercise of the owner’s dominion over his property is abridged ... What the legislature had to consider was, whether, as there was so much of the land of England already in mortmain, it was not expedient to lessen the facility of putting more of it into that situation. That was a consideration purely local. It related to land in England, and to land in England only. The statute contains some exceptions. These exceptions are also local, and still further show the local nature of the law, and how little it can be considered as a general regulation of property... But, framed as the Mortmain Act is, I think it quite inapplicable to Grenada, or to any other colony. In its causes, its objects, its provisions, its qualifications and its exceptions, it is a law wholly English, calculated for purposes of local policy, complicated with local establishments, and incapable, without great incongruity in the effect, of being transferred as it stands into the code of any other country. I am of opinion, therefore, that it constitutes no part of the law of the island of Grenada, and that the exception must consequently be allowed.”

As a statute so patently passed to cater for definitive English circumstances, the statute of Mortmain with its rules against inalienability cannot apply to Ghana with over 30 years of independence from English colonial rule. I adopt the reasons of the Master of the Rolls which so lucidly set out the rationale and indeed the raison d’etre for that rule in that case.

There is yet another reason why the rule against inalienability cannot apply to Ghana and that is the same reason why I hold that the rule against accumulation does not and cannot apply to Ghana. The reason is as I have already explained that the two rules are applicable by virtue of Act 372, s.111(2) but this same Act by section 49(1), r.2 provides that the personal law of a testator should be used to resolve issues involving the devolution of his estate. Provisions of Act 372 have the force of statute law and obviously prevail over provisions of the Law of Property Act, 1925 on accumulations or statute of general application even if section 111 of Act 372 were to make the rule against inalienability applicable to Ghana. An express statutory provision in post-independent Ghana like Act 372 should certainly override provisions of common law and provisions of English statutes which have no more than the force of common law. 

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As was stated in the headnote of the case of Re Mensah (Decd.); Barnieh v. Mensah [1978] G.L.R. 225 at 226, C.A:

“. . . the policy of the courts in matters affecting testamentary disposition [is] to give effect to the last wishes of the deceased and to uphold them unless there were overriding legal obstacles in the way.”

In the instant case, I do not see any overriding legal obstacles which cannot be surmounted in order to uphold the wishes of the late Anim-Addo as contained in the will.

Whenever our courts have had to interpret questions or issues relating to the construction of bequests and devises in a will, the personal law of the testator has always been used and not English law. A few of such cases are Sey v. Sey (supra) and Gyasi v. Quaigraine [1963] 2 G.L.R. 161, both of which Mr. Chinebuah relied on his address.

The bequests and devises made under the will of the late Anim-Addo can best be considered in the light of the exposition by the late Mr. Justice Ollennu of the Akan concept of family, which is matrilineal.

Under the Akan family system, a woman member of the family is a potential originator of a family which is presumed to exist in perpetuity. Whenever the female branch of the family ceases to exist, its roots or origins are always traceable through the mother, grandmother, great grandmother and so on: see Ollennu,

The Law of Testate and Intestate Succession in Ghana (1966 ed.), pp.67, 77 and 78 and the line of cases referred to therein including Mills v. Addy (1958) 3 W.A.L.R. 357 and Amarfio v. Ayorkor (1954) 14 W.A.C.A. 554.

In the instant case, a gift to Abena Asantewa and her descendants is a gift to the family originated by her which will have a permanent existence as part of the larger family to which Anim-Addo belonged.

Among the Akans, family is the basis of ownership of property of a deceased member. The late Anim-Addo was a member of a Kwahu family which was an Akan family. No gift to such a family in Ghana fails merely because it sins against the rules of perpetuity, inalienability and accumulations. As Mr. Chinebuah rightly pointed out in his address, these rules do not exist under our customary law which section 49 of Act 372 enjoins to be the rule of law to be applied in determining issues on the devolution of estates of deceased persons.

I have not found it necessary to delve into detailed discussion on the meaning of perpetuities, accumulation and inalienability because of the view I have taken that they do not apply to Ghana. 

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I do not also deem it necessary to consider the individual devises and bequests under the will save to say that the shares of the companies or the benefits and profits accruing from the companies left behind by the testator are to be considered as part of his cash assets and should be treated like the gift of movable assets such as gold trinkets and ornaments which the will also covered.

For the foregoing reasons, I hold that the plaintiffs’ claim that the bequests are void fails and is dismissed together with the claim for an injunction order to restrain the executors of the will from granting vesting assents in respect of the properties named in the will. The order for accounts in respect of the rents also fails and is dismissed.

There will be costs of ¢200,000 but the costs should come out of the estate, not the children’s portion since the will surely leaves only an infinitesimal portion of the deceased’s estate for the children.

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