Brown v. Ansah & Anor. [1992] 2 GLR 22.

HIGH COURT, CAPE COAST

KPEGAH J.

Wills Act, 1971 (Act 360), s. 6.

Kpegah J. The plaintiff, as one of the principal members of the Asamoah Adu Anona family of Mumford, is claiming on behalf of the family an order setting aside the will of one Samuel Kobina Crentsil alias Kobina Enyinda as null and void. Two grounds are alleged for seeking this order, namely that the testator was non-compos mentis when he made the said will; and secondly, that there is no declaration on the will to the effect that it had been read over and interpreted to the said testator before he signed as required by the Wills Act, 1971 (Act 360); he being illiterate. It must be said that the plaintiff is the nephew of the deceased and a possible successor if the deceased had died intestate. The first defendant is the sole beneficiary under the will and the second defendant, his wife, an executor and an attesting witness.

According to the plaintiff there are several units in the family and that the deceased was the head of his unit; that one unit cannot inherit the properties of another unit. The plaintiff admitted he did not consult the head of the wider family, one Ebusuapanyin Kwame Yaw, for he is very inactive in respect of the case since he did not lose anything by the will of the deceased. In this regard, therefore, he consulted only his mother who is the sister of the deceased and head of their unit. The mother said

she was an illiterate so she did not know what the whole thing was about. The plaintiff also gave evidence as to the ill-health of the testator and the many efforts made to treat him; and that on the day the will was said to have been executed, the testator was non-compos mentis and was at Abeadze Dominase receiving local treatment for his mental sickness. As such his uncle could not have travelled to Winneba to execute the will since all the attesting witnesses live in Winneba.

The plaintiff called his mother who also testified that her younger brother, the deceased, had been mentally sick for about one year before his death. This witness confirms that the plaintiff did consult her about the court action he intended to take but she advised that he should forget the matter and leave it.

Now that the matter was in court she had come to withdraw it for amicable settlement at home. She however did say that the plaintiff had the authority to bring the action.

In respect of this witness I must say she is very, very old, and one had the clear impression that she was sorry the matter had had to reach the courts as a result of the family’s inability to resolve it peacefully.

The plaintiff called another witness who also testified to the ill-health of the testator and the efforts made to get him cured before his death in Tema.

The defendants in their defence resisted the claim of the plaintiff and denied that the deceased was ever a mental patient and insisted that he was indeed compos mentis when he made the will. They led evidence through his parish priest to this effect and also the fact that the deceased deposited one of the wills with the said priest. One of the wills was also found to have been deposited with the Agricultural Development Bank at Mumford. The manager was called to testify to this. According to this witness when he took over from his predecessor he was specifically informed that one Opanyin Crentsil had deposited a document to secure a loan but did not follow up until his death. He expected the document to be an indenture but when he went through it, he found it to be rather a will. Apart from this will no other document had been deposited by the said Opanyin Crentsil. This witness tendered the will and the duplicate receipt given to the one who deposited it.

The plaintiff’s case, as I have pointed out, is that the testator was non-compos mentis when he allegedly made the will; in the alternative the will has failed to comply with a mandatory provision of Act 360 and was therefore null and void.

The defendants resisted the plaintiff’s claim on three levels: first, that he had no locus standi and therefore the action should be dismissed;

secondly, that the plaintiff had not proved sufficiently, through medical evidence, that the testator was mentally ill at the material time he executed the will, so his claim that the testator was insane at the time should be dismissed; and thirdly, that the evidence is that the testator could read Fanti and speak some English therefore he was semi-literate and the provision of Act 360 as to illiterates cannot cover semi-literates. Even if it was held to apply, the provision is not mandatory so non-compliance could not invalidate the will.

I propose to deal, in some depth, with only two of the grounds canvassed to resist the plaintiff ‘s claim, that is lack of locus standi by the plaintiff and the question whether non-compliance with the provision of Act 360 regulating the execution of a will by illiterates renders it null and void. But before I do so I have to say something about the burden of proof relating to the mental capacity of a testator in such cases in view of counsel’s submission. The principle which emerges after due consideration of the relevant authorities is that: In order that a testator may make a valid will it is essential that he should understand the nature of the act and its effect, should be able to appreciate the claims to which he ought to give effect and should understand the extent of the property of which he is disposing. Accordingly, the intellectual understanding required for testamentary capacity is somewhat different from that required for the valid execution of a deed, since it includes, for example, the appreciation of the claims of possible beneficiaries. The burden of establishing testamentary capacity is consequently on the person propounding the will: see Halsbury’s Laws of England (3rd. ed.), Vol. 39, paras. 129-1299 at pp 855-859 and the cases cited therein.

I will now consider the issue whether the plaintiff has locus standi. The general proposition of law in this respect is that it is only the head of family who can sue or be sued in respect of family property. In the case of Kwan v. Nyieni [1959] G.L.R. 67 at 72-73, C.A. van Lare Ag C.J. stated the customary law on the point as follows:

“(1) as a general rule the head of a family, as representative of the family, is the proper person to institute suits for the recovery of family land:

(2) to this general rule there are exceptions in certain special circumstances, such as:

(i) where the family property is in danger of being lost to the family, and it is shown that the head (either out of personal interest, or otherwise) will not make a move to 

save or preserve it, or

(ii) where, owing to a division in the family, the head and some of the principal members will not take any step; or

(iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole.

In any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property.”

See also the case of Sabbah v. Worbi [1966] G.L.R. 87. In the instant case, I can easily see the necessity of the plaintiff to take this action. The head of the wider family has no stakes in the plaintiff’s unit, and could not, therefore, care about what happens to properties inheritable by that family only. The mother of the plaintiff is very old and does not know her left from her right. I have seen her personally. She is overawed by the implications of a court action and will prefer an amicable settlement which is not possible either. But somebody has to take action to protect the family interest. I think the exigencies of this case emphasise the need for the plaintiff to react in the interest of his section of the said Anona family. I will therefore concede to him the right to bring this action.

The next point I would like to consider is the non-compliance of the will with section 2(6) of Act 360.

The provision in the subsection is as follows:

“(6) Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the will before it is executed, and shall declare in writing upon the will that he had so read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed.”

It is necessary here to repeat that there is no dispute that the will in question has no declaration of the interpreter to the effect that the will has been read and explained to the testator who perfectly understood the contents before executing same. To meet this factual deficiency of the will, learned counsel for the defendants, Mr. E. F. Short, submitted that there is evidence that the deceased could read some Fanti and understand 

some English so he is not an illiterate but semi-literate and therefore section 2 (6) of Act 360 does not apply in this case since it is relevant only to cases where the testator can be said to be a complete illiterate.

It is true Act 360 does not define who an illiterate is. But I think whether a person is to be considered as literate or illiterate in this context must be related to the language in which the document is prepared, that is the ability to read and write the said language. In this case it is English. A person who can perfectly read and write the Ewe or Fanti language may be an illiterate within this context if the will is written in English which he can neither read nor write. It is the ability to read and write the language in which the document is written which to me is relevant and not whether the fellow can be classified as semi-literate or demi-semi-literate. The evidence is that the testator cannot read and write English. He is to me illiterate within the context of the law.

The second argument advanced by learned counsel to deal with the absence of the interpreter’s declaration is that the requirement contained in section 2(6) of Act 360 is not essential to the validity of the will. For this submission Mr. Short relied on the case of Re Mensah (Decd.); Barnieh v. Mensah [1978] G.L.R. 225, C.A. where the Court of Appeal per Annan J.A. said that the requirement of the interpreter making a declaration on the will is not essential to the validity of the will.

The facts in Barnieh v. Mensah (supra) are not complex. A declaration in the will of an illiterate testator indicated that the will was read over and interpreted to the testator before it was executed. Immediately after the declaration appeared the signature of the attesting witnesses followed by that of the interpreter.

The declaration was stated this way at 228:

“In Witness Whereof I have hereunto set my hand this 8th day of August one thousand nine hundred and seventy-four (1974). Signed (by making his mark he being incapable of writing his name through illiteracy) Sealed by the above-named Opanin Kojo Mensah alias Kojo Teng as his last will in the presence of us both the foregoing having been interpreted to him in the Twi language by Paul Mainoo of Kumasi when he His seemed perfectly to understand the same in the presence of us both being present at the same time who in his presence and in the presence of each other have hereto subscribed our names as witnesses.” [Opanin Kojo Mensah :R.T.P.]

(Sgd.) Francis Kwasi Gyambibi                                   (Sgd.) Kofi Pasu

House No. OT.B.668 B.A. 3 B.G.

Kumasi Kumasi

Witness to mark, T/P. and Signature

(Sgd.) Paul Mainoo,

Law Clerk,

1. 1. O. Box 721,

Kumasi.”

The signature of the relevant personalities named in the above declaration appeared below the said declaration. The objection taken to the above declaration was that it offended section 2(6) of Act 360 on an essential, namely there was no separate declaration by the interpreter as required in the said subsection hence the will was invalid. This is how Annan J.A. disposed of the argument at 229:

“Taking first the factual basis of the submission there is on the will a declaration that its contents were interpreted to the deceased in his own language before execution and in the presence of the attesting witnesses. The interpreter’s name, occupation, address and signature all appear on the face of the will. The declaration states that the deceased seemed perfectly to understand what was read to him. The signature of the interpreter appears after this declaration and below it. It is argued however that on the face of the declaration it is not his declaration. It is, the argument goes, that of the attesting witnesses and was meant to operate simply as an attestation clause and not as an interpreter’s declaration. While it is true to say that on the face of it, the declaration that appears on the will is a declaration made by the attesting witnesses, the question is whether it was intended to limit it to them and whether it cannot be seen as that of the interpreter as well . . . In my view even if it be the case that there is no declaration personal to the interpreter, what in fact appears on the will is, at its worst a rolled-up or composite declaration putting together as it does the declaration of attestation by the attesting witnesses with the declaration of the interpreter.”

As to the impact of the words of interpretation as they appear on the will, Annan J.A. said at the same page that “the words appearing in the will are

capable of satisfying in a substantial manner both requirements of section 2(6) of the Wills Act, 1971 (Act 360).”

On the facts in that case I do not think the decision arrived at as stated above can be faulted. This was however not to be the end of the matter. The Court of Appeal proceeded to consider the position where “there is no personal declaration by the interpreter on the will.” The question posed was whether it could render the will invalid. The court expressed its views in these words per Annan J.A. at 234:

“I observe that the requirement of writing in section 2 of Act 360 and the rules therein as to signature, whether of the testator or attesting witnesses, can easily be seen as material for the purposes of execution and therefore essential in all cases for validity. In the case of persons under disability what needs to be provided for as a special safeguard to meet their particular circumstances is their protection from unfavourable consequences to which that disability exposes them. In the case of illiterates this purpose is achieved by a provision that seeks to ensure that what is written is what has been said. So the provision for reading over and explaining the written word. Hence the first limb of section 2(6) of Act 360. The second limb then must be seen as an ancillary to the first and not of equal importance. It cannot therefore be essential to the validity of the written transaction.”

Taking inspiration from the above interpretation of section 2(6) of Act 360 learned counsel for the defendants submitted that the absence of the interpreter’s declaration is not essential to the validity of the will. This issue being one of the mainstays of the plaintiff’s case, I would like to consider the point in some detail.

I take the liberty to say that in my view the case of Barnieh v. Mensah (supra), on the facts, has complied with the provision of section 2(6) of Act 360. The declaration, although fused with the attestation clause, contains all that is required under the subsection, especially when no particular form of attestation is necessary. The Court of Appeal, however, proceeded to consider a factual situation which was not before them, namely where there has been no declaration on the will by the interpreter as required by the second limb of section 2(6) of Act 360. The court proceeded to say non-compliance with this requirement is not essential to the validity of the will.

In my humble view, one should not have any difficulty in classifying the views so expressed by the Court of Appeal as an obiter dictum, not 

being necessary for the decision. The principle that in trying to discover the ratio decidendi of a case one must have regard to the facts of the case has been stated ad nauseam in several decided cases. The ratio decidendi of a case, we have often been reminded, is that principle considered by the court as necessary for its decision, and also the reasoning which goes into such a decision. In the Barnieh case (supra), there had been a declaration by the interpreter on the will and the issue was whether it satisfied the statutory requirements and the court held it did. That was the end of the matter. There cannot be two rationes decidendi because we cannot have two sets of facts in any given case. What we can have are reasons necessary for the decision and these very much form part of the ratio. This is different from assuming a certain factual situation different from the facts under consideration and expressing an opinion thereon; this, to me, will be an obiter and nothing else.

In a recent decision of mine — Baiden v. Tandoh [1991] 1 G.L.R. 98 I held that where a dictum is the result of a deliberate consideration, it is entitled to the greatest respect. Personally, I would be reluctant to refuse to follow such views unless I have very strong reasons for not so doing. I entirely agree with the Court of Appeal in the Barnieh case (supra) when it said at 233:

“Where a statute is passed for the purpose of enabling something to be done or regulating the manner in which an act is to be done the court is often called upon to determine whether the failure to adhere to the requirements of the Act is fatal. The courts often approach the matter by a process of classification whether the enactment is absolute or directory.”

So also do I agree with the following statement of the same view in Liverpool Borough Bank v. Turner (1861) 30 L.J. Ch. 379 at 380-381 by Lord Campbell L.C:

“No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.”

See also the case of Howard v. Bodington (1877) 2 P.D. 203 at 211 where Lord Penzance expressed a similar view. Both cases were referred to in the Barnieh case (supra). 

I will now take a look at the law before our Act 360 was enacted. Section 2 of Act 360 replaces section 9 of the Wills Act, 1837 (7 Will 4 & 1 Vict., c.26). This is what section 9 of the Wills Act, 1837 provides:

“9. No will shall be valid unless —

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either —

(i) attests and signs the will; or

(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

It is clear from the language of section 9 of the Wills Act, 1837 that every will shall be in writing, and signed at the foot by the testator in the presence of two attesting witnesses at the same time. These requirements go to validity.

There is no provision in section 9 of the Wills Act, 1837 which offers protection to blind or illiterate persons. It is this lacuna which is taken care of by Order 60, r 29 of the High Court (Civil Procedure)

Rules, 1954 (L.N. 140A). The rule reads:

“29. Where the testator was blind or illiterate the Court shall not grant probate of the will, or administration with the will annexed, unless the Court is first satisfied, by proof or by what appears on the face of the will, that the will was read over to the deceased before its execution or that he had at that time knowledge of its contents.”

(The emphasis is mine.)

It can be seen that before probate can be granted, the court has to be satisfied either from what is on the face of the will (that is a declaration to that effect) or by other proof that the will was read and explained to the testator before he signed or that he knew of the contents before he did so. This rule is clearly permissive in the sense that even if there is no declaration by an interpreter showing that the will had been read and 

explained to the testator who appeared to understand before he executed it, probate would still be granted if there is proof, from other sources, of that fact to the satisfaction of the court.

Reading this rule with section 2(6) of Act 360, the Court of Appeal in the case of Barnieh v. Mensah (supra) said at 231:

“On so doing one notices a difference between the words of the rule and those of the subsection. That difference seems to me to be that the rule is a little wider in scope than the subsection, and this may be due to the particular objective of each provision and the context of its operation. In the case of the subsection its provisions form part of the rules for regulating the making of wills. Order 60, r. 29 of L.N. 140A forms part of procedural rules for proof in a probate matter. In essence however both provisions seem to have the same objective, namely, to safeguard the testamentary wishes of persons under these forms of disability. In the one case a condition precedent to execution is imposed, in the other a condition precedent to grant of probate. In both cases further words are added to enable the court to satisfy itself, in a reasonable manner, that these conditions have been truly fulfilled.”

In this wise, it is being suggested that the requirement in section 2(6) of Act 360 of the need for an interpreter’s declaration should be considered as only intended to be one of the means of aiding the court in satisfying itself of the fact that the document has been read and explained to the testator. It is therefore, like the provisions of Order 60, r.29 of L.N. 140A, not essential to validity.

This is an extreme attempt to reconcile languages which are not reconcilable. I beg to quote section 2 (6) of Act 360 again:

“(6) Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the will before it is executed, and shall declare in writing upon the will that he had so read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed.”

(The emphasis is mine.) There are two requirements under the subsection, namely that the will be carefully read and explained to a blind or an illiterate testator by a competent person; and secondly, there must be a declaration of that competent interpreter on the will that he had read over and explained the contents of the will to the testator who appeared 

perfectly to understand before executing it. In the first situation, the subsection requires that a competent person “shall carefully read over and explain” the will to the testator. In the second situation, after the competent person has so read and explained the contents, he “shall declare in writing upon the will” that the first requirement had been satisfied. Each situation has its own “shall” governing it.

By section 27 of the Interpretation Act, 1960 (C.A.4) the word “shall” is imperative. I do not think one can correctly say, therefore, that the requirement for the interpreter’s declaration on the will is directory and not imperative. It would have been directory if there were no “shall” controlling the verb “declare.”

By saying it is directory, the Court of Appeal has, in my view, done a piece of judicial legislation by rewriting the subsection, by removing the “shall” controlling the second limb of the provision, to read as follows:

“Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the will before it is executed, and ... declare in writing upon the will that he had so read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed.”

Such a piece of drafting, I admit, would make the second requirement directory and not mandatory so that non-compliance with it will not render the will invalid.

The relationship winch can be said to now exist between Order 60, r.29 of L.N. 140A and section 2 (6) of Act 360, is that the only way a court can be satisfied that the will had been carefully read and explained to the testator by a competent person as demanded by Act 360 is by a declaration to this effect on the will, that is to say in the words of Order 60, r 29 of L.N. 140A, “by what appears on the face of the will, that the will was read to the deceased before its execution” and not “by proof” by any other means. I think Order 60, r.29 of L.N. 140A must yield in certain respects to the wishes of section 2(6) of Act 360. After all, it is a subsidiary legislation. While Order 60, r. 29 of L.N. 140A is intended to take care of a deficiency in section 9 of the Wills Act, 1837 by providing protection to illiterates and the blind in laying down the procedure in proving that a blind or an illiterate testator’s wishes are correctly recorded, section 2(6) of Act 360 itself directly provides the protection more emphatically.

The attempt by the Court of Appeal to equate the provisions of 

section 2(6) of Act 360 with section 4 of the Illiterates’ Protection Ordinance, Cap. 262 (1951 Rev.) is rather far-fetched to say the least. This is what the court said at 234:

“The Illiterates’ Protection Ordinance, Cap. 262 (1951 Rev.), provides for the protection of illiterate persons. Section 4 of the Ordinance sets out conditions to be fulfilled by persons writing a letter or other document for or at the request of an illiterate person. Those conditions stipulate that the writer shall clearly and correctly read over and explain the letter or document and clearly write his full name and address on it as the writer thereof and state on the letter or other document the nature and amount of the reward, if any, charged for writing it.”

Annan J.A. on behalf of the court then quipped at 235:

“I do not know that it has been held in this court that a document that offends the stipulation that the writer shall write his name and address and also state the amount of the reward on it is rendered thereby invalid or is not the document of the illiterate person.”

If non-compliance with section 4 of Cap. 262 does not render a letter or other document invalid, it is precisely because the section does not say so. It is not because of any legal principle outside the Ordinance. Indeed, section 4 of Cap. 262 is intended to secure compliance will section 2 of Cap. 262 and the word “shall” as it occurs in section 4 must be looked at in that context. More importantly, the Ordinance provides in section 7 penalties for non-compliance with any of its provisions. Cap. 262 is meant to protect illiterates from those who take up letter-writing for a job.

In section 2(6) of Act 360, the legislature is providing guidelines for the due execution of a will and the effect of non-compliance should be gleaned from the word “shall” as it occurs in the various provisions.

With much respect, to relegate the second requirement in section 2(6) of Act 360 to an ancillary position as the Court of Appeal did in the Barnieh case (supra) is to actually rewrite the said provision. It is only when the word “shall” which clearly controls the verb “declare” is removed that one can get the type of construction put upon the provision, namely that it is directory only and not mandatory. My humble view is that both requirements in the subsection under consideration are mandatory and non-compliance will render or make the will void. I am satisfied to rest 

my decision on this point and not proceed to consider the fact that the wife of the first defendant is one of the attesting witnesses and an executor even though her husband is the sole beneficiary and also an executor. The will of Samuel Kobina Crentsil alias Kobina Enyinda dated 4 July 1985 is hereby set aside on grounds of invalidity.