Re Mensah (Decd.); Barnieh v. Mensah & Ors. [1978] GLR 225.

RE MENSAH (DECD.); BARNIEH v. MENSAH AND OTHERS [1978] GLR 225

COURT OF APPEAL, ACCRA

JIAGGE, ANNAN AND FRANCOIS JJ.A.

STATUTORY REF.

Wills Act, 1971 (Act 360), s. 2(6)

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Annan J.A. This is an appeal from the ruling of the Kumasi High Court in a probate matter ordering that a caveat filed by the appellant to prohibit the grant of probate of the will of one Opanin Kojo Mensah, alias Kojo Teng (deceased) be removed from the file and that the will be admitted to probate. The facts are set out in the ruling. Upon a motion for the grant of probate of the will of an illiterate testator a caveat was filed followed by the usual proceedings of warning and filing of an affidavit of interest. In the affidavit of interest, the caveator, a maternal nephew of the deceased claimed, inter alia, as customary successor, that probate could not be granted because “the said last will and testament is null and void and of no effect because it does not conform with statute law.” Counsel for the executors then moved the court in terms of Order 60, r. 20 (2) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), for the

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grant of probate. Upon the motion coming on for hearing the parties did not come to any agreement in terms of Order 60, r. 21 (1) of L.N. 140A and the court, in terms of that rule, and after referring to order 60, r. 21 (2) of L.N. 140A, decided in its discretion, to hear argument without making an order that a writ be issued. No issue is taken before us on this and the court was clearly right on the facts to decide in its discretion to deal with the matter summarily. After hearing argument the court, in terms of Order 60, r. 21 (1) of L.N. 140A, ordered that the caveat be removed from the file and that a grant of probate be made to the executors.

The substantial challenge to probate rested on the legal ground that the will offends section 2 (6) of the Wills Act, 1971(Act 360), and is therefore by virtue of that Act invalid for non -compliance with a requirement of the Act essential to its validity. The will was executed in 1974.

For the purposes of this appeal the relevant part of the will is that dealing with its execution and is as follows:

“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 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: His X Mark R.T.P.]

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

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

Kumasi                                                              Kumasi

Winess to mark, T/P. and Signature

(sgd.) Paul Mainoo,

Law Clerk,

P. O. Box 721,

Kumasi.”

As can be seen from this extract the will was executed by the late Opanin Kojo Teng by putting his right thumbprint and making his mark on it in the presence of both attesting witnesses. The attestation clause shows that the will was read and interpreted to him in Twi by one Paul Mainoo, that he seemed perfectly to understand the same and that the attesting witnesses subscribed their names as witnesses. Paul Mainoo also signed the will immediately below the signature of the attesting witnesses. 

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The challenge that was made to the will in the court below was founded on this extract it being then contended, as it was before us, that that extract demonstrates that the will offends section 2 (6) of the Wills Act, 1971 (Act 360), in a material particular and is on that account invalid for non-compliance with a mandatory provision of the Act that regulates the making of wills.

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. I do not think that this is a case in which a narrow view is the proper view to take. I think that quite properly there is room for taking a generous view of the scope of the declaration in the circumstances of this case and for extending its effectiveness to the interpreter. He was present. He did sign the will below the declaration. It seems to me perfectly proper to see the actual words used, taken together with the signature of all those persons, as creating a joint or common declaration to which all three were parties. The issue is whether the mind of the interpreter was sufficiently directed to the contents of the declaration so as to make it his declaration when he signed the will. I see nothing which makes a contrary view the only view of the matter. I think this approach is in keeping with the policy of the courts in matters affecting testamentary dispositions. The policy of the courts is to give effect to the last wishes of the deceased and to uphold them unless there are overriding legal obstacles in the way. Thus in the area of execution a liberal approach is taken to the form of signature and initials or a description or a mark will pass muster. 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. That may no longer, since 1971, be the best way for a legal practitioner to draft that part of a will in terms of section 2 (6) of the Wills Act, 1971 (Act 360). It may be better to have separate statements by way of attestation and by way of the interpreter’s declaration. I think however that this is more a matter of inelegant drafting than a matter of breach of the statute. In my view 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). 

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Assuming however that this view of the facts is wrong then the position would be that there is no personal declaration by the interpreter on the will. In that case then what would be the effect upon the will? I turn then to the Act and to the memorandum to the bill.

The memorandum shows that the Act was made in keeping with the policy of absorbing into Ghanaian law the few remaining English statutes of general application and was therefore intended to regulate the making of wills in simple terms as part of the general programme of statute law revision restating in modern language the more important provisions of the English Wills Acts of 1837, 1852 and 1861 and generally following those Acts with regard to the making and attestation of wills.

Although section 2 of the Wills Act, 1971 (Act 360), seems to depart to some extent from the form of its predecessor, section 9 of the Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26), I do not think that has any significance, it being more likely to be a matter of drafting than of meaning. By this I mean the splitting up of the various conditions or requirements governing execution into the six subsections of section 2 of Act 360 rather than the single section that is section 9 of the Act of 1837. There is of course the matter that the word “valid” which in section 9 of the Act of 1837 obviously governs the whole of the section - that word is in Act 360 used only in section 2 (1). I do not think that anything should turn on that departure from form as I think this most probably followed upon the splitting up of the single section into more easily identifiable compartments.

Section 2 of Act 360, apart from one provision, generally follows the scheme of section 9 of the Act of 1837. That one provision is contained in subsection (6) relating to blind and illiterate persons. Section 2 (6) 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.”

Clause 4 of the memorandum to the bill states the reason for the introduction of this new provision as follows:

“To protect blind and illiterate persons, the Bill requires that the will be read over and explained to the testator before it is signed. This provision follows the existing Rules of Court protecting blind and illiterate persons.”

The relevant rule is Order 60, r. 29 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). That rule reads as follows:

“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 

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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.”

Looking then at the memorandum, as we are entitled to do by virtue of section 19 (1) of the Interpretation Act, 1960 (C.A. 4), the intention behind the writing in of this new provision into the Act would be that provisions of the substantive Act should reflect the long-standing practice provided for in the rules which ensures that the testamentary dispositions of blind and illiterate persons as recorded for them do truly represent their expressed wishes and nothing else.

As can be seen from Order 60, r. 29 of L.N. 140A, the court has to be satisfied from what is on the face of the will or from other proof that the will was read and explained or that the deceased knew its contents.

Since section 2 (6) of Act 360 was meant to follow the existing position in Order 60, r. 29 of L.N. 140A the subsection must be read with the rule. 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.

I think it is reasonable to approach Order 60, r. 29 of L.N. 140A and section 2 (6) of Act 360 from these two positions, namely, on the one hand the matter of conditions precedent to validity of the will or grant of probate and on the other the matter of proof of those conditions. In that case the position would be that a will of a blind or illiterate person lacked validity at the time it was made unless it was carefully read over and explained to the deceased by a person who was competent to do so. This would be a condition precedent to valid execution. What then of the other requirement as to the declaration of the person who reads and explains the will? Is that also a condition precedent to validity? Counsel for the appellant argued that this is the clear effect of section 2 (6) of Act 360 as a matter of statutory interpretation and to this argument I now turn.

It is said that the declaration required by section 2 (6) of Act 360 is specifically spelt out as that of the competent person who reads over and explains the contents of the will to the testator before it is executed.

That declaration is also specifically required to be “in writing upon the will.”

I observe that in terms of section 27 of the Interpretation Act, 1960 (C.A.4), these requirements must be seen as mandatory unless there is a contrary intention expressed in the Act itself. But section 2 (5) of Act 360, which relates to attestation, not only has no requirement that the 

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attesting witnesses shall attest in writing upon the will but on the contrary dispenses with the need for writing upon the will by the provisions that no form of attestation shall be necessary, and it has been said in this respect that what this means is that no clause of attestation stating that the requirements of the Act have been carried out need be appended to the will.

It would seem reasonable to say then that the intention was to put upon the person who reads and explains the will of an illiterate or blind testator a responsibility additional to that put on persons who attest and subscribe such a will. In each case the person concerned is required to do an act in relation to the blind or illiterate testator, that is attest his mark or signature or read and explain the will to him, then he is also to do another act upon the will itself, on the face of it, that is subscribe it or make a declaration upon it.

In the case of an attesting witness no form of attestation is required, that is no words need be put on the face of the will. This dispensing with form does not mean that no words of any sort are required. Reference to Order 60, rr. 25 to 28 of L.N. 140A makes this plain. What is dispensed with is the necessity for the words to appear on the face of the will. It would seem then that with regard to a person who reads and explains the will it is the intention of the Act that words be put on the face of the will to show that he had complied with the requirement of reading and explaining the will to the testator before execution. As I have already said that requirement is a condition precedent to valid execution of a will of an illiterate or blind person and must be seen in the same light as the requirements for writing, signature, attestation and subscription. It is argued that the other requirement in section 2 (6) of Act 360 must be seen in the same light.

Counsel strongly contended that as a matter of statutory interpretation of the words chosen by the legislature the matter must be seen as one of essential validity. He said that the declaration of the interpreter upon the will is vital and that a positive declaration is called for not just the usual form used for the attestation clause. He argued that where on the face of the will there is no declaration made by the interpreter the condition is not satisfied. He argued further that though the usual words appear in the attestation clause showing that the will was interpreted those are not the words of the interpreter and cannot be seen as his declaration, he not being one of the attesting witnesses. Again although the interpreter signed the will he expressly did so as a “witness to mark T/P and signature” and in no other capacity. Not only therefore is his personal declaration lacking on the will it is also the case that they did not sign that of the attesting witnesses. The will is therefore invalid.

I think that in putting the matter the way it was in section 2 (6) of Act 360 it was intended to do no more than to emphasize the importance or the absolute necessity of reading and explaining the contents of the will by directing the person who does so to state that fact in writing at about the same time as the will is executed, not necessarily before execution, so as to provide a more easily acceptable mode of proof of that fact. To 

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elevate this direction, even if it be obligatory upon an interpreter, into a condition precedent for validity of a testator’s last wishes would seem to me to be unreasonable in all the circumstances. Such an approach would amount in my view to a shift of emphasis from the substance to the form and would enable a will to be invalidated on the sole ground that an interpreter did not himself state on the will that he had interpreted it, even where the fact of interpretation is not in dispute, and even where words of other competent persons do appear on the will capable of proving the matter. I think such a view of the matter would be contrary to the approach of the courts in such cases. 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.

The general rule, as stated by Lord Coleridge C.J in Woodward v. Sarsons (1875) L.R. 10 C.P. 733 at pp. 746-747, is that “an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.”

In Liverpool Borough Bank v. Turner (1861) 30 L.J.Ch. 379 at pp. 380-381 Lord Campbell L.C. said:

“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.”

This dictum was considered and explained in Howard v. Bodington (1877) 2 P.D. 203, where Lord Penzance said at p. 211:

“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

In Craies on Statute Law (7th ed.) at pp. 266-267 appears the following statement:

“Where a statute does not consist merely of one enactment, but contains a number of different provisions regulating the manner in which something is to be done, it often happens that some of these provisions are to be treated as being directory only, while others are to be considered absolute and essential; that is to say, some of the provisions may be disregarded without rendering invalid the thing to be done, but others not.” 

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For as Lord Mansfield said in the old case of R. v. Loxdale (1758) 1 Burr. 445 at p. 447, “There is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory.” In Catterall v. Sweetman (1845) 1 Rob. Ecc. 304, an Act provided that no marriage between Presbyterians and Catholics should be had and solemnised until one or both of such persons, as the case may be shall have signed a declaration in writing and the question was whether a marriage solemnised without the declaration in writing being signed was valid or not. The court at p. 312 stated the effect of the words of the Act as negative words “certainly prohibitory of such marriages being had without the prescribed requisites,” but still posed the issue whether the marriage itself is void and resolved that issue in favour of saving the marriage. The reports disclose other instructive cases on marriages where the courts leaned in favour of saving the marriage rather than declaring it void for failure to comply with mandatory statutory provisions. See also Chelmsford Rural District Council v. Powell [1963] 1 W.L.R. 123, D.C. concerning a provision in the Caravan Sites and Control Act, 1960 (8 & 9 Eliz. 2, c. 62), s. 33 that an appeal “shall be made to the Minister by a written notice which shall indicate the grounds on which the appeal is brought,” and where it was held, taking into account the whole scheme of the Act, that the second provision for stating grounds in the notice of appeal though mandatory in form yet did not imply that an appellant was absolutely tied to the stated grounds.

I look then at the two limbs of section 2 (6) of Act 360 in the context of the whole of section 2 of Act 360 and against the background of these cases. I also look at the other legal rules for the protection of illiterates who engage in written transactions. 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 ancillary to the first and not of equal importance. It cannot therefore be essential to the validity of the written transaction. This conclusion seems to me to derive some support from statute and common law. 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. 

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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. The cases on the other hand all emphasise the need to comply with the requirement that the document be clearly and correctly read over and explained to the illiterate: see Kwamin v. Kuffuor (1914) P.C. ‘74 - ‘28, 28 and Waya v. Byrouthy (1958) 3 W.A.L.R. 413.

In my view the policy of the law exemplified in those legal rules is in line with the policy of Order 60, r. 29 of L.N. 140A and I do not think that any departure from that policy was envisaged by the legislature in its choice of words in section 2 (6) of Act 360. I think the same policy informs section 2 (6) of Act 360. I do not think that taken as a whole section 2 (6) of Act 360 imposes any higher standard or sets up a more burdensome requirement in the case of wills than the existing rules that govern the position of other documents made on behalf of or at the request of illiterate persons. Since it is not in dispute that the will in the present case was read and explained to the testator before he executed it and since there is material appearing on the face of the will as well as other available proof that the will was so read over and that the testator appeared perfectly to understand its contents or know its contents, I am of the view that the will cannot be invalidated for breach of section 2 (6) of Act 360. The trial judge was right in upholding the validity of the will. I would therefore dismiss the appeal.

Jiagge J.A. I agree.

Francois J.A. I also agree that the appeal be dismissed.

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