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April 6, 1939
WEST AFRICAN COURT OF APPEAL
GHANA
CORAM
The following judgments were delivered :-
BUTLER LLOYD, AG. C.J" NIGERIA.
In this case no less than twelve grounds of appeal were filed, some of them divided into a number of sub-headings but in my opinion only grounds 5,9 and 10 require consideration.
These are as follows :Ground 5.
(a) Because the learned Chief Justice did not collect the intention of the Testator from a consideration of the whole Will and determine the meaning of Clause 2.
(b) Because upon a true construction of the Will, the plaintiffs acquired no beneficial interest in Ali's land in Clause 2 of the Will mentioned; on the contrary the defendant and the other favoured Legatees namely, Madam Amina and Mariama Ali did under the Will take Ali's land behind the Mosque at the Zongo Road, Accra, as absolute beneficial owners.
Ground 9.
Because the plaintiff Abiba Ali has shown no title, the defendant having been admittedly in possession without acknowledgment to her for upward of 20 years.
Grou-nd 10.
Because any title which the plaintiff Abiba Ali may have had has been extinguished by the Real Property Limitation Act, 1833.
And of these it is obvious that grounds 9 and 10 need only be considered if the appellant does not succeed upon ground 5.
It will be necessary for the purpose of this appeal to set out Clauses 1, 2, 4 and 6 of the Will-
I. I leave my House in the Horse Road Ussher Town to the South of the late B. D. Coker's House in the charge of Madame Amina, Meriam Ali and my son Mama Ali. The said house is never to be sold but the rent received therefrom is to be divided equally between the said Madame Amina, Meriam Ali and my son Mama Ali.
2. I leave the land known as Ali's land behind the Mosque at Zongo in the charge also of,Madame Amina, Meriam Ali and Mama Ali.
4. I bequeath the balance of my money in the Bank of British West Africa after deducting the (£140) One hundred and forty pounds referred to in the preceding paragraph to Madame Amina, Meriam Ali and Mama Ali. They are to use the money for the benefit of themselves and the members of my family and children in Accra.
5. I appoint Henry Hely Wartemberg of Elmina and Timothy Laing of Accra and Cape Coast Son of the late Revd. Timothy Laing my executors. They are to see that the conditions and the terms of this Will are carried out and they are to be properly compensated by Madame Amina, Meriam Ali, and Mama Ali.
And the only one of these clauses the effect of which has to be considered is Clause 2. It will
AI Generated Summary
On appeal from a judgment declaring a trusteeship over “Ali’s land” behind the Mosque at Zongo in Accra, Butler Lloyd, Acting Chief Justice of Nigeria, writing for the court, held that Clause 2 of the testator’s will conveyed a beneficial interest to the named legatees—Madame Amina, Meriam Ali, and Mama Ali—rather than imposing a trust for the heirs. He reasoned that the phrase “in the charge of,” used identically in Clause 1 (which also directed rent division among the trio), demonstrated the testator’s usage to confer benefits, and that Clause 4’s provision for other children undermined the inference of an unstated trust in Clause 2. Webb, C.J., concurred. Strother‑Stewart, J., dissented, viewing Clause 2 as inoperative and resulting in partial intestacy, with limitations barring Abiba Ali. The court allowed the appeal, reversed the trustee declaration, and assessed costs of £48 11s. 6d. It also affirmed rejection of the separate claim to bank funds for want of evidence.