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March 21, 1980
HIGH COURT
GHANA
CORAM
JUDGMENT OF CECILIA KORANTENG - ADDOW J.
In this application the court is called upon to vary the nominations made by the deceased and apportion the gratuity equitably amongst all the children of the deceased. The deceased had five children born between 1959 and 1971. On 9 September 1965 the deceased nominated his three children born at the time as beneficiaries of his gratuity and the proportion in which the children would share the gratuity was stated to be 33 1/3 each. In other words they were to share it equally. These three children are [p.395] issues of the deceased by his first marriage with the first caveatrix. In 1968, a child was born to the deceased by his second wife; and then another in 1971 by the same marriage. The deceased died on 25 May 1979, he was an accountant employed in the Accountant-General's Department.
He made no alteration or amendment in the nomination paper. The court is therefore asked to vary the nominations made by the deceased so that all the five children share equitably. I have not been referred to any authority or rule which empowers the court to make such order, but it has been argued that an analogy should be drawn between the nomination paper and a will. It was argued that since it is to take effect after death its effect is the same as a will, and since section 13 (1) of the Wills Act, 1971 (Act 360), empowers the court to make reasonable provision for the maintenance of dependants of the deceased who has not made reasonable provision for their maintenance.
Mr. Okine, counsel for the parents of the deceased, associating himself with Mr. Ampere also asked for provision to be made for the parents of the deceased from the gratuity. Mr. Attoh for the beneficiaries, the three elder children resisted the application on the grounds that such an order for maintenance should be made from the residue of the estate of the deceased.
Miss Quartey, counsel for the Controller and Accountant-General has, in a very lucid, cogent and attractive argument, submitted that the nomination papers of a deceased made under the Pensions Ordinance, Cap. 30 (1951 Rev.), is governed exclusively by the Ordinance and its amendments.
In the absence of fraud, a nomination paper made by a deceased person cannot be interfered with by the court, and that the operation of section 13 of the Wills Act cannot affect the nominations. The mischief which section 13 of the Wills Act sought to remedy has been catered for by an amending Decree, i.e. Pensio
AI Generated Summary
Justice Cecilia Koranteng-Addow considered an application to redistribute a deceased public accountant’s gratuity so that all five of his children—including two born after a 1965 nomination naming only the first three—and his dependent parents would share or receive provision. The deceased, employed by the Controller and Accountant‑General’s Department, never amended his nomination before his death in 1979. Mr. Okine and Mr. Ampere supported provision for the parents; Mr. Attoh, for the three elder children, argued maintenance should be sourced from the estate’s residue; Miss Quartey, for the Controller and Accountant‑General, argued the Pensions Ordinance exclusively governs nominations. The court held it cannot vary statutory nominations or charge gratuity under section 13 of the Wills Act. Gratuity is not part of the estate and is non‑attachable; dependants must seek relief within the pensions scheme (SMCD 8). The proper respondent for maintenance under Act 372 is the administrator, not the employer; the application was dismissed without costs.