GYASI v. QUAIGRAINE

JUDGMENT OF SOWAH J.

In this action the plaintiff's claim is for:

“A declaration of title that the estate of the late J. E. Biney, member of the Dihyina family of Tuakwa and Cape Coast, comprising lands and houses and personality of which the late J. B. Apprey, as heir and/or successor of the late J. E. Biney and administrator of his estate, became possessed during his lifetime, is the property of the late J. E. Biney's family, the Dihyina family of Tuakwa and Cape Coast aforesaid, and that upon the death of the late J.B. Apprey the right of appointing a member of the family as successor and administrator of the family property rests with the family and not otherwise.”

[p.163]

The other remedies sought on the writ are grounded upon the basis that the plaintiff does succeed on obtaining the declaration. The plaintiff bases his claim upon the interpretation of the late Biney's will.

By clause 3 of the will, i.e., exhibit A, the testator made the following devise:

"I also appoint my dearly beloved nephew J. Brodie Apprey to be my sole heir and administrator of all my estate—viz. — my movable and immovable properties at Cape Coast and elsewhere—my personal and real effects—all my gold mining and diamond mines concessions in the Colony with all my shares therein—my Current and Fixed Deposits in the Banks of England and British West Africa Ltd., Cape Coast—my arable and other lands, and cattle and other things pertaining to the estate."

By a codicil dated the 11 th August, 1936, the testator in clause 11 of the codicil defines what he means by administrator and I quote:

"By my Last Will I have appointed my nephew J. Brodie Apprey to be my sole Heir and Administrator of all my estate. But by 'Administrator' I do not at all mean to place him conjointly with my said four executors, but only to administer also to the needs and requirements of the members of my household and those of my near relations abroad in the same way and manner as, in life, I would do myself as particularised in my said Will.

In witness whereof I have hereunto set my Hand this 9th day of September, One Thousand Nine hundred and thirty-six."

It is significant to note that the testator failed to define what he meant by "sole heir" and nowhere in the will did he make any attempt so to do.

Before dealing with the construction of these two clauses in the will, it is necessary to say in passing that written wills are unknown to customary law: see Sarbah's Fanti Customary Laws (2nd ed.),