NORA OTOO & OTHERS v. REUBEN OTOO & OTHERS

DOTSE JSC;

This is an appeal by the Plaintiffs/Respondents/Appellants, hereafter referred to as the Plaintiffs against the judgment of the Court of Appeal dated 23rd May 2013 in favour of the Defendants/Appellants/Respondents, which set aside the decision of the High Court as per the judgment of Ofosu-Quartey J dated 26th day of October 2009.

Since this is an appeal which touches and concerns the construction of a WILL, I intend to commence the delivery of this judgment by reference to an old English case in which the Master of the Rolls laid down some general rules of construction in the celebrated English case of Thelluson v Woodford, (1798) 4. VES. 227, 329 E.R. 117, 167 also referred to by the Learned Author of Modern Law of Succession in Ghana, A.K.P. Kludze, page 83, in which a rule on the construction of Wills was laid down by the court in the following terms:-

“I know only one general rule of construction, equally for courtsEquity and Courts of Law, applicable to all wills, which the courts are bound to apply however they may condemn the object, the intention is to be collected from the whole will taken together. Every word is to have its effect. Every word is to be taken according to the natural and common import; and if words of art are used, they are to be construed according to the technical sense, unless upon the whole will it is plain, the testator did not so intend. The Courts are bound to carry the will into effect, provided it is consistent with the rules of law.”

This being a case which is based entirely on the interpretation of a will executed by Edward Kabu Otoo on the 9th day of February 1944 (deceased of Accra) who died on the 8th day of May 1944 and whose Will was admitted to probate on the 28th day of June 1944, it is important and desirable to set out in extenso the entire devises and bequests in the Will. This is to afford us an opportunity to read the will and inteprete same as a whole in terms of the decision in the English case of Thelluson v Woodford, referred to supra.

The Will reads as follows:-

“This is the last will and testament of me Edward Kabu Otoo of No. E 251/2 Russia in Christiansborg in the Accra District in the Eastern Province of the Colony of the Gold Coast, Goldsmith and I hereby revoke all former testamentary dispositions hereto made by me. I appoint Daniel Sackey Quacoo of Castle Road Adabraka, Accra, Auctioneer and C.D Adotey Produce Buyer of Coaltaw to be the Executors and Trustees (hereinafter called