YAW TAWIAH v. OPANIN KWADWO BAAH & ORS.
2001
SUPREME COURT
CORAM
- MRS BAMFORD-ADDO J.S.C. (PRESIDING)
- AMPIAH J.S.C.
- KPEGAH J.S.C.
- LAMPTEY J.S.C.
- ADZOE J.S.C
Areas of Law
- Probate and Succession
- Evidence Law
2001
SUPREME COURT
CORAM
AI Generated Summary
The Supreme Court of Ghana, per T.K. Adzoe J.S.C., resolved a dispute over the meaning of clause 13 of Isaac Ottie’s 1982 will. Ottie’s will made specific devises and declared that residuary property should go to Kwadwo Kwako. A principal member of the Bretuo family, who received nothing, petitioned for interpretation, contending clause 13 designated Kwako as customary successor obliged to hold the residue in trust for the family. The High Court ruled for Kwako; the Court of Appeal’s majority reversed and imposed a trust, with one judge dissenting. On further appeal, the Supreme Court applied the golden rule, emphasized the inadmissibility of extrinsic instructions, distinguished “inherit” from customary succession, and invoked sections 7(4) and 7(5) of the Wills Act to treat clause 13 as a residuary disposition conferring an absolute gift to Kwako. The Court also noted PNDCL 111’s scheme for any partial intestacy. It allowed the appeal and restored the High Court’s result.
T.K. ADZOE, J.S.C.:
Isaac Ottie alias Agya Atta died on 10th August, 1982. He hailed from Kenkase, Kwabre No. 3 in Ashanti. He left behind a Will dated 26th January, 1982. In the Will he devised houses and farms to his wife, children and other persons. Among the devisees was one Kwadwo Kwako, the appellant herein. The testator in clause 7 of will devised six rooms in House No. 54 Block 12 to the appellant. Then in clause 13 of the will the testator declared that:
"Kwadwo Kwako is to inherit me on my death and all the properties which I have not devised must go to him"
The Plaintiff/Respondent hereinafter referred to simply as the respondent did not receive any gift under the will. On 7th February, 1991 the respondent describing himself as "one of the principal members of the Bretuo Family or clan of Kenkase-Ashanti and a beneficiary under the late Isaac Ottie's said Will and who claims to be interested in the Residuary Estate of the said Isaac Ottie" (deceased) took out an originating summons at the High Court in Kumasi asking for an interpretation of clause 13 of the Will, quoted above. In his opinion the devise to the appellant in clause 13 of the Will was made to him in his capacity as customary successor and therefore the appellant must be deemed to take such properties in trust for his immediate family. The question he posed for determination as follows:—
"Whether or not having regard to the devises in the last will of Isaac Ottie, alias Agya Atta (decd) dated 26th January, 1982, more particularly the devises made in clauses 7 and 13 of the said Will the late Testator Isaac Ottie by clause 13 of the said will devised his Residual Estate to Kwadwo Kwako personally forever or the devise was made to Kwadwo Kwako in his capacity as the customary successor who is to hold the properties in trust for his immediate family".
The respondent contended that the deceased made the devise in clause 13 to the appellant in his capacity as the deceased's customary successor because the deceased knew that the appellant would be his customary successor. The Respondent alleged that before the deceased died he pleaded with the elders of the Bretuo family that he wished the appellant to be his customary successor and when the family discovered later on that this wish was "repeated in the last Will of the deceased" the family honoured it and accordingly appointed the appellant as the testator's customary successor. The appellant denied this. In an affidavit filed on 4th