ALLOTEY (DECD.) IN RE; ALLOTEY vs. OTOO [1980]DLHC1553

Date	1980-03-21
Suit No.
Citation No.	[1980]DLHC1553

CECILIA KORANTENG-ADDOW J.

AMPERE AND A. K. OKINE FOR THE APPLICANTS.

ATTOH FOR THE RESPONDENTS.

MISS QUARTEY FOR THE CONTROLLER AND ACCOUNTANT-GENERAL.

[1980]DLHC1553
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													<main id="main" class="content" style="min-height: 60rem" >ALLOTEY (DECD.) IN RE; ALLOTEY <o:p></o:p>vs. <o:p></o:p>OTOO<o:p></o:p>HIGH COURT, ACCRA <o:p></o:p>[1980] GLR 393<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
21
MARCH 1980<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMPERE AND A. K. OKINE FOR THE APPLICANTS.<o:p></o:p>

MISS QUARTEY FOR THE CONTROLLER AND
ACCOUNTANT-GENERAL.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG - ADDOW
J.<o:p></o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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. Pensions
and Social Security (Amendment) Decree, 1975 (SMCD 8). Section 10 of the Decree
amends section 17 of the Pensions Ordinance, Cap. 30. The amended section 17
(1) (iii) provides:<o:p></o:p>“17. (1)
Where an officer dies while in the public service, the Supreme Military Council
may grant, in addition to the grant, if any, made under section 16—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(ii) if
the deceased officer leaves a child or children, but does not leave a spouse or
no pension is granted to the spouse, a pension in respect of each child, until
such child attains the age of twenty-one years, of double the amount prescribed
by the preceding paragraph.”<o:p></o:p>