ARBENSER vs. HESSE AND ANOTHER [1980]DLHC1558

Date	1980-03-28
Suit No.
Citation No.	[1980]DLHC1558

CECILIA KORANTENG-ADDOW J.

THE PLAINTIFF IN PERSON.

BANNERMAN-WILLIAMS FOR THE DEFENDANTS.

[1980]DLHC1558
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													<main id="main" class="content" style="min-height: 60rem" >ARBENSER<o:p></o:p>&nbsp;vs. <o:p></o:p>HESSE AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 411<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:
28
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">

THE PLAINTIFF IN PERSON.<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>The
plaintiff in this case took out a writ of summons for the interpretation of
certain paragraphs in the will of his deceased grandfather dated 28 January
1942, and admitted to probate on 21 April 1943. The defendants are daughters of
the testator, and the plaintiff is the son of the first defendant. The relevant
words for which the plaintiff seeks interpretation are contained in paragraphs
6 and 7 of the will. Paragraphs 6 and 7 read:<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">“6. I
give and devise unto and to the use of my daughters Mrs. Eleanora Laingoye Hesse,
and Mrs. Joana Leytchoe Arbenser and to their heirs being issues of their
respective bodies as tenants in common, my land with the dwelling house and
other building thereon situate at Christiansborg, Accra, aforesaid near St.
Thomas (Presbyterian Mission School). I direct that failing any heir or heirs
of both my daughters, being issues of their respective bodies, the said land
and premises shall descend to my nephews Godfried Sai Numo, Nortey, Norteye,
Neeboi, Kwablah Numo and Daniel Awuletey and my niece Deidei, Mrs. Bessie
Curchod, Yemoley, Norley, Ayakoh, Shomeh, Adaku, Norkor Okantey, and Nardufio
and their heirs to be held by them as family property. 7. I give and devise
unto and to the use of my daughters, Mrs. Eleanora Laingoye Hesse, Mrs. Joana Leytchoe
Arbenser, Mrs. Nardu Bekoe and their heirs as tenants in common. (a) Two
several pieces or parcel of land situate in the town of Adawso in the Akwapim
District being my property. (b) Two several adjoining pieces or parcels of land
with cocoa plantation thereon, situate at Amanase in the Akim Abuakwa District
Division purchased by me from Ayew and Badu respectively.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff also asks for an injunction to restrain the defendants from dealing
with the two pieces of land devised by the foregoing paragraphs of the will.
When the matter came before me for hearing, I discussed with Mr.
Bannerman-Williams counsel for the defendants, whether legal argument could not
be taken on the interpretation of the relevant paragraphs, since I felt that
would dispose of the matter without wasting precious time to take evidence on
the use to which the devisees have put the land. Even though the matter was
part-heard before Griffiths-Randolph J. I decided to take legal arguments on
the interpretation of those paragraphs.<o:p></o:p><o:p>&nbsp;</o:p>The
matter was adjourned a number of times for counsel for the plaintiff to appear,
but he failed to appear. Eventually, at my call, he came to court and announced
that he had withdrawn his representation for the plaintiff. Nevertheless, the
plaintiff decided to go on his own. He said he would abide by whatever
interpretation the court would put on the matter, but his views were that all
the heirs, i.e. children of the devisees, took immediate interest with the
devisees, and that their interests vested in equal shares.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Bannerman-Williams felt that it was unfair to submit his argument when the
plaintiff was not represented. I did not think this was justified; I still
wanted to have his point of view on the matter, and told him so, but he failed
to turn up after a number of adjournments. At the plea of the plaintiff, I was
constrained to dispose of the matter without hearing argument from defence
counsel.<o:p></o:p><o:p>&nbsp;</o:p>At the
time the will was made, the operative statute was the English Wills Act, 1837
(7 Will. 481 Vict., c. 26). The concept of devise employed is English law, so
English law should be applied in its construction. The operative words in
paragraph 6 which call for construction are:<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">“I give
and devise unto and to the use of my daughters Mrs. Eleanora Laingoye Hesse,
and Mrs. Joana Leytchoe Arbenser and to their heirs being issues of their
respect</main>