HUMPHREY-BONSU AND ANOTHER vs. QUAYNOR AND OTHERS [2000]DLCA323

Date	2000-02-14
Suit No.
Citation No.	[2000]DLCA323

ESSILFIE-BONDZIE JA

BENIN JA

TWUMASI JA

ANTHONY NORVOR FOR THE DEFENDANT-APPELLANTS.

ODOI SYKES FOR THE PLAINTIFF-RESPONDENTS.

[2000]DLCA323
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">HUMPHREY-BONSU AND ANOTHER<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">QUAYNOR AND OTHERS<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1999-2000] 2 GLR 781<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.0pt;
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<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid black .5pt;
padding:0in;mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">Date: 14 FEBRUARY 2000<o:p></o:p>

</div>COUNSEL:ANTHONY NORVOR
FOR THE DEFENDANT-APPELLANTS.ODOI SYKES FOR
THE PLAINTIFF-RESPONDENTS.___________________________________________________________________________________________________________________________CORAM:ESSILFIE-BONDZIE,
BENIN AND TWUMASI JJA___________________________________________________________________________________________________________________________JUDGEMENT<o:p></o:p>Benin JA. <o:p></o:p>The late William Bart-Plange (hereinafter referred to as the
deceased) who died on 21 March 1987 left behind a will, probate of which was
taken in May 1987 by the defendant-appellants (hereinafter referred to as the
defendants) who are among the children left by the deceased. The second and
third plaintiffs-respondents (hereinafter referred to as the second and third
plaintiffs, respectively) are also children of the deceased. But it is in
dispute whether the first plaintiff-respondent (hereinafter refer-red to as the
first plaintiff) was ever married to the deceased, and if so, whether she was a
wife of the deceased at the time of his death. The second plaintiff who was not
catered for by the deceased in his will was a student at the time of his
father’s death. The third plaintiff, a cripple and mentally retarded child from
birth, was also not catered for, not to mention the first plaintiff. Hence,
this action by the plaintiffs whereby they sought an order “to make provision under
the will of the . . . deceased for the plaintiffs. . . .for whom the deceased
testator made no provision.” Besides this relief, the plaintiffs also averred
that the devises made to the second defendant under the will were null and void
in so far as the beneficiary was also an attesting witness to the will This is
contained in paragraph(8)of the statement of claim. This averment was denied
and the plaintiffs were put to strict proof by the defendants.<o:p></o:p>It was the case of the defence, as pleaded, that the first
plaintiff was never married to the deceased; and that she only lived in
concubinage with him. In short she was not a wife so as to qualify as a
dependant within the meaning of section 13 of the Wills Act, 1971 (Act 360)
(hereinafter referred to as the Act). It was also contended at the trial that
since both the second and third plaintiffs were over eighteen years at the time
the deceased died, they did not qualify as a “child” under section 13(1) of Act
360.<o:p></o:p>The trial judge found as a fact that the first plaintiff was a
wife who was lawfully married by custom to the deceased.The court upheld the
contention that the devises to the second defendant were contrary to section
3(4) of the Act and thus falls into residue under section 8(1) of Ac 360. It also
held that intestacy under the Intestate Succession Law, 1985 (PNDCL 111)
applied to the residuary estate. The court, having found that the second
plaintiff was a student and the third plaintiff was physically and mentally
handicapped, held that they were dependants of the deceased who would suffer
hardship if no provision was made for them. So the court upheld the plaintiff’s
claim and made certain orders in their favour including costs of ¢50,000.<o:p></o:p>It was against this judgment and the consequential orders that the
trial court made that the defendants appealed to this court on these grounds:<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">“(a) That the judgment is against the weight of evidence adduced. <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">(b) That the learned acting judge misdirected herself in law on
the provision of section 13 of the Wills Act, 1971 (Act 360) by taking into
consideration matters which should be excluded and by applying the Intestate
Succession Law, 1985 (PNDCL 111) to the action which was not permissible in
this case. <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">(c) The learned acting judge was biased and thereby failed to
exercise her discretion in accordance with judicial principles. <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">(d) The costs of ¢50,000 awarded to the plaintiffs was excessive
and not in accordance with the spirit and letter of section 13 of the wills
Act.”<o:p></o:p></main>