BEATRICE A. QUAYNOR & TWO OTHERS vs. W. A. HUMPHREY-BONSU & ONE ANOR. [2000]DLCA6656

Date	2000-02-14
Suit No.	CIVIL APPEAL NO.: 9/96
Citation No.	[2000]DLCA6656

ESSILFIE-BONDZIE JA. (PRESIDING)

BENIN JA

TWUMASI JA.

[2000]DLCA6656
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													<main id="main" class="content" style="min-height: 60rem" >BEATRICE A. QUAYNOR
&amp; TWO OTHERS<o:p></o:p>vs.<o:p></o:p>W. A. HUMPHREY-BONSU
&amp; ONE ANOR.<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO.: 9/96&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 14TH FEBRUARY, 2000<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>BENIN, JA. <o:p></o:p>The
late William Bart-Plange (hereinafter called the deceased) who died in 21:3:87
left behind a will, probate of which was taken in May, 1987 by the
defendants/appellants herein, who are among the children left by the deceased.
The 2nd and 3rd plaintiffs/respondent are also children of the deceased. But it
is in dispute whether the 1st plaintiff/respondents was ever married to the
deceased, and if so whether she was a wife of the deceased at the time of his
death. The 2nd plaintiff who was not catered for by the deceased in his will
was a student at the time of his father’s death. The 3rd plaintiff, a cripple
and mentally retarded child from birth, was also not catered for, not to
mention the 1st 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.” <o:p></o:p>Besides
this relief, the plaintiffs also averred that the devises made to the 2nd
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 plaintiffs were put to strict
proof by the defendants. <o:p></o:p>It
was the defence case, as pleaded, that the 1st 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 2nd and 3rd plaintiffs were over 18
years at the time deceased died, they did not qualify as a “child” under S.
13(1) of the Wills Act, <o:p></o:p>The
trial judge found as a fact that the 1st plaintiff was a wife who was lawfully
married by custom to the deceased. The Court upheld the contention that the
devises to the 2nd defendant were contrary to S. 3(4) of the Act and thus falls
into residue under S.8 (1) of the Act. It also held intestacy under the
Intestate Succession Law, 1985 (PNDCL 111) applied to the residuary estate. The
Court, having found that the 2nd plaintiff was a student and the 3rd plaintiff
was physically and mentally handicapped, held 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 ¢50,000.00. <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>a.
That the judgment is against the weight of evidence adduced. <o:p></o:p>b.
That the learned Acting Judge misdirected herself in law on the provision of
section 13 of the Wills Act by taking into consideration matters which should
be excluded and by applying the Intestate Succession Law, PNDCL 111 to the
action which was not permissible in this case. <o:p></o:p>c.
The learned Acting Judge was biased and thereby failed to exercise her
discretion in accordance with judicial principles. <o:p></o:p>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>Additional
grounds of appeal were filed. I shall take only those grounds argued by Counsel
for the appellants. <o:p></o:p>Ground
(a) Counsel&nbsp;&nbsp; for the appellants dwelt
largely on the marital relationship that existed between the 1st plaintiff and
the deceased. Counsel concedes that they were a married couple for some time
but his contention is that events that existed prior to the demise of the
testator clearly showed the marriage was at an end. There was unchallenged and
unrebutted evidence that the couple were customarily married in 1950. Counsel
concedes that no steps were taken “to formally dissolve the marriage” but they lived
apart without anything to show they were married at all. But in my view, the
fact that they could not patch up their differences whilst they lived apart did
not mean the marriage was dissolved. It is clear that the 1st plaintiff always
cherished the belief the husband would return to the marriage just as he did in
1963 or thereabouts after eight year separation. And when the deceased deserted
the 1st plaintiff in 1955 he never dissolved&nbsp;
the marriage. After eight years he returned to live together with the
1st plaintiff during which period they had about five children before he
deserted her again. A line of conduct had been established. Hence the 1st
plaintiff’s hope he would come back to her and that explains the steps she took
to bring the husband back, though without success. There was evidence, which
was unrebutted, that it was the deceased himself who allowed the 1st plaintiff
to go and live in her mother’s house for some time, except that he would not
allow her to return into the matrimonial home for having over stayed. Thus the
initial decision for her to stay away from the matrimonial home was mutual. And
thus however long that lasted; it did not amount to dissolution of the marriage
especially when no steps were taken in that direction. The 1st plaintiff tried
to go back to the matrimonial home but the deceased refused her that right for
no just reason. In view of his previous conduct, the 1st plaintiff would be
justified in waiting for him to return at his pleasure without compromising her
status as a person married to the deceased. However long the separation might
be, it would not ripen into dissolution of the marriage unless the couple
clearly intended it to be so and did acts inconsistent with a marriage
relationship, for instance where the woman in particular re-marries or goes to
live with another man elsewhere and the husband does not complain. That was not
the position here. I therefore agree with the trial court’s conclusion that the
marriage was still subsisting at the time deceased passed away. <o:p></o:p>Next,
Counsel submitted that the plaintiffs were not dependants of the deceased so as
to qualify for consideration under S,13(1) of the Act, which provides that: <o:p></o:p>