YAW TAWIAH vs. OPANIN KWADWO BAAH & ORS. [2001]DLSC2377

Date	2001-12-12
Suit No.	CIVIL APPEAL NO. 6/2000
Citation No.	[2001]DLSC2377

MRS BAMFORD-ADDO J.S.C. (PRESIDING

AMPIAH J.S.C

KPEGAH J.S.C.

LAMPTEY J.S.C

ADZOE J.S.C.

MR. VICTOR AGUDETSE FOR APPELLANT.

MR. YIADOM BOAKYE REPRESENTING OPANIN KWADWO BAAH.

[2001]DLSC2377
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													<main id="main" class="content" style="min-height: 60rem" >YAW TAWIAH<o:p></o:p>vs.<o:p></o:p>OPANIN KWADWO BAAH &amp; ORS.<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 6/2000<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:
12TH DECEMBER, 2001.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
VICTOR AGUDETSE FOR APPELLANT.<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">

MR.
YIADOM BOAKYE REPRESENTING OPANIN KWADWO BAAH.<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 1.0pt 0in">

MRS
BAMFORD-ADDO, J.S.C. (PRESIDING), AMPIAH, J.S.C., KPEGAH, J.S.C., LAMPTEY,
J.S.C., ADZOE, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>T.K.
ADZOE, J.S.C.:<o:p></o:p>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:<o:p></o:p>"Kwadwo Kwako is to inherit me on
my death and all the properties which I have not devised must go to him"<o:p></o:p>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:—<o:p></o:p>"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".<o:p></o:p>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 March, 1991 in answer to the
respondent's claims, the appellant deposed in paragraphs 6 and 7 as follows:—<o:p></o:p>(6)
I deny that my late uncle Isaac Ottie before his death pleaded with the elders
of the Bretuo family that he wished that I be made customary successor any time
he died.<o:p></o:p>(7)
That my appointment as the customary successor was not due to any request of my
late uncle but by concensus of the family after my late uncle's death".<o:p></o:p>Accordingly
the appellant maintained that any properties covered under the devise made in
clause 13 were gifted to him personally for his own benefit.<o:p></o:p>It
would appear that the confusion which arose in the minds of the respondent and
some members of the Bretuo family was created by the word "inherit"
in the controversial clause 13. What did the testator mean when he said
"Kwadwo Kwako is to inherit me"?.<o:p></o:p>&nbsp;In his search for a proper construction of
clause 13, the trial court decided to, and did indeed, call the lawyer who
prepared the Will, in his own words "to tell this court what his
instructions were in respect of clause 13". The lawyer's evidence was
briefly this:<o:p></o:p>"My instructions were that Kwadwo
Kwako who was to inherit him was to take his residuary estate on condition that
he would take care of his wife. The residuary estate was to go to the family if
he failed to look after his wife. The wife of Ottie died not long
afterwards".<o:p></o:p>Upon
this evidence the trial High Court judge made the following observations in his
judgment:<o:p></o:p>"Having
heard counsel for both sides, the court decided to fall on the person who
prepared the Will to find out what the intent of the testator was when he
(Testator) gave him instructions. Fortunately, the Will was prepared by a
lawyer who was readily available . . . . . . . . . . .<o:p></o:p>From
the evidence of the Lawyer, Mr. Charles Kessie, it became clear that the
Testator intended that the Residuary estate must go to Kwadwo Kwako in his personal
capacity.<o:p></o:p>The
condition upon which the family was to have the Residuary estate did therefore
not materialise.<o:p></o:p>Consequently,
I hold that the devise in clause 13 of the will was to Kwadwo Kwako personally
and he took the same in his personal capacity".<o:p></o:p>