SETH AGYARKO SAKA vs. ERNEST ASIEDU OSAFO & 2 ORS [2008]DLCA6963

Date	2008-10-23
Suit No.	CIVIL APPEAL NO. HI/314/05
Citation No.	[2008]DLCA6963

ASARE KORANG J.A.

KUSI APPIAH J.A.

GYAESAYOR J.A.

[2008]DLCA6963
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													<main id="main" class="content" style="min-height: 60rem" >SETH AGYARKO SAKA<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ERNEST ASIEDU OSAFO &amp; 2 ORS<o:p></o:p>(DEFENDANTS/RESPONDENTS)<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;
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APPEAL NO. HI/314/05&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: 23RD OCTOBER, 2008<o:p></o:p>

</div>CORAM:<o:p></o:p>ASARE
KORANG J.A., KUSI APPIAH J.A., GYAESAYOR J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>ASARE
KORANG, J.A.:<o:p></o:p>&nbsp;This appeal turns on the interpretation of the
phrase “my family” in clauses 27 and 31 of the Will of the late Ebenezer
Agyarko Saka. <o:p></o:p>In
the court below, the plaintiffs/appellants [appellants for short] came by way
of an originating summons for the determination of the following issues:—<o:p></o:p>&nbsp;“1.Construction and interpretation of the
phrase “my family” in the last Will of Ebenezer Agyarko Saka particularly:-
Clauses 27 and 31. <o:p></o:p>2. Declaration of the Plaintiffs’
rights that the properties described in Clauses 27 and 31 belong to the
Plaintiffs. <o:p></o:p>3. An order that the balance standing
to the credit of the Testator’s Account as well as the Treasury Bills all
lodged at Standard Bank, High Street, Accra, be paid to the plaintiffs”<o:p></o:p>&nbsp;The 1st and 2nd Respondents referred to as
Defendants in the court below are the executors of the Will of the deceased
while the 3rd and 4th Respondents described s the Co-defendants are beneficiaries
under the Will.<o:p></o:p>&nbsp;The relevant clauses of the Will that were
required to be construeed and interpreted — Clauses 27 and 31 read as follows:-
<o:p></o:p>“I GIVE the following to my nephew Dr.
Ernest Osafo to hold in trust for my family:— [i] My new house at Kokomlemle
where St John School was operating and sold to me. [ii] Two plots of land at
Nkawkaw, formerly UAC Cocoa Shed, and <o:p></o:p>[iii] One plot of land at Nkawkaw
which I inherited from my Uncle Akuamoah and which has remained undeveloped.”<o:p></o:p>&nbsp;Clause 31:—<o:p></o:p>&nbsp;“I GIVE and BEQUEATH all my residuary
immovable and movable properties which I shall stand possessed of at my death
and which I have power to dispose of but which has not been disposed of in this
my Will to my Nephew Dr. Ernest Asiedu Osafo to hold in trust for my family”. <o:p></o:p>After
listening to arguments in support of the respective cases of the parties
herein, the learned trial judge entered judgment in favour of the respondents
as follows. <o:p></o:p>“I have considered the text of the
entire Will and I find no ambiguity in Clauses 27 and 31. As I have already
stated, the expression ‘my family’ appearing in Clauses 27 and 31 must be
construed together with Clause 9 where the testator is referring to his family
as the maternal family and not the nuclear family comprising the applicants,
that is his wife, children, servants, wards, etc., as known in common law. To
my mind, the applicants are not entitled to take any property described in
Clauses 27 and 31 of the Will.”<o:p></o:p>&nbsp;Against the judgment, the following grounds of
appeal were filed:<o:p></o:p>&nbsp;[i] The judgment was against the weight of the
affidavit evidence placed before the court.<o:p></o:p>&nbsp;[ii] The learned trial judge, with all due
respect, gravely erred in law, or far as her interpretation of the word
“family” in the Will is concerned.<o:p></o:p>[iii]
The award of costs in an estate matter is palpably wrong.<o:p></o:p>&nbsp;Arguing grounds [i] and [ii] together, counsel
for the appellants contended that the testator was literate and knew the
meaning and effect of the words used in his Will. It followed therefore that
the use of the expression “family” in Clauses 27 and 31 of the Will was
intended to mean “family” as it is usually known and understood in the English
language and at common law, that is to say, the testator’s nuclear family, and
not the meaning ascribed to the word “family” in the Akan language. Counsel for
the appellants further contended that the testator was a literate Akan man and
the fact of his being an literacy coloured or influenced his outlook and
thinking. The literacy of the testator, it was argued, propelled him to
differentiate between his family and his maternal family, the fact of his being
an Akan and belonging to a maternal family notwithstanding. <o:p></o:p>The
respondents on the other hand argued that because the testator was an Akan, he
could not have used the word “family” in any other sense than the maternal
family and since a wife and children, by or under Akan custom, are not members
of an Akan m</main>