1636 Ghana Bar Reports [1992-93] GBR

Mmra v Donkor

SUPREME COURT
ADADE, WUAKU, AMUA-SEKYI, AIKINS, HAYFRON-BENJAMIN
JJSC
2 MARCH 1992
Wills – Devise – Attesting witness – Validity – Devise to attesting witness
invalid – Wills Act 1837 (7 Will 4 & 1 Vic c 26) s 15, Wills Act 1971 (Act
360) s 3(4).
Wills – Devise – Construction – Whether devise to “children” of testator’s
aunt a devise to descendants of said aunt.
Courts – Jurisdiction – Objection – May be raised at any time.
Courts – Circuit court – Jurisdiction – Value of property exceeding
jurisdiction of court – Court may entertain action by consent of parties –
Objection to jurisdiction to be raised in limine or in the pleadings to be set
down for trial – Courts (Amendment) Law 1983 (PNDCL 47) s 32(a)(i),
Courts Act 1972 (Act 372) s 32(2).
Evidence - Wills – Admissibility - Test for admission in evidence.
Wills - Validity - Unprobated will - Legal effect.
Administration of estates - Letters of Administration - Deceased dying
testate - Administrator disposing of an asset - Whether disposition valid –
Administration of Estates Act 1961 (Act 62) s 97(1).
Limitation of actions - Title to land - Adverse possession - Time runs only
when the defendant in adverse possession.
In his will the testator devised the disputed house to his niece B for
life, after her death to all the children of the testator’s aunt, YB except
one. YB had four children but was survived by O only. After the
death of one of the executors appointed under the will, the surviving
executor distributed the estate in accordance with the will without
obtaining probate. The 1st defendant, as the customary successor,
obtained letters of administration of the estate and, on the
instructions of B and O, sold and assigned the property to D in
settlement of a loan advance.
Dissatisfied with the disposition the plaintiff, claiming to be a
member of the testator’s maternal family and a grandniece,
instituted an action against the 1st defendant and the 2nd defendant,
D’s successor, in the circuit court for herself and on the alleged
authorisation of the family, claiming the disputed property as family
property. The 2nd defendant contended that the action was statute-
barred and counterclaimed for a declaration that D was a bona-fide
purchaser for value and claimed perpetual injunction to restrain the
SC Mmra v Donkor 1637

plaintiff from interfering with her occupation of the property.

The circuit judge gave judgment for the plaintiff and dismissed the
counterclaim. The Court of Appeal dismissed the 2nd defendant’s
appeal and she appealed by leave to the Supreme Court.
The appellant’s counsel submitted at the hearing of the appeal in the
Supreme Court that on the plaintiff’s own showing, the circuit court
had no jurisdiction to entertain the suit as the value of the disputed
property exceeded its jurisdiction. Counsel submitted further that
the trial court ought to have ascertained the value of the property or
sought the written consent from the parties to enable it proceed in
the matter. Counsel submitted further that the action was
commenced fifteen years or so after the sale of the house to D, long
after the twelve-year limit in the Limitations Decree (NRCD 54); the
action was therefore statute-barred. Finally, counsel submitted that
the circuit court ought not to have admitted in evidence the
unprobated will.
The respondent’s counsel replied that the jurisdictional point ought
to have been raised in the court below, failing which the court rightly
entertained the action. On limitation counsel submitted that the
property is family property and limitation did not apply. Counsel
argued additionally that since the will was not probated it could not
be admitted in evidence; that O was disqualified from taking the
remainder because he attested the will; that in so far as there was a
will the grant of letters of administration to the 1st defendant was
void and could not operate to pass title to D.
Held: (1) The house being the self-acquired property of the deceased
the devise created a class gift of which B and YB’s son, O constituted
the class entitled to the beneficial interest. YB took a life interest with
the remainder to O. The prevailing provision in section 15 of the
Wills Act 1837 of England, (now Wills Act 1971 (Act 360) s 3(4) of
Ghana) avoided a gift by a testator to an attesting witness. O was
thus disqualified as a beneficiary and his interest lapsed into residue
and vested in B and the 1st defendant as the administrator. Together
they could dispose of the entire estate, which they did. The property
was therefore not family property and neither the plaintiff nor the
persons she purported to represent had locus standi and the action
ought to have been dismissed in both courts below.
(2) Where a person chose a particular language to express himself, he
must be presumed to intend the normal meaning of his words. The
testator decided to use the English language in a will prepared by a
lawyer, who would be deemed to know the difference between
“children” and “descendants.” In the English language a child is a
descendant in the first degree; hence the use of the prefix “grand”,
“great-grand” and ‘‘great-great-grand” when referring to remote
descendants. There being no evidence on record that the attestation
was false, “children” must be taken to mean what it meant in the
English language, viz “sons and daughters.” Therefore surviving
children of the said aunt meant her children living at her death. The
plaintiff not being a daughter of the said aunt or representing a son
1638 Ghana Bar Reports [1992-93] GBR

or daughter of the said aunt did not qualify as a member of the class
and had no interest in the property or locus standi. Mensah v Lartey
[1963] 2 GLR 92, SC referred to.
(3) Under the Courts (Amendment) Law 1983 (PNDCL 47) s 32(a)(i)
the circuit court had jurisdiction in a land suit where the value of the
land did not exceed ¢100,000. Under s 32(2) of the Law if the value
were disputed, the court would take evidence on the value and
cause the case to be transferred to the High Court if it exceeded the
jurisdiction of the court. The court could entertain the action even if
the value exceeded the value provided the parties so agreed. Such
agreement would be required only where it was apparent on the face
of the writ of summons or pleadings that the value exceeded the
jurisdiction of the court or where the parties agree that the value
exceeded the jurisdiction of the court. On the other hand, section
32(2) of the Courts Act 1971 (Act 372) contemplated an objection to
jurisdiction in limine or in the pleadings to be set down for trial. A
dispute would then have arisen to be determined by evidence. The
testimony of the respondent upon which the appellant relies in
support of the jurisdictional point was equivocal and unreliable and
the objection must fail. Ababio II v Akro & Co [1963] 1 GLR 195, SC
referred to.
(4) The test for the admissibility of a will is that the document
proffered is the solemn unilateral act of the testator, intended to take
effect after his death and that the document was on its face executed
in accordance with the relevant statute, in this case the English Wills
Act 1837. A will did not depend for its validity upon probate.
However probate was necessary for vesting titles in device or for
executors to conclude litigation commenced by them without
probate. Meyappa Chetty v Subramaniam Chetty [1916] 1 AC 603,
referred to.
(5) Under section 97(1) of the Administration of Estates Act 1961 (Act
63) a conveyance by the holder of a probate or letters of
administration was valid notwithstanding the subsequent revocation
or variation of the probate or letters of administration. A court had
the power to recall, vary or revoke a probate or letters of
administration but till then an assignment by the personal
representative could not be invalidated. The letters of administration
granted to the 1st defendant was not void and the conveyance of the
disputed property to Dwamena was lawful. Hewson v Shelley [1914] 2
Ch 13 referred to.
(6) Under the Limitation Decree 1972 (NRCD 54) s 10, if an occupier
was not in adverse possession, the period of limitation could not run
against the true owner. A person was said to be in adverse
possession if he went into possession or dealt with the property
without the knowledge or consent of the owner. Dwamena remained
in possession under a mortgage that blossomed into the assignment
of the title to him.
(7) An objection to the jurisdiction of a court may be raised at any
time. It may be raised at the commencement of the trial or after the
SC Mmra v Donkor 1639

close of the case for the defendant or on a first appeal or a second or

subsequent appeal. Quist v Kwantreng [1961] GLR 605; Zotorglo III v
Gabienu & Akpakli [1962] 2 GLR 155, Hausa v Dawuda [1961] 2 GLR
550, Atoo v Town Clerk of Sekondi-Takoradi [1961] GLR 413, SC, Amoasi
III v Twintoh, Supreme Court, 21 June 1988 referred to.
Cases referred to:
Ababio II v Akro & Co [1963] 1 GLR 195, SC.
Abraham v Conyngham (1676) 2 Lev 182, 1Vent 303, 2 Mod Rep 146,
TJo 72, 3 Keb 725, 1 Freem KB 445, 23 Digest (Repl) 246.
Ali v Ali (1939) 5 WACA 94.
Amankwa v Akwawuah [1962] 1 GLR 324.
Ameko v Agbo [1961] GLR 747.
Amoasi III v Twintoh, Supreme Court, 21 June 1988.
Amoku v Duro (1953) 14 WACA 257.
Atoo v Town Clerk of Sekondi-Takoradi [1961] GLR 413, SC.
Boxall v Boxall (1884) 27 Ch D 220, 53 LJCh 838, 51 LT 771, 32 WR 896,
23 Digest (Repl) 81.
Meyappa Chetty v Subramanian Chetty [1916] 1 AC 603, LR 43, Ind App
113, 114 LT 1002, sub nom Chetty v Chetty 85 LJPC 179, PC, 23
Digest (Repl) 54.
Ellis v Ellis [1905] 1 Ch 613, 74 LJCh 296, 92 LT 727, 53 WR 617, 23
Digest (Repl) 246.
England v Palmer (1955) 14 WACA 659.
Folawiyo v Folawiyo (1944) 10 WACA 259.
Graysbrook v Fox (1565) 1 Plowd 275, 23 Digest (Repl) 53.
Hausa v Dawuda [1961] 2 GLR 550.
Hewson v Shelley [1914] 2 Ch 13, 83 LJCh 607, 110 LT 185, 30 TLR 402,
58 Sol Jo 397, CA, 23 Digest (Repl) 246.
Kwan v Nyieni [1959] GLR 67, CA.
Mensah v Lartey [1963] 2 GLR 92, SC.
Quist v Kwantreng [1961] GLR 605.
Ussher v Darko [1977] 1 GLR 476, CA.
Zotorglo III v Gabienu Akpakli [1962] 2 GLR 155.
APPEAL against the judgment of the Court of Appeal to the
Supreme Court.
Richard Asamoah for the appellant.
W A N Adumua-Bossman for the respondent.
HAYFRON-BENJAMIN JSC. By a tenancy agreement made on 18
January 1947 between the Asantehene and Kwame Asiama all that
piece and parcel of land known and numbered as BA 142, Kumasi,
was let to the latter and he constructed “some buildings” on the said
plot. Kwame Asiama died at Tanoso, Kumasi on 31 March 1962. It
appears that initially there was some confusion as to what the family
should do with respect to the estate. A will dated 19 December 1960
had been found. The will was executed by Opanin Kwame Asiama,
Asomfehene, and duly attested by two witnesses namely Kwadwo
Afum, a farmer of Tanoso and Kwasi Binim, also described as farmer
of Tanoso. I have no doubt in my mind that this Opanin Kwame
Asiama is the same person to whom the Asantehene gave the plot of
land designated BA 142, Kumasi. Kwasi Binim is also the same
1640 Ghana Bar Reports [1992-93] GBR

person as Kwasi Obinim referred to in the record and the son of

Opanin Kwame Asiama’s aunt by name Yaa Bedwa, the latter
according to his will having predeceased him. Thus Kwasi Obinim
was a cousin to the testator, Opanin Kwame Asiama.
The will of the Opanin Kwame Asiama named his two friends,
Kwaku Buor and Kwabena Anane, both of Tanoso as his executors.
Kwabena Anane, the second of the two executors died soon after the
testator’s death. The surviving executor, Kwaku Buor, though he did
not obtain probate of the will of Opanin Kwame Asiama,
nevertheless distributed the estate in accordance with the wishes of
the testator. The relevant paragraph of the will of the late Opanin
Kwame Asiama with which we are concerned in this appeal is
paragraph 7 wherein the testator stated:
“I give all that my freehold house No BA 142 in the Bantama
District of Kumasi, to my niece Yaa Bedwa alone, that after her
death, the said premises should be succeeded by the surviving
children of my aunt, Yaa Badu. That Yaa Badu’s son Kofi Buor
shall not succeed any property of mine whatsoever.”
As a result of the informal distribution of the estate of Opanin
Kwame Asiama by the executor Kwaku Buor, Yaa Bedwa became
the life tenant and Kwasi Obinim the remainderman, and together
entitled to the house and plot No BA 142, Bantama, Kumasi. In these
capacities they secured a loan of ¢1,420 from one Opanin Kwaku
Dwamena upon the security of the property. The document
evidencing this loan agreement is dated 31 May 1967.
However, it appears that in accordance with custom, Kwaku
Addai, the 1st defendant in this case, was appointed successor to the
testator and assumed the name of Asiama Ababio II of Tanoso.
SC Mmra v Donkor (Hayfron-Benjamin JSC) 1641

Under this name he obtained letters of administration of the estate of

Opanin Kwame Asiama from the High Court, Kumasi. In evidence
before the Circuit Court, Kumasi on 10 June 1986 Kwaku Addai alias
Asiama Ababio II (1st defendant) stated thus: “I succeeded to my
uncle Kwame Asiama. When I succeeded him, all these properties
came into my possession.”
The surviving executor took no steps to obtain probate of the will,
It was later when Yaa Bedwa and Kwasi Obinim could not pay back
the loan from Opanin Kwaku Dwamena that, upon their decision to
sell the property to their creditor, they realised that there was no
probate. When the parties consulted their solicitors about the
possibility of effecting a valid transfer of the property, they showed
both the will and letters of administration to them. According to the
parties, the solicitors advised them to ignore the will and rather rely
on the letters of administration. Thus assured, an assignment dated
22 January 1970 was executed wherein Asiama Ababio II, the 1st
defendant alias Kwaku Addai, as successor and administrator
assigned the right, title and interest in the property of the late
Kwame Asiama to Kwaku Dwamena for a consideration of ¢3,000.
It must be stated at this stage that the loan agreement dated the 31
May 1967 discloses so much material relevant to some of the matters
of law raised in this appeal that reference must be made to three
clauses namely (b) (c) and (d):
“(b) That the creditor shall in pursuance of this agreement collect
and receive from the said premises the monthly rent of twelve
rooms as part payment of the said debt of N¢1,420 until the same
is liquidated, commencing from the date of the execution of this
agreement: provided that the principal debtor and the head of
family/surety shall reserve to themselves jointly and severally the
right to pay to the said creditor the balance which may be due and
owing on the said debt after a period of two (2) years from the date
hereof and upon the exercise of this right hereby reserved by the
debtor and security of this loan transaction shall cease and the
right vested in the creditor to collect the house rents shall also
become determined.
(c) The creditor has agreed with the other parties herein the
occupation of one (1) room in the said house by the principal
debtor free of rent during the continuance of this agreement.
(d) The payment of the annual town rates, water rates and other
taxes in respect of the said premises shall be made by the creditor
herein without any reimbursement from the principal debtor and
the head of family/surety during the continuance of this
agreement.”
The present appeal arises because Madam Yaa Donkor as plaintiff,
who in this appeal shall hereafter be referred to as the respondent,
claiming to be a member of Kwame Asiama’s maternal family and
by her own showing a grandniece of the late Kwame Asiama, on the
death of her aunt Yaa Badu assumed that the house No BA 142,
Bantama, Kumasi had became family property. The respondent
contends that after the death of Yaa Badu she was told that house No
1642 Ghana Bar Reports [1992-93] GBR

BA 142 had been sold to one Dwamena (Gyamera) the brother of the
2nd defendant, who is the appellant before us and shall hereafter be
referred to as such.
The appellant’s contention before the trial circuit court was that
there was a valid assignment of the property to her brother
Dwamena whom she succeeded, by Asiama Ababio II the holder of
letters of administration of the estate of Kwame Asiama, the original
owner of house No BA 142, Bantama, Kumasi. Further, and by way
of counterclaim, the appellant claimed:
(a) A declaration that her predecessor, Kwaku Asiama, bought
the house as a bona fide purchaser of a legal estate for value
without notice of any equitable interest.
(b) A declaration that she is in lawful occupation of the said
house.
(c) Perpetual injunction restraining the plaintiff’s from so
interfering with her occupation.
Upon issues being joined evidence was led by all parties and the
learned circuit judge delivered his judgment and gave full reasons
for coming to the conclusion that the respondent was entitled to the
reliefs she prayed for and dismissed the appellant’s counterclaim.
Unfortunately the learned circuit judge did not direct his mind to the
many legal issues raised by the evidence which had been led before
him.
From the record of appeal, it appears that before Their Lordships
in the Court of Appeal, the appellant’s counsel got short shrift.
Counsel for the appellant, not making any headway before Their
Lordships of the Court of Appeal concluded his argument,
whereupon Their Lordships did not call upon the respondent and
dismissed the appeal to the effect that “there is no merit in this
appeal, which is accordingly dismissed.” It is from this summary
dismissal of the appellant’s appeal that, upon leave granted by this
court, this appeal comes before us.
I have gone to some length to set out the facts giving rise to the
appeal before us because I am satisfied upon reading the record that
there are many interesting points of law raised by the appeal which
merit our consideration. It must however, be mentioned in passing
that the 1st defendant, Kwaku Addai alias Asiama Ababio II, has not
appealed from the decision of the circuit court and is therefore not a
party to this appeal.
Both the appellant and the respondent have, pursuant to the rules
of this court, filed their statements of case, more properly called
briefs, in which they have raised several matters of law for our
consideration. For the sake of brevity I will sum them up as follows:
For the appellant the contentions are that:
(i) the action was statute barred by reason of the Limitation
Decree;
(ii) the trial court had no jurisdiction to try the case;
SC Mmra v Donkor (Hayfron-Benjamin JSC) 1643

(iii) the wrong admission of an unprobated will of the late

Kwame Asiama as the basis of the judgment of the circuit court;
(iv) lack of capacity or locus standi of the respondent to institute
the action;
(v) error in holding that Yaa Bedwa and Kwasi Obinim had no
right or capacity to convey the beneficial interest in the house in
dispute;
(vi) the appellant’s predecessor was a bona fide purchaser for
value without notice of any equitable interest.
For the respondent, counsel’s brief contends that:
(a) she had capacity or locus standi;
(b) the circuit court had jurisdiction to try the case;
(c) the suit was not barred by the Limitations Decree;
(d) the will was properly admitted in evidence even without the
benefit of probate;
(e) the will by reason of the acquiescence of the beneficiaries in
the distribution prevails over the letters of administration whether
the same was registered or not;
(f) the appellant ‘s predecessor was not a bona fide purchaser for
value without notice of the will.
Of the matters raised on the briefs three are in reality objections in
limine, that is to say if any or all are determined in the appellant’s
favour, then this court need not proceed to consider the other legal
matters canvassed on the briefs. Therefore, even though they have
not been set down in proper order I will deal with them in the
manner, which I believe will conduce to coherency in this judgment.
The appellant contends that the circuit court had no jurisdiction to
entertain the suit, as the value of the land was more than the
¢100,000 limit imposed by law. The appellant concedes that this
point of jurisdiction was not raised in the court below, but that it is
now trite learning that the issue of jurisdiction can be raised at any
level of the hierarchy of our courts. The appellant is right. The
appellant’s complaint is that by reason of certain answers elicited
from the respondent in cross-examination, the circuit court should
have been put on enquiry as to whether it had jurisdiction to hear
and determine the case. The relevant questions and answers are as
follows:
“Q The house is very small?
A It is a complete house.
Q If you sell it, you can’t get ¢500,000?
A We can get.”
In support of this contention counsel for the appellant sought
support from the Courts (Amendment) Law 1983 (PNDCL 47) which
1644 Ghana Bar Reports [1992-93] GBR

constituted a new paragraph for the old paragraphs (a)(i) and (iii) of
subsection (i) of section 32 of the principal Act, the Courts Act 1971.
The new paragraph therefore reads:
“(iii) in all causes and matters involving the ownership,
possession, occupation of or title to land where the value of the
land does not exceed ¢100,000.”
To these submissions counsel for the respondent replied by relying
first on section 32 subsection (3) of the Court Act 1971 which runs as:
“Where the amount claimed or the value of any land or property
exceeds the amount or value specified in subsection (1) of this
section, the Court shall, notwithstanding that subsection, proceed
to hear the case if the parties agree that it should do so.”
Counsel submits that on the authority of the above-cited
subsection the issue of the value not having been raised anywhere
else in the proceedings there was jurisdiction in the circuit court to
hear the case.
Counsel for the respondent further relies on subsection (2) of
section 32 of the Courts Act 1971, which also runs as follows:
“Where there is a dispute as to whether or not any amount
claimed or the value of any land or property in any action, cause
or matter is in excess of the amount or value specified in
subsection (1) of this section in relation to that action, cause or
matter, the Circuit Court in question shall call evidence as to the
said amount or value and if it finds that it exceeds the amount or
value specified in subsection (1) it shall transfer the case to the
High Court.”
Counsel for the respondent submits that with respect to this
subsection the defendant in the case must raise some objection either
at the time of appearance or by his pleading or otherwise as to the
value and so raise a “dispute” which the circuit court would then be
duty bound to hear evidence thereon with a view to resolving the
same.
The appellant’s counsel contends that the evidence reproduced
above in this judgment should have inclined the circuit judge either
to enquire into the issue of jurisdiction or seek, in his view “the
written consent from the parties before continuing with the matter.”
Counsel relies on Ababio II v Akro & Co [1963] 1 GLR 195, SC.
That case turned inter alia on the interpretation of section 5(2) of
the Forests Ordinance (Cap 157) which provided that where the
Reserve Settlement Commissioner had begun an enquiry but had not
completed the enquiry under section 9 of that Ordinance “the person
appointed to act on his behalf or in succession to him shall not be
obliged to begin the enquiry de novo but may, if he so thinks fit and
with the consent of all the parties thereto, continue and complete the
enquiry so begun but not completed.” (Emphasis mine.)
Counsel implies that since the word “consent” is synonymous
with the word “agree”, the expression “if the parties agree”
occurring in section 32(3) of the Courts Act 1971, should be
interpreted as in holding (i) of Ababio II v Akro & Co, that is to say,
SC Mmra v Donkor (Hayfron-Benjamin JSC) 1645

the agreement “should be express, precise and unambiguous. It must

not be presumed.”
I must say here that I do not find anything or words in the Ababio
II case, which even remotely supports counsel’s contention that such
consent or agreement must be in writing. The holding (i) in Ababio II
v Akro & Co is in my view a correct statement of the law. But in
respect of the Courts Act 1971, the expression “if the parties agree” is
predicated on the existence of certain situations. Thus, before the
parties can be called upon by the court to “agree” to vest the court
with jurisdiction, it must either be clear on the face of the writ of
summons that the property or land claimed is valued in excess of the
jurisdiction conferred on the circuit court or in their pleadings both
or all parties agree that the value of the land is in excess of that
conferred on the circuit court. In either of these instances the circuit
court is then by law required to seek the agreement of the parties to
hear the case and failing such agreement to dismiss the case.
On the other hand, section 32(2) of the Courts Act 1971
contemplates the situation where objection is taken to jurisdiction in
limine or the value of the land being in excess of the jurisdiction of
the circuit court is raised on the pleadings and made an issue for
trial. Then a “dispute” arises and the duty of the circuit court is then
to hear evidence and if the value exceeds the jurisdiction of the
circuit court, transfer the case to the High Court and if not to proceed
to hear and determine the case.
The evidence upon which the appellant invites this court to oust
the jurisdiction of the circuit court is in my view, equivocal. The
principal question put by the appellant’s counsel to the respondent
was: “If you sell it, you can’t get ¢500,000.” Clearly if it was known
to the appellant that the building was worth ¢500,000 then it could
be worth anything less. The appellant’s counsel had in the
immediately preceding question described the house as “very
small.” In the circumstances I hold that the Circuit Court, Kumasi
had jurisdiction to hear the case.
Next, the appellant takes issue with the respondent on her capacity
to commence the action or her locus standi. I confess I do not fully
understand the arguments advanced by the appellant in support of
this ground. The respondent as plaintiff in the circuit court described
herself in the title of her writ as suing “for herself and members her
family.” It is interesting to note that in the statement of claim and the
amended writ of summons the respondent made no other reference
to her capacity other than in the title to the writ of summons as
amended. The appellant as 2nd defendant and the 1st defendant also
did not in their respective statements of defence and the 2nd
defendants (appellant’s) amended statement of defence allude to any
want of capacity in the respondent. However, the fourth issue in the
summons for directions agreed for trial was “whether or not the
plaintiff (respondent) has capacity to sue.”
On the record the respondent, plaintiff in the circuit court, gave
uncontroverted evidence that she had the authority of the members
of her family “to take this action against the defendants.” Under
cross-examination she gave the following answer:
1646 Ghana Bar Reports [1992-93] GBR

“Q When you say you are suing for yourself and members of
your family what do you mean?
A My uncle 1st defendant should have sued for the property,
but because the house was sold by 1st defendant, I have
sued.”
The respondent by this answer brought herself fully and squarely
within the ambit of one of the exceptions in Kwan v Nyieni [1959]
GLR 67. I have no doubt in my mind that the respondent had
capacity to sue. Whether armed with that kind of capacity the
respondent could successfully pursue her claims remains to be
discussed.
My difficulty in appreciating the arguments of the appellant with
respect to this ground of appeal stems from a confusion of thought
on the part of both parties to this appeal as to the real issues in
controversy and the laws which are applicable to them. The
appellant and the respondent seemed to think that the pith of the
litigation was paragraph 7 of the unprobated will of the late Kwame
Asiama, which I have reproduced above, and the interpretation
placed on the expression “surviving children” used in that
paragraph by the learned circuit judge in his judgment. The
appellant contends that by so interpreting those words as including
the “descendants” of Kwame Asiama, the learned circuit judge “was
thus enabled to clothe the plaintiff-respondent with locus standi, for
the plaintiff-respondent was a great-grandchild of the late Yaa
Bedu.” The appellant contends that this finding is wrong and that
the respondent could not by reason of this finding have the capacity
to maintain the claims.
The respondent on the other hand is in agreement with the learned
circuit judge when he stated in his judgment “the plaintiff herein is
the daughter of Asamoah. Now, the words “surviving children of
the late Yaa Badu” stated in paragraph 7 of the will, are not difficult
to interpret. In my humble view, simply mean ‘children emanating
from the womb of Yaa Badu.’ That is to say simply descendants of
Yaa Badu.”
In support of this interpretation placed on the clause in paragraph
7 of the will of Kwame Asiama the respondent’s counsel relies on
Mensah v Lartey [1963] 2 GLR 92 for the proposition that paragraph 7
of the will of Kwame Asiama created a “family” for the enjoyment of
the property so devised under the will. Counsel for the respondent
contends that by reason of the respondent’s inclusion in the
membership of this “special family” the respondent has capacity.
Now I have carefully read Mensah v Lartey and I am of the view
that it is a very doubtful authority. Akufo-Addo JSC who read the
judgment in which Adumua-Bossman and Blay JJSC concurred
began by reviewing the evidence at page 93 of the report in the
following manner.
“The said Robert Tetteh was the owner of a piece of land with a
building thereon situate at Osu.
In 1919 he conveyed property by a deed to three of his children
namely, Edward Daniel Lartey (hereinafter called Edward), Jacob
George Laud Lartey (hereinafter called Jacob) and Emmanuel
SC Mmra v Donkor (Hayfron-Benjamin JSC) 1647

Tetteh Lartey (hereinafter called Emmanuel) by way of absolute

gift to be held by them in trust for themselves and their brothers
and sisters. The three children aforesaid were respectively children
of the three wives and each of them was the eldest of his mother’s
children.” (Emphasis mine.)
I cannot comprehend that there is anything deducible from the
brief facts of the case stated here that Robert Tetteh intended that
customary law should apply to the interpretation of a deed in
English from, in which he sought to create a trust in favour of his
children. In Mensah v Lartey, Their Lordships did not rely on
authority or learned treatise for the proposition that customary law
allowed the constitution of such a “family” “for the purpose of
holding and enjoying the said property in perpetuity.” I cannot
imagine that customary law, whether matrilineal or patrilineal,
would permit the constitution of an amorphous group of people as a
family for the enjoyment of any interest in perpetuity. In my view
family at customary law connotes ethnicity, kinship, consanguinity
and succession. Mensah v Lartey can therefore be no ground for
saying that the respondent had capacity.
However, on a true construction of paragraph 7 of the will, it will
be seen that what the testator has done is to create a class gift. In Dr
Cheshire’s learned treatise The Modern Law of Real Property (9th ed)
the learned author defines a class gift as “a limitation to an uncertain
number of persons who answer to a general description and who are
to take one indivisible subject-matter in proportionate shares. These
shares will depend upon the number of persons who ultimately
satisfy the description.”
It is not my desire in this judgment and in connection with the
principles of class gifts to discuss either the rules against perpetuities
or the class-closing rules formulated by the courts for the purposes
of ascertaining the class of persons entitled to the ultimate beneficial
interest. It will suffice to say that the object of the class-closing rule is
to promote the early vesting of the property by limiting the degree of
the beneficiaries entitled to the ultimate enjoyment. Dr Cheshire
writes that: “the words of the gift are not given their full and natural
meaning.” These class-closing rules apply to wills and settlements.
I cannot better conclude this part of my judgment than by setting
out in extenso one of the examples given by Dr Cheshire in his book
to which I have referred. Writes the learned author:
“where a testator makes a class gift to take effect in remainder
after a life interest, the class is artificially closed at the
determination of the life interest, if any members of the class are in
existence at that date. It cannot thereafter be increased. So, if a
testator leaves realty or personalty to X for life, remainder to the
children of Y any children of Y alive at the death of X, are entitled
to shares, but those born later will be excluded. On the other hand,
if no children having been born at X’s death, all those
subsequently born constitute the class.”
It is clear that the above example is on all fours with the contents
of the paragraph 7 of the will and the latter would be interpreted
1648 Ghana Bar Reports [1992-93] GBR

accordingly.
From the evidence on record, after the death of Yaa Badu the life
tenant, only Kwasi Obinim, the son of Yaa Badu was alive and he
therefore constituted that class which got the beneficial interest. The
respondent is therefore not a member of that class of persons entitled
to the beneficial enjoyment of the property, house No BA 142,
Bantama, Kumasi.
The respondent however, claims that house No BA 142 is family
property and that she has the authority of the family to institute the
claims. She cannot be denied her right to approach the court in this
capacity.
Third, the appellant contends that the respondent’s action was
statute barred by reason of the provisions of the Limitations Decree
1972 (NRCD 54). The appellant refers in particular to section 10(1),
(2) and (6) of the Decree and says that as the meaning of these
sections is clear, no question of construction arises. The only
question which arises is whether those sections are applicable to the
facts of this case.
The sections under reference run thus:
“10(1) No action shall be brought to recover any land after the
expiration of twelve years from the date on which the right of
action accrued to the person bringing it or, if it first accrued to
some person through whom he claims, to that person.
(2) No right of action to recover land shall be deemed to accrue
unless the land is in the possession of some person in whose
favour a period of limitation can run (in this section referred to as
“adverse possession”).
(6) On the expiration of the period fixed by this Decree for any
person to bring an action to recover land, the title of that person to
the land shall be extinguished.”
The appellant contends that the present action was commenced
some fifteen years after the sale of the house to her predecessor,
Kwame Dwamena and therefore since the Decree provides for a
twelve year limit, the action was statue-barred. The respondent in
reply to this ground maintains that the property is family property.
Inferentially the respondent contends that being family property the
Limitation Decree should not apply to an action by a family member
to recover the property. In short the family must only act timeously.
With respect to the applicability of the Limitation Decree the
respondent agreed with the circuit judge that time only began to run
the year before she instituted the action and therefore she was not
caught by the provisions of the Decree.
It is my respectful view that both parties and, indeed the learned
circuit judge misconceived the law on this all-important subject. The
operative expression in section 10 of the Limitation Decree is
“adverse possession.” If a party is not in adverse possession then
time can never run against the true owner. Who then is a person in
adverse possession?
I would like to return to Dr Cheshire’s book to which I have
already referred. At page 787 thereof, his footnotes discuss “adverse
SC Mmra v Donkor (Hayfron-Benjamin JSC) 1649

possession” within the meaning of section 10(1) of the English

Limitation Act 1939 and concludes:
“…[so] ‘adverse possession’ is now a useful expression to
describe the possession of those against whom a right of action has
accrued to the owner.”
In my view a person is said to be in adverse possession if he is in
possession of or deals with another’s property without his
knowledge or consent but in such circumstances that if the owner of
the property was ordinarily diligent, he would have discovered the
interference with his property.
In the present appeal even though it is the appellant who as the
defendant in the circuit court is putting up the defence of the
Limitation Decree, I find that it is unnecessary that she should do so.
The appellant’s predecessor was in possession as a mortgagee and
this mortgage blossomed into the assignment of the title to him. The
assignment having been registered the appellant’s predecessor
obtained the legal title. The difficulty of the appellant with the
ground of appeal stems from the erroneous impression gained from
the pleadings and evidence that since Yaa Bedwa and Kwesi Obinim
originally pledged or mortgaged the property to Dwamena, it was
they who persuaded the 1st defendant, Kwaku Addai alias Asiama
Ababio II to assign the property to Dwamena. The document
assigning the house to Dwamena shows quite clearly that it was
Kwaku Addai, the 1st defendant who as the successor and
administrator of the estate of Kwame Asiama assigned the house No
BA 142, Bantama, Kumasi, to Dwamena. This assignment introduces
a new factor into the equation which will hereinafter be discussed.

The appellant raises the issue of a bona fide purchaser and

contends that her late brother, Dwamena, was a bona fide purchaser
for value without any notice of the plaintiff-respondent’s claim.
Counsel for the appellant contends that in so far as the learned
circuit judge found that Dwamena was not a bona fide purchaser for
value, he fell into error. Counsel submitted that there was no
evidence on record to show that Dwamena knew of the contents of
the will. The evidence of Kofi Buor showed that before the sale, 1st
defendant (Kwaku Addai, the holder of the letters of administration)
had registered the letters of administration; that the lawyer ignored
the existence of the will because the lawyer knew there were letters
of administration in existence; that there is evidence that the will had
been read by the lawyer to Dwamena; that the trial circuit judge had
imputed knowledge of the contents of a legal document to an
illiterate man, such as Dwamena, when the contents had not been
read over, explained and interpreted to him. Counsel therefore
submitted that the appellant’s evidence demonstrated that her
predecessor Dwamena, came within the ambit of the doctrine of a
bona fide purchaser for value without notice of the respondent’s
interest. Counsel relied on Ussher v Darko [1977] 1 GLR 476, CA.
With respect to counsel, I do not think Ussher v Darko is relevant to
the arguments which he had advanced. The respondent has nothing
to say in reply except to contend that in the light of the existence of a
1650 Ghana Bar Reports [1992-93] GBR

will, the letters of administration granted to the 1st defendant,

Kwaku Addai, were null and void. In counsel’s view if the letters of
administration were null and void, then the assignment made under
the authority of the void letters of administration, even if registered,
was void. Consequently Dwamena acquired no title and therefore
could not be said to be a bona fide purchaser for value of any
equitable interest.
On this matter the learned circuit judge in his judgment stated
thus:
“The main point raised by the 2nd defendant was that Gyamena
was a bona fide purchaser of the legal estate for value without
notice of any equitable interest. Now, Bedwa’s children Krah
(DW1) and Buor (DW2) told this court that Gyamena himself
accompanied them to the Lands Department where they met
lawyer Ansong and they showed the will to him. That, they again
showed the will to the lawyer before the lawyer prepared the deed
of assignment exhibit A for them to sign. The lawyer thus acted on
the instructions of the vendor and the purchaser thus knew of the
effect of paragraph 7 of the will. Gyamena was therefore affixed
with notice of the plaintiff’s equitable interest in the property. The
2nd defendant herein (predecessor (sic) of Gyamena) cannot
therefore now be heard to say that Gyamena had no notice of the
plaintiff’s equitable interest in the house.”
I think both parties and the learned circuit judge, misconceived the
law. If I understand the doctrine correctly, it refers to a person who
in good faith, honestly, without fraud, collusion or participation in
wrong doing gives valuable consideration that is to say money,
money’s worth in the cognition of a legal estate without notice,
actual, constructive or imputed of an equitable interest.
I need not in this judgment explain the types of notice to which I
have referred. But it is clear that both the respondent and the learned
circuit judge rely on “imputed” notice to defeat the appellant. They
say that there is uncontroverted evidence that at all stages in the
transaction leading to the execution of the assignment by Kwaku
Addai to Dwamena, the lawyer was shown the will and therefore
notice to the lawyer is notice to his client. This no doubt is the correct
view of the law. When a purchaser engages an agent, such as a
solicitor or some such professional person, any actual or constructive
notice which such agent receives will be imputed to the purchaser.
In this appeal the evidence shows that Dwamena purchased the
property from Kwaku Addai (1st defendant) in his capacity as the
administrator of the estate of Kwame Asiama. Kwaku Addai by
virtue of the letters of administration had the whole of the interest of
Kwame Asiama in the property vested in him. It is said that Yaa
Bedwa, the life tenant was alive and that she was entitled to the
protection of her equitable interest in the property. I will say, as will
soon be demonstrated, that an administrator disposing of property
under the authority of letters of administration is not bound by any
interest equitable or otherwise affecting the property. In any case the
respondent had no equitable interest either by herself or derivative
in the property against which it was open to the respondent to plead
SC Mmra v Donkor (Hayfron-Benjamin JSC) 1651

that she was a bona fide purchaser. The respondent commenced this
action for herself and as representing the other members of her
family for a declaration that house No BA 142, Bantama, Kumasi is
family property. I understand the law to be that when a party claims
that property is family property, that party claims the whole of the
interest in the property. The basis of such a claim is either that the
transaction is void on account of want of consent by the head and
principal members of the family or voidable on account of some
defect in the quality or character of the grantors. The doctrine of a
bona fide purchaser for value does not arise.
In this appeal the appellant has raised this doctrine of bona fide
purchaser for value as the main plank of her counterclaim. A
counterclaim is a cross-action and a counterclaiming defendant
stands in the position of a plaintiff with respect to the counterclaim.
The doctrine of a bona fide purchaser is, however, an affirmative
defence, that is to say, it is a defence in which the defendant resists
the claim of the plaintiff by demonstrating his bona fides and
proving want of notice of an equitable interest. The appellant has not
so pleaded in her defence. In my view the doctrine does not apply in
this appeal.
However, in the interest of justice, I will not dismiss this relief of
her counterclaim. I think that this is a proper case in which an
amendment of the counterclaim will enable the court to effectively
determine the real issues in controversy between the parties. In the
short but instructive judgment of Coussey JA in England v Palmer
(1955) 14 WACA 659, the learned judge expressed himself that upon
the authorities it was right on appeal for the appellate court to effect
an amendment for the sake using the evidence on record to settle the
real controversy between the parties.
On the record the appellant has firmly relied on the purchase of
the house by Dwamena as her defence. The evidence shows that
Dwamena was in possession of the property in his lifetime and
exercised acts of ownership over the property. See clauses (b)(c) and
(d) of the mortgage or pledge document reproduced above in this
judgment. I will therefore amend relief (a) of the counterclaim to
read “(a) a declaration that her predecessor Kwaku Dwamena was
entitled to the ownership and possession of house No BA 142
Bantama, Kumasi.”
Finally, the appellant urges upon this court the ground that the
circuit court ought not to have admitted in evidence the unprobated
will of Kwame Asiama. Appellant contends that by admitting the
will in evidence, the learned circuit judge had been enabled to place
an interpretation on paragraph 7 of the will, that Kwaku Addai had
no capacity to effect the assignment to Dwamena. Counsel submits
that the unprobated will of Kwame Asiama passed nothing to the
beneficiaries. According to counsel it was only after the grant of
probate that the provisions of the will could be carried out. Counsel
further submitted that in the absence of probate only the holder of
the letters of administration of the estate of Kwame Asiama could
validly assign the property in dispute. Kwaku Addai therefore had
the requisite legal capacity to effect the assignment at the material
time by virtue of the registered letters of administration that had
1652 Ghana Bar Reports [1992-93] GBR

been granted to him by the High Court in respect of the properties of

the late Kwame Asiama.
Respondent’s counsel in reply submits that the unprobated will
was properly admitted in evidence; that the admissibility of the will
in evidence did not depend on probate; that the admissibility of a
will depends on the statutorily required evidence of attesting
witnesses to due execution; that in any case the properties had been
distributed in terms of the will to the satisfaction of all beneficiaries.
Further, the respondent counsel submits that appellant’s
submission that the letters of administration of Kwame Asiama’s
estate prevails over the unprobated will is untenable. In the view of
the respondent’s counsel the moment the will was produced the
letters of administration automatically ceased to have any effect and
became void. Kwaku Addai in possession of what was after all void
letters of administration could not pass title to Dwamena.
There is no quarrel with the validity of the will. On examination I
find that it was duly executed according to the intendment of the
applicable statute, the English Wills Act 1837. In my view, the will
was properly admitted in evidence. The learned circuit judge in his
ruling on the objection which he made on 10 June 1986 gave as his
reasons for admitting the will “for what it is worth” the reasons that
there had been no challenge as to the genuineness of will; that all
members had accepted the contents of will and taken the bounty
which the testator had bestowed upon them.
In my respectful view the tests for determining the admissibility of
a will in evidence are that the document is the solemn unilateral act
of the testator, intended to take effect after his death and that the
document was ex facie executed in accordance with the intendment
of statute, in this appeal the English Wills Act 1837.
The appellant’s objection however, is that since there was no
probate the will could not be admitted in evidence. A will does not
depend for its validity upon the obtaining of probate. Probate is
evidence of an executor’s title and of the validity and contents of a
will. In fact, many acts and steps can be taken in respect of an
unprobated will. However, probate is necessary for vesting titles in
devises or for executors to conclude litigation commenced by them
without probate. See Meyappa Chetty v Supramanian Chetty [1916] 1
AC 603 at 608.
While dealing with the will of Kwame Asiama, I note that
respondent’s counsel has raised the objection that while it is
conceded that the will is valid, nevertheless Kwasi Obinim, the
remainderman is not entitled to the remainder given to him under
the will of his cousin, Kwame Asiama, because he attested the will as
a witness. In support of counsel’s submission he referred the court to
section 15 of the Wills Act 1837.
Section 15 of the Wills Act 1837 provides that if any person attests
a will to whom or whose spouse any beneficial interest whatsoever is
purported to be given, the attesting witness even though a good
witness, yet any gift in the will to him or to his spouse shall be void.
Examination of the will of Kwame Asiama dated the 19 December
1960 shows quite patently that Kwasi Obinim was an attesting
witness. By the clear provisions of section 15 of the Wills Act 1837 if
SC Mmra v Donkor (Hayfron-Benjamin JSC) 1653

any beneficial interest whatsoever was bestowed upon him, then

even though he was a good witness, yet the gift to him would be
void. It is not denied that Obinim was within the contemplation of
the testator of those to benefit from his estate. The gift to Kwasi
Obinim contained in the will of Kwame Asiama is void. This finding
would seem to determine this appeal in favour of the respondent.
But it cannot be so because the document by which Dwamena got
title to house No BA 142, Kumasi was not executed between Kwasi
Obinim and Dwamena. The document was in fact executed by
Kwaku Addai as personal representative (holding letters of
administration) in favour of Dwamena. It may be noted that Yaa
Bedwa and Kwasi Obinim were only witnesses to the transaction.
Whether or not the subscription of Yaa Bedwa and Kwasi Obinim to
the document assigning the property to Dwamena would constitute
them persons through whom the period of limitation could run
against their successor, the respondent, I am not prepared to express
any opinion now. But it will suffice to say that the execution of the
assignment by Kwaku Addai in favour of Dwamena is the new
factor in the equation which I will now discuss.
Learned counsel for the respondent, Mr Adumua-Bossman has
submitted that in so far as there was a will the letters of
administration obtained by Kwaku Addai were automatically null
and void and could not operate to enable Kwaku Addai to pass title
to Dwamena. Learned counsel is wrong. Section 97(1) of the
Administration of Estates Act 1961 (Act 63) provides as follows:
“All conveyance of any interest in movable or immovable
property made to a purchaser either before or after the
commencement of this Act by a person to whom probate or letters
of administration have been granted are valid, notwithstanding
any subsequent revocation or variation, either before or after the
commencement of this Act, of the probate or administration.”
The text writers explain that this section applies only to a
purchaser, the word purchaser including lessees, mortgagees or
other persons who in good faith acquire an interest in property for
valuable consideration. Thus, the presence of a valid unprobated will
will not affect dispositions made to purchasers by a person holding
letters of administration with respect to the same estate. All such acts
of the personal representative pursuant to the grant of the letters of
administration are valid and will not be affected by subsequent
revocation of the grant.
To buttress the authority of the personal representatives I refer to
sections 67 and 69 of the Administration of Estates Act 1961 (Act 63)
which read as follows:
“67 Where administration has been granted in respect of any
estate of a deceased person, no person shall have power to bring
any action or otherwise act as executor of the deceased person in
respect of the estate composed in or affected by the grant until the
grant has been recalled or revoked.
69 Every person to whom administration of the estate of a
deceased person is granted shall, subject to the limitations
1654 Ghana Bar Reports [1992-93] GBR

contained in the grant, have the same rights and liabilities and be
accountable in like manner as if he were the executor of the
deceased.”
These two sections clearly recognise the right of the personal
representative to administer the estate subject to any limitations
imposed by the courts when granting probate or letters of
administration or at any time thereafter. The grant of probate or
letters of administration is an order of the court. The court has the
power whenever it considers it fit to recall the probate or
administration and revoke or vary its terms. Therefore, so long as
such probate or administration remains unrecalled or unrevoked an
assignment made by a personal representative will not be
invalidated on the ground of want of jurisdiction, or want of
concurrence, consent, notice or service, whether the purchaser has
notice of any such want or not. Thus, in the English case of Hewson v
Shelley [1914] 2 Ch 13 an administratrix sold and conveyed certain
real estate of a person who had died intestate. Later, when a will was
discovered and the executors therein named obtained probate, the
executors disputed the title of the purchaser. The Court of Appeal in
England held that the administratrix could sell and convey the title
as she had done and the purchaser got a good title.
In this appeal it seems to me that the parties fought their battles on
the basis of the customary law and considered the operations of the
Wills Act 1837 and the Administration of Estates Act 1961 (Act 63) as
peripheral to their respective stands. The learned circuit judge fell
into the same error though he tried to grapple with one or two of the
issues raised in this appeal.
The real factor in the equation was whether the assignment made
by Kwaku Addai as the successor and personal representative in
favour of Dwamena was valid. The parties and the circuit judge
thought that Kwaku Addai was persuaded by Yaa Bedwa and Kwasi
Obinim to execute the transaction in favour of Dwamena. Kwaku
Addai also probably thought that he had been prevailed upon by
Yaa Bedwa and Kwasi Obinim to execute the assignment. But he was
emphatic about the reason which made him apply for the letters of
administration even though he knew there was a will. Said he in
evidence: “I took the letters of administration to control the
properties of the deceased”, meaning Kwame Asiama. Thus, armed
with the letters of administration he gave good title to Dwamena.
I therefore hold that Dwamena obtained a valid title to house No
BA 142, Bantama, Kumasi, which inures to the benefit of the
appellant, the successor to Dwamena. The appellant therefore
succeeds in her appeal. The judgments of the circuit court dated 17
November 1986 and of the Court of Appeal dated 4 November 1988
are hereby set aside. The appellant succeeds on her counterclaim, as
amended.
There will therefore be judgment for the appellant dismissing the
plaintiff-respondent’s claims. The appellant shall have judgment on
her counterclaim as amended. The appellant will have her costs in
this court, in the Court of Appeal and the circuit court.
ADADE JSC. I agree that the appeal succeeds and ought to be
SC Mmra v Donkor (Hayfron-Benjamin JSC) 1655

allowed. This appeal turns essentially on the construction of clause 7

of the will of the late Asiama (exhibit D). That construction will
determine:
(a) whether the plaintiff has capacity to institute this action;
(b) whether the sale transaction exhibit A dated 22/1/1970 can
be sustained or not.
The said clause 7 reads:
“7. I give all that my freehold house No BA 142 in the Bantama
District of Kumasi, to my niece Yaa Bedwa alone, that after her
death, the said premises should be succeeded by the surviving
children of my late Aunt Yaa Badu. That Yaa Badu’s son Kofi Buor
shall not succeed any property of mine whatsoever.”
The circuit court which tried the action in the first instance
construed “children” to mean “descendants”, in which case the
plaintiff will be fully covered, she descending directly and
matrilineally from Yaa Badu, through Akua Pima and Yaa Amoasah.
So also will the descendants of Yaa Badu surviving in 1979, after the
death of Yaa Bedwa, and there would be quite a few.
It must be observed, however, that when a person chooses a
particular language to express himself, he must be presumed to
mean what the words he has used normally mean in that language.
Here the testator decided to use the English language. From the
language of exhibit B more particularly the attestation clause, it
almost certainly appears that exhibit B was prepared by a lawyer,
who must be deemed to know the difference between children and
descendants. Besides, exhibit B explains that the testator:
“signed... with his mark and thumbprint ... after the same had
SC Mmra v Donkor (Adade JSC) 1657

been read over interpreted and explained to [him] in the Twi

language by N Samuel Ofori of Kumasi, when he appeared
perfectly to understand the same and approved by him in the
presence of [certain witnesses]...”
There is no evidence on record to show that this testimony is
incorrect. Accordingly children must be taken to mean what it means
in the English language viz “sons and daughters” of any person.
Therefore the “surviving children of Yaa Badu” in clause 7 simply
means the sons and daughters of Yaa Badu who might be alive on
the death of Yaa Bedwa. The plaintiff is not a daughter of Yaa Badu,
and it is not shown that any of the persons allegedly represented by
the plaintiff is a son or daughter of the said Yaa Badu. Accordingly,
neither the plaintiff nor any of those represented by her has any
interest in the subject of dispute to be able to prosecute a claim in
respect thereof. None has any locus standi. And as for the family
generally, it has no interest in the property: the house was self-
acquired by Asiama, who disposed of it under his will.
Clause 7 of exhibit B gave a life interest to Yaa Bedwa, with the
remainder of the estate to the surviving children of Yaa Badu. The
life estate together with the estate expectant upon it exhaust the
whole of the legal estate. Therefore, the persons who had these two
estates have, between them the totality of the legal estate. Yaa Badu
died before 1960, ie before exhibit B, having had four children, viz,
Kwaku Gyau, Kwame Appiah, Akua Dinah and Kwasi Obinim. By
1970, when exhibit A was executed, all the children of Yaa Badu had
died, with the exception of Kwasi Obinim. Between them therefore
Yaa Bedwa and Kwasi Obinim hold the full legal estate, Yaa Bedwa
the life tenancy, and Kwesi Obinim the future interest. They could,
acting in concert, dispose of the legal estate, which is precisely what
they did, viz exhibit A. Of course, they decided to act through
Kwaku Addai alias Asaima Ababio II, but that is neither here nor
there. Kwesi Obinim died a few months afterwards, predeceasing
Yaa Bedwa by as many as nine years.
It is conceded that an attesting witness cannot take any beneficial
interest under a will, unless, apart from him, there remained two or
more attesting witnesses. In that event, the gift to him will not lapse.
The will in this case, exhibit B, was attested by only two witnesses,
Obinim and Kwadjo Mfum. If Obinim is disqualified, there will be
only one witness to the will, as far as the gift to Obinim is concerned.
That part of the will, will therefore be invalid and the gift to Obinim
void. The general validity of the will, however, is not affected. For
the current statutory provision on this see the Wills Act 1971 (Act
360) s 3(4). Therefore, if it is conceded that having attested the will,
the beneficial future interest to Obinim lapsed, the effect will still be
the same: the plaintiff will have no locus standi. The lapsed devise
would fall into the residuary estate, to be enjoyed by the named
residuary devisees, Yaa Bedwa and Kwaku Addai and Asiama
Ababio II. The two of them could team up to dispose of the whole
estate - Yaa Bedwa’s life interest together with the future interest
belonging to both of them. From the circumstances surrounding the
sale to Gyamena, 2nd defendant’s predecessor, neither Yaa Bedwa
1658 Ghana Bar Reports [1992-93] GBR

nor Kwaku Addai could validly resile from the transaction, even
though Yaa Bedwa signed only as a witness. Both will be estopped
from denying the validity of the sale: and there is no third party with
interest in the property to mount an action to set aside the sale,
which stays valid.
Accordingly, I am of the opinion that the plaintiff has no locus
standi, so also are all the persons she purports to represent. The
action should have been dismissed by the trial court and the Court of
Appeal.
The learned circuit judge misappreciated the evidence and misled
himself on the law. Unfortunately, the Court of Appeal treated the
appeal in a cavalier manner, dismissing it off-hand, in only one
sentence: “There is no merit in this appeal which is accordingly
dismissed.” On the contrary, I think there is merit in the appeal. The
plaintiff and all those she represents have no locus standi.
Having come to this conclusion it is unnecessary to discuss any of
the other interesting matters raised in this appeal.
I will also allow the appeal, dismiss the plaintiff’s action, and enter
judgment for the appellant on her counterclaim.
WUAKU JSC. I also agree that the appeal be allowed. The plaintiff
based her claim on clause 7 of the will of the late Opanin Asiama
who died testate in 1962. The testator made a will in 1960 in respect
of which no probate was ever taken. The plaintiff-respondent, to
qualify as a beneficiary under clause 7 of the said will, must prove
that she is one of the surviving children of Madam Yaa Badu at the
death of the testator or the surviving child of the tenant for life
Madam Yaa Bedwa. That she failed to do.
‘Children’ in its primary meaning means descendants of the first
degree, not grandchildren. See The Construction of Deeds and Statutes
by O B Odgers 4th edition at page 164. My learned brothers, Adade,
Amua-Sekyi and Hayfron-Benjamin JJSC whose opinions I have read
beforehand have adequately dealt with the law involved and I do
not wish to add more than what I have stated. I therefore agree that
the appeal be allowed with costs in favour of the appellant.
AMUA-SEKYI JSC. I agree that the appeal be allowed. Even though
the appeal from the judgment of Piesare, circuit court judge, was
summarily dismissed by the Court of Appeal it seems to me that it
raises a number of issues of law which require the attention of this
court. The most important of these are:
(a) whether the plaintiff was a beneficiary under clause 7 of the
unproved will of Kwame Asiama;
SC Mmra v Donkor (Amua-Sekyi JSC) 1659

(b) whether a person duly appointed administrator of an estate

is debarred from carrying out his duties by reason of the existence
of an unproved will;
(c) whether the trial court had jurisdiction to entertain the suit:
and,
(d) whether the action was statute-barred.
The trial judge found for the plaintiff on the ground that the term
“surviving children” in clause 7 of the will meant all descendants of
Yaa Badu. Mr Adumua-Bossman agreed with the trial judge and
said that his view was supported by dicta in Mensah v Lartey [1963] 2
GLR 92, SC. However, a reading of the report shows that the deed of
gift in question therein was not tendered in evidence and that both
the trial court and the appellate court merely gave effect to an
arbitrator’s award that the father conveyed the property to his
children to be held by them as their ‘family’ property.
In spite of dicta to the contrary in Mensah v Lartey there is no
general rule that whenever a father devises property to some only of
his children it is for the benefit of all of his children. It is always a
matter of the construction of the deed or will whether the intention
of the donor or testator was that the property be held by the donees
absolutely or in trust for themselves and their brothers and sisters. In
Ali v Ali (1939) 5 WACA 94 the court found that the two properties
were each devised to the three children named as beneficial owners
But in Folawiyo v Folawiyo (1944) 10 WACA 259 it was held that two
of the properties were devised to nine named children as beneficial
owners while two others went to all of his children.
In the English language a child is a descendant in the first degree;
hence the use of the prefix “grand”, “great-grand” and ‘‘great-great-
grand” when referring to remote descendants. As a great-grand
child of Yaa Badu, the plaintiff is not among the class of persons who
benefit under clause 7 of the will.
The evidence in this case was that Obinim was the last surviving
child of Yaa Badu. Having predeceased Yaa Bedwa; the gift over to
the “surviving children” of Yaa Badu failed, and by section 25 of the
Wills Act 1837 the property would, on the death of Yaa Bedwa in
1978 revert to the testator as part of his residuary estate. Yaa Bedwa
and Kwaku Addai are the residuary devisees and legatees.
The executors of the will were Kwaku Buor and Kwabena Anane
of Tanoso. They did not obtain probate. It is said that Addai who
had been granted letters of administration distributed the properties
in accordance with the terms of the will and permitted Yaa Bedwa to
take over the dwelling house in Kumasi. It was in his capacity as an
administrator that, at the request of Yaa Bedwa and Obinim, he
executed the assignment in favour of Dwamena. The question is
whether he could lawfully do so.
The answer, which at one time depended on decided cases, is now
to be found in statute. In the cases, a distinction was drawn between
a void and a voidable grant. Thus, in Boxall v Boxall (1884) 27 Ch D
220 where a grant of administration was obtained by suppressing a
will not appointing executors a sale of leaseholds by the
1660 Ghana Bar Reports [1992-93] GBR

administrator was upheld: but in Graysbrook v Fox (1564) 1 Plowd

275, Abraham v Conyngham (1676) 2 Lev 182 and Ellis v Ellis [1905] 1
Ch 613 where a grant of administration was obtained by suppressing
a will appointing executors, the grant was held to be void ab initio
and any dealings by the administrator were void. Hewson v Shelley
[1914] 2 Ch 13 CA changed this. There was a widow who had been
granted letters of administration as if on intestacy conveyed part of
the estate of her deceased husband to a purchaser. A will appointing
executors was later found, and the executors, after obtaining a grant
of probate, sued the widow for recovery of the sold property. The
Court of Appeal, over-ruling Graysbrook v Fox, Abraham v Conyngham
and Ellis v Ellis held that the purchaser retained a good title.
The decision in Hewson v Shelley was given statutory effect in
section 37 of the English Administration of Estates Act 1925 which is
reproduced, word for word, in section 97 of our Administration of
Estates Act 1961 (Act 63). Read along with sections 61 and 67, which
are also borrowed from the English statute, the law on the matter
becomes as clear as crystal. Here are the provisions:
“61 A grant of probate is necessary to entitle an executor to
administer the property, whether movable or immovable, of the
testator. Before probate, the executor may, for the benefit of the
estate, exercise the functions which pertain to his office but he shall
not be entitled to make a disposition of any property.

67 Where administration has been granted in respect of any

estate of a deceased person, no person shall have power to bring
any action or otherwise act as executor of the deceased person in
respect of the estate comprised in or affected by the grant until the
grant has been recalled or revoked.
97(1) All conveyances of any interest in movable or immovable
property made to a purchaser either before or after the
commencement of this Act by a person to whom probate or letters
of administration have been granted are valid, notwithstanding
any subsequent revocation or variation, either before or after the
commencement of this Act, of the probate or administration.
(2) This section takes affect without prejudice to any order of
the court made before the commencement of this Act, and applies
whether the testator or intestate died before or after such
commencement.”
It seems strange that these statutory provisions were overlooked in
the courts below. Their effect is that the conveyance by Addai to
Dwamena, a purchaser, is valid, and will remain valid even if the
letters of administration are revoked.
At the time the plaintiff commenced her action the jurisdiction of
the circuit court to entertain land suits was governed by the Courts
Act, 1971 (Act 372) section 32, as amended by the Courts
(Amendment) Law 1983 (PNDCL 47). This required that the value of
the land shall not exceed ¢100,000. The issue of jurisdiction arose
during the course of the trial when counsel for the appellant put to
the respondent that the dwelling house in respect of which she had
SC Mmra v Donkor (Amua-Sekyi JSC) 1661

brought her action was “very small.” Her answer was that it was “a
complete house.” Counsel also put to the witness that the house
would not fetch ¢500,000 if sold, to which the respondent replied
“We can get.” The submission is that the evidence showed that the
value of the house was in excess of the jurisdiction of the trial circuit
court.
An objection to the jurisdiction of a court may be raised at any
time. It may be raised at the commencement of the trial as in Quist v
Kwantreng [1961] GLR 605; Zotorglo III v Gabienu & Akpakli [1962] 2
GLR 155, or after the close of the case for the defendant, as in Hausa v
Dawuda [1961] 2 GLR 550; or on a first appeal, as in Atoo v Town Clerk
of Sekondi-Takoradi [1961] GLR 413, SC; or a second or subsequent
appeal, as in Amoasi III v Twintoh, Supreme Court, 21 June 1988.
Thus, even though the first opportunity the appellant had of
objecting to the jurisdiction was at the time the evidence was led, he
is not precluded from doing so.
In the former local courts set up under the Courts Act 1960 (CA 9)
litigants used to indicate on their writ or in their counterclaim what
value they placed on the land. Where the value so indicated was
above the limit it was considered as prima facie ousting the
jurisdiction of the court, unless the parties expressly consented that
the case be proceeded with in the local court. In Ameko v Agbo [1961]
GLR 747, where such consent was not sought the judgment of the
trial local court was set aside an appeal. However, in Amankwa v
Akwawuah [1962] 1 GLR 324 Apaloo J held that although there was
no jurisdiction the judgment would not be set aside. This decision
must be regarded as having been given per incuriam in view of the
judgment of the West African Court of Appeal in Amoku v Duro
(1953) 14 WACA 257 where the circumstances were almost the same.
It is one thing for parties to litigation to indicate upon advice on
the writ, or in the counterclaim, how much the land was worth and
quite another to search through the evidence of the parties and their
witnesses to see if any one has given a figure above the jurisdiction
of the court. In this case, the evidence as to value came in the course
of the cross-examination of the respondent. It was argumentative in
character and in response to the contention of counsel that the house
in question was small and worth less than ¢500,000. One may fairly
suppose that if counsel had told the witness that the house would
not fetch ¢700,000 or over one million cedis, the answer would have
been “we can get.” Exhibit A shows that the predecessor of the
appellant bought this modest dwelling house for ¢3,000. I do not
believe that counsel took the respondent’s boast that it could fetch
¢500,000 seriously. If he had, objection to the exercise of jurisdiction
would have been taken there and then.
The sale of the premises took place in 1970. The action was
commenced in 1985. By section 10 of the Limitation Decree 1972
(NRCD 54) the plaintiff was required to bring her action within 12
years from the date her cause of action accrued. The answer of the
trial judge to the submission that the action was statute-barred was
that he was satisfied with the evidence of the respondent that she got
to know of the sale in 1985 and immediately issued her writ. The
Court of Appeal expressed no opinion on this or any other matter
1662 Ghana Bar Reports [1992-93] GBR

raised in the trial court. For my part, I wish to state that I do not
accept this rather subjective test of when a person’s right to sue
accrues. To adopt this test would make the limitation period
meaningless, extending in some cases to a period of fifty years. It
being clear that the plaintiff could not have sued to recover the
premises in the life-time of Yaa Bedwa the better view is that her
cause of action, if any, arose in 1978 when Yaa Bedwa died.
However, as I have demonstrated, she had none.
To conclude, even though I find that the trial judge had
jurisdiction to entertain the suit and the action was not statute-
barred, I am satisfied that the plaintiff, Yaa Donkor, was not a
beneficiary under the will of Asiama and that Addai, the
administrator of his estate, had full power and authority under the
law to execute an assignment in favour of Dwamena for valuable
consideration. In the result, I would also allow this appeal, set aside
the judgment of the circuit court and of the Court of Appeal and
dismiss the plaintiff’s action.
AIKINS JSC. I also agree that the appeal be allowed.
Appeal allowed.
S Kwami Tetteh, Legal Practititioner