BAKSMATY vs. BAKSMATY [1964]DLHC1873

Date	1964-01-31
Suit No.
Citation No.	[1964]DLHC1873

PREMPEH J.

P. A. ADJETEY FOR THE PLAINTIFF.

E. E. HAMMOND-LAING FOR THE DEFENDANT.

[1964]DLHC1873
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													<main id="main" class="content" style="min-height: 60rem" >BAKSMATY<o:p></o:p>&nbsp;vs. <o:p></o:p>BAKSMATY <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 56<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:
31 JANUARY 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

P. A. ADJETEY FOR THE PLAINTIFF.<o:p></o:p>

E. E. HAMMOND-LAING FOR THE DEFENDANT.<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 0in 0in">

PREMPEH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF PREMPEH J.<o:p></o:p>The
plaintiff is the brother of the late Sobhy Baksmaty who died in Accra on 19
April 1963 and the defendant is his widow by whom he had six children, five
girls and one boy. By another marriage the deceased had a daughter called Fatma
Salam, now living in the Lebanon, and she is a minor. The late Sobhy Baksmaty
died leaving many properties in Ghana, which are shown in the statement of
claim, and he left a will by which he appointed the defendant the sole
executrix, and in which he directed the manner in which his estate should be
distributed after his death. On 6 May 1963 the defendant applied for and was
granted probate by this court of the will of the late Sobhy Baksmaty, and upon
hearing this, the plaintiff instituted these proceedings against the defendant.<o:p></o:p><o:p>&nbsp;</o:p>By his
amended statement of claim, the plaintiff partly as elder brother and
next-of-kin of the late Sobhy Baksmaty, deceased, partly in his capacity as
guardian of the minor children of the defendant, and partly as attorney for
Mrs. Sobhiah Said Baksmaty of Heddabeen Quarter, Tripoli, who is the guardian
of Fatma Salam the other minor child of the deceased, applied against the
defendant for an order of the court for the revocation of probate granted to
the defendant of the said will on the following grounds: (a) that the will is a
forgery and that it was not in fact made or attested by the deceased; and (b)
in the alternative that the late Sobhy Baksmaty had no testamentary capacity
according to Mohammedan law—which is the law of his domicile—to make the said
will, and that the said will is therefore invalid.<o:p></o:p>Apart
from the original defence filed, the defendant filed an additional statement of
defence by way of answer to the plaintiff’s amended statement of claim. In
these defences, the defendant denies that the will is a forgery. She contends
that the will is the true last will of the late Sobhy Baksmaty, and that he
properly executed the said will in the presence of witnesses. She contends
further that the deceased had testamentary capacity even according to
Mohammedan law to make his will, whatever his domicile. The defendant maintains
that although the plaintiff is brother of the deceased, yet he is not such a
next-of-kin who is or can be entitled to any interest in the deceased’s estate
and that therefore he cannot maintain an action against her in that capacity.
She further claims that she is the mother and natural guardian of her six
children, and denies any claim on the plaintiff’s part to be the guardian of
her children, and she claims generally that the plaintiff has no locus standi
in this action.<o:p></o:p><o:p>&nbsp;</o:p>The
original will of the deceased and the probate granted thereto were admitted in
evidence and marked respectively as exhibit A and exhibit 1. I think it is
essential at this stage to determine whether or not the plaintiff has all or
any of the capacities in bringing this action. Apart from the High Court
registrar whom the plaintiff called to produce the will, the only other
evidence which the plaintiff put forward in support of his case is that of
himself. The plaintiff admitted in evidence that in accordance with Mohammedan
law, since the deceased died leaving a son, he, the plaintiff cannot be
entitled to any interest whatsoever in the deceased’s estate.<o:p></o:p><o:p>&nbsp;</o:p>It has
been settled on the authorities that where probate has already been granted to
a will, a court will only entertain an action to revoke such probate and will
make such an order for revocation only at the instance of a person who is
entitled to succeed or inherit on an intestacy. So that since on his own
showing the plaintiff cannot be entitled to any share of the deceased’s estate
on an intestacy, the fact that he is a brother of the deceased is of no
consequence, and it is my view that on that score he has no maintainable right
of action against the defendant.<o:p></o:p><o:p>&nbsp;</o:p>Having
regard to the second capacity in which he sues, it is my view that the
plaintiff failed to establish how he could be the guardian of the defendant’s
children in the face of the defendant’s contention that she is the mother and
natural guardian of her children, and it is my view that on this score also he
has no locus standi in this action. Having regard however to the thi</main>