AYENIM vs. POKU [1976]DLHC364

Date	1976-03-30
Suit No.
Citation No.	[1976]DLHC364

QUASHIE-SAM J.

J. MERCER FOR THE APPELLANT.

MISS LUCY BLAY FOR THE RESPONDENT.

[1976]DLHC364
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													<main id="main" class="content" style="min-height: 60rem" >AYENIM<o:p></o:p>&nbsp;vs. <o:p></o:p>POKU<o:p></o:p>&nbsp;[HIGH
COURT, SEKONDI]<o:p></o:p>[1976] 2 GLR 214<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
30 MARCH 1976.<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">

J. MERCER FOR THE APPELLANT.<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">

QUASHIE-SAM J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF QUASHIE-SAM J.<o:p></o:p>This is
an appeal by the defendant from the judgment of the District Court Grade II,
Tarkwa, dated 3 February 1975. The facts are quite simple and mostly not in
dispute. The plaintiff is the daughter of the late Kwasi Dormang of Huni
Valley. He died possessed of a farm and a house. This was conceded by the
defendant. It was the case of the plaintiff that her father died testate,
demising in his will: (1) his farm, and (2) his two bedrooms which he occupied
during his lifetime, to her and her two brothers, namely, Yaw Nkrumah and Kwame
Bedu; that her father died in 1972; that on the 40th day after her father’s
death she and her brother produced the will to the family but the family headed
by the defendant refused to accept it; that the defendant had driven her and
her labourers away from the farm given to her and her brothers under the will.
She tendered the alleged will as exhibit A and closed her case thereby.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant’s case was nothing different as to the facts. He is the brother of,
and successor to, the late Kwasi Dormang, the father of the plaintiff. His case
was that his late brother had already given a share of his cocoa farm to the
Plaintiff and her brothers. He admits the fact that on the 40th day after his
brother’s death, the plaintiff and her brothers produced a will allegedly made by
his late brother Kwasi Dormang, which he and the rest of the family objected to
and refused to accept on the ground that the family did not know of it and they
disbelieved its contents. He also does not dispute the plaintiff’s evidence
that he has taken possession of his late brother’s farm and house from the
plaintiff.<o:p></o:p>The
defendant’s case then was that he did not believe in the veracity or
genuineness of the alleged will. He called Kojo Amadu as a witness who
confessed that he did not know anything about the matter except that the
defendant told him that his niece had fought with the plaintiff as a result of
which the plaintiff had moved from the house which the plaintiff ‘s father gave
her, and pleaded with him to call the plaintiff for a settlement and for the
plaintiff to come back to live in that house, but the plaintiff refused to go
for any settlement except in her own home. This witness is the uncle of the
plaintiff. The defendant called another witness, Abena Sarfowah, who apparently
must be a member of the family of the plaintiff’s deceased father. She also
disputed the genuineness of the alleged will.<o:p></o:p><o:p>&nbsp;</o:p>The trial
magistrate found that exhibit A is in the form of a will and proceeded to give
the plaintiff judgment on it by way of giving effect to the contents thereof.<o:p></o:p>The
appeal is brought on the original grounds that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) The
judgment is against the weight of evidence. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) The
judgment is wrong in law in that the purported will on which the plaintiff
relied for her claim is no will at all and has no validity. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) The
properties mentioned in the said will are family properties and the father of
the plaintiff, Kwesi<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">Dormang,
had no right to devise same to his children.”<o:p></o:p><o:p>&nbsp;</o:p>