AKENTEN II AND OTHERS vs. OSEI [1984]DLHC829

Date	1984-03-19
Suit No.
Citation No.	[1984]DLHC829

APALOO C.J.

DR. ARCHAMPONG FOR THE PLAINTIFFS.

ADADEVOH (WITH W. FUGAR) FOR THE DEFENDANT.

[1984]DLHC829
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AKENTEN II AND OTHERS <o:p></o:p>

{HIGH COURT, ACCRA} <o:p></o:p>

[1984-86] 2 GLR 437<o:p></o:p>

DATE:
19 MARCH 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

DR. ARCHAMPONG FOR THE PLAINTIFFS. <o:p></o:p>

ADADEVOH (WITH W. FUGAR) 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;
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APALOO C.J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>The late
Francis Kwasi Gyembibi was a talented and successful man of business. His home
was in Offinso, Ashanti, but he had wide business interests in Kumasi and
Accra. He died possessed of considerable property in these two cities. The
evidence suggests that he was an active man who was normally in good health. He
died suddenly on 16 August 1983, virtually within hours of being taken ill
while at work. Whether he had a premonition of how suddenly he would depart
this life, or not, it is difficult to say. But one thing seems clear. He was anxious
that if his end came, he should leave his testamentary wishes in a form laid
down by law. He had good reason—he managed to acquire a not inconsiderable bit
of worldly possessions.<o:p></o:p><o:p>&nbsp;</o:p>Both
parties to this suit, while in serious disagreement on other issues, are at
least agreed that Mr. Gyembibi (whom I should hereafter refer to as the
deceased) died testate. The plaintiffs say that on his death, his testamentary
wishes were expressed in a document dated 24 June 1981. They say that document was
executed and attested in the manner laid down by the law and they invite me to
pronounce upon it and admit it to probate. The defendant objects that that
document was a forgery—the signature appearing thereon not being that of the
deceased. He says that although the deceased died testate, his testamentary
wishes were expressed in a document dated 20 December 1978, and lodged in
custody of the High Court, Kumasi.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>It is
common learning in this branch of the law that a will is ambulatory; that it
speaks only from the time of death. The corollary of this, is that a testator
has every right to change his mind at any time before his death. If he does so,
and validly revokes an earlier will, then the former will is, for all practical
purposes, as dead as the testator himself. The plaintiffs’ position is that if
indeed the deceased made an earlier will, it was revoked by the later one made
in 1981. And it is this will that they propound.<o:p></o:p>Accordingly,
the issues which the parties settled and which they invite me to decide are:<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">(a) Whether the will deposited in
the Accra High Court Registry ... is genuine;<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">(b) Whether or not the signature
appearing on the said will is that of the late Francis Kwasi Gyembibi.<o:p></o:p><o:p>&nbsp;</o:p>As agreed
issues, they do not raise any complex matters. But in determining these, one
must look at the guidance laid down by case law as to what burdens the parties
carry and which particular burden is assumed by either of the parties. A local
case that seems to me to provide a most helpful guidance in this type of case,
is the 1951 decision of the West African Court of Appeal in Johnson v. Maja
(1951) 13 W.A.C.A. 290 at 292 where it is stated:<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">“Where
there is a dispute as to a will, those who propound it must clearly show by
evidence that, prima facie, all is in order; that is to say, that there has
been due execution, and that the testator had the necessary mental capacity,
and was a free agent. On</main>