IN RE ESSIEN ALIAS BAIDOO (DECD.); ESSIEN vs. ADISAH AND OTHERS [1987]DLCA761

Date	1987-11-26
Suit No.
Citation No.	[1987]DLCA761

ABBAN JA

WUAKU JA

AMPIAH J.A.

HAYFRON-BENJAMIN FOR THE APPELLANT.

A. MMIEH FOR THE RESPONDENTS.

[1987]DLCA761
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													<main id="main" class="content" style="min-height: 60rem" >IN RE ESSIEN ALIAS BAIDOO (DECD.); ESSIEN <o:p></o:p>vs. <o:p></o:p>ADISAH AND OTHERS <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 539<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
26 NOVEMBER 1987<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">

HAYFRON-BENJAMIN FOR THE APPELLANT. <o:p></o:p>

A. MMIEH FOR THE RESPONDENTS.<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">

ABBAN, WUAKU AND AMPIAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>The late
Francis Kojo Essien died on 7 December 1979. A document dated 3 January 1975
and believed to be his last will and testament was submitted to the High Court,
Kumasi for probate by one of the two named executors—the other executor having
predeceased the late Essien.<o:p></o:p><o:p>&nbsp;</o:p>A caveat
was filed against the grant of probate by one Madam Afua Addisah, Dr. Harry
Ansah and Abena Ansah. It therefore became necessary that the will should be
proved in solemn form. Consequently, the executor—Papa Kwanan—as plaintiff,
issued a writ of summons against the two caveatrices and the caveator as
defendants.<o:p></o:p>The claim
as indorsed on the writ of summons was as follows: “The plaintiff’s claim
against the defendants is for a declaration that the will of the late Francis
Kojo Essien alias Kojo Baidoo (deceased) is his true and last will.”<o:p></o:p><o:p>&nbsp;</o:p>In the
statement of claim, the plaintiff alleged, inter alia, that the document was
the will and the deed of the late Francis Kojo Essien and that the signature on
it was that of the testator who at the material time was “capable of signing
his name which he did.” The defence denied the claim. The case of the
defendants was that the late Essien long before his death and on the date on
which the alleged will was supposed to have been signed, was suffering from the
effects of strokes and was so ill that he was incapable of writing and could
not therefore have reasonably signed the said will. The defence further averred
that because the deceased was incapable of writing at the material time, very
important documents, such as his marriage certificate, which needed his
signature, had to be thumbprinted by him.<o:p></o:p><o:p>&nbsp;</o:p>The main
issue settled for trial was “Whether or not the will of the late Francis Kojo
Essien alias Kojo Baidoo dated 3 January 1975 is his true and last will.”<o:p></o:p>In his
judgment dated 11 March 1985 the learned High Court judge dismissing the
plaintiff ‘s claim held that “the signature appearing on exhibit A [the will]
was not made by” the late Essien. It is against this judgment that the
plaintiff (hereinafter referred to as the appellant) appealed.<o:p></o:p><o:p>&nbsp;</o:p>The
grounds of appeal filed were argued together. Learned counsel for the appellant
contended that the judgment was against the weight of the evidence. He argued
that since there was a signature on the face of the will there was a
presumption that it was made by the testator and the burden was on the
defendant-respondents to prove that at the relevant time the testator could not
write at all and was thumbprinting every document. Counsel submitted that the
evidential burden was not discharged by the defendant-respondents.<o:p></o:p><o:p>&nbsp;</o:p>It seems
to me that the argument of learned counsel for the appellant begs the question.
The crux of the matter was whether the will was signed by the testator, and if
so, whether it was properly executed by him in accordance with the provisions
of the Wills Act, 1971 (Act 360). In other words assuming for the purpose of
argument that the signature on the will was, in fact, made by the testator, as
learned counsel for the appellant contended, the question which called for
answer was whether he made that signature in the presence of the two attesting
witnesses or the testator acknowledged it in their presence. In my view, the
proof of the affirmative rather lies squarely on those who propound the will
and so the court could not presume that the will was signed in the presence of
</main>