IN RE SACKITEY (DECD.); SACKITEY AND ANOTHER vs. DZAMIOJA [1988]DLCA765

Date	1988-07-14
Suit No.
Citation No.	[1988]DLCA765

FRANCOIS J.S.C.

OSEI-HWERE JA

AMPIAH J.A.

PETER ALA ADJETEY FOR THE APPELLANTS.

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENT

[1988]DLCA765
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													<main id="main" class="content" style="min-height: 60rem" >IN RE SACKITEY (DECD.); SACKITEY AND ANOTHER <o:p></o:p>vs. <o:p></o:p>DZAMIOJA <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 434<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE
14 JULY 1988<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">

PETER ALA ADJETEY FOR THE APPELLANTS. <o:p></o:p>

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENT<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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FRANCOIS J.S.C., OSEI-HWERE AND AMPIAH
J.J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>Joseph
Bismark Osei Sackitey died on 26 May 1979, testate. As scion of the great King
Sackitey of Odumase, he demonstrated an inherited incisiveness of character.
When he fell out with his family he settled at Koforidua where he made his
fortune. At his death two wills were discovered in his trunk. They bore the
dates 1957 and 1965. The latter being presumed to cancel the former, was
admitted to probate and letters with the will attached were granted to the testator’s
children in the High Court, Accra on 15 September 1980.<o:p></o:p><o:p>&nbsp;</o:p>As a
further demonstration of the resoluteness of the late Sackitey’s character, he
cut completely from his estate, leaving her not a pesewa, his wife whom he
suspected of infidelity. His magnanimous side was reflected in the distribution
of his estate to every deserving member of his family. It is with this backdrop
that the appearance of a third will must be considered. It is the focal point
of the present dispute. This will is impugned on several grounds.<o:p></o:p><o:p>&nbsp;</o:p>Factually
it materially changed some previous dispositions in his earlier will and made a
woman who was then ensconced in the testator’s home as his wife, the greatest
beneficiary. The testator had issues with her, but there is no real evidence
that their relationship had been sanctioned by church, State or the customary
law. There is, however, some veiled suggestion on the record that there might
have been some customary marriage. Probate was sought by one of the executors
of the 1975 will. It was granted by the High Court, Koforidua on 23 December
1980.<o:p></o:p><o:p>&nbsp;</o:p>This
probate is challenged as transgressing rules that forbid a new grant while a
previous grant subsists. More importantly, the will itself is challenged on
grounds of spuriousness. These two issues provide the contest between the
parties herein, the executor on the one side and the elder children of the
deceased on the other.<o:p></o:p><o:p>&nbsp;</o:p>Before
addressing these issues, a brief comment on the suit may not be out of place.
Only two results are possible in the resolution of this appeal. If the 1975
will is set aside, a woman who bore the deceased’s children and lived with him
towards the latter part of his life may not be provided for. If however the
1975 will is sustained, serious and glaring errors in the disposition of the
estate would be exposed.<o:p></o:p><o:p>&nbsp;</o:p>This
appeal consequently provokes some disquiet at the frequent resort to the legal
option where a family solution is open for a fair settlement. The facts
demonstrate clearly the benefits all the parties would derive if the family is
allowed to intervene in the overall promotion of amity and the avoidance of
scars that cannot be hidden and wounds that never heal, both perpetual sources
of irritation and disharmony in the family.<o:p></o:p><o:p>&nbsp;</o:p>The legal
machinery functions as a cold analytical mechanism yielding no place for
emotive considerations. Humanitarian expansiveness too readily becomes
subversive of the legal order. However in the intimate enclave of the family
unit, humanitarian issues can be aired and resolved, uninhibited by legal
rules. It is for this reason that the parties have been advised and are still
advised, despite this judgment which merely applies the law to the facts, to
keep the avenues for compromise and family intervention open. Turning then to the
two issues, namely (a) the viability of the grant of probate by the High Court,
Koforidua in 1980 and (b the essential </main>