IN RE NKANSAH (DECD); NKANSAH ALIAS DAVID vs. OKYERE [1989]DLCA605

Date	1989-02-02
Suit No.
Citation No.	[1989]DLCA605

OSEI-HWERE J.A

LAMPTEY J.A

ESSIEM J.A.

I. QUANSAH FOR THE APPELLANT.

JAMES AHENKORAH FOR THE RESPONDENT.

[1989]DLCA605
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													<main id="main" class="content" style="min-height: 60rem" >IN RE NKANSAH (DECD); NKANSAH
ALIAS DAVID<o:p></o:p>&nbsp;vs. <o:p></o:p>OKYERE <o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 195<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:
2
FEBRUARY 1989<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">

I. QUANSAH FOR THE APPELLANT.<o:p></o:p>

JAMES AHENKORAH 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;
padding:0in 0in 0in 0in">

OSEI-HWERE, LAMPTEY AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>The
applicant-appellant applied to the High Court, Koforidua for letters of
administration with the will annexed, contending that the sole executor
appointed in the alleged will of the late Prophet James Kwame Nkansah had
indicated that he was not in a position to administer the estate of which he,
the applicant, is the sole beneficiary. The application was accompanied by the
applicant’s oath for administration with the will annexed sworn to the effect,
inter alia, that he will faithfully administer the personal property of the
testator and also that the whole of the said personal property does not exceed
in value the sum of ¢20 million. He also filed, under oath, a declaration of
the movable and immovable property of the testator which had since his death come
to his possession or knowledge as the sole beneficiary of his will. He declared
as follows: “The African Faith Tabernacle Church with its headquarters at
Anyinam valued at about . . . ¢10,000,000.”<o:p></o:p>Now the
habendum of the alleged will of the late Prophet James Kwame Nkansah runs as
follows:<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">“I give
and bequeath unto Chief Pastor Kwaku David of African Faith Tabernacle Church,
National Headquarters, Anyinam aforesaid: The African Faith Tabernacle Church
with its headquarters at Anyinam, aforesaid, and direct that his appointment as
national and international pastor and presiding elder of the African Faith
Tabernacle Church aforesaid, which appointment was contained in a document
executed by me which met the consent, concurrence and support of all leading
representatives of various congregations of the said African Faith Tabernacle
Church throughout the world and which document was dated 30 July 1985, shall
not be varied, disturbed, amended, or in any other way whatsoever interfered
with nor shall any member of the church challenge the said such appointment in
a manner inconsistent with his position as national and international pastor as
well as presiding elder of the said African Faith Tabernacle Church, after my
death.”<o:p></o:p>The
applicant’s ex parte motion was further accompanied by the affidavits of two of
the subscribing witnesses to show that the will was duly executed.<o:p></o:p>Obviously
anticipating probate, the caveator-respondent took one step ahead of the
applicant by entering a caveat almost one month ahead of the afore-mentioned
application. On being warned, in accordance with Order 60, r. 17 of the High
Court (Civil Procedure) Rules, 1954 (L.N. 140A), to disclose his interest, the
caveator duly obeyed by filing an affidavit of interest wherein he deposed as
follows:<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. That
to the best of my knowledge, information and belief the said Prophet James
Kwame Nkansah, deceased, died intestate and that I am the head of family and
his successor under customary law.<o:p></o:p>3. That I
deny that the pretended will of the late Prophet James Kwame Nkansah under
which Kwaku David Boadu claims to be the sole beneficiary was in fact made or
executed by the late Prophet James Kwame Nkansah. 4. That even if the said will
was in fact made or executed by the late Prophet James Kwame Nkansah, which is
denied, the said will is nevertheless void or invalid because it was not made
in due compliance with the formalities for making a will under the Wills Act,
1970 (Act 360).”<o:p></o:p>Following
the obedience to the warning the applicant moved the court on notice for the
grant to him of letters of administration with the will annexed and supported
it with his affidavit. As the contest was hereafter fought on affidavits it
will repay to quote the relevant paragraphs. The applicant deposed:<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">“6. That
by his affidavit of interest the caveator claims to be the customary successor
of the late Prophet<o:p></o:p>James
Kwame Nkansah and the head of the testator’s family. <o:p></o:p>7. That I
do not claim any interest of the family under the will.<o:p></o:p>