BROWN vs. ANSAH AND ANOTHER [1989]DLHC1994

Date	1989-04-10
Suit No.
Citation No.	[1989]DLHC1994

KPEGAH J.

ESSEL-MENSAH (FOR SACKEYFIO) FOR THE PLAINTIFF.

E. F. SHORT FOR THE DEFENDANTS.

[1989]DLHC1994
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BROWN<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ANSAH AND ANOTHER<o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1992] 2 GLR 22<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 10 APRIL
1989<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ESSEL-MENSAH (FOR SACKEYFIO) FOR THE PLAINTIFF.<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">

E. F. SHORT FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF KPEGAH J.<o:p></o:p>The plaintiff, as one of the principal members of the Asamoah Adu
Anona family of Mumford, is claiming on behalf of the family an order setting
aside the will of one Samuel Kobina Crentsil alias Kobina Enyinda as null and
void. Two grounds are alleged for seeking this order, namely that the testator
was non-compos mentis when he made the said will; and secondly, that there is
no declaration on the will to the effect that it had been read over and
interpreted to the said testator before he signed as required by the Wills Act,
1971 (Act 360); he being illiterate. It must be said that the plaintiff is the
nephew of the deceased and a possible successor if the deceased had died
intestate. The first defendant is the sole beneficiary under the will and the
second defendant, his wife, an executor and an attesting witness.<o:p></o:p>According to the plaintiff there are several units in the family
and that the deceased was the head of his unit; that one unit cannot inherit
the properties of another unit. The plaintiff admitted he did not consult the
head of the wider family, one Ebusuapanyin Kwame Yaw, for he is very inactive
in respect of the case since he did not lose anything by the will of the
deceased. In this regard, therefore, he consulted only his mother who is the
sister of the deceased and head of their unit. The mother said she was an
illiterate so she did not know what the whole thing was about. The plaintiff
also gave evidence as to the ill-health of the testator and the many efforts
made to treat him; and that on the day the will was said to have been executed,
the testator was non-compos mentis and was at Abeadze Dominase receiving local
treatment for his mental sickness. As such his uncle could not have travelled
to Winneba to execute the will since all the attesting witnesses live in
Winneba.<o:p></o:p>The plaintiff called his mother who also testified that her
younger brother, the deceased, had been mentally sick for about one year before
his death. This witness confirms that the plaintiff did consult her about the
court action he intended to take but she advised that he should forget the
matter and leave it. Now that the matter was in court she had come to withdraw
it for amicable settlement at home. She however did say that the plaintiff had
the authority to bring the action.<o:p></o:p>In respect of this witness I must say she is very, very old, and
one had the clear impression that she was sorry the matter had had to reach the
courts as a result of the family’s inability to resolve it peacefully. The
plaintiff called another witness who also testified to the ill-health of the
testator and the efforts made to get him cured before his death in Tema.<o:p></o:p>The defendants in their defence resisted the claim of the
plaintiff and denied that the deceased was ever a mental patient and insisted
that he was indeed compos mentis when he made the will. They led evidence
through his parish priest to this effect and also the fact that the deceased
deposited one of the wills with the said priest. One of the wills was also
found to have been deposited with the Agricultural Development Bank at Mumford.
The manager was called to testify to this. According to this witness when he
took over from his predecessor he was specifically informed that one Opanyin
Crentsil had deposited a document to secure a loan but did not follow up until
his death. He expected the document to be an indenture but when he went through
it, he found it to be rather a will. Apart from this will no other document had
been deposited by the said Opanyin Crentsil. This witness tendered the will and
the duplicate receipt given to the one who deposited it.<o:p></o:p>The plaintiff’s case, as I have pointed out, is that the testator
was non-compos mentis when he allegedly made the will; in the alternative the
will has failed to comply with a mandatory provision of Act 360 and was
therefore null and void.<o:p></o:p>The defendants resisted the plaintiff’s claim on three levels:
first, that he had no locus standi and therefore the action should be
dismissed; secondly, that the plaintiff had not proved sufficiently, through
medical evidence, that the testator was mentally ill at the material time he
executed the will, so his claim that the testator was insane at the time should
be dismissed; and thirdly, that the evidence is that the testator could read
Fanti and speak some English therefore he was semi-literate and the provision
of Act 360 as to illiterates cannot cover semi-literates. Even if it was held
to apply, the provision is not mandatory so non-compliance could not invalidate
the will.<o:p></o:p>I propose to deal, in some depth, with only two of the grounds
canvassed </main>