AKOTO AND ANOTHER vs. MOSI AND ANOTHER [1992]DLCA4226

Date	1992-05-21
Suit No.
Citation No.	[1992]DLCA4226

ESSIEM JA

ADJABENG JA

FORSTER JA

KODUA FOR THE DEFENDANTS-APPELLANTS.

AKENTENG FOR THE PLAINTIFFS-RESPONDENTS.

[1992]DLCA4226
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													<main id="main" class="content" style="min-height: 60rem" >AKOTO AND ANOTHER<o:p></o:p>vs.<o:p></o:p>MOSI AND ANOTHER<o:p></o:p>[COURT
OF APPEA, KUMASI]<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">

[1993 - 4] 1 GBR 293 – 299&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 21 MAY 1992.<o:p></o:p>

</div>COUNSEL<o:p></o:p>KODUA
FOR THE DEFENDANTS-APPELLANTS.<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">

AKENTENG
FOR THE PLAINTIFFS-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 1.0pt 0in">

ESSIEM
JA, ADJABENG JA, FORSTER JA<o:p></o:p>

</div>ESSIEM
JA. <o:p></o:p>This
is an appeal from the judgment of the High Court, Kumasi by which that court
gave judgment in favour of the plaintiffs. The defendants, being aggrieved by
the said judgment have appealed to this court.<o:p></o:p>The
case concerns the estate of the late Nana Osei Akoto. The said Nana Osei Akoto
is alleged to have died testate and the action was for the following reliefs:<o:p></o:p>&nbsp;“1. A declaration that the will of the late
Nana Osei Akoto dated 13th June 1986 is valid.<o:p></o:p>2. A declaration that the late Nana
Osei Akoto was of a sound mind and consequently had the mental capacity to make
the said will dated 13th June 1986 without any pressure or influence.<o:p></o:p>3. An order to surrender all documents
relating to the estate of the deceased.<o:p></o:p>4. Recovery of all rents commencing
from 1st August 1986 to the date of judgment.<o:p></o:p>5. Perpetual injunction to restrain
the defendants, their agents or servants from interfering with or having any
dealings with any properties of the late Nana Osei Akoto which are not devised
to them.”<o:p></o:p>The
plaintiffs are the executors of the will of the late Osei Akoto and defendants
were two of the children of the deceased.<o:p></o:p>The
defendants in their defence pleaded that their late father was at the time
material to this action in such a deteriorated state of health that he could
not possibly have been in a state of mind to have given instructions to a
lawyer for the making of a will or to execute a will as alleged by the
plaintiffs. As the defendants alleged that their late father had executed an
earlier will they counterclaimed for “a declaration that it is the said will of
their said late father dated August 1972, which is valid and genuine and that
that is the only will which ought to be admitted to probate”. The trial court
took evidence and held that “there was nothing objectionable about the will of
13 June 1986 and it ought to be admitted to probate”. The appellants were aggrieved
by this judgment and therefore appealed to this court on a number of grounds of
appeal.<o:p></o:p>The
arguments advanced in support of the appeal may be summed up briefly as
follows: that at the time of the alleged execution of the will, the testator
was so ill that he could not have executed the will which implied that it was
not the testator who executed the will; that the will was not executed in
accordance with the law in that the two attesting witnesses were not present at
the same time when the testator thumbprinted the will. This, it was submitted,
was contrary to section 2(3) of the Wills Act. Finally, that the plaintiffs in
their evidence departed from the statement of claim wherein they had pleaded
that:<o:p></o:p>“3. The plaintiffs say that on or
about the 13th of June, 1986 the late Nana Osei Akoto invited a lawyer to his
residence and made the will which is the subject matter of the suit.”<o:p></o:p>In
their evidence they had stated that the late Nana Osei Akoto went to the office
of lawyer Duku, PW5, to instruct him to prepare a will for him. It was argued
that the learned trial judge was therefore wrong in accepting the evidence of
PW5 that the testator went to his office to give him instructions about the
will. Finally it was argued that from the evidence, PW4 and PW3 were not
present at the same time when the testator was alleged to have executed the
will in dispute. It was contended on behalf of the respondents that the
appellants had the burden of showing that the testator was of unsound mind at
the time he executed the will. This burden, counsel contended, was not
discharged by the appellants. Counsel further argued that on the charge of
fraud and undue influence the appellants failed to comply with Order 19 r 6 of
the High Court (Civil Procedure) Rules LN140A in that they did not give
particulars of fraud or undue influence and therefore any evidence on it should
be ignored by the court. It was submitted, in the alternative, that even if
there was undue influence, then from the evidence it was against the lawyer and
not the testator; that since the lawyer, PW5, was an independent witness his
evidence should be accepted.<o:p></o:p>On
the evidential burden on the parties, the case of Akenten II v Osei [1984-86] 2
GLR 437 at p 438 neatly sums up the burden on both the plaintiff and the
defendants. In that case Apaloo CJ, sitting as an additional High Court judge,
expressed the opinion that:<o:p></o:p>“The evidential burden assumed by each
side in view of the position taken by the parties, was that the plaintiffs must
show that the document in respect of which they sought probate was the
testamentary wish of G; that he was compos mentis at the date of its execution
and was a free agent and lastly, that it was executed and attested in
accordance with the requirement laid down in section 2 of the Wills Act, 1971
(Act 360). Upon showing that, the burden then shifted to the defendant to prove
the alleged forgery.”<o:p></o:p>In
the instant case the appellants contend that the will was not executed in
accordance with s 2(3) of the Wills Act 1971 (Act 360). That section provides
that:<o:p></o:p>