HEWARD-MILLS vs. HEWARD-MILLS AND OTHERS [1992]DLCA4238

Date	1992-05-07
Suit No.
Citation No.	[1992]DLCA4238

ESSIEM JA

ADJABENG JA

FORSTER JA

J QUARSHIE-IDUN (WITH HIM WILLIAMS (MRS) AND R HEWARD-MILLS) FOR THE APPELLANTS.

E D KOM (WITH HIM S CUDJOE (MRS)) FOR THE RESPONDENT.

[1992]DLCA4238
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													<main id="main" class="content" style="min-height: 60rem" >HEWARD-MILLS<o:p></o:p>vs.<o:p></o:p>HEWARD-MILLS AND OTHERS<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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 281 – 228&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; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 7 MAY 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J
QUARSHIE-IDUN (WITH HIM WILLIAMS (MRS) AND R HEWARD-MILLS) FOR THE 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">

E
D KOM (WITH HIM S CUDJOE (MRS)) 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 1.0pt 0in">

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

</div>ADJABENG
JA. The fundamental issue which this court ought to determine in this appeal,
in my view, is the issue whether or not the plaintiff’s action was competent or
properly before the trial court. It is the contention of the
defendants-appellants that the trial court failed to tackle this issue because
the court failed to appreciate the legal grounds upon which the appellants’
application in the court below was based. Also, that this lack of appreciation
made the trial judge allow herself to be influenced by matters not pertinent to
the issues argued before the court, and thus rendered the decision of the court
unsupportable in law.<o:p></o:p>The
facts of this case are that the plaintiff, the 1st and 2nd defendants are all
children of the late Albert Gillies Heward-Mills, Barrister-at-Law, of James
Town, Accra. The 3rd defendant is the executor of the will of the late J N Heward-Mills,
also a child of the said Albert Gillies Heward-Mills (deceased). The said
Albert G Heward-Mills during his life time made a will and codicil and on his
death on 19 December 1964 these were admitted to probate. Probate of the said
will and codicil was granted to the executors named therein, namely, Nii Amaa
Ollennu, Henry Hornsby Odoi, and Daniel Phillip Hammond, all now deceased. The
plaintiff, the 1st and 2nd defendants, and the late J N Heward-Mills were all
named beneficiaries in their said late father’s will and the plaintiff, the
1st, and 2nd defendants, and the beneficiaries of the late J N Heward-Mills
have all been enjoying the properties willed to them by their late father. The
same applied to the other children of the said testator.<o:p></o:p>On
the 12th of April 1991, that is, about twenty-seven years after the death of
his late father, the plaintiff swore to and filed an affidavit at the High
Court, Accra. I deem it necessary to set out fully here this affidavit. It
states as follows:<o:p></o:p>“I, Dr Samuel Desmond Heward-Mills of
Accra make oath and say as follows:<o:p></o:p>1. That I am the Plaintiff/Applicant
herein.<o:p></o:p>2. That I am the son of the late A. G.
Heward-Mills who died on 19th December, 1964 leaving a will dated 11th
December, 1939 and a codicil dated 3rd January, 1950 which were admitted to
probate.<o:p></o:p>3. That the testator was survived by
wives and children of whom I am one.<o:p></o:p>4. That the executors of the testator
Nii Amaa Ollennu, Henry Hornsby Odoi and Daniel Phillip Hammond are now dead
and so also are the attesting witnesses.<o:p></o:p>5. That the said will and codicil were
deposited in the High Court by J. N. Heward-Mills per his clerk or agent, A. G.
Ofei, on 29th December, 1964 after the testator’s death on 19th December, 1964.<o:p></o:p>6. That the signature of the testator
and the attesting witnesses on the said will and codicil were not the act and
deed of the testator and witnesses respectively.<o:p></o:p>7. That forensic laboratory tests by
several experts have confirmed same.<o:p></o:p>8. That I swear to this affidavit in
support of the application for recalling and revocation of the grant of probate
to the will and codicil of late A. G. Heward-Mills (deceased).”<o:p></o:p>On
the same date, 12th April, 1991, the plaintiff’s solicitor, E D Kom, signed a
citation to recall the grant of probate. This citation was addressed to both
the Deputy Chief Registrar of the High Court, Accra, and to the defendants, and
was filed on 18 April 1991. It reads as follows:<o:p></o:p>“CITATION TO RECALL THE GRANT OF
PROBATE.<o:p></o:p>“Citation by Dr Samuel Desmond
Heward-Mills, a son of the late A. G. Heward-Mills, who has an interest in the
estate of the deceased testator, A. G. Heward-Mills calling upon Miss Alma
Susan Heward-Mills, Mrs Eileen Robertson and Mr R. S. Amegashie of Accra to
produce the probate granted to the will dated 11th December, 1939 and codicil
dated 3rd January 1950 and deposited in the High Court on 29th December, 1964
by the late J. N. Heward-Mills after the testator’s death on 19th December,
1964.”<o:p></o:p>Also,
on the same 12th of April 1991, when the plaintiff’s solicitor signed the
citation quoted above, which was later filed on 18th of April 1991, the Deputy
Chief Registrar of the High Court, Accra, also signed and addressed the
following citation to the defendants:<o:p></o:p><o:p>&nbsp;</o:p>“CITATION OF RECALL OF PROBATE.<o:p></o:p>“Whereas it appears by the affidavit
of Dr Samuel Desmond Heward-Mills of Accra, plaintiff who alleges that he is a
son of the late A. G. Heward-Mills (deceased) sworn the 12th day of April, 1991
tha</main>