OKYERE vs. NKANSAH [1992]DLCA4973

Date	1992-01-30
Suit No.	[1992 – 1993] 3 G B R 1124 – 1140 C.A
Citation No.	[1992]DLCA4973

LAMPTEY JA

OFORI–BOATENG JA

ADJABENG JA

BEN ANNAN FOR THE APPELLANT.

PETER ALA ADJETEY SAG (WITH HIM ADDO) FOR THE RESPONDENT.

[1992]DLCA4973
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													<main id="main" class="content" style="min-height: 60rem" >OKYERE<o:p></o:p>vs.<o:p></o:p>NKANSAH<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 1993] 3 G B R 1124 – 1140
C.A&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: 30 JANUARY 1992<o:p></o:p>

PETER
ALA ADJETEY, SAG (WITH HIM ADDO) 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">

LAMPTEY
JA, OFORI–BOATENG JA, ADJABENG JA<o:p></o:p>

</div>OFORI–BOATENG JA. <o:p></o:p>This
is an appeal from the judgment of the Accra High Court presided over by Wuaku
JSC sitting as an additional judge of the High Court. The facts of the case are
that one Prophet James Kwame Nkansah, the founder of the African Faith
Tabernacle Church died on 23/9/87. He made a will under which he “bequeathed”
his position as a prophet in the church and his property with the church, to
the respondent, who was also the sole executor. The respondent applied for
probate. The appellant, the customary successor, challenged the validity of the
will on the ground that it was executed contrary to the provisions of the Wills
Act 1971 (Act 360), and that it was procured through undue influence, fraud etc.<o:p></o:p>The
learned trial judge was satisfied that although the original will challenged by
the appellant was executed contrary to the Wills Act, its carbon copy which was
also before the court had been validly executed in accordance with the Wills
Act. The carbon copy was therefore declared valid, and upon its validity,
probate was granted. It was against this decision that this appeal has been
lodged.<o:p></o:p>The
appeal was argued on three main grounds:<o:p></o:p>“1. After the trial judge had
established that exhibit A, the original will in question, had been found to be
void under Act 360, he should have ended the case. He should not have proceeded
further to pronounce on the validity of the carbon copy, exhibit B, which had
never formed the basis of the litigation.<o:p></o:p>2. If even it was assumed that the
testator left a valid will, since the testator made the will about the age of
120 years and there was evidence that his eyesight was weak, as well as his
body, the trial judge should not have declared the will valid without putting
it through the test required in s 2(6) of the Wills Act.<o:p></o:p>3. The learned trial judge did not
justify his acceptance of exhibit B as a valid will for he did not establish
whether in that will the testator signed before or after the witnesses.”<o:p></o:p>These
grounds of appeal will&nbsp; now be dealt with
in turn. It is clear from the statement of defence that the appellant was
challenging the will, exhibit A, which was sought to be admitted to probate.
The court indeed found as a fact that at least one of the witnesses was not
present when the testator executed the will. The judge said:<o:p></o:p>“Akowua persists that Nana Nyarko Eku
IX did not sign in his presence and his signature was not on exhibit A when he,
Akowua, signed. If exhibit A was indeed signed by the testator, then since it
came after S Y Oduro had signed, then in law only Frimpong had witnessed the
testator’s signature. In other words, the testator would not have acknowledged
his signature in the presence of at least two attesting witnesses before either
signed.”<o:p></o:p>The
trial court’s conclusion that exhibit A was invalid cannot be challenged; it is
in accordance with s 2(3) of Act 360. This court is not in a position to doubt
the credibility of the testimonies on which the judge relied for his
conclusion.<o:p></o:p>What
is being hotly contested however, is the finding of the judge that although
exhibit A was invalid, its duplicate, exhibit B, was valid and properly signed
by the very persons whose signatures appeared on exhibit A. According to
counsel for the appellant, the purpose of the suit was to prove that exhibit A
was not a valid will, and once that had been proved, the judge should have
brought his considerations to an end.<o:p></o:p>It
is necessary then to determine the real purpose of the defence, or the basis of
opposition to probate. Was it to prove that exhibit A was void or to prove that
Prophet Nkansah never made any will at all? If it can be established that
exhibit A was an invalid will, and so exhausting the litigation, then indeed
after having established that exhibit A was void, the learned judge should have
concluded the case. On the other hand if the real issue was not only about the
validity or otherwise of exhibit A, but also whether or not the prophet died
intestate, then proving only that a particular will made by him was void, would
certainly not establish that he left no other will and that he died intestate.<o:p></o:p>To
my mind, there is sufficient evidence to show that the full effect of the
defence was not only to establish that exhibit A was invalid, but also that
Prophet Nkansah died without making a valid will, if he ever made a will at
all. This impression is given in the evidence–in–chief of the appellant
himself:<o:p></o:p>“From January 1987 till he died, he
(the prophet) never informed me that he wanted to make any will; in fact he was
vehemently, on doctrine and belief, against making a will. I never knew he had
made any will and if in fact, he had made a will, he would have told me. He
would not have hidden that fact from me.”(Emphasis mine.)<o:p></o:p>This
evidence does not merely deny the existence of a particular will; it denies any
assertion that the prophet could possibly have left a will because by his faith
and his doctrine, (whether private or the church’s) he was vehemently against
the making of wills. Also, he would not make any will without first informing
the appellant. The purpose of going to court, over the probate could not be
said merely to oppose exhibit A but also to establish that the prophet was not
a person who would make a will, and so died intestate. Therefore, if the
learned judge found exhibit B, a duplicate of exhibit A, to have</main>