IN RE ASIRIFI (DECD); ADUSEI AND ANOTHER vs. AGYEI AND ANOTHER [1999]DLHC325

Date	1999-02-17
Suit No.
Citation No.	[1999]DLHC325

ADINYIRA J.

KOFI ADDO FOR THE APPLICANTS.

MARTIN AMOYAW FOR THE CAVEATORS.

[1999]DLHC325
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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">IN RE ASIRIFI (DECD); ADUSEI AND ANOTHER<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">AGYEI AND ANOTHER<o:p></o:p>[HIGH COURT, KOFORIDUA]<o:p></o:p>[1999-2000] 1 GLR 571<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.0pt;
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<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
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padding:0in;mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">Date: 17 FEBRUARY 1999<o:p></o:p>

</div>COUNSEL:KOFI ADDO FOR
THE APPLICANTS.MARTIN AMOYAW
FOR THE CAVEATORS.___________________________________________________________________________________________________________________________CORAM:ADINYIRA J.___________________________________________________________________________________________________________________________JUDGMENT OF ADINYIRA J.<o:p></o:p>On 6 May 1998 Emmanuel K Adusei and Abraham Adusei applied for
grant of probate of the will of the late Opanin Isaac Asirifi, the head and
general superintendent of the Saviour Church of Ghana, as the executors and
trustees named in the said will. Two of the children of the testator, namely
Kwabena Agyei and Emmanuel Kofi Gyan, entered a caveat and filed an affidavit
of interest claiming their father died intestate and that they had already
applied for and been granted letters of administration in respect of their late
father’s estate.<o:p></o:p>The applicants herein upon service of the affidavit of interest on
them, subsequently filed on 1 October 1998 a motion on notice for the removal
of the caveat and for the grant of probate on the main ground that Opanin
Issacsic(2) Asirifi died leaving a will, a copy of which was deposited at the
registry of the High Court and which was read to the family by the registrar.
The caveators still filed an affidavit in opposition claiming that the document
purported to be the will of their late father was not his will as after his
death they conducted a search at the registry of the High Court, Koforidua to
ascertain whether their father deposited a will there but the reply was in the
negative.<o:p></o:p>At the hearing of the motion for probate, Martin Amoyaw, counsel
for the caveators, raised a preliminary objection on two grounds which I am
obliged to consider and rule upon. On 15 January 1999 I directed that I would
like to hear further arguments on whether or not the deceased died testate as
this point was raised in the affidavit filed in opposition by the caveators.
This was to enable me to make the proper directives after giving my ruling on
the matter. I accordingly, adjourned the case to 4 February 1999 for arguments.<o:p></o:p>Counsel for the applicants, Kofi Addo, argued that they made the
necessary search at the registry of the High Court and discovered that the
deceased died testate. This will was subsequently read to the family by the
registrar. The applicants attached to their original application as exhibits
A1, A2 and A3 the correspondences in support of the above. He also contended
that the will, on the face of it, was properly signed by the testator and
attested to by the two witnesses. He contended finally, that no forgery has
been alleged by the caveators.<o:p></o:p>Frank Poley, held brief for Amoyaw but prayed for adjournment for
the latter to come and reply personally to the arguments put forth by Kofi
Addo. The case was adjourned to 9 February 1999 for Martin Amoyaw to address
court, but neither the parties nor counsel were in court at the time the case
was called. I therefore adjourned it to today for my ruling. However, I am duty
bound to consider the affidavit filed in opposition by the caveators. In this
affidavit, the caveators contended that they made a search at the registry to
find out whether their father deposited a will there but they received a
negative response so they contended that the will is not that of their father.
They, however, failed to support this assertion with a copy of the search and
the response from the registry. I therefore dismiss this their contention as
being untrue and a mere allegation. For on the original of the will before this
court, it is clearly stamped on it that this will was deposited in the court
registry on 24 September 1976. A check by this court in the register of wills
shows clearly that the will was deposited by the testator himself on that date.
Upon my examination of the will, everything seems regular on the face of it.
Furthermore, one of the attesting witnesses, Emmanuel Kofi Adusei, the first
applicant who is since deceased, swore an affidavit of witness in proof of due
execution of the will.<o:p></o:p>On 8 February 1999 the caveators filed a supplementary affidavit
in opposition, alleging for the first time that the will was a forgery. I am of
the view that this affidavit is out of time as it was filed without leave of
the court, and there is no proof of service on the applicants. But even
considering it for what it is worth, I am of the view that this claim is an
afterthought. For this will was not produced by the applicants herein nor any
other person for this court to suspect any fraud. It was deposited at the
registry by the testator himself nearly 23 years ago. It has therefore been in
the safe custody of the registry ever since. I will therefore dismiss the
objections raised to the validity of the will by the caveators as they are
baseless. I am satisfied that the original of the will of the late Opanin Isaac
Asirifi deposited at the High Court registry on 24 September 1976, on the face
of it, is valid.<o:p></o:p>