MARY THORNHILL AND DINAH THORNHILL vs. OSEI ANTO BONSU [2001]DLCA6233

Date	2001-11-13
Suit No.	CIVIL APPEAL NO. 107/2001
Citation No.	[2001]DLCA6233

ARYEETEY J.A. (PRESIDING)

ADINYIRA J.A.

ASIAMAH J.A.

MR. ROBERTSON KPATSA FOR APPELLANT

MR. OSEI ANTO BONSU FOR HIMSELF

[2001]DLCA6233
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													<main id="main" class="content" style="min-height: 60rem" >MARY
THORNHILL AND DINAH THORNHILL<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>OSEI ANTO
BONSU<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL NO. 107/2001&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 13TH
NOVEMBER 2001<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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HIMSELF <o:p></o:p>

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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ARYEETEY J.A. (PRESIDING),
ADINYIRA J.A., ASIAMAH J.A.<o:p></o:p>

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</div>ARYEETEY,
J.A. <o:p></o:p>To
the defendant/respondent, what apparently prompted the issue of the writ of
summons on 16th December, 1998 in the first place by the plaintiffs/appellants,
was his demand by letter for the first plaintiff to account for the amount of
$24,720.00, which was supposed to have come into her hands as a result of a
tenancy agreement that the first plaintiff wrongfully entered into with a
tenant on behalf of her deceased aunt, Mrs. Dinah Thornhill Nyedepu, in respect
of House No.9, Senchi Street, Airport Residential Area. The late Mrs. Dinah
Thornhill Nyedepu who owned the Senchi Street house died testate on 25th
August, 1997 with the respondent as one of the two executors. Probate in
respect of the Will was granted on 24th November, 1997, which was before the appellants
filed a caveat on 29th June, 1998 and before the wrongful tenancy agreement on
1st August, 1998. By their writ of summons the plaintiffs asked for the
following reliefs: (1) A declaration that the Will of Dinah Thornhill Deceased
dated 12 November, 1991 is invalid since it did not conform to the provisions
of the Wills Act. (2) An order revoking the probate granted to the defendants
herein by the High Court, Accra. <o:p></o:p>In
their pleading the plaintiffs gave the basis of their claim as follows: Right
from their infancy the late Dinah Thornhill Nyedepu, who was a sister of their
father, adopted them as her children. On account of the said adoption they
lived with her in Liberia for sometime until the first plaintiff returned to
Ghana and the second plaintiff was sent to Great Britain to continue with her
education. When the late Mrs. Dinah Thornhill Nyedepu finally returned to the
country the first plaintiff lived with her at her Airport Residential Area
residence and later at her Cantonments residence. It is the case of the
plaintiffs that during her lifetime the late Dinah Thornhill Nyedepu assured
them that they would inherit her properties. It therefore came to them as a
shock when a purported Will of the late Dinah Thornhill Nyedepu gave all her
properties to her sisters and their children. They pleaded that one of the
attesting witnesses to the Will had divulged to them that she did not witness
the Will in the presence of the other attesting witness; neither did she see
Mrs. Dinah Thornhill Nyedepu sign the Will. Also upon examination of the Will
it was discovered that the signature of the testator appearing on it was not
that of the late Mrs. Dinah Thornhill Nyedepu. The trial court dismissed their
claim in its totality. They therefore appealed to this court. <o:p></o:p>The
grounds of Appeal are recorded at page 227 of the record of appeal as follows:
1. "Since there was on record that
the natural parents consented to Madam Dinah Thornhill Nyedepu taking the
plaintiffs as her children, and since there was evidence on record that for all
the years the plaintiffs associated themselves with the deceased she treated
them as her children and held herself out as their mother, the learned trial
judge misdirected himself and erred when he held that the plaintiff cannot be
the adopted children of the deceased Madam Dinah Thornhill Nyedepu. 2. Since
the evidence of the second attesting witness to the Will was challenged, and
since there was no evidence to corroborate her evidence and since the lawyer
who prepared the Will testified that he did not see the testator append her
signature to the Will and since the expert witness was emphatic that the
signature on the Will is [not] and cannot be the signature of the testator, the
learned trial judge misdirected himself and failed to properly analyse the
evidence adduced before him, and erred when he held that the signature that
appeared on the Will was the signature of the testator and therefore the Will
was proper.” <o:p></o:p>I
will take the second ground of appeal first, namely: "Since the evidence of the second attesting witness to the Will
was challenged, and since there was no evidence to corroborate her evidence and
since the lawyer who prepared the Will testified that he did not see the
testator append her signature to the will and since the expert witness was
emphatic that the signature on the Will is [not] and cannot be the signature of
the testator, the learned trial judge misdirected himself and failed to
properly analyse the evidence adduced before him, and erred when he held that
the signature that appeared on the Will was the signature of the testatrix and
therefore the Will was proper”. Looking at the second ground of appeal as
formulated one cannot fail to recognise that the concerns of the appellants
have to do with the judgment being against the weight of evidence especially
when the High Court Judge held that the disputed signatu</main>