ALBERT DOTSEY (SUING AS THE CUSTOMARY: SUCCESSOR OF MANAVI ATAKPA) (PLAINTIFF) vs. ANUMUVI AMEGBOR (DEFENDANT) [2002]DLHC7387

ALBERT DOTSEY (SUING AS THE CUSTOMARY: SUCCESSOR OF MANAVI ATAKPA) (PLAINTIFF) v... [2002]DLHC7387

Date	2002-04-24
Suit No.	SUIT NO. F. 863/98
Citation No.	[2002]DLHC7387

HER LORDSHIP H. INKUMSAH-ABBAN (MRS.)

[2002]DLHC7387
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													<main id="main" class="content" style="min-height: 60rem" >ALBERT DOTSEY (SUING AS THE CUSTOMARY: SUCCESSOR OF MANAVI
ATAKPA)<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ANUMUVI AMEGBOR<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, 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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NO. F. 863/98&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;&nbsp;DATE: 24TH APRIL, 2002<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;
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HER LORDSHIP H. INKUMSAH-ABBAN (MRS.)<o:p></o:p>

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</div>The
plaintiff brought an action against the defendant for the following reliefs: <o:p></o:p>(1)
An Order declaring null and void and of no effect the alleged Will of the said
Manavi Atakpa (deceased) on the grounds that the said Will was not the act and
deed of the said testator and was fraudulently procured and or executed. <o:p></o:p>(2)
Perpetual injunction to restrain the defendant from holding himself as the
beneficiary under the Will and collecting rents from the tenants in the house. <o:p></o:p>The
brief facts of the plaintiff's case are that he was elected on 11/4/98 as the
Customary Successor to the deceased and that an alleged Will made by the late
Manavi Atakpa purporting to devise House No. A. 601/9 Sukura Accra to the
defendant. After the said Will was read, the plaintiff caveated as the head of
family and customary successor of the late Atakpa. It was then ordered that the
Will be proved solemnly. The plaintiff therefore issued the writ against the
alleged beneficiary alleging fraud and improper execution of the alleged Will. <o:p></o:p>The
defendant on the other hand said in brief that the case concerned the devise of
property by Will to him by his adoptive aunt. Manavi Atakpa whom he had lived
with as a child during the deceased's lifetime and was considered as a son of
the deceased. Upon the death of the deceased defendant said he got to know that
the deceased had left him a house and that this house was the one in which the
defendant had lived with the deceased during her lifetime. Accordingly the Will
was read but was caveated by the plaintiff as forgery. <o:p></o:p>Issue
for trial were: <o:p></o:p>(a)
Whether the Will was the act and deed of the said Testator Manavi Atakpa. <o:p></o:p>(b)
Whether the Will was a forgery. <o:p></o:p>(c)
Whether the plaintiff has been properly chosen as the Customary Successor to
the deceased. <o:p></o:p>The
1st issue to be determined is whether the Will was the act and deed of the said
Testator Manavi Atakpa. <o:p></o:p>The
plaintiff stated in his evidence that after the Will was read in the Court he
and the younger brother of the deceased Govina Atakpa caveated the Will on the
grounds inter alia that it was forgery. Plaintiff stated further that after
reading of the Will he contacted the Witnesses Moses Fumey Sowah and John Koku
Akakpo. According to Akakpo the Will was read over to him and he understood and
signed and Mr. Fumey said he was in his house when the defendant brought a
document purporting to be tenancy agreement and defendant asked him to
thumb-print for him so he also did. P.W.1 Moses Sewah Fumey one of the
witnesses and also a cousin to the deceased his evidence in chief said that the
Will which he was alleged to have witnessed was brought to him by the
defendant. I quote <o:p></o:p>"The document was brought to me
by the defendant saying that what transpired between myself and the deceased
have been put on paper and that I should witness it but I did not know it was a
Will. It was brought to me in the house and I was asked to sign." <o:p></o:p>P.W.1
said further that it was after he had signed that he was told it was a Will.
Later P.W.1 said he asked the deceased whether it was a Will or not but the
deceased did not give him any reply because she was bedridden at the time. <o:p></o:p>P.W.1
explained further that when defendant said it was what had transpired between
himself and the deceased that had been documented, he thought it was tenancy
agreement because the deceased had given out a room to a tenant and he P.W.1
had always witnessed such tenancy agreements. P.W.1 admitted that when he thumb
printed the document there was no one there. He also denied that the document
which states that Akakpo and he P.W.1 were present when it was thumb printed is
untrue. He stated categorically that he did not witness the Will in the
presence of the deceased and that it was brought to him. In cross-examination
the following took place. <o:p></o:p>(Q)
Do you recollect that about 5 years ago you were called to the deceased house. <o:p></o:p>(A)
Yes. <o:p></o:p>(Q)
Do you recall that when you went Akakpo was also there. <o:p></o:p>