AKUA PREMPEH & 3 ORS. vs. S.D.A. ODDAI [2003]DLCA6142

Date	2003-05-14
Suit No.	CIVIL APPEAL NO. 5/2000
Citation No.	[2003]DLCA6142

WIREDU C.J. (PRESIDING)

AMPIAH J.S.C.

ACQUAH J.S.C.

ATUGUBA J.S.C.

AKUFFO J.S.C.

MR. RICHARD ASAMOAH FOR APPELLANT.

MR. J.K. KODUA FOR RESPONDENT.

[2003]DLCA6142
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >AKUA PREMPEH &amp; 3 ORS.<o:p></o:p>vs.<o:p></o:p>S.D.A. ODDAI<o:p></o:p>[SUPREME
COURT, 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">

CIVIL
APPEAL NO. 5/2000&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: 14TH MAY, 2003<o:p></o:p>

MR.
J.K. KODUA FOR RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AMPIAH,
JSC.: <o:p></o:p>This is an appeal from the
decision of the Court of Appeal which affirmed the decision of the trial High
Court. <o:p></o:p>The plaintiffs are the
children of one Ama Owusuaa whose mother was Akua Frema, a full-blood sister of
the late Shadrack Kwaku Edusei. They brought the action as the principal
members of the immediate matrilineal family of the late Shadrack Kwaku Edusei
whose purported ‘Will’ is the subject-matter of this dispute. <o:p></o:p>The late Shadrack Kwaku
Edusei died on 10th October, 1966 and probate of his purported Will was granted
to Madam Akosua Adoma and Akosua Anane jointly on 15th December, 1980. The Writ
to recall and revoke the probate and to declare the 'Will' as null and void was
issued on 13th August, 1990. <o:p></o:p>In their Writ of Summons,
the plaintiff claimed for, among others, that, <o:p></o:p>".... the purported 'Will'
alleged to have been made by the said Shadrack Kwaku Edusei, dated the 8th day
of January, 1965 was not the act or deed of the said late Shadrack Kwaku Edusei
and is void and of no effect whatsoever". <o:p></o:p>The defendant denied the
allegation and counterclaimed for, <o:p></o:p>"a
declaration that the Will of Shadrack Kwaku Edusei dated 8th January, 1965 is
valid". <o:p></o:p>Consequently the parties
joined issues on 'whether or not the purported Will of the said Shadrack Edusei
dated the 8th day of January was procured by the defendant by fraud and is
therefore a forgery and therefore null and void'. <o:p></o:p>The validity of the alleged
will was thus put in issue. <o:p></o:p>The alleged will was
tendered in evidence as Exhibit 1. The trial judge having reminded himself that
the case concerned a deceased person therefore it must be looked at with great
care, proceeded to critically analyse or evaluate fully the evidence on record.
<o:p></o:p>"The rule enunciated by Parke B
is that in every case the onus lies on the propounders of the Will to satisfy
the Court that the instrument is the Last Will of a free and capable testator,
must, however, be taken, I think, to refer to the first stage so to speak, of
the onus for, the onus does not necessarily remain fixed; it shifts. Where
there is a dispute as to a Will those who propound it must clearly show by
evidence that prima facie, all is in order, that is to say, there has been due
execution and that the testator had the necessary mental capacity and was a
free agent. Once they have satisfied the Court, prima facie, as to these
matters, it seems to me the burden is then cast upon those who attack the Will
and they are required to substantiate by evidence the allegations they have
made as to lack of capacity, undue influence and so forth." See—Johnson v.
Maja 13WACA 290 at 292". <o:p></o:p>The plaintiffs offered
evidence of the defects in the execution of the Will. The judge said he was not
satisfied that the Will had been executed by the alleged testator. He held, <o:p></o:p>"That at the time of the death of
the late Shadrack Kwaku Edusei, there was no Will of his and that the purported
Will had been procured by fraud with the sole purpose of denying the plaintiffs
what was due to them". <o:p></o:p>There were in fact two
contrasting stories before the Court. The trial judge was entitled by law to
prefer one in accordance with the evidence. This is exactly what the trial
judge did; he was not satisfied that the evidence on record showed a proper
execution of the Will. <o:p></o:p>In Eshun v. Paintsiwah (14
WACA 306) Forster-Sutton, observed, <o:p></o:p>"where the testator was blind or
illiterate, the Court shall not grant probate of the Will, or administration
with the Will annexed, unless the Court is first satisfied, by proof or by what
appears on the face of the Will, that the Will was read over to the deceased
before its execution, or that he had at the time, knowledge of the
contents". <o:p></o:p>The evidence about
execution of the will raised suspicion sufficient to make the trial judge
unsatisfied with due execution. <o:p></o:p>The Court of Appeal also
critically evaluated the evidence to find out whether the findings by the trial
Court were supportable. In its opinion the learned trial judge made a critical
analysis of the evidence before him and made findings of fact. On the available
evidence, the Court of Appeal found the trial judge's findings on material
facts in issue and his assessment of the rival claims neither unreasonable nor
unsupportable by the evidence. It concluded that there was ample justification
for the findings made and that the Court should not interfere with them. <o:p></o:p>