AKUA PREMPEH & 3 ORS. vs. S.D.A. ODDAI [2003]DLSC2384

Date	2003-05-14
Suit No.
Citation No.	[2003]DLSC2384

WIREDU C.J. (PRESIDING)

AMPIAH J.S.C

ACQUAH J.S.C

ATUGUBA J.S.C

MR. RICHARD ASAMOAH FOR APPELLANT.

MR. J.K. KODUA FOR RESPONDENT.

[2003]DLSC2384
																																						<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]<o:p></o:p>CIVIL
APPEAL NO. 5/2000<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">

DATE:
14TH MAY, 2003.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
RICHARD ASAMOAH FOR APPELLANT.<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">

MR.
J.K. KODUA FOR 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">

WIREDU,
C.J. (PRESIDING), AMPIAH, J.S.C., ACQUAH, J.S.C., ATUGUBA, J.S.C., AKUFFO,
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>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. <o:p></o:p>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
find</main>