IN THE MATTER OF THE ESTATE OF WILLIAM DAVIES AGYEKUM- DECEASED WILLIAM DAVIES AGYEKUM & 3 ORS. vs. ROBERT DJAN TACKET& MAJOR BROWN [2005]DLSC2407

IN THE MATTER OF THE ESTATE OF WILLIAM DAVIES AGYEKUM- DECEASED WILLIAM DAVIES A... [2005]DLSC2407

Date	2005-01-12
Suit No.	CIVIL APPEAL NO. J4/27/2004
Citation No.	[2005]DLSC2407

ATUGUBA J.S.C. (PRESIDING

DR. TWUM J.S.C

PROF. OCRAN J.S.C

LARTEY J.S.C

ANINAKWA J.S.C.

MR. A. A. SOMUAH-ASAMOAH FOR THE APPELLANTS

MR. J. K. AGYEMANG FOR THE RESPONDENTS

[2005]DLSC2407
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													<main id="main" class="content" style="min-height: 60rem" >IN THE MATTER OF THE ESTATE OF WILLIAM DAVIES AGYEKUM-
DECEASED WILLIAM DAVIES AGYEKUM &amp; 3 ORS.<o:p></o:p>vs.<o:p></o:p>ROBERT DJAN TACKET&amp; MAJOR BROWN<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/27/2004<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: 12TH JANUARY, 2005.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;MR. A. A. SOMUAH-ASAMOAH FOR THE APPELLANTS<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. AGYEMANG FOR THE RESPONDENTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ATUGUBA,
J.S.C. (PRESIDING), DR. TWUM, J.S.C., PROF. OCRAN, J.S.C., LARTEY, J.S.C.,
ANINAKWA, J.S.C.<o:p></o:p>

</div>JUDGMENT<o:p></o:p>&nbsp;DR. S. TWUM, J.S.C.&nbsp;&nbsp;&nbsp; This appeal seeks to overturn the unanimous
judgment of the Court of Appeal in this matter dated 10th February 2000. By
their judgment, their Lordships in the Court of Appeal dismissed an appeal
which had been lodged by the Appellants herein against a High Court judgment in
the matter dated 17th January 1994, which had dismissed a contentious probate
action mounted by the Appellants herein (then Plaintiffs) against the present
Respondents (then Defendants.) The Appellants before this court are some of the
older children of William Davies Agyekum, deceased. The Respondents were the
executors named in the paper writing which they claimed was the last will of
the said William Davies Agyekum.<o:p></o:p>Mr
W D Agyekum was a business man of considerable wealth. He had some 14 or so
children, having married several women in his life; all under customary law.<o:p></o:p>A
few years before his death Mr Agyekum was taken ill and he spared no effort to
regain his health. At this time he appeared to have only one wife, Madam
Elizabeth Twene. Her children are the youngest among the deceased’s children.
Mr Agyekum sought treatment in Ghana, Germany and England. He even attended at
traditional healers in Ghana and elsewhere, all to no avail. He was accompanied
by Madam Elizabeth Twene. Eventually he returned to Ghana on 21st May 1985, a
very sick man. It was the Respondents’ case in the High Court and of course,
throughout these appeals that the deceased suspected the end was near and
decided to put his worldly affairs in order. They pleaded that the deceased
asked that his solicitor be fetched. His solicitor was Major Brown, a
well-known solicitor of the firm of Quist, Brown, Aidoo, Wontumi &amp; Co. The
Respondents statement of Defence stated that at the deceased’s request Major
Brown took instructions from him and prepared a will for him which was “duly
executed by him as provided by law.” Mr Agyekum died on 3rd September, 1985. In
due course, his will was read at the High Court, Accra.<o:p></o:p>When
the Will was read, a number of disappointed beneficiaries took umbrage at its
contents so when the executors applied to the High Court for the Will to be
proved in common form for it to be admitted to probate, this was opposed by a
section of deceased’s children who promptly filed a caveat against the grant.
Ultimately, the Appellants (as Plaintiffs) issued a writ of Summons in the High
court, Accra, on 10th February 1986 against the executors, Robert Adjan Tackie
and Major Brown, claiming:-<o:p></o:p>(a)&nbsp;
“A declaration that the last will and Testament of William Davies
Agyekum deceased, is invalid and of no legal effect and should therefore be set
aside.<o:p></o:p>(b)&nbsp;
An injunction to restrain the Defs and beneficiaries and/or their
assigns, agents and servants from interfering in anyway whatsoever with the
properties named in the Will.”<o:p></o:p>The
Respondents (then defendants) denied the averment that the testator’s will was
invalid and pleaded in considerable detail how the will came to be signed by
the testator, and who were his attesting witnesses. They counterclaimed against
the Plaintiffs jointly and severally for:-<o:p></o:p>(a)&nbsp; A declaration that the paper writing dated
5th July 1985 signed by the deceased and witnessed by two attesting witnesses
is the deceased’s “Last Will and Testament” and that therefore the Defendants
are the Executors thereof.<o:p></o:p>(b)&nbsp; An Order that the said Paper Writing be
admitted to Probate.<o:p></o:p>(c)&nbsp; …<o:p></o:p>(d)&nbsp; …<o:p></o:p>As
far as it is relevant for the purpose of this judgment the Appellants averred
in their Reply that the purported will was not the will of their deceased
father and that the paper writing proffered by the Respondents to be admitted to
probate was a forgery and should not therefore be admitted to probate. A large
number of issues were set down for trial by the High Court in the Appellant’s
Summons for Directions but in our view only two were really germane to the
controversy:<o:p></o:p>“(g) Whether or not the signature on
the purported Will is that of William Davies Agyekum<o:p></o:p>“(h) Whether or not the Will herein
was executed in accordance with the provision of the Wills Act 1971 (Act 360)”.<o:p></o:p>Ordinarily,
the facts in dispute were really straightforward – almost mundane but the
record was bloated by a disproportionate amount of pleading and evidence
touching and concerning matters clearly irrelevant and of little consequence to
the merits of the actual controversy between the parties. The record was replete
with evidence that there was no love lost between the Appellants who claimed
that their father’s Will did not make adequate provision for them and accused
the widow of having abandoned her husband to his fate and yet fighting for her
children’s benefits under the Will. She protested vehemently, arguing that she
was a good and caring wife to her husband and that rather it was the Appellants
who were of bad character and had anguished their father so that he felt
completely let down by them. Again, two of the Appellants, disavowed the will
because they claimed that th</main>