WILLIAM DAVIES AGYEKUM & 3 ORS vs. ROBERT DJAN TACKET AND OTHERS [2005]DLSC6448

Date	2005-01-12
Suit No.	WILLIAM DAVIES AGYEKUM & 3 ORS (PLAINTIFFS/APPELLANTS/APPELLANTS) vs. ROBERT DJAN TACKET AND OTHERS
Citation No.	[2005]DLSC6448

ATUGUBA J.S.C. (PRESIDING)

DR. TWUM J.S.C.

PROF. OCRAN J.S.C.

LARTEY J.S.C.

ANINAKWAH J.S.C.

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

MR. J. K. AGYEMANG FOR THE RESPONDENTS

[2005]DLSC6448
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													<main id="main" class="content" style="min-height: 60rem" >WILLIAM DAVIES AGYEKUM &amp; 3 ORS<o:p></o:p>(PLAINTIFFS/APPELLANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>ROBERT DJAN TACKET AND OTHERS<o:p></o:p>(DEFENDANTS/RESPONDENTS/RESPONDENTS)<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</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;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO.
J4/27/2004&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;&nbsp;&nbsp;&nbsp;DATE: 12TH JANUARY, 2005<o:p></o:p>

</div>COUNSEL:<o:p></o:p>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;
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MR. J. K. AGYEMANG FOR THE
RESPONDENTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ATUGUBA, J.S.C. (PRESIDING) DR.
TWUM, J.S.C. PROF. OCRAN, J.S.C. LARTEY, J.S.C. AND ANINAKWAH, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>DR.
S. TWUM, J.S.C. <o:p></o:p>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 contentions 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 businessman 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)
"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)
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)
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)
An Order that the said Paper Writing be admitted to Probate. <o:p></o:p>(c)
... <o:p></o:p>(d)
... <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 Directio</main>