REV. FATHER OPOKU SARKODIE vs. BAFFOUR OWUSU [2010]DLHC8488

Date	2010-06-14
Suit No.	SUIT NO. C8\|46\|10
Citation No.	[2010]DLHC8488

HIS LORDSHIP JUSTICE JACOB B. BOON

CHRIS ADOMAKO – KWAKYE FOR PLAINTIFF

[2010]DLHC8488
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													<main id="main" class="content" style="min-height: 60rem" >REV. FATHER
OPOKU SARKODIE<o:p></o:p>vs.<o:p></o:p>BAFFOUR OWUSU<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. C8|46|10&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
14TH JUNE, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CHRIS
ADOMAKO – KWAKYE FOR PLAINTIFF<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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HIS LORDSHIP JUSTICE JACOB B. BOON<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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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The plaintiff in this action described himself as the
sole executor of the last will and testament of one John Owusu alias Kwadwo
Atta, deceased. The defendant is a child of the deceased. Upon the death of
John Owusu, the document referred to as his last will and testament was read at
the Registry of this court. Thereafter, the defendant caveated on the ground
that the signature that appears on the document is not that of his father. In
effect, he doubted the genuiness of the document being referred to as the last
will and testament of his late father. <o:p></o:p><o:p>&nbsp;</o:p>As a result, this action was instituted by the plaintiff to
prove the genuiness of the will. According to him the document was executed in
accordance with the laws of Ghana. He asserted that the will was prepared by
the solicitor of the deceased upon his instructions. It is also his case that
in the process of executing the will, the said solicitor, one lawyer Asante –
Krobea, caused a picture to be taken and the picture vividly captured the whole
process of execution of the will. He asserted that in the picture the deceased
was seen signing the document in the presence of two other persons who later
also signed it as witnesses. He therefore prayed for a declaration that the
document is the last will and testament of the deceased, legitimately executed
by him, and same should be admitted into probate.<o:p></o:p><o:p>&nbsp;</o:p>After the plaintiff took out the writ of summons and
statement of claim, both could not be served on the defendant because he could
not be traced. He was, therefore, granted leave by the court and he served the
processes by substitution. Defendant failed to respond, though duly served as
directed by the court. The hearing of the matter therefore proceeded without
him.<o:p></o:p><o:p>&nbsp;</o:p>Plaintiff called two witness at the hearing. These were
lawyer Asante-Krobea, already referred to, and Amoako Joseph, one of the
attesting witnesses. He also caused to be tendered in evidence the picture
taken at the instance Mr. Asante – Krobea at the time the deceased was signing
the document.<o:p></o:p><o:p>&nbsp;</o:p>The picture is marked as exhibit ‘B’. The exhibit speaks
for itself. It shows the deceased appending his signature to a document in the
presence of three persons. One of them is lawyer Asante-Krobea who is
personally known to the court. The other is Amoako Joseph, who appeared at the
hearing of this suit as the second witness for the plaintiff. The third person
was identified to the court by lawyer Asante-Krobea to be a clerk in his office
who also signed the document as a witness. She is referred to as a Mrs. Agnes
Oduro Poku. &nbsp;Though seen in the picture
and her name and signature appear on exhibit ‘A’ she was not called as a
witness at the hearing.<o:p></o:p><o:p>&nbsp;</o:p>Lawyer Asante – Krobea told the court that on the
instructions of the deceased he prepared the will in dispute; that the deceased
signed the document in the presence at the same time of the witnesses already
referred to, after which the witnesses also signed it. According to him as the
deceased was in the process of signing the will he caused a picture of the act
to be taken, which he indicated is the normal practice in his office as regards
preparation of wills for clients. The picture so taken was tendered in evidence
by him.<o:p></o:p><o:p>&nbsp;</o:p>His evidence was largely corroborated by the evidence of
Amoako Joseph, whom I have already referred to as the second witness for the
plaintiff. The document in issue was also tendered as exhibit ‘A’. On the face
of &nbsp;exhibit ‘A’, it satisfies the
formalities&nbsp; of a valid will under the
provisions of the Wills Act, 1971 (Act 360). I have not discovered any reason
why it should not be declared as the last will and testament of late John
Owusu, and I so declare it. Having declared it as the valid will of the deceased,
I further grant probate of it to the plaintiff a</main>