EMMANUEL KUDJOJI & 4 ORS. vs. MR. BATSA & 2 ORS [2012]DLCA6996

Date	2012-07-12
Suit No.	CIVIL APPEAL NO: H1/176/2
Citation No.	[2012]DLCA6996

A. ASARE KORANG J. A. (PRESIDING)

S. E. KANYOKE J. A.

SIR DENNIS D. ADJEI J.A.

MR. SAM WOOD FOR PLAINTIFFS/APPELLANTS

MR. MIKY AKUAMOAH FOR DEFENDANTS/RESPONDENTS

[2012]DLCA6996
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL KUDJOJI &amp; 4 ORS.<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MR. BATSA &amp; 2 ORS<o:p></o:p>(DEFENDANTS/
RESPONDENTS)<o:p></o:p>[COURT OF APPEAL, 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">

<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: H1/176/2 &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 JULY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
SAM WOOD FOR PLAINTIFFS/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. MIKY AKUAMOAH FOR
DEFENDANTS/RESPONDENTS<o:p></o:p>

A. ASARE KORANG J. A. (PRESIDING),S.
E. KANYOKE J. A., SIR DENNIS D. ADJEI J.A. <o:p></o:p>

</div><p class="MsoListParagraph" style="margin-top:0in;margin-right:0in;margin-bottom:
0in;margin-left:.25in;margin-bottom:.0001pt;mso-add-space:auto;text-align:justify;
text-indent:-.25in;line-height:115%;mso-list:l0 level1 lfo1">A.&nbsp;&nbsp;&nbsp; ASARE-KORANG, J.A. <o:p></o:p>The
plaintiffs/appellants are the children of the late Ishmael Tei Kudjodji who
died testate on 1st March, 2007 and the defendants/respondents, are the
executors of the Will of the deceased testator.<o:p></o:p>&nbsp;In this judgment, the plaintiffs/appellants
shall be referred to simply as the appellants and the defendants/respondents as
the respondents.<o:p></o:p>&nbsp;In the High Court, the appellants sued the
respondents as executors for, inter alia, a declaration that the document
purporting to be the Will of the late testator aforementioned was a forgery and
of no legal effect and an order granting Letters of Administration of the
estate of the testator to the appellants. <o:p></o:p>The
particulars of forgery alleged by the appellants were that the contents of the
Will made on 1st January 2006 were not authorised by the deceased testator; the
signature in the alleged Will was not that of the deceased testator; the
attesting witnesses in the Will did not witness the deceased testator executing
the document purporting to be his Will and in Clause 25, the residuary clause
of the Will, a person described as the testator's sister's daughter or the late
Larko's mother had died after the Will was purportedly executed on 1st January,
2006. <o:p></o:p>On
the evidence the testator was in good health and he had good eyesight at the
time he signed his Will. The appellants contended that the testator being a
printer by profession was used to proof reading any documents and making
corrections in them if he had to sign them but in the case of his Will he did
nothing of that sort, there being a lot of spelling mistakes in his Will. <o:p></o:p>Another
mistake in the Will, according to the appellants, was in relation to the
description of one Caroline Nyaunu otherwise known as Larko referred to in the
Will as the late Larko. The appellants insisted that at the time the testator
prepared and signed his Will on 1st January 2006, the said Larko was not
deceased, she having died on 1st April 2006, after the Will was made. <o:p></o:p>The
appellants also raised the issue of another error in the Will in respect of one
of the executors, Mr. Batsa of N.I.B., who was not with N. I. B. at the date of
making the Will. <o:p></o:p>These
mistakes or errors, the appellants contended, were premised on the fact that
the testator was sick and bedridden at the time he purported to make his Will
and therefore the signature on the Will was not his signature. <o:p></o:p>The
learned trial judge, after hearing all the evidence, ruled in favour of the
validity of the Will, declaring that it was duly executed by the testator and
the witnesses Messrs George Arthur and Odei Asare. The reliefs sought by the
appellants were therefore dismissed.&nbsp; <o:p></o:p>Aggrieved
or dissatisfied with the decision of the trial judge, the appellants appealed
on the following grounds.<o:p></o:p>&nbsp;"(i) The learned trial judge erred when
he concluded that the factual errors in the Will of the late Ishmael Tei
Kudjodji did not make it invalid. <o:p></o:p>(ii) The learned trial judge erred
when he concluded that Mr. Od</main>