RUTH AYITEY AND OTHERS vs. THE ADMINISTRATOR GENERAL AND OTHERS [2014]DLCA2960

Date	2014-06-19
Suit No.	CIVIL APPEAL NO. H1/53/2014
Citation No.	[2014]DLCA2960

MARIAMA OWUSU (PRESIDING)

OFOE J.A.

DORDZIE J.A.

D. O. LAMPTEY FOR THE PLAINTIFF/APPELLANT

JAN CHAMBERS FOR THE RESPONDENT

[2014]DLCA2960
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													<main id="main" class="content" style="min-height: 60rem" >RUTH AYITEY AND OTHERS<o:p></o:p>&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; vs.&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; <o:p></o:p>THE ADMINISTRATOR GENERAL
AND OTHERS<o:p></o:p>&nbsp;[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. H1/53/2014&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: 19TH
JUNE, 2014<o:p></o:p>

</div>COUNSEL:&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; <o:p></o:p>D. O. LAMPTEY FOR THE
PLAINTIFF/APPELLANT,<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JAN
CHAMBERS FOR THE 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;
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</div>JUDGEMENT<o:p></o:p>OFOE,
J.A:<o:p></o:p>The deceased Mr. Ebenezer
Ayittey had ten children. At the twilight of his life he found himself at
different times at the Ridge Hospital and at herbal treatment centres in the
Central Region, battling an ailment which was not medically confirmed at the
trial, until he left this side of the world. It was in the Ridge Hospital on
admission that he is alleged to have executed a will prepared for him by lawyer
Afutu Kotey. As is not unusual on our side of the globe, other children who
were not catered for in the said will have raised queries whether their father,
in the state in which they found him on the date he is alleged to have executed
the will, did indeed execute any such will. <o:p></o:p>The substance of their
complaint at the trial court was that their deceased father, Jonathan Ebenezer
Ayitey, was not mentally and physically competent to have sign any will. The
said document, exhibit C1, purporting to be the will of their father was
therefore not his will it having been procured through forgery. They allege
that their father, as at the date of 24th October 1978 when he was
alleged to have made the said will, was not of sound mind, memory or
understanding having been medically diagnosed as suffering from Cerebral Sclerosis,
a disease of the brain or mind which rendered him incapable of conducting or
controlling his affairs and communicating intelligently and meaningfully to
anyone. Who forged this will? It is their pleadings that it was forged by Kwame
Johnson and Madame Elizabeth Wilson. The plaintiffs are also convinced of the
forgery because a comparison of the signature on the said will with other known
signatures of their father in tenancy agreements and application for building
permit made by the deceased father show that the signature on the alleged will
is a forgery. To revoke the probate granted to the defendant they sought the
following reliefs from the trial court:<o:p></o:p>“1. Revocation of the probate granted to
defendant on 30th June 1980<o:p></o:p>2. That the court shall pronounce
against the validity of he said will and declare it null and void<o:p></o:p>3. A grant to them of letters of
administration to the estates of the deceased”.<o:p></o:p><o:p>&nbsp;</o:p>As would be expected the
defendant and co-defendants denied all the allegations of forgery and the
nature of the ailment alleged by the plaintiffs. It was their case that the
deceased was admitted to the Ridge Hospital with a stroke of the left part of
the body. There was nothing wrong with his brain or speech. In the words of the
2nd co- defendant, Kwame Johnson, in paragraph 5 of the defence he
put it this way: <o:p></o:p>“……..at the time of the testator’s
admission to the Ridge Hospital, he was in full control of his mental faculties
and made his will on his own volition and could communicate freely and
intelligently with anybody. Further the 3rd defendant says that when
the testator had improved considerably in health he was discharged and was to
report to the hospital as an outpatient”.<o:p></o:p>This appears to be the tenor
of the defence of the defendant and co-defendants to the plaintiffs’ claim that
the deceased was not in control of his mental faculties.<o:p></o:p>After trial the trial judge
held as follows:<o:p></o:p>“So the plaintiffs have failed to prove
that the will of the late Jonathan Ebenezer Ayitey was forged for they have not
been able to prove that. On the contrary, the defendants have proved that the
will was duly executed.<o:p></o:p>The other issue follow suit, that is to
say that the testator was of sound mind, memory and understanding, and know and
approve of the contents of the will before appending his signature.<o:p></o:p>The plaintiffs are therefore not
entitled to their claims. The will in issue is valid for all purposes and
should be executed in accordance with its provisions”</main>