RUTH AYITEY AND 3 OTHERS vs. THE ADMINISTRATOR GENERAL AND 2 OTHERS [2014]DLCA4805

Date	2014-06-19
Suit No.	SUIT NO. HI/53/2014
Citation No.	[2014]DLCA4805

MARIAMA OWUSU JA –PRESIDING OFOE JA

DORDZIE JA

D. O. LAMPTEY FOR THE PLAINTIFF/APPELLANT

JAN CHAMBERS FOR THE RESPONDENT

[2014]DLCA4805
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													<main id="main" class="content" style="min-height: 60rem" >RUTH AYITEY AND 3 OTHERS<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE ADMINISTRATOR
GENERAL AND 2 OTHERS<o:p></o:p>(CO-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">

SUIT NO. HI/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;DATE: 19TH JUNE, 2014<o:p></o:p>

JAN
CHAMBERS FOR THE RESPONDENT<o:p></o:p>

</div>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>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”.<o:p></o:p>The
plaintiffs are dissatisfied with these conclusion of the trial court and have
appealed to this court praying that the whole decision be set aside, that we
declare the will of the late Jonathan Ebenezer Ayitey null and void and we
revoke the probate granted the Administrator General and grant letters of
administration in respect of the estates of the late J.E. Ayittey.<o:p></o:p>They
have the following grounds of appeal:<o:p></o:p></main>