NORA OTOO AND OTHERS vs. REUBEN OTOO AND OTHERS [2014]DLSC2850

Date	2014-12-04
Suit No.	CIVIL APPEAL NO.J5/13/2015
Citation No.	[2014]DLSC2850

BENIN J.S.C.

GODFRED YEBOAH DAME ESQ. (WITH HIM FREEMAN SABBAH) FOR THE

DEFENDANTS /APPELLANTS/ APPELLANTS/APPLICANTS.

DIANA ASONA DAPAAH ESQ. FOR THE PLAINTIFFS/RESPONDENTS/ APPELLANTS /RESPONDENTS.

[2014]DLSC2850
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													<main id="main" class="content" style="min-height: 60rem" >NORA OTOO AND OTHERS<o:p></o:p>vs.<o:p></o:p>REUBEN OTOO AND OTHERS<o:p></o:p>&nbsp; [SUPREME COURT,
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.J5/13/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 4TH DECEMBER, 2014<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>GODFRED YEBOAH DAME ESQ.
(WITH HIM FREEMAN SABBAH) FOR THE DEFENDANTS /APPELLANTS/
APPELLANTS/APPLICANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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BENIN
J.S.C. SITTING AS A SINGLE JUSTICE OF THE SUPREME COURT&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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>

</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>BENIN, JSC:- <o:p></o:p>This matter is before the
Supreme Court in a review application. The Defendants/Appellants/Respondents/Applicants,
hereafter called the applicants, have filed their affidavit and statement of
case in the said application. By the present application the applicants are
asking the court to grant them leave to file a supplementary affidavit and
statement of case. The main ground for the application is that the Will of the
late Edward Kabu Otoo, hereafter called the Testator, which has been at the
heart of the dispute resulting in the application for review was invalid on
ground that the Testator was illiterate and the Will did not meet the
requirements of the law as regards a ‘jurat’. This fact became known during
interaction between the applicants and their new lawyers and the latter have
found it necessary to disclose this to the court since it would have an
important influence or effect on the decision of the court.<o:p></o:p>Paragraphs 9-14 of the
affidavit in support deposed to by the 1st applicant are germane to
this application. They read:<o:p></o:p>9. That the question as to
the literacy or otherwise of the late Edward Kabu Otoo had never been asked by
any of the previous counsel engaged by us and we thus, had not been in the
position to reasonably bring it up for the consideration or determination by
any court.<o:p></o:p>10. That in truth and in
fact, the late Edward Kabu Otoo was an illiterate incapable of appreciating the
import of the document alleged to have been signed by him, and, which contained
legal terminologies like joint tenancy.<o:p></o:p>11. That I am advised by
counsel and verily believe same to be true that as of the date of the execution
of the will, 9th February 1944……..there was in force the Illiterates
Protection Ordinance, 1912 (Cap. 262), which required a person writing any
document for or at the request of an illiterate to clearly and correctly read
over and explain the document to the illiterate person. This is required to be
evidenced through the execution of a ‘jurat’ clause.<o:p></o:p>12. That I am further
advised and verily believe same to be true that the writer of the document was
also required to state his full name and address at the foot of the document.<o:p></o:p>13. That a perusal of the
document held out so far to be the will of the late Edward Kabu Otoo will
reveal the absence of any clause showing a satisfaction of the express
requirements of……………….Cap. 262.<o:p></o:p>14. That I am advised by
counsel and verily believe same to be true that a presumption of validity of
the will in dispute cannot be made in the face of the irrefutable fact that the
alleged testator …..was illiterate, and in view of the absence of an
interpretation clause in the will. In essence, the alleged will of the late
Edward Kabu Otoo is invalid.<o:p></o:p>The affidavit goes on in
paragraph 16 to give the reason for the delay in raising this point; it states
‘That the failure to raise this point so far was neither advertent nor due to
an intention to overreach anyone, but simply due to the failure of previous
counsel to ask applicants herein that fundamental question relating to the
competence of the late Edward Kabu Otoo to execute the will in question without
the assistance of a person who could understand and read in the English
language.’ <o:p></o:p>The application was
accompanied by a statement of case. All the processes filed were duly served on
the Plaintiffs/Respondents/Appellants/Respondents, hereafter called the
respondents. The respondents answered the applicants by way of an affidavit
deposed to by their lawyer who filed no statement of case as required by rule
57 of the Supreme Court Rules, 1996, (C.I. 16).&nbsp;
Thus the respondents were not entitled to be heard except as to the
question of </main>