EMMANUEL YAW KUMI vs. KOFI ANSU & 2 OTHERS AND EMMANUEL YAW KUMI vs. YAW PETER & 3 OTHERS [2018]DLCA11556

EMMANUEL YAW KUMI vs. KOFI ANSU & 2 OTHERS AND EMMANUEL YAW KUMI vs. YAW PETER... [2018]DLCA11556

Date	2018-12-18
Suit No.	SUIT NO. H1/12/2018
Citation No.	[2018]DLCA11556

ADUAMA OSEI JA (PRESIDING)

SENYO DZAMEFE JA

WELBOURNE (MRS.) JA

KWAME GYAN-KONTOH FOR DEFENDANTS/ APPELLANTS.

[2018]DLCA11556
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL YAW KUMI<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>KOFI ANSU &amp; 2 OTHERS<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>AND<o:p></o:p>EMMANUEL YAW KUMI<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>YAW PETER &amp; 3 OTHERS<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT OF APPEAL (CIVIL DIVISION), KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT
NO. H1/12/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 18TH DECEMBER, 2018<o:p></o:p>

</div>COUNSEL<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoListParagraphCxSpLast" style="margin:0cm;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">KWAME GYAN-KONTOH FOR DEFENDANTS/ APPELLANTS.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:150%;
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solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;ADUAMA OSEI JA:<o:p></o:p>&nbsp;This
is our judgment in an appeal against a judgment of the High Court, Sunyani,
dated 16th July, 2012. The judgment appealed against can be found at
page 214 to page 223 of the Record of Appeal, and the Notice of Appeal can also
be found at pages 224 and 225 of the said Record. At pages 321 and 322 of the
same Record, there is a Notice of Appeal in respect of a ruling of the High
Court dated 4th February, 2015. No submissions have however been
filed in that appeal and this judgment, therefore, does not concern itself with
that appeal.&nbsp; <o:p></o:p>&nbsp;Also,
it must be observed that the date of the judgment, the subject matter of this
judgment, is not absolutely certain. As noted above, the judgment can be found
at page 214 to page 223 of the Record. At page 214 can be found a recording of a
proceeding before the late Justice Francis K. Opoku on Monday, 16th
July, 2012, which seems to suggest that the judgment was delivered on the said
date, 16th July, 2012. Observations made by Counsel for the
Defendants in his written submission however suggest that the date is not that
certain. Counsel notes that the judgment, which had apparently been written by
the late Justice Opoku, was delivered in open court for the first time by His
Lordship Justice Beresford Acquah on 21st November, 2014. Counsel
says however that when he applied for a copy of the judgment, the copy he
received was dated 5th November, 2013. That copy appears at page 296
to page 305 of the Record. Counsel therefore finds it strange that the judgment
found at page 214 to page 223 is dated 16th July, 2012. It is
significant to note in this respect that the Notice of Appeal gives the date of
the judgment appealed from as 21st November, 2014.<o:p></o:p>&nbsp;It
would have been helpful if the Plaintiff had reacted to the observations made
by Counsel for the Defendants regarding the date of the judgment. The written
submission of the Plaintiff does not however comment on the said observations
and this Court can only assume, from the Plaintiff’s silence, that the true
date of the judgment is not an issue between the parties. This judgment
therefore considers, exclusively, the issues raised by the Notice of Appeal.<o:p></o:p>&nbsp;We
may now look at the background to the judgment appealed from:<o:p></o:p>By
a writ of summons issued in the High Court, Sunyani, on the 1st of
June, 2007, Emmanuel Yaw Kumi, hereinafter referred to as “the Plaintiff”, as customary successor of the late Opanin Kwasi
Asante (deceased), for himself and his maternal family, sought against Kofi
Ansu, Rev. Father Robert Kwarteng and Stephen Asante jointly and severally an
order revoking the probate of a will of the deceased granted to Kofi Ansu and
Rev. Father Robert Kwarteng as executors on the 21st of May, 2007,
on the grounds that the said will was a forgery and was invalid in law. The
action commenced by this writ is Suit No. C.7/23/07. <o:p></o:p>&nbsp;In
the statement of claim that accompanied the writ of summons in Suit No.
C.7/23/07, the Plaintiff stated that the deceased was his uncle who had died on
the 17th of July, 2006. The Plaintiff alleged in the statement of
claim that at a family meeting at which he was appointed the customary
successor of the deceased, Kofi Ansu had claimed that the deceased had made a
will during his lifetime and that he, Kofi Ansu, had been appointed one of the
executors under the said will. The Plaintiff stated that he had told Kofi Ansu that
the family did not believe the deceased had made a will and that the properties
the deceased held during his lifetime were all family properties. He said Kofi
Ansu had further been told that if the deceased made any will affecting
properties of the family, the family would oppose the will. With these and
other </main>