|
JUDGMENT
AMPIAH, JSC.:
This is an appeal from the
decision of the Court of Appeal
which affirmed the decision of
the trial High Court.
The plaintiffs are the children
of one Ama Owusuaa whose mother
was Akua Frema, a full-blood
sister of the late Shadrack
Kwaku Edusei. They brought the
action as the principal members
of the immediate matrilineal
family of the late Shadrack
Kwaku Edusei whose purported
‘Will’ is the subject-matter of
this dispute.
The late Shadrack Kwaku Edusei
died on 10th October, 1966 and
probate of his purported Will
was granted to Madam Akosua
Adoma and Akosua Anane jointly
on 15th December, 1980. The Writ
to recall and revoke the probate
and to declare the 'Will' as
null and void was issued on 13th
August, 1990.
In their Writ of Summons, the
plaintiff claimed for, among
others, that,
".... the purported 'Will'
alleged to have been made by the
said Shadrack Kwaku Edusei,
dated the 8th day of January,
1965 was not the act or deed of
the said late Shadrack Kwaku
Edusei and is void and of no
effect whatsoever".
The defendant denied the
allegation and counterclaimed
for,
"a declaration that the Will of
Shadrack Kwaku Edusei dated 8th
January, 1965 is valid".
Consequently the parties joined
issues on 'whether or not the
purported Will of the said
Shadrack Edusei dated the 8th
day of January was procured by
the defendant by fraud and is
therefore a forgery and
therefore null and void'.
The validity of the alleged will
was thus put in issue.
The alleged will was tendered in
evidence as Exhibit 1. The trial
judge having reminded himself
that the case concerned a
deceased person therefore it
must be looked at with great
care, proceeded to critically
analyse or evaluate fully the
evidence on record.
"The rule enunciated by Parke B
is that in every case the onus
lies on the propounders of the
Will to satisfy the Court that
the instrument is the Last Will
of a free and capable testator,
must, however, be taken, I
think, to refer to the first
stage so to speak, of the onus
for, the onus does not
necessarily remain fixed; it
shifts. Where there is a dispute
as to a Will those who propound
it must clearly show by evidence
that prima facie, all is in
order, that is to say, there has
been due execution and that the
testator had the necessary
mental capacity and was a free
agent. Once they have satisfied
the Court, prima facie, as to
these matters, it seems to me
the burden is then cast upon
those who attack the Will and
they are required to
substantiate by evidence the
allegations they have made as to
lack of capacity, undue
influence and so forth."
See—Johnson v. Maja 13WACA 290
at 292".
The plaintiffs offered evidence
of the defects in the execution
of the Will.
The judge said he was not
satisfied that the Will had been
executed by the alleged
testator. He held,
"That at the time of the death
of the late Shadrack Kwaku
Edusei, there was no Will of his
and that the purported Will had
been procured by fraud with the
sole purpose of denying the
plaintiffs what was due to
them".
There were in fact two
contrasting stories before the
Court. The trial judge was
entitled by law to prefer one in
accordance with the evidence.
This is exactly what the trial
judge did; he was not satisfied
that the evidence on record
showed a proper execution of the
Will.
In Eshun v. Paintsiwah (14 WACA
306) Forster-Sutton, observed,
"where the testator was blind or
illiterate, the Court shall not
grant probate of the Will, or
administration with the Will
annexed, unless the Court is
first satisfied, by proof or by
what appears on the face of the
Will, that the Will was read
over to the deceased before its
execution, or that he had at the
time, knowledge of the
contents".
The evidence about execution of
the will raised suspicion
sufficient to make the trial
judge unsatisfied with due
execution.
The Court of Appeal also
critically evaluated the
evidence to find out whether the
findings by the trial Court were
supportable. In its opinion the
learned trial judge made a
critical analysis of the
evidence before him and made
findings of fact. On the
available evidence, the Court of
Appeal found the trial judge's
findings on material facts in
issue and his assessment of the
rival claims neither
unreasonable nor unsupportable
by the evidence. It concluded
that there was ample
justification for the findings
made and that the Court should
not interfere with them.
I have also read and critically
evaluated the evidence on record
and I am satisfied that the
findings are amply supported by
the evidence.
"An appellate court should not
reverse findings of fact made by
a trial Court unless those
findings are not supported by
the evidence on record — See
Atadi v. Ladzekpo (1981) GLR 218
also, Nkansah Vs. Adjabeng and
ano. (1961) GLR 465".
The findings of the lower courts
having been concurred in by the
appellate Court, this Court as
an appellate can only follow the
principle laid down in the
Achoro and ano. V. Akenfela and
ano. Case (1996-97) SCGLR 209.
It is this,
"Now in an appeal against
findings of fact to a second
appellate Court, like this
Court, where the lower appellate
court had concurred in the
findings of the trial Court
..... this Court will not
interfere with the concurrent
findings of the lower courts
unless it is established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, is
apparent in the way in which the
lower tribunals dealt with the
facts"
I do not find any such blunder
or error.
An issue was taken rather
unconvincingly on the issue
whether or not the judgment not
having been given within six
weeks as required by the Rules
of the Court, the judgment was
null and void. It was not enough
just to state the law; there
must be evidence for
consideration by the Court. This
issue was not taken at the Court
below but, if indeed that issue
would make a judgment null and
void, then this Court would be
entitled to look at it. The High
Court judgment was given on 25th
October, 1996 after the case had
been adjourned for judgment on
2nd August, 1996. Addresses were
filed between 11/6/96 and
21/6/96. It is not shown when
these addresses were brought to
the notice of the judge who had
adjourned the judgment to
2/7/96: This date fell within
the legal vacation. It is
therefore unclear when the six
week-period expired. The
appellant who raised the issue
was required to supply the
necessary details. It is not the
duty of this Court to go
fetching for evidence. I would
hold therefore that on the
available evidence the judgment
of the High Court was delivered
within the statutory period.
From the totality of the
evidence on record, and on the
authorities, I am unable to
disturb the decision of the
Court of Appeal. I would affirm
the decision and dismiss the
appeal.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
WIREDU, C.J.:
I agree.
E.K. WIREDU
CHIEF JUSTICE
ACQUAH, J.S.C.:
I agree.
G.K. ACQUAH
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:
I agree.
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
AKUFFO(MS), J.S.C.:
I also agree.
S.A.B. AKUFFO(MS)
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Richard Asamoah for
Appellant.
Mr. J.K. Kodua for Respondent.
|
