DR. KWAME APPIAH POKU v. KOJO NSAFOA POKU

J U D G M E N T

ATUGUBA, JSC:-

On 29/4/2010 we unanimously dismissed the appeal in this case but reserved reasons.

We now proceed to give them.

Facts of the case

The late Francis Kojo Poku a well known industrialist by his last will and testament dated 11th October 2001 appointed the Appellants as executors of his will. The executors then applied and were granted probate on 11th February 2003 by the High Court, Kumasi. The Respondents herein then Plaintiffs in Suit No. CS 107/03 issued a writ in the High Court Kumasi against the Appellants then Defendants claiming, inter alia, a declaration that the grant of probate of the will of the late Francis Kojo Poku to the executors was null and void and ought to be revoked.

The High Court subsequently on 19th October 2004 gave judgment for the Plaintiffs in the said suit No. CS107/03 declaring that the will of the late Francis Kojo Poku was null and void in that the testator was blind and therefore could not have executed the will allegedly ascribed to him.

In arriving at its decision, it is alleged, the High Court had relied, inter alia, on the evidence of one Dr. Kenneth Asubonteng (PW4) the 7th Respondent herein. This is what the High Court allegedly said:

“PW4’s evidence coupled with the various instances the Plaintiffs gave in their evidence as constituting facts of their father’s blindness I find to be sufficient proof that the late Mr. F.K. Poku as at October 11th 2001 was blind.”

Subsequently the plaintiffs/appellants alleged that they had come by legally verifiable information which showed clearly that the evidence of Dr. Kenneth Asubonteng (PW4) in Suit No. CS 107/03 was fraudulent and the records and documents he had presented at the trial were complete fabrications. That Dr. Kenneth Asubonteng’s evidence was false and its sole purpose was calculated to deceive the court, and in fact did succeed in misleading the court to arrive at its decision of 19th October 2004.

The Plaintiffs/Appellants thereupon sued in the High Court Kumasi, claiming, inter alia,

“(i) Declaration that the judgment of the Kumasi High Court dated 19th October 2004 in Suit No. CS107/03 delivered by Her Lordship Mrs. A. Dordzie in favour of the Defendants herein, was obtained by fraud and therefore the same ought to be set aside.”

The Respondents herein unsuccessfully applied to the trial court to stay the said proceedings. On appeal the Court of Appeal allowed the same and dismissed the said action “as frivolous and vexa