GEORGE OSEI KWAME & ORS v. OSEI AHENKRO
2016
COURT OF APPEAL
GHANA
CORAM
- AYEBI J.A. (PRESIDING)
- TORKORNOO J. A.
- DOMAKYAAREH J. A.
Areas of Law
- Civil Procedure
- Probate and Succession
- Evidence Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiffs, beneficiaries of Opanin Kwabena Nyanteng's Will, challenged its validity, claiming it failed to meet the requirements set for illiterate testators. The trial judge dismissed the suit without taking evidence, declaring the Will valid. On appeal, the court held that the Will satisfied the legal requirements as the language used and interpreter's name were included, and the executors were not wrongly sued. The judge's decision to dismiss the suit without a trial based on Order 33 Rule 5 CI 47 was upheld, and the costs awarded against the plaintiffs were deemed justified. The appeal was dismissed in its entirety.
JUDGEMENT
TORKORNOO, J. A:
There are two strands of complaints in this appeal. That the learned trial judge failed to hear the parties before entering a ruling that dismissed the suit, and that he wrongly evaluated the relevant document which was a Will and found it valid, when it lacked certain essential features of a Will executed by an illiterate.
The plaintiff appellants, who describe themselves as beneficiaries under the Will of Opanin Kwabena Nyanteng sued the executors named in his Will read after his demise. This was on 5th October 2009. The case of the plaintiffs was succinctly spelt out in their Statement of claim. They said that although the Will contained a jurat and a certificate of the counsel who prepared it, the jurat and certificate did not have required features and this invalidated the Will.
First, within the jurat, they said there is no record that anyone ‘read, explained and interpreted the contents of the will to the late Opanin Kwabena Nyanteng in a language he understood when he, purported to thumbprint it…’ They said that this makes the Will invalid
Within the certificate of the lawyer, there is no record of the language that the lawyer used to interpret the Will and they said this fails to provide vital information on how the lawyer interpreted the Will to the Testator.
They therefore sought:
A declaration that the Will of the late Opanin Kwabena Nyanteng dated 28th April, 2004 is invalid as nobody read, explained and interpreted the contents of the Will to the deceased in the language he understood before he purported to thumbprint it notwithstanding the fact that a jurat was provided for in the Will.
An order of perpetual injunction restraining the defendants whether by themselves, their servants or agents, personal representatives and all who claim title through them from exercising any rights under the said Will.
Any further orders that this Honourable Court may deem fit.
The defendants filed a defence to the action. Their position was that the fact that on the face of the Will the lawyer omitted to indicate the language in which the said Will was read and interpreted to the testator does not necessarily make the Will invalid. They described the plaintiffs’ claims as frivolous and counterclaimed.
The application for directions indicated that the primary issue that the plaintiff wanted resolved was whether the contents of the Will were read over and interpreted to the late Opanin Kwabena Nyanteng in accordance with l