IN RE SACKITEY (DECD.); DZAMIOJA ALIAS ASHONG v. SACKITEY AND ANOTHER
1982
HIGH COURT
GHANA
CORAM
- ASARE-KWAPONG J
Areas of Law
- Probate and Succession
- Evidence Law
- Civil Procedure
- Property and Real Estate Law
1982
HIGH COURT
GHANA
CORAM
AI Generated Summary
After the death of Joseph Bismark Osei Sackitey, an executor sought recovery of possession of real property in Koforidua and a 38‑rope cocoa farm at Brenya Akwabourso, plus an account of harvested cocoa proceeds, from Sackitey’s daughter and son. Although the defendants had earlier obtained letters of administration with the 1965 will annexed, the High Court evaluated the validity of a subsequent 1975 will, read to the family in Koforidua. Crediting the attesting witness, the court found the testator signed in compliance with statutory formalities and possessed testamentary capacity; it rejected claims of blindness, paralysis preventing signing, and undue influence, and concluded that a jurat was unnecessary for an educated testator. Applying Act 360, the court held the 1975 will revoked prior wills. Under Act 63, the executor had standing. The court ordered recovery of the properties, payment of ¢59,094 for cocoa proceeds to the executor for the beneficiaries, and awarded costs. The counterclaim to set aside probate was dismissed.
JUDGMENT OF ASARE-KWAPONG J.
In this case the plaintiff who is an executor of the will of the late J. B. O. Sackitey, claims against the defendants herein for an order for recovery of possession of:
"(a) two-storey building No. NK. 72, Koforidua together with the outhouse attached to it and the self-contained outhouse adjacent to the two storey-building and 38 ropes of cocoa farm at Brenya Akwabourso bounded on the north by Subri River, south by Nsubadu River, east by Tetter Kado Mawunge's property and the west by River Birim which the defendants forcibly and unlawfully seized without authority;
(b) order for account and payment to the plaintiff of all moneys wrongly received by the defendants."
In his statement of claim accompanying the writ of summons, the plaintiff alleged the following particulars of his claim:
"1. The plaintiff is one of the executors of the will of the late Joseph Bismark Osei Sackitey of Koforidua.
2. The defendants are a daughter and a son respectively of the deceased.
3. The said Sackitey who died on 26 May 1979 executed a will and appointed me as one of his executors. The probate was granted on 23 December 1980.
[p.1200]
4. Before the probate was granted the two defendants herein encroached upon the estate of the deceased and falsely lay claim to the properties named above, even though the will of the deceased was read in their presence and to their hearing.
5. According to the caretakers of the farm, the two defendants have collected the proceeds of cocoa harvested and made use of the money without permission from the plaintiff."
The defendants resisted the claim and in their statement of defence averred in paragraphs 5 and 6 that: On 10 November 1980 they were jointly granted letters of administration with the will annexed of their late father's estate by the High Court, Accra after the plaintiff had refused to take out probate as one of the executors named in the said will dated 16 December 1965. The plaintiff further failed to issue a caveat or otherwise oppose the defendants' application for letters of administration. The defendants also categorically denied the allegation in paragraphs 4 and 5 of the statement of claim and in reply stated that they had been granted letters of administration of their late father's estate issued from the High Court, Accra, and dated 10 November 1980 and the said letters of administration have not been revoked.
The defendants also averred in paragraph 9 of the statement of de