JOSEPH AKONU-BAFFOE & ORS v. LAWRENCE BUAKU & ORS

J U D G M E N T

ANSAH, J.S.C.

The facts of this case are hardly contentious. In 1992, Thomas Kobina Bremansu executed a will and named the defendants/respondents/respondents (hereinafter “the respondents”) as executors. Upon Bremansu’s demise, they applied for and obtained probate to deal with his estate. When the respondents attempted to take charge of one of Bremansu’s properties in Takoradi, it became known that the late Bremansu had executed another will in 1995. The plaintiffs/ appellants/ appellants (hereinafter “appellants”) were named the executors of the latter will. The appellants consequently brought an action for “an order that probate of the estate of Thomas Kobina Barimansu granted to the defendants be called in and revoked for want of interest and for dissipating the estate.” The respondents counterclaimed and sought “an order setting aside the alleged will of the deceased dated 22nd day of February, 1997 on the grounds that it is not the deed of the deceased.” The trial judge entered judgment in favour of the respondents based on their counterclaim. The Court of Appeal affirmed the decision of the High Court on appeal. The appellants have brought the instant appeal on the following grounds:

i) That the Court of Appeal failed to give adequate consideration to the Appellant’s grounds of appeal.

ii) That the Court of Appeal erred in failing to appreciate the fact the trial court’s findings were not borne out by the evidence –

a. that the Court of Appeal failed to appreciate the fact that the deceased who was advanced in age could have thumb-printed the 1995 Will.

b. that the Court failed to appreciate that, aside the absence of a jurat, there were circumstances, facts and evidence on record that suggested that the 1995 Will was duly executed by the testator.

c. that the trial court having found as a fact that the testator was literate, the undue emphasis on the need for a jurat was not necessary.

d. that the Court failed to appreciate the fact that the trial judge erred in placing undue weight on the fact that a beneficiary of the 1995 Will, Ama Amissah, died before the execution of the Will, then in fact the actual date of death of Ama Amissah was not conclusively established; and that the devise does not necessarily invalidate the 1995 Will.

e. that the Court failed to appreciate that the Defendants’ whole defence hinged on the allegation of fraud, and that the allegation of fraud having not been proven the Plaintiffs were entitled