2004
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana addressed whether a handwritten will of Moses Nii Ayikai Okine, dated 2 December 1986, was validly executed and thus entitled to probate. After the High Court denied probate for improper execution and the Court of Appeal substantially affirmed, executors Michael Darku Dodoo and Lawrence Danso Dodoo appealed. The Court analyzed section 2 of the Wills Act, 1971, holding that the testator’s signature may be acknowledged and that witnesses need only sign in the testator’s presence, not necessarily in each other’s presence. It gave little weight to a hostile attesting witness who contradicted the attestation clause, reaffirming the presumption of due execution. The Court refused to consider new evidence attached to the notice of appeal under rule 76. While recognizing that evidence on a customary samansiw admitted without objection could be considered, it held that relief cannot exceed pleaded claims and affirmed the Court of Appeal’s rejection of the samansiw. Probate was granted for the statutory will.
J U D G M E N T
ACQUAH CJ. I have had the benefit of reading in draft the judgment to be delivered by my learned brother Prof Kludze JSC. I agree with the reasoning and conclusions and I have nothing useful to add.
G. K. ACQUAH
CHIEF JUSTICE
BADDOO JSC. I also agree with the judgment of my brother Prof Kludze JSC.
S. G. BADDOO
JUSTICE OF THE SUPREME COURT
DR TWUM JSC. This is an appeal from the judgment of the Court of Appeal dated 10 May 2001. It substantially affirmed the judgment of the High Court given on 2 June 1999.
The facts
On 2 December 1986, one Moses Nii Ayikai Okine (the testator) made or purported to make a will of his self-acquired properties. It was handwritten. In it he appointed Michael Darku Dodoo and Lawrence Danso Dodoo, his executors. The testator died on 30 May 1989 and the executors applied for probate. It was granted by the High Court on 17 July 1989.
On 15 September 1989, Louis Ayitey Okine, Elizabeth Dedei Okine, Alfred Armah Okine, Francis Ayitey Okine, Victor Armah Okine and Mercy Dedei Okine (hereinafter referred to as the caveators) applied to the court for the revocation of the said probate on the ground that a caveat had been filed by them before the grant of the probate but unfortunately, this was not brought to the notice of the court. The probate was therefore set aside.
Upon the setting aside of the probate, the executors were served with a copy of the caveat. They then caused a warning to be served on the caveators under Order 60, rr 17 and 18 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). On 13 September 1989, the caveators filed their affidavit of interest. In it they alleged that the will was a forgery. The executors then applied, on notice to the caveators, for the grant of probate of the will. In their affidavit in support they denied, among others, that the will was a forgery. In paragraph (26) of their said affidavit, they prayed that probate be issued to them or in the alternative that the court should order the executors to issue a writ against the caveators. It would seem that the court made the order for a writ to be issued as prayed.
On 29 November 1989, the executors (as the plaintiffs) issued a writ of summons, accompanied by a statement of claim, against the caveators (as the defendants), claiming the following reliefs:
(i) An order for a grant of probate to the plaintiffs for the will of the Late Moses Nii Ayikai Okine who died on 30 May 1989. The said will is dated 2 December 19