MRS. COMFORT JOYCE WEREKO-BROBBY & OTHERS v. PETER AGYEI KUFOUR & ANOTHER
2013
COURT OF APPEAL
GHANA
CORAM
- AYEBI J.A. (PRESIDING)
- IRENE DANQUAH (MRS.) J.A.
- TANKO AMADU J.A
Areas of Law
- Civil Procedure
- Probate and Succession
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arose from a ruling by the High Court (Land Division), presided over by His Lordship Eric Baah, dismissing a motion by the defendants to strike out a suit concerning the estate of the late Bernard Mensah Kufour, Chief of Nkawie, who died in London in 1976. The plaintiffs alleged that Kufours true last will was made in London on 16 October 1964 and challenged dealings by the defendants under a probate granted on a Ghana will. They sought declaratory reliefs and later amended two endorsements to remove explicit references to the Ghana will. The Court of Appeal, per Ayebi J.A., held the action was in substance a probate action requiring mandatory preliminary steps under Order 66 (notice to bring in the grant before issuing a writ). Examining the pleadings and prior High Court suit No. C7/04/2010 before Justice Iddrisu Mahama, the court found non-compliance to be fundamental (not curable by Order 81), the amendment ineffective, and the refiling an abuse of process. The appeal was allowed, rendering the action a nullity.
JUDGMENT
AYEBI J.A.
This interlocutory appeal has come to us from the ruling of the High Court, Land Division dated 18th July, 2011 presided over by His Lordship Eric Baah. The ruling was delivered following upon a motion filed by the defendants to strike out the writ of summons and statement of claim on the grounds stated therein with a supporting affidavit.
The subject matter of the suit itself concerned the estate of the late Bernard Mensah Kufour, Chief of Nkawie in Ashanti. He died in London on 23rd March 1976 possessed of considerable properties both in Ghana and United Kingdom. From the endorsement and the statement of claim of the plaintiff, the deceased left behind two wills – a Ghana will dated 10th October 1964 and a London will dated 16th October 1964. It appeared from the face of the pleadings that the defendants were dealing with certain properties of the deceased on the basis of the probate granted them on the Ghana will. The plaintiffs questioned the existence and the validity of the Ghana will in view of the London will which was later in time.
The plaintiffs by their writ of summons sought several declaratory reliefs but principally that;-
a. A declaration that the late Bernard Mensah Kufour’s will executed in England on 16th day of October 1964 was his true and last will.
b. A declaration that by reason of the two search results from this Honourable court, the late Bernard Mensah Kufour did not execute or deposit any will in the Registry of this Honourable court nor was any said will of the deceased purportedly executed on the 9th day of May 129964 admitted to probate by this Honourable court.
c. A declaration that the purported Ghana will of Bernard Mensah Kufour which was purportedly executed by him on the 9th of may, 1964 in as far as it does not carry his signature and the signatures of the two witnesses to the will is null, void and of no effect/ or in the alternative a declaration that the purported Ghana will of the deceased purportedly executed by him on 9th day of may 1964, even if it exists is not his true and last will by reason of the deceased’s last will dated 16th day of October, 1964.
d. A declaration that by reason of the purported Ghana will of the deceased being null and void or not being his true last will, any distribution of the deceased’s estate in Ghana is null and void and for that reason the estate of the deceased in Ghana is falls (sic) into intestacy per the provisions of Section 2(2) of the Intestate S