NORA OTOO & OTHERS v. REUBEN OTOO & OTHERS

KUSI-APPIAH, J.A.: On 26th October, 2009, the High Court in Accra presided over by Ofosu Quartey J. entered judgment for the plaintiffs that by the Last Will and Testament of the late Edward Kabu Otoo dated 9th February, 1944 the late Gederah Tei Otoo, Joseph Kabufio Otoo, Tetteh Nkunor Otoo, Edward Kabu Nkunor Otoo Elijah Kabu Otoo and Nartey Tawiah Otoo were the beneficiaries of the income from the properties at Achimota, known as the Mobile Service Station and at Osu known as the American Embassy Annex.

Aggrieved by and dissatisfied with the said judgment, the defendants filed a notice of appeal dated 17th December, 2009 as follows:

“a The judgment is against the weight of evidence.

b Further grounds shall be filed on receipt of judgment and

proceedings.”

Pursuant to leave granted by this court, the defendants file additional grounds of appeal on 8th February, 2012 as follows:

Additional Grounds

“1 That the trial judge failed to appreciate that the plaintiffs/respondents lacked capacity to sue, they having failed to adduce any evidence in proof of their assertions that they were suing as executors/administrators of the estate of Joseph Kabufio Otoo (deceased), Edward Kabu N. A. Otoo (deceased) and Frank Nartey Tawiah Otoo (deceased), respectively.

2 That the trial judge completely misconstrued the true intent and effect of the last Will and Testament of Edward Kabu Otoo (deceased) executed on 9th February, 1944 by failing to appreciate the combined effect of clauses 6, 7 and 10.

3 That the trial judge erred in law when he wrongly relied on clause 8 of the said Will to hold that only the persons named in the said clause as joint tenants, were the sole beneficiaries of the income derived from the said properties, to the exclusion of other children of the testator.”

By a writ of summons dated 27th November, 2007 the plaintiffs/ respondent (plaintiffs for convenience) issued a writ in the High Court, Accra against the defendants/appellants (defendants for short) claiming the following reliefs:

“1 A declaration that by the Will of the late Edward Kabu Otoo dated the 9th of February 1944 the late Gederah Tei Otoo, Joseph Kabufio Otoo, Tetteh Nkunor, Edward Kabu Nkunor Otoo, John Narh Otoo and Nartey Otoo, John Narh Otoo and Nartey Tawiah Otoo were the beneficiaries of the income from the properties at Achimota, known as the Mobile Service Station and Osu known as the American Embassy Annex.

2 A declaration that the plaintiffs and other beneficiari