NORA OTOO EMMANUEL OTOO FELIX NORTEY OTOO v. REUBEN RICHARD OTOO & OTHERS

BENIN, JSC:-

This matter is before the Supreme Court in a review application. The Defendants/Appellants/Respondents/Applicants, hereafter called the applicants, have filed their affidavit and statement of case in the said application. By the present application the applicants are asking the court to grant them leave to file a supplementary affidavit and statement of case. The main ground for the application is that the Will of the late Edward Kabu Otoo, hereafter called the Testator, which has been at the heart of the dispute resulting in the application for review was invalid on ground that the Testator was illiterate and the Will did not meet the requirements of the law as regards a ‘jurat’. This fact became known during interaction between the applicants and their new lawyers and the latter have found it necessary to disclose this to the court since it would have an important influence or effect on the decision of the court.

Paragraphs 9-14 of the affidavit in support deposed to by the 1st applicant are germane to this application. They read:

9. That the question as to the literacy or otherwise of the late Edward Kabu Otoo had never been asked by any of the previous counsel engaged by us and we thus, had not been in the position to reasonably bring it up for the consideration or determination by any court.

10. That in truth and in fact, the late Edward Kabu Otoo was an illiterate incapable of appreciating the import of the document alleged to have been signed by him, and, which contained legal terminologies like joint tenancy.

11. That I am advised by counsel and verily believe same to be true that as of the date of the execution of the will, 9th February 1944……..there was in force the Illiterates Protection Ordinance, 1912 (Cap. 262), which required a person writing any document for or at the request of an illiterate to clearly and correctly read over and explain the document to the illiterate person. This is required to be evidenced through the execution of a ‘jurat’ clause.

12. That I am further advised and verily believe same to be true that the writer of the document was also required to state his full name and address at the foot of the document.

13. That a perusal of the document held out so far to be the will of the late Edward Kabu Otoo will reveal the absence of any clause showing a satisfaction of the express requirements of……………….Cap. 262.

14. That I am advised by counsel and verily believe same to be true that a presumption of