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JOSEPH KWAMIN OFORI ESHUN OF CAPE COAST
V.
ADWUA PANTSIWIA OF CAPE COAST
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
31ST DAY OF MARCH, 1953
2PLR/1953/24 (WACA)
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OTHER CITATION(S)
2PLR/1953/24 (WACA)
(1953) XIV WACA PP. 306 – 307
LEX (1953) – XIV WACA 306 – 307
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
IN THE MATTER OF THOMAS ESHUN, LATE OF CAPE COAST (DECEASED)
JOSEPH KWAMIN OFORI ESHUN OF CAPE COAST AS EXECUTOR OF THE LAST WILL OF THE SAID DECEASED – Appellant
AND
ADWUA PANTSIWIA OF CAPE COAST AS ADMINISTRATRIX OF THE ESTATE OF THE SAID DECEASED – Respondent
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ORIGINATING COURT(S)
Appeal by plaintiff: No. 97/52
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REPRESENTATION
F. Awoonor Williams — for Appellant
K. Adumua-Bossman — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Wills – Probate – Illiterate testator – Civil Procedure Rules, Order 49, rule 29 – How properly treated
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CASE SUMMARY
Order 49, rule 29 provides that:-
“Where the testator was blind or illiterate, the Court shall not grant probate of the will, or administration with the will annexed, unless the Court is first satisfied, by proof or by what appears on the face of the will, that the will was read over to the deceased before its execution, or that he had at that time knowledge of its contents.”
The appellant sued for probate of a will as being the last will of the deceased. The deceased was illiterate; but the requirement of the rule was not met. The trial Judge also did not believe the appellant’s story of how the will was found and doubted the authenticity of the signature of one of the attesting witnesses. For all those reasons probate was refused by the Judge. On appeal:-
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal):
The refusal was based on good reasons.
1. The plaintiff failed to satisfy the trial Judge with evidence as to how the will was discovered and as to the authenticity of the signature of one of the attesting witnesses.
2. Here, there is credible evidence that the literacy of the deceased alleged testator did not extend beyond the capacity to sign his name. In such circumstances Order 49, rule 29 of the Civil Procedure Rules enjoins the Court not to grant probate of a will unless it is satisfied, by proof or by what appears on the face of the will, that the will was read over to the deceased before its execution, or that he had at that time knowledge of its contents. No such proof was offered and there is nothing on the face of the will to indicate that this requirement was met.
3. The principle “Omnia praesumuntur rite esse acta” should not be applied in this case.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case the plaintiff claimed as executor under what he alleged was the last will, dated 20th April, 1944, of Thomas Eshun, who died on the 10th January, 1950, for probate of the will in solemn form of law, and for revocation of letters of administration of the personal estate of the deceased granted to J. Phillip Yankson, since deceased, and the defendant, on the 19th May, 1950. The writ of summons was issued against the defendant as administratrix, she having entered a caveat against the granting of probate of the will in question.
The facts are fully set out in the judgment appealed from, it is, therefore, sufficient to say that the learned trial Judge did not accept the evidence led by the plaintiff regarding the circumstances in which the will is alleged to have been discovered. As to this, he found that the evidence was untrue and that an attempt had been made deliberately to mislead the Court.
The plaintiff also failed to satisfy the trial Judge as to the authenticity of the signature of one of the attesting witnesses, Kodwo Nyame. Comparing the signature alleged to be his on the will, with his unquestioned signature on the conveyance, exhibit “D”, the doubts expressed by the learned trial Judge are not surprising.
The trial Judge also found that the probabilities are that the literacy of the deceased did not extend beyond the capacity to sign his name, and there was clearly evidence upon which he could properly come to that conclusion. In such circumstances Order 49, rule 29 of the Civil Procedure Rules enjoins the Court not to grant probate of a will unless it is satisfied, by proof or by what appears on the face of the will, that the will was read over to the deceased before its execution, or that he had at that time knowledge of its contents. No such proof was offered and there is nothing on the face of the will to indicate that this requirement was met.
Counsel for the appellant urged that the principle “Omnia praesumuntur rite esse acta” should be applied in this case. If the only doubt about this will was the fact that there is no attestation clause, that submission would be entitled to some weight, but I am unable to agree that it would be right to extend the principle to cover a case such as this.
For the reasons I have given I am of the opinion that the judgment appealed from ought to be affirmed, and I would dismiss this appeal with costs fixed at £17 6s. 0d.
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COUSSEY, J. A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal dismissed.
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