Kwashies and 7 Others Vrs Aklade [2023] GHAHC 50 (20 April 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA ON THURSDAY THE 20TH DAY OF APRIL, 2023 BEFORE HIS LORDSHIP JUSTICE WILLIAM BOAMPONG, HIGH COURT JUDGE SUIT NO. BFA/29/2009 1. PELMOLINE KWASHIE PLAINTIFFS 2. KUDZOE FUMMEY 3. KUMA COMFORT FUMMEY 4. ADZOYO FUMMEY 5. ESI FUMMEY 6. GRAHAM FUMMEY 7. MARGARET FUMMEY 8. ELIZABETH FUMMEY ALL OF HOUSE NO. C932/13 MAAMOBI-ACCRA VS MRS. VERGINIA AKLADE (NEE FUMMEY) DEFENDANT HOUSE NO. C932/13 MAAMOBI - ACCRA J U D G M E N T “My understanding is that a Will is a very special and solemn legal document in which a person declares his wishes as to how his property should be distributed, disposed of or managed after his death, and the greatest respect due to a deceased person is in my opinion, to give effect to his ‘Last Will and Testament’ unless there are compelling reasons militating against doing so”. After the grant of probate of the last Will and Testament of Late John Wisdom Humphrey Fummey had been granted by the High Court Accra to the Defendant, the Plaintiff herein felt compelling reasons why same ought not to have been granted to the Defendant. Pursuant to that the Plaintiffs had instituted this action claiming against the Defendant as follows:- 1) A declaration that the Probate granted to Mrs. Virginia Aklade (Nee Fummey) as the sole Executor of the Estate of late John Wisdom Humphrey Fummey on the 4th September, 2007 is invalid, void and of no effect. 2) An Order revoking and setting aside the grant of Probate in respect of the Will of late Wisdom Humphrey Fummey to the Defendant by the High Court, Accra on the 4th September 2008. 3) An Order for Account by the Defendant from the date of Probate to the date of Judgment. 4) Perpetual Injunction restraining the Defendant, her agents, assigns, servants or anybody from carrying out, holding themselves in any manner or as executor or trustees or trust body of the estate of the late John Wisdom Humphrey Fummey. 5) Any other reliefs(s) as to the Court seems to meet. The Defendant on the other hand sees the grant of the Probate to her to be proper. She sees the codicil as invalid and improper. The Defendant has thus Counter-claimed again the Plaintiffs as follows:- 1. “An Order excluding the codicil from the Will of the Deceased Testator as it was fraudulently obtained”. PLAINTIFFS CASE: The 1st Plaintiff is the widow and one of the Executors of the Will of late John Wisdom Humphrey Fummey who died on the 4th August 2007. The 2nd – 8th Plaintiffs are surviving children of late John Wisdom Humphrey Fummey. Defendant is also a surviving child of the late John Wisdom Himphrey Fummey. According to the Plaintiffs, the late John Wisdom Humphrey Fummey on the 20th October 1993 made a Will and subsequently a codicil. The 1st Plaintiff, Defendant and one Mr. R. A. Amegashie were appointed as the Executors of the said Will. The Plaintiffs state that they engaged one Lawyer Gallant Akorly to prepare the Application for Probate. When the Plaintiff and the said Mr. R. A. Amegashie appended their marks on the Affidavits in Support of the Application for Probate, the Defendant refused to append her signature on the grounds that the codicil should be excluded. The Defendant however unknown to the 1st Plaintiff and Mr. Amegashie engaged another lawyer to apply for the Probate to her as the sole Executor. That Court however ordered that the other Executors should be joined to the Probate as Applicants or they should renounce Probate. When the Plaintiff and Mr. Amegashie were waiting for that to be done, they were surprisingly slapped with a Probate purportedly granted to the Defendant as the sole Executor. The Plaintiffs state that the supposed grant of the Probate to the Defendant was characterized by patent substantial anomalies and malpractices because (1) The Estate of the deceased was woefully undervalued by the Defendant. (2) The Defendant faked the probate which she claimed was granted by the Court. (3) The probate on its face valued suggest that it was granted without the codicil. DEFENDANT’S CASE: The Defendant is a surviving child of the Testator. Defendant admits the capacities under which the respective Plaintiffs brought their action. The Defendant avers that the late John Wisdom Himphrey Fummey deposited a Will at the High Court, Accra on the 20th October 1993 however, whilst on death bed, the Plaintiffs forced him to thumbprint a codicil. Defendant denies that the purported codicil was deposited at the Registry of the High Court, Accra. Defendant also contends that she did not refuse to join the two main Executors to apply for the Probate. She rather applied to the Court for an appointment of a Receiver/Manager to manage the estate of the deceased when she saw that the Plaintiffs were intermeddling with the estate of the deceased. Defendant further states that she applied for the Probate after consulting the Co-Executors but they refused to join her in the application for Probate. According to the Defendant she was granted the Probate by the High Court, Accra on the 25th September 2008. ISSUES: At the close of pleadings the following issues were set down for trial. 1. Whether or not the estate of deceased was undervalued? 2. Whether or not the Probate granted to the Defendant on the 4th September 2007 was fraudulent? 3. Whether or not the Probate granted to the Defendant was granted with the Notice of the codicil? 4. Whether or not the codicil was prepared by the then lawyer for the 1st Plaintiff without any authorization from the deceased? 5. Whether or not the Probate was granted on the 28th September 2008? Additional Issue: 1. Whether or not the codicil was fraudulently obtained? Determination of Issues: I will determine Issues (b) and (e) together (b) Whether or not the Probate granted to the Defendant on 4th September 2007 was fraudulent? (e) Whether or not the Probate was granted on the 28th September, 2008. The Exhibits filed by the Parties in this trial revealed that there are two probates with different dates on the records. The one tendered by the Plaintiffs as Exhibit ‘E’ is dated 4th September 2008. The other one tendered by the Defendant as Exhibit ‘2’ is also dated 28th September 2008. The records of proceedings dated 11th Day of December 2009 reveals an Order of the Court that Counsel for the Parties should check from the Registry of the High Court the specific date the Probate was granted in respect of the “Will” of John Wisdom Humphery Fummey. The date of the grant of the Probate therefore became an issue. Pursuant to that on the 5th January 2014, the Registrar of the High Court, Probate and Administration Division wrote to the Court. This letter forms part of the records in this case. For the sake of clarity I will sacrifice beverity and reproduce the content of the said letter as follows: “RE CONFIRMATION OF PROBATE Your letter of 8th January 2014 refers: In response to the deposition therein made, I hereby state as follows: That on 4th September, 2008, Counsel for Applicants applied for a grant of Probate to the Last Will and Testament of John Wisdom Humphery Fummey. On the scheduled date that is 4th September, 2008 the Court Ordered the Registrar of this Court to write to Palmoline Kwashie and R. A Amegashie either to join the Applicant or to renounce Probate. The Registrar complied with the Order and invited the Parties on 12th September 2008. The application was then adjourned to 25th September 2008. On that day there was no indication on the docket as to whether the said witness were present but the Court granted the application for Probate. In view of the foregoing, it is abundantly clear that the Probate was granted on 25th September 2008 as appears on the Probate. It is correct that two Probates were granted. I hereby confirm that the records available in this Court, the Probate application was granted on 25th September 2008. In case there is any doubt as to the authenticity of this, the Court can if it wishes to invite the Registrar to produce the docket for examination I am most obliged. Signed Solomon N. A. Botchwey” (Registrar) The contents of this letter speaks for itself. When the letter was filed none of the Parties also applied for the Registrar to appear before the Court for Cross- Examination. Indeed per the proceedings in this case complied with the letter written by the Registrar of the High Court, Probate and Administration Division, I hold that the probate of John Wisdom Humphrey Fummey was granted by this Court but differently constituted on the 25th September 2008. There is another probate drawn on the case docket and also tendered by the Plaintiffs as Exhibit ‘E’. This particular one although drafted and drawn and dated as 4th September 2008 is not covered by the records of proceedings in this case, since no Probate was granted by this Court on the 4th September 2008. I therefore rule that the grant of probate in respect of John Wisdom Humphrey Fummey dated 4th September 2008 was rather obtained by fraud. The next crucial issue the Court would raise for determination “as to whether or not the Defendant was aware of the codicil at the time the Defendant applied for the probate. The Counter-Claim filed by the Defendant clearly shows that the Defendant was aware of the codicil at the time the Defendant was applying for the probate. Same is read as follows: “The Defendant repeats paragraphs 1,2,3,4,5,6,7,8,9,10,11,12, above and Counter-claim for an Order excluding the codicil from the Will of the Deceased Testator as it was fraudulently obtained. Particulars of Fraud 1. The codicil was prepared by the then lawyer for 1st Plaintiff without authorization from the Deceased. 2. The Deceased did not have the mental capacity to review his Will as he was paralyzed by stroke and had a mental condition resulting in his hospitalization at 37 Military Hospital. 3. The Deceased was forced to thumbprint the codicil prepared by the then lawyer for 1st Plaintiff barely six (6) days to his death. This is what transpired between Counsel for the Defendant and the Registrar of the Probate and Administration Division of the Accra High Court. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. 1. “Can you tell the Court when the Will was deposited? The Will was deposited on 4th February 1994. Can you also tell this Court when the codicil was deposited in the Registry? It was deposited on the 31st July 2007. Can you also tell this Court whether or not this two documents were read to the family of the Late John Wisdom Humphrey Fummey when he passed on? Yes My Lord, they were read. Can you tell the Court the day this reading took place per the records of the Court? They were read on the 19th November 2007. Per the records of the Court, can you also tell the Court those who were present when the Will was read? Yes My Lord. They were 7 in number. Can you give the names per your records? Yes My Lord, they are Leo G. K. King 2. 3. 4. 5. 6. 7. Margaret A. Fummey Virginia M. Fummey Aklade Graham A. Fummey Margaret Fummey Patience Kwashie and Humphred Kodzo Fummey The Registrar of the Probate and Administration Court gave evidence and answered all the question per the Records of the Court on the case docket. I have no doubt whatsoever to doubt the evidence of the Registrar and I have no good reason not to believe same. From the evidence led by the Registrar I hold firmly as follows:- 1. The Defendant was aware of the codicil at the time she applied for the Probate same is covered by her pleadings in her Counter-Claim. Defendant was also present when the codicil was read by the Registrar. 2. The Will was deposited at the Registry of the High Court, Accra on the 4th February, 1994. 3. The codicil was also deposited at the Registry of High Court, Accra on the 31st July 2007. 4. The Court made no reference to the codicil when the Probate was granted to the Defendant on the 25th September 2008. This imply that the Defendant did not draw the Court’s attention to the codicil at the time the Court was granting or granted the Probate even though same was read in the presence of the Defendant and same is also covered in the Defendant’s pleadings. Now this important document that is the “codicil” of which this whole trial is centered on was rejected in evidence. What therefore is the legal effect of same? To begin with the Plaintiff had tried to urge upon this Court to accept the codicil. The Defendant on the other hand had prayed the Court to exclude the codicil from the Will. They both copiously referred to the codicil in their pleadings. This simply means that both Parties admit the existence of the codicil. Same been rejected in evidence would not take the fact of its existence away. All the Parties in this suit do not dispute the existence of the codicil. It is rather its authenticity which is been challenge by the Defendant. What is more? There was a lot of issues surrounding the rejection of the codicil in evidence when the first two attempts were made but failed. Finally when the issues were addressed the Court allowed PW2 to tender the codicil in evidence but this attempt also failed. For this time the grounds for rejection of the codicil into evidence was that same was not certified as a true copy of same. This grounds of rejection was therefore based purely on technical grounds. It does not therefore take the fact away that the said codicil still did exist. I may purse here also to comment on the evidence of the Forensic Expert (CW1). The Result of the Report tendered in by CW1 and tendered as CW1 stated among others in its paragraph 3 as follows:- “Result of Comparison. The forensic analysis of the above document revealed that; a) The thumbprint on the codicil against the name JOHN WISDOM FUMMEY mentioned in paragraph 2(b) do not contain sufficient ridge characters for effective comparison due to poor technique in taking the fingerprint. b) This implies that this outfit cannot confirm that the two thumbprints were authored by the same person John Wisdom Fummey” When CW1 was put on Cross-Examination by the Lawyers of both Parties, CW1 could not affirm or deny that the thumbprint on the codicil was or was not that of the Deceased Testator. In effect the evidence of CW1 the Forensic Expert could not in any way guide the Court. For the purpose of this Judgment the issues I have resolved supra are sufficient enough to guide me to determine this case. I have resolved above that at the time the Defendant applied for the Probate she knew of the codicil but because she was challenging the codicil she did not bring same to the attention of the Court but yet proceeded to outwit the Court and procured the probate. Since at the time of applying for the Probate the Defendant was of the view that the codicil was not valid and that excluded the codicil in the application for Probate the Defendant should have come either under Ord. 66 Rule 26(2) or Order 66 Rule 28(1) to challenge the codicil. Order 66 Rule 26(2) provides:- “Any person who claims to have an interest in the estate of a deceased person may by notice in writing request the executor’s name in the Will in solemn form”. The other alternative left for the Defendant was for the Defendant to have come under Order 66 Rule 28(1), same provides:- “Any person who claims to have an interest in the estate of a deceased person may by Notice in writing request the Executors names in the Will of the Deceased to prove the Will in solemn form”. The other alternative left for the Defendant was for the Defendant to have come under Order 66 Rule 28(1), same provides:- “Any person who claims to have an interest in the Estate of a Deceased Testator may, instead of issuing a Notice to the Executor to prove the Will under rule 26(2) of this Order, bring an action against the executor for a declaration that the Will is invalid. See also the case of: Thomas Tatei Atanley Kofigah & Anor Vrs Kofigah Francis Atanley & Anor (Suit No. JA/05/2019) Held: “Where any person challenges the validity of the Will, she has two alternatives ways of proceedings under the Rules. She may file a Notice pursuant to Rules 26 of Order 66 of C. I. 47 calling on the executors to prove the Will in Solemn form or to renounce probate. Executors prove a Will in solemn form by issuing a Writ of Summons against the person calling for it to be proved and praying the Court to declare the Will valid. The alternative method is for the person challenging the validity of the Will to issue a Writ of Summons pursuant to Rule 28 (1) of Order 66 of C. I. 47 against the executors praying the Court to declare the Will invalid” See also the Court of Appeal case of: Yanka & others Vrs Administrator-General & Anor [1971] 2 GLR 186 @ 191 which was of the same holding as the earlier case cited. The present Defendant even though was challenging the codicil deposited at the Registrar of the High Court, Accra on the 31st July 2007 still refused to comply with any of the provisions cited supra to challenge the codicil, yet the Defendant refused to disclose the existence of the codicil to the Court and managed to obtain the probate. As a subject of comment the then High Court made an Order for the other Executors to join the Defendant to apply for the Probate or renounce probate before the probate can be considered. Surprisingly the two other Executors did neither of the two but the Defendant managed to obtain the probate. In the mist of the Defendant’s challenge of the codicil and on Defendant’s refusal to comply with Order 66 Rule 28(1) or Order 66 Rule 26(2) of C. I. 47, the grant of the probate to the Defendant as the sole executor on the 25th September, 2008 was improper and wrong. I have no doubt in my mind that if the Defendant had directed the mind of the Court to the existence of the codicil, same would not have been granted without the Court ascertaining to the authenticity or otherwise of the codicil. For that reason I grant the reliefs as endorsed on the Plaintiff’s Writ of Summons in the following terms:- 1. I declare that the Probate grated to Mrs. Virginia Aklade (Nee Fummey) the Defendant herein as the sole Executor of the Estate of the late John Wisdom Humphrey Fummey on the 25th September 2008 is invalid, void and of no effect. 2. I hereby revoke and set aside the grant of Probate in respect of the Will of the late John Wisdom Humphrey Fummey obtained by the Defendant from the High Court, Accra on the 25th September 2008. 3. The Defendant is ordered to render accounts to the rightful beneficiaries of the said Will or codicil or both as the case may be from the date of the Probate to today (the date of this delivery, 20th April, 2023). 4. I Order Perpetual Injunction restraining the Defendant, her agents, assigns, servants or anybody from carrying out, holding themselves in any manner or as executors or trustees or trust body of the estate of the late John Wisdom Humphrey Fummey from so doing. For the same reasons that I have granted the Plaintiffs relief, I refuse the Defendant’s Counter-Claim. As a caution to the Parties, the Plaintiff by this suit had not extended any invitation to me to grant Probate in respect of the Will or the codicil or both, neither had the Defendant presented to me any caveat of a codicil for me to consider. I will not venture to do any of the two since that duty had not been imposed on me by either party. Thus by this judgment either party is not precluded to present an Application for Probate of either the Will, codicil or both. Either Party is also not precluded to either enter a caveat to meet the probate. I propose the Probate and Administration Division, Accra High Court as the battle field for the Parties in their next legal battle. For the grant of Plaintiffs reliefs and dismissal of the Defendant’s Counter- Claim. I award cost of GH¢50,000.00 against Defendant in favour of Plaintiffs. (SGD) WILLIAM BOAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL: WILLIAM AKASAN FOR JAMES ABIADUKA FOR THE PLAINTIFFS ALEXANDER QUARTEY FOR THE DEFENDANT 17