|
Wills - Executors - Died
intestate - Challenging validity
of will - Forgry - Untruthful
witness - whether or not the
will was properly executed by
the testator and attested to by
witnesses - whether or not the
testator was compos mentis at
the time he executed the will -
Whether the signature on the
will was that of the testator -
Wills Act, 1971, Act 360,
sections 1 (2), 2(1), (3), and
(5)
HEADNOTES
The
Plaintiffs/Appellants/Respondents
(Plaintiffs) are the executors
of the will of the late Joseph
Borketey Manison (testator) who
died on 21 January 2006. It was
thought that he died intestate,
and his estate was shared. Then
by a letter dated the 9 July
2009, the Chief Registrar of the
High Court, Accra invited
members of his family to the
registry of the Court for the
reading of a will purported to
be the last will and testament
of the testator. In his will,
the testator devised almost the
whole of his estate to Enoch
Bortey Manison son of Madam
Beatrice Ankrah.The other
children including Defendant
were given “other houses” which,
as it turned out did not exist
The Defendant/ Respondent/
Appellant (Defendant), who is
one of the testator’s sons,
challenged the validity of the
said will on the grounds that
the will was forged as the
signature on the will was not
that of his late father. He also
contended that as at 16
May 2001 when the testator
was alleged to have executed the
said last will and testament the
testator had no testamentary
capacity. On these grounds
Defendant filed a notice calling
upon the executors of the will
to prove the will in solemn
form. , the Defendant a
declaration that the will dated
16 May 2001 was the true will
and last testament of the
testator and an order that the
said will, be admitted to
probate.
HELD :-
We are of the view that in their
effort to give effect to the
will of the testator, the
majority of the appellate court
erred in applying the maxim
Omnia praesumuntur rite et
solemniter esse acta (all
things are presumed to be
correctly done); as the primary
findings by the trial court that
the testator had no testamentary
capacity, and his signature and
that of the attesting witness
PW3 were forgeries, are valid.
However the argument by Counsel
for the Defendant that the maxim
applies to only official acts is
in error and as Counsel for the
Plaintiffs correctly stated the
maxim applies also to duties
required by law From the
foregoing we hold that the will
Exhibit A is not that of the
testator. Accordingly the
Plaintiffs have failed to prove
the will in solemn form and we
therefore declare it invalid and
cannot be admitted to probate.
The appeal succeeds, the
majority decision of the Court
of Appeal is set aside and the
judgment of the High Court is
restored. The Plaintiffs’ action
is hereby dismissed
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Wills Act 1971, Act 360.
Evidence Act, 1975, NRCD 323
CASES REFERRED TO IN JUDGMENT
Re: Blay-Miezah
[2001-2002]1 SCGLR 339
Re Kotei (deceased)
Kotei v Ollenu [1975] 2GLR 107
Continental Plastics
v IMC Industries [2009] SCGLR
298
Fosu & Adu Poku v
Dufie (deceased) & Adu-Poku
Mensah [2009] SCGLR 310
Ghana Ports and Harbours
Authority & Ziem v Nova Complex
Ltd [2007-2008] SCGLR 806.
BOOKS REFERRED TO IN JUDGMENT
The Law of Wills in Ghana
Justice Azu Crabbe
DELIVERING THE LEADING JUDGMENT
ADINYIRA
JSC:
COUNSEL
THADDEUS SORY ESQ. WITH HIM CARL
ADONGO ESQ. FOR THE. DEFENDANT/
RESPONDENT/ APPELLANT.
J. AYIKOI OTOO ESQ. FOR THE
PLAINTIFFS/
APPELLANTS/RESPONDENTS
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
ADINYIRA JSC:
FACTS OF THE CASE
The
Plaintiffs/Appellants/Respondents
(Plaintiffs) are the executors
of the will of the late Joseph
Borketey Manison (testator) who
died on 21 January 2006. It was
thought that he died intestate,
and his estate was shared. Then
by a letter dated the 9 July
2009, the Chief Registrar of the
High Court, Accra invited
members of his family to the
registry of the Court for the
reading of a will purported to
be the last will and testament
of the testator.
This will was tendered in
evidence as Exhibit A. In his
will, the testator devised
almost the whole of his estate
to Enoch Bortey Manison son of
Madam Beatrice Ankrah. The
other children including
Defendant were given “other
houses” which, as it turned out
did not exist.
The
Defendant/Respondent/Appellant
(Defendant), who is one of the
testator’s sons, challenged the
validity of the said will on the
grounds that the will was forged
as the signature on the will was
not that of his late father. He
also contended that as at 16
May 2001 when the testator
was alleged to have executed the
said last will and testament the
testator had no testamentary
capacity. On these grounds
Defendant filed a notice calling
upon the executors of the will
to prove the will in solemn
form.
Accordingly, the
Plaintiffs issued a writ on 23
July 2007 to have the will
pronounced valid. In their
suit, the Plaintiffs claimed
against the Defendant a
declaration that the will dated
16 May 2001 was the true will
and last testament of the
testator and an order that the
said will, be admitted to
probate.
The issues for
determination before the High
Court were whether the will was
properly executed by the
testator and attested to by
witnesses and whether the
testator was compos mentis at
the time he executed the will.
The trial judge resolved all
these issues in favor of the
defendant.
The trial judge relied
heavily on the evidence of PW3
the surviving attesting witness
whose evidence was that the will
was not the act of the testator
as his signature and that of the
testator on the will were
forgeries. The trial judge
compared the signatures of the
testator on some exhibits with
that on the will and found the
signatures on all the exhibits
were the same except that on the
will which was different. The
trial Judge also relied on the
evidence of DWI, Dr Jacob Jordan
Lamptey, the psychiatrist who
treated the testator for
dementia to come to the
conclusion that Exhibit A, the
will was a forgery.
At page 24 of the
judgment, the trial judge
dismissed the Plaintiffs’ case
in this manner:
“There is direct evidence the
testator did not have
testamentary capacity. Whatever
is in Exhibit A can never be his
deed.
The evidence of the attesting
witness PW3 and DW1 the
psychiatrist show that the
document is not the free act and
deed of the deceased.
On balance of probabilities I
find the defendant’s evidence
more probable and set aside
Exhibit A as not the deed and
act of the testator.”
The Plaintiffs’ claim is hereby
dismissed. Judgment is entered
for the defendant.”
The Plaintiffs appealed to
the Court of Appeal on the sole
ground that the judgment of the
trial judge was against the
weight of evidence.
The Court of Appeal by a
majority decision upheld the
appeal on the grounds that PW3
was an untruthful witness and
the trial judge allowed himself
to be swayed to declare the will
invalid. The Court of appeal
further held that if the
testator was not compos mentis
as DW1 led the trial court to
believe he could not have gone
through a marriage ceremony,
make a will and operate a bank
account during the same period
of time. Their lordships also
examined all the signatures on
the various exhibits and
compared them with those in the
will and found all to be similar
and came to the conclusion that
the will was signed by the
testator. The Court of Appeal
applied the maxim Omnia
praesumuntur rite et solemniter
esse acta and declared the
will to be valid and set aside
the judgment of the High Court.
The Defendant being dissatisfied
appealed to the Supreme Court.
GROUNDS OF APPEAL
(a)
The majority erred in law
by failing to observe and apply
the principle of law that an
appellate court that does not
see and hear the witnesses ought
not to, without compelling
reasons, overturn the findings
of the trial court based on the
credibility of the witnesses and
as a consequence the majority
wrongly overturned the findings
of facts by the trial High Court
that the will is not valid on
account of the evidence of the
witnesses that it saw and heard.
(b)
The majority of the Court
of Appeal erred in law by
failing to apply the principle
of the law of evidence which
states that failure to challenge
a witness’s testimony on a
material aspect of a case
through cross examination
amounts to an admission of the
veracity of that testimony;
which ought to have been applied
to uphold the truthfulness of
the testimony of the only
attesting witness in this case
to the effect that they will
being propounded is not what he
witnessed.
(c)
The majority erred in law
by applying the principle
Omnia praesumuntur rite et
solemniter esse acta to aid
the Plaintiffs with regard to
the discharge by them of their
burden of proof whereas the
position of the law in line with
the decision of this court in
the case of Re: Blay-Miezah
[2001-2002]1 SCGLR 339 and other
cases is that the burden of
proof is wholly on the proponent
of a will being proved in solemn
form to be discharged by proving
every element for the validity
of a will; thereby the majority,
wrongfully, changed the burden
of proof and placed it on the
Defendant.
(d)
The majority of the Court
of Appeal erred in law when it
applied the principle Omnia
praesumuntur to the proper
execution of a will, a private
act by an individual, whereas
the Evidence Act of 1975 has
confined the application of
principle in Ghana law to
official acts only and not to
private acts.
(e)
The majority decision of
the Court is against the weight
of the evidence.
(f)
Further Grounds of Appeal
to be filled upon receipt of the
record of appeal.
No further ground of
appeal was filed. The omnibus
ground namely, “the majority
decision of the Court is against
the weight of the evidence”
renders some of the grounds of
appeal relating to questions of
facts and law superfluous. Out
of the copious statements of
case filed in this appeal,
arguably, the most important
legal issue raised in this
appeal is the same as was before
the trial and appellate courts:
whether the Plaintiffs were able
to prove the will in solemn form
as required by the Wills Act
1971, Act 360.
It is provided by the
Wills Act, 1971, Act 360,
sections 1 (2), 2(1), (3), and
(5) that:
“1 (2) A person suffering from
insanity or infirmity of mind so
as to be incapable of
understanding the nature or
effect of a will does not have
the capacity to make a will
during the continuance of that
insanity or infirmity of mind.
2 (1) No will shall be valid
unless it is in writing and
signed by the testator or some
other person at his direction
(3) The signature of the
testator shall be made or
acknowledged by him in the
presence of two or more persons
at the same time
(5) The witnesses shall attest
and sign the will in the
presence of the testator but no
form of attestation shall be
necessary.”
The issues then are:
1)
Whether the testator had
testamentary capacity to make a
will
2)
Whether the signature on
the will was that of the
testator
3)
Whether the signature of
the attesting witness was that
of S.B. Krowe
The issue as to whether the
testator had testamentary
capacity to make a will
The trial court resolved
in favor of the Defendant that
the testator did not have
testamentary capacity at the
time it was purported he signed
Exhibit A in May 2001. This
finding was based on the
evidence of Dr Jacob Jordan
Lamptey, DW1, to the effect that
the testator was his patient
during the period May 2001 and
January 2006 and he was
suffering from dementia. He was
referred to his Valley View
Clinic from Nyaho Clinic.
The evidence of DW1, who
from his credentials as a
psychiatrist and a lecturer in
Neuro Psycho Pharmacy and Chief
Examiner in psychiatry at the
College of Physicians and
Surgeons in Ghana with 45 years
experience, was evidently that
of an expert.
Section 67(1) of the
Evidence Act, 1975, NRCD 323
states:
“67. (1) A person is qualified
to testify as an expert if he
satisfies the court that he is
an expert on the subject to
which his testimony relates by
reason of his special skill,
experience or training
(2) Evidence to prove expertise
may, but need not; consist of
the testimony of the witness
himself.”
Here, DW1 was not merely
giving evidence as an expert but
also about his patient who was
referred to his hospital for
psychiatric treatment from Nyaho
Clinic a well renowned medical
facility in Accra. From the line
of cross-examination of DW1, the
Plaintiffs did not deny the
testator was a patient at DW1’s
clinic; the only challenge was
to the type of ailment which
sent him there. We cannot
imagine why a well-endowed
clinic like Nyaho Clinic would
refer its long-time patient to a
psychiatry clinic if the patient
has not been diagnosed with a
mental health problem that
needed a specialist’s treatment.
There was evidence that it was
PW2, the testator’s wife who
took him to DW1’s clinic.
DWI gave details of his
diagnosis of the testator as
follows:
“Having examined him I found
that his memory was impaired, so
was cognitive-concentration
memory attention. There was loss
of judgment and delusional
believes. He was unable to tell
me the time of day, the date,
the month and indeed the year.
Indeed it appeared he was not
able to recognize that I am a
doctor in spite of having the
stethoscope on my neck.
Obviously there are symptoms of
dementia which many called
secondary dementia being
secondary to a hypertension
causing the stroke and the
diabetes.”
Instead of treating DW1’s
evidence with some respect, his
evidence was peremptorily
dismissed by the majority of the
Court of Appeal on the grounds
that DW1 was unable to produce
the referral letter from Nyaho
Clinic. Furthermore the
appellate court was also of the
view that someone suffering from
dementia “or in regular
parlance, a mad man” cannot go
through a wedding ceremony in
the year 2001, go to his lawyer
with others and make a will and
return to his house and serve
them drinks and operate a bank
account with others at the
Agricultural Development Bank;
as such actions in the opinion
of Welbourne J.A. were
inconsistent with the activities
of a mad person or one who is
not compos mentis.
We do not agree with her
ladyship findings as these
events she chronicled took place
before May 2001 and before he
was taken to DW1’clinic for
treatment bearing in mind that
PW3 said the he attested to a
will in 1999, and we gather from
the marriage certificate Exhibit
C that the wedding took place
0n 3 January 2001. It can be
deduced from the
cross-examination of DW1 that
the testator was gradually
deteriorating in both mental and
physical health until his death.
On the other hand the
trial judge considered the
evidence of DW1 and came to the
conclusion that the will was not
the act of the testator and we
find no reason to overturn that.
We therefore hold that the
testator had no testamentary
capacity to make Exhibit A.
The issues as to
whether the signature on the
will was that of the testator
The only evidence the
Plaintiffs offered on this issue
was that of the lawyer, PW1 who
prepared the will, and PW4, the
son of the testator. We will
examine PWI’s evidence later.
The only relevance of PW4’s
evidence was that he drove the
father and 2 others to the
lawyer’s chambers in May 2001 to
sign the will but he sat outside
to wait for them. He was also
taking the father to Nyaho
Clinic.
Pw3, S.B. Krowe who is
said to have attested to the
will disowned the will. He said
in his evidence that he went
with the testator and one other
to James Town to sign a document
which he was told was the will
of the testator in 1999 and not
2001. He said the document
produced in court as the will of
the testator was not the one he
attested. He said before he
signed the will he read it, but
the lawyer told him he was not
supposed to read it but to sign.
He said the 1st
Plaintiff name was not mentioned
as an executor. It was only
Krowe Mensah who was named as an
executor. He ended that both his
signature and that of the
testator were forged. He
tendered in evidence an
indenture, Exhibit H in which he
identifies his own signature and
that of the testator.
The trial judge accepted
the evidence of Pw3. The Judge
also said he compared the
signatures of the testator on
some exhibits tendered in
evidence as bearing his
signature. These are; his
Ghanaian passport tendered in
evidence as Exhibit 3; a Ghana
Exchange Control Travel Form
T5/90, tendered in evidence as
Exhibit 4, and a resolution of
the Nungua Traditional Council
tendered in evidence as Exhibit
B.
The trial judge’s
observation was that the
signatures on these 3 documents
were the same and signed by the
same person. He found the
signatures on these three
documents differed substantially
from what was on Exhibit A, the
will. He accordingly held that
the plaintiffs failed to satisfy
the court as to the genuineness
of the testator’s signature in
Exhibit A.
Welbourne J.A. writing the
majority decision of the court
was of the view that PW3 was an
untruthful witness whose main
interest was to deny the will
being admitted to probate. The
learned justice therefore
decided to follow the principle
of dealing with such witnesses
as stated in Re Kotei
(deceased) Kotei v Ollenu [1975]
2GLR 107 where it was held
that the court has always been
slow to allow the unreliable
evidence of attesting witnesses
to defeat a will which appears
ex facie to be regular. The
majority of the Court of Appeal
rejected the findings of the
trial court that the will was
invalid.
The defendant submitted
that the majority of the Court
of Appeal erred in law by
failing to observe and apply the
principle of law that an
appellate court that does not
see and hear the witnesses ought
not to, without compelling
reasons, overturn the findings
of the trial court based on the
credibility of the witnesses.
Clearly the attitude of
the majority of the Court of
Appeal was that the PW3 and DW1
were untruthful witnesses as
they considered the signature on
the will Exhibit A was that of
the testator and that the
testator was compos mentis at
the time he made the will.
We have examined
thoroughly the evidence of PW3
and our findings are that the
witness did not say that the
testator did not make a will.
His evidence was that Exhibit A
shown to him was not the will he
attested to. His reasons are
firstly, it was in 1999 that he
accompanied the testator to a
lawyer’s chambers to attest to
the will. Secondly the signature
on Exhibit A of him as an
attesting witness was a forgery.
Thirdly the signature of the
testator was not that of the
testator. He tendered Exhibit H
an indenture which bore the
signature of the testator and
his. Fourthly when the lawyer
gave him the will to sign he
read part of it before the
lawyer told him he was not
supposed to read the document
but to sign it. There is also
evidence that when the will was
read to the family by the
Registrar at the High Court, PW3
protested that the will was not
that of the deceased. Finally
he also challenged the fact that
the 1st plaintiff was
mentioned as an executor in the
will as he was not mentioned in
the will he read.
It is quite settled that
where there is a dispute as to
the genuineness of a signature
in a document, it was fair and
proper to compare signatures on
other documents bearing the
signature of the testator.
Justice Azu Crabbe in his
book, The Law of Wills in
Ghana published by Vieso
Universal (Gh.) Ltd 1998, at
page 198 wrote:
“Where there is a dispute as to
the genuineness of the signature
of the testator, or of an
attesting witness on the will,
proof of custody of other
documents bearing the signature
of the person whose signature is
in dispute may be produced for
comparison. This affords an
opportunity to the witnesses,
who are conversant with the
disputed signature, and also of
the court, to compare the
signature in the will directly
with the disputed signature.”
Both the trial and
appellate courts compared the
signatures of the testator on
documents tendered in evidence
for the purpose of comparison.
The trial judge compared the
alleged signatures of the
testator on his passport,
Exhibit 3; a Ghana Exchange
Control Travel Form T5/90,
Exhibit 4 and a resolution of
the Nungua Traditional Council
Exhibit B. His observation was
that the signatures on these 3
documents were the same and
signed by the same person. He
found the signatures on these
three documents differed
substantially with what was on
the will, Exhibit A. He
accordingly held that the
plaintiffs failed to satisfy the
court as to the genuineness of
the testator’s signature in
Exhibit A.
Welbourne JA said she
examined all the signatures
provided on the various exhibits
particularly the will, Exhibits
A; B, C, D, E, 3 and 4 and found
the signatures on all the
documents similar and therefore
came to the conclusion that the
will Exhibit A was signed by the
testator.
On the issue as to whether
the signature of the testator on
Exhibit A is genuine, we are
faced with two conflicting
findings of facts from the trial
court and the appellate court.
In Continental Plastics v IMC
Industries [2009] SCGLR 298 at
307- to 308 Wood CJ opined
that:
“What does a second appellate
court do when confronted with
two conflicting findings of
fact: one from a trial court and
the other from a first appellate
court? Does it automatically
accept the appellate court’s
finding, it being the higher of
the two?
An appeal being by way of
rehearing, the Supreme Court
being a second appellate Court
is bound to choose the finding
which is consistent with the
evidence. In effect; the court
may affirm either of the two
findings or make an altogether
different finding based on the
record.”
Based on
the above principle we are
disposed to affirm the trial
court’s finding that Exhibit A
was not the act of the testator
for the following reasons. We
have also dutifully examined all
the exhibits that bore the
signature of the testator
including Exhibit H. We find
that the signatures on these
exhibits were the same except
that on the will Exhibit A. The
testator signature was peculiar
and the difference between that
in the will and the other
documents was so strikingly
different that one can tell
straightaway that the signature
on the will is not that of the
testator. We observed during
this exercise that Exhibits D an
Agricultural Development Bank
Savings Passbook, which the
Court of Appeal said it
examined, does not contain
anyone’s signature. Exhibit E
which the Court Of Appeal also
said it examined consists of
photocopies of the passports and
visas of the 1st
Plaintiff and some other
traditional rulers and was
therefore not relevant for
comparison of signatures.
We now turn to the
evidence of PWI, the lawyer who
prepared Exhibit A. Though the
lawyer naturally defended the
document he prepared, his
evidence did not advance the
Plaintiffs’ case in any way. In
cross-examination he said he
usually typed a will and leave
out the date and signatures to
be done in ink, as and when it
is signed, which makes sense. In
respect of Exhibit A he typed
the final version of the will in
the presence of the testator and
the two attesting witnesses in
his chambers and the testator
and the attesting witnesses
signed the document there and
then. Thus it is reasonable to
expect the lawyer to type in the
date or to ensure that it is
dated by the signatories.
However it came out in
cross-examination that the will
was not dated and he inserted in
ink the date ‘16’ on the first
page.
We examined the will
Exhibit A and we see the date
‘16’ inserted in ink on the
first page, but the back where
the signatures of the testator
and attesting witnesses are, was
undated. The non-availability of
dates on the will cast doubt on
it being genuine.
Judging by these pieces of
evidence we find no basis for
the majority of the Court of
Appeal to discredit the evidence
of PW3 and call him an
untruthful witness. The
Plaintiffs knew before hand that
PW3 had protested at the reading
of the will at the High Court
that the will was not genuine
and yet they called him as a
witness and they did nothing to
discredit his evidence. In
Fosu & Adu Poku v Dufie
(deceased) & Adu-Poku Mensah
[2009] SCGLR 310, it was
held in head note 4 that:
“ The veracity or otherwise of a
witness was a function reserved
exclusively for the trial judge
and would ordinarily not be
interfered with except it was
proved he did not take advantage
of seeing the witnesses as they
testified before him, or drew
the wrong inferences from the
evidence.”
The generally accepted
principle of law is that the
findings of fact made by a trial
court ought not to be disturbed
unless they are perverse or not
supported by the evidence on
record. The trial judge had
enough evidence to make his
findings and for that reason was
not so perverse as to be
reversed on appeal. We
accordingly hold that the
plaintiffs failed to prove the
genuineness of the testator’s
signature in Exhibit A.
From the foregoing we
hold that the majority view that
the will, Exhibit A was signed
by the testator was in error.
The issue as to
whether the signature of the
attesting witness was that of
S.B. Krowe
We examined PW3’s
signature on Exhibit H and
compared it with his signature
on Exhibit A and we find that
too to be dissimilar.
Accordingly we accept PW3’s
evidence that his signature on
the will was forged.
Conclusion
In conclusion we hold that
there was sufficient evidence to
support the findings by the
trial judge that Exhibit A was
not the act and deed of the
testator as he was of unsound
mind and could not have executed
Exhibit A. PW3 who was the
surviving attesting witness said
he attested to a will in 1999
and what was shown to him as
Exhibit A was not the will he
attested to. He denied his own
signature and that of the
testator.
We are of the view that in
their effort to give effect to
the will of the testator, the
majority of the appellate court
erred in applying the maxim
Omnia praesumuntur rite et
solemniter esse acta (all
things are presumed to be
correctly done); as the primary
findings by the trial court that
the testator had no testamentary
capacity, and his signature and
that of the attesting witness
PW3 were forgeries, are valid.
However the argument by Counsel
for the Defendant that the maxim
applies to only official acts is
in error and as Counsel for the
Plaintiffs correctly stated the
maxim applies also to duties
required by law by reference to
Ghana Ports and Harbours
Authority & Ziem v Nova Complex
Ltd [2007-2008] SCGLR 806.
From the foregoing we hold
that the will Exhibit A is not
that of the testator.
Accordingly the Plaintiffs have
failed to prove the will in
solemn form and we therefore
declare it invalid and cannot be
admitted to probate.
The appeal succeeds, the
majority decision of the Court
of Appeal is set aside and the
judgment of the High Court is
restored.
The Plaintiffs’ action is
hereby dismissed.
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE
SUPREME COURT
(SGD) S. A. B. AKUFFO
(MS)
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) N.
S. GBADEGBE
JUSTICE OF THE
SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE
SUPREME COURT
COUNSEL
THADDEUS SORY ESQ. WITH HIM CARL
ADONGO ESQ. FOR THE. DEFENDANT/
RESPONDENT/ APPELLANT.
J.
AYIKOI OTOO ESQ. FOR THE
PLAINTIFFS/
APPELLANTS/RESPONDENTS .
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