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ACQUAH, J.S.C:
Dr. John Ackah Blay-Miezah,
traditionally known as Nana
Ackah Nyanzu 11, Gyasehene of
Benin in the Western Region of
Ghana, during his lifetime
comported himself and lead such
a lifestyle as to make the
public believe that he was one
of the richest, if not the
richest, person then in Ghana.
He died in Accra in 1992 leaving
behind an estate alleged to
value about forty two billion US
dollars (US$42,000,000,000). As
to whether he did indeed have
all that much is another
matter. However in one of his
Wills dated 8th May 1988, he
made total cash bequests of over
eighty million US dollars
(US$80,000,000) to about fifty
named beneficiaries. It is in
respect of this estate that one
Dr. John Robert Kells, a
teacher in Chinese exercise and
meditation in London, sought a
declaration at an Accra High
Court that a Will produced by
him and claiming to have been
made by the late Dr. Blay-Miezah
on 29th January 1989 was valid.
The said Will named this Dr.
Kells as the sole executor and
sole beneficiary of the entire
estate of Dr. Blay-Miezah. The
family and close members of the
deceased emphatically denied the
validity of this Will. They
alleged it was a forgery. The
High Court (Mrs.
Sawyer-Williams. J) on 20th May
1997 gave judgment for Dr. Kells
declaring the Will valid. The
Court of Appeal on 18th November
1999 by a majority of 2:1
confirmed that decision. It is
from this decision that the
instant appeal is launched. But
first, the events that lead to
the institution of the action.
Dr. John Ackah Blay-Miezah died
at Abelemkpe in Accra on 30th
June 1992 leaving behind a wife
and fourteen children, including
minors. After his burial, it
came to the knowledge of this
family that he had left behind a
Will deposited in some banks in
Switzerland. The family
therefore decided that his
widow, Mrs. Joyce Blay-Miezah
and the head of the family, Nana
Asemda should apply for Letters
of Administration (L/A) to
enable them retrieve this Will
from Switzerland. An
application for L/A was
accordingly filed at the Accra
High Court and granted to Mrs.
Joyce Blay-Miezah and Nana
Asemda on 22nd January 1993.
Subsequently, Mr.
Adumuah-Bossman applied on
behalf of Dr. John Robert Kells
and the same Nana Asemda, for
probate in respect of a Will
allegedly made by Dr.
Blay-Miezah on 29th January 1989
(the 1989 Will). Once the L/A in
respect of the same estate was
subsisting, the application for
probate was naturally refused.
In due course, a copy of the
Will deposited in Switzerland,
had been obtained and deposited
at the Accra High Court. It is
dated 8th May 1988 and would
hereinafter be referred to as
the 1988 Will. Dr. Ako Adjei
and Francis K. Mensah sought an
application for probate of this
Will, but it was caveated.
In the interim, a second
application for probate of the
1989 Will was made by Dr. John
Kells and Joseph Whaja. Francis
K. Mensah, Nana Asemda, Roxana
Kim Blay-Miezah and Francis
Kolorah Blay-Miezah lodged
caveats to this application. The
last two being the eldest female
and male children of the late
Dr. Blay-Miezah. All the four
caveators contended that the
1989 Will was a forgery.
The Chief Justice transferred
all applications on the estate
of the late Dr. Blay-Miezah to
the court of Mrs. Akoto-Bamfo
J, as she then was, who in her
ruling on 28th October 1994,
ordered:
"that the executors of the 1989
Will do issue a Writ within 14
days asking the Court to
pronounce on the validity of the
said Will."
Consequently the applicants for
probate of the 1989 Will, Dr.
John Kells and Joseph Whajah
issued the Writ in this appeal,
against Dr. Ako Adjei and
Francis K. Mensah, the
applicants for probate of the
1988 Will, claiming:
1. A declaration that the Will
dated 29th January 1989 of Dr.
John Ackah Blay-Miezah deceased,
of Accra is valid, and genuine
and not tainted by any forgery.
2. Such further or other relief
as in the circumstances may be
just.
Roxana Kim Blay-Miezah and
Francis Kolorah Blay-Miezah
joined the action as 3rd and 4th
defendants, on their own
application.
In the Statement of Claim
accompanying their writ of
summons, the plaintiffs pleaded
that the 1989 Will was prepared
and executed on 29th January
1989 at the residence of the
late Dr. Blay-Miezah at 6 Avenue
Road, St. John's Wood, London NW
8 in the presence of the
testator, Dr. John Kells, Mrs.
Angelika Pennington, Dr.
Emmanuel Ayeh-Kumi, Nana Arvo
Buah, Mr. Kim and James Kaku;
and that Dr. Ayeh-Kumi and Mrs.
Pennington signed as attesting
witnesses in the presence of all
the remaining people.
The defendants denied the
contention of the plaintiffs and
pleaded that the late Dr.
Blay-Miezah did not make any
Will on 29th January 1989, and
that any Will purporting to bear
that date was forgery. They
contended also that the late Dr.
Ayeh-Kumi was not at house No. 6
St. John Avenue Road, London on
29th January 1989, and that the
signature of Dr. Ayeh Kumi
appearing on the said 1989 Will
was a forgery. They further
pleaded that the late Dr.
Blay-Miezah was in the habit of
signing blank letterheads, and
that the alleged 1989 Will was
forged on one such signed blank
letterhead. They then
counter-claimed for probate of
the 1988 Will. The 1st, 3rd and
4th defendants filed a joined
statement of defence and
counter-claim, while the 2nd
defendant filed a separate
defence and counter-claim. But
both statements of defence and
counter-claim essentially
defended the action as set out
above.
The main issues set down for
trial were:
(a) Whether or not the late Dr.
John Ackah Blay-Miezah
(deceased) executed the Will,
which on the face of it purports
to have been executed on 29th
January 1989.
(b) Whether or not the
signature thereon of E.
Ayeh-Kumi (since deceased) as
the first attesting witness
thereof was forged.
(c) Whether or not the
defendants are entitled to
complain on grounds of forgery
or otherwise against the said
1989 Will.
(d) Whether or not the
plaintiffs are in any event
entitled to a grant of probate
of the 1989 Will.
At the trial, the Court suo moto
submitted for forensic
examination a number of
documents to determine the
genuineness of the signatures of
Dr. Blay-Miezah and Dr.
Ayeh-Kumi. The documents
included Exh. 21, being the 1989
Will, and Exhibits 28 and O
being copies of the 1988 Will.
Mrs. Sophia Ofori-Attah, the
attorney of the 1st plaintiff,
and six witnesses presented the
plaintiffs' case, whereas for
the defendants, the 1st, 3rd and
4th defendants and eight
witnesses testified.
In the course of the trial, the
Court in the teeth of opposition
from the defendants, moved to
London at the instance of the
1st plaintiff to take the
evidence of Dr. Kells and Mrs.
Pennington. But in London, only
Mrs. Pennington testified.
In the course of the trial, the
Court in the teeth of opposition
from the defendants, moved to
London at the instance of the
1st plaintiff to take the
evidence of Dr. Kells and Mrs.
Pennington. But in London, only
Mrs. Pennington testified.
In her judgment, the trial judge
accepted the evidence in chief
of Mrs. Pennington as the truth
on the making of the 1989 Will,
and consequently held that the
plaintiffs had discharged the
burden on them. She then called
on the defendants to lead
evidence to rebut the said
evidence. Although Mrs.
Pennington's evidence on the
number of people present at the
preparation and execution of the
1989 Will did not tally with the
averments in the plaintiffs'
paragraphs 6 and 7 of their
statement of claim, the trial
judge held that this was not
material. She also found the
signature of Dr. Ayeh-Kumi on
the 1989 Will to be valid, and
concluded that the 1989 Will was
valid. She then held that Exh.
28, the 1988 Will, and Exh. 16
being a handwritten nuncupative
Will of the late Dr. Blay-Miezah
dated 9th June 1992, were
invalid. There was also a
codicil made by the deceased,
dated 16th August 1990 and
tendered as Exh. 13. She held
this to be valid.
At the Court of Appeal, the
defendants seriously challenged
the findings and declarations of
the trial Court. They also
challenged the jurisdiction of
the High Court to sit in London;
and accused the judge of being
biased in favour of the
plaintiffs. On their complaint
of bias, the 1st defendant
sought and was granted leave to
adduce fresh evidence. To this
end, the Chief Registrar of the
Court, Mr. Kotei testified as
CAW 1, and tendered in evidence
two separate probates granted by
the trial judge in respect of
the estate of the deceased. The
first was granted soon after the
judgment, to the two plaintiffs.
This was tendered as CA Exh. C,
thereafter the same judge
granted another probate to Dr.
Kells alone at a time when the
1st probate Exh. C was
subsisting. This second probate
was tendered as CA Exh. E. The
trial judge also was called as a
witness and testified as CAW 2.
In her evidence she was made to
tender two letters, which she
personally wrote to Dr. Kells
after she had delivered her
judgment. The two letters were
dated 22nd September 1997 and
20th October 1997 and tendered
as CA Exh. F and CA Exh. G
respectively. At the time she
wrote these letters, an appeal
against her judgment was pending
at the Court of Appeal, yet she
sought in those letter to assure
Dr. Kells that there was no
chance of the appeal
succeeding. In Exh. G she wrote
to Dr. Kells:
"The repeated rejection of the
applicants' attempt to prevent
the executors from embarking
upon administration of
Blay-Miezah's estate under the
1989 Will indicates that the
trial High Court and the Court
of Appeal do not think that in
the circumstances there is any
serious danger of prejudice to
the outcome of Dr. Ako Adjei's
appeal if the Executor should
commence their administration of
Blay-Miezah estate immediately.
There is therefore nothing now
in law to prevent the immediate
administration of the estate by
the Executor."
On what basis could the trial
judge give such assurance to Dr.
Kells, at a time the Court of
Appeal had not determined the
appeal against her judgment?
Was it proper for a judge to do
this? No wonder the defendants
accused her of bias.
In their judgment, the Court of
Appeal held that the High Court
had no jurisdiction to sit
outside the territorial limits
of Ghana, and therefore the
evidence of Mrs. Pennington
taken in London was null and
void. But the Court proceeded to
hold that notwithstanding the
nullity of PW4's evidence, the
trial judge's decision that the
1989 Will was valid was
sustainable on the basis of an
affidavit of Mrs. Pennington
tendered as Exh. E. The Court of
Appeal also set aside the
declarations made by the trial
judge in respect of the 1988,
1990 and 1992 testamentary
dispositions. The Court however
agreed with the trial judges
view that the variation between
the evidence of the plaintiffs
on the number of people present
at the preparation and execution
of the 1989 Will, and that
pleaded in their statement of
claim was not material.
It is against this judgment that
the 1st and 2nd defendants
launched this appeal. The first
defendant attacked the judgment
on eleven grounds while the 2nd
defendant filed seven grounds.
Most of the grounds were
similar. Not surprisingly
therefore, the 1st defendant
adopted the written submissions
of the 2nd defendant and
thereafter made further
submissions. The eighteen
grounds of appeal can
conveniently be regrouped into:
i. A challenge on the Courts
endorsement of the trial Court's
view that the difference between
the evidence lead and the
pleadings were immaterial.
ii. Attack on the Courts
endorsement of the trial judge's
finding that the 1989 Will was
valid. This ground covers the
Court of Appeal's endorsement
that the plaintiffs succeeded in
discharging the onus on them
with regard to the validity of
the 1989 Will.
iii. The Court of Appeal's
failure to appreciate the case
of the defendant's and the real
issue in dispute, and thereby
like the trial Court, fell into
serious error.
iv. The Court of Appeal's
decision that the affidavit of
Mrs. Pennington, Exh. E was
sufficient to sustain the
validity of the 1989 Will
notwithstanding the nullity of
PW 4's evidence.
v. The Court of Appeal's
setting aside of the trial
judge's finding on Exh. 13, the
1990 condicil.
For a better appreciation and
determination of this appeal, it
is important first to identify
the real issues raised by the
parties for the determination of
the Court.
Now although it is true that
where the validity of a Will is
challenged, the Court is duty
bound eventually to pronounce on
this, the issues to be resolved
by the Court in arriving at such
a conclusion depend on the
issues the parties have by their
pleadings raised for trial. For
pleadings are not just mere
puppets in the process of
adjudication but essential means
of unfolding what is in dispute
between the parties. It is
through pleadings that parties
set out the nature of their
complaint and the basis of their
disagreement with the opposing
party. And from the nature of
their complaints and the areas
of disagreement, the issues in
dispute between them are
identified. It is in
furtherance of identifying the
issues between the parties that
the rules of pleadings require
that where a party makes certain
allegation like fraud, forgery,
and negligence, the particulars
of that allegation must be
pleaded for the opposing party
to know precisely how to
respond to that allegation.
Once the parties have complied
with the requirements of
pleadings and the issues between
them have been identified and
agreed upon, it is not
permissible for the Court to
ignore the issues and dangle in
fanciful legalities.
Master I. H. Jacobs in his
paper: "The Present Importance
of Pleadings" in Current Legal
Problems (1960) pp 171-174 set
out the functions of pleadings
as follows:
''As the parties are
adversaries, it is left to each
of them to formulate his case in
his own way, subject to the
basic rules of pleadings ...
Pleadings do not only define the
issues between the parties for
the final decision of the Court
at the trial; they manifest and
exert their importance
throughout the whole process of
the litigation. They contain the
particulars of the allegations
of which further and better
particulars may be requested or
ordered, which help still
further to narrow the issues or
reveal more clearly what case
each party is making. They
limit the ambit and range of the
discovery of documents and the
interrogatories that may be
ordered. They show on their face
whether a reasonable cause of
action or defence is disclosed.
They provide a guide for the
proper mode of trial and
particularly for the trial of
preliminary issues of law or of
fact. They demonstrate upon
which party the burden of proof
lies, and who has the right to
open the case. They act as a
measure of comparing the
evidence of a party with the
case, which he had pleaded.
They determine the range of
admissible evidence, which the
parties should be prepared to
adduce at the trial. They
provide the basis for the
defence of res judicata in
subsequent proceedings by
reference to the record in the
earlier proceedings."
It follows as Master I.H. Jacobs
pointed out at pages 172-173
that:
"The Court itself is as much
bound by the pleadings of the
parties as they themselves. It
is no duty or function of the
Court to enter upon any enquiry
into the case before it other
than to adjudicate upon the
specific matters in dispute
which the parties themselves
have raised by their pleadings."
In the instant case, what were
the issues for trial? As
explained earlier, the ground
for caveating the application
for probate of the 1989 Will was
forgery - that is, the testator
made no Will on the said 29th
January 1989. And thus, in
their effort to establish the
validity of the 1989 Will, the
plaintiffs pleaded in paragraphs
6, 7 and 8 of their statement of
claim, the following:
"6. All the defendants
assert that the said 1989 Will
is a forged Will. The
plaintiffs, however contend that
the said 1989 Will was made by
the said testator at his
residence at 6 Avenue Road, St.
John's Wood, London NW 8 in the
presence of the following
persons, namely:
(a) the said testator himself
(b) the 1st plaintiff
(c) Mrs. Angelika Pennington
(the said testator's personal
nurse).
(d) Dr. Ayeh Kumi (who
subsequently died in or about
1989 in London)
(e) Nana Arvo Buah
(f) Mr. Kim (a Japanese aide
to the said testator) and
(g) James Jehanyiere Kaku
(nephew and personal attendant
of the said testator).
7. Out of the 6 others then
present, only Dr. E. Ayeh-Kumi
and Mrs. Angelika Pennington
were invited in the presence of
all the others to attest the
signature of the said two
attesting witnesses who were
present together. And they
accordingly subscribed their
respective signatures as
witnesses in the presence of the
said testator and in the
presence of each other and in
the presence of all the others
aforesaid.
8. The plaintiffs therefore
contend that the said 1989 Will
was then and has remained to
this day perfectly genuine in
all respects whatsoever, and no
signature appearing on the face
thereof is a forgery as alleged
by the defendants or at all.
Indeed the plaintiffs allegation
of forgery is not made in good
faith, but on the contrary, is
in bad faith, purely
speculative, and calculated to
mislead the Court and to delay
or even frustrate the grant of
probate to the plaintiffs."
To the above case of the
plaintiffs, the statement of
defence of the 1st, 3rd and 4th
defendants stated inter alia:
3. The defendants in further
answer to paragraph 1 of the
Statement of Claim say that the
late Dr. John Ackah Blay-Miezah
did not make any Will on the
29th January 1989 and any Will
purporting to bear that date is
a forgery.
8. The defendants deny
paragraph 6 of the Statement of
Claim and will put the plaintiff
to strict proof.
9. The defendants deny that
the persons named in paragraph 6
of the Statement of Claim were
present when the alleged Will
was made and will put the
plaintiffs to strict proof of
the presence of the persons
named. Furthermore the
defendants deny that Mrs.
Angelika Pennington was the
personal nurse of the late Dr.
Ackah Blay-Miezah and will
insist on strict proof of the
averment.
10. The defendants will
further contend that the
signature of Dr. Emmanuel
Ayeh-Kumi, as one of the
attesting witnesses appearing on
the said Will dated 29th January
1989 is a forgery and that the
said Will was never executed by
the deceased.
(b) The defendants say that the
genuine signature of the late
Dr. Ayeh-Kumi is to be found in
his passport and other
documents, and that the
signature on the purported Will
of the 29th January 1989 is
different and a forgery. The
defendants therefore pray the
Court to refer these three
documents to the Police
laboratory for examination.
11. The defendants deny
paragraph 7 of the Statement of
Claim and will put the
plaintiffs to strict proof of
the presence of the said Dr. E.
Ayeh-Kumi and Mrs. Angelika
Pennington present together and
in the presence of the deceased
at the execution of the alleged
Will.
12. The defendants deny
paragraphs 8 and 9 of the
Statement of Claim.
13. The defendants in further
answer to paragraphs 8 and 9 of
the Statement of Claim say that
no Will of the late Dr. Ackah
Blay-Miezah was executed on the
29th January 1989 and that any
document purporting to be the
Will of the deceased executed on
the said date is a forgery as
false.
14. The defendants will
contend that the late Dr. Ackah
Blay-Miezah in his codicil dated
the 16th August 1990 and
nuncupative Will of the 9th June
1992 specifically made reference
of his Will of 8th May 1988
which he had deposited in UBS
and UOB in Switzerland whereas
there was no mention whatsoever
of the 29th January 1989 Will.
15. The defendants will
further contend that the late
Dr. Blay-Miezah never made
mention of any Will of the 29th
January 1989 because no such
Will ever existed.
16. The defendants will also
request the plaintiffs to
indicate with proof where the
said Will of 29th January 1989
was deposited when it was
allegedly executed."
The 1st, 3rd and 4th defendants
thereafter in their paragraphs
17 and 18 made the following
serious allegations:
"17. The defendants will at the
trial lead evidence to establish
that the plaintiffs and in
particular the 2nd plaintiff
presented a Will purported to
have been executed on 15th June
1992 in identical terms as that
of the 29th January 1989, which
said Will was executed after the
death of Dr. Ackah Blay-Miezah.
18. The defendants say that
the late Dr. Blay-Miezah during
his lifetime signed blank
letterheads and some of these
signed blank letterheads got
into the hands of unscrupulous
people who have taken advantage
to fill in the blank space, and
one such document is the alleged
Will date 29th January 1989.
Evidence will be lead of the
existence of other such
documents."
The 2nd defendant filed a
separate Statement of Defence
wherein he denied the claim of
the plaintiffs and pleaded in
paragraph 1, 5, 13 and 14 as
follows:
1. The 2nd defendant
vehemently denies paragraph 1 of
the Statement of Claim and
further avers that the late Dr.
John Ackah Blay Miezah otherwise
known as Nana Ackah Nyanzu 11
never ever executed the alleged
Will dated 29th January 1989 and
will contend that the said
purported Will is a forgery.
Particulars of Forgery
(a) That the contents of the
alleged Last Will and Testament
was not and could not have been
authored by Dr. John Ackah
Blay-Miezah alias Nana Ackah
Nyanzu 11
(b) That the supposed witness
Dr. E. Ayeh-Kumi did not and
could not have witnessed that
particular document.
(c) That the signature of
the said Dr. E. Ayeh-Kumi as a
witness is and can only be a
forgery.
(d) That having executed a
genuine and valid Will and which
Will he deposited at a Bank in
Switzerland in 1988 and having
executed two (2) other codicils
to the said 1988 Will and the
last codicil having been made on
his death bed on 9th June 1992
in which codicil he made
supplementary to and refers to
the will of 1988, it is obvious
that there was not in existence
another will particularly the
forged one that the applicants
seek to apply for the grant of
probate.
(e) Furthermore, there is
overwhelming evidence to suggest
that the signature appearing on
the said alleged document is not
and could not be that of the
late Dr. E. Ayeh-Kumi as
contained in the reports issued
by the Ghana Police (Criminal
Investigation Department) Accra
dated 16th March 1994 and the
report of Primus Forensic
Consultancy, Accra, dated 9th
December, 1994 and the 2nd
defendant will ask leave of the
Honorable (Court) to tender both
documents herein mentioned.
5. 2nd defendant denies
paragraph 6 of the Statement of
Claim and further avers that no
such meeting comprising of
persons mentioned in paragraphs
6 (a) (b) (c) (d) (e) (f) ever
took place and he will put the
plaintiffs to strict proof of
same.
13. In an attempt to
circumvent the Will of 1988 and
the aforementioned codicils, the
plaintiffs herein forged a Will
which the 2nd plaintiff and
others appended their signature
and back-dated same the 16th of
June 1992 but had to shelve it
when the secret was exposed.
The said Will had the signature
of the late Dr. John Ackah
Blay-Miezah on it alright, but
the witnesses appended their
signatures and thumbprints on
same, on the 6th of March 1993,
8 months after the testator had
died. The said forged Will is
hereby annexed and marked
JABM/FKM/2.
14. Furthermore, the contents
of two letters both dated 28th
June 1990 suggest that the late
Dr. John Ackah Blay-Miezah
terminated or revoked the
appointment of the 1st plaintiff
and demanded the return of all
documents in the possession of
the 1st plaintiff which letters
according to the 1st plaintiff
he complied with, so that it is
not possible for him to still
have in his possession the
document he seeks to admit to
probate as the last Will of the
late Dr. John Ackah-Miezah."
From the above pleadings it is
evident that the validity of the
1988 Will was not in issue
neither did any of the parties
allege that the 1988 Will was a
forgery.
It is true that the defendants
counter-claimed for grant of
probate of the 1988 Will, but
the basis of that claim as
averted to by the 1st, 3rd and
4th defendants in paragraph 5 of
their Statement of Defence, was:
"5 ... on the 13th June 1994 in
an application for probate of
the Will of the late Dr. Ackah
Blay-Miezah in suit No. F
155/94, the Court presided over
by Mrs. Justice Akoto-Bamfo
noted that the 1st and 2nd
defendants were entitled to a
grant of probate of the said
Will but the grant was stayed
because it came to the notice of
the court that the plaintiff had
also filed for a grant of their
alleged Will in a suit No. F
600/94."
The plaintiffs in paragraph 5 of
their reply to the above
averment denied the making of
any such grant thus:
"5. Still further as to
paragraph 5 of the said defence
the plaintiffs contend that Mrs.
V Akoto-Bamfo J made no such
order on 13th June 1994 in suit
No. F 155/94 as alleged; and in
any event the allegation is
irrelevant and unnecessary to
the single issue as to forgery
vel non of the 1989 Will of the
said Blay-Miezah (deceased)."
It is also equally important to
note that the plaintiffs did not
deny that the late Dr. Ackah
Blay-Miezah made a Will in 1988
and deposited it in banks in
Switzerland. They admitted
this. What they alleged was
that the copes of the said 1988
Will presented by the defendants
had nothing on it to show the
source from which they came.
Thus in paragraph 2 (b) of the
plaintiffs reply to 2nd
defendant's defence, they
pleaded:
"2 (b) the said Blay-Miezah
executed a Will in 1988 which he
deposited in certain banks in
Switzerland ..."
Then in paragraph 3 thereof, the
plaintiffs continue:
"3 ... At no time has the said
1988 Will been retrieved from
the Union Bank of Switzerland
and deposited with the Registrar
of this Court as alleged or at
all. The 2nd and other
defendants have been passing off
a paper writing dated 8th May
alleged to be a copy of the said
1988 Will deposited by the said
Blay-Miezah (deceased) with
certain banks in Switzerland.
The said paper writing, however
is not certified as a true copy
by, not does it carry any
authentication by, or even a
covering letter from or by the
manager of the relevant (branch)
bank showing a withdrawal or the
making of a copy of the
deposited 1988 Will in
accordance with laid-down
procedures. Consequently, the
said paper writing is null and
void and of no legal effect
whatsoever."
Certainly, the objections
raised in the above paragraph
did not require the
determination of the genuineness
of the signature of Dr.
Blay-Miezah and Dr. Ayeh- Kumi,
and the typescripts of Exh. 28
and O. Yet the trial judge
submitted these documents for
forensic examination to
determine:
"a. Whether the signatures of
the late Dr. Ayeh-Kumi and his
particulars in handwriting in
both documents were from the
same person.
b. Whether the figures "8/8th"
and the word "May" on both
documents were written by the
same person.
c. Whether the signatures of Dr.
Ackah Blay-Miezah on both
documents came from the same
person.
d. Whether the typescripts on
both documents are from the same
machine.
e. Which of the documents in
your opinion is authentic."
From the above directions to the
forensic expert, the trial judge
obviously misappreciated the
nature of the objections raised
in paragraph 3 of the plaintiffs
reply. Consequently the
declarations made by the trial
judge on Exhibits 28 and O were
thus unjustified and the Court
of Appeal was right in setting
those declarations aside.
Now to the main dispute, that is
the validity 1989 Will, the
original of which, typed on one
headed sheet of Oman Ghana Fund,
was tendered as Exh. 21 and it
reads:
"I REVOKE all my previous Wills
and codicils and appoint Dr.
John Robert Kells of 7 Upper
Wimpole Street, London WIM 7TD,
President of the British Tai Chi
Chuan Association as my sole
executor and heir. I GIVE
DEVISE AND BEQUEATH to Dr. John
Kells all that I own including
those funds once known as the
Oman Ghana Fund now known as the
Butterfly Trust, which is
distributed amongst the
following banks: - SUMOTOMO
BANK, BANK OF TOKYO, TOKAI BANK,
ROYAL BANK OF CANADA TORONTO,
MORGAN TRUST, UNION BANK OF
SWITZERLAND (UBS) NEW YORK UBS
ZOLLIKON BRANCH ZURICH, UBS
BASEL, UBS WINTERTHURM,
AMSTERDAM ROTTERDAM BANK (AMRO)
NEW YORK, AMRO AMSTERDAM, the
last two known as the DUTCH
DECK. The leading bank and
distributor is UBS 45 BUNHA
STRASSE ZURICH, set up under the
late President Schafer of UBS.
The original Fund was set up in
a Trust Deed described as "Power
of Attorney and Deed of Trust"
on 24th December 1959 at
Allenzura and signed by
Abusukpanyili Nana - Nyameke
Miezah V111 and Nana Kofi Asson
111 RTP, witness to RTP Dr.
E/Ayeh-Kumi who also witnessed
this Will. Dr. John Kells was
introduced by his father Dr.
Gordon Kells senior to the late
Dr. Kwame Nkrumah in 1948, who
by letter introduced him to me
in the USA in 1959. Our close
connection has continued since
that time and today Sunday 29th
January 1989 I take the
opportunity to follow the advice
of all concerned to appoint Dr.
John Kells my sole heir with the
conviction we all shared that he
will fulfill all the
responsibility set out in the
original Trust Deed. Signed by
the said testator in our
presence and then by us in his
presence on Sunday 29th January
1989."
The signature of Dr. Blay-Miezah
appears boldly on the left side
while that of the two alleged
attesting witnesses appear
opposite, not under, that of the
testator. The two witnesses
were Dr. Ayeh-Kumi, and Mrs E.A.
Pennington.
In determining the validity of
the 1989 Will, the trial judge
quoted in extenso only the
evidence in chief of PW4, and
without examining same along
side her answers in
cross-examination, and the
evidence of other witnesses,
concluded that the said evidence
in chief was the whole truth.
She said:
"She both looked and sounded a
convincing witness of truth.
She spoke without guile and
without embellishing her story.
Any fair-minded person would
have had no trouble accepting
her evidence as wholly true ...
I have the slightest doubt that
she spoke the truth, the whole
truth. Her evidence as the only
available witness of the making
of Exh. 21 is accepted by the
Court as quality evidence as to
the truth about the making of
the 1989 Will. Her evidence
raises the presumption of due
execution of the 1989 Will ...
The onus now shifted to the
defendants to disprove the due
execution of the Will."
Certainly, in the face of the
very serious allegations of
forgery leveled by the
defendants and wholly admitted
by the plaintiffs' own witness
PWI, the burden on the
plaintiffs to prove the due
execution of the 1989 Will
requires a critical examination
of the evidence of PW4 vis-ŕ-vis
the various items of forgery
established by the evidence.
For, the defendants alleged
first, that the late Dr.
Blay-Miezah in his life time,
signed blank letter-heads and
that some of these signed blank
letter-heads got into the hands
of unscrupulous people who took
advantage of it and typed in the
alleged 1989 Will. In proof of
the existence of signed blank
letterheads, the defendants
called DW5, Mr. Nkum Adipa who
explained why the late Dr.
Blay-Miezah signed blank
letterheads.
He said
"I knew the late Dr. John Ackah
Blay-Miezah. I started working
for him as a full time employee
from 1984 as the Accountant and
the Administrative Manager ... I
worked for him up to 1991.
During that period, he traveled
a lot all over Europe. In most
cases he traveled with me ...
Apart from traveling with him, I
also went on business trips on
his behalf alone. Usually, he
gave me letterheads and he
discussed the points that I was
going to meet. He, then,
authorized me to write whatever
agreement we would reach on his
letterhead. He gave me both
blank and signed letterheads. I
have with me a blank signed
letterhead - signed by Dr.
Blay-Miezah, dated 18th April
1988. He signed it so that
after I had completed a
negotiation which I was going to
carry out on his behalf, I would
then have typed on the
letterhead the terms of the
agreement reached. When I
finished typing, I would read it
to him on the phone. If he
agreed with the terms thereon,
he would authorize me to hand
over to whomever I went to
negotiate with ... I went on not
less than 20 errands and on
every occasion he signed blank
letterheads for me. Some of
them were not dated."
The witness tendered in evidence
one signed blank letterhead as
Exh. 34 Earlier PW1 had
testified admitting seeing some
of the signed blank letterheads
after the death of Dr.
Blay-Miezah. In the face of
PWI's evidence in support of the
defendants claim, the trial
judge was compelled to find as a
fact the existence of such
signed blank letterheads.
She said:
"It is most unfortunate that Dr.
Blay-Miezah left blank signed
headed note-papers around. This
was rather irresponsible and
dangerous and has no doubt
created unnecessary problems for
everybody."
The defendants through the
evidence of PWI next went on to
establish that a Will purported
to have been made by Dr.
Blay-Miezah was indeed forged on
one such signed blank
letter-head. This forged Will
dated 15/6/92 was tendered
through PWI as Exh. 6. It was
prepared on a signed blank
letterhead and is in form and
substance the same as the
disputed 1989 Will. It reads:
"I Dr. John Ackah Blay-Miezah
being of sound mind, do hereby
revoke all my previous Wills and
codicils and appoint Dr. John
Robert Kells of 7 Upper Wimpole
Street, London, England to be my
sole Executor and Heir. I GIVE
DEVISE AND BEQUEATH TO THE SAID
DR. J.R. KELLS ALL MY WORDLY
GOODS SO THAT IN THE EVENT OF MY
DEATH HE WILL BECOME the sole
Beneficiary of the OMAN GHANA
FUND with all the rights and
privileges I now enjoy. I
believe together with Dr. K.
Nkrumah, Dr. A. Atta and Dr. E.
Ayeh-Kumi that Dr. J.R. Kells
will be successful in my role.
Any person or organization who
contests this Will is to be
excluded from any and all
benefits under the said Fund."
Exh. 6 is dated 15/6/92 and
witnessed by five persons: Isaac
Buah, J.K. Whaja, Whaja Kabemla,
Nana Asemda and James Y. Kaku,
and admitted by both plaintiffs
and defendants to be a forgery.
The only point of difference
between the parties on exh. 6 is
that whereas the plaintiffs
through PW1 alleged that this
Will was prepared in Ghana, the
defendants contended that it was
prepared in London by Dr. J.E.
Kells and brought down to Ghana
by PW1 for the five witnesses to
sign.
The cross-examination of PW1 on
Exh. 6 reads:
"Q. Look at Exh. 6, this is the
document that is witnessed by 5
people.
A. Yes
Q. You said the draft of Exh.
6 was prepared by Isaac Buah
A. Yes
Q. The draft was prepared in
your house
A. Yes
Q. When did this event take
place?
A. In October 1992
Q. What date precisely?
A. I don't remember"
Later down the
cross-examination, PW1 was
asked:
Q. According to you Nana
Asemda told Mr. Bossman how
Exh.6 had been executed
A. Yes he did
Q. Exhibit 6 is dated 15/6/92
A. Yes
Q. You know that Exh.6 was
prepared in October 1992 long
after the death of Blay-Miezah
A. Yes."
Now as to why Exh.6 was
prepared, PW1 in his evidence in
chief said that after the death
of Dr. Blay-Miezah, the family
saw Exh.16 (that is the
handwritten codicil dated
9/6/92) and so they searched the
room of Mr. Mochiah Ackah and
seized some documents. What
happened thereafter is better
told in the words of PW1:
"In those documents they found 3
Oman Ghana letter-heads which
were blank but had Dr.
Blay-Miezah's signatures on
them. So the family also wanted
to make a Will, which would
suppress Exh.16. They asked my
opinion so I agreed with them.
I asked Kaku if he knew Mr.
Kessie's house because he was
the Secretary of Oman Ghana.
Mr. Kessie was brought to my
house while all the members of
the family were there. Mr.
Isaac Buah drafted the proposed
Will to match that of Dr. Kells
Will because I had shown it to
them." (emphasis supplied)
The Dr. Kells's Will referred
to is the disputed 1989 Will.
Now as against the above
evidence of PW1, James Kaku PW1,
testified that it was PW1 who
rang the family from London and
told
"the elders that Dr. John Kells
had given him a document which
he said we should take to Nzema
to work on. So, he wanted the
family elders to sign the
document."
He said PW1 brought this
document from London and got the
elders to sign. And that he,
DW1, was also made to sign it.
When DW1 was asked:
"Q. Did you read the document
before you appended your
signature to it?
A. I never read the document
before I signed it
Q. Why didn't you read it?
A. Nana Buah said the document
had been signed by the elders
and it was for the benefit of
the Nzema people so I had to
sign it.
Q. At the time you signed it
Dr. Blay-Miezah's signature was
on it
A. Yes
Q. I put it to you that you
appended your signature to a
forged document
A. I agree
Q Was it on 15/6/92 or later
than 15/6/92
A. We signed it after my uncle
(i.e. Dr. Blay-Miezah) had been
buried."
It is certainly difficult to
imagine how the elders of the
family will truly concoct a Will
in respect of the estate of
their wealthy member in which
Will the entire estate of that
member would be devised and
bequeathed to a stranger like
Dr. Kells. The version of Kaku,
DW1, sounds more reasonable. And
was indeed supported by the
evidence of DW2, Mr. Kwaw
Swanzy, a distinguished lawyer
and countryman of the late Dr.
Blay-Miezah, He testified as
follows:
"I know Nana Arvo Buah. I met
him in London between October
and November 1992. He came to
my house and said a certain
person called Dr. Kells wanted
to see me ... He asked me to go
with him to Dr. Kells house. We
went to Dr. Kells' house and met
him ... Dr Kells showed me a
copy of a Will dated 29/1/89.
Immediately I saw the Will I had
a feeling that this was not a
properly executed Will. I felt
that it was a forgery. He then
asked me if the Will was
alright. I told him that I had
heard that the late Dr.
Blay-Miezah had made a will just
before he died. Then I said
from my experience, the Courts,
when confronted with a Will,
would normally prefer that Will
which is later in date. I said
further that the way things were
they would have to make sure
that their Will was later in
time. I left the house of Dr.
Kells and Arvo Buah took me back
to the house ... About a month
or two later (the quarter part
of 1993) he telephoned me and
asked me to go and see him. I
went to his house. In that
house a lot of things were shown
to me ... Arvo Buah showed me a
document, which purported to be
a Will of Dr. Blay-Miezah, dated
the 15th June 1992; about two
weeks before Dr. Blay-Miezah
died. I have a copy of that
document Exh.6. I felt guilty
about this because of what I
told them i.e. that the later
will be accepted by the Court."
(emphasis supplied)
The above evidence of Mr. Kwaw
Swanzy was not challenged, and
clearly exposed the shameful
part played by Nana Arvo Buah in
the manufacture of Exh.6.
Now why was Exh. 6 not presented
for probate but the 1989 Will?
According to PW1 both exhibit 6
and 21 (that is the 15/6/92 Will
and the 29/1/89 were given to
their lawyer who advised that
they should abandon Exh.6 and
present the 1989. This was to be
expected because one of the
witnesses in Exh.6 had
complained that because he had
been paid nothing, he was going
to expose the deal. In PW1's own
words:
"In May 1993, Isaac Buah
approached me at dawn and told
me that he was Secretary to the
family while I was in England.
Since I took over the affairs,
not even a pessewa had been
given to him. Unless I paid him
something he would sell the
story behind the execution of
Exh. 6 to Annancy and company."
In the face of such threats, it
was found prudent to shelve
Exh.6 and instead present
Exh.21. Hence the fight for
probate of Exh.21. But it is
interesting to note very
striking similarities between
exh. 6 and exh.21. Both
- name Dr. Kells as sole
executor and sole heir
- name Dr. Kells as sole
beneficiary
- mention names like Dr.
Kwame Nkrumah and Dr. Ayeh-Kumi
- are made on letterheads of
Dr. Blay-Miezah and
- while exh.21 devises "all
that I own", exh.6 also devises
"all my worldly goods" to the
same Dr. Kells.
These similarities are certainly
not coincidental but tell
volumes about exh.21.
Now apart from Exh.6, there was
also Exh.20 dated 29th January
1989, the same through PW1 date
as that of the 1989 Will. Once
again this exh 20 came from the
same Dr. Kells through PW1 and
like exh 6, admitted by PWI to
have been signed after the death
of Dr. Blay- Miezah. Exh. 20
reads:
"29th January 1989
Oman Ghana Fund
60 Avenue Road
London NW8
I, Dr. John Ackah Blay-Miezah,
as sole beneficiary of the Oman
Ghana Fund agree to pay Dr. Ako
Adjei this sum of $50, 000,000
(fifty million US dollars) and
also I agree to pay to Mr. Kojo
Erskine the sum of $25, 000,000
(twenty-five million US
dollars). These monies to be
paid from the first monies
received by us in reward for
services and support rendered.
Witness by: Dr. J.R. Kells
Signed
Nana Arvo Buah
Signed
Signed by Dr. John Ackah Blay
Miezah"
Now a close examination of the
above document tendered as exh.
20 reveals that it is a
photocopy and not the original.
It also shows, as it is evident
from it that the alleged
witnesses signed before the
donor Dr. Blay-Miezah, made his
signature. For the signature of
Dr. Blay-Miezah is at the end.
Was Dr. Blay-Miezah rather
witnessing the signature of the
witnesses? Indeed the form and
position of Dr. Blay-Miezah's
signature on this exh. 20 are
the same as the signature of Dr.
Blay-Miezah appearing on the
signed blank letterheads. And
the original of exh. 20 is very
likely to be on one of Dr.
Blay-Miezah's letterheads.
PW1 testified that exh. 20 was
one of the three documents given
to him by Dr. Kells in London to
send to Ghana. He was
cross-examined on this as
follows:
"Q. Infact you are a witness
to that document.
A. Yes that's my signature
Q. We 'd like to tender it in
evidence Payment instructions
from Blay-Miezah for Dr. Ako
Adjei and Erskine - No objection
- Accepted and marked exh.20.
Q. When was this document
Exh. 20 signed by Kells,
yourself and Blay-Miezah?
A. I signed it the day I
delivered it to Mr. Erskine in
the presence of Mr. Erskine.
Q. When did Kells give you
the document?
A. October, November 1992
Q. You signed this document
Exh.20 when you were given it to
Erskine
A. Between October November
when I came from London."
Then later down the
cross-examination, PW1 was
asked:
Q. Exh.20 is also dated
29/1/89
A. Yes
Q. Signed by Blay-Miezah and
witnessed by Kells and Nana Buah
A. I was not present when
Blay-Miezah and Kells were
signing it. I had a duty to
perform so I signed it when I
gave it to Erskine and he gave
me a note of acknowledgement.
Q. What was the need for you
to type your name and put your
signature there.
A. I never typed my name
there. My instructions was when
you deliver this to this man let
him sign the acknowledgement
attached note, sign and give it
to him.
Q. Look at your signature, is
this the original paper?
A. Yes this is my signature
and this is the original paper.
Q. So you are telling the
Court that you did not witness
Exh. 20
A. No I did not."
From the above admitted acts of
forgery perpetrated with the
active participation of Dr.
Kells, Nana Arvo Buah (PW1) and
others in connection with the
estate of Dr. Blay-Miezah, the
task of the plaintiffs in
establishing the due execution
of the 1989 Will cannot be
discharged solely on the
evidence in chief of Mrs.
Pennington. For after all the
purpose of cross-examination is
to test the authenticity of the
evidence lead in chief and the
credibility of the witness. It
is only when the evidence in
chief had been subjected to
critical examination alongside
the witness answers in
cross-examination and the other
relevant evidence, can any
weight be attached to the
evidence of PW4.
For where the validity of a Will
is challenged, especially on
grounds of forgery, the proof of
due execution in such an action,
demands a proof of all the
elements thereof. This proof
comprises:
i) Proof of the genuiness of
the disputed Will:
McDonald vrs. McDonald
142 Ind. 55, 41 NE 336. In this
wise evidence must be
established to remove all
suspicious circumstances
negativing the genuineness of
the will
ii) Proof of the genuineness
of the testator's signature:
Weber vrs Storobel. Mo.
Sup, 194 SW 272.
iii) Proof of the authorization
by the testator of another to
sign for him when that method
of signing is employed:
McCoy vrs Conrad, 64 Neb.
150, 89 NW 665.
iv) Proof of the presence of
the entire instrument at the
time of execution: In re
Maginn's Estate, 278 Pa 89, 30
ALR 418, and
v) Proof of the attestation of
the Will in the presence of the
testator: Clarkson vrs
Kirtright, 291 111 609, 126 NE
541.
Of course, where the opposing
party by his pleadings admits
any of the above elements, the
proponents of the will are
relieved from proving that
element. But short of any
admission, proof of due
execution in a contentious
probate action requires proof of
all the elements of validity of
the Will in dispute.
For in such a case, there is no
presumption that the subscribing
witnesses told the truth in
testifying that they saw the
will executed. Indeed, the
Court will not apply the maxim
omnia praesumuntur rites es
solemniter esse acta (all things
are presumed to be correctly and
solemnly done) where there are
circumstances that excite the
suspicion of the Court that
there must be something wrong
with the Will. The burden of
the plaintiffs or those who
propound the Will is to lead
credible evidence to remove such
suspicion and to prove
affirmatively that the Will is
indeed that of the testator. As
Lindley L.J. explained in Tyrell
vrs Painton (1894) 151 P 157 CA,
in all cases:
"in which circumstances exist
which excite the suspicion of
the Court; and wherever such
circumstances exist, and
whatever their nature may be, it
is for those who propound the
Will to remove such suspicion,
and to prove affirmatively that
the testator knew and approved
of the contents of the document,
and it is only where this is
done that the onus is thrown on
those who oppose the Will to
prove fraud, or undue influence,
or whatever else they rely on to
displace the case made for
proving the Will."
In this wise, as held in Baird
vrs Shaffer 101 Kan. 585:
"The testimony of subscribing
witnesses to a Will may be
overcome by any probative facts
and circumstances admissible
under the ordinary rules of
evidence."
Indeed in the unbiased search
for the truth, the law has no
favourites by presumption.
Silent circumstances, without
power to change their attitude,
or to make explanations, or to
commit perjury, may speak as
truthfully in Court as animated
witnesses. Accordingly when an
issue of forgery in a civil case
is raised by pleadings and
contested by evidence on both
sides, there is no presumption
either in favour of witnesses or
in favour of circumstances. All
of the evidential facts, which
throw light on the issue, must
be considered in connection with
the allegation of proponents
that the Will is genuine and
with the charge of contestants
that the document offered for
probate is a forgery. If the
truth is found in oral
testimony, it must determine the
issue, but it is equally potent
if found in circumstances.
As Rose J at the Nebraska
Supreme Court said in In Re
O'Connor's Estate, 179 NW 401 at
406:
"In a civil case, when there is
substantial proof in support of
the plea that the Will offered
for probate is a forgery, all
presumptions in flavor of
genuineness fall. Thereafter
the truth must be found in the
evidence itself, and every item
of proof must stand on its own
footing in connection with each
evidential fact considered in
its proper light. In this test
presumption creates no advantage
one-way or the other. In such a
situation persons who declare
themselves to be subscribing
witnesses and boldly speak from
the witness stand as such,
though not directly impeached,
are subject to the same
impartial and penetrating
scrutiny as the mute instrument
ascribed by them to the dead."
I endorse and adopt the above
statement of Justice Rose. For
where the will is alleged to be
a forgery and the procured
attesting witnesses have the
hardihood to commit perjury, it
is difficult to see how the
bogus Will can be overthrown
except by careful scrutiny of
the evidence of such supposed
attesting witnesses, with the
other relevant evidence.
In the instant case what
evidence did the plaintiffs
produce to remove the strong
suspicion created by the
existence of the signed blank
letterheads, Exh.6 and Exh.20?
Now the 1989 Will Exh.21 was not
deposited in any bank, court or
secured place but produced from
the custody of Dr. John Kells by
PW1, Nana Arvo Buah. Of course,
in his evidence, PW1 alleged
that Dr. Blay-Miezah gave him a
copy of the 1989 Will, which he
tendered as exh.D. He was asked:
"Q. You told this Court that
Dr. Blay-Miezah gave you a copy
of this Will.
A. Yes
Q. That is Exh. D
A. Yes
Q. What date is it?
A. 29/1/89
As to the original of the 1989
Will Exh.21, PW1 gave
inconsistent answers as to
whether he had ever seen it or
not. He was first asked:
"Q. According to your record,
Dr. Blay-Miezah gave you a copy
of the 1989 Will.
A. Yes
Q. Do you know the
whereabouts of the original of
the 1989 Will?
A. I don't know
Q. Blay-Miezah did not show
you the original of that Will
A. No
Q. What Will was sent to
Accra to be shown to the family
and to Mr. Bossman.
A. It was sealed so I gave
it to Mr. Bossman
Q. So Mr. Bossman had the
original of that Will
A. It was sealed so I have
no idea
Q. Who gave you the sealed
envelop which you said contained
the Will
A. Dr. John Kells."
But later when PW1 was asked:
"Q. Yesterday I asked you if
you had seen the original of the
Will and you said no.
A. When Dr. Kells showed me
the original Will he put it in
an envelope and sealed it. I
brought it down to Accra and
handed it over to the family
comprising Paa Kwesi, Asemda and
Mr. Whajah
Q. Did you know whether or
not it was an original Will
A. Yes
Q. You put it in an envelope
A. No I said Kells did."
Now whatever be the situation,
the undisputed fact is that the
original of the 1989 Will came
from the custody of Dr. Kells.
One of the issues hotly
contested by the defendants was
the genuineness of the signature
of Dr. Aye-Kumi appearing as
attesting witness on the 1989
Will. In pursuit of their
contention that the said
signature was forged, the
defendants on their own
submitted a copy of the 1989
Will together with an executed
indenture and the passport of
the late Dr. Ayeh-Kumi, to a
forensic expert, Mr. John Albert
Owusu, who testified as CW2. In
his said report dated 9th
December 1994, he expressed his
opinion thus:
"My conclusion was that the one
who signed the indenture and the
passport was not the same person
who signed the Will of 1989 i.e.
in respect of Dr. Ayeh-Kumi."
Later following instructions
from the Court, CW2, and another
expert, Alhaji Bubari Yakubo,
CW3 revised their opinion and
concluded that the signature of
Dr. Ayeh-Kumi was genuine,
because of the possible effect
of Parkinson's disease Dr. Ayeh
-Kumi was alleged to be
suffering. The two experts said
that they did not at first know
that the late Dr. Ayeh-Kumi was
suffering from Parkinson's
disease. Thus, in his opinion,
CW3, Alhaji Yakubo concluded:
"In view of the above
observations and with the
declining condition of health
and age of Dr. E. Ayeh-Kumi
(Exh. H. J. L and the alleged
Parkinson's disease being
suffered by subject) which
grossly affected his
neuro-muscular co-ordination,
creating extreme variations and
inconsistency in both the
handwriting and signatures
during the period between late
1980 and early 1989, it is
concluded that all signatures
representing Dr. Emmanuel
Ayeh-Kumi on Exhs. 21, 28 H, I,
L and O were produced by one and
the same person."
Now what is clear is that the
signature of Dr. Ayeh-Kumi on
the 1989 Will is different from
all the genuine signatures of
Dr. Ayeh-Kumi on all the
exhibits presented to the
experts for their comparison.
The difference being that there
is a complete break in the
signature of the 1989 Will,
while there is no such break in
any of the specimens
signatures. And with one's
naked eye and without any expert
knowledge, one would easily
notice the difference both in
the break and some of the
characters in the alleged Dr.
Ayeh-Kumi's signature on the
1989 Will. Thus, Mr. Owusu CW2,
while under cross-examination
was asked in relation to the
signature on the 1989 Will
(Exh.210) and Dr. Ayeh-Kumi's
passport (Exh. 22):
"Q. Looking at the two
signatures of Exh.21 and 22, it
does not require an expert to
tell you that they are poles
apart.
A. Looking at the two
signatures in isolation, yes. A
layman looking at the two would
not need an expert to tell him
that they are different."
The other expert, Alhaji Yakubo
was also asked:
"Q. In Exh.21 (i.e. 1989 Will)
there is a definite break in the
writing
A. Yes I have indicated that
break with a question mark.
Q. Indeed, it is apparent on
Exh.21, and obvious even to the
naked eye that there is a break
in the signature
A. Yes, there is a definite
break but not to many naked
eyes.
Q. We would like the Court to
take a look at the signature on
Exh.21 and at the break just
before the last three "mums."
By Court - Yes I see it
Q. After the break the author
struggles to complete the
signature."
In the face of such visible
difference in the signature on
the 1989 Will and the other
genuine signature, the experts
were made to change their
earlier opinion and conclude
that the Parkinson's disease
contributed to the difference in
the 1989 Will. But obviously
such a conclusion needed
positive evidence that during
the period 1980 to 1989, Dr.
Ayeh-Kumi did sign his name as
appearing on the 1989 Will.
To begin with, the instructions
from the Court contained in a
letter from the Chief Registrar,
dated 15th July 1996, inter
alia, reads:
"By direction I forward the
under-mentioned documents in the
above-named case exhibits 21, 22
28 H, J, L and O:
1. Please find out whether the
alleged signatures and
handwriting of Dr. Ayeh-Kumi on
exhibits 21 - the Will of 1989,
22 - passport, 28 - the Will of
1989, H, J & O were signed by
the same person ...
Dr. Ayeh-Kumi is alleged to have
suffered from Parkinson's
disease towards the end of his
life. This apparently, caused
his hand to shake so that
someone (had) to hold his hand
to enable him to write.
(signed) Y.K.M. Agbleta
Chief Registrar."
Such an instruction was highly
prejudicial. And as I said
earlier there must be evidence
of the signature of Dr.
Ayeh-Kumi during the period 1980
to 1989.
But on the contrary, the
evidence of Dr. Ayeh-Kumi's
signature during the period of
the alleged Parkingson's disease
shows the contrary. There was
first Exh. L, a letter written
and signed by Dr. Ayeh-Kumi on
22nd December 1988 to the
Secretary of Interior. This was
less than a month and a half
before the alleged signing of
the 1989 Will. There was then
Exh. 46 dated 24th January 1989
containing the signatures of
both Dr. Blay-Miezah and Dr.
Ayeh-Kumi. This was just five
days before the execution of the
alleged 1989 Will. But both
signatures on Exh. L and 46 do
not exhibit the break and the
differences apparent in that of
the 1989 Will. Furthermore, Mrs.
Pennington PW4, who claimed to
have seen Dr. Ayeh-Kumi signing
the 1989 Will, did not say that
Dr. Ayeh-Kumi had any difficulty
in signing his name. Mrs.
Pennington's evidence on how Dr.
Ayeh-Kumi signed the 1989 Will
was as follows:
"He (i.e. Dr. Blay-Miezah) then
passed the paper to Dr.
Ayeh-Kumi who signed it with his
own pen which was on old
scratching pen: I saw Ayeh-Kumi
signing the paper."
Such evidence from PW4 does not
support the claim of one
struggling to sign his name.
It is therefore obvious that the
conclusion of the experts based
on the alleged effect of the
Parkinsons disease is not
supported by the evidence of
PW4, and the signatures of Dr.
Ayeh-Kumi in exhibits L and 46
within the period in which the
1989 Will was allegedly made.
Consequently, the revised
opinion of the two experts
cannot be justified. Indeed the
revised opinion of the two
experts are not binding on the
Court, and the trial judge ought
to have made her own assessment
in the light of the evidence of
PW4 and exhibits L and 46. For
as noted in Sasu vrs White Cross
Insurance Co. Ltd. (1960) GLR 4
at 5:
"expert evidence is to be held
with reserves, and does not
absolve the judge from forming
his own opinion on the evidence
as a whole."
I think the law is quite settled
that where there is a dispute as
to the genuineness of a
signature, a safer way is to
compare and examine the disputed
signature with admitted genuine
signatures alongside the
evidence of those familiar with
the usual signature, of the
person signature is in dispute.
Thus the Court of Appeal in In
re Essien alias Baidoo; Essien
v. Adisah (1987-88) 1 GLR 539 at
543 said:
"The proof of any signature may
be established by producing from
the proper custody other
documents bearing the signature
of the person whose signature is
in dispute and thereby afford
opportunity to the witnesses who
know the signature of that
person and also to the court to
compare the signatures in such
documents directly with the
disputed signature."
Justice S. Azu Crabbe made the
same point in his book- The Law
of Wills in Ghana, published by
Vieso Universal (GH) Ltd 1998,
at page 198:
"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 to
the court, to compare the
signatures in the signatures in
the will directly with the
disputed signature."
The evidence of Dr. Ako Adjei
and Mr. E. B. Kwaw Swanzy, very
close associates of the late Dr.
Ayeh Kumi, to the effect that
the signature appearing on the
1989 Will was not the signature
of the Dr. Ayeh Kumi together
with Exhibits L and 46
emphatically discredited the
experts' revised conclusion and
supported the defendants
contention that the said
signature was forged. In In Re
O' Connor's Estate (supra) the
Court held the Will of the
testator to be forged
notwithstanding the evidence of
experts that the signature of
the testator was genuine. The
duty to decide whether the
signature is genuine or not, is
that of the judge and not the
experts.
Now the only evidence on the
preparation and execution of the
1989 Will was that of Mrs.
Pennington, PW4. The relevant
part of her evidence reads:
"The last time I saw Blay-Miezah
was on the 29th January 1989. I
saw him at his house at Avenue
Road; the house was in
Hampstead, London. I went there
that day by mini cab. I went
with Dr. John Kells. Dr. John
Blay-Miezah rang D. John Robert
Kells on Sunday morning and
requested him to go to see him.
He also asked that I would
accompany him. If I had a
typewriter to bring it also ...
The two of us set off and in
taking the typewriter I knew
there was typing to be done ...
I got to the house about 2 o'
clock; I can't be precise. The
mini cab stopped at the gate and
we announced who we were to the
security at the gate and the
mini cab drove to the front door
and we got out. We rang the
bell. Dr. Blay-Miezah's
man-servant opened the door and
let us in ... After we'd been
let in by the servant we went in
the waiting room - it was a
library. We waited for about 20
minutes and we were escorted
into Dr. Blay-Miezah's sitting
room by Kaku. Blay-Miezah was
there with Dr. Ayeh-Kumi. While
I John Kells, Blay-Miezah and
Ayeh-Kumi were there nobody else
came there. Dr. Blay-Miezah
asked me if I would do some
typing and I said Yes. So I set
up the typewriter on a little
anteroom on the left of Dr.
Blay-Miezah's huge living room.
He gave me several sheets of
paper, which were handwritten in
Block Capitals so I could read
it. I had a quick look at the
writing and said yes, I would.
I said I would come and see him
if I had any problem. He gave
me one sheet of paper with the
Butterfly on it and I had to
make a good job of it. The
Emblem was a green Butterfly.
Apart from that I think it had
Oman Ghana Trust Fund underneath
the Butterfly. I read the
papers he gave me and made sure
I could read them before
commencing the typing. I plugged
the typewriter. I was nervous
because it was only one sheet.
I asked him how he wanted it set
out because I didn't think it
would all go on initially, but
he said not to leave a margin
but to type right across the
page. I found that I would do
it and I was relieved. I then
handed it to Dr. John Kells who
handed it to Blay-Miezah who
then checked it. After he had
checked it he took out his pen
and signed it. He then passed
the paper to Dr. Ayeh-Kumi who
signed it with his own pen,
which was an old scratching
pen. I saw Ayeh-Kumi signing
paper. Dr. Blay-Miezah ask me if
I would witness it so I did it
with my own pen ... After I
signed it I handed it back to
Dr. Blay-Miezah as well as the
sheets. I handed them to Dr.
John Robert Kells and he handed
them to Dr. Blay-Miezah - Dr.
Blay-Miezah's servant Kaku came
in once to serve refreshments in
particular for Dr. Ayeh-Kumi so
that he would take his
medication ... Dr. John Robert
Kells and I probably left
between 5 and 6 p.m. It was dark
at the time. Just before we
left Dr. Blay-Miezah handed a
package - like a thick envelope
with a ribbon round it to Dr.
John Kells. I don't remember
the colour of the envelope (a
manila type of envelope). After
that Blay-Miezah and Dr. John
Robert Kells embraced each
other. Ayeh-Kumi was still
seated but he shook hands warmly
with him. After the embracing
and handshaking Kaku saw us to
the door."
From the above evidence of Mrs.
Pennington, those who were
eye-witnesses to the preparation
and execution of the 1989 Will
were, the testator, Dr.
Ayeh-Kumi, since deceased, Dr.
John Kells and Mrs. Pennington
herself. The testator and Dr.
Ayeh-Kumi are dead, leaving
behind Dr. Kells and Mrs.
Pennington. Dr. Kells who is
the sole executor and
beneficiary of this Will is the
first plaintiff but he refused
to testify himself. Instead he
appointed an Attorney, Mrs.
Sophia Ofori-Attah who
honourably confessed that she
had no knowledge about how the
1989 Will was executed. Mrs.
Sophia Ofori-Attah was asked in
cross-examination:
"Q. So you have no personal
knowledge of how the alleged
1989 Will was executed?
A. No I don't know."
This Attorney of the 1st
plaintiff, gave an impression of
being quite familiar with the
late Dr. Blay-Miezah, and even
testified that Dr. Blay-Miezah
showed her the 1988 Will. But
in respect of the 1989 Will she
said Dr. Blay-Miezah "never said
anything to me about an 1989
Will?
Now the evidence of Mrs.
Pennington as to the number of
people present during the
preparation and execution of the
1989 Will does not tally with
what was pleaded in paragraphs 6
and 7 of their Statement of
Claim. According to paragraph
6, the Will was prepared in the
presence of:
- the testator
- Dr. Kells
- Mrs. Angelika Pennington
- Dr. Emmanuel Aye-Kumi
- Nana Arvo Buah
- Mr. Kim, and
- James Kaku.
While paragraph 7 pleads that
from the above persons, Angelika
Pennington and Dr. Aye-Kumi were
invited as attesting witnesses
in the presence of all the
remaining people mentioned in
paragraph 6, and further did
sign as such in the presence of
those people.
Of the persons mentioned in
paragraph 6 of the Statement of
Claim, James Kaku who testified
as DW1 and Chong Han Kim, DW3
emphatically denied that Mrs.
Pennington, Dr. Kells and Dr.
Ayeh-Kumi were in the house of
Dr. Blay-Miezah on the 29th
January 1989. And when
plaintiffs' counsel suggested to
Kim that from his room in
Blay-Miezah's house he could not
have seen all those coming to
Dr. Blay-Miezah that day, Kim
answered:
"A. Anyone who went to the
office must pass in front of my
room which was opened all day
long when I was working at 60
Avenue. No one could pass
without seeing them."
The plaintiff's witness, Nana
Arvo Buah, PW1, who was not
mentioned as being present by
PW4, but listed in paragraph 6
of the Statement of Claim,
alleged that though he was
present with Dr. Ayeh-Kumi, Dr.
Kells, Mrs. Pennington on that
day in Dr. Blay-Miezah's house,
he did not know nor witness the
preparation and execution of any
Will. Rather, it was when he was
driving Dr. Aye-Kumi home that
evening that the latter showed
him a copy of the 1989 Will. He
claimed he read it and when he
came back, he challenged Dr.
Blay about the contents of the
Will. He said Dr. Blay-Miezah
explained and gave him a copy of
the said Will, which he tendered
as Exh. D. PW1 said:
"When I was taking Dr. Ayeh-Kumi
home ... he showed me his copy
of Dr. Blay-Miezah's Will ... I
read the whole thing ... I
returned to Dr. Blay-Miezah and
challenged him .. After I had
spoken to Blay-Miezah and he
explained the whole thing to me
he gave me a copy of it. I have
always had a copy of it."
Thus apart from the original of
the 1989 Will, we learn from the
evidence of PW1, two copies of
this Will made that very evening
of 29th January 1989 before Dr.
Blay-Miezah left for Ghana.
But the evidence of Mrs.
Pennington was definite that she
typed the Will on one single
sheet. No copy of the Will was
made that evening. Mrs
Pennington testified:
"He (i.e. Dr. Blay-Miezah) gave
me one sheet of paper with the
Butterfly on it and I had to
make good job of it ... I was
nervous because it was only one
sheet."
Under cross-examination by Mr.
Erskine, Mrs. Pennington was
asked:
"Q. You want this Court to
believe that you typed only one
page?
A. Yes I only had one page. I
was only given one page. I only
witnessed the 2 signatures
once."
Later down the
cross-examination, she was
further asked:
"Q. You told this court you
typed one document - Exh. 21,
and it was the only one you
typed that day.
A. Correct
Q. You are sure it was only
one document you typed that day
for him?
A. Yes positive.
Q. When you went home did you
type anything for Mr.
Blay-Miezah to sign?
A. I do not believe so. No."
From where then did the two
copies PW1 talked about come
from? Especially as 1st
plaintiff's Attorney positively
asserted in her evidence:
"A. The Will was written on
29th signed on 29th and given to
Dr. Kells on 29th."
From which 1989 Will, were
copies made to PW1 and Dr.
Ayeh-Kumi as alleged by PW1? The
evidence of Mrs. Pennington and
PW1 on this cannot be true.
Clearly from their evidence the
1989 Will could not have been
prepared and copies made on the
29th January 1989 - the very
evening Dr. Blay-Miezah left
London for Ghana and never
returned.
Next, it is also important to
note that from Exh. 21, it is
clear that the names of the two
attesting witnesses were typed
before the signatures were made.
Thus Mrs. Pennington in the
course of her evidence
identified:
"I have with me the paper that I
typed and which was signed -
Exh.21."
If this was so, as it was, then
Mrs. Pennington who claimed to
have typed Exh.21 must have
known after typing and before
the signing that she was going
to be an attesting witness.
Because before she appended her
signature on Exh.21, her name
had already been typed on it,
thus:
"witnessed by Mrs. E.A.
Pennington 7 Upper Wimpole
Street, London W.1."
But in her evidence under
cross-examination, she gave the
following answers to the
questions put to her:
"Q. You told this Court that
after Blay-Miezah had read it he
signed it.
A. Yes that is correct
Q. Did you know that you
were also going to sign?
A. At that point I didn't
know
Q. Did you know that Dr.
Ayeh-Kumi was going to sign?
A. I realized when Dr.
Blay-Miezah handed it to him
that I realized he was going to
sign it.
Q. When Dr. Ayeh-Kumi signed
it was at that time that Dr.
Blay-Miezah craved your
indulgence to sign as a witness
for him
A. Yes that's correct."
Such answers from Mrs.
Pennington clearly punctuate her
evidence that she type Exh.21.
For at the end of the main body
of the Will, was typed the names
and residential address of the
two attesting witnesses as
follows:
i) Witnessed by Dr. E.
Ayeh-Kumi, I C Cromwell Lodge,
Cromwell Gr. London, W. 6.
ii) Witnessed by Mrs. E.A.
Pennington, 7 Upper Wimpole
Street, London W.1.
How can the one who typed those
names and addresses, now say
under cross-examination that she
did not know that she and Dr.
Ayeh-Kumi were going to sign as
witnesses? Mrs. Pennington's
answers above clearly show that
she could not have been the one
who typed Exh.21. If she typed
it she would definitely have
known that she was going to sign
as an attesting witness.
Consequently, her claim that she
typed Exh. 21 on 29th January
1989 were obviously a lie.
Mrs. Pennington was also
confronted in cross-examination
with Exh.6 and 20 (the forged
Will of 15/6/92 and Payment
Instructions). She denied
typing them. However although
she claimed she typed Exh.21 on
her own typewriter which she
carried to Blay-Miezah's house
for that purpose on the 29th
January 1989 and carried back
home after typing, she admitted
under cross examination that it
was possible that exhibits 21,
20 and 6 might all have typed on
the same typewriter. Which
typewriter? Her own? She was
asked:
Q. Have a look at this
document, Exh. 6.
The character of this
document is the same as exhibits
20 and 21 - which you said you
signed. They are all from the
same typewriter.
A. It's a possibility but I
do not know for sure."
Thereafter she was asked:
Q. I also put it to you that
all these documents were typed
long after the 30th day of June
1992.
A. I don't know that."
Now if Mrs. Pennington were
indeed the one who typed exh.21
she obviously would not have
replied that she did not know
that exh. 21 was typed long
after the death of Dr.
Blay-Miezah.
Such answers obviously punctuate
her evidence that she typed
Exh.21 on the 29th January
1989. Thus her claim was
nothing but a lie - a lie
calculated to assist her
employer Dr. Kells to secure
probate of an alleged Will that
was never in existence during
the lifetime of Dr. Blay-Miezah.
In her evidence Mrs. Pennington
explained her relations with Dr.
Kells as follows:
"I know John Robert Kells. He
was my employer from 1982 to
1992 or 1993."
Then in cross-examination we
have:
"Q. You were his personal
Secretary.
A. I was his Secretary
Administrator of the School and
Teacher
Q. You were almost his after
ergo
A. I will call it his
servant
Q. You were his most trusted
employee
A. One of them
Q. You were very loyal to
him
A. Yes"
Not surprisingly the defendants
did not deny that the signature
of Mrs. Pennington on Exh.21 was
hers, because given the sort of
relationship existing between
her and Dr. Kells, she would do
everything to support the claim
of Dr. Kells. As she was later
asked:
"Q. So that you would do
everything to protect his
interest
A. I would carry out my
duties as required."
This was the relationship and
obligation owed by Mrs.
Pennington to Dr. Kells. And
certainly, if the trial judge
and the Court of Appeal had
examined Mrs. Pennington's
evidence especially that of her
cross-examination, they would
have realized the improbability
of her claim that she typed
Exh.21.
But as Benin and Baddoo JJ A
held, the High Court had no
jurisdiction to sit in London
for the evidence of Mrs.
Pennington. Consequently the
evidence of PW4 was taken
without jurisdiction and
therefore null and void.
The trial judge justified her
sitting in London, on Order 37
rule 5 of the High Court (Civil
Procedure) Rules 1954 (LN 140
A). This rule reads:
"The Court or Judge may in any
cause or matter where it shall
appear necessary for the
purposes of justice, make any
order for examination upon oath
before the Court or judge or any
person, and at any place, or any
witness or person and may
empower any party to any such
cause or matter to give such
deposition in evidence therein
on such terms, if any, as the
Court or judge may direct."
As to the scope of this rule,
the trial judge reasoned:
"I think that Order 5 gives very
very wide powers to the Court.
The criterion in that section is
where it shall appear necessary
for the purposes of justice and
the operative words are 'make
any order for examination upon
oath before the judge ... at any
place of any witness or
person'. So that it is obvious
that the judge has the power to
make an order for the case to be
adjourned to 'any place' be it
Ghana, Timbuktu or Iceland,
because the section does not
qualify the word 'any' and 'any'
means 'any' - an unspecified
amount or number, 'every' no
matter which."
In her interpretation of the
above rule the judge relied on
the English case of St.
Edmundsbury and Ipswich Diocesan
Board of Finance & Anor vrs
Clarke (1973) I Ch. 323 wherein
an application under the then
Order 39 rule 1 was brought by
the plaintiff before the Court
in London to take the evidence
of one Mrs. Mael, at Iken by an
examiner on grounds that the
witness was physically unfit to
travel to London to testify. At
the hearing of the application,
Megarry J:
"enquired whether to make such
an order was the only course
open to the Court, or whether it
would be possible for the
hearing before me to be
adjourned to Iken for me to hear
Mrs. Mael's evidence and the
Registrar helpfully referred me
to Order 35 rule 3."
Thereafter after satisfying
himself that there was ample
medical evidence to justify Mrs.
Mael not being required to come
to London to testify, Megarry J
concluded:
"It seems to me that I have an
inherent power to sit at Iken
and that this power is fortified
by Order 35 rule 3 ...
Accordingly on the footing that
I have mentioned I rule that I
can and should hear the evidence
of Mrs. Mael at Iken."
The Order 39 rule 1 of the
English rules under which the
application was brought is the
same as our Order 37 rule 5
under which the Court could
order evidence on deposition or
commission to be taken. But the
English Order 35 rule 3 under
which Megarry J granted the
application and moved to Iken
for the evidence of Mrs. Mael is
not similar to our Order 37 rule
5 but Order 36 rule 19. The
English Order 35 rule 3 reads:
"The judge may, if he thinks it
expedient in the interest of
justice, adjourn a trial for
such time, and to such place,
and upon such terms, if any, as
he thinks fit."
The trial judge in the instant
case in relying on Megarry J's
decision, failed to realize that
the rule under which the
application in that English case
was granted, was Order 35 rule
3, that is our Order 39 rule 19,
and not the English equivalent
rule of our Order 37 rule 5.
And Iken where Megarry J moved
to take evidence was outside
London but within England. Thus
St. Edmundsbury's case can never
be an authority for a Court to
adjourn a case to a place
outside the territorial
boundaries of the nation in
which a Court exercises
jurisdiction.
Now Order 36 rule 19 of LN 140A
empowers a Court to adjourn the
trial of a case from time to
time and to such place within
the judicial division of the
Court. Order 37 rule 5 of LN
140A on the other hand empowers
a judge to order deposition at
any place. And the expression
'at any place' in the rule
certainly refers to a place in
or outside Ghana. Rules 6, 7,
8 and 9 of Order 37 explain the
modalities of taking such
evidence in respect of witnesses
abroad.
But a judge in Ghana has no
power under Order 37 rule 5 of
LN 140A to move to a foreign
country to take evidence from
any witness. If evidence is to
be taken abroad from a witness,
the judge's duty is to decide
whether such evidence is
necessary, and thereafter make
the necessary orders in
accordance with rules 6, 7, 8
and 9 of Order 37 for the said
evidence to be taken on a
commission by writ before a
Commissioner, or a request to
examine in lieu of a
commission. For the territorial
jurisdiction of the courts of
Ghana is over Ghana and Ghana
alone, as the trial judge later
acknowledged in her ruling dated
26th February 1997 refusing a
review application to order the
United Overseas Bank, Geneva to
produce the Will of Dr.
Blay-Miezah. She said:
"The territorial jurisdiction of
the High Court of Justice is
over Ghana and Ghana alone. No
judge has power beyond the
territorial limits of Ghana ...
Mr. Anancy is asking me to give
a command with authority to the
Swiss Bank to send the alleged
Will unto them ... You can only
order or compel someone who is
under your power or authority or
control to obey your orders,"
It is precisely for the above
reasons that the rules of Court
do not empower the High Court in
Ghana to move and sit in a
foreign Country. The High Court
would not have any means of
enforcing its orders. The Court
of Appeal was therefore right in
setting aside the evidence of
PW4.
Since the judgment of the High
Court was based almost entirely
on the evidence of PW4, one
would obviously have thought
that with the nullification of
that evidence, the High Court
judgment would likewise fall.
But the majority held
otherwise. Hence ground six of
the original grounds of appeal
of the 1st defendant/appellant:
"vi. The majority decision
having held that the evidence of
Mrs. Pennington taken in London
was without jurisdiction and was
void and the trial learned judge
having wholly relied on the said
evidence, it is submitted that
the majority misdirected itself
when it held that an affidavit
of Mrs. Pennington was
sufficient to support the claim
that the Will was valid."
The majority of the Court of
Appeal (Lamptey and Benin JJA)
held that notwithstanding the
nullification of the evidence of
PW4, an affidavit allegedly
sworn to by Mrs. Pennington, and
brought down by PW3, Mr. Rice
from the Ghana High Commission,
London, was sufficient to
sustain the trial judgement. PW3
in his evidence in chief said
that he met Mrs. Pennington in
London and tried to convince her
to come to Ghana and testify.
But she refused saying that she
was afraid of her life and that
she had left an affidavit at the
Ghana High Commission, which she
asked him to take it to Court in
Ghana. This affidavit was
tendered as Exh. E, and this is
the affidavit, which the
majority held it to be
sufficient to sustain the
judgement. It was tendered in
the face of strong objection
from the defendants. Mr.
Adumua-Bossman, counsel for the
plaintiffs in replying to the
objections, rightly in my view,
observed:
"All the documents can be taken
and Mrs. Pennington can be
confronted with the contents of
the documents. It they are
denied any cross-examination it
is then a document that carries
zero weight." (emphasis
supplied)
Accordingly the trial judge in
her ruling admitted the
affidavit as Exh. E subject to
the following condition:
PW3 cannot be cross-examined on
it, therefore if Mrs Pennington
cannot be cross-examined as to
the veracity of the contents of
the affidavit it is then totally
worthless. If she can be
cross-examined then of course,
it is of some value" (emphasis
supplied).
Indeed after Exh. E had been
admitted; the defendants filed a
notice to cross-examine Mrs.
Pennington. The notice reads:
"Take Notice that the 1st, 3rd
and 4th defendants require the
production of Mrs. Angelika
Pennington the deponent of Exh.
E for cross-examination at the
trial."
And instead of the plaintiffs
producing Mrs. Pennington at the
trial in Ghana, they rather
moved the Court to London. Thus
Exh. E stands without any
cross-examination on it. And if
the majority of the Court of
Appeal had realized that Exh. E
was admitted subject to the
deponent being cross-examined,
they would obviously not have
held that the uncross-examined
affidavit could sustain a
judgement. Once the deponent of
Exh. E was not cross-examined,
the exhibit, in the words of the
trial judge, was "totally
worthless."
But this apart, the contents of
this exh E do not satisfy the
requirements of a valid Will.
Exh. E reads:
"On Sunday 29th January 1989, in
the afternoon, I accompained
Dr. John Kells to his farewell
meeting with Dr. John Ackah
Blay-Miezah, at latter's home in
Avenue Road, St. Johns Wood,
London. I carried a typewriter
to use for a confidential
document, which was to contain
classified information.
I had been employed by Dr. John
Kells for over ten years and was
in a trusted position for this
special task. I had also, on
several occasions, acted as Dr.
Blay-Miezah's nurse/secretary on
trips to Europe.
On arrival at Avenue Road,
security escorted us to the
library where we waited to see
Dr. Blay-Miezah. After a while
we were shown into a large room,
with a huge television screen,
and large wall-to-wall sliding
doors which opened up to a
floodlit garden. There was a
huge wooden chair, almost
throne-like in the room. Quite
ornate. I set up my typewriter
and commenced typing the
documents requested by Dr.
Blay-Miezah. Meanwhile, Dr.
Emmanuel Ayeh-Kumi, an old and
trusted advisor of Dr.
Blay-Miezah, Dr. John Kells, and
Dr. Blay-Miezah himself, spent
the time reminiscing and telling
stories until I had finished
typing. This took about one
hour. Dr. Blay-MIEZAH'S
MAN-SERVANT KNOWN TO ME AS Kaku
came and went with refreshments.
After I had finished typing, I
waited in a small side room or
antechamber while the gentlemen
held discussions to which I was
not privy to ... At about 5 p.m
I was asked along with Dr. Ayeh
Kumi to witness Dr.
Blay-Miezah's signature to what
was his last Will and testament.
This I did. At approximately
6.00 p.m everyone shook hands,
the men embraced, and final
farewells were said. Dr John
Kells and I left together and
went to a local restaurant near
to our place of work and had a
meal."
The relevant part of the above
affidavit dealing with the
execution of the 1989 Will is:
"At about 5 pm I was asked along
with Dr. Ayeh Kumi to witness
Dr. Blay-Miezah's signature to
what was his last Will and
testament. This I did."
The above averment does not
state:
- at what stage if any, Dr.
Blay-Miezah signed the 1989
Will.
Was it before she Mrs.
Pennington was called in or in
her absence? If before she came
in, did Dr. Blay-Miezah
acknowledge his signature in her
presence, and that of Dr.
Ayeh-Kumi?
- Whether Dr. Ayeh Kumi too
signed the Will. And if he did,
whether it was in her (Mrs.
Pennington's) presence or later,
especially as she and Dr. Kells
were the first to leave.
- and whether she made her
signature in the presence of Dr.
Blay-Miezah and Dr. Ayeh Kumi.
Section 2 of the Wills Act, 1971
(Act 360) provides, inter alia:
"2. (1) No Will shall be valid
unless it is in writing and
signed by the testator or by
some other person at his
direction.
(2) ....
(3) The signature of the
testator shall be made or
acknowledged by him in the
presence of two or more
witnesses present at the same
time.
(4) ....
(5) The witnesses shall attest
and sign the Will in the
presence of the testator, but no
form of attestation shall be
necessary.
(6) ....
None of the above requirements
can be assumed in a contentious
probate action where the
challenge to the validity of the
Will is one of forgery. They
are mandatory requirements
without which the court cannot
hold the Will valid. And once
exh. E does not establish these
requirements, the Court of
Appeal grievously erred in
holding that exh E could sustain
the judgment of the High Court.
Now with the evidence of PW4
nullified, and the serious
shortcomings of Exh. E, the
plaintiffs have no evidence on
the making of the 1989 Will. On
the contrary, the overwhelming
evidence of forgery perpetuated
by Dr. Kells and Nana Arvo Buah
in the preparation and execution
of Exh. 6 and 20 confirm the
defendants' contention that the
1989 Will was a forgery.
As stated earlier, there were
two other testamentary
dispositions. The first was
dated 16th August 1990 and
tendered as Exh. 13, while the
other was dated 9th June 1992
tendered as Exh.16.
In respect of Exh.13, the trial
judge held it to be valid and
therefore entitled to probate.
But in respect of exhibit 16 he
declared it invalid and not
entitled to probate because, as
she stated:
"Clearly Blay-Miezah did not
sign Exhibit 16 with intent that
it should be treated as a Will;
he had no animus testandi when
he dictated Exh.16."
In the judge's view, Exh.16
"was directing how moneys
already bequeathed by his 1988
Will and mentioned under payment
instructions were to be
channeled. The 1988 Will would
already have directed the
executor what to do about the
bequests thereunder. If Exh. 16
is construed as a testamentary
instrument it would be creating
a future clash between Joyce and
the executors of the 1988 Will.
By reason of the absurdity of
such construction Exh.16 could
not be held to be a Will,
nuncupative or otherwise."
Now the trial judge had already
declared the copies of the 1988
Will null and void. And one
therefore wonders from which
copy of source of the 1988 Will
she was comparing the contents
of Exh.16 with.
Now when the defendants, in
their respective Statement of
Defence and Counterclaim,
counterclaimed for probate of
the 1988 Will together with
exhibits 13 and 16, the
plaintiffs in paragraph 4 of
their reply to the 1st, 3rd and
4th defendants defence pleaded
that Exh.16 i.e. the 9th June
1992 codicil:
"was in any event procured by
duress and/or pursuant to a
conspiracy by and between the
persons who then had charge of
and contact with the dying
Blay-Miezah."
Notwithstanding this pleading by
the plaintiffs, the plaintiffs
themselves did not set this
down, as an issue for trial,
neither did any of the
defendants. Furthermore, not an
iota evidence was lead on the
alleged duress and conspiracy by
any of the plaintiffs witnesses.
On the other hand, the
plaintiff's material witnesses,
PW1 Nana Arvo Buah testified
that when he got to know of
Exh.16, he enquired from Dr.
Blay-Miezah's personal attendant
DW1 who confirmed to him PW1,
that exhibit 16 was dictated by
Dr. Blay-Miezah when the latter
was relaxing. PW1 said:
" ... I called upon Kaku who
also confirmed that it was
written by Stan Barron while
Nana was relaxing in a sofa. I
confronted Mr. Mochiah Ackah who
also said it was dictated by
Nana and written by Stan
Barron."
This evidence of PW1 confirmed
the evidence of three defence
witnesses who testified on how
Exh.16 was made. These
witnesses were James Kaku (DW1),
Bernard Miller (DW4) a German
doctor, and J.E. Mochiah
(DW.6). The evidence of these
defence witnesses on the making
of Exh.16, having been confirmed
by the plaintiffs' own witness
on the validity of Exh.16, while
the plaintiffs' contention that
Exh.16 was procured by duress or
conspiracy, stands unsupported
by any evidence, a Court of law
is duty bound to accept the
defendants version unless there
are compelling reasons appearing
on the record. (see Asante vrs
Bogyabi (1966) GLR 232 SC; In re
Ohene (decd.) Adiyia vrs. Kyere
(1975) 2 GLR 89 CA, Banahene
vrs. Adinkra (1976) 1 GLR 346
CA).
The evidence from both the
defence and the plaintiffs
witness, PW1, establish that
Exh.16 was handwritten, signed
by Dr. Blay-Miezah and witnessed
in the presence of Dr. Bernard
Miller, Mochia Ackah, and
Stanley Barron. Each of whom
witnessed the document in the
presence of the other. There is
also the signature of a fourth
witness. The evidence revealed
that this was the signature of
Blay-Miezah's wife, Mrs. Joyce
Blay-Miezah. As to how Mrs.
Blay-Miezah came to sign, DW.6 -
John Mochia Ackah explained in
his evidence in chief as
follows:
"After we had signed, he (i.e.
Dr Blay-Miezah) asked me to take
the document to his wife, who
was then in her room to sign -
this was Mrs. Joyce Blay-Miezah
Adzo Nyameke. After she had
signed it we brought the paper
back to where Blay-Miezah was."
Since the law requires only two
attesting witnesses, the
signatures of the three
witnesses were more than
enough. Thus the signature of
Mrs. Blay-Miezah was not
necessary and has no effect on
the validity of that document.
In this Exh.16 Dr. Blay-Miezah
refers specifically to his Will
deposited in two banks in
Switzerland and gives directions
on the distribution of some of
the bequests made therein: He
also set up a consortium of
named persons to take care of
certain matters not dealt with
in that Switzerland Will, and
even makes provision in the
event of the death of his wife
Mrs. Joyce Blay-Miezah.
If Dr. Blay-Miezah in dictating
Exh.16 did not have animus
tentandi, then one does not know
what else is required to satisfy
the requirement of testandi in a
man who dictated such words at a
time he was apprehensive of his
death. For as Dr. Miller
explained, when he was attending
Dr. Blay-Miezah between 11/5/92
and 10/6/92, Dr. Blay-Miezah
" ... had had the hiccups for
the last 4 weeks but it got
worse and worse. That was the
reason he had called me. During
the taking of the medical
history Dr. Blay-Miezah told me
that one of his close relatives
did get severe hiccups before
his death. So this was having a
great psychological effect and
fear on him."
In respect of the events of the
9th June 1992, the day on which
Exh.16 was made, Dr. Miller
testified:
"On the 9th of June I visited
Dr. Blay-Miezah ... In the
evening of the same day about 8
p.m., he complained of weakness
but there was no signs of
cardiac insufficiency. The
examination was done in the
bedroom of Dr. Blay-Miezah in
the presence of Mr. Stanley
Barron. After the examination,
Dr. Blay-Miezah called in Mr.
Mochia Ackah and he said he
would like to dictate a Will to
him and he dictated Exh.16 to
him."
In the face of such evidence,
which was not challenged, how
can it be said that Dr.
Blay-Miezah had no animus
testandi when he dictated
Exh.16?
In Mortimer on Probate Law &
Practice, 2nd ed, Sweet &
Maxwell 1927, the learned author
relying on Cock vrs. Cooke
(1866) 1 P. & D at 243, stated:
"Any document duly executed in
accordance with the requirements
of the statute, however
irregular in form or
inartificial in expression, is
entitled to probate, provided
the person executing it intended
that it should not take effect
until after his death, and it is
dependent upon his death for its
vigour and effect."
Sir John Nicholl in King's
Proctor vrs. Daines (1830) 3
Hagg, at p 231 made the same
point that if an instrument is
made in accordance with the Will
Act, then
"the form of the instrument is
not conclusive against its
testamentary effect; although it
may not be valid in the form in
which it was drawn up as a deed
of gift, yet it may operate as
a Will. If there is any proof,
either in the paper itself, or
from clear evidence dehors,
first, that it was the intention
of the writer of the paper to
convey the benefits by the
instrument which would be
conveyed by it, if considered as
a Will, and secondly, that death
was the event that was to give
effect to it, then whatever be
its form, it may be admitted to
probate as testamentary."
In the case of Exh.16, it is
very clear that both from its
contents and especially the
evidence of the four witnesses
that Blay-Miezah intended it to
be nothing but a Will. As Dr.
Miller testified; after he had
examined Dr. Blay-Miezah, the
latter
" ... called in Mr. Mochia
Ackah and he said he would like
to dictate a Will to him ..."
The trial judge clearly erred in
holding that Exh.16 was not a
testamentary because she failed
to avert her mind to the
evidence of the relevant
witnesses.
In conclusion, it is clear that
the plaintiffs woefully failed
to prove the validity of the
1989 Will. For the evidence of
Mrs. Pennington, lead in London
to establish the preparation and
execution of the 1989 Will was
without jurisdiction, and
further Exh. E the affidavit of
Mrs. Pennington is also "totally
worthless" as first, the
defendants did not have the
opportunity to cross-examine her
on it in Ghana; and secondly,
its contents did not satisfy the
requirements of section 2 of the
Wills Act 1971 (Act 360). In
addition the plaintiffs failed
to lead evidence to remove the
strong suspicion created by
exhibits 6 and 20 in the face of
the admitted fact that the late
Dr. Blay-Miezah left behind a
number of signed blank
letter-Heads (Exh.34).
On the other hand, assuming
without admitting that the
evidence of Mrs. Pennington was
taken with jurisdiction, it has
been sufficiently demonstrated
above that from her evidence
alongside that of PW1, other
witnesses and the exhibits,
particularly 6 and 20, her claim
that she typed the 1989 Will on
29th January 1989 with her own
private typewriter at the
residence of Dr. Blay-Miezah, in
London, cannot be true. For if
she indeed did type the 1989
Will on a single sheet of paper,
as she emphatically claim, from
where did the two copies of the
said Will talked about by PW1,
emerge that very evening of
29/1/89 before Dr. Blay-Miezah
left for Ghana?
Again if she indeed did type the
1989 Will on her own typewriter,
which she brought to Dr.
Blay-Miezah's house that evening
and took it back after the
typing, how could she have
answered that it was possible
that the said 1989 Will, and
Exh.6 (the forged 15/6/92 Will)
and Exh.20 (the payment
instructions) could have been
typed on the same typewriter,
especially as she denied typing
exhibits 6 and 20? And finally
if she did indeed type the 1989
Will in which the names of the
two attesting witnesses,
including her, had been typed,
how could she say that until she
was requested by Dr. Blay-Miezah
to sign as a witness to the
Will, she did not know that she
was going to be an attesting
witness, when her name had
already been typed as one of the
two attesting witnesses?
Mrs. Pennington is obviously a
shameless liar who in
collaboration with her
unscrupulous employer, Dr. John
Kells, and Nana Arvo Buah,
forged the 1989 Will as they did
of exhibits 6 and 20. She was
procured to bear false witness
in furtherance of their grand
forgery. She was an unworthy
witness who, in the words of
Proverbs Chapter 17 verse 28,
vowed to make a mockery of
justice. Not surprisingly she
was afraid to come to Ghana to
testify. Her employer, Dr.
Kells, never appeared in court
at all. Not even when the court
moved to London. They had their
own agenda. But the truth shall
in all circumstances eventually
triumph. As it now has.
It is sad that the High Court
and the majority of the Court of
Appeal did not, with respect,
critically analyze the evidence
to expose the mischief of this
unscrupulous gang.
The 1989 Will, Exh. 21 is
obviously invalid. It is
forged. And consequently not
entitled to probate.
The defendants are entitled to
probate of the 1988 Will
together with the testamentary
documents tendered as exhibits
13 and 16, dated 16/8/90 and
15/6/92 respectively. The
additional evidence lead at the
Court of Appeal revealed that
the trial judge, after her
judgment, granted two probates
in respect of the 1989 Will.
Since the 1989 Will is hereby
declared invalid, the two
probates are accordingly revoked
and ordered to be deposited at
the High Court, Accra, Registry.
Statements of accounts of the
administration of the estate on
the basis of the said probate
are to be filed at the High
Court Registry.
In the end, the appeal is
allowed. The judgments of the
Court of Appeal and that of the
High Court are, subject to this
judgment, set aside. The claim
of the plaintiff is dismissed,
and judgment entered for the
defendants on their counterclaim
as set out above. There will be
costs for the defendants.
MRS. BAMFORD-ADDO, JSC:
I agree
MRS JOYCE BAMFORD-ADDO
JUSTICE OF THE SUPREME COURT
AMPIAH, JSC:
I agree
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
ADJABENG, JSC:
I agree
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C:
In this "Treasure Island" case,
several points of Law and fact
have been canvassed. I propose
to deal with some aspects of
them on which I feel the need to
state my own views.
One fundamental point was
whether the trial court's
adjourned proceedings which took
place in the Ghana High
Commission premises in London
where PW4's evidence was taken,
were a nullity for want of
jurisdiction.
I must confess that this point
greatly exercised my mind
because of the factor that those
proceedings took place in the
premises of the Ghana High
Commission. The Constitution of
Ghana has defined the
territories of Ghana in article
4; but if, at common law, the
premises of an embassy are part
of the territory of the sending
state, then problems of
interpretation could have
arisen.
However, the notion that the
premises of an embassy are part
of the territory of the sending
state, as submitted by Mr.
Adumua-Bossman at the trial
court, though widely held by
some ambassadors and lawyers, is
not judicially accepted. This
matter was most fully treated in
the classic judgment of
Cumming-Bruce J in RADWAN V.
RADWAN (1972) 3 ALL ER 967. The
facts of that case as stated in
the headnote thereof are that:
"in 1951 the husband, an
Egyptian national, entered into
a contract of polygamous
marriage with an English woman
at the Egyptian consulate in
Paris. In 1956 he decided to
settle permanently in England
and acquired an English domicil
of choice. In April, 1970 he
went to the Consulate General of
the United Arab Republic in
London and, in accordance with
the proceedings laid down by
Egyptian Law, obtained a divorce
there from his wife by talaq.
In November, 1970 the wife
presented a petition for divorce
and the husband cross-prayed for
a decree. The issue arose
whether or not the Consulate
General of the United Arab
Republic in London was a part of
the territory of the sending
state so that the talaq divorce
obtained therein fell to be
recognised under Section 2(a) of
the Recognition of Divorces and
Legal Separations Act 1971 as a
divorce obtained in a country
outside the British Isles".
(e.s.)
At page 972 Cumming-Bruce J
said: "The term
'extra-territorial' has been
used to describe in a
compendious phrase that bundle
of immunities and privileges
which are accorded by receiving
civilised states to the envoys
sent by foreign states. One
such immunity included in the
term is the inviolable character
of the premises of the mission,
which the agents of the
receiving state may not enter
without the consent of the head
of the mission". After
consulting Satow, A Guide to
Diplomatic Practice; Starke,
Introduction to International
Law; Briggs, The Law of Nations,
Cases, Documents and Notes;
Oppenheim's International Law;
Kelsen, Principles of
International Law; Hall, A
Treatise on International Law;
FE Smith, International Law;
Hurst, International Law;
O'Connell, International Law;
Fawcett, The Law of Nations;
McNair International Law
Opinions; the learned judge
stated at page 973: "In all of
them I find a consensus of
opinion that there is no valid
foundation for the proposition
or alleged rule, that diplomatic
premises are to be regarded as
outside the territory of the
receiving state". (e.s.).
Cumming-Bruce J next referred to
judicial decisions on the
question in Australia, France,
Germany and Italy and said: "In
all these cases the court
rejected the argument that
diplomatic premises were not
part of the territory of the
receiving state". (e.e.). The
learned judge also referred to
International conventions and
stated at page 976: "What is
significant about those articles
is not so much what they say as
what they do not say. If it was
the view of the high contracting
parties that the premises of
missions were part of the
territory of the sending state
that would undoubtedly be
formulated and it would have
been quite unnecessary to set
out the immunities in the way in
which it has been done". (e.s.).
Finally at page 976 the learned
judge said: "I have been invited
to consider the impact on this
problem of the cases on the
formation of marriage, some of
which deal with marriage in
foreign consulates. I have
looked at such cases. I do not
accepted the proposition set out
in Rayden on Divorce, where it
is stated in the text:
'The only marriages in England
clearly outside the provisions
of this Act are those celebrated
at foreign Embassies ... which,
by the fiction of
extra-territorially, are
regarded as being celebrated in
the dominions of the sovereign
so represented'. (e.s.). His
Lordship then concluded thus:
"I am satisfied that the cases
do not justify the suggestion
that the way in which marriages
in consulates are recognised as
being validly formed has any
relation to the proposition that
premises of the consulate are
part of the territory of the
sending state, and the
authorities quoted by the
learned editors of Rayden on
Divorce do not bear out the
observation, if that is what
they intended it to mean.
For those reasons the husband,
being at the material time a
gentleman of English domicil,
did not go through a proceeding
for divorce in a country outside
the British Isles when he
pronounced the talaq three times
in the Consulate General of the
United Arab Republic of London
in 1970". (e.s.)
I am not only constrained by the
depth of learning of
Cumming-Bruce J to agree with
his decision in that case, but
also, by analogy, the Ghanaian
case of GHANA CONSOLIDATED
DIAMONDS LTD. V. BOAHENE
(1987-88) 1 GLR 87 C.A. In that
case the appellant company
obtained a concession which
provided, inter alia, that an
area of land included in the
concession and variously
referred to as "fetish grove,"
"fetish land", "Ayawa fetish
land," "shall in no way be
interfered with by mining or
other operations of the holder
of the time being of the
concession".(e.s.). The Akwatia
Stool, by reason, inter alia, of
this clause claimed that the
said fetish land was outside the
area of the appellant's
concession. This contention was
rejected by the Court of Appeal
which held that the clause
introduced only a limitation as
to the user of the land and not
that the land had been taken out
of the concession. Similarly,
therefore, I hold that the
privileges and immunities
attaching to the Ghana Embassy
in London only limit the rights
of the British government with
regard to it, but that embassy
remains part of the British
state and therefore the
proceedings which the trial
judge held there in this case,
were held on British territory.
As the courts in Ghana do not
have extra-territorial
jurisdiction, the same were a
nullity.
It was also contended that since
the plaintiffs/respondents had
pleaded that 6 persons were
present at the execution of the
alleged 1989 will by the
testator but at the trial they
sought to establish that a fewer
number had been present, the
court could not accept a case
contrary to their pleadings. It
is generally well established
that a party cannot set up a
case contrary to his pleadings.
But I do not think that it is an
absolute principle. Generally
speaking, the courts, having
established a legal principle,
often strive, if possible, to
avoid applying it in such a
manner as would occasion an
injustice. This is what the
greatest book in the world, the
Bible, itself teaches. Thus in
Luke 13:10-17 our Lord Jesus
Christ healed a woman on the
Sabbath and when an official of
the synagogue criticised this
act, the Lord answered him: "You
hypocrites! Any one of you would
untie your ox or your donkey
from the stall and take it out
to give it water on the
Sabbath. Now here is this
descendant of Abraham whom Satan
has kept bound up for eighteen
years; should she not be
released on the Sabbath?" (e.s.)
Again in chapter 6:1-5 when some
Pharisees criticised Jesus'
disciples who picked and ate
ears of corn on the Sabbath,
Jesus answered them, "Haven't
you read what David did when he
and his men were hungry? He
went into the house of God, took
the bread offered to God, ate
it, and gave it also to his
men. Yet it is against our Law
for anyone except the priests to
eat that bread".(e.s) Hence it
has been held by the Privy
Council in JAYA SENA V. THE
QUEEN (1970) 2 W.L.R. 448 and by
the English House of Lords in
DORSET YACHT CO. V. HOME OFFICE
(1970) A. C. 1004 that the
common law is shaped as much by
the way in which it is practised
as by judicial dicta. In
practice, therefore, the courts
have striven to prevent the
rules of pleading from causing
injustice or hardship.
Consequently, the courts, have
held that where unpleaded matter
is let into evidence without
objection, no surprise is
involved and it must be
considered; this is trite Law.
Nor would an immaterial conflict
in pleadings have any
consequence. In ODAMETEY V.
CLOCUH (1989-90) 1 GLR 14 S.C.
it was held, as per holding (2)
of the head note that
"Variations in pleading that did
not substantially destroy the
plaintiff's case were not
material and could in
appropriate circumstances be
safely ignored. Therefore if
the plaintiff's conveyance of
1970 was valid then the
abandonment of her claim of
customary grant was wholly
immaterial and was a variation
of no consequence whatsoever.
Majority decision in R. T.
Briscoe v. Preko [1964] GLR 322
at 352 C.A. criticised". (e.s.).
All this establishes what I said
in AMUZU V. OKLIKAH (1998-1999)
S.C. GLR 141 at 183 that "In
compelling circumstances the
courts have not allowed the
rules of pleading to stand in
the way of justice".(e.s.) As
Taylor J explained in
ASANTEKRAMO alias KUMAH V.
ATTORNEY - GENERAL (1975) 1 GLR
319 at 344 "Pleadings are
generally meant to be servants
not masters of the judicial
process. (e.s.) "In YAT TUNG
INVESTMENT CO., LTD. V. DAO HENG
BANK LTD (1975 A.C. 581 at 588
Lord Kilbrandon, delivering the
judgment of the Privy Council
said: "The tendency, today, in
all jurisdictions is so far as
possible to simplify the
technical rules of pleading.
Rules have to exist for the
orderly conduct of litigation
and especially for the
prevention of surprise, which is
injustice. But pleading and the
rules of pleading are servants,
not masters". (e.s.) Even in
criminal trials, where the
stakes are heavier pleadings are
not allowed to be the masters,
over and above the requirements
of justice. In OBENG @ DONKOR
V. THE STATE (1966) GLR259
Apaloo J.S.C., as trial judge,
held as follows (at page 260),"
The sum charged against the
accused in count 4 is that he
stole ŁG321 19s 6d. No evidence
whatsover was led to prove this
sum although evidence was led
which satisfied me of the
appropriation by the accused of
ŁG315. As the charge was at no
time amended, I am bound to hold
that the amount charged in count
4 was not proved". (e.s.)
Unanimously reversing him, the
Supreme Court held that the
evidence as to the part stolen,
satisfied the statutory
requirements of the offence of
stealing "Therefore where a
person is charged with stealing
a certain sum it is sufficient
if the prosecution proves that
he in fact stole part of that
sum". (e.s.) Thus the variance
between the charge and the
evidence was not allowed to
stand in the way of substantive
statutory justice.
In this case I would hold that
the variance between the
plaintiffs' pleading that 6
persons were present at the
execution of the 1989 will and
the evidence that fewer people
than that were so present, is
not the material factor. What
the Wills Act requires them to
prove is due execution attested
by two witnesses in each other's
presence. The rules of procedure
are subsidiary legislation and
their operation should not,
unless inevitable, defeat the
requirements of substantive
legislation. This seems to be
the ratio of the Obeng case,
supra. In this case the
presence of Dr. Kells and Mrs.
Pennington at the residence of
the testator on 29th January,
1989 has been confirmed by
documentary evidence, to wit,
exhibit C and even exhibit 31.
These documents were admitted in
evidence without objection and
caused no surprise to the
defendants and in any case,
since they clearly established
that fact, provided the other
facts establish the true making
and due execution of the 1989
Will, then, since pleadings are
servants and not masters, I do
not see why a court should
nonetheless, quod their
servitium amissit, constrain
itself to pronounce against that
Will. For these reasons I came
close to agreeing with the vivid
judgment of Benin J.A. in the
Court of Appeal, who held that
even if exhibit E, an affidavit
of PW4 as to the preparation and
execution of the 1989 will
(exhibit 21) as well as her oral
testimony in London were
expunged, due to lack of
opportunity of cross-examination
and territoriality of
jurisdiction, respectively, yet
exhibit 9, another affidavit of
the same PW4 which was put in
evidence by the defendants
without objection, could support
the due proof of the 1989 will.
However, on reflection, I must
differ, with great respect, from
Benin J. A. In Law an ambiguous
admission is no admission, see
POMAA & ORS. V. FOSUHENE
(1987-88) 1 GLR 244 S.C.
Exhibit 9 does not stand alone.
It cannot be said that the
defendants wholly admitted
exhibit 9 as the truth of the
matter. They also led evidence
of suspicious circumstances
surrounding the alleged
preparation of the 1989 Will,
some of which are, the existence
of letter heads presigned by the
testator which could have been
exploited by anyone, the
squeezing up of the contents of
that will into one such letter
head, some material
misspellings, therein, etc. In
such circumstances the burden
was on the plaintiffs, to remove
these suspicions before the
defendants could then undertake
their burden of proving that the
said will is a forgery, see the
classic judgment on this matter,
of the esteemed late Cecilia
Koranteng-Addow J in In re
AYAYEE (DECD), (1982-83) 2 GLR
866. The evidence of PW4 in
exhibit E and at the Ghana
Embassy in London, which might
have removed these suspicions
was rightly expunged by the
Court of Appeal for reasons
already given. As regards the
1988 will propounded by the
defendants the attempt to paint
it as a forgery, cannot, on the
evidence, be borne out. The
trial judge accepted certain
differences between it and
exhibit O tendered by the
Plaintiffs to hold that, the
said 1988 Will (exhibit 28) was
a doctored copy of the original,
of which exhibit O was a carbon
copy. That holding is a non
sequitur, because two documents
can be similarly prepared or
even two sets of originals and
copies of the same document can
be prepared, (except, perhaps as
to the signatories thereof),
with or without an element of
fraud, see AKENTEN II V. OSEI
(1984-86) 2 GLR 437, a decision
of Apaloo C.J. sitting as an
additional judge of the High
Court. The facts of this case
do not necessarily point to
forgery in respect of exhibit
28, the 1988 Will. The testator
had a changing mind and his
testamentary documents suffered
similar vaccilation, not always
propelled by improper intrigue.
For these reasons I would also
allow the appeal in the manner
indicated by my able brother
Acquah J. S.C.
W. ATUGUBA, J.S.C. |
