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JUDGMENT
LAMPTEY, J.A.:
The suit now on appeal
before this court was commenced pursuant to an order
made by Mrs. Akoto-Bamfo, J. (as she then was) dated
23rd February, 1993. That order reads as follows:—
“Plaintiffs as
executors of the 1989 Will do issue a writ of summons
within 14 days asking the court to pronounce on the
validity of the said Will”.
In due course, John
Kells 1st plaintiff and Joseph Kwesi Whajah 2nd
plaintiff (hereinafter referred to as the plaintiffs)
sued Dr. Ebenezer Ako Adjei, 1st defendant and Francis
Kaku Mensah 2nd defendant (hereinafter referred to as
the defendants) in the High Court, Accra. The plaintiffs
claimed the reliefs endorsed on the writ of summons. The
defendants resisted the claim of the plaintiffs on the
ground that the said 1989 Will was a forged document; as
well as other serious allegations. They counter-claimed
for the reliefs spelt out in the statement of defence
and counter-claim. In due course, two other persons,
Rexona Kim Blay Miezah and Francis Kolorah Blay Miezah
applied to the court to be joined as parties. They were
on the orders of the trial court joined as 3rd and 4th
defendants respectively. Pursuant to the order joining
them, Solicitors acting for them filed their statement
of defence. Pleadings closed and the case proceeded to
trial. Hearing commenced on the 12th of June, 1995. The
parties and their witnesses were heard by the trial
court. On 20th May, 1997 the trial judge read her
judgment in the case. By that judgment she declared “(1)
that the 1989 Will of the late Dr. Blay Miezah was
valid; (2) that the 1988 Will of the late Dr. Blay
Miezah was not valid; (3) that exhibit "13" was valid,
adding that exhibit 13 can stand on its own; (4) that
Dr. Blay Miezah did not intend Exhibit “16” to be a
testamentary document or a Will".
The 1st and 2nd
defendants were aggrieved by the judgment and appealed
to this Court on a number of grounds of appeal. Notice
of additional grounds of appeal were subsequently filed
by lawyers for the defendants without leave of this
court. Pursuant to the rules of court that is, C.I. 19
lawyers acting for the parties to this appeal filed
their respective statements of case.
I must begin this
judgment by identifying and pointing out the real issue
which the trial judge was called upon to make a
decision. The summons for direction was argued out fully
by lawyers for the parties. The trial judge in a written
ruling dated 18th May, 1995 set down the following issue
for trial.
“It is proper therefore
for this court to deal with the 1989 Will exclusively
for now. Having done that the case will proceed
according to further orders which the court will
give depending on the decision son the 1989 Will. If it
is found to be valid it will then remain for the court
to determine as between the two Wills which is to be
admitted to probate".
I understand the first
sentence to mean that the trial judge set down for trial
the issue of the validity of the 1989 Will. It seems to
me that the jurisdiction of the trial judge was in
the special
circumstances of this case, circumscribed and limited to
a consideration of the validity of the 1989 Will as
ordered made by Mrs. Akoto-Bamfo J.
In my view the second
part of the Ruling of the trial judge cannot be
supported in law. The law has provided rules of court to
be mandatorily observed in an application for proof of a
testamentary document or will either in solemn form or
in common form. Indeed to obtain probate of the 1988
Will, the defendants were enjoined to observe and follow
the legal method prescribed by the rules, namely, prove
the 1988 Will, either in common form or in solemn form.
By way of further explanation of the issue of law I have
raised, I will use the illustration of a petition for
divorce. A party cannot issue a writ of summons and by
it claim and pray that an existing and subsisting
marriage be declared dissolved. The rule of law enjoined
a party who seeks a dissolution of marriage to take out
a petition for divorce. In the instant appeal, I find
that 1st defendant was not in law entitled to
counter-claim for a declaration that the 1988 Will was
valid. In due course, I will return to consider the
ground of appeal in relation to the dismissal of the 1st
defendant's counter-claim in relation to the 1988 Will.
I must observe that the
appeal record ran into four volumes of printed books.
Each volume ran into over 300 pages; except of course,
volume 4 which contained 70 pages. The plaintiffs put in
evidence 42 documents of varying pages of printed
material. The defendants were not to be out-done and
tendered 43 documentary exhibits some of which ran into
several pages of printed material. At the instance of
the trial court 12 documents were put in evidence. I
have found that a fairly large number of these
documentary exhibits were not relevant in considering
the real issue in dispute between the parties. I was not
surprised to note and observe that lawyers for the
parties did not advert to these documents and exhibits
in their respective addresses. Consequently the trial
judge did not also refer to and consider evidence
contained in these documents and exhibits.
In this court, counsel
for the parties failed and or omitted to refer to and
rely on the large number of documents and exhibits that
were put in evidence. The reason is clear and plain. The
documents and exhibits were patently irrelevant and
dealt with extraneous matters. I must conclude my
lamentation by adopting the opinion of Hayfron-Benjamin
J.S.C. in the recent Supreme Court case (unreported)
entitled
Republic v. High Court,
Accra Ex-Parte: Dr. John Kells dated 8th February 1994
in Suit No. CM.4093. He expressed the opinion
following:—
"A careful examination
of the affidavit and exhibits presented by both the
Applicant ... and the Respondent…..show that counsel
dealing with the estate seriously misconceived the law,
practice and procedure with respect to the
administration of estates".
At page 7 of the report
Wiredu, J.S.C. gave the following directions:—
"In addition, the
continued existence of the Letters of Administration is
a hindrance to either party a grant of probate to the
Will each claims to possess and which each intends to
prove in court. As such it will be in the interest of
both parties to have the same vacated in order to open
the gate for the parties to have access to the court to
prove whatever Wills are in their possession".
Before I consider the
appeal on the merits, I must observe that the statement
of case filed on behalf of defendants was deal with
under specified headings or grounds viz:—
“(1) was the 1989 Will
a forgery;
(2) the bias of the
judge;
(3) validity of the
Will dated 8th May, 1988;
(4) Revival of the 1988
Will; and
(5) The nuncupative
Will Exhibit 16”
The departure from the
style and procedure spelt out in C.I. 19 compelled me to
also adopt a style and procedure convenient and
appropriate in the special circumstances. I note that
lawyers for plaintiffs also lamented the novel approach
followed by lawyers for
the defendants in the
following language:—
"Turning to the
structure of 1st defendant/appellant's 54 pages written
submission it is readily apparent that in no way does it
conform to the criteria of an appeal argument as
required under C. I. 19 rules 8 (6) and rule 20 (1) and
(a)".
I agree with the
opinion expressed above. I would not however reject the
statement of case in this appeal. In the larger interest
of justice and since the grounds of appeal raised
serious issues of law I proceed to consider the
submissions and arguments made by lawyers for the
parties.
I must state at the out
set the relevant legal provisions which governed the
action between the parties. At Order 4 rule (1) of L.I.
1515 appears the following:—
"4(1) Where for any
reason the validity of the Will is disputed the
executors may prove the Will In solemn form in an action
commenced by writ asking the court to pronounce the Will
as valid".
This provision must be
read together with Section 2 of Act 360 which spells out
in great
detail what burden the
executors of a Will assumed in order to prove and
establish a will in solemn form. I need to reproduce
that section. The section enjoined the trial court as
follows:
"the court shall
inspect the Will and see whether it appears to be signed
by the testator ... and to be subscribed by witnesses in
the presence of the testator and in the presence of each
other".
I turn to some of the
decided cases on the burden of proof assumed by the
executors of a Will. I refer first to the former Court
of Appeal case of Johnson v. Maja (1951)13 WACA 290. At
page 295 appears the statement following:—
"where there is a
dispute as to a Will those who propound it must clearly
show by evidence that prima facie, all is in order, that
is to say, that there has been due execution that the
testator had the necessary mental capacity, and was free
agent. Once they have satisfied the court, prima facie,
as to these matters…..the burden is then cast upon those
who attack the Will, and that they are required to
substantiate by evidence all allegations they have made
as to lack of capacity, undue influence and so forth…”.
The above statement of
the law has been followed and applied in many cases. I
need not burden this judgment with the case law. The
true legal position on the Issue of the burden of proof
in the instant case was for the plaintiffs to prove due
execution and attestation of the 1989 Will in accordance
with Section 2 of Act 360. Thereafter the defendants
assumed the burden of proving and establishing that the
1989 Will was a forged document in terms of the
particulars of forgery pleaded in the statement of
defence and counter-claim. The law further enjoined the
defendants to attain the standard of proof of the
forgery as laid down in Section 13 (1) of the Evidence
Decree, 1975.(NRCD 323), namely, proof of the forgery
beyond reasonable doubt. On this issue I refer to the
cases of the State v. Anane Fiadzoe (1 961) 1 G.L.R. 416
and also The State v. Ali Kasena (1 962) 1 G.L.R. 144.
In law the standard of proof in this case is therefore
is not proof on the balance of probabilities. See on
this Adwabeng v. Domfeh (1996-97) SCGLR 660 at 670. As
per Acquah J.S.C., as follows:—
"But the Evidence
Decree, 1975 has imposed proof beyond reasonable doubt
only on prosecutions in criminal actions (section 11
(2)), and in proof of a commission of a crime in any
civil or criminal action".
The Court of Appeal
considered the Johnson case (supra) in the very recent
case entitled Henry Agyekum & Another v. Harriet Martey
Civil Appeal Number 140/97 dated 18th March, 1999
(unreported). Mrs. Wood, J.A. examined the earlier cases
on the burden of proof in such cases and in a lucid
judgment stated her opinion thus:—
"The weight of judicial
authority shows, that due execution of a Will may be
proved by means other than the testimony of an attesting
witness…..the law does not rule out proof
by other available
means. Indeed the burden imposed on persons seeking to
propound the Will is to show by evidence that prima
facie, all is in order, that is to say, there has been
due execution…..It was also perfectly legitimate for a
trial court to invoke the omnia praesumuntur rit esse
acta rule and conclude that prima facie a case of due
execution has been made".
The omnia praesumuntur
rit esse acta rule was applied and concluded that a
prima facie case of due execution had been made. She
applied the principles from both English and Ghanaian
cases, namely, Harris v. Knight (1890) 15 PD 170. Davis
v. Mayhew (1927) P.D 264; In Re Kotei (deceased) Kotei
v. Ollenu, and in Re Yankah (deceased). In particular,
she found the English case of Re Webb Smith v, Johnson
(1964) 2 AUER 91 helpful. In that case though the
original Will was lost and only the draft with an
attestation clause was produced to the court and the
witness could not recollect signing the document, the
court nevertheless applied the omnia praesumuntur rit
esse principle and admitted the Will to probate. The law
therefore enjoined the plaintiffs to prove and establish
due execution by evidence. A witness who was present at
the execution and attestation must be called to testify
if one was available in the matter. I refer to the case
of In re Cole (deceased) Codjoe v. Cole (1977) 2 G.I.R.
309. Abban, J.A. (as he then was) reproduced the
following passage from the English case of Wright v.
Sanderson (1884) 9 P.D. 149 at 163 as per Fry L.J.
“judges who have
presided over the Court of Probate have long been
accustomed to give great weight to the presumption of
due execution arising from the regularity ex facie of
the testamentary paper produced, where no suspicion of
fraud has occurred. In doing so they have in my opinion
acted rightly and wisely”.
In the case of Norga v.
Khadijatu (1984-86) 1 G.L.R. 443 at page 448 the Court
of Appeal applied the statement of the law in Yankah v.
Administrator-General (1971) 2 G.L.R. 186 at 187 as
follows:—
“If it appears on the
face of a Will that it has been properly executed in
accordance with the requirements of the law the
presumption by law is that the testator duly
acknowledged it”. This general statement is subject to
the reservations expressed by Lindley L.J. in Tyvell v.
Painton (1894) P 151 at 157.
“…..in all cases where
circumstances excite suspicion of the court ... 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
document and it is only where this is done that the onus
is thrown on those who oppose the Will to prove fraud
and or undue influence, or whatever else they rely on to
displace the case for proving the Will".
Again at page 193 of
Parry and Clark on Wills appear the following:—
"It is for the executor
to produce the Will if it is within his possession and
custody. He as well as any custodian of the instrument
is under a legal duty not to suppress the instrument".
It is provided under Order 6 Rule 7(3) of the High Court
Rules that:—
“(3) Any such script
in the possession of or under the control of the
deponent shall be annexed this affidavit”.
This suit should
ordinarily be a Straight forward case to prove a
transaction that took place in a comparatively short
period of time; in any case, the time for each of the
three persons to sign the document would be less than
three minutes or five minutes at the most. Again the
evidence would in view of the time lapse be a
recollection of each witness of what took place. There
was on the evidence nothing special or extra-ordinary
took place on that occasion. In the Agyekum case
(supra). Mrs. Wood, J.A., stated the true position as
follows:—
"where neither of the
attesting witnesses could be called, an affidavit sworn
by one of them in connection with an application for
probate in common form could be admitted as sufficient
evidence of due execution".
She referred to Hayes
v. Wills (1906) 7 5 LJ 86 Halsbury’s Laws of England 4th
Edition Volume 17 and Tristan and Cootes Probate
Practice by Heward…..26th Edition under the heading
"want of due execution" and under the sub-heading
Evidence of Execution. The learned authors of Halsbury's
state at paragraph 892:—
"If neither of the
attesting witnesses can be found or both are dead, any
person who in fact saw the execution may be called, and
the court is entitled to read the affidavit…..proof by
affidavit. In an action for probate in solemn form where
neither of the attesting witnesses could be called, an
affidavit sworn by one of them in connection or
connection with an application for probate in common
form was admitted as sufficient evidence of due
execution. See on this Cornwall v. Masai (1884) 12 PD
142 Mackey v. Rawlingson (1919) 35 TLR 223 Paku v.
Ponting (1930) P. 185". Having stated the law, the
learned judge continued as follows from Tristan and
Cooke Probate Practice at page 375:—
"The Probate Court has
always done its best to elicit the facts of the case it
has to try without too rigid an adherence to the rules
of evidence practiced in other courts "per Koemicskie J
in Re Trotman's Estate: Trotman v. Trotman (1964) 108
Sol & Jo 159".
I intend to follow and
apply the statement of the law and the rules in
considering the instant appeal.
The first ground of
appeal I will deal with was that the trial judge erred
in law in dismissing the counter-claim of the
defendants. See on this additional grounds of appeal at
heads (6) and (7). It was argued that the defendants
were entitled as of right to file a counter-claim in the
instant action. The power and right of the defendants
according to their lawyers derived from Section 1 (10)
of Act 360. It was argued that the decision of the trial
judge that the 1988 Will, Exhibit 28 was a forgery was
given without jurisdiction. It was contended that since
the trial judge did not physically see and examine the
original document of which Exhibit 28 was a copy her
conclusion that the writing on the face of Exhibit 28,
namely, “Kaku Nana's Attendant” was a forgery cannot be
supported in law. It was argued that the findings of the
handwriting experts touching upon Exhibit 28 was not
supportable. This was how lawyer for 1st defendant
stated his
case:—
“Exhibit 28 has already
been admitted by a Court as genuine Will in suit No.
155/94 and the plaintiffs are estopped; and indeed there
is no evidence to support the finding of the judge that
it was a forgery. Alternatively the judge having ruled
that Exhibit 28 was not part of the trial she erred in
law in declaring it a forgery”.
Else where in this
judgment I made a finding that the 1988 Will, Exhibit 28
was not properly before the trial judge as a document in
respect of which probate was sought and could be
granted. I gave reasons to support my finding.
I must now consider and
deal with the contention of lawyer for 1st defendant
that a court of competent jurisdiction in an earlier
suit declared the 1988 Will a genuine Will. In my view
if the true position in law is as put forward by the
lawyer in the instant appeal, I find myself at a loss to
understand and appreciate the reasons why the very same
lawyer introduced and made the 1988 Will an issue in the
instant suit. This was contained in the statement of
defence and counter-claim filed on behalf of 1st 3rd and
4th defendants at paragraphs 25 and 26:— as follows:—
“25. The defendants say
that the court has ruled in Suit No. F 155/94 on 13th
June, 1994 that the 1st and 2nd defendants are entitled
to grant of probate of the Will of the late Dr. John
Ackah Blay-Miezah together with the codicil dated 16th
August, 1990 and the nuncupative Will dated 9th June,
1992 and again in its Ruling in Suit No. F 60/94 the
same court stated that there is no dispute in respect of
the said Will.
26. Wherefore the 1st
and 2nd defendants pray the ...court to grant them
probate of the will of the late Dr. John Ackah
Blay-Miezah in Suit No. F 155/94 …..”
The plaintiffs'
solicitor filed a statement of defence to the
counter-claim and in part pleaded that “the plaintiffs
promptly on 20th June, 1994 filed an interlocutory
appeal which is still pending unheard in the Court of
Appeal". The plaintiffs therefore sought an order to
strike out the counterclaim of the defendants. As was to
be expected, a Reply was filed to the statement of
defence to the counter-claim. In the Reply the
defendants omitted and or failed to reply specifically
to the statement in the defence to the counter- claim
that the Ruling of the court in Suit No. F 155/94 was
the subject-matter of an appeal pending in the Court of
Appeal. Surprisingly to note, the same lawyer for the
defendants filed additional issues for determination
including at issue (4):—
“(4) whether or not
the 1st and 2nd defendants are entitled to probate in
Suit No. F 155/94 subject to the outcome of the appeal”.
I have set down and
reproduced the relevant state of the pleadings
immediately prior to the taking of the summons for
directions by the court. The position as revealed and
clearly disclosed by the pleadings was that Exhibit 28,
the 1988 Will, was as at the date pleadings closed, the
subject-matter of an appeal properly pending before the
Court of Appeal. As already pointed out the summons for
directions was argued. Counsel for the defendants in
arguing the summons for directions before the trial
court referred to and relied on Order 6 Rule 1 (10) of
L.I. 1515 as authority for the declaration sought in
respect of the 1988 Will by the counter-claim. That
sub-rule provides as follows:—
"1(10) A defendant to a
probate action who alleges that he has any claim, or is
entitled to any relief or of probate or Letter of
Administration of the estate of the deceased person
which is the subject-matter of the action must add to
his defence a counter-claim in respect of such a claim,
relief or remedy".
The first observation I
must make is that Order 6 rule 1 (10) ought to be read
together with Section 2 of Act 360. I apprehend that the
counter-claim must relate the subject-matter before the
court, that is to say, the relief or claim or remedy
sought by counter-claim must necessarily and
specifically relate to the 1989 Will. I do not think
that the sub-rule permitted other testamentary documents
to be proved in the instant action. I note further that
the relief sought was expressed to be subject to what
the Court of Appeal decided in the matter then on
appeal. It is trite learning that all decisions and
orders of the Court of Appeal are not final but are
subject-matter of further appeal to the Supreme Court.
See on this Article 131(1)(a) and (b) of the Ghana
Constitutional 1992. I find that the lawyer for 1st
defendant misdirected himself on the law in the matter
of the counter-claim he put forward. I agree with the
submission of lawyer for the plaintiffs that the trial
judge erred in law in failing to strike out the
counter-claim. I find that the 1988 Will was not
properly and lawfully before the trial court. The
proceedings relating to and touching upon the validity
or otherwise are nullity. The pronouncements made in
relation to the 1988 Will are a nullity and of no legal
effect.
I must conclude this
part of my judgment by examining the declarations made
by the trial judge in respect of and in relation to the
other testamentary documents namely, (1) Exhibit"13";and
(2) Exhibit "16". I have stated elsewhere in this
judgment the method prescribed by law for proving a Will
in either solemn form or common form. The testamentary
documents Exhibit "13" and Exhibit "16" must be proved
according to law and in terms of Section 2 of Act. 360.
The parties breached and ignored the mandatory procedure
laid down in this matter. The trial judge with respect,
misdirected herself in permitting the parties who on the
evidence were not the executors named in Exhibits "13"
and “16” to seek to prove and establish these
testamentary documents Exhibits "13" and “16” as Wills
of the late Dr. Blay-Miezah.
I find evidence which
was adduced in this trial which in my candid opinion
should have been rejected by the trial judge in her
judgment. The first piece of evidence was contained in
Exhibit "36". On the face of Exhibit "36", Dr.
Blay-Miezah gave US$ 15.1 billion to the Government and
people of Ghana. The evidential value of this document
is difficult if not impossible to fathom. The lawyers
for the parties did not advert to this piece of evidence
in their respective addresses.
The record of appeal
contained evidence in the form of an English Newspaper
Report on one Dr. Gordon Kells, Exhibit "33". The name
of the party in this case is Dr. John Kells, 1st
plaintiff. The name Dr. Gordon Kells does not appear in
any of the several documents in evidence touching upon
and relating to the preparation, execution and
attestation of the 1989 Will. The newspaper report was
published on Friday, 14th May, 1993 and dealt with the
bankruptcy of Dr. Gordon Kells, a Harley Street Doctor.
The 1989 Will was the subject-matter properly before the
trial court. The testator Dr. Blay-Miezeh died in June,
1990. What was the relevance of Dr. Gordon Kells
personal problems in the instant matter? Counsel for
parties failed and or omitted to address the trial court
on the evidential value of Exhibit "33". I do not find
it relevant.
I find evidence on
record contained in Exhibit "20" that Dr. Ebenezer Ako
Adjei, 1st defendant was the beneficiary of US$50
million and lawyer Erskine who appeared and appears as
counsel for 2nd defendant was also the beneficiary, of
US$25 million for services each of them rendered to Dr.
Blay-Miezeh". The case put forward that this document
which they themselves put in evidence was a forged
document was not proved beyond reasonable doubt by the
defendants. In any case 1st defendant Dr. Ebenezer Ako
Adjei and lawyer Erskine did not testify on this equally
important issue. Counsel for the defendant referred to
and relied on Exhibit "20" as evidence that the 1989
Will was forged. Counsel stated as follows:—
"it is obvious that
Exhibit “21” was prepared to induce 1st defendant and
Mr. Erskine to support the alleged Will i.e. Exhibit
"21".
Counsel for the
defendant argued as follows:—
"if the Will Exhibit
"21" is genuine why attempt to bribe them that is 1st
defendant and lawyer Erskine". Counsel for plaintiffs
did not advert to the above submission
The evidence on record
given by PW1, Nana Buah was that Exhibit 20 was handed
over to him by the 1st plaintiff, Dr. John Kells
sometime in November or December, 1992. He was
instructed to hand over Exhibit 20 to lawyer Erskine and
take an acknowledgment from lawyer as evidence that he
lawyer Erskine had duly received Exhibit 20. According
to PW1 he was to sign the portion of Exhibit "20" where
his name had been typed in the presence of lawyer
Erskine immediately before handing over Exhibit "20" to
him. Counsel for 1st defendant cross-examined PW1 on the
above evidence as follows:—
“Question: Exhibit
"20" is also dated 29th January, 1989?
Answer: Yes.
Question: Signed
by Blay-Miezah and witnessed by Kells and Nana Buah?
Answer: I was
not present when Kells and Blay-Miezah were signing it.
I had a duty to perform so I signed it when I gave it to
Erskine (lawyer) and he gave me a note of
acknowledgment”.
I must reproduce
Exhibit “20” at this stage to enable me appreciate and
understand the significance and import of the
cross-examination on Exhibit "20":—
“29th January, 1989
Oman Ghana Trust Fund.
……………………………………………….
London N.W. 8. 1 Dr.
John Ackah Blay-Miezah ... agree To pay Mr. Kao Adj.
the sum of US$50 million and I also Agree to pay to Mr.
Koto Rescan the sum of US$25 million ... For services
and support rendered."
Witnessed by: Dr. J.
R. Kells (Signed)
Nana Arvo Buah (Signed)
Signed by Dr. John
Ackah Blay-Miezah (Signed)".
I wish to point out
that Exhibit "20" bears the date 29th January, 1989 and
further that it bears the undisputed signature of Dr.
Blay-Miezah. The evidence of Nana Buah, FWI was that he
appended his signature on the date, place and time the
PW1 handed over Exhibit "20" to lawyer Erskine and not
on 29th January, 1989. I expected lawyer Erskine to
enter the witness box to assist the court on the issue
raised by PW1 that he signed Exhibit "20" in the
presence of lawyer Erskine. The evidence of PWl needed
corroboration from lawyer Erskine or a rejection by
lawyer Erskine. The more serious observation I must make
is that even if Exhibit "20": was a forged document to
the knowledge of lawyer Erskine I do not see how
Exhibit "21", the 1989 Will must, without more, be
classified and rebelled a forged document. The witnesses
who signed Exhibit "20" are on the face of it not the
same witnesses that signed Exhibit "21" as witnesses.
The subject-matter dealt with in Exhibit "20" is totally
and completely different from that of Exhibit "21".
Thirdly, the paper on which Exhibit "21" was typed was
different from that of Exhibit 20. The fourth difference
I noted was that whereas the witnesses to Exhibit "20"
did not provide their addresses, the addresses of the
witnesses of Exhibit "21" stated their addresses. In my
candid opinion Exhibit "20", without more did not and
could not prove and establish that the 1989 will Exhibit
“21” was a forged document.
In my view there was
insufficient evidence that Exhibit "20" was forged. On
the face of Exhibit "20" it cannot be denied nor
disputed that it was signed by Dr. Blay-Miezah on the
29th January, 1989. It cannot be denied that, prima
facie, Exhibit "20" was witnessed by 1st Plaintiff and
PW1 on 29th January, 1989. In the words of PW1 he did
not sign Exhibit "20" on the 29th of January, 1989 to
the knowledge of lawyer Erskine. In the instant case
lawyer Erskine appeared as solicitor and as counsel for
2nd defendant with lawyer Blay. The two lawyers were
present in court on 11th July, 1995 and heard the
replies made by PW1 on Exhibit “20”. On 17th July, 1995
lawyer Erskine cross-examined PW1. He did not, given the
opportunity, ask PW1 a single question on the occasion
he PW1 stated he signed Exhibit "20" in his lawyer
Erskine's presence. He did not dispute nor challenge the
evidence of PW1 concerning and relating to what
transpired between PW1 and he, lawyer Erskine in the
witnessing of Exhibit "20" by PW1 in his presence. The
more serious observation I must make is that it was
never suggested to PW1 by lawyer Erskine during the
cross-examination that the sums of US$25 million
respectively mentioned in Exhibit "20" were meant and
intended to corrupt each of them. In my opinion the
submission that Exhibit "20" was forged was not proved
beyond reasonable doubt. I am of the further opinion
that Exhibit "20" was not evidence which proved that
Exhibit "21" the 1989 Will was a forged document. I find
that the submission that Exhibit "20" was evidence that
Exhibit "21" was forged is plainly misconceived. I
reject it accordingly.
In my opinion the
various exhibits to which I have made reference should
and ought to have been rejected by the trial judge in
her judgment. In the Court of Appeal case entitled Amoah
v. Arthur (1987-88) 2 G.L.R. 87 the court held at (5) as
follows:—
(5) "It was the duty
of the trial judge to reject inadmissible evidence which
had been received with or without objection, during the
trial when he same to consider his judgment, and if he
failed to do so, that evidence would be rejected on
appeal because it was the duty of the Courts to arrive
at decisions based on legal evidence only.
Tormekpey v. Ahiable
(1975) 2 QLR. 432 cited.
In my view the case
cited above is clear on the law. I adopt it to support
my view.
The next issue I will
deal with is the complaint of bias made by counsel for
1st defendant against the trial judge. In this judgment
I will intentionally refrain from considering the oral
evidence Mrs. Pennington, PW4 gave in court in London.
Out of respect for counsel for 1st defendant and in view
of the serious issue of law raised, I feel called upon
to deal with and examine the complaint of bias argued by
counsel for 1st defendant. In her judgment the trial
judge expressed the following opinion on PW4:—
"She both looked and
sounded a convincing witness of truth. She spoke without
ginic and without embellishing her story…..Her evidence
as the only available witness of the making of Exhibit
"21" is accepted by the court as quality evidence as to
the truth about the making of the 1989 Will".
She came to the
conclusion that the evidence of PW4 “stood as a gigantic
mountain in the midst of hills of varying sizes”. The
argument of 1st defendant’s lawyer was that the use of
superlatives in her description of PW4 was evidence that
proved and established bias on the part of the trial
judge. In the words of counsel for 1st defendant the
trial judge “was carried away by passion and this
clouded her assessment of the evidence before her”. I
have real difficulty in appreciating and understanding
the argument put forward by lawyer for 1st defendant on
this issue. I apprehend that to assist the court in
determining the issue of bias or the real likelihood of
bias, lawyer for 1st defendant assumed the burden of
pointing to conduct of the trial judge which
unequivocally proved and established bias on her part.
In the instant appeal, the language used by the trial
judge in her evaluation and consideration of the
evidence PW4 gave was not demonstrated and showed to
prove and establish bias, even remotely. The language
may be or indeed was extravagant and flattering of PW4.
In my opinion the test is whether or not the choice of
words support the conclusion reached by the trial judge
as to whether a witness was truthful or not to the
court. Indeed it is trite learning that among matters a
trial judge must bear in mind and give serious attention
to in his judgment is the demeanour of every witness. A
well written judgment must on the face of it show that
the trial judge considered the demeanour of each and
every witness. Again it is otiose to state that a trial
judge is enjoined and obliged to give reasons to support
the findings of fact that he makes. The law does not
prescribed any particular formula, language or style to
be employed by a judge in writing her judgment. Since
these are all matters that defy legislation, the
individual judge is not fettered or constrained in
discharging this statutory duty namely, writing a
judgment.
I must point out that
the lawyer for 1st defendant on his own admission was
not present throughout the hearing and receiving of the
whole of the testimony of PW4 in London. Consequently,
he did not have the opportunity, the advantage and
benefit of seeing and watching the performance of PW4 as
she gave her testimony in London including her
performance under cross-examination. In my opinion,
lawyer for 1st defendant was and is not in a position to
fairly and justifiably complain about the trial judge's
impression and therefore evaluation of the evidence of
PW4 as the same was reflected in the language she used.
In my view an
allegation of bias when leveled against a trial judge is
a very serious one. The party alleging bias against a
trial judge must be prepared to prove and establish by
credible evidence bias on the part of the trial judge.
In the view of Lord D. Brian, C.J. in the Irish case of
R.V. Justices of County Cork (1910) 2 I.R. 271:—
"By "bias" I understand
a real likelihood of an operative prejudice, whether
conscious, or unconscious. There must, in my opinion, be
reasonable evidence to satisfy us that there was a real
likelihood of bias. I do not think that the mere vague
suspicions of whimsical, capricious and unreasonable
people should be the standard to regulate our action
here. It might be a different matter if suspicion rested
on reasonable grounds—was reasonably generated; but
certainly mere flimsy, elusive, morbid suspicious should
not be permitted to form a ground of decision”.
In the case of
Attorney-General v. Sallah (digested in the 1970 C.C 54)
the Supreme Court adopted the test of real likelihood of
bias. It stated that whether there was a real likelihood
of bias depended on the circumstances; in other words
the decision must really turn on a question fact whether
or not there is a real likelihood of bias.
In the instant case,
the allegation of bias against the trial judge was made
by counsel for 1st defendant after the trial judge had
delivered her judgment. The allegation of bias was
therefore made not during the hearing on the merits but
was made sometime after judgment had been read on 209th
May, 1997. In the statement of case in which the
allegation of bias was made, counsel for 1st defendant
did not point to any act or acts or conduct of the trial
judge during the hearing or before she delivered her
judgment to prove and establish bias on her part.
Counsel for 1st defendant was content to reproduce
passages from the judgment and point to these as
evidence of bias without proceeding further to
demonstrate and establish that these were pieces of
evidence of bias. In the words of Lord Brien the
allegation of bias against the judge was the mere vague
suspicions of a whimsical, capricious and unreasonable
persons. I am satisfied that this ground of appeal
fails.
Since writing this
judgment which I had expected and hoped would have been
read on 29th July, 1999 that was the statement on the
Cause List for that date, counsel for 1st defendant
sought and obtained leave of this court to adduce new
and fresh evidence of bias. In pursuance of the leave
granted to the 1st defendant, his counsel filed a
further statement of case under the ground of appeal
that alleged bias on the part of the trial judge.
Counsel for plaintiffs was granted leave to reply to the
statement of the case of the 1st defendant. I must
observe that the 2nd defendant through his counsel
informed and indicated to the court that he was not
interested in these fresh proceedings. I fully
appreciate and understand the stand of the 2nd
defendant. In the present appeal the 2nd defendant did
not set down "bias of the trial judge” as a ground of
appeal. The rules of court consequently do not clothe
2nd defendant with a legal right to argue a ground of
appeal not indicated and expressly stated in his notice
of appeal. In any case, 2nd defendant had not on the
record applied for leave of this court to file and
therefore give notice of this particular ground of
appeal.
Pursuant to leave
granted to the 1st defendant new and fresh evidence was
received by this court. Briefly put, the fresh evidence
was that after the trial judge had delivered her
judgment she (1) granted probate of the 1989 Will to
only Dr. John Kells and (2) entered into written
correspondence and communication with Dr. John Kells.
The trial judge Mrs. Sawyerr-Williams testified before
us and indeed admitted that she granted probate to only
Dr. John Kells after judgment. She admitted further that
she engaged in written correspondent with Dr. John Kells
after she read her judgment. Surprisingly, to observe
she was not cross-examined by lawyer for 1st defendant
to elicit evidence to prove and establish bias on the
part of the judge using the new and fresh evidence. The
contention that Mrs. Sawyerr-Williams J. lacked
jurisdiction to hear and grant the application for
probate to only Dr. John Kells is plainly misconceived.
She had the right and constitutional power to sit as a
judge on that application. There was no evidence that
she had a part to play in the application being placed
on her Cause list for that day. There is no evidence
that the Chief Justice had sent Mrs. Sawyer-Williams J.
a query in this matter. Again I note that Mrs.
Sawyerr-Williams J. was not cross-examined on her
admission that after the judgment she wrote to Dr. Kells
the letter received in evidence. There was not a single
question during cross-examination remotely suggesting to
her that she acted from improper motives. I do not
accept the contention of counsel for 1st defendant that
this court must infer and assume that from the evidence
of the judge bias was proved and established. I would
not burden this judgment by re-stating the law and
repeating the case law to which I referred earlier. The
right of the 1st defendant is to appeal against the
grant of probate. I find that the complaint by the
1st
defendant of bias against the trial judge was not made
out.
A ground of appeal
argued was that the pleadings of the plaintiffs
conflicted with and contradicted the evidence on the
issue of the execution and attestation of Exhibit "21".
It was contended that the pleadings showing and
indicating the number and identity of the persons
present at the execution and attestation of Exhibit "21"
conflicted with and contradicted the evidence of the
named witnesses. It was submitted that the trial judge
should have rejected the case of the plaintiffs of due
execution and attestation of Exhibit "21". Counsel for
plaintiff argued the contrary. He contended that there
was evidence to prove and establish due execution and
attestation of Exhibit "21". The pleading under attack
is paragraph 7 which reads in part as follows:—
“7. Out of the six
others present only Dr. E. Ayeh-Kumi and Mrs. Angelina
Pennington were invited in the presence of all the
others to attest the signature of the said testator
which he made in the presence 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 of other and in the presence of all the others.”
I have great difficulty
in understanding and appreciating the expression "in the
presence of all others” appearing twice in the passage.
But when I read the expression "out of the six others
present only Dr. Ayeh-Kumi and Mrs. Pennington were
invited” and give that expression its ordinary meaning I
am left in no doubt that the execution and attention was
limited to and participated in by the testator, Dr.
Ayeh-Kumi and Mrs. Pennington within the meaning and
intendment of Section 2 of act 360. I do not honestly
understand the pleading at paragraph 7 to mean that all
the named and identified persons physically and actively
took part and participated in the attestation of Exhibit
"21". It will be an abuse of language to give such an
interpretation to that pleading. I find support for my
conclusion in the Supreme Court case of Odametey v.
Clocuh (1989-90) 1 G.L.R. 14 at holding (2) as follows:—
“(2) Variations in
pleadings that substantially destroy the plaintiffs'
case were not material and could in appropriate
circumstances be safely ignored."
This statement was
expanded in the opinion of Taylor, J.S.C. as follows:—
"The court however did
not scrutinise the nature of the new case in relation to
the substantive case which the plaintiff has to prove to
succeed and I am therefore more persuaded by the
dissenting view of Apaloo, J.S.C. (as he then was) who
in a minority view articulated in my opinion, the true
principle. He pointed out very convincingly at page 328
that the so-called variation was merely on a collateral
issue which was not necessary for a decision on the
substantive issue upon variation or conflict was
immaterial and the rejected it.”
The test laid down is
sound in law. Clearly and simply expressed the principle
of law on this issue is that the variation or conflict
must be material and not merely collateral and not
necessary in arriving at a decision on a crucial issue.
The trial judge cannot be faulted in the conclusion she
reached on this issue, namely that out of the six
persons present only Dr. Ayeh-Kumi and Mrs. Pennington
were specifically invited for purposes of satisfying and
complying with Section 2 of Act. 360 to attest the
execution of Exhibit "21" by Dr. Blay-Miezah.
Indeed Order 3 Rule
2(2) of L.1. 1515 provides as follows:—
"2(2) If the Will
appear to be so signed and subscribed the court shall
then refer to the attestation if any, and consider
whether the writing thereof states the will to have been
in fact executed in accordance with the Wills Act
..........”
The evidence from Kim
DW3, DW1, Kaku and DW4 Rigby that they each did not
witness the execution and attestation of the Will,
Exhibit "21" was the truth. The evidence that they each
was in the residence of Dr. Blay-Miezah on 29th January,
1989 was also the truth. The pleading relied on by
counsel for 1st defendant if read with an open and
unbiased mind demonstrate that it was not every one who
was physically present that was specially and
specifically invited to formally and as it were
officially to take an active part in the attestation of
the signature of Dr. Blay-Miezah. The pleading was that
the two persons specifically identified and mentioned by
names were involved in the exercise of the execution and
attestation of the said Will. In my view the use of the
expression “Out of” was sufficient and good enough to
destroy the argument that the evidence on this issue
conflicted with this particular pleading. I do not find
that the pleading in question conflicted with the
evidence on record.
In this appeal a matter
that was seriously raised and canvassed by lawyer for
defendants in the statement of case was that the
appointment of 1st plaintiff, Dr. John Kells as (1) sole
executor in the said 1989 Will; and (2) sole beneficiary
of the properties of the late Dr. Blay-Miezah together
with the "Fund" was circumstantial evidence that the
said Will was a forged document. Another reason to
support the allegation of forgery was the failure and or
refusal 1st plaintiff, Dr. John Kells to appear in
person in court to prosecute his case. The lawyer for
plaintiffs did not advert to any of the above complaints
in his reply filed with the court. On the issue of the
appointment of the 1st plaintiff, Dr. John Kells as sole
executor, the defendants did not point to any law or
rule which was breached by the testator. It is a
testator's constitutional right to appoint any person or
persons of full age and sound mind to be the executor or
executrix. In the instant appeal, contrary to the
contention of the defendants, I have found evidence of
appointment of Dr. John Kells by Dr. Blay-Miezah to act
in responsible position and capacity for and our behalf
of Dr. Blay-Miezah and the Oman Ghana Trust Fund. See on
this the appointments by Dr. Blay-Miezah of Dr. John
Kells made in Exhibit "C" Exhibit “F. F., "Exhibit "2";
Exhibit " 17" and Exhibit “18”. I need not give the
details of these appointments above since no useful
purpose would be served by doing so in this judgment.
The evidence before the
court established beyond dispute that Dr. John Kells
played an important and significant role in the business
life of Dr. Blay-Miezah and further played his part in
the business affairs of the Oman Ghana Fund on the
instructions and directions of Dr. Blay-Miezah. I reject
the submission that the appointment of Dr. John Kells,
1st Plaintiff as sole executor in Exhibit "21 " is some
evidence that Exhibit "21" was forged.
The second limb of this
complaint was that the failure of 1st plaintiff, Dr.
John Kells to appear in court in person to prosecute his
case was circumstantial evidence that the 1989 Will was
a forged document. The lawyer for defendants did not
support this contention with the law or the rules of
court. No case law was cited to support this contention.
The lawyer for plaintiffs did not advert to this
complaint against the judgment. It is true that 1st
plaintiff did not personally appear in court to
prosecute the case. I am not aware of any law or rule
that enjoined a plaintiff to personally attend court and
prosecute his claim. The instant case was prosecuted by
an attorney duly and regularly appointed and mandated by
1st plaintiff to prosecute the case. Her capacity was
challenged and disputed by the defendants. The court
ruled she had capacity to prosecute the claim.
On this issue I have
found the Court of Appeal case entitled Lartey
(deceased) Lartey vrs. Afutu-Nartey (1972) 2 GLR. 488
helpful. At holding (2) of the Report appears the
following:—
"(2) when the
respondent applied to set aside the probate the court
below should have refused the application on the ground
that the executor though resident outside the
jurisdiction was competent to apply for a grant of
probate to herself and her presence in court was not
necessary. There is no law which provides that before a
named executor is granted probate he should necessarily
be resident within the jurisdiction. It is not
obligatory that he should be present in court when the
application is being considered provided the legal
representative that is, the lawyer or his lawfully
appointed attorney attends the court to prosecute the
application on her behalf”
The law on this issue
is clearly and succinctly stated at holding (2).The
complaint that Dr. John Kells should have appeared in
person to prosecute is case is not supportable in law.
The third complaint
defendants made against the 1989 Will was that the
appointment of Dr. John Kells, 1st plaintiff as "sole
beneficiary and heir ...............of all that Dr.
Blay-Miezah owned including those funds once known as
Ghana Fund but now known as the Butterfly Trust is
circumstantial evidence that the said Will was a forged
document."The lawyer for plaintiffs disputed the
interpretation put on the provision in the said Will. He
contended that the 1st plaintiff Dr. John Kells was
merely appointed to administer the Butterfly Trust. He
did, not share the opinion that 1st plaintiff, Dr. John
Kells was the sole beneficiary of Dr. Blay Miezah's
estate including the Butterfly Trust.
The first observation I
must make on this issue is that the trial court was not
called upon to determine who are beneficially entitled
to enjoy the properties of Dr. Blay Miezah as disclosed
by the said Will. The law of the land has made adequate
and specific provisions for any person or persons who
claim any interest in a testators’ estate. In this
connection the case of In Re Ayayee (deceased); Kukubor
and anor. Vs. Ayayee (1982-83) G.L.R 866 is helpful and
instructive. At holding (3) of the report appears the
following:
"(3) A testator had an
unfettered discretion to dispose of his property as he
chose. The discretion might sometime be influenced by
passion, caprice, the power of new association or ties
or sinister influence to the extent of excluding persons
whom the law placed legal obligations on the testator to
make provision for. There were occasions too when the
instinct and affections and sentiments of mankind might
safely lead one to make better disposition of one's
estate than a distribution obtained through stereotyped
rules of the general law ...............”
I do not accept the
bare statements that the appointment of Dr. John Kells
as sole executor by the 1989 Will Exhibit “21” without
more, was contrary to law. I do not find
the legal basis in
support of the submission. I adopt the reasoning in the
Ayayee case (supra) and reject the submission of counsel
or defendants.
In support of this
contention, namely the appointment of Dr. John Kells as
sole beneficiary the defendants testified that the 1989
Will was not the act and deed of Dr. Blay Miezah. The
trial judge permitted each defendant to give evidence on
this issue which was clearly inadmissible in law. The
testimony of each of the defendants was to a large
extent the opinion of that defendant on the issue of the
appointment of Dr. John Kells as sole beneficiary in
Exhibit "21". The 1st defendant, Dr. Ako Adjei testified
as follows:
“I found it difficult
that a shrewd business man would have put into the 1989
Will Dr. John Kells as heir and executor.
I found it very
difficult to believe that a shrewd man like Blay Miezah
would leave all his estate to Dr. John Kells to the
exclusion of his own brother .................. and
even his own children.
I found it very
difficult that Kwasi Whajah himself could believe that
his brother left all his estate to Dr. John Kells, an
Irishman ...................”
The 3rd defendant,
Rozana Blay Miezah stated her opinion as follows:—
" Miss Ofori Atta had
been lying to us so we did not believe the Will was
genuine. She knew how it had been executed."
On this same issue the
4th defendant Francis Blay Miezah, testified as
follows:—
"When Exhibit "21" was
brought, I was going through some of the documents that
we have in the house to see if I could find the
signatures of Mrs. Pennington and Ayeh Kumi to make
comparisons. I could not get one so Nana Asemda told me
that he had the passport of the late Dr. Ayeh Kumi. I
collected it from him and noticed that the signature on
this document does not agree with the one in the
passport. So we drew the attention of our lawyers to it.
I discussed this with lawyer Erskine and lawyer Blay
and later on went to lawyer Ako Adjei." He expressed his
opinion of Exhibit "21" as follows:—
“I don't think my
father would execute a Will and leave all his property
to a white man to the exclusion of all his children" I
do not find that the above pieces of evidence which is
the opinion of each defendant is sufficient evidence of
forgery. The standard of proof of forgery is spelt out
at S. 13(1) of the Evidence Decree 1975 (NRCD. 323).
That sub-section reads:—
"13. (1) In any civil
or criminal action the burden of persuasion as to the
commission of a crime which is directly in issue
requires proof beyond a reasonable doubt."
I reject the evidence
from the defendants reproduce above as evidence that the
1989 Will was forged.
This leads me to the
main ground of appeal, namely, the trial judge erred in
law when she rejected the case of the defendants that
the 1989 Will was a forged document. The lawyer for
defendants submitted that the evidence to prove and
establish that exhibit "21" was forged, though
circumstantial was credible. It was contended that the
evidence to prove and establish the preparation, the
execution and attestation was conflicting and
contradictory. In support of this submission the lawyer
for defendants contended first that the 1989 Will was
not prepared by a lawyer. This fact was some
circumstantial evidence of forgery of Exhibit "21". The
lawyer for the plaintiff did not advert to this
complaint in his statement in reply.
The complaint was that
in so far as Exhibit '21' was not prepared by a lawyer
the document was a forged document. This submission was
not supported by legal authority. This court was not
referred to any law or rule which mandatorily required
that a Will or testamentary document must be prepared by
a lawyer to clothe it with legal validity. I am not
aware of any case that decided that a Will is only valid
in law if it was prepare by a lawyer. Indeed in the
instant appeal the same lawyers put in evidence Wills
and testamentary documents not prepared by lawyers. They
sought orders admitting these testamentary documents to
probate. See on this: Exhibit '6', Exhibit.'13’ Exhibit
'16' and Exhibit '28'. I do not find that the
preparation of the 1989 Will Exhibit ‘21’ by a person
who is not lawyer supported the charge of forgery of
that document.
The second limb to
prove and establish the charge of forgery was that the
1989 Will Exhibit '21' was not the act and deed of Dr.
Blay Miezah. The lawyer for defendants contended that
the paper on which Exhibit '21' was typed had been
signed in blank by Dr. Blay Miezah, that the
dispositions in Exhibit '21' were subsequently and
without the knowledge and consent of Dr. Blay Miezah
typed on the signed blank paper and held out as the act
and deed of Dr. Blay Miezah. Thereafter the signature of
Dr. Ayeh Kumi was forged on Exhibit '21' to make it
appear that Dr. Ayeh Kumi attested the Will. In reply
counsel for plaintiffs pointed to evidence on record to
prove and establish that Exhibit '21' was the act and
deed of Dr. Blay Miezah. There was evidence that Dr.
Ayeh Kumi attested the signature of Dr. Blay Miezah in
the presence of Mrs. Pennington, PW4 who also attested
the signature of Dr. Blay Miezah.
The above ground
required detailed examination of the evidence on record
that relate to and touch upon the several issues raised.
The first issue was whether or not the 1989 Will,
Exhibit '21' was the act and deed of Dr. Blay Miezah.
The case of the plaintiffs as contained in Exhibit '9',
the affidavit evidence of Mrs. Pennington read as
follows:—
"I am Mrs. Edda
Angelina Pennington……….of London……….nurse make oath and
say as follows:—
(1) I am the second of
the subscribing witnesses to the last Will and testament
dated 29th January, 1989 of the above-named Dr. John
Ackah Kells Blay Miezah ...................
(2) The said testator
executed the said Will on the day and date of by signing
the name at the foot or end thereof, as the same new
appears thereon in the presence of myself and Dr.
Emmanuel Ayeh Kumi. The other and first subscribed
witness thereto.
(3) At the same time
when the said testator signed the said Will in the
manner aforesaid, both Dr. Ayeh Kumi……….and I were both
present at the same time and we thereupon attested and
subscribed to the said Will in the presence of him and
the testator …..”
I must observe that
this crucial evidence in exhibit '9' was put in evidence
at the instance of the defendants. Before us, this
document Exhibit '9' had not been impeached by the
defendants on any legal ground. Prima facie, the
plaintiffs evidence of due execution and attestation of
Exhibit '21', the 1989 Will was proved and established
by the affidavit evidence contained in Exhibit '9'. I
adopt the opinion of Mrs. Wood JA in the Agyekum case
(supra), I find that the undisputed and unchallenged
affidavit evidence of PW4 put in evidence by defendants
was credible evidence of due execution and attestation
of the 1989 Will of Dr. Blay Miezah.
Defendants contended
that a signed blank letter headed sheet of paper was
"obtained" and used to prepare Exhibit '21' the 1989
Will. They did not point to evidence on record to
identify the persons who obtained the blank signed
letter headed paper and directed and dictated the
contents of Exhibit '21'. Be that as it may, I must
consider the evidence of DW5, Mr. Adipah on this issue.
The evidence of Mr. Adipah DW5 was not challenged by the
plaintiffs. DW5 testified that on at least 22 separate
occasions Dr. Blay Miezah handed over to him already
signed but blank-letterhead sheets of paper. That on
each such occasion, Dr. Blay Miezah either indicated or
dictated to him DW5 what material or information he DW5
should type on the blank but already signed sheets of
paper. To persuade the trial court that he spoke the
truth and nothing but the truth on this issue, DW5 put
in evidence a Blay Miezah signed blank letter headed
sheet of paper as Exhibit '34'. This document Exhibit
'34' apart from bearing the signature of Dr. Blay Miezah
bore the date 18th April, 1985 and is blank, that is,
nothing was typed on it. I have anxiously and seriously
considered the evidence of DW5. Am I to conclude that
the 22 documents referred to in the evidence of DW5 were
all without exception forged documents? Do I accept the
evidence of DW5 as evidence that he DW5 forged the 22
documents, merely because Dr. Blay Miezah signed the
sheets in blank and thereafter handed each of them to
DW5 to enable him complete each document with
information from Dr. Blay Miezah. If the evidence of DW5
was accepted and believed as evidence of the modus
operandi of Dr. Blay Miezah then it was not open to the
defendants to impeach Exhibit '2' the 1989 Will as a
forged document, because the evidence of PW4 was that
Dr. Blay Miezah handed to her a blank sheet to type on
it, information he Dr. Blay Miezah gave to her and she
did that.
I cannot conclude this
aspect of the submission of counsel without expressing
my concern that up to the date DW5 gave evidence, that
is, May 1996 he DW5 kept in his possession the blank but
signed and dated letter headed sheet, that is Exhibit
'34'. The evidence DW5 gave was that on each and every
occasion that he DW5 was handed a blank but signed
letter headed sheet by Dr. Blay Miezah he DW5 received
specific instructions concerning what he should type on
such blank but signed sheet of paper. DW5 received
Exhibit '34' on 18th April, 1985, he was not asked to
tell the court why he kept Exhibit '34' and why he
failed to carry out the instructions and wishes of Dr.
Blay Miezah. In my opinion, the evidence of DW5 did not
even remotely prove and establish that the 1989 Will
Exhibit “21” was not the act and deed of Dr. Blay
Miezah.
The third limb of the
submission of the lawyer for defendants that the 1989
Will Exhibit '21' was a forged document was that the
trial judge erred in accepting the evidence that Dr.
Ayeh Kumi and Mrs. Pennington were present in the
residence of Dr. Blay Miezah on 29th January, 1989. It
was contended that the evidence to prove and establish
that Dr. Ayeh Kumi was present in the residence of Dr.
Blay Miezah on 29th January, 1989 was so conflicting and
contradictory that the trial judge should have rejected
it. They pointed to evidence from DW1, Kaku DW3 Kim and
DW4 Rigby which in substance was that neither Dr. Ayeh
Kumi, nor Mrs. Pennington was present in the residence
of Dr. Blay Miezah on 29th January, 1989. They argued
that Dr. Ayeh Kumi and Mrs. Pennington did not therefore
attest the signature of Dr. Blay Miezah on Exhibit
'21'on that date.
In reply, counsel for
the plaintiffs referred to and relied on the evidence of
Nana Buah PW1, Shenton PW2 and Rice PW3 as well as
affidavit evidence from Mrs. and Pennington. He argued
that the evidence was neither conflicting nor
contradictory. He submitted that the evidence clearly
showed that both Dr. Ayeh Kumi and Mrs. Pennington were
each present with Dr. Blay Miezah in his London
residence on 29th January 1989. The evidence supported
the finding of the trial judge that Pw4 and Dr. Ayeh
Kumi witnessed the signature of Dr. Blay Miezah on the
29th January, 1989 in the presence of each other.
I propose to deal first
with the issue whether or not PW4 Mrs. Pennington was
present in the residence of Dr. Blay Miezah on 29th
January, 1989 and further whether or not she attested
the signature of Dr. Blay Miezah within the meaning and
intendment of S.2 of Act 360. Elsewhere in this judgment
I have made a finding that the affidavit evidence from
PW4 was evidence that she did attest the signature of
Dr. Blay Miezah as required by law. Apart from the
affidavit evidence from PW4, there were clear and
undisputed pieces of evidence contained in exhibit 'C',
Exhibit '9' and Exhibit '31' to the effect that PW4,
Mrs. Pennington was present with Dr. Blay Miezah on 29th
January, 1989. In Exhibit 'C' Dr. Blay Miezah wrote on
29th June, 1990 in part as follows:—
"Also release the
sealed envelope I gave to you. (Dr. John Kells the first
plaintiff herein) on 29th January, 1989…………………in the
presence of James Kaku (DW1 in this case) and Mrs.
Pennington (PW4) to Mr. Ngethe Njorege.”
This piece of evidence
was not impeached by defendants as not true. The
evidence of DW1, that Mrs. Pennington was not one of the
persons who met with Dr. Blay Miezah in his Dr. Blay
Miezah residence on 29th January, 1989 was not the
truth. I make bold to state that DW1 Kaku told
deliberate and calculated lies to the court on this
issue. From the clear evidence of DW1 he was the only
person on duty on 29th January, 1989 with instruction
from Dr. Blay Miezah to open and admit into the
residence of Dr. Blay Miezah any and every person Dr.
Blay Miezah wished to meet with. This was the evidence
DW1 gave on this important issue:
“If a visitor was
coming to the house and he got to the gate where the
security men were (on duty) I would not talk to them
because I was in the house. The visitor would get access
to the place after he had spoken to the security men who
would then talk to Nana. If Nana want to see the person
he would tell me. I would then let the person in. When
I opened the door and a visitor entered I would take
them to a room where the visitors sat when they came
in."
This detailed and
comprehensive account and description of the procedure
routinely and religiously to be followed by DW1 Kaku
leaves me in no doubt that he admitted and let into the
home of Dr. Blay Miezah on 29th January, 1989. Dr. John
Kells, 1st plaintiff Mrs. Pennington PW4 and Dr Ayeh
Kumi.
There was evidence from
Kim DW3 and Rigby DW4 that they each were engaged in
packing bag and baggage of Dr. Blay Miezah on 29th
January 1989. They each testified that they each did not
see Mrs. Pennington PW4 and Dr. Ayeh Kumi in the
premises and residence of Dr. Blay Miezah on that date.
I quite agree and accept their evidence that they each
did not see PW4 or Dr. Ayeh Kumi in the residence of Dr.
Blay Miezah. Both DW3 and DW4 were not employed as
security men on 29th January, 1989. They swore that they
were engaged in packing bag and baggage of Dr. Blay
Miezah and sent same to the Airport in London. They each
did not relate the above evidence to the time or times
during that day that they discharged their said duties.
Common sense informs me that DW3 and DW4 would shuttle
from inside the rooms into the yard or compound carrying
bag and baggage. The nature and type of work, that is,
packing bag and baggage in the room or rooms and
carrying or conveying these outside would not afford DW3
and DW4 opportunity to know and identify and yard every
person who was first admitted through the locked gates
by the security men into the compound and thereafter
admitted by Kaku DW1 into the residence. In my candid
opinion, the evidence of DW4 that he was not in a
position to see and identify all persons wishing to see
Dr. Blay Miezah was the truth. The evidence of DW4 was
as follows:—
"If any of the above
people ..................... had come to the house. I
would not necessarily see them but I would be aware of
their coming to the house."
DW4 was not asked to
tell the court how he would become aware of persons
coming to the house since he was engaged in packing bag
and baggage of Dr. Blay Miezah. The plain truth was that
DW 4 was not in a position to know and identify the
visitors to Dr. Blay Miezah's house on 29th January,
1989. Dw3 was in the same position as Dw4.
The other leg of the
submission of counsel for defendant was that Dr. Ayeh
Kumi was not present in the house of Dr. Blay Miezah on
29th January, 1989. There was ample evidence which
proved and established that Dr. Ayeh Kumi was present
with Dr. Blay Miezah in his residence on 29th January,
1989. I have elsewhere in this judgment held that DW3
and DW4 were not in a position to see and identify the
persons who called to see and meet with Dr. Blay Miezah
on 29th January, 1989. The evidence that they each did
not see Dr. Ayeh Kumi come to the residence of Dr. Blay
Miezah did not, without other evidence prove that Dr.
Ayeh Kumi was not present on that date. I have also made
a finding that the memory of DW1 Kaku and his
recollection of what happened on 29th January, 1989 in
the residence of Dr. Blay Miezah was most unreliable. I
have great difficulty in examining and evaluating the
evidence of DW4 Righy. Before the trial court were two
documents sworn to by DW4 Rigby. These are Exhibit '31'
and Exhibit '32'. In the first and earlier document,
Exhibit '31' he admitted he drove Dr. Ayeh Kumi to the
residence of Dr. Blay Miezah on 29th January, 1989.
Within the comparatively short period of six days DW4
changed his unequivocal and clear statement in exhibit
'31' by another sworn document Exhibit '32'. For the
avoidance of doubt, I reproduce the sworn statement as
contained in Exhibit '31' put in evidence by the
defendants. DW4 deposed as follows:—
“On the morning of
Sunday 29th January, 1989, I received a telephone
instruction from Dr. John Ackah Blay Miezah
................. to attend him. Sometime after my
arrival I was further instructed by Dr Blay Miezah to
proceed using my own car and accompanied by Nana Arvo
Buah (PW1 in this case) to the home of Dr, Ayeh Kumi
with whom I was acquainted) ....… in London.
Upon Arrival. Nana
Buah entered the house…….After a few minutes Dr. Ayeh
Kumi emerged walked with difficulty and using two
walking sticks, whereupon I opened the rear door (left
side) and assisted him to enter the vehicle.
I drove my passengers
to 60 Avenue Road………Where I was directed by the security
Officer………..to proceed directly to the front door where
my passengers disembarked and were admitted to the
house.”
In order to leave no
doubt in the mind of anyone reading this document DW4
Rigby added the following for good value:—
"I have particular
memory of this occasion for the following reasons:—
(1) This was the only
occasion when I was require to drive Dr. Ayeh Kumi from
his house to 60 Avenue Road.
(2) This was the last
time I saw Dr. Ayeh Kumi.
(3) Shortly after this
occasion Dr. Blay Miezah departed from UK for Ghana."
The above unequivocal evidence was contained in Exhibit
'31'. The defendants themselves put in evidence Exhibit
'32' in which document DW4 Rigby stated that he DW4 made
a mistake in exhibit '31'. This was what he stated in
Exhibit '32' to enable him to correct Exhibit '31'.
“Since making that
statement (Exhibit '31') I have learned that Dr. Blay
Miezah departed the UK for Ghana on 29th January l989,
which my memory erroneously placed at 3rd February,
1989………..”
It is clear from the
expression used by DW4 namely “I have since learnt” that
he discussed the contents of Exhibit '31' with a person
or persons after he made it. As a result of that
discussion he quickly changed his earlier sworn
statement and swore to another affidavit, Exhibit '32'.
I have no doubt that DW4 Rigby allowed himself to be
manipulated and unduly influenced by some persons to
swear to Exhibit '32'. I find support for my conclusion
from the following passage from exhibit '32'. DW4 swore
as follows:—
"I have made an error
in placing the date as 29th January, 1989. If my
statement of 11th January 1995 (Exhibit '31') has
caused any misunderstanding or has misled any
deliberations then I apologize and beg for forgiveness
of those concerned."
I am amazed that the
lawyer for the defendant put in evidence Exhibit '32'.
To whom was DW4 offering his heartfelt apology? What was
the misunderstanding, that DW4 had created? Whom was he
misleading? What was the evidential value of Exhibit
'32'? Exhibit '32' was not a retraction of DW4's
evidence that on 29th January, 1989 he drove Dr. Ayeh
Kumi to the residence of Dr. Blay Miezah. My opinion is
that DW4 did not swear to the truth in Exhibit '32'. The
crucial date remained unchanged and remained as 29th
January, 1989.
The defendant brought
down to Accra from London Rigby DW4 to assist the court.
He testified in court. On the crucial issue whether or
not he drove Dr. Ayeh Kumi to the residence of Dr. Blay
Miezah on 29th January, 1989 he was cross-examined on
Exhibit '31' as follows:—
"Q. It would seem that
one thing you wanted to correct was the date Sunday 29th
January, 1989 which you had given in Exhibit '31'
A. Yes. It is correct.
Q. Otherwise you did
not attack the facts you had given in Exhibit '31'
A. Yes apart from the
date."
The cross-examination
proved that apart from the date in Exhibit '31' every
statement of fact in exhibit '31' was the gospel truth.
Some only of the statements made in exhibit '31' are
the following:—
(1) “That was the only
occasion DW4 drove Dr. Ayeh Kumi to Dr. Blay Miezah's
residence at the request of Dr. Blay Miezah.
(2) That was the last
time DW4 saw Dr. Ayeh Kumi; and
(3) That shortly after
this occasion Dr. Blay Miezah departed UK for Ghana,”
The more serious
statement made by DW4 was the following statement in
Exhibit ‘32’
“Since making that
statement (Exhibit '31) I have learned that or Blay
Miezah departed…….on 29th January 1989 which my memory
erroneously placed at 3rd February, 1989 ..............I
must point out that nowhere in exhibit '31' did DW4
state that Dr. Blay Miezah departed for Ghana on 3rd
February 1989. This was the statement DW43 made in
exhibit '31'.
"On the morning of
Sunday 29th January, 1989, I received a telephone
instruction from Dr. John Ackah Blay Miezah
.................I was further instructed to proceed
using my own car and accompanied by Nana Aryo Buah to
the home of Dr. Ayeh Kumi............. I drove my
passenger (Nana Buah and Dr. Ayeh Kumi to 60 Avenue
Road............ London……….”
On the above evidence
DW4 had not corrected the date stated in Exhibit '31'.
The defendants witnesses, DWl, DW3 and DW4 evidence
that Dr. Ayeh Kumi was not present in the residence of
Dr. Blay Miezah was not worthy of credit. The trial
judge cannot be faulted for rejecting it.
Nana Buah, PW1 stated
he was present in the house of Dr. Blay Miezah on 29th
January, 1989. In Exhibit '31' DW4 swore that on 29th
January, 1989 he drove Dr. Ayeh Kumi and Nana Buah PW1
to the residence of Dr. Blay Miezah. DW4, Rigby did not
retract the evidence that he drove PW1 to the residence
of Dr. Blay Miezah. PW3 Shenton stated he was the one
who drove PW1 and Dr. Ayeh Kumi on 29th January, 1989 to
the residence of Dr. Blay Miezah. PW1 stated that the
driver on that occasion was PW2, Rice. Rice testified
that he did not drive PW1 and Dr. Ayeh Kumi on that
date. PW2 claimed PW1 made a mistake about the name of
the person who drove him. In my view the evidence of the
identity and name of the driver is not crucial in
deciding whether or not Dr. Ayeh Kumi and PW1 were
driven in a car to the residence of Dr. Blay Miezah. The
evidence was that "a white man" drove them to the house
of Dr. Blay Miezah on that date.
There was evidence from
Kaku DW1 which I find helpful in considering this issue.
DW1 Kaku testified in part as follows:—
“Any time Dr. Ayeh Kumi
was visiting Dr. Blay Miezeh, Nana would send his driver
to fetch him: DW1 did not stop there, he continued his
evidence as follows:—
"Dr. Blay Miezah would
not send any of his security officer to fetch Dr. Ayeh
Kumi."
The evidence of DW4 was
thus corroborated by that of DW1, that is to say, that
Dr. Blay Miezah always provided Dr. Ayeh Kumi with
transportation when-ever, he Dr. Blay Miezeh needed the
presence and person of Dr. Ayeh Kumi in his residence.
The faulty recollection of witnesses in the
circumstances of this case can be reasonably understood.
In the light of the evidence before the court, I find
that PW4, Mrs. Pennington and Dr. Ayeh Kumi were each
present in the residence of Dr. Blay Miezeh on 29th
January 1989
The other issue raised
by lawyer for defendants was the signature of Dr. Ayeh
Kumi on the testamentary document, dated 29th January,
1989. It was contended that this was foraged. That Dr.
Ayeh Kumi did not attest that document as a witness to
Dr. Blay Miezah's signature. I must refer to evidence on
this issue on record which was not adverted to by the
trial judge. The signature on the face of Exhibit '21'
was made on the 29th February, 1989. Before the trial
court was evidence of a signature of Dr. Ayeh Kumi made
by Dr. Ayeh Kumi on the 24th January, 1989 that is to
say, a signature Dr. Ayeh Kumi made some five days
earlier. I refer to Exhibit '46' which was put in
evidence by the defendants Exhibit '46' bears the
signature of Dr. Blay Miezah. I reproduce the relevant
portion of Exhibit '46' as follows:—
"Oman Ghana Fund
24TH JANUARY, 1989
M. Alexander
Lodydgensky
.............................................
May I have your advice
and opinion please by return of fax Signed Dr. John
Ackah Blay Miezah sole Beneficiary and Trustee Signed
Dr. Emmanuel Ayeh Kumi. Former Economic Adviser to the
late Dr. Kwame Nkrumah."
There is no evidence as
to where Exhibit '46' was signed by both Dr. Blay Miezah
and Dr. Ayeh Kumi. In my view, this document, Exhibit
'46' has the effect of considerably watering down the
claim that Dr. Ayeh Kumi was incapable of signing his
name in January, 1989. This piece of evidence proved and
established that five days before the 1989 Will was
attested by Dr. Ayeh Kumi he had witnessed the signature
of Dr. Blay Miezah on Exhibit '46'. This piece of
evidence further established that Dr. Ayeh Kumi was
capable of making his signature on documents. This
evidence was supported and corroborated by evidence from
PW7, Miss Amartey who testified that Dr. Ayeh Kumi
signed his name on cheques up to date of his death. PW7
stated she lived with Dr. Ayeh Kumi in the same house
for several years till he died. This is not challenged.
There was also the
evidence of the two expert witnesses that the signature
on Exhibit '21' was made by Dr. Ayeh Kumi. I find that
the trial judge finding on this issue is supported by
the evidence on record. This court cannot disturb the
finding that Mrs. Pennington and Dr. Ayeh Kumi attested
the signature made by Dr. Blay Miezah in their presence
and in the presence of each of them.
Counsel for defendants
submitted that the trial judge erred in rejecting the
first and earlier reports of the handwriting experts in
preference of the second and subsequent reports put in
evidence by them. They submitted that the trial judge
erred in law, suo moto, in ordering the handwriting
experts to report on some documents selected by her.
They argued that she had no right to select those
documents and order the hand writing experts to report
on them. Counsel for plaintiffs submitted that the trial
judge was right in the view she took of the evidence
before her. That she had power to order that the
documents in evidence which she found relevant be
examined and reported upon by them.
I find it necessary and
desirable to state the law on the evidence of an expert
witness. I find the case of Commey vs. Bentum-William
(1984-86) 2 GLR. 301 is helpful, At holding (1) appears
the statement:—
"(1) A handwriting
expert was not required to state definitely that a
particular writing was by a particular person. His
function was to point out similarities or differences in
two or more specimens of handwriting submitted to him
and leave the court to draw its own conclusion."
This holding was
extracted by Abban JA. (as he then was) from the English
case of Wakefield vs London (Bishop) (1921) 90 LJ 174 at
179 P.C. Abban J.A. stated the law correctly in the
following words at page 309 of the report.
“.............. in the
case herein the report was supposed merely to-assist the
court in deciding the vital issue of forgery and it
would therefore have been an undue and unwarranted
interference of it (the report) had gone further to
pronounce on the very issue which the court was called
to determine."
The conclusions reached
by the handwriting experts on the signatures presented
to them are therefore not conclusive and decisive proof
of the matters in dispute. In the present appeal, the
conclusion reached by one of the hand writing experts,
was stated as follows:—
"(1) In view of the
above observations and with the declining condition of
health and age of Dr. Ayeh Kumi Exhibits 'A', “J “L” and
the alleged Paulinson'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 the late 1989, it is concluded
that all signatures representing Dr. Emmanuel Ayeh Kumi
on Exhibit 21, 28, H, J, K, L and Q were produced by one
and the same persons "This was the substance of the
report of CW3 Yakubu. Then there was a report from CW2
Owusu as follows:—
“Conclusion:
In view of the above
observations, considering also the age, ill health and
particularly the partial paralysis due to Parkinsonism,
I have no hesitation but to conclude that:—
(1) the alleged
signature of the late Dr. Ayeh Kumi on Exhibit ‘21’—the
Will of 1989 Exhibit '21',—Passport- Exhibit "28",---the
Will of 1988; Exhibit 'H'; Exhibit 'J'; and Exhibit 'Q'
were all signed by the same person.”
The hand writing
experts explained in some great detail the factors and
matters they considered relevant and helpful in arriving
at their respective conclusions. The defendants enjoyed
an unfettered right to put in evidence reports of
experts or their choice to prove and establish their
case of forgery. They did not exercise this right. They
did not offer any explanation for not doing so. The
opinion evidence of the two experts was accepted by the
trial judge. I have not found evidence on record which
even remotely demonstrate that the finding of the trial
judge cannot be supported. The issue that Dr. Ayeh Kumi
did not in his last days enjoy good health was proved
and established by unchallenged evidence. That the
condition of his health affected his ability to write
was not disputed. Five days earlier he had signed a
document. In all the circumstances the finding by the
trial judge that Dr. Ayeh Kumi made the signature on the
1989 Will was supportable by evidence before her.
It is trite learning
that findings of fact made by a trial judge must not be
disturbed except in special circumstances. See on this
Darkwah vs. Denteh (1972) 2 GLR 305 C.A. and Appiah vs.
Takyi (1982-83) 1 GLR 1 C.A. In the recent Supreme Court
case entitled Barclays Bank (Ghana) Ltd. vs. Sakari
(1996-97) SCRIR 639 the court held at holding (3) as
follows:—
"(3) An appellate
court, like the Supreme Court could not set aside
findings of fact where they were based on the demeanour
of witnesses. But where the findings were based on
undisputed facts and documents, as in the instant case,
the appellate court was in decidedly the same position
as the lower court, and could examine those facts and
materials to see whether the lower court's findings were
justified in terms of the relevant legal decision an
principles"
This statement of the
law had been applied by the courts since the decision in
Adjebi Kodjoe vs. Bonsie (1953) 14 WACA. 242.
In the instant case
counsel challenged the power and the right of the trial
judge to refer, suo moto, some of the documentary
exhibits for examination and classification. Counsel did
not cite any law or rule which prohibited a trial judge
from exercising that power and right. I am not aware of
any law or rule that denied to a trial judge such power
and right. In this case, the documents were put in
evidence to enable the trial judge examine, evaluate and
determine what weight evidentially speaking, to attach
to each and every one of them. In my view, if the trial
judge reasonably and fairly believed that due to the
technical or special attribute or nature of the evidence
to be so considered she needed the opinion of an expert
witness in the particular discipline, the ends of
justice enjoined the trial judge to elicit the opinion
she needed. I think the mere exercise of the power and
right cannot be called in question. However, I am of the
view that in a case where the power and right were
exercised capriciously and oppressively to the
disadvantage of a party, the exercise of the power and
right must be impeached. In the instant case, the
defendants have not pointed to evidence to support and
establish the complaint that the reference, suo moto, by
the trial judge of the selected documentary exhibits was
unjustifiable, capricious and prejudicial to their case.
I have carefully and
critically examined the submissions and arguments of
counsel for the parties. I find that the conclusion
reached by the trial judge on the following issues:—
1. that Mrs. Pennington
attested the 1989 Will within the meaning of S. 2 of
Act. 360;
2. that Dr. Ayeh Kumi
attested the 1989 Will within the meaning and intendment
of S. 2 of Act 360;
3. that the signature
on the 1989 Will of Dr. Blay Miezah was the signature of
Dr. Blay Miezah within the meaning of S. 2 of Act 360;
4. that the date 29th
January, 1989 on the said document was the date on which
the document was made within the intendment of S. 2 of
Act 360;
5. that the 1989 Will
was not forged document, and
6. that the 1989 Will
was a Will and testament of the late Dr. Blay Miezah are
supported by the evidence before her. I have given
reasons to support my findings.
In the result I will
dismiss the appeal in part. I will affirm the judgment
of the trial court subject to the portions and orders, I
have set aside; that is to say that, I affirm the
judgment that the 1989 Will is genuine and valid and it
fully and completely with S.2 of Act 360.
I set aside the orders
made by the trial judge in relation to the 1988 Will. I
also set aside the orders in respect of Exhibits
‘Ackah13’ and '16' respectively.
G. L. LAMPTEY
JUSTICE OF APPEAL.
BENIN JA:
The only relief
endorsed on the writ issued by the plaintiffs reads: a
declaration that the Will dated 29th January, 1989 of
Dr. John Ackah Blay Miezah (deceased), late of Accra is
valid, genuine and not tainted by any forgery.
This writ was issued
pursuant to the order of an Accra High Court following a
caveat entered against an attempt to obtain probate in
respect of this Will, which I'll henceforth call the
1989 Will. In the statement of claim the plaintiffs
explained the circumstances surrounding the execution of
the said Will in London. In a joint statement of
defence, the 1st, 3rd, and 4th defendants rejected this
1989 Will as a forgery, and in particular they alleged
it was not executed by Dr. Blay Miezah, (deceased), nor
was it signed by one of the attesting witnesses called
Dr. Emmanuel Ayeh Kumi, whose signature thereon was said
to have been forged. For their part, these defendants
hereinafter called the defendants, as distinct from the
2nd defendant who will be described as such averred that
in 1988, Dr. Blay Miezah (hereinafter called the
deceased) made a Will which he deposited with a bank in
Switzerland and which has since his death been
retrieved. In the said 1988 Will the deceased appointed
the 1st defendant the sole executor thereof. A codicil
to the 1988 Will was made on 16th August 1990. And so
too was a nuncupative Will made by the same deceased
person on 9th June 1992. They averred that they have
deposited all these testamentary instruments in court
and that the High Court has accepted them. It was their
contention that even if the 1989 Will was made which in
effect revoked the 1988 Will, yet since both the codicil
of 1990 and nuncupative Will of 1992 made reference to
the 1988 Will, the latter was revived. Accordingly the
defendants counter claimed for this basic relief that
the court should grant the 1st and 2nd defendants
probate of the 1988 will together with the 1990 codicil
and the 1992 nuncupative will
However, at the summons
for directions, the court rejected portions of the
defence and counter claim. Of immense significance, the
court in its ruling of 18th May, 1995, rejected all the
averments that dealt with the questions relating to the
1988 Will, 1990 codicil and 1992 nuncupative will as
irrelevant. The court's reason being that by the terms
of the order of the High Court presided over by
Akoto-Bamfo (Mrs.) J. (as she then was), the plaintiffs
were only ordered to issue a writ to determine whether
or not the 1989 Will was a forgery, so the parties were
bound by the terms of that order. In that same ruling
the court upheld the plaintiffs and the 1st plaintiffs
attorney's capacity in this action.
With those decisions
against which no appeal was lodged, I would have thought
that all the parties, as well as the Lawyers and the
Court, had agreed to confine themselves to the validity
of the 1989 Will only. But as it turned out, the volumes
of evidence led took several other unrelated matters
into consideration. No doubt the Lawyers, and to some
extent the trial Judge herself, lost track of the only
issue open on the writ and the pleadings after the
ruling of May 18, 1995, and which was whether the 1989
Will was valid in the sense as known to the law. Counsel
pushed in, and the Court accepted, the other
testamentary documents, the very thing that had been
rightly rejected at the summons for directions. Going
through the remainder of the pleadings as they stood
after the court's ruling of 18th May, 1995, I 'm not
too surprised at the turn of events because para. 14 of
the statement of defence of the defendants was allowed
to stand, for what reason I do not know. That averment
reads: 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 to 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.
With this averment
still intact, it made possible for Counsel for the
defendants to introduce those documents without
objection for their full force and effect. The trial
court then cannot be faulted for stating an opinion on
those documents in the light of the evidence before it.
But by that approach, the area of conflict rather than
being narrowed, was considerably widened. What then is
the effect of the decision/s taken in respect of these
testamentary documents? Any decision taken thereon would
give rise to what Diplock 1 J. decribed as an "issue
estoppel" in the case of THODAY VS. THODAY (1964) P. 181
at p. 198. This principle has since then been fully
embraced as a correct principle of law. It was further
given an exposition by Lord Denying, M.R. in the case of
FIDELITAS SHIPPING CO., LTD. VS. V/O EXPORT CHLEB (1965)
2 ALL ER 4 at pp. 8–9 where the learned judge said:
"The law, as I
understand it, if this: if one party brings an action
against another for a particular cause and judgment is
given on it, there is a strict rule of law that he
cannot bring another action against the same party for
the same cause...........But within the cause of action,
there may be several issues raised which are necessary
for the determination of the whole case. The rule then
is that, once as issue has been raised and distinctly
determined between the parties, then as a general rule,
neither party can be allowed to fight that issue all
over again. The same issue cannot be raised by either of
them again in the same or subsequent proceedings except
in special circumstances, .........................”.
See these cases: CARL-ZEISS-STIFTUNG VS. RAYNER AND
KEELER, LTD. (No. 2) (1966) 2 ALL ER. 536 at p. 565 per
Lord Guest; BEDU and Others VS AGBI and Other (1972) 2
GLR 238 C.A. Thus is the determination of these
documents was necessary in determining the only issue
before the court, that determination would create an
issue estoppel against whoever lost it; if not, then it
could be used in matters of credibility only, if
necessary.
From the record, part
of the evidence was taken in Accra and part in London.
Whilst attacking the totality of the judgment as being
against the weight of evidence, among several grounds of
appeal, the appellants appear to be particularly bitter
about the proceedings in London which they have attacked
as totally wrong in law and/or practice. Before the
court moved to London it had taken evidence from a
number of the plaintiffs’ witnesses. And further
evidence was taken after the London trip. Thus besides
the London evidence, there was other evidence led. So
any meaningful decision in this appeal would have to
address the question whether, without what I have chosen
to call the London evidence, there was sufficient
evidence on the record to support the trial court's
conclusion, assuming the London evidence was wrongly
received in law or practice. I propose therefore to deal
with this appeal from three fronts, namely (1) the Accra
evidence only, (2) the London evidence only; and (3) a
combination of both evidence, if necessary. This
approach is in conformity with the requirements of
section 5(1) (2) of the Evidence Decree, 1975 (N.R.C.D.
323) which has these provisions:
5(1) No finding,
verdict, judgment or decision shall be set aside,
altered or reversed on appeal or review because of the
erroneous admission of evidence unless the erroneous
admission of evidence resulted in a substantial
miscarriage of justice.
(2) In determining
whether an erroneous admission of evidence resulted in a
substantial miscarriage of justice the court shall
consider—
(a) whether the trial
court relied on that inadmissible evidence; and
(b) whether an
objection to or a motion to exclude or to strike out the
evidence could and should have been made at an earlier
stage in the action; and
(c) whether the
objection or motion could and should have been so stated
as to make clear its ground or grounds; and
(d) whether the
admitted evidence should have been excluded on one of
the grounds stated in connection with the objection or
motion, and
(e) whether the
decision would have been otherwise but for that
erroneous admission of evidence.
I begin then with the
Accra evidence. The 1st plaintiff testified about the
1989 Will. The relevant part of her testimony was what
she personally knew about this matter. She said the
deceased himself told her about a Will he had made. This
is what she said:
"Dr. Blay
Miezah………………..told me that Dr. Kells was holding
everything concerning the Oman Ghana Trust. In short if
something happened to him, Dr. Kells was the only one
who was holding the will for the Trust. I was in Dr.
Blay Miezah's bedroom at Abelenkpe in Accra when the
above incident took place……….After Dr. Blay Miezah's
death the will was still with Dr. Kells in
London................ Dr. Kells informed the Trustees
that he had the will." From the xxx of the 1st plaintiff
s attorney, it is clear the defence lawyers were more
interested in attacking her credibility as against the
substance of what she had said. She was an ex-fiancée of
the deceased, and Counsel sought to portray her as an
insincere, unfaithful, crooked person who was sacked by
the deceased and so could not and should not be believed
by the court. That approach, it appear, did not find
favour with the trial court. It was through this witness
that a lot of the defendants' exhibits were put in
evidence, including an affidavit sworn to by Miss or
Mrs. Pennington, one of the attesting witnesses to the
1989 will. Miss or Mrs. Pennington is one and the same
person. I found it hard to reconcile the defendants'
position, as put across in the xx of the 1st plaintiffs
that both Dr. Kells and Mrs. Pennington were not present
in the deceased's residence in London on the day the
will was said to have been made, and their decision to
tender the same Mrs. Pennington's affidavit-exhibit 9 in
which she had made it clear who were there that day,
inter alia. I shall return to this exhibit later on. The
first witness for the plaintiffs was one Nana Arvo Buah,
(Pw1). His relevant testimony was that on 29 January
1989 he picked Dr. Ayeh Kumi and Mr. Rice from the
former's house and took them to the deceased's house in
London. Later he sent Dr. Ayeh Kumi back to this house.
The next witness was
Thomas Shenton, a consultant who worked for the deceased
in London. He said on 29th January 1989, he was sent by
the deceased to go and pick Dr. Ayeh Kumi from his
house. When he got there pw1 arrived in his own car so
the three of them went to the deceased's residence. He
said he had seen Dr. Ayeh Kumi sign his signature before
and had also seen it on some documents prior to the
hearing, so he identified it on the will-exhibit 21.
Under xx he denied a suggestion that he did not see pw1,
Dr. Kells and Mrs. Pennington in the deceased's house
that day.
Mr. Rice, also a
security personnel working for the deceased, testified
as pw3. He confirmed that it was pwl and pw2 who brought
Dr. Ayeh Kumi to the deceased's house that day. He said
he met Mrs. Pennington in London but she was unwilling
to travel to Ghana to testify in this case for several
reasons, that I may talk about later. She told him she
had left her written statement with the Ghana High
Commission in London so he should pick it and bring it
to the court in Ghana and he obliged. That document
happened to be an affidavit of what she knew about this
case. It was objected to when it was sought to be
tendered but the court overruled the objection and
admitted it in evidence as exhibit E. This exhibit is,
in content, similar to exhibit 9 that the defendants had
earlier put in evidence so I consider it odd for them to
seek to reject this one.
From the record the
next witness for the plaintiffs whose evidence was taken
in Accra was Alhaji Bukari, a forensic expert with the
Ghana Police. He said in March, 1994 he was asked by one
Gregg Frazier to examine some documents to find out
whether the signatures thereon were produced by on
Emmanuel Ayeh Kumi. These were a passport, an indenture
dated 5/10/50 and a will of the deceased. After he had
completed the work, the documents were collected from
him by Gregg Frazier and that it was the applicant, that
is Frazier who told him "which of the signatures were
authentic." He tendered his report in evidence as
exhibit G. According to the witness Frazier brought the
originals of all these documents to them for the
examination. He went on to say that "a person's
signature may change as a result of something that may
happen to him, for example age, fatigue, illness and the
material on which he is writing itself ............. If
you compare signatures of say 40 years is more likely to
show greater change in the signature."
The next witness was
the wife of the late Dr. Ayeh Kumi who testified as pw7.
Her evidence concerned mainly the health situation of
her late husband especially towards the evening of his
life. The foregoing, in brief, represents the evidence
led by the plaintiffs. Before I go to the defence case,
let me consider at this state the evidence of those
persons who testified as court witnesses. The first of
these was a district registrar, called Simon Sonu,
attached to the Accra High Court. He was asked to
produce the 1989 will, but when he first took the
witness stand on 5/7/95 he said it was not available for
stated reasons. He admitted under xx that all four wills
were deposited with the court.
The next court witness
was one John Albert Owusu, a documents examiner, who was
asked to examine certain documents germane to the case,
namely the 1989 will, the passport, the original as well
as a photocopy of the 1989 will. His conclusion was that
they were all made by Dr. Ayeh Kumi and the deceased.
There was another Court witness being the court
registrar but his evidence has no bearing on a
determination of issuers at stake. Pw6 returned to take
the witness stand, not on a re-call, but as a court
witness to testify about other aspects of the case but
still in his capacity as a forensic expert. This time it
was his boss who referred certain documents to him to
examine in June, 1996. These included the will of 1989
(exhibit 21), the two copies of the 1989 will (exhibit
28 and O), and the passport (exhibit 22) and he was to
determine whether they were made by Dr. Ayeh Kumi and
his conclusion was that " all the four documents were
definitely without the slightest doubt produced by one
and the same person." But under xx the witness said
exhibit 21 could be a forgery but was positive that
exhibit 28 was a complete forgery.
From the totality of
the evidence as recounted above, the following points
stand out:
(1) the deceased
himself in his lifetime told the 1st plaintiffs attorney
that he had left his will with Dr. Kells, and from the
evidence the only will that was left with him was the
1989 will. This lady, apart from being an attorney from
the 1st plaintiff, was a competent witness in her own
right. This is borne out of the fact that by exhibit A,
she was interested in the funds at the disposal of the
deceased, so she was a person who had the right to know.
Thus her testimony that the deceased told her about who
was going to administer the funds after him was
creditworthy. Exhibit A is dated 20th August, 1991 long
after the 1989 Will had been made. It is addressed to
1st plaintiff’s attorney in her own name. The relevant
parts read: “I invited you from Germany to confirm
irrevocably that before the demise of your loving
brother, the late Hon. Kwasi Amoako Atta, I was
instructed to pay to you from his estate an amount of
$15,000,000.00 (fifteen million US dollars)……now his
estate is classified as Amoaku Atta Foundation within
the Oman Ghana Fund which I, the undersigned, is (sic)
the sole beneficiary and trustee.
We will be meeting in
Brussels shortly and you are hereby invited to sit with
us at the bank for payment of the $15……Million US
dollars……..to any account you will designate.” Her
evidence was thus important and it confirms that the
deceased had made a will in favour of Dr. Kells and from
the record the 1989 will was the only one that meets the
description.
(2) From the testimony
of pws l, 2 and 3, Dr. Ayeh Kumi was in the house of the
deceased that day having been sent for by the deceased
himself.
(3) By exhibit C dated
29/6/90 written by the deceased and addressed to Dr.
Kells, he made it clear that the other attesting witness
Mrs. Pennington as well as Dr. Kells were present in his
London home on 29/1/89, the day the 1989 will was said
to have been made and executed.
(4) There is evidence
from pw2 that the signature on the will-exhibit D-is
that of Dr. Ayeh Kumi, whose signature he was familiar
with.
(5) There is acceptable
evidence, in the absence of any serious dispute, that
the deceased signed this will. The defendants sought to
say that it was a blank letter head signed by the
deceased that the plaintiffs lay hands on to fill in the
details. I’ll talk about this when I come to consider
the defence case. But for the plaintiffs' purpose it
suffices that the signature on the will was that of the
deceased.
(6) Despite the
confusion that pw6 who also testified later as a court
witness created by his inconsistent report and evidence
there was this acceptable evidence by the other forensic
expert Mr. Owusu that both the deceased and Dr. Ayeh
Kumi signed this 1989 will.
(7) Nana Arvo Buah
(pw1) said that day he was driving Dr. Ayeh Kumi home
and they were conversing on the way. In the course of
the conversation Dr. Ayeh Kumi said he was expecting him
(pwl) to take over from the deceased but he—the
deceased—had given all power to Dr. Kells, and he went
on to show him his copy of the will made by the
deceased. He spoke about his reaction but that is not
necessary. The relevance of this testimony was that one
of the attesting witnesses told him what the will
contained and even went on to show him the copy that was
with him.
(8) Counsel for the
defendants introduced into evidence an affidavit made by
Mrs. Pennington in support of the application for
probate of this very will.
Under the rules namely,
Order 2 rule 1 and Order 6, rule 7 of the probate and
Administration Rules, 1991 (L.I 1515), such affidavits
are acceptable in support of due execution of a will.
Therefore in any subsequent proceeding in respect of
that will such an affidavit is admissible. If it is put
in by the proponent of the will, the other side can
insist on cross-examining the deponent, under order 38
rule 29 of the High Court (Civil Procedure), Rules, 1954
(L.N. 140A). But where, as in this case, it was tendered
by the other side the court is bound to give due
consideration to it, being the defendants' own exhibit.
In this exhibit, the deponent said she was present with
the deceased and Dr. Ayeh Kumi when the deceased signed
the will in the presence of both of them and the two of
them also signed in his presence. This affidavit
confirms the various pieces of evidence itemised 1-7
(supre). If the defendants really wanted to
cross-examine the deponent they should not have tendered
it themselves, an affidavit that had been sued in
previous proceedings between the parties and they had
thus become aware of what it contained. At that point in
the proceedings, I wonder why the plaintiffs' Counsel
put the estate to all those expenses in travelling to
London to receive from Mrs. Pennington the very evidence
that Counsel for the defendants had so graciously put in
evidence without any cost whatsoever. Exhibit E was also
a mere surplusagge since it is a literal recapitulation
of exhibit 9, which for its full force and effect, I
reproduce here:
"IN THE HIGH COURT OF
JUSTICE, ACCRA
IN THE MATTER OF THE
ESTATE OF DR. JOHN ACKAH BLAY MIEZAH (otherwise called
JOHN KOLORAH BLAY OR NANA ACKAH NYANZU II OR LINA
DISCA), DECEASED.
AND
IN THE MATTER OF AN
APPLICATION BY DR. JOHN ROBERT KELLS, FOR THE GRANT OF
PROBATE OF THE WILL OF THE SAID DECEASED. AFFIDAVIT OF
ATTESTING WITNESS OF DUE EXECUTION OF WILL.”
"I, MRS. EDDA ANGELINA
PENNINGTON of 7 Upper Wimpole St. London W1M 7TD, nurse,
make oath and say as follows:
1. I am the second of
the subscribing witnesses to the late will and testament
dated 29th January, 1989 of the above named Dr. John
Ackah Blay Miezah, otherwise called Kolorah Blay or Nana
Ackah Nyanzu 11 or Linna Disca deceased.
2. The said Testator
executed the said will on the day of the date thereof by
signing the name at the foot thereof, as the same now
appears thereon, in the presence of myself and of Dr.
Emmanuel Ayeh Kumi, Company Director, the other and
first subscribed witness thereto, who regrettably died
on the 7th day of October 1989.
3. At the same time
when the said Testator signed the said Will in manner
aforesaid, both the said Dr Emmanuel Ayeh Kumi (since
deceased ) and I were present at the same time, and we
thereupon attested and subscribed to the said Will in
the presence of him the said Testator.”
With the foregoing, it
was clear the plaintiffs had satisfied due execution,
albeit prima facie. With the signatures duly proved and
that the testator signed in the presence of the
witnesses and vice versa, the requirements of the law
were duly satisfied. The burden was accordingly shifted
to the defence to prove that the signature were forged,
and/or to lead rebuttal evidence to show that the
signatories did not in fact sign it. The law is that
when it is alleged that signatures to a deed are forged
the onus of proof is on the party alleging the forgery
and must be strictly discharged, see QUARM VS. YANKAH II
and 1 Other 1930) 1 W.A.C.A. 80. Also, it is the duty of
those who propound a will to remove any suspicion and to
approve affirmatively that the testator knew and
approved the contents. When this is done the onus is
thrown on those who oppose the will to prove forgery or
whatever else they rely on to displace the case made for
proving the will. See TYRELL VS. RAINTON (1894) P. 151
at p. 157 C.A. per Lindley L.J. There was the point
about the standard of proof required in forgery.
According to counsel for the plaintiffs it was proof
beyond reasonable doubt by virtue of section 13(1) of
the Evidence Decree, 1975 (N.R.C.D 323) but the view of
defence counsel and the trial court was that in civil
matters the standard of proof in all civil cases was by
preponderance of probabilities. The Supreme Court has
held that by virtue of sections 11 (4) and 12 of the
Evidence Decree the standard of proof in all civil cases
was proof by preponderance of probabilities-no
exceptions were made. His Lordships' opinion, no doubt,
was in reference to where the issue to be established
was purely civil in character, for example, like the
case before them, a declaration of title to land. That
decision did not discuss s. 13 since there was no need
for it.
Section 13(1) of the
Evidence Decree provides: "In any civil or criminal
action the burden of persuasion as to the commission by
a party of a crime which is directly in issue requires
proof beyond a reasonable doubt." This provides an
exception under s.12(1) of the Evidence Decree, which
reads: 'Except as otherwise provided by law, the burden
of persuasion requires proof by a preponderance of the
probabilities.' (The emphasis is mine.) The statute
recognizes that there are certain situations in a civil
trial where the standard of proof will have to be
upgraded to a higher pedestal than is otherwise the case
in order to cast a heavier burden on the party alleging
or imputing criminal conduct or activity to his
opponent. The rational for this requirement of proof
beyond reasonable doubt even in a civil trial is
provided in the Commentary to the Evidence Decree at
page 16 in these words: “....on a balance it is felt
that where the commission of a crime is at issue the
consequences on the reputation and life of the person
alleged to have committed the crime are so great that
the standard of proof applied in criminal actions to
protect those who are accused should equally apply in
civil actions. Let me turn to what the trial court
decided on this issued. The court referred to certain
English opinions especially that of Lord Denning LJ in
MILLER VS. MINISTER OF PENSIONS (1947) 2 ER 372 at pp
373-374 that in a civil case the court does not require
proof beyond reasonable doubt even when it is
considering a charge of a criminal nature. With respect
to the trial judge I think she erred in this, because
our legislation is completely at variance with the
English so there was no justification for reliance on
English authorities on this subject which I believe led
her into that error.
Under the legislation,
a court has to be satisfied that the particular issue or
question raised is criminal in character, especially in
relation to the act complained of; if it is, it has to
apply the criminal standard or proof under s. 13(1). So
the next obvious question is whether 'forgery' is
criminal. I do not believe it can be dispute that
forging a will is in the nature of a crime especially if
intent to defraud exists. See the case of R. V. MENSAH
(1959)G.L.R. 314 C.A. The ordinary dictionary meaning of
forgery as found in Oxford Advanced Learners dictionary
is this: 'crime or act of forging a document, picture,
signature etc.' In English law forgery is criminal and
as was decided in the very old case of R V. PARKES &
BROWN (1797), 2 LEACH 775, forgery is the false making
of a note or other instrument with intent to defraud.
The essence of forgery is that a person forges a false
document to make it appear a genuine document. See these
cases: R V. SMITH (1858), DEARS & B. 566, C.C.R; R V.
RITSON (1869), L.R. 1 C.C.R. 200. In my view forgery in
relation to somebody's will is criminal conduct, for
unless the forger intended to defraud the real
beneficiaries, there would be no point in deliberately
forging the will. Thus the issue of forgery raised in
this case ought to have been proved beyond reasonable
doubt. But even then the lower standard of proof on a
preponderance of probabilities could not be met by the
defence as found by the trial court as I shall shortly
unfold.
The defendants from
their pleadings, appeared to be blowing hot and cold.
Whilst rejecting the 1989 will, they also appear to be
admitting it, subject, however, to proof that the
persons named as being present were actually present.
This is from para. 8 of their defence whereby they
denied para 6 of the statement of claim and put the
plaintiffs to strict proof thereof. The said para. 6 of
the statement of claim reads: "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……”it goes onto list the
names. (The emphasis is mine). The defendants are
denying the plaintiffs' averment that they—the
defendants are saying the 1989 will is a forgery. If the
defendants are not claiming the 1989 will is a forgery,
then what were they fighting about? Nonetheless taking
the totality of their pleadings into account I am able
to say this was an admission made by mistake for it is
clearly inconsistent with the rest of their pleadings
and they are entitled to be heard whilst they take steps
to amend it. For by the rule in HOLLIS VS. BURTON (1892)
3 CH 226, a party who has unwarily made an admission
will be allowed to withdraw or recall it.
1. The totality of all
four defendants' case was based on these facts: that the
deceased did not make the will, the reason being that
the 1990 codicil and the 1992 nuncupative will both made
reference to the 1988 and not any other will. The other
reason is that the deceased was in the habit of signing
blank letter heads so the plaintiffs must have got hold
of one such letter head and typed the will on it.
Another reason is that the deceased, Dr. Ayeh Kumi, and
Mrs. Pennington did not meet at all that day. Yet
another reason they gave was that the deceased could not
have made a will giving all his assets to a stranger to
the total neglect of his family.
2. The signature of
Dr. Ayeh Kumi is a forgery.
3. The plaintiffs
presented another forged will dated 15/6/92, executed
after the death of Dr. Blay Miezah.
4. There were such
contradictions in the plaintiffs' case that ought to
have led the court to reject their case.
5. The trial judge was
biased against the defendants
I'll take these
seriatim. These are, to a large extent, summed up in the
evidence of the 1st defendant under xx as follows:
“Q. Were you with Blay
Miezah on 29/21/89?
A. No, I was not.
Q. Why do you,
therefore, say that the will was a forgery?
A. I was not there with
him, but it had been read to me and the circumstances
surrounding it from my knowledge of the facts I know,
convince me that it's a forgery. Certainly, Ayeh Kumi's
signature is a forgery. Secondly, to my knowledge,
during the lifetime of Dr. Ackah Blay Miezah, he had
signed letterheads on which he had signed his name and
some of his friends had copies. Because of my sight I
could not verify Ayeh Kumi's signature myself, but other
people did.
Q. Who are those
people who verifies the signature for you?
A. 3rd and 4th
defendants, who are Blay Miezah's children, they knew
Ayeh Kumi's signature. Moreover, my colleague, lawyer
Kojo Erskine had verified it and he knew the signature
of Ayeh Kumi.
Q. What are the other
circumstances, apart from knowledge of 3rd and 4th
defendants and Lawyer Erskine, that caused you to
believe that the will was forged?
A. (1) I have a view
that one of Blay Miezah’s signed letterheads must have
fallen into Dr. John Kell’s hand and must have been used
to forge the will.
(2) To my knowledge Dr.
John Kells was not a friend of Blay Miezah, apart from
my knowledge that Dr. Kells was teaching him these
Chinese exercises, so I found it very difficult that, a
shrewd businessman would have put into the 1989 will Dr.
Kells as his heir and executor.
(3) I found it very
difficult to believe that a shrewd man like Ackah Blay
Miezah would leave all his estate to Dr. John Kells to
the exclusion of his own brother, Kwesi Whajah and even
his own children. I cannot believe that Blay Miezah
could have said what was written in the 1989 will.
(4) I find it very
difficult that Kwesi Whajah himself could believe that
his brother left all his estate to John Kells, an
Irishman.
Q. So on the basis of
these views you concluded that exhibit 21 was a forgery?
A. Yes.”
Earlier on I quote para
14 of the defendants’ statement of defence whereby they
averred that the deceased did not make this will because
he made no reference to it in his codicil of 1990 and
nuncupative will of 1992. The defence position on this
is summed up in the words of the 2nd defendant Kaku
Mensah when in his evidence-in-chief he said: “since
there was a codicil mentioning the 1988 will, the same
person could not have written a will of this nature.” I
don’t think I need waste time on this sort of reasoning
of argument, for it is simply ‘non sequitur’. The fact
that no mention was made in the codicil and nuncupative
will to the 1989 will did not mean it did not exist. The
reason why it was not mentioned in these other
documents, if at all they exist, was known to only the
deceased. Nobody is entitled to conjecture or speculate
reasons why he did that. And whatever might have been
the reasons, the important consideration is that it has
nothing to do with the existence or validity of the 1989
will.
Next, it was said the
deceased was in the habit of signing blank letter beads,
one of which the plaintiffs might have laid hands on and
typed in the will. The fact that the deceased signed
blank letter heads is not sufficient reason to conclude
that the l989 will was a forgery. If such a conclusion
is accepted the same reason could be assigned for every
document on which the deceased's signature appears. It
must be established positively that in fact the paper on
which the will was typed was a blank sheet previously
signed by the deceased that the plaintiffs laid hands on
to type in the will. That will be the best and only
acceptable evidence in the circumstances where the
burden of persuasion on the issue of forgery rests with
the defence. They do not prove it by speculation as to
what the plaintiffs might have possibly done, but what
they did as a matter of fact or at least on a balance of
probabilities. There is no evidence any of the
plaintiffs or their agents ever got hold of any such
blank but signed letter head, or that anybody saw or
even heard that any of the plaintiffs had caused this
will to be made. I think it's based on mere suspicion
which is not sufficient to prove forgery. The point
raised totally fails. The only probative value of this
point is that it confirms the defence do not reject the
signature on it to be that of the deceased, they only
deny that he signed it as a will.
The next point raised
was that the deceased would never have given his wealth
to a stranger to the total exclusion of his family. Let
me refer to what the 2nd defendant said on this : "I
have with me a copy of the 1989 will. Knowing my cousin
very well and the confidence he had in me. Knowing him,
he could not have left everything he had to a Whiteman."
And under xx he was asked; "You came to the conclusion
that Exhibit 21 was forged because you thought that by
Exhibit 21, Blay Miezah had given all his worldly
possessions to a whiteman." And his answer was this: "I
said I knew my cousin very well and he could not made
such a will for a whiteman." From the record the
deceased knew Dr. Kells very well. But even if he did
not know him, was it a sufficient reason to conclude
that the will was a forgery? Certainly not. If a
testator gives away all his property to a total
stranger, it may only arouse suspicion, but if due
execution in accordance with law is proved, and that the
testator was of sound mind and executed it freely, the
court will have to give effect to his wishes regardless
of who the beneficiaries are. If any person believes he
is entitled to be catered for by the testator but was
left out, the law permits such a person to go to court,
not to have the will declared void but, for a share of
the inheritance. In effect the court is not interested
in the reasons why a testator made particular devices
the way he did, nor is a testator bound to assign
reasons for making any devices in his will. Some people
give the reasons but as I have just said it is not
obligatory, not being a requirement of the law. In the
case of IN RE AYAYEE (DECD); KUKUBOR and ANOTHER VS.
AYAYEE (1982-83) PT II GLR 866, the High Court presided
over by Cecilia Koranteng-Addow J. relying on the
English case of BANS VS. GOODFELLOW (1879) L.R. 5 Q.B.
549 said : "A testator has an unfettered discretion to
dispose of his property as he chooses. The discretion
may sometimes be influenced by passion, caprice, the
power of new association or ties, or sinister influence
to the extent of excluding persons whom the law imposes
legal obligations on the testator to make provision for.
There are occasions too when the instinct and affections
and sentiments of mankind may safely lead one to make
better disposition on one's estate than a distribution
obtained through the stereotyped rules of a general law
.........”I hold this is no good reason for declaring a
will a forgery.
A point forcefully
canvassed against the execution of this will was that on
29/1/89 when the will was said to have been made and
executed, these persons namely, Dr. Kells, Dr. Ayeh
Kumi, Mrs. Pennington and Nana Arvo Buah did not come to
the deceased's house in London at all, and so could not
have signed or witnessed the will. This was the evidence
of James Kaku as well as Chang Han Kim and Peter Rigby
and it is not in dispute that all three of them were in
the house at one time or the other that day. It is also
not in dispute that Rice and Shenton both of who
testified for the plaintiffs were also in the house that
day. So either group of persons must certainly be lying
to the court. The man at the centre of all this
controversy, Dr. Ackah Blay Miezah, however, provides a
clear clue as to which group was lying. In his lifetime
the deceased wrote a letter dated 29th June, 1990 to Dr.
Kells and this was put in evidence as exhibit C which I
quote in extensor. It reads: "RE: RELEASE OF SEALLS AND
DOCUMENT”.
About two months ago I
instructed you to release the seals to Mr. Njoroge for
submission to the Swiss Bank Corporation. Information
reaching me indicates that you have not done so.
In my capacity as the
sole beneficiary and trustee of the Oman Ghana Fund, I
instruct you to release the said seals to Mr. Ngethe
Njoroge so that he can hand deliver them to the bank
without further day.
You will remember that
I asked you to let me have the serial numbers of the
letters of credits which you have so that I can work on
them. That is letters of credits for eight million four
hundred thousand United States dollars (US $8.4 million)
for Cocoa Marketing Company and seventeen million United
States dollars (US $17 million) for Timber Marketing
Board, Ghana, both originating from the Butterfield Bank
of Bermuda. Please specifically identify them and give
them to Mr. Ngethe Njoroge without further delay.
Also release the sealed
enveloped I gave you on 29th January, 1989 at 4 p.m. in
the presence of Mr. James Y. Kaku and Miss Pennington to
Mr. Ngethe Njoroge intact so that he can submit the same
to the Swiss Bank Corporation. As you know I owe my
people around the world billions of United States
dollars so please do not delay any more.
"ENSURE THAT YOU WILL
BE AT YOUR OFFICE AT 12 NOON ON SATURDAY 30TH JUNE
1990 TO RECEIVE MR. NGETHE NJOROGE." (The emphasis is
mine)
This was the same James
Kaku who told the court Dr. Kells and Mrs. Pennington
never came to the house that day. This same witness said
they, that is he and the deceased, remained at home that
day prior to their departure to Ghana and he fed the
deceased with both breakfast and lunch at home. Where
then did the deceased give the sealed envelope to Dr.
Kells in the presence of he James Kaku and Mrs.
Pennington? Certainly it was in the deceased's house
since he did not go out apart from leaving for the
airport that evening. This exhibit clearly confirms the
plaintiffs version and portrays the others as
untruthful. The trial court was thus justified in
rejecting the defence and concluding that all these
persons were there with the deceased that day. This
exhibit also confirms the rather close relationship that
existed between the deceased and Dr. Kells. In the end
of the defence failed to satisfy the court that the
deceased did not sign the 1989 will exhibit 21.
The next line of attack
is the signature of Ayeh Kumi, which was waged from two
fronts, namely (a) that he did not go to the deceased's
house at all the day; (b) the signature on the exhibit
21 that purports to be his was not signed by him or was
not his true signature. I'll take them in that order. I
have already referred to the evidence of pwl that he
brought Dr. Ayeh kumi to the deceased's house that day
in the company of Rice. The person he called Rice was
identified by both Rice and Shenton (pw2) to be actually
Shenton. Pw2 testified that it was the decease who sent
him to go and fetch Dr. Ayeh Kumi and whilst he was in
Ayeh Kumi's house pwl came there and pick them in his
car to the deceased's house. As to the description of
himself (pw2) as Rice by pwl, Shenton (pw2) explained it
under cross-examination, and I'll quote extract from it:
Q. Nana Buah had told
this court that when he left his house for Ayeh Kumi's
house to pick him the person he found was Rice.
A. Nana Buah must have
made a mistake as he did when he met me at the airport
on 1/7/95 and called me Rice.
Q. This is what Buah
said in xx, 'I drove from my house to Ayeh Kumi's house.
Mr. Rice is a security officer.' Is this statement
incorrect?
A. The statement is
correct apart from the name.....................
Q. Are you telling
this court that Nana Buah has mistaken you for Rice?
A. Yes
...............................
Q. How does Mr. Buah
address you?
A. Sometimes Rice,
sometimes Shenton, sometimes Tom.
Q. How does he address
Rice?
A. The other way
around.
Q. When he calls you
Rice what do you say?
A. If Rice is around
I say that's Rice, I am Tom.
Mr. Rice himself has
confirmed that it was pw2 who together with pwl brought
Dr. Ayeh Kumi. The trial court found the explanation
satisfactory, and I have no reason to discredit the
finding on this. Pwl himself was not made to identify
who the Mr. Rice he was talking about was. If he
identified the Mr. Rice with pw3 or somebody else than
pw2, then it would been a different situation
altogether. It is not dispute that both pws2 and 3 were
in the house that day, and there is no evidence from
which to conclude they were colluding with Dr. Kells or
any other person in this matter. The evidence of pws
1,2, and 3, coupled with the untruthful evidence given
by James Kaku, Kim, and Rigby concerning the presence in
the house that day of Dr. Kells, Mrs. Pennington, pwl
and Dr. Ayeh Kumi, show clearly that the plaintiff’s
story was acceptable on a preponderance of
probabilities. The trial court was right in finding that
Dr. Ayeh Kumi was brought to the house of the deceased
that day 29/1/98.
The other point raised
was the signature of Ayeh Kumi. I have already referred
to the plaintiff account on this. The 1st defendant said
because of his eyesight he was unable to identify the
signature. But he gave reasons, which I have quoted
above when I was summing up the defendants' reasons for
alleging the 1989 will was a forgery. That made him
conclude it was not the signature of Ayeh Kumi that
appears on exhibit 21. We know that it is not the 1st
defendant's own signature that is in question, which he
could easily have rejected without even seeing it if
indeed he did not sign by such document, but we are
dealing with a document which, through nobody's fault,
he is unable to inspect with the eyes, and is thus not
in a position to give his own personal opinion about it.
Those that he mentioned as having given him the
information that the signature was forged are alive to
tell their story. His testimony is not helpful in
deciding whether or not the signature in question was a
forgery.
On this same issue,
James Kaku, Chang Ham Kim and Peter Rigby sought to say
it was not Ayeh Kumi who signed it because he did not
come to the house that day. But this has been found to
be totally false. Their evidence thus in no way advances
the defence case of forgery. The other witness who said
something about this issue was Alhaji Bashiru Kwaw
Swanzy, a lawyer, who said he felt the will was a
forgery. He became aware of this will after the death of
Blay Miezah. He was asking in xx: "is that Dr. Blay
Miezah's signature on it? So why do you feel that this
was a forgery?", and his answer was:
"I knew from Dr. Blay
Miezah himself that he had made a will which was in the
United Bank of Switzerland. I knew from Dr. Blay Miezah
that this will was prepared by lawyers. I knew from him
that Dr. Ayeh Kumi was one of the people who signed that
will. I found it difficult to believe that this same Dr.
Ayeh Kumi would sign this will as he is purported to
have done. I happen to know that Blay Miezah left Ghana
on 29/1/89, so, how could he have made a will. He had
known he was going to leave for Ghana that day why wait
till that day? He is not that way."
So that his feeling was
based on the fact that the same person who signed the
earlier will would not turn around to witness this one
too. A person's feeling is not evidence as such unless
it is founded on some expert knowledge of the particular
subject about which he testified. The witness's
reasoning is unacceptable in as far as it is illogical.
For if the testator himself was able to prepare a new
will, then what prevented the earlier witness from
witnessing this one too. There is nothing illegal or
otherwise that inhibits one person in witnessing several
wills made by another person at different times. His
evidence too was not helpful in any way. That's about
all the defence could offer in proof of the allegation
of forgery. The expert evidence too concluded after
considering several factors, including the health
condition of Ayeh Kumi, that he signed exhibit 21. If
one considers that Ayeh Kumi was specifically requested
to be brought by the deceased, it gives cause to believe
that he needed him for a purpose.
The rest of the
defendants' attempt at dislodging the 1989 will, dealt
with matters that go largely to credibility. And as
decided by the Supreme Court in ANKRAH VS. ANKRAH (1966)
G.L.R. 60, holding 6, matters of credibility and what
weight to attach to such evidence are questions of fact
for the trial court and an appellate court should not
interfere except upon well settled rules. Those matters
introduced by the defence to discredit the plaintiffs
included the fact that the plaintiffs were said to have
made or engineered the making of another false will in
favour of Dr, Kells. This is the relevant averment of
the defendants: "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 be en 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.'
This will was put in
evidence as exhibit 6, by the defendants. Beside the
signature of the deceased, it was witnessed by lsaac
Buah, Whajah Kabelah, James Y. Kaku, J.K. Whajah and
Nana Asemda VI. When the 1st plaintiff’s attorney
testified, it was suggested to her during xx that
exhibit 6 was engineered by her and pwl. She denied any
knowledge about it. This woman has at all material times
acted by a power of attorney given her by Dr. Kells. She
admitted an earlier probate suit no.600/94 that was
instituted by Dr. Kells. But she denied exhibit 6 was
the subject of that action. In para 3 (c) of an
affidavit—exhibit 5—she and the 2nd plaintiff deposed to
in that suit they categorically denied ever propounding
that will dated 15/6/92, and that it was not they who
produced it in court in the said suit. The defendants
could not rebut this, the defendants led evidence as to
how exhibit 6 was executed, which in effect was the
result of a conspiracy or collusion between some leading
members of the deceased's own family. Note that all the
witnesses to exhibit 6 were related to the deceased one
way or the other by blood. There is no sufficient
evidence that Dr. Kells engineered its preparation or
was even aware of it. From the very beginning each and
every power of attorney he gave was in respect of only
the 1989 will, these powers of attorney were put in
evidence as exhibit 1,2 and 3 and in all of these he
only made reference to the 1989 will and to none other.
If there was any
wrongdoing it was committed by the deceased's own family
members for their own purposes. They held their own
meetings and took their own decisions without the
involvement of Dr. Kells. The only suspicion attaching
to him is the fact that by exhibit 6 he was made the
sole beneficiary of the deceased estate, so it could
very will be that he might have masterminded its
preparation, albeit from behind the scenes. But viewed
against the background that a good majority of the
deceased family members were in favour of the 1988 will
and even sent a delegation to Switzerland. To retrieve
it, they would also do anything to destroy the
credibility of the will held by Dr. Kells which they had
become aware of. Both reasons are purely speculative and
do not amount to proof of the question whether exhibit 6
was prepared for the benefit of Dr. Kells and with his
prior knowledge. There was not sufficient proof of any
linkage with Dr. Kells to this exhibit. The relevance of
introducing the evidence about exhibit 6 is in respect
of the credibility of the witnesses who had something to
do with it. But the purpose of which it was introduced
by the defendants failed because, as already said, there
is nothing to conclude that the 1st plaintiff was
involved in its preparation or execution. This attempt
also failed.
I now turn to the
conflicts and/or discrepancies in the presentation of
the plaintiffs' case, which I'll consider alongside
other points raised by Counsel for the defendants.
Counsel listed 21 points which he described as
"disquieting circumstances surrounding the making of
exhibits 21", with reference to the decision in IN RE
SACKITEY (deced); SACKITEY and Another VS. DZAMOJA
(1987-88) 2 G.L.R 434 C.A I'll at this stage refer to
the relevant ones of these 21 points, that is I'm
leaving out those concerning pw4, which are numbered
3,4, 5,6,9,10,15,17 and 18. I'll quote counsel's remark
or submission or point and then state my opinion on it.
1. "The variance of
the pleadings of the plaintiffs, with the evidence on
record that there were six persons present with the
testator when the will was executed. They called two
witnesses and the defence also called two of those who
according to their own pleadings were present, to rebut
their evidence." At the trial, the evidence the
plaintiffs led was to show that all those named in their
pleadings were present in the deceased's house that day
when the will was executed. It seems to be at variance
with the pleadings which portray the impression that all
of them were present at the place the actual execution
took place. In my view this does not detract from the
validity of the will if indeed it was signed by the
testator and witnessed by two persons at the same time
and by the plaintiffs were in the house so the
discrepancy does not materially affect the determination
of the issue of due execution by those named in the
will.
2. "Evidence of pw1
that he drove Dr. Ayeh Kumi to the testator's residence
was rebutted by pw2". I've dealt with this and concluded
that the explanation was satisfactory and that pwl did
not identify the Mr. Rice he mentioned with the actual
Mr. Rice.
7. "DW5, Peter Rigby
was suborned by the Plaintiffs to give evidence that he
drove Dr. Ayeh Kumi to the house that day. If indeed it
was DW5 who drove Dr. Ayeh Kumi to the house that day,
then obviously PW1 was telling a lie". The said Peter
Rigby was not a witness for the plaintiffs, so how could
counsel talk of they having suborned him? Concerning the
evidence he gave, he is a person of full age and
understanding who spoke about some events which he later
retracted. So that if anything at all it was his own
credibility which was on the line and that should, if
anything at all, go against the party who called him. Be
that as it may, his evidence could be rejected as
unsupported or even untrue when considered alongside
that of PWs 1, 2 and 3.
8. "In spite of the
positive evidence of DW5 that he did not drive Dr. Ayeh
Kumi to the testator's house on that occasion,
plaintiffs' counsel insisted that it was DW5 who drove
him to the residence that day. And how does he reconcile
this form of xx with the evidence of his own witness,
PW1 ?" There was just one noticeable, question on this
after Counsel had taken him on his own affidavit which
he had retracted. At any rate the plaintiffs and their
witnesses did not say that it was DW5 who drove Ayeh
Kumi to the house that day. So it appears the question
chipped in during the xx must have been a mistake on the
part of counsel, which should not be relied upon as
representing the plaintiffs' case. Besides, as already
pointed out, this witness had deposed to an affidavit
saying he drove Aye Kumi to the house that day, it was
later he changed that story, so it appears Counsel
should not be seriously attacked for the suggestion made
to the witness, DW3 whose Counsel erroneously describes
as DW5.
11. "The plaintiffs
deliberately kept the original of the alleged will from
the court because of erasures on it". What is the
evidence the original will was erased in parties? By
this assertion, it appears the defendants have that
original will or at least have seen it. They could thus
have tendered it or described the nature of the erasures
thereon. But even then the will, exhibit 21 was put in
evidence by the defendants. Why is their Counsel now
complaining about it? Before then the plaintiffs had, on
6/7/95, tendered this will in evidence through PW1 who
said he had earlier shown same to Lawyer Erskine.
According to the court notes it was admitted without
objection and marked as exhibit D. At that stage nobody
complained it was a duplicate, and even if it is a
duplicate, by section 166 of the Evidence Decree, 1975
(N.R.C.D. 323) it was admissible in evidence, unless a
genuine question as to its, authenticity was raised or
there were some circumstances at rendered it admission
unfair. And in such a situation, an objection must be
raised under section 6 of the Evidence Decree, failing
which the parties would be bound by the document for
whatever it was worth. I reject this allegation as mere
speculation, unproven and belated.
12. "PW6 gave evidenced
that the said will was a forgery. This is a witness
called by the plaintiffs" This Particular witness gave
evidence twice in respect of the same matter. In the
earlier capacity as plaintiffs' witness, he testified
that it was a private person who engaged them to do this
examination and they did the work according to the
available information supplied. The next time he came in
as a court witness again to testify on this same Ayeh
Kumi's signature and he said this time he had more
information to work on hence he was able to contradict
his earlier report. Both reports are available, so it
was for the court to decide which of them was more
reliable giving reasons for the preference, if it found
the witness credible and that both reports were based on
information given to the witness. I have already
referred to the evidence of the second expert whose
conclusion was in favour of the plaintiffs. It would be
unfair to rely on only the first testimony of PW6 to
conclude that Ayeh Kumi did not sign this will. In fact
that would amount to rejecting his second opinion as
well as the opinion of the second expert without any
just cause. The trial court exhaustively dealt with this
question and I am in entire agreement with the law and
references made by it. I'll only recount the salient
points here. She referred to certain works that
represent an accurate process in investigating disputed
writings. Besides the visual observation that a court
could make by itself, the principal points to consider,
as noted by the trial judge, are: "1. The amount of
writing available. 2. The similarity of subject-matter.
3. The relative dates of the disputed and standard
writing. 4. Conditions under which both questioned and
known specimens were prepared. 5. The type of writing
paper and instrument used". The learned trial Judge went
into extensive exposition of these points. The long and
short of it all was that the second opinion of the
experts was conducted in accordance with the known
principles especially the sufficiency of material to
work on.
13. "An examination of
exhibit 21 shows that there is no break in the signature
of all the documents tendered by the plaintiffs and the
defence, exhibit 21 is the only signature with break.
After the break the continuation was smooth and natural,
when Dr Aye Kumi was supposed to be suffering from
Parkinson disease and his hands were shaky. The
impression that he might have taken a medication to be
able to sign smoothly in a lifetime is preposterous".
There was the expert opinion. And it was firmly
established that he was a sick man and his hands shook
when he was writing, and one should thus not be
surprised to notice slight changes in his signature as
the expert opinion rightly concluded. It is not the case
that during that period in his life the man was not
writing or signing papers at all. If he did sign, the
fact that some changes became noticeable in his
signature did not give cause to reject it in any way. I
think the break in the signature only gave room for
suspicion but this has been satisfactorily explained by
the expert as to how it could happen. From exhibit 9 too
it was he who signed it in the presence of both the
deceased and Mrs. Pennington.
14. "Exhibit 46 ... was
the signature of Dr Blay Miezah signed on the 24th
January, 1989 and he is alleged to have signed exhibit
21…..on the 29th January, 1989, that is five days
between and yet the two signatures are miles apart". I
fail to appreciate this line of reasoning for there is
no link between these two exhibits. What is at stake is
exhibit 21 and whether the deceased signed it, which it
has been established he did sign. So that if the
signature on exhibit 20 is not his that is no business
of the plaintiffs, who do not rely on it.
15. "Exhibits 20 and 21
were both made the same day 29th January, 1989 and
signed by the testator, yet the evidence of PW1 is that
the other signatures, that is Dr. Kells and the PWI on
exhibit 20 were written in 1993 after the death of the
testator". The implication of this point is that since
they bear the same date, if one is said to have been
fully executed in 1993, then the other must also have
been executed on a date later in time to the one
appearing on the face of the document. I don't think the
court has to buy such argument. And even the type of
deductive argument should not be encouraged lest the
court's attention should be diverted from the main issue
before it which was whether exhibit 21 was made by the
deceased on 21/1/89. There is sufficient evidence the
deceased signed the 1989 will.
19. "Plaintiff's
witnesses testified that Mr. Stephens Dw7 was present in
the house that day. His evidence by the production of
this passport proved the contrary. He arrived in Ghana
on 24th December, 1988 and up to date of giving
evidence, he had not traveled outside." This man
Stephens whoever he might be, was introduced in the
evidence by counsel for the defendants when he was cross
examining Pw2. I'll quote from the xx. Counsel asked the
witness: "Q—When you came the car was going in?" the car
in question belonged to the Ghana High Commission in
London. The witness answered in the affirmative. The
next question from counsel was this " You said you
thought it was from the government. That car brought one
Mr. Stephens to the house.." and he answered, "Yes, Mr.
Stephens was also in the house." (The emphasis is mine.)
It was counsel who identified who the Mr. Stephens was,
and from the description he appeared to be somebody who
had something to do with the High Commission. And when
pw3 too said Mr. Stephens was in the house he did not
accept a suggestion the said Mr. Stephens was a
policeman. And truly dw7 was a policeman as at 29/1/89.
And there was evidence an official from the High
Commission was there that day, so how can we conclude
from the prevailing circumstances that the Stephens they
mentioned was dw7? And indeed from the encounter with
pw2 in the xx to pw3's inability to accept Stephens as a
policeman it cannot be concluded that they were talking
about dw7. I should have thought that when they
testified, if counsel knew the Mr. Stephens they
mentioned was the same as the person who later testified
as dw7 he ought to have give them the opportunity to
identify him in open court. In the absence of an
opportunity to identify who the Mr. Stephens they
mentioned was, and in the light of the evidence on
record which could point to somebody other than dw7 as
the Mr. Stephens, I do not accept that there was any
misleading or untrue statement by the plaintiffs'
witness.
19. "There is no
mention of the 1989 will in any of the codicils prepared
by the testator in 1990 and 1992. This is because on
such will existed." I think I have already disposed of
this question, so I need not repeat the reasons I gave
in rejecting it.
20. "According to pwl
and pw2 when they took Dr. Aye Kumi to his house, his
wife pw7 told them that the testator had phoned and
wanted pwl to call him back. Yet when pw7 gave evidence,
she was not asked to corroboration this piece of
evidence." Unless a statute requires it, 'corroboration
is not a general requirement of law in the absence of
which the decision of the trial of fact will usually be
reversed', see page 5 of the Commentary on the Evidence
Decree. The court is allowed to act on the testimony of
a single witness only so long as he is a credible
witness who testifies from personal knowledge. The point
raised by counsel, if valid, would mean that a party
would lose a particular issue if there is no
corroboration from another witness who it is believed
knows something about that particular issue. That
certainly is not the law. If there is a witness who
could give evidence in support but does not do so, the
triel of fact would have to consider whether sufficient
evidence has been adduced in support of that issue. That
approach is among the best criteria for deciding
questions of fact. Even in criminal trials where the
prosecution assumes a greater burden of proof, that is
proof beyond reasonable doubt, failure to put across the
case to all witness called who know something about the
particular point will not be fatal, so long as there is
other sufficient evidence in proof of the charge. In
this case it was for the trial court to decide whether
the failure of pw7 to talk about these matters disabled
the plaintiffs from proving their case. It appears the
trial court did not even give very serious thought to
this omission, meaning the decision was uninfluenced by
the go with counsel for the defendants on the
"disquieting circumstance" he listed. In my opinion
therefore, this will of 1989 was sufficiently proved as
valid in law without the oral testimony of pw4 taken in
London. But a very serious issue was raised with regard
to the trial Judge's impartiality or bias in this
matter. I'll consider that at this stage.
I must state at the
onset that this point did not arise at the trial, it was
inferred from the proceedings at the trial, hence it was
first raised only when the 1st defendants grounds of
appeal were being formulate. This is contained in Ground
7 of the grounds of appeal as follows:— THE BIAS OF THE
TRIAL LEARNED JUDGES IS GLEANED THROUGH THE WHOLE
JUDGMENT, SHE IS AT, PAINS TO DEFEND THE PLAINTIFFS'
POSITION EVEN WHEN IT IS UNTENABLE. THE GROUNDS OF BIAS
WILL BE INCORPORATED IN THE ADDITIONAL GROUNDS OF APPEAL
ON RECEIPT OF THE RECORD OF APPEAL. SUFFICE TO SAY THAT
THE TRIAL LEARNED JUDGE'S JUSTIFICATION OF THE BREAK IN
THE SIGNATURE OF DR. AYE KUMI ON EXHIBIT 21 IS A CLEAR
EVIDENCE OF BIAS'.
However, Counsel failed
to give the grounds in the additional grounds of appeal
which he filed on 12-8-98. It was in his statement of
case that counsel addressed this issue, and I consider
it necessary to quote same at length for its full force
and effect. It reads:— "THE BIAS OF THE JUDGE Mrs.
Pennigton gave me a surprise. I had expected a buxon,
elderly lady with greying hair. She turned out to be
younger, quite attractive, intelligent and ladylike.
And, she spoke English that put her in the middle class.
Perhaps being a Catholic she attended a good Catholic
Convent. Why should the judge before seeing the witness
have expected a buxon, elderly lady with greying hair,
and where is the evidence that she attended a good
Catholic convent: How did the Judge come to that
conclusion?
Later ........... the
judge says about her; 'she both looked and sounded a
convincing witness of truth. She spoke without guile and
without embellishing her story ............. Her
evidence as the only available witness of the making of
Exhibit 21 is accepted by the court as quality evidence
as to the truth about the making of the 1989 Will’
.................... The Judge at this stage had made up
her mind to the exclusion of all other evidence on
record, for she said that ‘Mrs. Pennington left an
impression upon one that is indelible. I watched her
very closely. I watched for any hesitations as she
spoke. Her demeanour in the witness box was excellent.
She blushed twice, once during cross-examination.'
Finally, the trial learned Judge stated that Ms.
Penningtons' evidence stood 'as a gigantic mountain in
the midst of hills of varying sizes.
There are several
superlatives in her description of Ms. Pennington.
Indeed in her assessment of discrepancies in the
evidence of the witness, she always concluded by saying,
'in any event the issue is whether or not Mrs.
Pennington spoke the truth about the signing of exhibit
21 ...............This expression is scattered
throughout the judgment.
It is submitted that
the trial learned Judge was so clouded or mesmerised by
Mrs. Penningtion that nothing else mattered.
The Supreme Court has
held in Sasu & Anor. Vs. Amua Sekyi (1987-88) GLRD 30
(see the full report in (1987-88) 1 GLR 294), that a
COURT SHOULD NOT BE SEEN TO BE A PARTY TO CREATE
SUPICIOUS.....................A court should be
dispassionate but the trial learned judge seemed to have
been carried away by passion and this clouded her
assessment of the evidence before her.
Having concluded that
Mrs. Pennington was a truthful witness what she sought
to do was to justify conclusion to the exclusion of all
other relevant evidence that would negate that
conclusion."
Indeed I was at a loss
what counsel meant by all this unless he himself bore a
hidden suspicion of the judge that she would not be fair
to them. For I find it hard to believe that a Lawyer
could accuse a judge of being biased on account of the
judge's acceptance of a witness's testimony on oath as
the whole truth of the matter. If the judge is not there
to decide between conflicting evidence and decide which
one is the truth then I fail to realise what else the
judges are paid to do. A judge is not bound to use any
form of words in describing a witness of truth. And in
using words of praise for a particular person who the
judge has concluded has told the truth to the court, it
by no means makes the judge biased. I would even
encourage it as a healthy practice to encourage
potential witnesses to assist the court with the truth.
I concede, however, that it was unnecessary for the
trial judge to conjecture whether the witness might
"perhaps" have attended a Catholic convent but that per
se is not evidence of bias. The totality of counsel's
submission on this question appears to revolve on a
proper assessment of the evidence on record and what
weight to attach to it, because assuming the trial judge
considered only the evidence of Mrs. Pennington to the
exclusion of all other evidence, that in law does not
amount to bias.
Still on the issue of
bias, the 1st defendant sought, and was granted, leave
on appeal to adduce fresh evidence in support thereof.
This was prompted by two letters writing by the trial
judge to the plaintiffs herein, in response to request
for clarification of certain matters arising out of the
court's judgment. The subject-matter was a second grant
of probate made to the 1st plaintiff only. Both the
Chief Registrar of the High Court and the trial Judge
were called by the 1st defendant to give evidence before
this court. The substance of the Chief Registrar's
testimony was that two separate probates were granted by
the trial court. The first one was the direct result of
the judgment that is now on appeal; the second was the
result of an applicant made to the High Court presided
over by the same Judge. After these probates came the
letters to which I have made, reference., which the
trial judge admitted to have written. It is the
contention of the 1st defendant's counsel that the trial
judge was in communication with the plaintiffs, and was
either paid a monetary reward or was expecting such a
reward, hence the charge of bias. I am inclined to
reject outright the suggestion that the trial judge
either received a monetary reward or was expecting same,
this is purely speculative and has no foundation in fact
or law. The judge herself was in the witness stand, yet
no attempt was made to suggest anything of the sort to
her. The law is clear that where a witness is ought to
be saddled with any misconduct he/she ought to be given
the opportunity to defend that charge. And this is best
achieved if the witness is asked about it whilst he/she
is in the witness stand. It is most unjust to make such
allegations when the witness was never given the chance
through questioning to answer such very serious
allegations. Moreover the letters relied upon by the
defendants do not in any way make any reference to any
money already paid or to be paid to the witness. I do
not find any evidence of a pecuniary reward on the part
of the trial judge.
On the contents of the
letters, it is clear that the trial judge went beyond
what the practice is, which is that normally letters
that come to the court are addressed to the registrar
who invariably reacts to them, sometimes upon the
judge's directives, where necessary. It's pure
administrative act, there is nothing judicial about it.
In this case the judge chose to reply directly, albeit
through the registrar, instead of instructing the
registrar to do so. But in my view this administrative
blunder, if I am allowed to call it so, should not be
interpreted as having influenced the trial judge's
decision which is the subject of this appeal. There is
nothing to show that the trial judge was influenced in
her decision so I'll. dismiss the charge of bias raised
against her.
I turn now to the move
to London to take the evidence of Mrs. Pennington. It
all began on 24/10/95 during the evidence-in-chief of
Bernard Rice—pw3. He said on 13/10/95 he met Mrs.
Pennington. He and pw2 tried to convince her to travel
to Ghana to attend court. She refused saying she was
afraid for her life having regard to the fact that
despite all the guarantees given to the deceased before
he left London, he had dies in Ghana. Moreover, she
herself had been assaulted and threatened in her own
home by a Peter Rigby. She had left an affidavit at the
Ghana High Commission in London which she asked him to
take to the court. This affidavit was tendered as
exhibit E. The records show that after this witness was
cross-examined by counsel of the defendants, they
applied on notice on 27/10/95 requiring "the production
of Mrs. Angelina Pennington, the deponent of exhibit E
for xx at the trial." The plaintiffs applied to the
court to move to the Ghana High Commission in London to
take the evidence of the plaintiff and Mrs. Pennington.
This was opposed by the defence. The court ruled on
7/11/95 that it had the power to move to London to take
the evidence "subject to such terms as the court may
deem fit and subject to confirmation by the Chief
Justice." The matter was put off to 10/11/95 for what
appears to be the court's terms to be decided. At the
sitting of 10/1/95, counsel for the defendants, Mr.
Annancy, told the court they were not prepare to bear
any part of the costs of the trip. He also asked for a
very heavy insurance cover should the court move to
London. Those discussions were out off again to
15/11/95. At the siting totally terms for the trip were
agreed upon. Mr. Annancy had told the court that
whenever he traveled with the deceased he paid him a per
diem allowance of $2000. A lot of things were also
talked about before they settled on the figures for per
diem allowances, tickets and other related matters in
connection with the impending trip. Two days later on
17/11/95, the defendants put in an application on notice
for "an order for the safety of the defendants and their
counsel." The accompanying affidavit deposed to by Mr.
Annancy gave the reasons or grounds for the application.
Counsel for the plaintiffs, Mr. Adumoa-Bossman, deposed
to an affidavit in opposition. From the record, it is
not indicated whether this application was ruled upon.
But that is not very important because it had no
influence on the decision to travel since eventually
they left for London but without Mr. Annancy and the 1st
defendant. The indication from the record is that the
court convened in London at the Ghana High Commission on
6/12/95. Present were Mr. Adumoa-Gossman for the
plaintiffs, Mr. Erskine for the 2nd defendant, and Mr.
Blay for the 3rd and 4th defendants. The evidence of
Mrs. Pennington was taken as pw4 and was cross-examined
by the two defence lawyers present.
The defence are not
satisfied with this and in ground 1 of the additional
grounds of appeal filed on 12/8/98, it is stated that:
the learned trial judge has no jurisdiction to move the
court to London for the evidence of Mrs. Pennington to
be taken. That the proceeding in London and any or all
decisions founded thereon are of no effect in law and
void ab initio. The judgment is basically founded on the
evidence of Mrs. Pennington and if the evidence is void
the plaintiff should have been non-suited. I think the
practice of non-suit does not exist in the High Court,
see EDUFUL VS. PAINTSIL (1966) GLR 27 S.C., it only
exists in the district courts, now community tribunals,
see ALHASSAN VS. DAKORA (1989- 90) 1 GLR 197. So that
the court will have to decide the appropriate relief to
grant if the ground of appeal is upheld, but certainly
not a non-suit.
The trial court relied
largely on Order 37, rule 5 of the High Court (Civil
Procedure) Rules, 1954 (L.N. 140A), in concluding that
the court had jurisdiction to travel abroad to take
evidence. The court also considered the English case of
ST. EDMUNDSBURY AND IPSWICH DIOCESAN BOARD OF FINANCE
AND ANOTHER VS. CLARK (1973) 1 Ch 323, the facts and
holding of which are sufficiently set out on the ruling.
Order 37, r.5 provides:
'The Court or a 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 of Judge or
any officer of the Court, or any other 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 a Judge may direct.'
In the words of the
learned trial Judge, "it is obvious that the Judge has
the power to make an order of the case to be adjourned
to 'any place' be it in Ghana, Timbuktu or Iceland,
because the section does not quality the word 'any' and
'any' means 'any'—an unspecified amount or number,
'every', no matter which." In fairness to the trial
Judge, she did not rely on rule 1 of Order 37 as counsel
for the defendants submitted in his statement of case.
It was counsel for the plaintiffs who made reference to
it in his application to the court. But as counsel for
the plaintiffs rightly pointed out, rule 1 of Order 37
has been repealed by section 180 (2)(a) of the Evidence
Decree. Counsel for the defendants submitted that "Order
37 r.5 deals with examination and depositions not trial
and......... that (it) should pot be read in isolation
from Order 37 rules 6-28 ............ that the learned
Judge misconceived the scope of Order 37…..”
The rest of his
submissions relate to the consequences that flow from
what he called the void order to take evidence abroad.
Counsel for the plaintiffs supported the trial court's
decision to travel abroad to take evidence.
I think this is a very
important point to consider not only in relation to this
case, but because of the very fact that it does not
appear to have a precedent that one may look up to, and
worse still the language of the rule does not explain
the operative phrase 'at any place'. Counsel for the
defendants made submissions that I place in the
following headings:
1) that Order 37 r.5
of the High Court rules is different from Order 35, r.3
of the English rules. Whereas the former regulates only
examination and deposition, the letter deals with
proceedings at the trial so the trial court erred in
relying on the English rule;
2) the rule 5 of Order
37 should be read in conjunction with rrs 6-28 of the
said order;
3) the Chief Justice
has no power to have a judge adjourn a trial to outside
this country;
4) the adjournment of
a trial is governed by Order 36, r. 19 and it is
restricted to places within the Judicial Division to
which he is assigned;
5) it is a question of
jurisdiction which the court did not have so whatever it
did was void ab initio.
Counsel for the
plaintiffs' response to 1 and 2 supra is that the rule
''confers sweeping powers on the court of Judge
sufficient to permit moving the court to sit out side
its accustomed place of sitting;" On 3, 4 and 5 the
submission was that so long as the Chief Justice granted
the permission and got the approval of the Ministry of
Foreign Affairs and the host country Britain, there was
no long any legal hurdle. Counsel also submitted that
"the evidence of Mrs. Pennington still remains
admissible under the rule that, in civil suits, even
illegally obtained evidence is admissible in evidence."
I begin with the point
raised by counsel for plaintiffs that the court could
still use evidence illegally obtained. Reference was
made to the worlds of some prominent writers including
that of the Vinerian Professor of English law, Rupert
Cross. Briefly, I'll state what these learned writers
say on this subject. In the 3rd edition of Cross on
Evidence, at page 267, he writes that.".... if evidence
is relevant, it matters not how it was obtained,
although they recognized that the judge always has a
discretion to disallow evidence in criminal case if the
strict rules of admissibility would operate unfairly
against the accused." In the 3rd edition of Halsbury's
Laws of England, at para. 487 is stated this..” The
fact that relevant evidence has been obtained improperly
does not necessarily render such evidence inadmissble.”
Similar views are expressed by Nokes in his work an
introduction to Evidence, 4th edn., at pp 458-461. The
attitude of the courts is summed up in this dictum of
Compton, J., in the case of R. VS. LEATHAM (1861), 8 Cox
C.C 498 at p. 503: “It matters not how you get it if you
steal it when, it would be admissable in evidence.” The
law then is that illegal obtained evidence is
admissible, provided it does not involve a reference to
an inadmissible confession of guilt, and subject to the
overall exclusionary discretion enjoy by the judge at
the criminal trial.
But is the situation on
hand about obtaining evidence illegally? I think not.
It’s about the court’s jurisdiction to move beyond this
country on an adjournment to take evidence. If the court
has jurisdiction to go abroad to sit, the evidence so
obtained would not be illegal in the sense as known to
law, it would be perfectly legal evidence. A clear
distinction the has to be drawn here between illegally
obtained evidence intra vires, and evidence taken ultra
vires, whereas the form will stand, the latter will be
void ab initio. The cases cited by counsel for the
defendants are germane to this discussion. First, as Azu
Crabbe J.S.C. (as he then was) said in the case of
SHARDEY VS. ADAMTEY and SHARDEY VS. MARTEY and Another
(Consolidated) (1972) 2 GLR 380 at p. 3992 “no court can
make any effective order in any proceedings which are ab
initio a nullity in order to confer jurisdiction upon
itself….” Then in the case of BAKUMA and Others. Vs.
EKOR and Others (1972) 1 GLR 133, Sowah J.A. (as he then
was) said at p. 139 that “….if in the course of the
inquiry, the tribunal assumes more jurisdiction than is
lawful, then it exceeds its jurisdiction; there has
been, so to speak, ‘a usurpation of a jurisdiction’
which he has not got; in such a case, any pronouncements
made or order given on the premise of such usurpation
would be void and of no effect.”
Thus the issue raised
is one of jurisdiction and not illegally obtained
evidence. The first point raised was that Order 35 r. 3
of the English rules on which the case of St.
Edmundsbury, etc. vs Clark was decided is not similar to
Order 37 r. 5 of our High Court rules. I have already
quoted Order 37, r.5 of our rules. Order 35, r.3 of the
English rules provides: '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.' It is noted that this provisions
part of the general provisions relating to proceedings
at the trial. It is totally distinct from the provisions
under Order 39 of the English rules which deal with
evidence by deposition, examination or commission by
order of the court. The current Order 39 r. 1 of the
English rules is a revision of the previous Order 37,
r.5 which was couched in the same language as our Order
37, r. 5. And the present Order 35 r. 3 of the English
rules is an almost verbatim reproduction of the old
Order 36, r.34 which provided that: 'The Judge may if he
think it expedient of the interests of justice, postpone
or adjourn trial for such time, and to such place, and
upon such terms, it any, as he thinks fit.' Both the old
and new rules are placed under the heading TRIAL, and
this is an entirely different subject from Order 37 of
the old rules and Order 39 of the present English rules.
The closest provision in our rules is Order 36, r. 19
which provides, 'The Judge may, if he thinks it
expedient for the interests of justice, postpone or
adjourn a trial for such times, and to such place within
the Judicial Division to which he is assigned, and upon
such terms, if any, as he shall think fit.'
In the St. Edmundsbury
case, the court moved from London to Iken to take the
evidence of a sick witness by virtue of the clause 'and
to such place' that is contained in Order 35, r.3 (same
expressions used in our Order 36, r.19). but with all
due respect to both the trial Judge and counsel for the
plaintiffs, the St. Edmundsbury case is never an
authority for a court to adjourn a case to a place
outside the territorial boundaries of Britain to take
viva voce evidence. In the St. Edmundsbury case, Iken
was part of Britain so the court was only invoking the
phrase 'and such other place' to include a place outside
London (the usual place of sitting) but which other
place was nevertheless part of Britain. And indeed the
Judge was emphatic that he was relying on Order 35, r. 3
and not Order 39, r.l. Under Order 35, r.3, the court
could sit outside its normal place of sitting so long as
that place was within Britain. But under Order 39, r.l
the court could order evidence on deposition or
commission to be taken abroad. So the two procedures
have to be carefully distinguished. Counsel for the
plaintiffs cited the case of AMOAKO ATTA II VS. OSEI
KOFI II (NO.2) (1962) 1 GLR 384 and said in that case
the court moved from Accra to sit a Begoro. I can't find
it so, but even granting that happened, it would be akin
to the situation in the St. Edmundsbury case; the court
just moved from one town to the other both within the
territory of Ghana. It is no authority for the subject
under discussion.
Under the High Court
rules, a court can only adjourn a case to a place within
the Judicial division in which it is sited. Judicial
Division presently means a Region of Ghana. In this
connection, one must read Order 36, r.19 alongside Order
5 r. 1 (1)-(1 0) of the High Court rules as amended by
r. 1 of the High Court (Civil Procedure) (Amendment
Rules., 1977 (L.I. 1107). Under the latter legislation
the chief Justice is given power of transfer in certain
case but the power is limited to the regions in Ghana.
And by the provisions of section 104 of the Courts Act,
1993 (Act 459), the Chief Justice is given power of
transfer of case from one court of judge to another
court of judge, the case may be. But once again it is
exercisable within the limits imposed by law including
territorial restrictions. Under this power, the Chief
Justice can order a judge to sit on a case outside the
region where he normally sits. There can be no question
that the law makers did not have in mind the extension
of these rules and law outside the country.
It was argued that the
court sat at the Ghana High Commission in London with
approval of the Chief Justice, and the consent of the
Ministry of Foreign Affairs and the host country,
Britain. But it must be stated that our Embassies and
High Commission abroad are not part of the territories
of Ghanaian as defined by Articles 4(1) of the 1992
Constitution which proves: 'The sovereign State of Ghana
is a Unitary republic consisting of those territories
comprised in the regions which immediately before the
coming into force of this Constitution, existed in
Ghana, including the territorial sea and the air space.'
Thus the fact that the hearing took place at the
premises of the High Commission does not give any
validity to the act. In view of the provisions in Order
36, r.l9, Order5, r.l as amended by L.I. 1107, Act 459
and Article 4(1) of the l992 Constitution, the court's
territorial jurisdiction is limited to the regions of
Ghana and the territorial sea and air space. Therefore
anybody or authority that is given power to do any
judicial act, or perform any administrative function in
relation to a judicial act, must necessarily be limit in
scope and operation by being confined to the country's
territories as by the Constitution defined. The role
played by the Chief Justice, the Ministry of Foreign
Affairs, and the host country was purely administrative.
The court took the judicial decision, thus if the
court's decision was wrong, so would it affect the
administrative decision taken to facilitate its
implementation. So much for the third ground.
I now return too the
second ground. Under the old Order 37,r.5 (now Order 39,
r.1) of the English rules, a court could only take
evidence abroad by deposition or commission as the case
may be. The 'any place' in rule 5 of Order 37 certainly
accedes a place outside Ghana. The Supreme Court
Practice, 1967 edition Vol. 1 at page 507 state that
'at' ‘any place' includes 'the residence of a witness
who is too ill to attend (RE BRADBROOK (1889) 23
Q.B.D.226 C.A.), any where in this county or abroad.'
But there are provisions made when the evidence is to be
taken abroad. As said earlier, our Order 37, r.5 is
couched in the same language as the old English Order 37
r.5. Under that rule it was not the judge himself who
was empowered to travel abroad to take the evidence. The
judge has to take the necessary evidence and decide
whether there is the need for a party or a wtiness's
testimony to be taken abroad. Among the reasons that
will influence a court to grant a request to take
evidence abroad are that the application is made bona
fade; that the issue on which the evidence is required
is one which the court ought to try, that the witness is
likely to give material evidence; that there is good
reason why the witness cannot be examined here. Where
the court is satisfied of the need to take the evidence
abroad, it ought to make the necessary order under the
extensive rules made under orders 37 r. 6 following. In
the first place by rules 6 it could be taken on
commission by a writ issue for that purpose before a
commissioner. Next, by rule 7 it could be done by the
issue of a request to examine the witness in lieu of
commission. By rule 9 the Ghanaian Consul in any foreign
foreign country with which a convention in that behalf
has been or shall be made, may be appointed a special
examiner for the purpose of taking evidence of named
person/s. Even in those cases where special conventions
exist with particular countries, a special examiner is
appointed to take the evidence. Special forms have been
designed for each of these rules and a reading of these
forms shows a total exclusion of the judge. The moment a
judge sits, he/she is clothed with all the powers
conferred by the Constitution and the Courts Act and any
other reliant legislation, including power of committal
for contempt. If the judge is not sitting here, how will
he be able to enforce any breaches of his order or even
the court process itself. Again, it is my view that so
long as special rules have been made for evidence to be
taken abroad, the general rule in rule 5 does not apply
to empower the judge to move out of the county; it is
the specific rules made for that purpose that must
apply. The court's own power of adjourn et l contained
in Order 36, r. 19 and it must be to a place within the
Region to which he is assigned, or to another Region on
with the consent of the Chief Justice. I hold the court
had no jurisdiction to move the court to sit in London.
Accordingly the evidence of pw4 which was taken there
was a nullity ab initio.
Counsel for the 2nd
defendant/appellant, in his address, made extensive
reference to the law that a person leaves behind only
one will, but it may be found in several testamentary
instruments. No doubt this is a correct proposition of
law. Counsel's view was that the court should have taken
into account all other testamentary instruments made by
the deceased. Hence the additional ground of appeal
that 'the judgment of the court below is wrong in that
it granted probate of exhibit 21 without seeing the
testamentary instrument which to the knowledge of the
plaintiffs Blay Miezah made and deposited in Switzerland
to enable her decide if exhibits 21 is that last will
and testament of Blay Miezah.' Counsel made reference to
the fact that the plaintiffs were aware of the existence
of a will deposited in Switzerland in 1988 by the
deceased and said it was imperative for the plaintiff to
have produced that document too. The plaintiffs' said
awareness is contained in para. 2(b) of their reply to
the 2nd defendant's statement of defence in which they
averred that: 'the said Blay Miezah executed a will in
1988 which he deposited in certain banks in Switzerland,
but it is denied that he executed 2 codicils
thereto....' It is noted that the plaintiffs also
averred that all the defendants had produced a will that
they claim to be the 1989 will, but it was not
authenticated in any way. They stated that in reply to
both the defendants and 2nd defendant’s defence, see
para 3 of the reply to the 1st , 3rd and 4th defendants'
statement of defence and para 3 of the reply to the 2nd
defendants; statement of defence. It was the defendants
who introduced this will of 1988 which he deposited in
certain banks in Switzerland, but it is denied that he
executed 2 codicils thereto.....' It is noted that the
plaintiffs also averred that all the defendant had
produced a will that they claim to be the 1988 will, but
it was not authenticated in any way. It was the
defendants who introduced this will of 1988.
The plaintiffs averred
in reply that it was 'deposited in certain banks in
Switzerland' without being specific where it was, does
the law or rules of court say only a plaintiff shall
produces the testamentary document of which he is aware?
I thought whoever had access to it is obliged to produce
it. Order 6 r. 7 of the Probate and Administration
Rules, 1991 (L.I.1515) on which counsel relied has these
provisions:
1) In this rule
"testamentary scrip" means a will or draft thereof,
written instruction for a will made by or at the request
or under instructions of the testator and any document
purporting to be evidence of the contents, or to be a
copy of a will which is alleged to have been 1st or
destroyed.
2) Unless the court
otherwise directs, the plaintiff and every defendant who
has entered an appearance on a probate action must swear
an affidavit as in Form 21 in the Schedule any
testamentary script of the deceased person whose estate
is the subject of the action—(a) of which he has any
knowledge or stating that he knows of no such script, as
the case may be; and (b)if any such script is not in his
possession he does not know under whose control is,
stating that he does not know the name or address of
that person.
3) Any such script in
the possession or under the control of the deponent
shall be annexed to his affidavit
4) An affidavit
required by this rule (together with any testamentary
script annexed thereto) shall be filed within 14 days
after entry of appearance by a defendant to the
auctioneer if no defendant—enters appearance and the
court does not otherwise direct, before the action is
set down for trial.
5) Except with the
leave of the court, a party to a probate action shall
not be allowed to inspect an affidavit file under this
rule by any other party to the action or any
testamentary script annexed thereto, unless and until an
affidavit sworn by him containing information referred
to in paragraph (1) has been filed.
Counsel's submission
was this: "it is clear from the above that the Probate
and administration Rules puts the initial burden on the
plaintiff in a probate action to disclose to the court
the existence of all the documents of testamentary
character relating to the estate of the person whose
estate is the subject of the action of which he has
knowledge and produce them in court for purposes of the
action. Since by definition a will is the lad of all the
testamentary documents made by the deceased person in
existence at the time of his death and not just one, it
means that under rule 7 of Order 6 of L.I.1515, the
plaintiff in this action had a legal obligation to seek
probate not only in respect of the alleged 1989 will but
also of the 1988 will which, in paragraph 2(b) of the
reply to the 2nd defendant's statement of defence, was
acknowledge by them to be in existence in certain banks
in Switzerland, even without the two codicils whose
existence they denied. So without producing the original
1988 will of which they had knowledge or obtaining
unauthenticated copy of it and producing it she
plaintiff proceeded to propound only the 1989 alleged
will." With respect,' I think the rules I quoted above
impose an equal obligation on the defendants who were
positive about the exact location of this will and
claimed to have procured a copy thereof from the bank,
as against the plaintiff uncertainty, as borne out from
their pleadings, as to exactly in which bank in
Switzerland was lodged with. And even at the trial, the
copy they produced was not duly executed and so did not
qualify as a will within the meaning of the law. So it
appears that in this case the obligation lay on the
defendants to produce the will of 1988. The plaintiffs
did not say they had a copy of this will, nor did they
say they know precisely where it could be found.
Let me at this stage
address the response of counsel for the plaintiffs. To
being with, counsel referred to the fact that the 1989
will named Dr. Kells as the sole executor, so dodo the
1988 will appoint Dr. Ako Adjei as the sole executor of
the 1988 will. Counsel's submission was that "from these
express appointments as executor it follows that 1st
plaintiff had no locus standi for propounding the….1988
will or applying for probate thereof” just as must,
conversely, as the 1st defendant Dr. Ako Adjei had no
locus standi for propounding the 1989 will or applying
for probate thereof. All this is clearly because a
person not named as an executor of a will has no
capacity to apply for probate thereof…With respect I,
think Order 6, r.7 of L.I. 1515 does not impose on the
obligation on the executor to produce the will but on
any party to the case who has knowledge or possession
thereof. 'Party' as used here included a witness for the
party to the case. Thus whether the party is the
executor or not he is bound to disclose the extent of
his knowledge otherwise about any testamentary
instrument that he is aware, or in possession, of by
himself or his witness or even in the hands of a total
stranger. Next counsel argued that the argument by
counsel for the 2nd defendants that “the 1st plaintiff
should have propounded the 1988 will alongside the 1989
will places an unwarranted onus of proof on the 1st
plaintiff." Counsel contented that there was no need
"for the 1st plaintiff to spend time, energy and money
to recover from the Swiss bank the 1988 will which the
1989 will had expressly revoked...." I think rule 7 does
not require that party should propound every document
that appears to be a testamentary instrument that is in
his possession is aware of; the rule merely demands that
all known testamentary instruments be put before the
court, if possible, if not the fact why not should be
made known to the court. There is good reason for these
requirements, if only in satisfaction of the well
settled law that a person's will may be found in several
documents. Hence the need for the court to know about
all such documents so long as they exist, in determining
what the last wish or will of a testor was. Accordingly
I don't accept counsel's response to the points raised
by counsel for the 2nd defendant to whose submission I
now return.
I think counsel's
concern was answered when the defendant put in evidence
all three testamentary documents, namely the 1988 will,
1990 codicil and 1992 nuncupative will. These documents
were put in to show that the deceased could not have
made the 1989 will or that it did not exist, a view
concurred in by counsel for the 2nd defendant. Hence the
defence contention was that the 1988 will was valid when
viewed against the background that both the 1990 and
1992 testamentary instruments made reference to only the
1988 will but never to the 1989 will. Hence the trial
court became compelled to have regard to this averment,
the evidence led thereon and the arguments of counsel
and to decide on their validity in terms of due
execution and authenticity, in order to determine
whether they serve at least the purpose for which they
were introduced into this case. For it might be argued
that if the documents could be rejected for any valid
reason, then the court could not rely on them to impugn
the authenticity of the 1989 will. Hence a decision on
those documents or any one of them relied upon by the
dense to discredit the plaintiffs' case would create
what I earlier described as an issue estoppel into
parts. But upon a deep reflection have considered that
since the trial court decided to exclude a determination
of these other testamentary instruments from the trial
which by the order setting in motion these proceedings
was to determine the validity of the 1989 will only, any
determination on these documents would have to be
limited to whether, if in fact they exist, that fact per
se redress the existence of the 1989 will improbable or
untrue either in law or in fact. A determination on this
would surely create an estoppel and the evidenced there
on could be utilized in any future litigation, albeit,
to test the witness's credibility. A determination of
the validity or otherwise of these of there testamentary
instruments, in my view, was not necessary for a
decision on the only issue before the court. So the
condition required in the case I cited earlier in order
for an issue estoppel to arise did not materialise in
this case, as the court only had to decide whether the
existence of these other documents, if at all,
invalidated the 1989 will, and as I have already held it
did not and could not. That is the only relevance of
these exhibits to this case as borne out by para. 14 of
the defendants' statement of defence. In my conclusion,
there was sufficient evidence to justify the trial
court's conclusion that the 1989 will was valid, even
without the evidence taken in London, which, as I have
already held was not permissible under the rules of
court. But if for some reason I am faulted on the view I
hold about the court sitting in London, then the
evidence of Mrs. Pennington would be an added booster to
the plaintiffs' case for she was a person who, from all
accounts, was present with the deceased that day and
whose signature appears on the will. I will accordingly
dismiss the appeal filled by both the first and the
second defendants.
A. A. BENIN
JUSTICE OF APPEAL.
BADDOO, J.A: This is an
appeal against the judgment of Sawyerr-Williams J.
Delivered on the 20th of May, 1997 declaring that a WILL
alleged to have been made by Dr. John Ackah Miezah on
the 29th of January, 1989 is valid and entitled to be
admitted to PROBATE.
Dr. John Ackah Blay
Miezah died on the 30th of June, 1992 in Accra, leaving
a Widow married under the Ordinance and 14 children.
After his burial,
counsel for the Plaintiffs/Respondents hereinafter
called the Plaintiffs, Mr. Adumuah Bossman and counsel
for the Defendants/appellants, hereinafter called the
Defendants, Mr. Steve Annancy, acting together and
representing the Widow Mrs. Joyce Blay Miezah and head
of the family of Dr. Ackah Blay Miezah, Nana Asemda,
applied for a limited letters of Administration in order
to retrieve a WILL of Dr. Ackah Blay Miezah, said to
have been deposited in two SWISS banks, named United
Overseas Bank and United Bank of Switzerland. The
application was granted and Mrs. Joyce Blay Miezah and
Nana Asemda, represented by the two counsel, who are now
opposed to each other, obtained the letters of
Administration.
Shortly after this
grant, Mr. Bossman, this time representing Dr. John
Robert Kells, the 1st Plaintiff in this case, and Nana
Asemda, applied to the court for PROBATE to a WILL dated
29/1/1989, in respect of the Estate of the late Dr. John
Ackah Blay Miezah.
The Court refused to
grant the application, because the same court had
earlier granted an application for limited Letters of
Administration to Nana Asemda and the Widow, and that
granted had not been revoked.
Nana Asemda therefore
brought an application for the revocation of the Letters
of Administration, granted by the court, to pave the way
for the grant of Probate for the 1989 WILL. This
application was also refused. A review of the refusal
was sought by Mr. Bossman on behalf of Nana Asemda.
While this application was pending, Nana Asernda
withdrew his instructions from counsel and discontinued
the action, which was subsequently dismissed.
The defendants later
deposited in the High Court a copy of a WILL dated
8-May-1988, which they claimed, they had retrieved from
the United Overseas Bank in Switzerland and then applied
for PROBATE of the said WILL.
The 1st plaintiff filed
a caveat against this application and objected to the
grant of same.
The objection was
dismissed by the court on the 13th of June, 1994 and the
Caveator appealed to the court of appeal against the
dismissal.
Meanwhile the 1st
plaintiff acting by his Attorney Ms. Sophia Ofori Atta
had applied to the Supreme Court to have the letters of
administration granted to the defendants quashed.
The plaintiffs again
filed another application before the High court
repeating a previous application for PROBATE of the same
WILL dated 29th January, 1989, which was still pending
before the court.
The defendants also
caveated and the court ruled that to determine the
issues between the parties once and for all, the
plaintiffs should issue a Writ for a declaration as to
whether or not the purported WILL of 29th January, 1989,
said to have been made by Dr. John Ackah Blay Miezah was
genuine.
That issue, was tried
by Sawyerr Williams J, in a trial which took the court
to London for 21 days. At the end, the trial judge
concluded that the 1989 WILL of Dr. John Blay Miezah was
genuine.
Aggrieved by this
decision the Defendants have appealed to this court on
several grounds.
THE WRIT
The relief sought for
by the plaintiffs is for a declaration that the WILL
dated 29th January, 1989 of Dr. John Ackah Blay Miezah
deceased, late of Accra is valid, genuine and not
tainted by any forgery. And such further or other relief
as in the circumstances may be just.
SUMMONS FOR DIRECTIONS
Plaintiffs in their
Summons for Directions filed on 19/4/95 set down the
issues for trial as
follows:—
(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 thereon 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
plaintiff are in any event entitled to a grant of the
said 1989 WILL.
Defendants filed
additional issues to be tried, but the learned trial
judge ruled that she would deal only with the issues set
out by the plaintiffs for the time being concerning the
1989 WILL. If it is found to be valid, then it will
remain for the court to determine as between the two
Wills which is to be admitted to probate.
CASE FOR THE
PLAINTIFFS; PLEADINGS
The case for the
plaintiff set out in their statement of claim has been
pleaded specifically in paragraphs 6 and 7 of their
statement as follows:—
Paragraph 6
6 "The plaintiffs
however contend that the said 1989 WILL was made by the
said Testator at his residence at 6 Avenue Road, St.
Johns Wood, London NW8 in the presence of the following
persons namely:—
(a) The said Testator
himself
(b) The 1st plaintiff
(c) Mrs. Angelina
Pennington (The said Testator personal ...
(d) Dr. Emmanuel Ayeh
Kumi (who subsequently died in or about October, 1989 in
London)
(e) Nana Arvo Buah
(f) Mr. Kim (a Japanese
aid to the said Testator)
(g) James Yehenyiena
Kaku (nephew and personal attendant of the said
Testator).
7. Out of the 6 others
present only Dr. E. Ayeh Kumi and Mrs. Pennington were
invited in the presence of all the others to attest the
signature of the said Testator which he made in the
presence of the two said 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.
EVIDENCE FOR THE
PLAINTIFFS
Having set out the
relevant pleadings of the plaintiffs wherein the issues
have been defined, it is necessary to look at the
evidence that was actually led in court, on behalf of
the plaintiffs.
P.W.1 Nana Arvo Buah
who was said to have been present when Dr. Ackah Blay
Miezah made and signed the 1998 WILL had this to say:—
at page 101.
"I don't know what was
going on, because I had left the hall Dr. Ayeh Kumi, Dr.
Kells and Mrs. Pennington were asked to go to the Bar to
wait. At first it was Dr. Kells and Mrs. Pennington who
were asked to go to the bar, later security officers
were called to usher, Dr. Ayeh Kumi into that particular
room. Nana and I remained in the hall for a while. Later
he asked me to excuse him while he joined them. About
two and half hours later, they emerged from the bar and
joined me. I was asked by Blay Miezah If I could take
Dr. Ayeh Kumi home. He said that I should return to see
him. I dropped him. Immediately I got to Ayeh Kumi's
home, Mrs. Ayeh Kumi told me that Blay Miezah would like
to speak to me. When I got to the phone, I told him
there was heavy traffic. When I was taking Dr. Ayeh Kumi
home, there was a white man in the car. During the
conversation in the car, Dr. Ayeh Kumi said he was
expecting me to take over from Dr. Blay Miezah, but
rather he has given all powers to Dr. Kells. He then
showed me a copy of Dr. Blay Miezah's WILL. I became
furious after he had told me that I was next to him but
here we had someone next to him".
This witness therefore
did not see the Testator Dr. Ackah Blay Miezah, make or
sign any WILL on 29th January, 1989.
P.W.2 Thomas James
Heath Shenton was the next witness for the plaintiff.
His evidence at page 153. He states that the people who
visited the house of Dr. Blay Miezah on 29/1/89 were
Peter Rigby, Mr. Kim, Dr. John Kells, Mrs..Penninglton,
Dr. Ayeh Kumi and Nana Arvo Buah.
Dr. Ayeh Kumi and Nana
Arvo Buah left the house approximately 2 hours after
they came in and he drove them back.
Before he left with the
two of them, Dr. Kells and Mrs. Pennington had left the
house.
P.W.3 Terrence Bernard
Rice was a member of the Security guard. On 29/1/89, he
received the following visitors; Dr, Ayeh Kumi, Nana
Arvo Buah, Dr. John Kells, Mrs. Pennington and Mr.
Stephen at the house of Blay Miezah 60 Avenue St. John's
Woods London NW8. They all left subsequently. First to
leave were Dr. Ayeh Kumi and Nana Buah and Mr. Shenton.
Next Dr. Kells and Mrs.
Pennington left on foot.
According to this
witness, it was Kaku who ushered in Nana Arvo Buah, Dr.
Ayeh Kumi Dr. John Kells and Mrs. Pennington.
This witness also
denied that he was in the vehicle of Nana Arvo Buah pw.1
on 29/1/89 as stated by the said p.w.l. P.w.4 Mrs.
Pennington was by far the most important witness for the
plaintiffs, because she typed Exhibit 21 the WILL said
to have been made and signed by Dr. Ackah Blay Miezah on
29/1/89. At page 250 she had this to say.
"Dr. John Blay Miezah
rang Dr. 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. Dr. Kells asked me if I would be available to
accompany him in the afternoon. The 2 of us set off and
in taking the type writer I knew there was typing to be
done. The typewriter's make is BROTHER C.E. 30 made is
Taiwan. Its an electric typewriter. 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
Manservant opened the door and let us in. I knew this
personal servant KAKU, but I don't remember whether it
was Kaku or not. After we had been let in by the servant
we waited 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. 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 ante-room on the left of Dr. Blay Miezah's huge
living room. He gave me several sheets of papers which
were hand written in BLOCK capitals so I would 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 a
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 under neath 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 how he wanted to 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 Robert Kells who handed it to Blay Miezah, who
then checked it. After he checked it, he took out his
pen and signed. He then passed the paper to Dr. Ayeh
Kumi who signed with his own pen which was an old
scratching pen. I saw Ayeh Kumi signing the paper. Dr.
Blay Miezah asked me if I could witness it, so I did
with my own pen. If I saw that piece of paper I would be
able to recognise it. I have with me the paper that I
typed and which was signed Exhibit 21”.
I have set out the
evidence of these witnesses, because one of the grounds
of appeal by the appellants was that the plaintiffs
pleaded facts, but led no evidence in support of those
facts.
The trial judge in her
judgment at page 123 vol. 3 thought there was nothing
wrong if there was a divergence between pleadings and
evidence.
Said she:—
"The fact that the
plaintiff only called one of the persons out of the four
they said were present, i.e. the divergence between
pleadings and evidence does not affect the success or
failure of the basic issue which this court is to
determine; namely is the 1989 WILL genuine or forged.
For it is only collateral and is not the crucial factor
in the, determination of the genuine of forged of the
1989 WILL".
With the greatest
respect to the learned trial judge, this is not the law
as shown in several cases beginning front Dam vrs: Addo,
Seraphim vrs: Amuah Sekyi, Odoi vrs: Hammond. In BISI
VRS; TABIRI alias Asare 1987-88 GLR at page 405.
FRANCOIS J.S.C said:—
"Before examining these
matters, it is necessary to discuss briefly the DAM V:
ADDO rule to see whether its invocation in the
circumstances was justified. Basically, this rule
requires and insists upon consistency. Any divergence or
deviation of pleadings from the evidence is fatal. In
Dam vrs. Addo courts are enjoined not to substitute a
case proprio motu, nor accept a case contrary to or
inconsistent with that which the party; himself has put
forward. The rule is so strictly observed that where a
reply sets up a new case or claim which is at variance
with the case put forward, in the statement of claim, it
is likely to bring the whole edifice of a suit tumbling
down. See Odoi vrs: Hammond [1971] 1GLR 375. Its
application sealed the doom of the plaintiff in Seraphim
vrs. Amuah Sekyi [1971] 2GLR. 132 CA. where fatal
pleading arose from the promotion of contradictory roots
of title. See also a similar result in Ashong v; Cofie
West Africa Courts of appeal 11 February, 1957,
Unreported".
At page 406 of
[1987-88] 1 GLR. Bisi v. Tabiri FRANCOIS again held on
the issue of pleadings and evidence as follows:—
"It is my view that the
fruitful lesson to be learnt from these cases analysed,
and which a Supreme Court is entitled to pronounce upon,
is that inconsistency between pleadings and supporting
evidence will toll the knell of defeat".
Taylor J.S.C. also in
the same case had this to say about pleadings and
evidence:—
"When a plaintiff
departs from his pleadings and his evidence is romancing
and conflicting, his credibility is at stake. I do not
think a plaintiff succeeds by just leading any evidence
in disregard of his pleadings, particularly in this
case, where a last minute amendment did not even succeed
in reconciling the conflict. Surely the true test is
that a party's evidence to win him success in a suit
must preponderantly be more probable than that of his
opponent. If the quantum does not tip the scale in his
favour he must fall. It is not correct to decide issues
on the basis that once the evidence is acceptable the
propounder of the evidence is home and dry."
It is my considered
opinion therefore that the learned trial judge erred
seriously in law when she held that the divergence
between the plaintiffs pleading and evidence did not
affect the determination of the genuineness of the 1989
WILL.
In the pleadings the
plaintiffs claimed that p.w.l was present when Dr. Ackah
Miezah made the 1989 WIL.
But in his evidence
p.w.1 said he never saw what was going on, because he
had left the hall.
In the pleadings, Mr.
Kim was said to have been present and had seen Dr. Blay
Ackah Miezah signing the 1989 WILL.
But he gave evidence
for the defendants. He claimed that he never saw Dr.
Kells, Dr. Ayeh Kumi or Mrs. Pennington at Dr. Blay
Miezah house in London on 29/1/89.
Mrs. Pennington in her
evidence said she did not even see p.w.1 Nana Arvo Buah
but in the pleadings she and Nana Arvo Buah were said to
have been present, when the will was signed.
The 1st plaintiff who
is said to be the sole heir of Dr. Ackah Blay Miezah was
alleged in the pleadings to have been present when the
WILL of 1989 was made and signed by Blay Miezah.
But he never gave
evidence, though the court moved to London specifically
to take his evidence. 1st plaintiff is a very material
witness in this case. His absence weakens the case for
the plaintiff.
Thus, the plaintiff not
only failed to lead evidence on facts they have pleaded,
but they also contradicted the only evidence they led.
P.w.4 contradicting the evidence of p.w.1.
The courts are enjoined
not to accept a case contrary to or inconsistent with
that which the party himself has put forward. And any
divergence or deviation of pleadings from evidence must
be fatal to the party.
The inconsistencies and
conflicts in the pleadings and evidence of the
plaintiffs are so serious as to affect their
credibility.
It is my considered
opinion that plaintiffs have failed to discharge the
onus place on them, in proving that the 1989 WILL is
genuine.
EVIDENCE OF MRS.
PENNINGTON
But that is not the end
of the matter. I intend to examine the evidence of Mrs.
Pennington to demonstrate that indeed the plaintiffs
have failed to discharge the onus placed on them.
In her evidence which I
have quoted extenso, Mrs. Pennington said she did not
know that she or Dr. Ayeh Kumi was going to sign the
document as witnesses, until Dr. Blay Miezah actually
asked them to sign and they did.
But her evidence shows
that when she gave the document to Blay Miezah through
Dr. Kells, it did not contain the names and addresses of
the witnesses typed into the document and forming part
of it. Thus when the document was passed on Dr. Blay
Miezah, because she and Ayeh Kumi did not know they were
going to be witnesses, their names had not been typed on
the document.
So when were their
names typed on the document as witnesses?
The witness never told
the court how this was achieved.
This court cannot
speculate, nor is it given to any court to speculate on
the evidence.
A serious doubt is
therefore raised about the credibility of the witness,
whether indeed the document was typed at the time and
place it was said to have been typed.
This doubt is further
strengthened by the fact that Mrs. Pennington said that
the letter head on which she typed the 1989 WILL bears
inscription "OMAN GHANA TRUST FUND."
But examination of
Exhibit 21 shows that the letterhead bears the
inscription OMAN GHANA FUND.
Now Dr. Blay Miezah had
many letterheads as shown in Exhibit 17,18, 21
Exhibit 17 is written
on letterhead "OMAN GHANA TRUST HOLDING LIMITED”
Exhibit 18 is written
on letterhead OMAN GHANA TRUST FUND.
Exhibit 21 is written
on letterhead OMAN GHANA FUND.
Therefore if the
witness, Mrs. Pennington testified that she typed the
1989 WILL on a letterhead with the inscription OMAN
GHANA TRUST FUND then Exhibit 21 is not the WILL she
typed because Exhibit 21 has been typed on a letterhead
with inscription OMAN GHANA FUND.
Mrs. Pennington was
described by the trial judge in the following glowing
terms:—
"Mrs. Pennington's
evidence stands as a gigantic Mountain in the midst of
hills of varying sizes and her evidence is undoubtedly
buttressed by Exhibit c which I have shown corroborates
her evidence of her presence in the house and the fact
that Blay Miezah gave a sealed envelope to Dr. Kells in
the presence of KAKU D.W.1 and herself”.
Since she was such a
credible witness, she must be speaking the truth when
she said that she typed the 1989 WILL on a letterhead
with the inscription OMAN GHANA TRUST FUND.
This fact and her
inability to explain to the court how her name and that
of Dr. Ayeh Kumi came to be typed on the 1989 WILL at a
time when she did not know that she and Dr. Ayeh Kumi
would be called upon to sign as witnesses raise grave
doubts as to her credibility.
On the basis of her
evidence, it cannot be said that the plaintiffs have by
Preponderance of evidence discharged the burden placed
upon them to show that the 1989 WILL is genuine.
"It is trite learning
that a court of appeal will not interfere with a
decision of a trial court based upon facts and
credibility of witnesses, since the trial court has the
advantage which the court of appeal has not of seeing
and hearing the witnesses and watching their demeanour;
and that it is only in cases where it is manifestly
clear that the evidence weighs heavily against the
judgment of the court that the court of appeal will be
entitled to vary such judgment. In such a case the court
of appeal should state quite clearly the grounds which
warrant its interference with the decision of the trial
court”. Per Ollennu J.A. as he then was, in Boateng vrs:
Osei Hwere Court of Appeal, 16 December, 1968
unreported.
It is because of the
above principle that I have taken the trouble to
evaluate the evidence which the plaintiff led in support
of their claim. Not only was their pleadings divergent
from the evidence led, but the witnesses for the
plaintiffs contradicted each other on very material
issues, as I have already demonstrated.
In such circumstances
an appellate court can interfere with the decision of
the trial court.
The writ issued by the
plaintiffs was for a Declaration that the WILL dated
29th January, 1989 of Dr. John Ackah Blay Miezah
deceased late of Accra is valid and genuine and not
tainted by any forgery.
(b) Such further or
other relief as in the circumstances may be just. In the
course of her judgment, the learned trial judge said:—
"I have no choice but
to pronounce against the validity of Exhibit 28, the
1988 WILL and to declare that it is not entitled to
PROBATE".
Since the writ was
basically for a Declaration as to the validity of the
1989 WILL, the learned trial judge erred grievously when
she failed to confine her judgment to that matter.
Her orders and
pronouncements against the 1988 WILL are therefore
clearly incompetent.
CAPACITY OF PLAINTIFFS
The appellants have
also challenged the capacity of the plaintiffs to
institute this action. The 1st plaintiff was challenged
on the grounds that he is not a Ghanaian and has never
been to Ghana. His residence or address has not been
indicated anywhere on the writ and the statement of
claim, and no one knows the where about of this man, Dr.
John Robert Kells.
Under order 8 rule
2(1) of L.I. 515 the law provides as follows:—
"Where a person
entitled to a grant of letters of administration is
resident outside Ghana, the grant may be made to the
Attorney of such person for his use and benefit until he
shall obtain a grant."
It would appear
therefore that the plaintiff who is said to be the sole
executor of the Estate of Dr. Blay Ackah Miezah, could
be represented by an Attorney. In this case the 1st
plaintiff is represented by Ms. Sophia Ofori-Atta as his
lawful Attorney.
As to his racial
identity, that is of no significance, if indeed, Dr.
Ackah Blay Miezah has appointed Dr. John Robert Kells,
as heir to all his estate including the 47 billion
Dollars.
The capacity of the 2nd
plaintiff has also been challenged. It was submitted
that L.I. 1515 has set out the order of priority of
persons who could appointed to administer the Estate of
a person.
The appellants referred
to rules 6 and 7 of order 2 of L.I. 1515.
I wish to state that
rules 6 and 7 are applicable where the deceased died
Intestate and was married under the Marriage Ordinance.
In that situation the law requires that the order of
priority for grant of Letters of Administration shall be
as follows:—
(1) The surviving
spouse
(2) The surviving
children
(3) A surviving mother
or father.
In a situation where
the deceased died leaving a WILL, the person entitled
to a grant of probate or letters of administration with
the WILL annexed shall be determined in accordance with
the following order of priority:—
(a) the Executor
(b) Any residuary
legatee or devisee holding in trust for any other person
(c) The ultimate
residuary legatee or devisee where the residue is not
disposed of by the WILL.
(d) Any specific
legatee or devisee or any creditor or the personal
representative of any such person provided that
administration shall be given to a living person in
preference to the personal representative of a deceased
person who would if living be entitle in the same degree
(e) Any legatee or
devisee whether residuary or specific claiming to be
entitled on the happening of any contingency or any
person having no interest under the WILL of the deceased
who would have been entitled to a grant if the deceased
had died intestate.
The 2nd plaintiff has
not demonstrated that he fails under any of the
Categories listed in rule 5. And since the Testator was
survived by a spouse and adult children I hold that the
2nd plaintiff who is described in the statement of
claim, as the elder uterine brother of the Testator,
does not take priority over the spouse or the children
in applying for Probate or letters of administration. I
therefore hold that under L.I. 1515, the 2nd plaintiff
has no capacity to bring this action.
POWER OF ATTORNEY
The Appellants have
also challenged the Power of Attorney granted to Ms.
Sophia Ofori-Atta by the 1st plaintiff to act for him.
It was submitted that
the 1st plaintiff previously granted to Nana Arvo Buah,
pw1, on irrevocable Power of Attorney for 2 years
beginning from 5th June,1993.
Within that period, the
1st plaintiff had executed another Power of Attorney to
Ms. Sophia Ofori-Atta.
The learned trial judge
held on page 121 vol. 3 that:—
"There is no legal
restriction as to how many lawful Attorneys a party can
appoint to represent him for any particular purpose."
While this might be true to some extent, this is what
HALSBURY 4TH EDITION VOL. 1(2) Paragraph 43 has to say:—
"An instrument which
appoints more than one person to be an Attorney cannot
create an enduring Power, unless the Attorneys are
appointed to act jointly or jointly and severally".
Thus where there are
two or more Attorneys acting for a party, the Attorneys
must act jointly or jointly and severally”.
Now the question is,
were these two attorneys for the 1st plaintiff, Ms.
Sophia Ofori-Atta and Nana Arvo Buah acting jointly or
jointly and severally?
There is no evidence
before the court that these two Attorney were acting
jointly or jointly and severally, Consequently I hold
that the power of attorney granted to Ms. Sophia
Ofori-Atta is invalid.
MR. STEPHENS
One of the people,
claimed by the Plaintiffs to have been present at the
time Dr. Blay Ackah Miezah signed the 1989 WILL was Mr.
Stephens, a Police officer assigned by the Government to
Dr. Miezah as his guard.
This witness was able
to demonstrate to the court that he was not in London on
29/1/89, the day the said WILL was made. He tendered his
passport and plane ticket, which showed that he traveled
to Ghana on 24/12/88.
This is what the trial
judge said about the inability of the plaintiffs to
prove their case, vol. 3 page 142:—
"Indeed it is strange
that Mr. Stephens was admittedly assigned by the Ghana
Government to be with Blay Miezah whenever he traveled;
he was assigned to keep his passport; yet evidence was
given that on the 29th of January, 1989 Blay Miezah
traveled without a passport and he traveled without his
guard. Be that as it may, the plaintiff could not prove
Stephens presence at 60 Avenue Road that day, nor that
he traveled with Blay Miezah. In view of the ticket and
the passport tendered in evidence, the court accept his
version that he was in Accra in 29/1/89".
It is rather strange
that the plaintiff would claim that Mr. Stephen was
among those present at Blay Miezah residence that day
when according to him and indeed according to the date
on his ticket and in his passport he traveled to Ghana
on the 24th of December, 1988. Somebody was lying or had
genuinely made a mistake. It certainly was not Mr.
Stephen. The trouble emanated from the Plaintiff."
It seems to me that if
the plaintiff have made a claim that Mr. Stephen was
present at the time Dr. Blay Miezah signed the 1989 WILL
and the court has found as a matter of fact that this
claim was false, and that some body was lying or had
made a genuine mistake, and that it was not Mr.
Stephens, then the obvious and reasonable conclusion
which the court could arrive at, is that the plaintiff
have not been able to prove their case on the
preponderance of the evidence.
JAMES KAKU
James Kaku was a
witness for the appellants. But this is how p.w.2,
Thomas James Heath Shenton head of the security team who
worked for Blay Miezah and a witness for the Plaintiffs
described him:—
"Kaku was basically a
manservant. He looked after all the needs of Blay
Miezah. He cooked, went to the market and was with him
all the time unless he was in conference. He ushered
people in."
Any person who held
such a position in the house of Dr. Ackah Blay Miezah
must certainly be recognised as a very material witness
who could tell the court, what ever transpired in that
house in London on the 29th January, 1989, unless for
reasons which must be stated, the court decides not to
believe such a witness. No such reasons have been
advance by the trial judge why the evidence of this
witness should not carry weight.
Rather on page 132 vol.
3 the learned trial judge said:—
"The defendants called
three witnesses, who were present at 60 Avenue road on
the 29th January, 1989 Kaku D.W.l. KIM DW2 and Peter
Rigby D.W.3. They testified that even though they were
present in the house that day, they never saw Dr. Kells,
Mrs. Pennington or Nana Arvo Buah at 60 Avenue road, nor
did they see Blay Miezah sign any document. (They could
not call any eyewitness to rebut pw4, Mrs. Pennington).
So what they had to rely on was circumstantial evidence
which by the rule in the State vrs: Anani Fiadzo [1961]
1 GLR 461 and Ali Kessena vrs: The State [1962] 1 GLR
144, must lead to an irresistible inference of quilt."
It is not exactly clear
what the trial judge meant by saying that they could not
call eyewitnesses to rebut PW4, Mrs. Pennington.
The fact is that DW1,
DW2 and DW3 were witnesses who testified for the
defendants. Their evidence, which directly contradicted
the evidence of PW4 who testified for the plaintiffs,
was that, they never saw PW4 at the house of Blay Miezah
60 Avenue Road London, on the 29/1/89. These witnesses
testified about what they heard and what they saw.
It is not necessary in
law to call any other eyewitness to rebut PW4. The
evidence of PW4 is not a presumption which must be
rebutted. It is a matter of credibility as to which of
these witnesses is speaking the truth. It was therefore
a misdirection in law on the part of the trial judge, to
ask for eyewitnesses to rebut the evidence of PW4, Mrs.
Pennington.
In her judgment at 133
vol. 3 the learned trial judge found that Exhibit C
which was a letter written to Dr. Kells by Blay Miezah
and tendered in evidence by PW1 established that DW1,
DW2 DW3 were lying when they denied seeing Mrs.
Pennington on 29/1/89.
But Exhibit C indicated
that the people present in the house of Dr. Blay Miezah
on 21/1/89 in London were Dr. Kells, James Kaku and Mrs.
Pennington. Dr. Ayeh Kumi was never mentioned as being
present.
But it is quite obvious
that if he were present he would have been mentioned.
Therefore if Dr. Ayeh
Kumi was present as the plaintiffs claimed and yet he
was never mentioned in the letter, Exhibit 'C' cannot be
genuine. It could have been made like Exhibit 6 which
was allegedly prepared and signed by Blay Miezah when he
had been dead for some time.
The situation therefore
is that either Exhibit 'c' is genuine and therefore Dr.
Ayeh Kumi was never present in the house, or Dr. Ayeh
Kumi was present but the letter is not genuine.
If Dr. Ayeh Kumi was
not present, then he could not have signed the WILL of
1989, as the plaintiffs claimed he did.
If he was present he
would have been mentioned in Exhibit 'C'. Whichever way
the evidence is looked at, Exhibit 'C' is not a document
upon which the credibility of DW1, DW2 and DW3 could be
decided.
In my considered
opinion, it was wrong therefore for the learned trial
judge to hold that based on Exhibit 'c', DW1 DW2 and DW3
were lying.
An appeal is by way of
rehearing and an appellate court is entitled to draw an
inference from the admitted facts or evidence which is
different from that made by the trial judge.
In this case, I find
that the doubt created by Exhibit 'C' are such that the
evidence of James Kaku the manservant of Blay Miezah is
preferable. And that is, that Dr. Kells and Mrs.
Pennington were never at the London house on 29/1/89.
CASE FOR DEFENDANTS
The case for the
Defendants was that the 1989 WILL had been forged. They
claim that the plaintiffs got hold of one of the signed
letterheads of Blay Miezah and typed the body of the
WILL on that letterhead.
They were able to
demonstrate that Dr. Blay Miezah had indeed signed many
blank letterheads.
An example was Exhibit
34.
The trial judge also
found at page 152 vol. 3 as follows:—
“It is most unfortunate
that Dr. Blay Miezah left blank signed headed note
papers. This was rather irresponsible and dangerous and
has no doubt created unnecessary problems for every
body."
They were also able to
demonstrate that one of these signed blank letterheads
had been, used to prepare Exhibit 6, which has been
accepted as forged by the plaintiffs and defendants.
Indeed PW1 admitted
that Exhibit 6 was prepared after the death of Blay
Miezah. It is relevant to note that Exhibit 6, the
admitted forged WILL, is almost in exact terms as
Exhibit 21, the subject matter of this appeal
They defendants were
also able to demonstrate that Exhibit 20 which is also a
document signed by Dr. Ackah Blay Miezah, in which 50
million dollars and 25 million dollars respectively have
been given to Mr. Ako Adjei and Mr. Kojo Erskine for
their services and support rendered, was a fraudulent
document which was made on the 29th January, 1989, the
same day on which the 1989 WILL was made, and had a
similar typescript as Exhibit 21.
The learned trial judge
however found that this document was executed with the
knowledge and consent of Dr. Blay Miezah on 29/1/89. I
found that the trail judge erred on the evidence by this
holding, when PW1 Nana Arvo had admitted in
cross-examination that Exhibit 20 was a fraudulent
document prepared in November-December 1992 and made to
appear as if prepared in 1989.
The defendants also
demonstrated that the name of the Bank in the 1989 WILL
had been spelt wrongly.
The defendants further
demonstrated that the name of Blay Miezah's hometown has
been spelt Allenzura, instead of Allengenzule.
This is what the
learned trial judge said of these two serious errors at
page155 vol. 3.
"The wrong spelling of
the Bank's name and that of Allengenzule truly is
strange (that Blay Miezah would spell them wrong) but
the only way we could have found out why they were so
spelt was for the defendants to have cross-examined Mrs.
Pennington in respect of these."
It would appear from
this holding that the learned trial judge, did not
appreciate the case being put forward by the defendants.
The defendants were
saying that if Dr. Blay Miezah had made the 1989 WILL he
would not have mis-spelt the name of the Bank he had
been dealing with over the years, nor would be mis-spelt
the name of his own hometown. That the 1989 was made by
plaintiffs who could not spell the name of the Bank or
the hometown of Dr. Blay Miezah.
There was no legal
burden on the defendants to cross-examine the witness
Mrs. Pennington to find out from her why these names
have been wrongly spelt.
The trial judge
misdirected herself in law by holding that the
defendants had a duty to cross-examined Mrs. Pennington
to find out why Allengenzule had been spelt Allenzura
and why BAHNNOFSTASSE had been spelt BUNHASTRASSE.
The defendants were
asking the court to come to the conclusion that since
Blay Miezah would not have mis-spelt his own Bank and
Hometown names in the WILL if he had really made that
WILL, then that document, 1989 WILL could not have been
made by him.
I find that these
points raise very serious doubts about the genuineness
of the 1989 WILL.
The learned trial judge
then posed this question at the page 163 vol.3 "Can we
in the instant case say that the only irresistible
inference or conclusion that could be drawn from the
surrounding circumstances (the conflicts as to whether
Dr. Kells and Mrs. Pennington entered the yard with
Minicab or got out before the gate was opened by Rice,
whether Dr. Kells and Mrs. Pennington departed first or
Dr. Ayeh Kumi and Nana Arvo Buah went before they did,
whether or not it was Shenton or Rice who went with Nana
Arvo to fetch Dr. Ayeh Kumi etc.) is that Dr. Blay
Miezah never signed Exhibit 21 and it was never attested
by Dr. Ayeh Kumi and Mrs. Pennington?
There is no doubt that
there are few discrepancies in the times, events, and
movements of those who visited Dr. Blay Miezah in the
after noon of 29/1/89."
If the trial judge has
found as a fact that there were few discrepancies in the
case for the plaintiffs, then she should have held that
on the preponderance of probabilities, they have not
been able to make out a case for the court to find for
them.
A plaintiff must win on
the strength of his own case not on the weakness of the
defendants case:
See SASU VRS: AMUA
SEKYI [1987–88] 2 GLR 221.
I find from the
evidence adduced by the plaintiffs that on the
preponderance of probabilities, they have not discharged
the burden placed on them by the law to merit the court
finding for them.
JURISDICTION
The appellants have
also questioned the power of the trail court to move
from Accra, Ghana and to sit in London in the United
Kingdom. It is their case that the court had no
jurisdiction to sit in London.
This issue was raised
when it was submitted for the 1st plaintiff that his
life would be in danger, if he came to Ghana to testify
in this case. An application was therefore made on his
behalf for the court to move from Accra Ghana, to London
and take his evidence, and that of Mrs. Pennington.
The defendants
vehemently opposed the application, maintaining that
Ghana was a peaceful Ghana, where everybody was safe.
The court however ruled
that under order 37.5 of the Court rules, she had
authority to move from Accra to London to take the
evidence of the 1st plaintiff.
Accordingly the court
was moved from Ghana to London and sat at the high
commission on the 6th of December, 1995. But
surprisingly the person for whose safety the court had
moved from Ghana to London did not appear before the
court to give evidence. For the three weeks when the
court was in London the 1st plaintiff did not appear
before the court. Mrs. Pennignton however did appear and
gave evidence.
The question is did the
court have jurisdiction under order 37.5 to move outside
Ghana?
The learned trial judge
said she had jurisdiction to move to Timbuktu, or
Iceland under 0.37.5.
But let me see what
order 37.5 says:—
"The court or a judge
may in any cause or matter where it shall appear
necessary for the purpose of justice, make any order for
examination upon oath before the court or judge or any
officer of the court, or any other person and at any
place, of 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."
The learned trial judge
said in her ruling as follows:—
"I think rule 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."
It is my considered
opinion that this interpretation by the learned judge of
order 37 rule 5 is erroneous. It is trite law that the
jurisdiction of any court in any country, is limited to
the territorial boundaries of that country. That is why
we have extradition treaties, by which persons who flee
from one country can be brought back to that country,
since then court cannot move to sit in foreign lands.
There are practical
considerations which limit the jurisdiction of any court
to the territorial boundaries of its country.
One of them is that in
a foreign land, the court will not be able to exercise
its powers.
If a witness commits
perjury or contempt in facia curia in foreign land, the
court would be powerless to deal with such a person,
since it could not commit him to prison or bring him
down to Ghana for punishment or punish him in any way.
If a court has no power
or cannot enforce its orders, then it is no court. That
is what the court will be reduced to when it sits
outside Ghana. I therefore hold that order 37.5 does not
confer power on the court to sit anywhere, outside
Ghana. "Any place" should be interpreted to mean, any
place in Ghana.
The trial judge
therefore had no jurisdiction to sit outside Ghana. The
evidence obtained therefore is a nullity.
Lastly I come to the
handwriting experts. One of them supt. Alhaji Bukari
Zakubu in Exhibit G. and as PW6, testified that the
signature of Dr. Ayeh Kumi on the 1989 WILL was a
forgery.
Then as court witness
DW4 the same person testified that the signature he had
earlier declared to be a forgery was now genuine.
He explained the
apparent contradiction by stating that he was not
furnished with sufficient materials in his earlier
examination to enable him make a meaningful assessment.
Whatever it is, the
fact remains that this witness has standing in his name
two reports which are diametrically opposed. It will not
be safe to act on such discredited evidence in a case in
which Billions of Dollars are involved.
Taking all these
factors into considerations it is my considered opinion
that this appeal must succeed.
I shall therefore allow
the appeal and set aside the judgment of the High Court
dated 20th May, 1997.
S. G. BADDOO
JUSTICE OF APPEAL
COUNSEL
ADUMUA-BOSSMAN (with
him Heward-Mills and Prince Neequaye) for the
Plaintiffs/Respondents.
S. H. ANNANCY for the
1st Defendant/Appellant.
JAMES AHENKORAH for the
2nd Defendant/Appellant. |
