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J U D G M E N T
ANSAH JSC:-
Introduction and background:
This is an appeal from the
decision of the Court of Appeal
which affirmed the decision of
the trial High Court. One Joseph
Nii Narh Ashong whose estate is
the subject of controversy
between the parties herein died
on the 27th day of
July, 1989. A widow and
nineteen children survived him.
The deceased was purported to
have made a will dated 14 April
1985 and thereafter, a purported
codicil executed on 15 July
1989. In the said will and
codicil, two executors were
appointed by the testator,
namely Elisha Adjetey and Victor
Albert Otoo. They applied for
Probate but before it was
granted, Elisha Adjetey died and
Albert Otoo renounced probate.
The estate thus remaining
unadministered for a while, it
became necessary for the first
applicant, Mary Quarcoo, a
surviving widow of the testator
and a beneficiary under the Will
as well as the head of family of
the deceased to jointly apply
for Letters of Administrations
with will and codicil annexed,
to administer the estate.
The Caveat
Mrs. Victoria Welbeck and Agnes
Ashong caveated against the
grant for the reason as alleged
by the caveatrixes that the said
will and the codicil read on 11
September 1998 was a forgery and
therefore not a true and
original last will of the
deceased for the signature as it
appears on the purported will is
not similar to any of the
deceased’s specimen signatures.
Consequently, the parties joined
issues on ‘whether or not the
purported Will of the said
Joseph Nii Narh Ashong dated the
14th of April 1985
and the codicil dated 15th
July 1989, were procured by the
proponent by fraud and
consequently null and void’. The
validity of the alleged will was
thus put in issue. The alleged
will was tendered in evidence as
Exhibit M. The trial judge
having reminded himself that the
case concerned a deceased person
therefore it must be looked at
with great care, proceeded to
critically analyze or evaluate
fully the evidence on record
including the oral evidence by
the witness to the said will and
codicil as well as the expert
evidence of the court witness,
and eventually gave judgment for
proponents. The caveatrice’s
appeal was dismissed in totality
and she has hence, appealed to
this court.
The Appeal to the Supreme Court:
There are two Grounds of Appeal
before this court, namely;
a.
Both the High Court and the
Court of Appeal erred in law
when they declared the Last Will
of Joseph Nii Narh Ashong valid.
b.
The judgment was against the
weight of the evidence adduced
at the trial.
Counsel for the appellants
argued the two grounds together
by focusing on three main issues
which according to him should
tip the evidence and
consequently, the decision in
the lower courts in his favor,
namely;
1.
That the evidence of PW1 and
PW 2 are contradictory,
2.
That the trial Judge as well as
their Lordships at the Court of
Appeal did not rely on the
expert evidence of the court and
if they had done so, their
decision would have been
different from their judgment at
both courts below.
3.
That their Lordships below dwelt
on the fact that PW1 and PW2
were not cross-examined, which
he believes not to be the case
as borne by the evidence.
Legal Analysis
It is provided in the Wills Act,
1971, (Act 360) section 2 that:
(1)
No will shall be valid unless it
is in writing and signed by the
testator or by some other person
at his direction.
(2)
No signature shall be operative
to give effect to any
disposition or direction which
is underneath or which follows
it, or which is inserted after
the signature has been made.
(3)
The signature of the testator
shall be made or acknowledged by
him in the presence of two or
more witnesses present at the
same time.
(4)
A signature by some other person
at the direction of the testator
shall be made by that other
person in the presence of the
testator and two or more
witnesses present at the same
time.
(5)
The witnesses shall attest and
sign the will in the presence of
the testator, but no form of
attestation shall be necessary.
(6)
Where the testator is blind or
illiterate, a competent person
shall carefully read over and
explain to him the contents of
the will before it is executed,
and shall declare in writing
upon the will that he had so
read over and explained its
contents to the testator and
that the testator appeared
perfectly to understand it
before it was executed.
Concurrent findings of facts:
This appeal comes on the back of
two concurrent findings of the
court below.
The position of the Supreme
Court in cases which travel
beyond the High court as well as
the Court of Appeal in an
appeal, is that an appellate
court should be slow to disturb
the concurrent findings of fact
by two court below unless the
finding are so perverse and
unsupported by the evidence on
record. See Obrasiwa II v.
Otu (1996-97) SCGLR 618,
Achoro v Akanfela, [1996-97]
SCGLR 09, Obeng v Assemblies
of God Church, [2010] 32 GMJ
132 SC, Akuffo-Addo v
Cathline [1992]1 GLR 377 SC,
Fosua & Adu-Poku v Dufie
(Deceased) & Adu-Poku Mensah
(2009) SCGLR 311, Gregory v
Tandoh IV & Hanson 2010 SCGLR
971; Kusi v Kusi & B
onus 2010 SCGLR 60. The duty
of the court in these cases is
consequently, to examine the
findings of the two lower courts
below in the light of the
evidence on the records and to
establish whether the findings
are so perverse and unsupported
by the evidence on record.
The requirements for obtaining
probate are the same as those
for letters of administration
with will annexed. Therefore,
where the validity of the will
is challenged in an application
for letters of administration
with will annexed, a plaintiff
must prove the will in the same
way as he would in an
application for probate. The
onus was on the plaintiff to
prove positively that the will
was duly executed, in that it
complied with the requirements
of sections 1 and 2 of the Wills
Act, 1971 (Act 360).
“The rule enunciated by Parke B
is that in every case the onus
lies on the propounders of the
Will to satisfy the Court that
the instrument is the Last Will
of a free and capable testator,
must, however, be taken, I
think, to refer to the first
stage so to speak, of the onus,
for the onus does not
necessarily remain fixed; it
shifts. 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, there has
been due execution and that the
testator had the necessary
mental capacity and was a free
agent. Once they have satisfied
the Court, prima facie, as to
these matters, it seems to me
the burden is then cast upon
those who attack the Will and
they are required to
substantiate by evidence the
allegation they have made as to
lack of capacity, undue
influence and so forth.”
See – Johnson and others v.
Maja and others 13 WACA 290
at 292”.
In the instant case, since the
will appeared ex facie to
satisfy the formalities of due
execution, under normal
circumstances the maxim omnia
praesumuntur rite esse acta
would apply and the will would
be presumed to have been
properly executed and attested,
and probate in common form,
would be granted. However,
since the validity of the will
has been challenged, it must be
proved in solemn form by calling
a witness who was present and
saw the execution to give
evidence in proof.
The evidence of the defense
having thrown a measure of
suspicion on the proper
execution of the will, the
onus probandi lay on the
plaintiff to prove affirmatively
that Joseph Nii Narh Ashong knew
and approved of the contents of
the document and that it was
properly attested.
Validity Of The Will
The central issue in this case
is the validity of the will and
codicil which the deceased
testator executed in 1985 and
1989 respectively. The only
evidence adduced to excite the
trial court’s suspicion is the
sequence the witnesses took in
signing, to attest that they
witnessed the signature of the
testator. The case of the
Appellants is that the evidence
of PW1 and PW2 were conflicting
and contradicted each other.
PW1, Mr. James Edmund Aryee Addo
at pages 19 and 20 of the record
of appeal stated as follows:
‘the deceased told me he would
like to invite me to his house
for an important discussion. … I
went to see the deceased. The
deceased invited me to his
sitting room. I found already
seated with the deceased, one
Lawyer Addo and one Mr.
Hammond. The deceased said he
had made a will and that he
would like Mr. Hammond and I to
be witnesses to the will. I
thought of it for some time and
eventually decided to be a
witness to the will because I
had known him for years and was
a family and close friend to my
father. Mr. Hammond also agreed
to be a witness to the
deceased’s will. The deceased
got up into the bedroom and
brought out certain documents.
The deceased gave the document
to Lawyer Addo. Lawyer Addo
got the document and went
through and said it was the
deceased’s will. In order to
make sure of what I was to sign
I collected the document and
read the ‘headline’. I agreed
and signed as a witness. Mr.
Hammond also signed. The
deceased, the late Ashong, also
signed. Thereafter the deceased
went into his bedroom and
brought out a bottle of
schnapps. He opened the drink,
poured libation, and shared the
drink…”
Mr. Samuel Ashietey Hammond’s
account of the signing as a
witness is found at page 21 of
the record of Appeal and it was
as follows: “…He sent for me to
come and be a witness in respect
of a document - a will that he
had prepared. When I got there
I signed because he asked me to
sign to be a witness to the
document. When I got there I
saw Mr. Ashong (deceased),
Lawyer Addo and another Addo.
The last Addo, was PW1, who had
just given evidence. When I got
there the paper was there I
signed and Addo also signed.
Mr. Ashong signed and Mr. Addo
PW1 (signed) Lawyer Addo also
signed and I also signed the
will. After that we all
departed.”
Both witnesses gave account of
how they were called on the
15/07/89 to witness the codicil.
Section 2 (3) of the Wills Act
1971 (Act 360) states that:
3) The signature of the testator
shall be made or acknowledged by
him in the presence of two or
more witnesses present at the
same time”.
I am of the opinion that all the
two witnesses were present when
the testator signed the will.
This can be gleaned from the
evidence of both PW1 and PW2.
Therefore any inconsistencies in
relation to the sequence of the
signature of the testator and
that of the witnesses are of
negligible legal consequences,
if any at all. The relevant
provision of Act 360 that is
engaged here has not been
breached. The requirement is
that a testator signs or
acknowledges his signature in
the presence of two or more
witnesses who must also sign to
attest same. In the instant
matter the testator signed his
signature in the presence of the
two witnesses as recounted
above. There cannot be any
difficulty on the part of the
witnesses to identify the
signature of the testator as per
their evidence they saw him sign
the will. The other requirement
that both witnesses must be
present at the same time when
witnessing signature has also
not been breached.
From the evidence, both
witnesses stated that Lawyer
Addo signed the will. This is
not borne out on the face of the
will and hence it is immaterial
whether it was at the back of
the will or, or the envelope in
which the will was placed.
Clearly if Lawyer Addo signed
the will, a fact which is not
borne by the evidence, he could
not have signed as a witness as
he drafted the will as the legal
representative of the testator.
The evidence of the Respondents
thus failed to excite the
suspicion of the trial judge at
the first tribunal on the proper
execution of the will. The
onus probandi that lay on
the respondents had been
discharged to prove
affirmatively that Joseph Nii
Narh Ashong knew and approved of
the contents of the document and
that it was properly attested.
Counsel for the Appellants at
the initial trial stage in the
High Court did not succeed in
shaking the foundation of the
evidence-in-chief of the
witnesses. Counsel failed to
cross-examine PW1 and in the
case of PW2, the witness
confirmed that ‘when I got there
the paper was there. It was on
the table. He told me he wanted
me to sign so I signed.’ This
is after confirming the presence
of PW1 which is tandem with the
provision of Act 360. Clearly,
the onus on the Appellant was to
rebut the maxim omnia
praesumuntur rite esse acta,
which stood intact at the end of
the evidence of PW1 and PW2 and
therefore the will which was
presumed to have been properly
executed and attested had now
been proven solemnly as per
rules of court.
Evidence of the expert:
It is the case of Appellants
that the trial Judge as well as
their Lordships at the Court of
Appeal did not rely on the
expert evidence of the court and
if they had done so, their
decision would have been
different from their judgment at
both courts below. Our brother
S. A. Brobbey JSC, in his book,
“PRACTICE AND PROCEDURE IN
THE TRIAL COURTS AND TRIBUNALS
OF GHANA”, SECOND EDITION,
at paragraph 222 on page 103,
states:
“The important point to note is
that the issue of the competence
of an expert is one of law for
the court to decide. An equally
important point to note is that
expert evidence is only a prima
facie evidence and should not be
taken as a substitute for what
the court has to decide”.
It is a point of law that a
court witness, as in this
instant case, is an officer of
the court and therefore in as
much they are experts in the
type of evidence they give, they
do not decide the issue; the
court decides the issue.
Therefore it is up to the court
or the trial judge to apportion
the requisite weight as the case
may be to the evidence so given
by the expert. This is
supported by section 114 (1) of
the Evidence Act 1975; which
provided that:
“In any action at any time the
court in its discretion may, on
its own motion or at the request
of any party, appoint a court
expert to inquire into and
report upon any matter on which
an expert opinion or inference
would be admissible under
section 112”.
Section 112 of the Evidence Act
1975 states:
“If the subject of the testimony
is sufficiently beyond common
experience that the opinion or
inference of an expert will
assist the court or tribunal
of fact in understanding
evidence in the action or in
determining any issue, a witness
may give testimony in the form
of an opinion or inference
concerning any subject on which
the witness is qualified to give
expert testimony”.
The key word used is ‘assist’.
The hand writing expert’s
evidence can be found at page 34
of the Record of Appeal. It is
to be treated like that of any
other witness. It was held in
Osei and others v. The
Republic [1976] 2 GLR
383-393 that: ‘in jury trials a
jury was not permitted to draw
its own unaided conclusions from
a comparison of handwriting
because the guidance of an
expert was a crucial requisite.
However, when the opinion was
that of the court itself, judges
might form their own opinion on
disputed handwriting’. In the
instant case, the trial judge
had able guidance from a well
qualified writing expert but
even then, in compliance with
the legal regimen which should
be followed before expert
opinion could be endorsed, it
was only when his own
observations coincided with the
opinion of the expert that he
gave it his approbation. See
R. v. Harvey (1869) 11 Cox C.C.
546; R. v. Tilley [1961]1 W.L.R.
1309, C.C.A.; R. v. O’ Sullivan
[1969]1 W.L.R. 497, C.A.; R. v.
Smith (Thomas) (1909) 3 Cr. App.
R. 87, C.C.A.; R. v. Rickard
(1918) 13 Cr. App. R. 140,
C.C.A.; R. v. Appeal (1951) 13
W.A.C.A. 143 and State v.
Lawmann [1961] G.L.R. (Pt. II)
698, S.C. cited.
It is a point of law that a
handwriting expert is not
required to state definitely
that a particular writing was by
a particular person. His
functions were to point out
similarities or differences in
two or more specimens of
handwriting submitted to him and
leave the court to draw its own
conclusions. In other words, a
handwriting expert having
examined, deciphered and
compared the disputed writing
with any other writing, the
genuineness of which was not
dispute, was only obliged to
point out the similarities or
otherwise in the handwriting;
and it was for the court to
determine whether or not, the
writing was to be assigned to
the testator.
In the instant case, the report
was supposed merely to assist
the court in deciding the vital
issue of whether or not the
signature on the purported will
as being that of Joseph Nii Narh
Ashong, was a forgery. And the
trial judge was right in
treating the evidence of the
expert as a guide to arrive at
this conclusion. In the opinion
of the trial judge, any
insignificant variation in the
signature on the will and
codicil, was attributed to the
testator’s condition of health,
age and posture. It is for the
appellant to show that this
opinion of the trial judge is so
perverse or manifestly
unsupported by the evidence
adduced. In my opinion the
appellant failed to convince
this court that this is the
case. At the High Court the
Caveatrice, the appellant
herein, relied heavily on the
evidence of the expert witness
to establish the alleged
forgery. When that evidence
failed, they were left with no
other evidence to establish the
forgery. I am minded to incline
with the thinking of the trial
judge on the issue of weight to
be given to the expert witness
evidence.
In conclusion, the appellants
herein have not succeeded in
advancing any arguments in this
instant appeal to support their
grounds that the decisions at
the High Court as well as the
Court of Appeal are so perverse
in law or unsupported by the
evidence on record.
The circumstances under which
letters of administration with
will annexed would be granted
were where a will appointed no
executors, or where the executor
appointed in the will
predeceased the testator or
where the executor had renounced
or refused to act or where the
appointment was void for
uncertainty. In the instant
case, the will appointed
executors but the said executors
renounced probate or were unable
to act as such.
The requirements for obtaining
probate were the same as those
for letters of administration
with will annexed. Therefore,
where the validity of the will
was challenged in an application
for letters of administration
with will annexed, a plaintiff
must prove the will in the same
way as he would in an
application for probate in
solemn form. The onus was on
the propounder of the will (the
Respondent herein) to prove
positively that the will was
duly executed, in that it
complied with the requirements
of sections 1 and 2 of the Wills
Act. 1971 (Act 360). Letters of
Administration with will annexed
could therefore be granted in
favour of the plaintiff. See
Kotei (Decd.), In Re: Kotei v
Ollennu [1975] 2 G.L.G. 107;
Mackay v. Rawlinson
(1919) 35 T.L.R. 223; Barry
v. Butlin (1980) 2 Moo P.
C. 480; Tyrrell v.
Painton [1894] p.151, C.A.
and In Re: Cole
(Decd.), Cudjoe v. Cole
[1977] 2 G.L.R. 305, C.A. were
cited. It was held in the latter
case that:
(1) The will was valid because
on the facts, the formalities
required by section 9 of the
Wills Act, 1837 7 Will. 4 & 1
Vict. C 26, which was applicable
at the date of the execution of
the instant will were complied
with. The mere fact that the
testator had already signed his
name before the Reverend Father
arrived made no difference. The
testator acknowledged his
signature before the two
witnesses who in turn signed
their respective names in the
presence of the testator and in
the presence of each other both
at the same time. Section 9 of
the Wills Act, 1837, did not
require any more ritual than
these. Even if the testator was
assisted in signing his name,
that fact did not invalidate the
will because section 9 of the
1837 Act permitted him to direct
somebody to sign for him in his
presence. Section 9 clearly
stated that “no form of
attestation shall be
necessary.”If there had been no
attestation clause at all, the
two attesting witnesses gave
oral evidence to demonstrate
that the section of the Act was
complied with. It was on account
of such possible frailties in
attestation clauses capable of
generating legal confusion that
perhaps compelled the
legislators to enact that no
form of attestation clause shall
be necessary.
Ilott v Genge (1842) 3 Curt.160;
Gaze v Gaze (1843) 3 Curt, 451
and Keigwin v Keigwin (1843) 3
Curt, 607 cited. Re Colling
(Decd); Lawson v von Winckler
[1972] 3 All E.R. 729
distinguished.
The appellants offered evidence
of the defects in the execution
of the Will. The judge said he
was not satisfied that the Will
had not been executed by the
alleged testator. The Court of
Appeal also critically evaluated
the evidence to find out whether
the findings by the trial Court
were supportable. In its
opinion, the learned trial judge
made a critical analysis of the
evidence before him and
consequently affirmed his
judgment.
I have also read and critically
evaluated the evidence on record
and I am satisfied that the
findings of the two courts below
are amply supported by the
evidence. As was stated in
Bakers-Woode v. Nana Fitz
(2007 – 2008) 2 SCGLR 897, it is
then not permissible for the
Supreme Court to interfere with
the determination by the trial
judge. The appellants have not
been able to discharge their
burden in this appeal and in the
courts below and therefore the
Will of Joseph Nii Narh Ashong
who died on the 27th
day of July 1989, remains valid.
The Appeal is hereby dismissed.
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
S. O.
A. ADINYIRA (MRS.)
JUSTICE OF THE SUPREME
COURT
(SGD)
ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
J. AYIKOI OTOO ESQ. FOR THE
APPLICANTS/APPELLANTS/APPELLANTS.
CARL ADONGO ESQ. FOR THE
RESPONDENTS/RESPONDENTS
/RESPONDENTS.
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