|
JUDGMENT
DR. S. TWUM, J.S.C.
This appeal seeks to overturn
the unanimous judgment of the
Court of Appeal in this matter
dated 10th February
2000. By their judgment, their
Lordships in the Court of Appeal
dismissed an appeal which had
been lodged by the Appellants
herein against a High Court
judgment in the matter dated 17th
January 1994, which had
dismissed a contentious probate
action mounted by the Appellants
herein (then Plaintiffs) against
the present Respondents (then
Defendants.) The Appellants
before this court are some of
the older children of William
Davies Agyekum, deceased. The
Respondents were the executors
named in the paper writing which
they claimed was the last will
of the said William Davies
Agyekum.
Mr W D Agyekum was a business
man of considerable wealth. He
had some 14 or so children,
having married several women in
his life; all under customary
law.
A few years before his death Mr
Agyekum was taken ill and he
spared no effort to regain his
health. At this time he appeared
to have only one wife, Madam
Elizabeth Twene. Her children
are the youngest among the
deceased’s children. Mr Agyekum
sought treatment in Ghana,
Germany and England. He even
attended at traditional healers
in Ghana and elsewhere, all to
no avail. He was accompanied by
Madam Elizabeth Twene.
Eventually he returned to Ghana
on 21st May 1985, a
very sick man. It was the
Respondents’ case in the High
Court and of course, throughout
these appeals that the deceased
suspected the end was near and
decided to put his worldly
affairs in order. They pleaded
that the deceased asked that his
solicitor be fetched. His
solicitor was Major Brown, a
well-known solicitor of the firm
of Quist, Brown, Aidoo, Wontumi
& Co. The Respondents statement
of Defence stated that at the
deceased’s request Major Brown
took instructions from him and
prepared a will for him which
was “duly executed by him as
provided by law.” Mr Agyekum
died on 3rd
September, 1985. In due course,
his will was read at the High
Court, Accra.
When the Will was read, a number
of disappointed beneficiaries
took umbrage at its contents so
when the executors applied to
the High Court for the Will to
be proved in common form for it
to be admitted to probate, this
was opposed by a section of
deceased’s children who promptly
filed a caveat against the
grant. Ultimately, the
Appellants (as Plaintiffs)
issued a writ of Summons in the
High court, Accra, on 10th
February 1986 against the
executors, Robert Adjan Tackie
and Major Brown, claiming:-
(a)
“A declaration that the last
will and Testament of William
Davies Agyekum deceased, is
invalid and of no legal effect
and should therefore be set
aside.
(b)
An injunction to restrain the
Defs and beneficiaries and/or
their assigns, agents and
servants from interfering in
anyway whatsoever with the
properties named in the Will.”
The Respondents (then
defendants) denied the averment
that the testator’s will was
invalid and pleaded in
considerable detail how the will
came to be signed by the
testator, and who were his
attesting witnesses. They
counterclaimed against the
Plaintiffs jointly and severally
for:-
(a)
A declaration that the paper
writing dated 5th
July 1985 signed by the deceased
and witnessed by two attesting
witnesses is the deceased’s
“Last Will and Testament” and
that therefore the Defendants
are the Executors thereof.
(b)
An Order that the said Paper
Writing be admitted to Probate.
(c)
…
(d)
…
As far as it is relevant for the
purpose of this judgment the
Appellants averred in their
Reply that the purported will
was not the will of their
deceased father and that the
paper writing proffered by the
Respondents to be admitted to
probate was a forgery and should
not therefore be admitted to
probate. A large number of
issues were set down for trial
by the High Court in the
Appellant’s Summons for
Directions but in our view only
two were really germane to the
controversy:
“(g) Whether or not the
signature on the purported Will
is that of William Davies
Agyekum
“(h) Whether or not the Will
herein was executed in
accordance with the provision of
the Wills Act 1971 (Act 360)”.
Ordinarily, the facts in dispute
were really straightforward –
almost mundane but the record
was bloated by a
disproportionate amount of
pleading and evidence touching
and concerning matters clearly
irrelevant and of little
consequence to the merits of the
actual controversy between the
parties. The record was replete
with evidence that there was no
love lost between the Appellants
who claimed that their father’s
Will did not make adequate
provision for them and accused
the widow of having abandoned
her husband to his fate and yet
fighting for her children’s
benefits under the Will. She
protested vehemently, arguing
that she was a good and caring
wife to her husband and that
rather it was the Appellants who
were of bad character and had
anguished their father so that
he felt completely let down by
them. Again, two of the
Appellants, disavowed the will
because they claimed that their
father had intended to send them
abroad for further studies.
Consequently, in their Reply,
the Appellants averred that the
purported Will was not the will
of their deceased father and
that the paper writing being
propounded by the Respondents as
their father’s Will was a
forgery and should not be
admitted to probate. The
Respondents (the Executors)
countered this by tendering
their examination results in the
SSS Certificate Examinations
which showed that they failed
all their subjects abysmally.
The best result was F8. The rest
were all F9.
We have digressed a little to
make this point because quite
often all sorts of ingenious and
spurious reasons are conjured up
by litigants to contest the
validity of wills. This may
obfuscate the real issues in
controversy and waste the
court’s time, as in our opinion,
happened in this case. To his
credit, the learned High Court
judge fixed his sights firmly on
the real issues and did not
falter in one jot or title.
Where fraud is alleged, it is a
different thing, for fraud
vitiates every act or deed put
forward as supporting a
transaction or even a judgment
of a court. But where fraud is
alleged (and we may include
duress and undue influence) they
must be pleaded with the
requisite particularity. Vague
allegations of uncommon,
unusual, or even unconscionable
dispositions of his own property
by a testator, induced by logic
rather than facts properly
pleaded, should be firmly
ignored! The Courts have a duty
to sustain the disposition of a
deceased person made in a will
which prima facie, satisfies the
statutory requirements of due
preparation and execution.
In this Court only one ground of
appeal was originally given in
the Notice of Appeal.
“ The judgment of the Court of
Appeal is an error of the law”.
Subsequently, the Appellants
claimed to have filed the
following two additional
grounds:
(a)
The Court of Appeal erred when
it held that even though the
trial Judge did not give reasons
for preferring the evidence of
the Defendant’s appointed expert
examiner’s evidence it did not
affect the Judge’s decision in
respect of the alleged forgery
of the Will.”
(b)
The Court of Appeal erred when
it upheld the finding of the
High Court on due execution of
the Will”.
A little reflection will show
that additional ground (b)
encapsulates additional ground
(a).
The Appellant argued ground (a)
above by submitting that the
trial court was faced with two
conflicting opinion evidence –
given by Gasper Kweku Brenya and
John Albert Owusu, respectively.
Both testified that they were
handwriting experts. Both had
been trained under the auspices
of the Ghana Police Service.
They proffered two contradictory
opinions; Mr Owusu upholding the
signature on the Will alleged by
the Respondents to be that of
the testator as genuine and Mr
Brenya disavowing it. It was
alleged by the Appellants that
the trial High Court judge
preferred the evidence of Mr
Owusu and accepted his
conclusion and report on the
examination made by him.
They attacked the learned High
Court Judge’s judgment on the
ground that he did not assign
any reason for his preference.
In our view, that criticism is
misplaced. The learned trial
judge wrote:
“After considering the whole of
the evidence, I have come to the
conclusion and find that on
balance of probabilities that 2nd
Defendant, Dr Owusu Afriyie and
Yaw Amanfo were in the house of
the deceased on 7th
May 1985 and the Will was
executed and signed by the
witnesses as they described. I
disregard as immaterial the
minor differences in their
evidence. I consider this as
the most crucial finding.
(our emphasis.) The other issues
flow from this. It follows that
I accept the conclusion and
report on the examination made
by Mr John Albert Owusu.”
In our view what the learned
trial judge did was to find
positively on the evidence that
Major Brown, Dr Afriyie and Mr
Amanfo were in the house of the
deceased on 7th May
and that the will was executed
and signed by the witnesses as
they described. He did not rely
on the opinion of either
handwriting expert to do that.
It follows that the learned
trial judge did not rely on the
opinion of Mr Owusu to come to
this “crucial finding”. Rather
having made the finding of due
execution, he used that fact to
vindicate Mr Owusu’s opinion. In
other words, the opinion of Mr
Brenya/(P.W.7) was
irreconcilable with the positive
“crucial finding” he had made on
the strength of other evidence
on record.
The Appellants laboured under
one huge misapprehension, that
is, the moment they alleged
forgery, the matter could only
be determined by reliance on the
opinion of a handwriting expert.
This is not a requirement under
the Wills Act 1971 (Act 360) or
the Evidence Decree, 1975 (NRCD
323). This type of witness is
ordinarily employed to furnish
aids to the trier of facts by
which he is enabled, without any
personal expertise, to reach
conclusions as to the
genuineness or lack thereof of a
disputed writing. But in the
last analysis the fact-finder
has both the privilege and
function of reaching his own
conclusions as to the
genuineness of disputed
signatures or other writing with
or without the opinion evidence
of a handwriting expert. What is
crucial, is evidence which will
establish the fact of due
execution as prescribed by
section 2 (3) of the Wills Acts
1971 (Act 360). The learned High
Court Judge made that “crucial
finding.”
The Appellants sought
desperately to discredit Mr Yaw
Ofori Amanful/D.W. I, but their
attack was blown into
smithereens when he demonstrated
clearly that he was not the
person who held Passport No.
368861 and known as Y.A. Ofori.
In all modesty, it is our
opinion that Counsel for the
Appellant was unfair to this
witness. When it was clear that
he had goofed by suggesting that
D.W.I. (Yaw Ofori Amanful) was
Y.A. Ofori, the matter should
have been decently dropped
instead of Counsel harrassing
him with such irrelevant matters
as, why his passport was not
stamped by British Immigration
Officers or why he did not have
“stay” embossed on his passport.
Yes, counsel has a duty to
pursue his quarry but in our
humble opinion, there is a limit
to permissible conduct and when
Counsel misfires, the ethics of
the profession requires that he
should not use his comparative
advantage to scandalize a
witness without a shred of
credible evidence. The learned
trial judge was fully justified
on the evidence, (and as he
pointed out in his judgment) on
the balance of probabilities,
that the testator’s signature on
the will was genuine and that
the Will was duly executed. He
saw, heard and believed the
attesting witnesses. He did not
apply any wrong principles in
his determination and the Court
of Appeal were correct in
upholding his judgment.
We dismiss the appeal as
unmeritorious.
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) DR. S. TWUM
JUSTICE OF THE SUPREME COURT
(SGD) PROF. M. OCRAN
JUSTICE OF THE SUPREME COURT
(SGD) F. M. LARTEY
JUSTICE OF THE SUPREME COURT
(SGD) R. T. ANINAKWA
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. A. A. Somuah-Asamoah for the
Appellants
Mr. J. K. Agyemang for the
Respondents
gso* |
