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Wills –
Revocation - Executors – Probate
– Jurat – Validity of the two
wills - Whether or not the 1995
Will was duly executed by the
testator - Whether or not the
testator was illiterate and on
certain occasions thumb printed
his official documents - Whether
or not one’s ability to sign his
or her name did not confer
literacy on that person -
section 2 (6) - Wills Act, 1971
(Act 360).
HEADNOTES
Thomas Kobina
Bremansu executed a will and
named the defendants/
respondents/ respondents
(hereinafter “the respondents”)
as executors. Upon Bremansu’s
demise, they applied for and
obtained probate to deal with
his estate. When the respondents
attempted to take charge of one
of Bremansu’s properties in
Takoradi, it became known that
the late Bremansu had executed
another will in 1995. The
plaintiffs/ appellants/
appellants (hereinafter
“appellants”) were named the
executors of the latter will.
The appellants consequently
brought an action for “an order
that probate of the estate of
Thomas Kobina Barimansu granted
to the defendants be called in
and revoked for want of interest
and for dissipating the
estate.” The respondents
counterclaimed and sought “an
order setting aside the alleged
will of the deceased dated 22nd
day of February, 1997 on the
grounds that it is not the deed
of the deceased.” The appellants
herein do not dispute the
validity of the will executed in
1992. They simply contend that
the 1995 Will effectively
revoked the 1992 Will. On the
other hand the respondents have
claimed from the onset that the
1995 was not the deed of the
testator The trial judge entered
judgment in favour of the
respondents based on their
counterclaim. The Court of
Appeal affirmed the decision of
the High Court on appeal. The
appellants have brought the
instant appeal
HELD
STATUTES
REFERRED TO IN JUDGMENT
Wills Act,
1971 (Act 360).
High Court
(Civil Procedure) Rules, 2004,
C.I. 47
Illiterates
Protection Ordinance, Cap 262
CASES
REFERRED TO IN JUDGMENT
Obrasiwah II
v. Otu (1996-97) SCGLR 618,
Achoro v.
Akanfela (1996-97) SCGLR 209,
Koglex (No 2) v. Field, (2000)
SCGLR 175, Adu v. Ahamah
(2007-2008) SCGLR 143
Fosua &
Adu-Poku v. Dufie (Deceased) &
Adu-Poku Mensah (2009) SCGLR 311
Further in
Amon v. Bobbett (1889) 22 QBD
543
Agbosu &
Others v. Kotey & Others
(2003-2005) 1 GLR 685
Zabrama v.
Segbedzi (1991) 2 GLR 221, C.A.
Kwamin v.
Kufour (1914) 2 Ren. 808
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANSAH, J.S.C.
COUNSEL
K. D.
ASEIDU FOR THE PLAINTIFFS/
APPELLANTS/ APPELLANTS.
EBO QUARSHIE
( WITH HIM EMMANUEL BECKLEY) FOR
THE DEFENDANTS/ RESPONDENTS/
RESPONDENTS
J U D G M E N
T
ANSAH, J.S.C.
The facts of
this case are hardly
contentious. In 1992, Thomas
Kobina Bremansu executed a will
and named the
defendants/respondents/respondents
(hereinafter “the respondents”)
as executors. Upon Bremansu’s
demise, they applied for and
obtained probate to deal with
his estate. When the respondents
attempted to take charge of one
of Bremansu’s properties in
Takoradi, it became known that
the late Bremansu had executed
another will in 1995. The
plaintiffs/ appellants/
appellants (hereinafter
“appellants”) were named the
executors of the latter will.
The appellants consequently
brought an action for “an order
that probate of the estate of
Thomas Kobina Barimansu granted
to the defendants be called in
and revoked for want of interest
and for dissipating the
estate.” The respondents
counterclaimed and sought “an
order setting aside the alleged
will of the deceased dated 22nd
day of February, 1997 on the
grounds that it is not the deed
of the deceased.” The trial
judge entered judgment in favour
of the respondents based on
their counterclaim. The Court of
Appeal affirmed the decision of
the High Court on appeal. The
appellants have brought the
instant appeal on the following
grounds:
i)
That
the Court of Appeal failed to
give adequate consideration to
the Appellant’s grounds of
appeal.
ii)
That
the Court of Appeal erred in
failing to appreciate the fact
the trial court’s findings were
not borne out by the evidence –
a.
that
the Court of Appeal failed to
appreciate the fact that the
deceased who was advanced in age
could have thumb-printed the
1995 Will.
b.
that
the Court failed to appreciate
that, aside the absence of a
jurat, there were circumstances,
facts and evidence on record
that suggested that the 1995
Will was duly executed by the
testator.
c.
that
the trial court having found as
a fact that the testator was
literate, the undue emphasis on
the need for a jurat was not
necessary.
d.
that
the Court failed to appreciate
the fact that the trial judge
erred in placing undue weight on
the fact that a beneficiary of
the 1995 Will, Ama Amissah, died
before the execution of the
Will, then in fact the actual
date of death of Ama Amissah was
not conclusively established;
and that the devise does not
necessarily invalidate the 1995
Will.
e.
that
the Court failed to appreciate
that the Defendants’ whole
defence hinged on the allegation
of fraud, and that the
allegation of fraud having not
been proven the Plaintiffs were
entitled to their claim.
It must be
noted from the outset, as the
appellant rightly points out in
his statement of case dated 8th
February, 2012, that this appeal
comes on the back on two
concurrent findings of the
courts below. There are numerous
Supreme Court decisions to the
effect that an appellate court
should be slow to disturb the
concurrent findings of fact by
two courts unless the findings
are so perverse and unsupported
by the evidence on record. See
Obrasiwah II v. Otu (1996-97)
SCGLR 618, Achoro v. Akanfela
(1996-97) SCGLR 209, Koglex (No
2) v. Field, (2000) SCGLR 175,
Adu v. Ahamah (2007-2008) SCGLR
143 and Fosua & Adu-Poku v.
Dufie (Deceased) & Adu-Poku
Mensah (2009) SCGLR 311.
Therefore the duty of the court
in this instance is to examine
the evidence on the record
vis-à-vis the concurrent
findings of fact by the High
Court and the Court of Appeal
and then determine whether the
evidence supported the findings
that were made.
Burden of
Proof
The
appellants’ contention is that
since the respondents maintained
a counterclaim against the
appellants, an equal burden was
placed on them to prove their
case. Having failed to discharge
that burden of proof, they argue
that the Court of Appeal erred
when it held at 296 of the
record of appeal thus:
“We are of
the opinion that having regard
to the issue and additional
issues set down for trial, and
on the totality of evidence put
forth by the Appellants as
proponents of the 1995 will,
they failed to discharge the
onus placed on them by law.”
The
appellants contend in their
statement of case at 4 that
“… the
Defendants assumed a burden to
prove their claim, or an equal
burden is placed on both
parties by law to prove their
respective claims. …”
The position
of the law is settled as far as
the burden of proof in
counterclaims is concerned.
Order 12 rule 1 of the High
Court (Civil Procedure) Rules,
2004, C.I. 47 provides thus:
“Rule
1—Counterclaim Against Plaintiff
(1) A
defendant who alleges that he
has any claim or is entitled to
any relief or remedy against a
plaintiff in an action in
respect of any matter, whenever
and however arising, may,
instead of bringing a separate
action, make a counterclaim in
respect of that matter.”
Further in
Amon v. Bobbett (1889) 22 QBD
543 Bowne LJ held at 548 thus:
“ a
counterclaim is to be treated
for all purposes for which
justice requires it to be so
treated as an independent
action.”
In essence, a
defendant’s counterclaim is
treated in the same way as the
plaintiff’s case. The roles are
reversed and the defendant (as
plaintiff in the counterclaim)
assumes the burden to prove his
case. In effect because a
counterclaim has the nature of
an independent action, the
counterclaim may still be
continued even after judgement
has been given in favour of the
plaintiff or if the plaintiff’s
case is stayed or dismissed.
In this case, the burden of
proof rested on the appellants
to prove their case but on the
counterclaim, it was the
respondents’ responsibility to
prove their case. It would be
useful to note at this point
that at the trial court, the
judge dismissed the respondents’
claim of fraud and forgery
because the respondents failed
to plead the particulars of the
alleged fraud, as the High Court
(Civil Procedure) Rules, C.I. 47
requires, and left the court
make inferences from the
evidence. The appellants have
relied on Agbosu & Others v.
Kotey & Others (2003-2005) 1 GLR
685 where Brobbey JSC said at
732 as follows:
“A litigant
who is a defendant in a civil
case does not need to prove
anything; the plaintiff who took
the defendant to court has to
prove what he claims he is
entitled to from the defendant.
At the same time, if the court
has to make a determination of a
fact or of an issue, and that
determination depends on
evaluation of facts and
evidence, the defendant must
realize that the determination
cannot be made on nothing. If
the defendant desires the
determination to be made in his
favour, then he has the duty to
help his cause or case by
adducing before the court such
facts or evidence that will
induce the determination to be
made in his favour. The logical
sequel to this is that if he
leads no such facts or evidence,
the court will be left with no
choice but to evaluate the
entire case on the basis of the
evidence of the plaintiff. …”
The
appellants, while stating the
correct position of the law,
appear to have lost sight of the
fact this position of the law as
expressed succinctly by Brobbey
JSC in Agbosu & Others v. Kotey
& Others, supra, also applied in
equal measure to their duty to
discharge the burden of proof.
That being the case, the
question to ask is this: which
of the parties effectively
established their case and
discharged the burden of proof,
on the balance of probabilities?
Assuming, arguendo, that the
respondents failed to discharge
the burden of proof (as
plaintiffs in the counterclaim),
the result of that failure was
only that their counterclaim
would fail. However, the failure
of that counterclaim would not
in any way lessen the burden
which rested firmly on the
appellants who originated the
action in the High Court. The
trial judge still had to
determine whether, on the
balance of probabilities, the
appellants had discharged the
burden of proving their case.
The burden would then shift to
the respondents to adduce
evidence to enable the trial
judge make a favourable
determination based on the facts
and the evidence.
Validity of
the 1995 Will
The central issue in this case
is the validity of the latter of
the two wills which the deceased
testator executed in 1992 and
1995. The appellants herein do
not dispute the validity of the
will executed in 1992. They
simply contend that the 1995
Will effectively revoked the
1992 Will. On the other hand the
respondents have claimed from
the onset that the 1995 was not
the deed of the testator and
adduced evidence which “excited
the trial court’s suspicion” as
to the validity of the will. The
biggest wrinkle in the case, in
our view, is the fact that the
deceased testator signed his
signature for the 1992 Will but
chose to thumbprint on the 1995
Will. The evidence on record
showed that the deceased
normally signed his signature on
his official documents. The
respondents tendered Exhibit 1,
the testator’s driver’s license,
Exhibit 4, a letter which the
deceased wrote to his employers
for end of service benefits and
Exhibit 5, the 1992 Will itself
to support this fact. Also DW3
testified that the late testator
“was educated formally up to
primary 5” and could sign his
name. The respondents’ argued
that since the testator was
accustomed to signing his
signature, the thumbprint on the
1995 Will attracted suspicion as
to the validity of the will. In
their statement of defence at
paragraph 9 at page 7 of the
record, the respondents called
on the appellants to “prove the
alleged Will in a solemn form.”
The appellants did not prove the
1995 Will in solemn form but
proceeded to adduce evidence to
convince the court that 1995
Will was valid. The appellants
claimed that the testator was
illiterate and on certain
occasions thumb printed his
official documents. They sought
to rely on the testator’s bank
documents with Barclays Bank,
Tarkwa Branch, which documents
were thumb printed by the
testator. The first plaintiff
testified in court that he used
to read the testator’s letters
to him because he was
illiterate. After considering
the evidence the trial judge
held that the circumstances
surrounding the 1995 Will
excited suspicion, especially
because the testator had been
known to sign most of his
documents. At 219 of the record
of appeal he said:
“Let me also
quickly mention one other
circumstance that equally
excites my suspicion in no small
measure. That circumstance is
the fact that T.K. Bremansu
(deceased) who could sign his
name rather thumb printed the
1995 Will. And what makes it
more suspicious is the fact that
there is complete absence of any
jurat to inform the world as to
who read and explained the
contents of the Will to him or
whether he even understood the
contents of the Will especially
if one comes to consider the
fact that the Will was made by a
professional hand, a lawyer who
presumably appreciated the
essence and legal requirement of
a jurat whenever documents are
thumb printed by people who
cannot read and understand.
…There is copious evidence both
oral and documentary on record
that portrays that the late
Kobina Bremansu could sign his
name. … Above all, it is crucial
to observe that the plaintiffs
seemingly admitted this fact by
their failure to cross-examine
on the evidence.”
Based on the
trial judge’s reasoning above,
the appellants appear to have
concluded that the trial judge
found as a matter of fact that
the late Kobina Bremansu was
literate because he was educated
formally to primary 5 and was
able to sign his name of
official documents for at page 7
of their statement of case they
contend as follows:
“… However,
the same trial court, adopting
the evidence of DW3, had held
that the testator was literate
who “was educated formally up to
primary 5”. If the testator was
literate, then he understood the
contents of the 1995 Will.”
It is the
view of the court that that
conclusion is faulty to say the
very least. At 220 of the record
of the appeal, the trial judge
stated rather clearly that one’s
ability to sign his or her name
did not confer literacy on that
person. He said:
“I must
remark that it is not unusual
for a person who is illiterate
to be able to sign his name. In
other words, the ability of one
signing his name has nothing to
do with his formal educational
standing. I say this against the
backdrop of the evidence of 1st
plaintiff who claimed that the
late Bremansu was illiterate.
That evidence does not, in my
view, in any way negate the fact
that the late T.K. Bremansu
could sign his own name on
documents especially in the face
of the evidence as a whole on
record.”
The facts and
evidence showed that the late
Bremansu was literate enough to
sign his name on official
documents. But the evidence also
showed that Bremansu sometimes
thumb printed on some other
official documents, suggesting
that he was, at least, not fully
literate. How does the law deal
with such persons? The case of
Zabrama v. Segbedzi (1991) 2 GLR
221, C.A. provides the answer.
I find it extremely useful to
reproduce a long passage in that
case where Kpegah J.A (as he
then was ) put the issue of
literacy vis-à-vis the
provisions in the Illiterates
Protection Ordinance, Cap 262,
in the correct perspective at
230 to 231:
“In the case
of Kwamin v. Kufour (1914) 2
Ren. 808 at 814, Lord Kinnear
reading the advice of the Privy
Council said:
“ . . . when
a person of full age signs a
contract in his own language his
own signature raises a
presumption of liability so
strong that it requires very
distinct and explicit averments
indeed in order to subvert it.”
While
agreeing with the general
concept of Lord Kinnear's
proposition, my only reservation
is that it fails to take into
account the fact that a person
signing a contract in "his own
language" may be unable to read
or write the said language. … If
the purport is to be sure that
the signatory really understood
the document before making his
mark, then the issue should not
be whether it is written in "his
own language" or not. Before the
signature can raise the level of
presumption against a person,
the question, to my mind, should
be whether he can read and write
the said language and not
whether the document is in a
language he can only speak.
Despite any claims to
development, I am sure there are
people in the British society
who can speak English very well
but can neither read nor write
it, just as in this country
there are citizens who can speak
either Ewe, Twi, Ga or Dagbani
perfectly without being able to
read and write same. In my
view, they are illiterates so
far as these languages are
concerned.
Who then is
an illiterate as Cap 262 does
not offer a definition? In the
case of Brown v. Ansah, High
Court, Cape Coast, 10 April
1989, unreported, I had to
decide whether a testator, who
could read Fanti and spoke some
English but could neither read
nor write English, was an
illiterate within the context of
section 2 (6) of the Wills Act,
1971 (Act 360). This is what I
said in that case:
"It is
necessary here to repeat that
there is no dispute that the
will in question has no
declaration of the interpreter
to the effect that the will has
been read and explained to the
testator who perfectly
understood the contents before
executing same. To meet this
factual deficiency of the will,
learned counsel for the
defendants, Mr. E. F. Short,
submitted that there is evidence
that the deceased could read
some Fanti and understand some
English so he is not an
illiterate but semi-illiterate
and therefore section 2 (6) of
Act 360 does not apply in this
case since it is relevant only
to cases where the testator can
be said to be a complete
illiterate. It is true the Act
does not define who an
illiterate is. But I think
whether a person is to be
considered as literate or
illiterate in this context, it
must be related to the language
in which the document is
prepared, that is the ability to
read and write the said
language. In this case it is
English. A person who can
perfectly read and write the Ewe
or Fanti language may be an
illiterate within this context
if the will is written in
English which he can neither
read nor write. It is the
ability to read and write the
language in which the document
is written which to me is
relevant and not whether the
fellow can be classified as
semiliterate or
demi-semi-literate. The
evidence is that the testator
cannot read and write English.
He is to me an illiterate within
the context of the law."
I will offer
the same definition under Cap.
262. This definition should
make it possible for even a
professor emeritus in the
English language from Oxford to
seek protection under the law if
he should come to this country
and sign a contract written in
Dagbani. …”
We would hold that this position
of the law as stated in Zabrama
v. Segbedzi, supra is correct
and adopt it as our own. It is
clear then, that by the
appellants’ own evidence the
late Bremansu was illiterate.
In the absence of clear evidence
to show that he could read or
write the English language (the
language which was used to
prepare both Wills) the ability
to sign his name on official
documents did not detract from
this fact. It is also clear from
the trial judge’s decision that
he considered the appellants’
claim to the effect that
Bremansu was illiterate. At 220
of the record of appeal the
trial judge held:
“Going by the
case of plaintiffs who sought to
establish that the late T.K.
Bremansu was illiterate, one
would be quick to point out the
purported execution of Exhibit
‘A’, the 1995 Will grossly
sinned against the Wills Act,
1971 (Act 360) section 2(6)
thereof which provides that
“where the testator is blind or
illiterate, a competent person
shall declare in writing upon
the Will that he had so read
over and explained the contents
to the testator and that the
testator appeared perfectly to
understand it before it was
executed.”
The
appellants challenged the trial
judge’s “undue” insistence on a
jurat at page 7 of their
Statement of Case as follows:
“One other
reason that excited the
suspicion of the trial court and
affirmed by the Court of Appeal
was the fact that although the
1995 Will was thumb printed
there was no jurat clause to
authenticate the fact that the
contents were read and
explained to the testator who
understood and approved of same
before making his mark. However,
the same trial court, adopting
the evidence of DW3, had held
that the testator was literate
who ‘was educated formally up
primary 5”. If the testator was
literate, then he understood the
contents of the 1995 Will. There
was no need to for the
plaintiffs to “affirmatively
prove that the contents of the
1995 Will was read over and
explained to the testator before
he thumb printed same.
Similarly, there was no need to
“prove by cogent evidence that
the thumb print on the will was
that of the testator who
normally signed all his
documents.” It is submitted
that under such circumstances
there was therefore no need for
a jurat….”
We find this
reasoning also faulty. While it
is correct to state that the
absence of a jurat does not in
itself negate the validity of an
otherwise valid Will, it must be
pointed out that the law
requires the proponents of such
a will to lead evidence to show
that even in the absence of a
jurat, the testator fully
understood the content of the
Will. Again, the case of Zabrama
v. Segbedzi, supra is
instructive. At page 234-235
Kpegah J.A. (as he then was)
held:
“What then is
the standard of proof on a party
relying on a document to which
an illiterate is a party? Does
the presence of a declaration on
the document that it had been
read and interpreted to him and
that he appeared to have
understood before signing same
satisfy this requirement of
proof or there is need for some
corroborative evidence outside
the document? … As had been
pointed out, in Kwamin v. Kufuor
(supra), the issue whether an
illiterate fully understood the
contents of a document before
making his mark or not "raises a
question of fact, to be decided
like other such questions upon
evidence." Being a question of
fact, I think the presence or
otherwise of an interpretation
clause on a document is one of
the factors a court should take
into account in determining
whether the document in question
was fully understood by the
illiterate. In my view, an
interpretation clause is only an
aid to the court in satisfying
itself that the illiterate
against whom the document is
being used appreciated the
contents before its execution.
The presence of an
interpretation clause in a
document is not, in my humble
view, conclusive of that fact,
neither is it a sine qua non.
It should still be possible for
an illiterate to lead evidence
outside the document to show
that despite the said
interpretation clause he was not
made fully aware of the contents
of the document to which he made
his mark. While its presence
may lighten the burden of proof
on its proponent, its absence on
the other hand should not be
fatal to his case either. It is
still open to him to lead other
credible evidence in proof that,
actually, the document was
clearly read and correctly
interpreted to the illiterate
who appreciated the contents
before executing same.
I hold this
view because the standard of
proof required in law to affect
an illiterate person with the
knowledge of complete
appreciation of the contents and
import of a document, written in
a language he can neither read
nor write, and to which he is a
signatory, cannot be achieved by
merely saying:
"Look at the
document. There is an
interpretation clause on it to
the effect that it had been
clearly read and interpreted to
him and he understood it fully
before executing it so he is
bound by it."
I will
recommend that type of proof
which settles for preponderance
of evidence in a civil case. If
a court after assessing all the
available evidence is satisfied,
upon the preponderance of
evidence, that the document was
read and interpreted to the
illiterate person, and that he
fully understood the contents
before making his mark, then the
burden of proof would have been
discharged by the person relying
on the document. This is
because just as it is bad to
hold an illiterate to a bargain
he would otherwise not have
entered into if fully
appreciated, so also is it
equally bad to permit a person
to avoid a bargain properly and
voluntarily entered into by him
under the guise of illiteracy.
In the case of State v. Boahene
[1963] 2 G.L.R. 554 at 568,
Sowah J. (as he then was) put it
nicely:
“I agree that
there is no presumption that an
illiterate person appreciates
the meaning and effect of a
legal instrument or for that
matter of any instrument or
letter just because he has
signed it; this is sound
principle for the protection of
an illiterate person against an
unprincipled opponent, but this
principle is not to be stretched
to make illiteracy a cloak for
fraud or criminal activities.”
I adopt these
words as my own and will only
add that illiteracy is not a
privilege but rather a
misfortune. Cap. 262 is
therefore a shield and not a
sword.
Although
there is no interpretation
clause on exhibit A in this
case, there is sufficient
evidence on record to justify a
finding of fact that the
document was read over and
dutifully interpreted to the
plaintiff before he made his
mark. …” (e.s.)
It would
appear to us that the appellants
would want to this court to
believe on one hand that if the
late Bremansu was literate, then
the absence of a jurat was not
fatal to the validity of the
1995 Will, while on the other
hand, the appellants have sought
from the onset sought to
establish the fact that Bremansu
was illiterate. In our view this
double-edged approach to
establishing the validity of a
will should be avoided as it
only highlights the mischief the
law sought to amend by enacted
both the Illiterates Protection
Ordinance and the Wills Act. In
simple terms, the appellants are
not allowed to eat their cake
and have it. On the strength of
Zabrama v. Segbedzi, supra even
if the trial judge had “unduly”
relied on the absence of the
jurat, the question whether or
not the testator understood the
contents of the will was a
question of fact and the
appellants had ample opportunity
to adduce evidence to establish
that the contents of the 1995
Will were explained to the
testator and he fully understood
same. The respondents, on the
other hand, by their evidence
satisfied the trial court that
there was suspicion surrounding
the validity of the latter Will.
In those circumstances, the
burden effectively shifted back
the appellants (as defendants in
the counterclaim) to prove the
Will in solemn as demanded or
show by evidence that the 1995
Will was valid. They did not and
in doing so, allowed the
respondents’ counterclaim to
stand. In such circumstances we
are unable to disagree with the
trial judge’s conclusion at 220
of the record of appeal as
follows:
“In the
evidence, though plaintiffs the
proponents of this 1995 Will
were put on the enquiry to prove
same in solemn form, not even a
scintilla of evidence was
adduced to the effect that the
late Bremansu had the benefit of
understanding the contents of
Exhibit ‘A’ same having been
read over to him by any
competent person…”
We would
therefore agree with the trial
judge’s decision as affirmed by
the Court of Appeal. This court
has also taken note of the other
circumstances which excited the
trial court’s suspicion as to
the validity of the 1995 Will,
such as the bequest to a person
whom the testator knew to be
dead in 1992 and the different
dates on the will – one on the
will itself and one on the
envelope. While these
circumstances may very well have
been suspicious, the burden of
proof lay on the appellants to
dispel these suspicions through
the adduction of cogent
evidence. However, the
appellants allowed these
suspicions to linger on and in
the absence of such supporting
evidence the trial judge was
entitled to make a determination
based on the respondents’
evidence.
In sum, the
appellants herein have not
advanced any arguments in this
appeal to support a conclusion
that the High Court decision as
affirmed by the Court of Appeal
was so perverse in law or was
unsupported by the evidence on
record. We are also well minded
of the Supreme Court’s decision
in Barkers-Woode v. Nana Fitz
(2007-2008) 2 SCGLR 897 where it
was held that where a trial
judge makes findings of fact,
which are supported by the
evidence on record, it is not
permissible for the Supreme
Court or any other appellate
court to interfere with the
determination by the trial judge
even if the Supreme Court is
inclined to interpret the
evidence differently.
Accordingly we would also hold
that the 1995 Will is invalid.
It must be noted once more that
the appellants did not
challenged the validity of the
1992 Will; their only claim
being that it was revoked by the
1995 Will. As the Court of
Appeal speaking through Abban
J.A. held, “[s]ince the 1992
will can only be revoked when
the 1995 Will is proved to be
valid, and the Appellants were
unable to discharge this burden,
the 1992 will therefore remains
the valid will of the deceased.
… ” .
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)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO-BAMFO
{MRS.}
JUSTICE OF THE SUPREME COURT
COUNSEL;
K. D.
ASEIDU FOR THE PLAINTIFFS/
APPELLANTS/ APPELLANTS.
EBO QUARSHIE
( WITH HIM EMMANUEL BECKLEY) FOR
THE DEFENDANTS/ RESPONDENTS/
RESPONDENTS.
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