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Evidence – Presumptions – Sound body – Burden of proof on party alleging unsound body – Presumption not rebutted with evidence that testator is aged 125 years with frail body and weak eyesight – Evidence Decree 1975 (NRCD 323) s 42 – Wills Act 1971 (Act 360) s 2(6).

Wills – Execution – Proof – Plaintiff establishing prima facie case of due execution of will – Burden on defendant to establish want of due execution – Wills Act 1971 (Act 360) s 2.

Wills – Probate – Copy of will – Original will declared by court as improperly executed and invalid – Whether carbon copy duly executed admissible to probate.

The deceased, founder of a church died at the age of 125 years. In his will he left his position as a prophet in the church as well as its properties to the plaintiff, the sole executor. The defendant challenged the validity of the will on the ground that its execution and attestation violated ss 2(3) and (5) of the Wills Act 1971 (Act 360). In an action to prove the will in solemn form, the plaintiff tendered the original will and two carbon copies executed on the same day but separately. The solicitor who prepared the will testified that it was executed and attested by the subscribing witnesses in his presence on 15 February 1987. The trial judge rejected the original will as invalid because the testator’s signature ran into a witness’s signature thus creating a doubt as to who signed first. He however found a carbon copy ex facie valid, the testator and the witnesses having signed at the appropriate places, and admitted it to probate.

The defendant appealed on the ground that the trial judge, having found that the original will was void, ought not to have admitted the copy to probate. Secondly, there being evidence that the testator was about 120 years old, of weak eyesight and infirm body, when he made the will, the trial judge ought not to have admitted the will to probate until it had been proven in solemn form under s 2(6) of the Wills Act. Finally, it was argued that the learned trial judge did not satisfy himself whether the testator signed the duplicate before or after the attesting witnesses.

Held, Lamptey JA dissenting; (1) It was clear from the statement of defence that apart from challenging the admission of the will to probate, the defendant contended also that the testator could not have made a will as it was against his religion. In such situation, if the learned judge found the duplicate to be properly executed, he could admit it to resolve the issue whether the testator died intestate.

(2) The fact that the original will was held to have been improperly executed did not mean that the copies were also not properly executed since they were signed separately.

(3) Under section 42 of the Evidence Decree 1975 (NRCD 323), there was a rebuttable presumption that a person was of full age and sound body. The judge was not to presume the testator blind merely because he was over 125 years of age. The defendant had the burden of rebutting the presumption of sound body and good eyesight. The defendant’s witnesses merely testified that the testator had a frail body and weak eyesight. The ordinary meaning of blindness was lack of the sense of sight. There was a great difference between a poor-sighted person, who could not see clearly except with spectacles, and a person who could not see at all. The evidence in rebuttal ought to have established actual blindness.

(4) Once a prima facie case of validity of a will was established, the opponent had to adduce evidence to the contrary. The plaintiff had no burden to establish beyond that prima facie case that the copy was executed in accordance with the Wills Act. There was no merit in the appeal and it would be dismissed.

Cases referred to:

Akenten II v Osei [1984-86] 2 GLR 437.

Good–title (Dec’d), Alexander v Clayton (1768) 4 Burr 2512, 98 ER 159.

Mensah, Re (Dec’d), Barnieh v Mensah [1978] 1 GLR 225 CA.

R v Loxdale (1758) 1 Burr 445, 97 ER 394.

Yankah v Administrator–General [1971] 2 GLR 186 CA.

APPEAL against decision of High Court.

Ben Annan for the appellant.

Peter Ala Adjetey, SAG (with him Addo) for the respondent.

OFORI–BOATENG JA. This is an appeal from the judgment of the Accra High Court presided over by Wuaku JSC sitting as an additional judge of the High Court. The facts of the case are that one Prophet James Kwame Nkansah, the founder of the African Faith Tabernacle Church died on 23/9/87. He made a will under which he “bequeathed” his position as a prophet in the church and his property with the church, to the respondent, who was also the sole executor. The respondent applied for probate. The appellant, the customary successor, challenged the validity of the will on the ground that it was executed contrary to the provisions of the Wills Act 1971 (Act 360), and that it was procured through undue influence, fraud etc.

The learned trial judge was satisfied that although the original will challenged by the appellant was executed contrary to the Wills Act, its carbon copy which was also before the court had been validly executed in accordance with the Wills Act. The carbon copy was therefore declared valid, and upon its validity, probate was granted. It was against this decision that this appeal has been lodged.

The appeal was argued on three main grounds:

“1. After the trial judge had established that exhibit A, the original will in question, had been found to be void under Act 360, he should have ended the case. He should not have proceeded further to pronounce on the validity of the carbon copy, exhibit B, which had never formed the basis of the litigation.

2. If even it was assumed that the testator left a valid will, since the testator made the will about the age of 120 years and there was evidence that his eyesight was weak, as well as his body, the trial judge should not have declared the will valid without putting it through the test required in s 2(6) of the Wills Act.

3. The learned trial judge did not justify his acceptance of exhibit B as a valid will for he did not establish whether in that will the testator signed before or after the witnesses.”

These grounds of appeal will now be dealt with in turn. It is clear from the statement of defence that the appellant was challenging the will, exhibit A, which was sought to be admitted to probate. The court indeed found as a fact that at least one of the witnesses was not present when the testator executed the will. The judge said:

“Akowua persists that Nana Nyarko Eku IX did not sign in his presence and his signature was not on exhibit A when he, Akowua, signed. If exhibit A was indeed signed by the testator, then since it came after S Y Oduro had signed, then in law only Frimpong had witnessed the testator’s signature. In other words, the testator would not have acknowledged his signature in the presence of at least two attesting witnesses before either signed.”

The trial court’s conclusion that exhibit A was invalid cannot be challenged; it is in accordance with s 2(3) of Act 360. This court is not in a position to doubt the credibility of the testimonies on which the judge relied for his conclusion.

What is being hotly contested however, is the finding of the judge that although exhibit A was invalid, its duplicate, exhibit B, was valid and properly signed by the very persons whose signatures appeared on exhibit A. According to counsel for the appellant, the purpose of the suit was to prove that exhibit A was not a valid will, and once that had been proved, the judge should have brought his considerations to an end.

It is necessary then to determine the real purpose of the defence, or the basis of opposition to probate. Was it to prove that exhibit A was void or to prove that Prophet Nkansah never made any will at all? If it can be established that exhibit A was an invalid will, and so exhausting the litigation, then indeed after having established that exhibit A was void, the learned judge should have concluded the case. On the other hand if the real issue was not only about the validity or otherwise of exhibit A, but also whether or not the prophet died intestate, then proving only that a particular will made by him was void, would certainly not establish that he left no other will and that he died intestate.

To my mind, there is sufficient evidence to show that the full effect of the defence was not only to establish that exhibit A was invalid, but also that Prophet Nkansah died without making a valid will, if he ever made a will at all. This impression is given in the evidence–in–chief of the appellant himself:

“From January 1987 till he died, he (the prophet) never informed me that he wanted to make any will; in fact he was vehemently, on doctrine and belief, against making a will. I never knew he had made any will and if in fact, he had made a will, he would have told me. He would not have hidden that fact from me.”(Emphasis mine.)

This evidence does not merely deny the existence of a particular will; it denies any assertion that the prophet could possibly have left a will because by his faith and his doctrine, (whether private or the church’s) he was vehemently against the making of wills. Also, he would not make any will without first informing the appellant. The purpose of going to court, over the probate could not be said merely to oppose exhibit A but also to establish that the prophet was not a person who would make a will, and so died intestate. Therefore, if the learned judge found exhibit B, a duplicate of exhibit A, to have been executed in accordance with the Wills Act and so prima facie valid, he could not be faulted for investigating the possibility of that document being a valid and last will left by the testator, in resolving the issue whether the prophet died intestate - an issue which had intrusively become one of the issues to be considered by the court.

The next point argued by counsel for the appellant was based on the fact that the testator was over 120 years when he made his will. There was sufficient evidence on record to show that his body had gone frail and his eyesight weak. The appellaant for example gave evidence thus:

“About three years to the end of his life, his sight became impaired, so he wrote bold and large characters so that he could see and read them. From January 1987, he could not write and if he wanted to sign something his hand had to be led to the spot where he should sign. He had cataract on his eyes, more prominently on the left eye. I took him to many places like Sunkwa Clinic, Adabraka Clinic, Raphael and Safo Adu and Bentil at Koforidua, and was told that because of his old age he could not be operated upon. Sunkwa referred us to read Ecclesiastics Ch 12 on the effect of old age.”

According to counsel for the appellant, because of such troubles with the eyesight, the trial judge should not have admitted the will of the prophet to probate without insisting on compliance with s 2(6) of the Wills Act 1971 (Act 360) on blind testators ie:

“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.”

The appellant’s evidence has equally been countered strongly by various witnesses deposing to the fitness of the testator and that he could see clearly. It would appear that the trial judge preferred the evidence of the respondent on the testator’s ability to see. In any case, he did not equate the state of the testator’s eyesight, however poor it might have been, to blindness. The Court of Appeal did not see the witnesses and could not substitute its impression of those witnesses for that of the trial court, provided the trial judge’s conclusion was not illogical or unreasonable.

Section 42 of the Evidence Decree 1975 (NRCD 323) provides that “a person is presumed to be of full age and sound body.” This is a rebuttable presumption. Under this section, a person of full age is presumed not to be blind. He is presumed to have good eyesight as a part of the sound body. The learned trial judge is therefore not under the compulsion of any law to presume a person blind, simply because he is of full age, and well over one hundred and twenty years of age. The burden of rebutting this presumption of sound body including good eyesight should therefore be on the appellant. In my opinion this rebuttal was poorly done. Most of the witnesses for the appellant merely described the testator as having a frail body and weak eyesight. But does weak eyesight mean blindness? The ordinary meaning of blindness is lack of sense of sight. There is a great difference between a person who does not see clearly but could do so with the aid of spectacles, that is, a man with weak eyesight, and a person who cannot see at all.

The appellant whose evidence has been quoted above is the strongest witness on record, regarding the seriousness of the testator’s eye defects. To rebut the presumption under s 42 of the Wills Act, the rebuttal evidence should go further to establish whether the hospitals and the clinics which the testator was alleged to have attended treated such serious eye problems as blindness. No such evidence was available. The testator was also alleged to have suffered from cataract. Did the cataract merely impair his eyesight or did it make him blind? Here again none of the doctors whom the testator was alleged to have consulted was called to testify whether the testator ever had cataract, and the extent to which it impaired the eyesight that is, whether it made him blind or merely made him see poorly. Without such clear evidence of blindness, the trial judge had no basis to apply s 2(6) of the Wills Act, which was applicable only in case of blindness; and without such evidence, a presumption that the deceased was of a healthy body could not be rebutted to invalidate the will which, on the face of it, was properly made under the Wills Act. For the above reasons, I am unable to accept counsel’s argument that the trial judge should have applied s 2(6) of Act 360, and I accordingly reject it.

The final ground argued by counsel was that although the trial judge declared exhibit B a valid will, he did not clarify whether the testator signed it, before the witnesses or vice versa. In other words, the trial judge did not give any reason for accepting exhibit B as valid. Indeed, regarding this issue the trial judge has this on record:

“On the face of exhibits B and B1, they appear to be properly executed; the question then is were they executed and attested according to law? That is what the plaintiff must prove.”

Here I am unable to agree with the view of the learned judge that when, whether through a presumption or specific evidence, the respondent had established a prima facie case that a will had been properly executed according to law, he still had a burden to prove that it was attested to according to law. My understanding of the law is that the moment a prima facie case of validity has been established, it is he who challenges it who has to adduce evidence to destroy the prima facie case. So in this case, the plaintiff had no burden to establish that a will, which prima facie was executed in accordance with the Wills Act, was indeed executed in accordance with law. I believe the trial judge’s statement was an unfortunate slip, more of the pen than his concept of the law. For no sooner had the trial judge misstated the law than he corrected himself by stating: “I will apply the presumption of omnia praesemuntur rita esse acta (all things are presumed to be done correctly until the contrary is proved). See also s 37 of the Evidence Decree 1975, a provision which is analogous to the common law position.” He then cited the case of Akenten II v Osei [1984–86] 2 GLR 437 with which I agree completely. This case illustrates that once a presumption exists or is otherwise established in favour of the plaintiff, it is the defendant who must rebut it.

The learned judge proceeded to explain the logic behind his conclusions regarding the validity of the testator’s signature and that of the witnesses under exhibit B which he admitted to probate. The reasons proffered by the judge simply go to demonstrate the appellant’s failure to destroy the presumption of validity in favour of the respondent, having regard to the appellant’s own evidence in rebuttal and the other evidence before the court. The judge said:

“After pensive consideration, I am inclined to think and hold that it was the prophet who signed exhibits B and B1.”

He cited the case of Good–title (Dec’d), Alexander v Clayton 98 ER 159. In that case, Lord Mansfield stated that witnesses to wills should not be permitted to deny their own attestation. On this authority, the evidence of the defence witnesses proffered to destroy the presumption was rejected. The learned judge said:

“On the above authority, Akowuah’s denial of his own attestation is inadmissible and ought to be excluded; and if that is done, S Y Oduro’s evidence stands unchallenged, and I will say again that Oduro and Frimpong’s attestation will be sufficient under the Wills Act 1971 (Act 360) sections 2 and 3.”

To establish the failure of the appellant to destroy or rebut the prima facie validity of the testator’s signature, the trial judge, after comparing the signature of the testator in three separate documents, B, B1 and C, said:

“Exhibits B and B1 are two testamentary papers executed at the same time. The signature on exhibit C is dated 30/7/1985, approximately two years before the death of the testator. On closer examination, and taking into consideration the age and health of the testator in February 1987, the testator’s signature on exhibit B and signature on exhibit C look more alike than between exhibit B and B1. I hold exhibit B, the execution of which I have accepted, as the last will of the testator.”

It may also be summed up that exhibit B is a duplicate of exhibit A. These two documents have identical contents; but they were signed separately by the same set of witnesses. Exhibit A was improperly signed so that the testator’s signature ran into the signature of one of the witnesses, thus creating doubt as to who signed first, the testator or the witness. On this doubt, exhibit A was nullified as falling foul of Act 360. In exhibit B on the other hand, there was no confusion. The testator signed his name at the appropriate place and the witnesses attested as required by law, thus presenting, prima facie, a will that is consistent with Act 360. If therefore the appellant wishes to rebut the presumption of validity and to establish that as in exhibit A in exhibit B also, the witnesses had signed the will in the absence of each other or before the testator had signed, he has the burden of establishing that violation of the Wills Act as demonstrated in Akenten II v Osei (supra).

On the basis of the presumption of omnia praesemuntur rita esse acta and the analysis of the evidence put forward by the learned judge to demonstrate how the appellant was unsuccessful in rebutting the presumption, and his reasons for arriving at his conclusions, I am unable to accept the charge against the trial judge that he did not assign any reasons for admitting exhibit B to probate or for declaring the signatures of the testator and his attesting witnesses valid.

ADJABENG JA. I have had the privilege of reading beforehand the judgment of my learned brother, Ofori–Boateng JA. I think that he has dealt adequately with the matters raised in this appeal and I agree with his reasoning and conclusion. It should, however be observed, by way of emphasis that there was ample evidence adduced in support of the trial judge’s finding that it was the testator who had signed the will, exhibit B, and that he did so in the presence of two witnesses, namely, Oduro and Frempong. The attestation by these two witnesses, of the will satisfied, as the trial judge rightly held, section 2(3) and (5) of the Wills Act 1971 (Act 360). The fact that exhibit A, the original will, was held not to have been properly executed in accordance with the Wills Act, in my view, did not mean that the other copies were also not properly executed. As my learned brother has ably explained in his judgment, exhibit A was badly signed only in the sense that one of the witnesses signed his name into the signature of the testator so that it appeared as if the witnesses signed before the testator did.

This, in my opinion, was a mere technicality. Fortunately, since the three copies were signed separately, the mistake made in respect of exhibit A was corrected when the testator and the witnesses came to sign exhibit B, a carbon copy of exhibit A. The result was that exhibit B was properly executed in accordance with the Act. The trial judge was satisfied with its execution and accepted it. Wherein then lies the basis of the appellant’s complaint? I do not see it. The trial judge who saw and heard the parties and their witnesses decided to accept the respondent’s case, mind you, “after pensive consideration.” I do not see any basis for disturbing his findings. I agree with my brother that there is no merit in this appeal. It ought to be dismissed.

LAMPTEY JA. The late Prophet J K Nkansah founded the African Faith Tabernacle Church in his lifetime. He was the spiritual head and leader of that church until his death on 23 September 1987 at the ripe old age of 125 years. After his demise, the plaintiff, Prophet David Nkansah, took action in the High Court, Accra against the defendant M N Okyere, the customary successor of the deceased prophet. According to the plaintiff, he (the plaintiff) was the sole beneficiary under the will of the late prophet. The defendant had entered a caveat against the grant of probate of the said will. The plaintiff called upon the trial court to decree probate of the said will in solemn form of law. The defendant resisted the claim on two legal grounds, these are: (1) that the execution and attestation of that said will did not comply with mandatory provisions of the Wills Act 1971 (Act 360) in particular s 2(3) and (5) of Act 360 and (2) that the mandatory provision of the Illiterates Protection Ordinance (Cap 262) were also not complied with. In the circumstances the plaintiff assumed the legal burden of propounding the will in solemn form. There was the further duty on the plaintiff to prove that the Illiterate Protection Ordinance was duly complied with by the lawyer who prepared and supervised the execution and attestation of the said will. At the end of the trial, the learned judge held as follows:

“Although in my view, the plaintiff and most of his witnesses lied to the court, the most important question to be answered in this trial is issue No 2 and I answer that in the affirmative. As said earlier, I pronounce in favour of the will, as contained in exh B, and I grant probate.”

The defendant was aggrieved and dissatisfied with the judgment of the trial court and appealed to this court on a number of grounds. Before this court, learned counsel for the appellant submitted that the learned trial judge erred in holding that the document, exh B, was duly executed and attested to according to law. He argued that the finding by the learned trial judge that the plaintiff and most of his witnesses were liars was well-founded and supported by the evidence before him. He contended that the evidence given by each of these witnesses on execution and on attestation should have been rejected by the learned trial judge as a pack of lies. The failure of the learned trial judge to reject the evidence of the liars destroyed the foundation on which the judgment was built. Learned counsel for the respondent argued the contrary. He submitted that the judgment was right in law. He contended that the learned trial judge critically examined and considered the evidence before him and came to the right conclusion on the facts.

It is trite learning that this court cannot disturb findings of fact made by the trial judge. In exceptional cases, and for reasons to be stated by it, this court can and must reject findings of fact made by the trial judge and substitute its own findings of fact. The gravamen of the complaint made against the judgment was that, on the facts before him and in the light of the findings of fact made by the learned trial judge, his judgment cannot be supported.

In the instant case before the learned trial judge embarked upon ascertaining whether or not the statutory provisions were duly complied with, he made a preliminary inquiry into the circumstances surrounding the preparation and making of the will in question. After a careful and thorough examination of all the relevant evidence, the learned trial judge stated the position as he saw it as follows:

“It may be presumed that PW4 prepared the will either from the instructions given to him by the testator or from instructions given to him on behalf of the testator, and that person could be nobody other than the plaintiff.”

The observations made by the learned trial judge clearly and plainly showed that he was far from satisfied that it was the late prophet Nkansah who gave instructions to lawyer Boadu, PW4 to prepare the will. Indeed, it was unfortunate that the learned trial judge failed to make a positive finding of fact on this crucial issue. In my opinion, since the complaint made by the defendant was that the late Prophet Nkansah was not the author of the document before the court, it was mandatory for the learned trial judge to make a positive finding of fact on that issue. The evidence before the learned trial judge was simple. The plaintiff testified that he knew nothing about the making and the existence of the will. He only got to know about the will of the late prophet after his death. PW4, lawyer Boadu, testified that he prepared the will of the late prophet on his instructions.

With respect, the duty of the learned trial judge was to accept or reject the evidence and to give reasons for his choice. The learned trial judge was not permitted to proceed on presumptions in the special circumstances. In my opinion, the failure of the learned trial judge to make a positive finding on the issue of authorship of the will is fatal to the conclusion he finally reached in this matter.

I now examine the relevant statutory provisions, in particular, s 2(3) and (5) of Act 360. These are reproduced here as follows:

“2(3) The signature of the testator shall be made or acknowledged by him in the presence of two or more witnesses present at the same time.

(5) The witnesses shall attest and sign the will in the presence of the testator, but no form of attestation shall be necessary.”

The above statutory provisions are mandatory provisions. Failure to prove and establish by evidence that these provisions were duly complied with will empower the court to refuse to grant probate. I will examine the evidence of the witnesses of the plaintiff. I refer to the evidence of Nana Nyarko Eku IX, PW2. He said that:

“On 15/2/87 about 2.00 pm the testator invited me to his bedroom. When I went, I met the lawyer (PW4) standing in the deceased’s bedroom with church elders namely, Oduro (PW3), Frempong and Akowuah.”

His evidence sought to show that all the four persons were present at the same time. On this issue Oduro, (PW3), testified as follows:

“PW2, (Nana Nyarko Eku IX), Lawyer Frempong (PW4), Akowua, the prophet and I were present.”

The learned trial judge held that PW2 was present on 15 February 1987, but that none of the other signatories was present when PW2 signed the will. The learned trial judge stated as follows:

“Taking the witness evidence (DW1) together with that of DW2, I reject the evidence of Nana Nyarko Eku IX (PW2) who had lied and hold that when Nana Nyarko Eku IX (PW2) signed the exhibits A, B and B1 none of the other signatories to the will was present.”

He was enjoined to reject the evidence of due execution and attestation of the will because of the finding of fact that PW2 did not attest the will in the presence of another attesting witness. At this stage I refer to the case of Yankah v Administrator–General [1971] 2 GLR 186. In that case, the appellants questioned the validity of codicil on the ground that one of the attesting witnesses was not present to see the testator sign the will. The respondents were called upon to establish it in solemn form. The Court of Appeal closely examined the evidence of that witness before the trial court. It held that the attesting witnesses were present at the same time when the testator executed the will and thereafter they each attested it. The will and codicil were therefore admitted to probate. I have found the Court of Appeal case of Re Mensah (Decd); Barnieh v Mensah [1978] 1 GLR 225 helpful. Writing the judgment of the Court of Appeal Annan JA reproduced the following passage from Craies on Statute Law 7th ed, at pages 266–267:

“Where a statute does not consist merely of one enactment, but contains a number of different provisions regulating the manner in which something is to be done, it often happens that some of these provisions are to be treated as being directory only while others are to be considered absolute and essential; that is to say, some of the provisions may be disregarded without rendering invalid the thing to be done, but others not.”

“For as Lord Mansfield said in the old case of R v Loxdale (1758) 1 Burr 445 at p 447, ‘There is a known distinction between circumstances which are of essence of a thing required to be done by an Act of Parliament, and clauses merely directory’.”

In the light of the above matters, the learned judge expressed his opinion as follows:

“I look then at the two limbs of s 2(6) of Act 360 in the context of the whole of section 2 of Act 360 and against the background of these cases ... I observe that the requirement of writing in section 2 of Act 360 and the rules therein as to signature, whether of testator or attesting witnesses, can easily be seen as material for the purposes of execution and therefore essential in all cases for validity.”

There can be no doubt that the provisions of section 2 of Act 360 which enjoined the attesting witnesses to be present throughout the process of execution of or subscribing to the signature of the testator and also of the process of attestation of the will relate to the essential validity of the will.

On this crucial issue, the plaintiff testified that he knew nothing about the preparation, execution and attestation of the will. Lawyer Boadu, PW4 claimed that he prepared the will. It will be noted that PW4 did not state the date he received instructions from the late prophet to prepare the will. He testified that he sent the will to Anyinam on 15 February 1987 and in the afternoon of that day and in his presence the will was duly executed and attested by the subscribing witnesses. On the evidence before him, the learned trial judge held as follows:

“I hold that the plaintiff and somebody, probably PW3 (Osofo Oduro) went to Nana Nyarko Eku IX (PW2) on 23 January 1987 in connection with exhibits A, B and B1 (the will and the two carbon copies) to obtain Nana Nyarko Eku’s signature. Nana Nyarko lied about the purpose of the visit by the plaintiff to Agona Nyarkrom on 23 January 1987.”

From the above, it was clear and beyond dispute that the learned trial judge disbelieved the story of the plaintiff’s witness. He accepted the case of the defendant that there were attempts to procure signatures of subscribing witnesses long before 15 February 1987. On this issue DW2, Eduafo Tekyi II testified as follows:

“In 1987 but before the death of the Prophet David, the plaintiff and S Y Oduro (PW3) came to visit me at Mpededuadzi. They called on me in the first week of February. Their mission was that the prophet had sent them to me to append my signature. I asked them the nature of the document and they said that it was a will. I told them that wills are not taken round to collect signatures.”

The evidence above was not seriously challenged. Indeed when cross–examined DW2 was emphatic that he had told the truth. It is perhaps useful to reproduce the answer DW2 gave, namely:

“… about two weeks after their call, I called on the prophet and told him about the visit of Kweku David (plaintiff) and S Y Oduro, (PW3) and the prophet denied ever sending them. I went with my elders to prophet to make the report.”

I must point out that DW2 was not pressed with any questions on the serious and weighty evidence he gave. The learned trial judge was impressed by the evidence of DW 2 and he roundly rejected the lies told by the plaintiff and his witnesses. He found and held positively as follows:

“If indeed PW4 (Lawyer Boadu) was present on 15 February 1987 then his primary concern should have been to direct the testator and witnesses where and how to sign. I hold that PWs 2, 3 and 4 were never present and at the same time and the testator never signed the will in their presence nor did they sign in the presence of the testator.” (Emphasis provided.)

It is worthy of note that on the issue of who were present the learned trial judge made a positive finding of fact that lawyer Boadu, PW4 was never present in the house of the Prophet Nkansah on 15 February 1987. This was what the trial judge held:

“If PW4 (Lawyer Boadu) was present then he failed in his duty as a solicitor, and I have no hesitation in finding that he, PW4 was not present when the will was executed and attested.” (Emphasis provided.)

In my opinion, the findings of fact made by the learned trial judge destroyed and demolished the whole case of the plaintiff. Indeed when attention is drawn to the evidence of PW4, Lawyer Boadu, to wit, that he it was who brought the will to the prophet’s house on the 15 February 1987, then the finding by the learned trial judge that on the 15 February 1987 PW4 Lawyer Boadu was not present could only mean that no will was brought to the prophet for execution and attestation on that date. Frankly put, the finding of the learned trial judge destroyed the whole case of the plaintiff on the issue of due execution and attestation of any will in the prophet’s house on 15 February 1987. For if Lawyer Boadu, PW4, was never present in the house of the prophet on that date, then no will was brought to that house on that date.

The position from the positive findings of fact made by the trial judge established the following matters beyond dispute:

“(a) The authorship of the will was not satisfactorily established and proved by the evidence adduced.

(b) There was or were attempts by the plaintiff and others to procure the attestation of the will in the absence of the testator on diverse dates before 15 February 1987.

(d) A will could not have been executed by the testator and attested to by witnesses on 15 February 1987; for it was PW4 Lawyer Boadu who had possession of the will at all material times.

(f) The evidence of PW4 (Lawyer Boadu) was worthless and no weight should be placed on it.”

The above matters established beyond doubt that at the close of the case of the plaintiff he had failed to establish his claim. It was clear that the essential requirements of the Wills Act had not been complied with by the testator and the attesting witnesses. All the three documents exhibits A, B and B1 had not been shown to have been executed and attested according to law. The learned trial judge failed to reject exhibit B which was executed and attested at one and the same time and under similar circumstances as exhibit A and exhibit B1 which two documents he quite rightly rejected. The learned trial judge drew a distinction on the execution and attestation of exhibits A and B1 and the execution of exhibit B which he was not permitted to. He was wrong, because the totality of the evidence of the plaintiff and his witnesses was plainly and clearly indivisible on the issue of execution and attestation. The evidence was offered as a whole in respect of an original document and two carbon copies. The execution and attestation of the three documents were positive acts of the persons therein named which acts took place at one and the same meeting. The evidence required must establish to the satisfaction and conscience of the court that the writings intended to be signatures were made by the persons named or were made at the direction of these persons. In this case the learned trial judge made positive findings of fact which emboldened him to reject the original document and one carbon copy of the original document. He should have without more, rejected the other carbon copy. The plaintiff failed to establish the original and two carbon copies of the will in solemn form. His duty was to dismiss the case of the plaintiff and enter judgment for the defendant. For the reasons given above, I am of the opinion that the appeal succeeds.

I do not think I should proceed to consider the other grounds of appeal. I set aside the judgment of the lower court. I enter judgment for the defendant. I revoke the grant of probate of carbon copy of exhibit A, namely exhibit B.