AGYEKUM AND OTHERS vs. WONTUMI AND OTHERS [1999-2000] 2 GLR 740

CASES REFERRED TO

(1) Sasu v White Cross Insurance Co Ltd. [1960] GLR 4, CA.

(2) Conney v Bentum-Williams [1984-86] 2 GLR 301, CA.

(3) Savory, Re (1851) 15 Jur 1042; (1851) 18 LT OS 280.

(4) Holtam, Re; Gillette v Rogers (1913) 108 LT 732.

(5) Kieran, Re [1933] 1 R 222.

APPEAL by the appellants from the judgment of the High Court, Accra, dismissing their action challenging the validity of a will and testament purported to have been made by their deceased father. The facts are sufficiently set out in the judgment of Baddoo JA.

Kwesi Dapaah for the appellants.

J K Agyemang for the resondents.

Wood JA. I agree entirely with the lead judgment and the reasons given therefor and would only add a few words of my own.

On 10 February 1986, the plaintiff-appellants (hereinafter referred to as the appellants) took out a writ of summons challenging the validity of a will and testament purported to have been made by their late father, William Davies Agyekum. The charge of invalidity was based on two main grounds, but for the purposes of this appeal the particulars stated in the paragraph (16) of the statement of claim are the most pertinent. By it, the appellants alleged that “the said will was forged, and in any case,was not signed by William Davies Agyekum, deceased.” The defendant-respondents’(hereinafter referred to as the respondents) reaction to these serious claims coupled with their counterclaim made the issue of whether or not the signature of the late Agyekum was forged one of the central issues for determination. After hearing evidence from (i) a court appointed handwriting expert; and (ii) a number of witnesses on both sides of this divide, including a handwriting expert called by the respondents, the court concluded that the signature on the disputed will was that of the testator and gave judgment for the respondents, on their counterclaim, by which they prayed, inter alia, that the said will be admitted to probate. Not satisfied with the said decision, the appellants appealed to this court on as many as nineteen grounds, namely that “the

[p.743] of [1999-2000] 2 GLR 740 judgment is against the weight of evidence” and eighteen additional grounds, most of which in any case offended rule 8(5) of the Court of Appeal Rules, 1997 (CI 19), which among other things requires the intended ground, to be set out without any argument or narrative. I reproduce rule 8(5) of CI 19.

“(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrativeand shall be numbered consecutively.”

However, even a cursory look at the additional grounds of appeal shows that they are in argumentative or narrative form.

But perhaps the more disturbing matter is that in spite of the several grounds filed at the hearing, only four were argued, and together. Even so, in the arguments, counsel did not touch on the ground (4) at all, a ground which in my view raised a question altogether different from that raised by the other grounds of appeal. A reproduction of four of the grounds of appeal would, in my view, clarify the point I have made:

“(4) That if the testator herein scribbled his signature on exhibit B instead of signing it, which offends section 2(1) of the Wills Act, 1971 (Act 360) then the learned judge misdirected himself by non-direction in holding otherwise.

(6) That since the court order dated 21 July 1986 as scrupulously and meticulously carried out by the deputy chief registrar – the first plaintiff witness – the learned trial judge erred in holding that the plaintiff alone carried out the said order to the disadvantage of the defendants.

(15) Since the signature on exhibit B looked a very fluent one of a very able-bodied person, not having the remote resemblance of a scrible as testified to by the second defendant, the learned trial judge erred in holding that it was the testator’s signature and not a forged one.

(16) The learned trial judge erred in prefering the finding of an unforernsically examined document by the seventh defendant witness – JA Owusu, an expert in narcotics examination, to the same document forensically examined by a handwriting expert who held that the said

[p.744] of [1999-2000] 2 GLR 740 signature is not that of the alleged testator, Williams Davies Agyekum.”

We will find from the written submissions that clearly the arguments at best covered only grounds (6), (15) and (16). But since counsel submitted they are being proffered in support of all the four grounds, I propose to examine ground (4) also, even though no specific submissions were made in support of same. Undoubtedly, however, I consider the other grounds abandoned, since these were not even mentioned in passing,

The main argument put forward in support of these grounds of appeal is that, faced with the two conflicting opinion evidence, namely that of the court appointed expert and the expert called by the respondents who is a private consultant working for a fee, the court ought to have opted for the evidence of the former which was that the signature was, indeed, a forgery.The appellants premised their argument on the following: First, that he being a court appointed witness, owed no allegiance to any particular party and was not particularly interested in the outcome of the dispute and was therefore more likely to be candid independent and unbiased in his opinions and conclusions. Secondly, since the mode of collecting known specimens for comparison, as was clearly borne out by the evidence of the court officials, who again are disinterested persons, was as directed by the court, specifically that they be obtained from the deceased’s secretary, another disinterested party, the result was more likely than not to be reliable. It was urged that contrariwise, since the specimens used by the respondents’ expert were procured by the respondents themselves, without the knowledge or consent of the appellants or their counsel, it was not possible to attach the same degree of weight or reliability to that expert’s rival opinion. In any case, it was submitted, it was palpably wrong for the court to fail to assign reasons for its preferred choice.

I agree with the submissions of counsel for the appellants that the court ought to have given or stated its reasons for preferring the opinions of the first defendant witness. The opinion or conclusions reached by expert witnesses as well as their reasons for drawing them are and remain at best opinion only. In my humble view, therefore, where there are two or more conflicting expert opinions, the interest of justice demands that a court of law does assign reasons for preferring one opinion to the other. When it is

[p.745] of [1999-2000] 2 GLR 740 borne in mind that the aid of the expert(s) was or were sought in the first place, primarily because the judge finds himself handicapped in the particular field of study, it becomes plainly obvious that the duty to assign reasons for rejecting or accepting one opinion in preference to another must not be compromised. However, in this instant case, the trial judge merely stated very briefly what each expert said without assigning reasons for his preferred choice. All he did say was, “I cannot say on the evidence that Mr Owusu is not qualified to give evidence as a document examiner.”

Be that as it may, even if it can be said of him that he failed to discharge his duty and further that he ought to have opted for the court appointed witness’ opinion, I nevertheless think the most pertinent issue raised is whether or not a reversal of the trial judges finding on this issue would turn the outcome of this case in appellants’ favour. My answer is, no. I do not think the court expert’s opinion would have made any difference, let alone a significant improvement to the appellants’ case. I now give my reasons for coming to this conclusion: In the first place, it does not seem to me that the evidence of the first defendant witness made a major impact on the respondents’ case. As the respondents’ counsel rightly pointed out, the court did not base its conclusion that the signature was genuine primarily on the first defendant witness’s opinion, but on the evidence adduced by both sides as a whole. The learned trial judge reviewed and evaluated the evidence led on both sides and assigned reasons for concluding that the appellants have failed “to lead evidence to establish the onus which shifted on them.” None of those considerably important primary findings of fact have been challenged and at this hearing we as an appellate court would have no power to interfere with them. It follows that even if we concluded that on the evidence the court appointed witness’ opinion is preferable to the first defendant witness’ it would only be an opinion which cannot by itself rebut the evidence of the attesting witnesses, and the other witnesses called by the respondents, and which evidence the court found compelling.

When the trial judge decided not to be guided solely by the evidence of the experts but the whole of the evidence, he indeed was following precedent. I think he deserves commendation. The contention of counsel for the appellant that he failed to advert his mind to the admonition in Sasu v White Cross Insurance Co Ltd [1960] GLR 4, CA is completely fallacious. It was held in that

[p.746] of [1999-2000] 2 GLR 740 case that expert evidence is to be received with reserve, and does not absolve a judge from forming his own opinion on the evidence as a whole. This 40-year old principle of law has been reaffirmed in a number of local cases, as for example Conney v Bentum-Williams [1984-86] 2 GLR 301 at 308, CA. One of the issues the court in the Bentum-Williams case (supra) was called upon to decide was whether the signature on a deed of conveyance (exhibit C) being relied on by the plaintiff as the root of his title was a forgery. As happened in this instant case, an expert was appointed to help the court determine this important fact. The court concluded it was not. On appeal, it was among other things argued that the report of the expert, not being positive that the signature on the deed was that of the alleged vendor, the learned judge was wrong to hold that the disputed conveyance was not a forgery. The Court of Appeal, unanimously speaking through Abban JA (as he then was), opined:

“It does not seem to us that the learned judge relied solely on the report. In any case, the learned judge was entitled to draw his own inference from all the pieces of evidence before him, including the report.”

Because this complaint of the appellant counsel is one of the grounds on which this appeal is founded, I think it is important to refer to the speech of Abban JA (as he then was) in the Bentum-Williams case (supra) as the learned justice painstakingly spelt out the role of the handwriting expert in exercises of this kind, as well as the duty of the trial judge whose function it is to determine the issues. His lordship expounded at 309:

“A handwriting expert is not required to state definitely that a particular writing is by a particular person. His function is to point out similarities or differences in two or more specimens of handwriting submitted to him and leave the court to draw it conclusions: see Watford v Lincoln (Bishop) (1921) 90 LJ 174 at 179, PC where the Lord Chancellor (Lord Birkenhead) reading the judgment of the Privy Council had this to say:

Their Lordship now turn to the examination of the words themselves. The expert called for the prosecution gave his evidence with great candour. ‘It is not possible,’ he says, ‘to say definitely that anybody wrote a particular thing.

[p.747] of [1999-2000] 2 GLR 740

All you can do is to point out similarities and draw conclusions from them. This is the manner in which expert evidence on matters, of this kind ought to be presented to the Court, who have to make up their minds, with such assistence as can be furnished to them by those who have made a study of these matters, whether a particular writing is to be assigned to a particular person.

In other words, an expert in handwriting having examined, deciphered and compared the disputed writing with any other writing, the genuineness of which is not in dispute, is only obliged to point out the similarities or otherwise in the handwriting; and it is for the court to determine whether the writing is to be assigned to a particular person. So in the case herein, the report was supposed merely to assist the court in deciding the vital issue of whether or not the conveyance, exhibit C, was a forgery and it would therefore have been an undue and unwarranted interference if it had gone further to pronounce on the very issue which the court was called upon to determine.”

Indeed, a look at sections 112 and 114(1) of the Evidence Decree, 1975 (NRCD 322) confirms the legal status of the expert evidence—it is merely to assist the court to understand evidence in the action or determine an issue. They are reproduced hereunder:

“112. 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 determing 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.

114 (1) In any action at any time the court in its discretion of 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.”

It does follow that even if the testimony of the first court appointed witness is preferable to that of the first defendant witness, it would only amount to an opinion or inference, and it

[p.748] of [1999-2000] 2 GLR 740 would not be conclusive and be definitely cannot be binding on the court.

Also more importantly, as I have already pointed out, none of all the other primary findings of fact on which the court relied to arrive at its final conclusion that the signature was that of the testator have been challenged in any way and are indeed borne out by the record. The importance of the due weight the court attached to these important pieces of evidence cannot be over-emphasised. In the action mounted by the appellants in which they alleged that the signature was a forgery, they were bound, by the combined effect of sections 13(1) and 15(1) of NRCD 323, to prove the forgery beyond a reasonable doubt. In other words the court was as it were, to hold a “mini criminal trial” within the civil proceedings. True, the appellants have not alleged that the crime of forgery was committed by any of the respondents. But, the substance of the law in my view as laid out under section 13 of NRCD 323 is that, in civil proceedings, where one party alleges the existence of a crime which is directly in issue, the standard of proof required of the party alleging the fact is proof beyond reasonable doubt. It is a fairly high standard in civil actions, but that is the requirement of the law and it must be met if judgment must proceed in the favour of the party making the allegation. I reproduce the sections:

“13. (1) In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt . . .

15. (1) Unless and until it is a shifted, the party claiming that a pardon is guilty of a crime or wrongdoing has the burden of persuasion on that issue.”

I do not think the appellants discharged that burden of proving the forgery beyond reasonable doubt and the appeal must undoubtedly fail.

Finally, I would, in the interest of justice, and because it raises an Important or substantial question of law, like to address the issue raised by additional ground (4). Save that it was submitted that this ground of appeal was being argued alongside three other grounds, no specific formal submissions were made in support and therefore to some extent I confess I may be limited in my understanding of the appellants’ grievances as far as this ground is concerned. However, what I do gather from the said ground of

[p.749] of [1999-2000] 2 GLR 740 appeal itself is this: Because the testator scribbled his signature, he was in breach of section 2(1) of the Wills Act, 1971 (Act 360) which, required that a testatory append his signature. (The emphasis is mine).

First, may I point out that it is factually incorrect to allege that the evidence discloses that the testator “scribbled” his signature only. The word “scribbled” was introduced by only one witness, the late Major Brown, who at the time of giving evidence was the second defendant. This is how he expressed himself in his evidence-in-chief on that one occassion on the vital question of the execution of the will by the testator: “I helped him in a reclining position supporting himself on his left arm and turned in the direction of the coffee table and scribbled his signature.” The evidence clearly shows that later on in his evidence he used other expressions like “writing his signature” and when it was suggested to him that the late Agyekum never signed the will, his answer was “Mr Agyekum signed the will in my presence and that of Dr Owusu Afriyie and Yaw Amonful on 5 July 1985.” No issue, let alone a serious issue, was made of this use of the word “scribble”. But certainly, the sum total of his evidence was plainly that the testator signed the will. Other witnesses, particularly the attesting witnesses spoke of him (the testator) as signing, simpliciter. To maintain then that the evidence proved or pointed to a scribble is palpably wrong for the same is not borne out by the record.

But secondly, and even more importantly, assuming what the testator did was merely to “scribble his signature,” the pivotal question is, would that not qualify as a signature within the meaning and intendment of section 2 of Act 360 ? Differently stated, would a testator who merely “scribbles” a signature be in offence of section 2(1) of Act 360 such that it would invalidate the will ? I think not!

A testator who merely “scribbles” his signature intending the same to be on act of execution cannot be said to have violated section 2 of the Act 360. Neither would such a will be invalidated on the ground that the scribble does not qualify as a signature. Put in more positive language, my thinking is that where a will is executed (in accordance with Act 360) by the testator with a mere “scribble” or where he scribbles his signature, that signatures constitutes a sufficient signature within the meaning and intendment of Act 360. The essential matter is that the scribble must have been made with the intention or purpose of authenticating the will,

[p.750] of [1999-2000] 2 GLR 740 that is to say the scribble is intended to represent the maker’s signature to the will.

Indeed, all that Act 360 requires is that a will shall be signed by the testator or by some other person at his direction. Act 360 does not define “sign” and does not prescribe any particular form of signature. It follows that no restrictions are placed on the methods of signature. Act 360 does not prescribe how signatures are to be crafted. Happily, the Interpretation Act, 1960 (CA 4) does specify what is included in a signature. Section 32 of CA 4 stipulates that: in an enactment, “signature” includes a mark and thumbprint. By these clear provisions, a mark of any shape (and it maybe represented by a stroke only) suffices as a signature. So also initials, if it clearly is the testator’s intention that they pass as his signature. By parity of reasoning then, a scribble which is made up of more than one mark or stroke, more than qualifies as a signature, if intended to represent a signature. Since the argument is that by scribbling his signature the testator has not complied with section 2 of the Act 360 and the will is thereby invalidated, my judgment is that the argument is unmeritious and so also the appeal based on this ground.

I principally relied on the interpretation given to signature in CA 4 to arrive at my conclusion. But I think also that since section 2 of our Act 360 is in substance similar to section 9 of the English Wills Act, 1937, English authorities on the issue of what constitutes a sufficient signature under section 2 of their Act is of persuasive authority and should help in the removal of any lingering doubts as to what constitutes a signature within our own law. The well-known textbook, Halsbury’s Laws of England (4th ed), Vol 50 does throw light on the subject and is therefore one good source of authority. At paragraph 253, the learned author, writing under the heading “Methods of signature” states:

“A mark or initials or initials are sufficient if intended to represent a signature to a will, even if the testators hand is guided in making it, and whether the testator can write or not, and an incompleted signature is sufficient where there is evidence that he intended it to be the best he could do by way of writing his name … The signature must have been made with the purpose of authenticating the instrument. . .”

See also the cases listed by the learned author. They include: (1) Re Savory (1851) 15 Jur 1042; (2) Re Holtam Gillett v Rogers

[p.751] of [1999-2000] 2 GLR 740

(1913) 108 LT 732; and (3) Re Kieran [1933] IR 222 which serves as authority for the proposition that, “a mark of any shape, not necessarily a cross, is sufficient.”

Baddoo JA. The plaintiffs, now the appellants herein, brought this action against the defendants, now the respondents herein, for a declaration that the last will and testament of their late father, William Davies Agyekum, was invalid and of no legal effect and should be set aside; and also an order of perpetual injunction restraining the defendants and the beneficiaries and/or their assigns, agents or servants from interfering in any way whatsoever with the properties named in the will.

The facts which gave rise to this action were that one WD Agyekum died on the 3 September 1985. He was a prosperous businessman and had substantial properties. He made a will on 5 July 1985, which was deposited at the High Court on 6 September 1985 by a firm of solicitors headed by Major Brown. Before probate could be granted, a caveat was lodged by the plaintiffs who subsequently issued a writ, challenging the will, and asking for a declaration, as set out above.

The defendants in their defence set up a counterclaim for: (a) a declaration that the paper writing dated 5 July 1985, signed by the deceased and witnessed by the two attesting witnesses, is the deceased’s last will and testament and that the defendants are the executors thereof; and (b) an order that the said paper writing be admitted to probate. Several issues were set down for determination by the court, but the trial judge considered the following issues important:

“(e) Whether or not the second defendant was in house No 15, 3rd Road, Tesano, Accra on the morning of

5 July1985 for the purpose of executing the purported will of William Davies Agyekum.

(f) Whether or not Dr Ernest Paddy Owusu Afriyie and Yaw Ofori Amanfo, met the second defendant in house No 15, 3rd Road, Tesano, Accra on the morning 5 July 1985 and witnessed in the presence of the deceased and the second defendant the purported will of William Davies Agyekum, deceased.

(g) Whether or not the signature on the purported will is that of William Davies Agyekum.

[p.752] of [1999-2000] 2 GLR 740

(h) Whether or not the will herein was executed in accordance with the provisions of the Will Act, 1971 (Act 360).

(i) Whether or not the said will of William Davies Agyekum was forged and was not signed by him.”

The trial judge after hearing defendants found that they have been able to establish a prima facie case that the will was genuine and therefore, the onus shifted on the plaintiffs to adduce evidence to establish that the will was a forgery. After hearing the evidence for the plaintiffs, the trial judge concluded that the plaintiffs had failed to lead evidence to establish the onus which shifted on them. He therefore declared the will valid and should be admitted to probate.

It is against this judgment that the plaintiff-appellants have appealed to this court. On 21 January 1991, the ground of appeal filed was thatthe judgment was against the weight of evidence. Then in July 1985, eighteen additional grounds were filed. The appellants filed their statement of case in March, while the respondents filed their statement in April 1999. The first additional ground of appeal was: “Since the fundamental requirement of law is that the propounders of a will must, prima facie, prove by evidence that the said will is in order before the burden of proof shifts to the attacker of it, the learned trial judge grievously erred in prima facie putting the said burden on the attackers therein, to wit, the plaintiffs herein before the burden shifting on to the propounders in this case.”

This ground of appeal is totally misconceived for the learned trial judge correctly applied the law. This is what he said on page 341, line 5 of the record:

“It is clear from the pleadings that the defendants are propounding the will and the plaintiffs are attacking it. It follows that the defendants should show by evidence that the will in this case exhibit B is prima facie in order. Thereafter the burden shifts on the plaintiffs to substantiate by evidence that the will was not signed by the deceased and was forged.”

The learned trial judge then reviewed the evidence adduced by the defendants in support of the claim that the will was valid and genuine. At the end of the review he said on page 341, line 41:

[p.753] of [1999-2000] 2 GLR 740

“I am satisfied on the evidence by the defendants that they as propounders, of the will have established a prima facie case that the will is in order. The burden now shifts on the plaintiffs to substantiate their case by evidence.”

The trial judge then went through the evidence adduced for the plaintiffs’ case. He examined the various witnesses called by the plaintiffs and concluded on page 346 line 33 as follows:

“After considering the whole of the evidence, I have come to the conclusion and find that on the balance of probabilities that the second defendant, Dr Owusu Afriyie, and Yaw Amanfo were in the house of the deceased on 7 May 1985 and the will was executed and signed by the witnesses as they described.”

It is clear, from the foregoing that the learned trial judge appreciated the law that the defendants as propounders of the will must satisfy the court that the will was genuine. Thereafter the plaintiffs had the burden to show that the Will was a forgery. After considering all the evidence the trial judge came to a conclusion that the defendant had discharged their burden of proving that the will was properly executed and signed by the witnesses. Ground (1) of the appeal therefore fails.

The plaintiffs then sought leave to argue grounds (4), (6), (15) and (16) together. These grounds related to the signature of the testator. It was the case for the plaintiffs that the evidence led on their behalf that the signature was forgery was not shaken nor contradicted by the defendants; that the expert witness called by the court itself gave evidence in support of the case for the plaintiffs while the expert witness called by the defendants gave evidence in support of the case for the defendants. And therefore the trial judge should have given reasons for preferring the evidence of the expert witness called for the defendants. In failing to give reasons, the plaintiffs submit, that the trial judge had misdirected himself.

It seems to me that the judgment in this case is entirely grounded on the facts of the case and the credibility of the witnesses. It has been held in several cases that questions of fact are to be determined by the trial judge. So in Oppong Kofi v Fofie [1964] GLR 174 at 189, SC the Supreme Court held, per Adumua-Bossman, as follows:

[p.754] of [1999-2000] 2 GLR 740

“. . . it is well settled that where there is evidence on record which could be accepted by the trial judge as a judge of facts and he has accepted the same to give judgment for the respondent, the appeal court ought not to interfere with the judge’s decision.”

In Praka v Ketewa [1964] GLR 423, SC the Supreme Court held that an appeal is by way of rehearing and so an appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the extent that the trial court could. Where however the decision depends on the credibility of witnessses, the appeal court ought not to interfere with findings of fact except where they were shown to be wrong or where those facts were wrong inferences drawn from admitted facts or facts found by the trial court.

In Nyame v Tarzan Transport [1973] 1 GLR 8, CA, the Court of Appeal held, as stated in the headnote, holding (1), that:

“An appellate court is loth to disturb a finding of fact by a trial judge who has had the advantage of observing the demeanour of witnesses, their candour or their partisanship and all the incidental elements which make up the atmosphere of an actual trial. But it is far more ready to reverse his decision in a case which depends on inferences from admitted or his undisputed facts.”

Again in Darkwah v Denteh [1972] 2 GLR 305, CA the Court of appeal held, as stated in the headnote, holding (2), that:

“(2) . . . an appeal court should not interfere where the question is purely one of fact unless it can be shown that the trial judge did not take all the circumstances into account or he misapprehended the evidence or drew an inference which there is no evidence to support.”

Finally, in Asibey III v Ayisi [1973] 1 GLR 102, CA the Court of Appeal, held, as stared in the headnote, holding (1) that:

“(1) when a decision, upon an issue depended upon the credibility of witnesses who had given evidence at the trial and the question as to which witness was to be believed, and that question turned upon manner and demeanour an, appellate court would not interfere with a finding on that issue by the trial judge. But if there were circumstances existing which

[p.755] of [1999-2000] 2 GLR 740 in the opinion of the court would go to the credibility of witnesses, it would differs from the trial judge.”

Now, applying the law pronounced in these cases to the present case, can it be said that this is a case where the Court of Appeal can, interfere with the decision of the court? I must state quite clearly that the decision of the trial judge was based entirely on the facts of the case and on the credibility of the witnesses. I propose therefore to examine whether these was evidence upon which the trial judge could found a decision.

The most important issues upon which the trial judge founded his decision was (a) whether or not the signature on the purported will is that of William Davies Agyekum; and (b) whether or not the will was executed in accordance with the provisions of Act 360. Since the defendants had assumed the evidential burden as proponents of the will they had to call evidence to show that that was the testamentary wish of the late Agyekum and that he was mentally sound at the time the will was executed and lastly it was executed in accordance with section 2 of Act 360.

For the respondents, one Yaw Ofori Amanful gave evidence as first defendant witness. He stated that on 5 July 1985, he and Dr Afriyea went to the house of the late Agyekum. The late Agyekum was a patient of Dr Afriyea. After Dr Afriyea had seen Mr Agyekum, he came back and asked him if he could witness a will for Mr Agyekum. He agreed and was introduced to Mr Agyekum, who was then lying in bed, very sick. The second defendant, who was solicitor for Mr Agyekum was also present. In the presence of the witness, Mr Agyekum signed three copies of the will. Dr Afriyea also signed the same copies. This witness was cross-examined extensively by the plaintiffs and it was suggested to him that he was not at the house of Mr Agyekum at all. But he maintained his story.

The next material witness for the defendants was Ernest Paddy Owusu Afriyea, a specialist in general surgery and urology with the Police Hospital, Accra. He testified that the late Wiliam Davies Agyekum was his patient between May 1984 and July 1985. He testified further that he was present when the late Agyekum signed exhibit B, the will. He sat less than a yard from him when he signed the will. His cousin Yaw Ofori Amanful was also present when the late Agyekum signed the will. He also signed as a witness. He was also cross-examined extensively. It

[p.756] of [1999-2000] 2 GLR 740 was suggested to him that he never went to the house of Mr Agyekum at all, on the day in question. He maintained that he was there and did witness the signing of the will by Mr Agyekum as well as being a witness of the will himself.

The respondents called others witness to testify on their behalf. In all, nine witnesses were called for the respondents, but it will not be necessary to repeat that evidence because they are not relevant to establish the execution of the will. The second respondent gave evidence for himself and testified about how he drew up the for the late William Davies Agyekum. He testified about how Dr Afriyea and Yaw Ofori Amanful came to the house of the late William Davies Agyekum on 5 July 1985 and how they witnessed the signing of the will by Mr Agyekum. The two people themselves signed as witnesses. All these events took place in the presence of the second defendant, who was an executor. He also was subjected to extensive cross-examination but he maintained that his evidence was true.

For the appellants, seven witnesses were called to testify on their behalf. I shall deal with the witnesses who spoke about the events which took place on 5 July 1985, the date on which the will was executed in the house of the late Agyekum. The third appellant, Harry Panin Agyekum, gave evidence for himself. He testified that the deceased was his father. That he died on 3 September 1985. That on 5 July 1985 he was in his father’s house at Tesano. He did not see Dr Afriyea or the other gentleman, Yaw Ofori Amanful in the house on that day. If they had come to the house, he would have seen them because there was only one gate to the house with a padlock which was kept by the children. Their father was ill and could not move by himself, so they, the children, were holding him and bringing him out to relax on a chair. He insisted that the will was forged and that there was no execution of any will on 5 July 1985 in that house.

After hearing all the witnesses for the appellants and the respondents, the learned trial judge had to decide which version is credible and should be accepted by the court. The trial judge said:

“Both the second defendant and Dr Owusu Afriyea are men of some standing in their chosen professions as solicitor and medical officer, respectively; Mr Ofori Amanful had been resident in England, and of course may not be well-known except that he is related to Dr Owusu Afriyea. The second

[p.757] of [1999-2000] 2 GLR 740 defendant had known the deceased since 1962 and Dr Afriyea had treated him for sometime. I conclude that I have not found any good reason why they should conspire to forge the will.

A reading of the will convinces me that the contents or instructions, the various devises and bequests could only come from the deceased himself. After considering the whole evidence I have come to the conclusion and find that on the balance of probabilities the second defendant Dr Afriyea and Yaw Amanful were in the house of the deceased 5 July 1985 and that the will was executed and signed by the witnesses as they described.”

It is my considered opinion that there is evidence on the record upon which the trial Judge could found for the defendant; and since these are questions of fact, and depend on the credibility of the witnesses this court will not interfere with the judgment of the trial court.

The appeal is dismissed accordingly.

Farkye JA. I concur with the judgment deliverd by the president, Wood JA and I have nothing to add.

Appeal dismissed.

SA