KELLS AND ANOTHER vs. ADJEI AND OTHERS [2001-2002] 1 GLR 617

CASES REFERRED TO

(1) McDonald v McDonald, 142 Ind 55; 4 NE 336.

(2) Weber v Storobel, Mo Sup 194 SW 272.

(3) McCoy v Conrad, 64 Neb 150; 89 NW 665.

(4) Maginn’s Estate, In re, 278 Pa 89; 30 ALR 418.

(5) Clarkson v Kirkright, 291 Ill 609; 126 NE 541.

(6) Tyrell v Painton (1894) 151 P 157, CA.

(7) Baird v Shaffer, 101 Kan 585.

(8) O’ Connor’s Estate, In re, 179 NW 401.

(9) Sasu v White Cross Insurance Co Ltd [1960] GLR 4.

(10) Essien alias Baidoo, In re; Essien v Adisah [1987-88] 1 GLR 539.

(11) St Edmundsbury and Ipswich Diocesan Board of Finance v Clark [1973] 1 Ch 323. (12) Asante v Bogyabi [1966] GLR 232, SC.

(13) Ohene (Decd), In re; Adiyia v Kyere [1975] 2 GLR 89, CA.

(14) Banahene v Adinkra [1976] 1 GLR 346, CA.

(15) Cock v Cooke (1866) 1 P & D 231.

[p.622] of [2001-2002] 1 GLR 617 (16) King’s Proctor v Daines (1830) 162 ER 231.

(17) Radwan v Radwan [1973] Fam 24; [1972] 3 WLR 735; [1972] 3 All ER 1026.

(18) Ghana Consolidated Diamonds Ltd v Boahene [1987-88] 1 GLR 87, CA.

(19) Don Jayasena (Rajapakse Pathurange) v R [1970] AC 618; [1970] 2 WLR 448; sub nom Jayasena v R [1970] 1 All ER 219, PC.

(20) Home Office v Dorset Yatch Co [1970] AC 1004; [1970] 2 WLR 1140; [1970] 2 All ER 294, HL. (21) Odametey v Clocuh [1989-90] 1 GLR 14, SC.

(22) Amuzu v Oklikah [1997-98] 1 GLR 89, SC; [1998-99] SCGLR 141.

(23) Asantekramo alias Kumah v Attorney-General [1975] 1 GLR 319.

(24) Yat Tung Investment Co v Dao Heng Bank [1975] AC 581; [1975] 2 WLR 690; 119 SJ 273, PC. (25) Obeng alias Donkor v The State [1966] GLR 259.

(26) Pomaa v Fosuhene [1987-88] 1 GLR 244, SC.

(27) Ayayee (Decd), In re; Kukubor v Ayayee [1982-83] GLR 866.

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

APPEAL by the defendant-appellants to the Supreme Court from the majority judgment of the Court of Appeal dismissing their appeal against the decision of the trial High Court, Accra wherein the court held that the will of Dr Blay-Miezah dated 29 January and propounded by the plaintiff-respondents was valid and therefore granted the respondents probate of that will. The facts are sufficiently stated in the judgment of Acquah JSC.

Stephen Annancy for the first defendant-appellant.

J K Agyemang for the second defendant-appellant.

WA N Adumua-Bossman for the plaintiffs-respondents.

Acquah JSC. Dr John Ackah Blay-Miezah, traditionally known as Nana Ackah Nyanzu II, Gyasihene of Benin in the Western Region of Ghana, during his lifetime comported himself and led [p.623] of [2001-2002] 1 GLR 617 such a lifestyle as to make the public believe that he was one of the richest, if not the richest, person then in Ghana. He died in Accra in 1992 leaving behind an estate alleged to value about US$42 billion. As to whether he did, indeed, have all that much is another matter. However, in one of his wills dated 8 May 1988, he made total cash bequests of over US$80 million to about 50 named beneficiaries. It is in respect of this estate that one Dr John Robert Kells, a teacher in Chinese exercise and meditation in London, sought a declaration at the High Court, Accra that a will produced by him and claiming to have been made by the late Dr Blay-Miezah on 29 January 1989 was valid. The said will named this Dr Kells as the sole executor and sole beneficiary of the entire estate of Dr Blay-Miezah. The family and close members of the deceased emphatically denied the validity of this will. They alleged it was a forgery. The High Court (Mrs Sawyer-Williams J) on 20 May 1997 gave judgment for Dr Kells declaring the will valid. The Court of Appeal on 18 November 1999 by a majority of 2:1 confirmed that decision. It is from this decision that the instant appeal is launched. But first, the events that led to the institution of the action.

Dr John Ackah Blay-Miezah died at Abelemkpe in Accra on 30 June 1992 leaving behind a wife and fourteen children, including minors. After his burial, it came to the knowledge of his family that he had left behind a will deposited in some banks in Switzerland. The family therefore decided that his widow, Mrs Joyce Blay-Miezah, and the head of the family, Nana Asemda should apply for letters of administration to enable them retrieve this will from Switzerland. An application for letters of administration was accordingly filed at the High Court, Accra and it was granted to Mrs Joyce Blay-Miezah and Nana Asemda on 22 January 1993. Subsequently, Mr Adumua-Bossman applied on behalf of Dr John Robert Kells and the same Nana Asemda, for probate in respect of a will allegedly made by Dr Blay-Miezah on 29 January 1989 (the 1989 will). Once the letters of administration in respect of the same estate was subsisting, the application for probate was naturally refused.

In due course, a copy of the will deposited in Switzerland, had been obtained and deposited at the High Court, Accra. It is dated 8 May 1988 and would (hereinafter be referred to as the 1988 will).

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Dr Ako Adjei and Francis K Mensah sought an application for probate of this will, but it was caveated.

In the interim, a second application for probate of the 1989 will was made by Dr John Kells and Joseph Whaja. Francis K Mensah, Nana Asemda, Roxana Kim Blay-Miezah and Francis Kolorah Blay-Miezah lodged caveats to this application. The last two being the eldest female and male children of the late Dr Blay-Miezah. All the four caveators contended that the 1989 will was a forgery.

The Chief Justice transferred all applications on the estate of the late Dr Blay-Miezah to the court of Akoto-Bamfo J (as she then was) who in her ruling on 28 October 1994, ordered: “that the executors of the 1989 will do issue a writ within fourteen days asking the court to pronounce on the validity of the said will.” Consequently, the applicants for probate of the 1989 will, Dr John Kells and Joseph Whajah issued the writ in this appeal, against Dr Ako Adjei and Francis K Mensah, the applicants for probate of the 1988 will, claiming:

“(1) A declaration that the will dated 29 January 1989 of Dr John Ackah Blay-Miezah, deceased, of Accra is valid, and genuine and not tainted by any forgery.

(2) Such further or other relief as in the circumstances may be just.”

Roxana Kim Blay-Miezah and Francis Kolorah Blay-Miezah joined the action as the third and fourth defendants, on their own application.

In the statement of claim accompanying their writ of summons, the plaintiffs pleaded that the 1989 will was prepared and executed on 29 January 1989 at the residence of the late Dr Blay-Miezah at 6 Avenue Road, St John’s Wood, London NW 8 in the presence of the testator, Dr John Kells, Mrs Angelika Pennington, Dr Emmanuel Ayeh-Kumi, Nana Arvo Buah, Mr Kim and James Kaku; and that Dr Ayeh-Kumi and Mrs Pennington signed as attesting witnesses in the presence of all the remaining people.

The defendants denied the contention of the plaintiffs and pleaded that the late Dr Blay-Miezah did not make any will on 29 January 1989, and that any will purporting to bear that date was a forgery. They contended also that the late Dr Ayeh-Kumi was not

[p.625] of [2001-2002] 1 GLR 617 at house No 6 St John Avenue Road, London on 29 January 1989, and that the signature of Dr Ayeh-Kumi appearing on the said 1989 will was a forgery. They further pleaded that the late Dr Blay-Miezah was in the habit of signing blank letterheads, and that the alleged 1989 will was forged on one such signed blank letterhead. They then counterclaimed for probate of the 1988 will. The first, third and fourth defendants filed a joint statement of defence and counterclaim, while the second defendant filed a separate defence and counterclaim. But both statements of defence and counterclaim essentially defended the action as set out above.

The main issues set down for trial were:

“(a) Whether or not the late Dr John Ackah Blay-Miezah (deceased) executed the will, which on the face of it purports to have been executed on 29 January 1989.

(b) Whether or not the signature thereon of E Ayeh-Kumi (since deceased) as the first attesting witness thereof was forged.

(c) Whether or not the defendants are entitled to complain on grounds of forgery or otherwise against the said 1989 will.

(d) Whether or not the plaintiffs are in any event entitled to a grant of probate of the 1989 will.”

At the trial, the court suo motu submitted for forensic examination a number of documents to determine the genuineness of the signatures of Dr Blay-Miezah and Dr Ayeh-Kumi. The documents included exhibit 21, being the 1989 will, and exhibits 28 and O, being copies of the 1988 will. Mrs Sophia Ofori-Attah, the attorney of the first plaintiff, and six witnesses presented the plaintiffs’ case; whereas for the defendants, the first, third and fourth defendants and eight witnesses testified. In the course of the trial, the court in the teeth of opposition from the defendants, moved to London at the instance of the first plaintiff to take the evidence of Dr Kells and Mrs Pennington. But in London, only Mrs Pennington testified.

In her judgment, the trial judge accepted the evidence in-chief of Mrs Pennington as the truth on the making of the 1989 will, and consequently held that the plaintiffs had discharged the burden on them. She then called on the defendants to lead evidence to rebut

[p.626] of [2001-2002] 1 GLR 617 the said evidence. Although Mrs Pennington’s evidence on the number of people present at the preparation and execution of the 1989 will did not tally with the averments in the plaintiffs’ paragraphs (6) and (7) of their statement of claim, the trial judge held that this was not material. She also found the signature of Dr Ayeh-Kumi on the 1989 will to be valid, and concluded that the 1989 will was valid. She then held that exhibit 28, the 1988 will, and exhibit 16 being a handwritten nuncupative will of the late Dr Blay-Miezah dated 9 June 1992, were invalid. There was also a codicil made by the deceased, dated 16 August 1990 and tendered as exhibit 13. She held this to be valid.

At the Court of Appeal, the defendants seriously challenged the findings and declarations of the trial court. They also challenged the jurisdiction of the High Court to sit in London; and accused the judge of being biased in favour of the plaintiffs. On their complaint of bias, the first defendant sought and was granted leave to adduce fresh evidence. To this end, the chief registrar of the court, Mr Kotei, testified as the first Court of Appeal witness and tendered in evidence two separate probates granted by the trial judge in respect of the estate of the deceased. The first was granted soon after the judgment, to the two plaintiffs. This was tendered as Court of Appeal exhibit C, thereafter the same judge granted another probate to Dr Kells alone at a time when the first probate exhibit C was subsisting. This second probate was tendered as Court of Appeal exhibit E. The trial judge also was called as a witness and testified as the second Court of Appeal witness. In her evidence, she was made to tender two letters, which she personally wrote to Dr Kells after she had delivered her judgment. The two letters were dated 22 September 1997 and 20 October 1997 and tendered as Court of Appeal exhibit F and Court of Appeal exhibit G, respectively. At the time she wrote these letters, an appeal against her judgment was pending at the Court of Appeal, yet she sought in those letters to assure Dr Kells that there was no chance of the appeal succeeding. In exhibit G she wrote to Dr Kells:

“The repeated rejection of the applicants’ attempt to prevent the executors from embarking upon administration of Blay-Miezah’s estate under the 1989 will indicates that the trial High Court and the Court of Appeal do not think that in the

[p.627] of [2001-2002] 1 GLR 617 circumstances there is any serious danger of prejudice to the outcome of Dr Ako-Adjei’s appeal if the executor should commence their administration of Blay-Miezah’s estate immediately. There is therefore nothing now in law to prevent the immediate administration of the estate by the executor.”

On what basis could the trial judge give such an assurance to Dr Kells at a time the Court of Appeal had not determined the appeal against her judgment? Was it proper for a judge to do this? No wonder the defendants accused her of bias!

In their judgment, the Court of Appeal held that the High Court had no jurisdiction to sit outside the territorial limits of Ghana, and therefore the evidence of Mrs Pennington taken in London was null and void. But the court proceeded to hold that notwithstanding the nullity of the fourth plaintiff witness’ evidence, the trial judge’s decision that the 1989 will was valid was sustainable on the basis of an affidavit of Mrs Pennington tendered as exhibit E. The Court of Appeal also set aside the declarations made by the trial judge in respect of the 1988, 1990 and 1992 testamentary dispositions. The Court however agreed with the trial judge’s view that the variation between the evidence of the plaintiffs on the number of people present at the preparation and execution of the 1989 will, and that pleaded in their statement of claim was not material.

It is against this judgment that the first and second defendants launched this appeal. The first defendant attacked the judgment on eleven grounds, while the second defendant filed seven grounds. Most of the grounds were similar. Not surprisingly therefore, the first defendant adopted the written submissions of the second defendant and thereafter made further submissions. The eighteen grounds of appeal can conveniently be regrouped into:

(i) A challenge on the court’s endorsement of the trial court’s view that the difference between the evidence led and the pleadings were immaterial.

(ii) Attack on the court’s endorsement of the trial judge’s finding that the 1989 will was valid. This ground covers the Court of Appeal’s endorsement that the plaintiffs succeeded in discharging the onus on them with regard [p.628] of [2001-2002] 1 GLR 617 to the validity of the 1989 will.

(iii) The Court of Appeal’s failure to appreciate the case of the defendants and the real issue in dispute, and thereby like the trial court, fell into serious error.

(iv) The Court of Appeal’s decision that the affidavit of Mrs Pennington, exhibit E, was sufficient to sustain the validity of the 1989 will, notwithstanding the nullity of the fourth plaintiff witness’ evidence.

(v) The Court of Appeal’s setting aside of the trial judge’s finding on exhibit 13, the 1990 codicil.

For a better appreciation and determination of this appeal, it is important first to identify the real issues raised by the parties for the determination of the court.

Now, although it is true that where the validity of a will is challenged, the court is duty bound eventually to pronounce on this, the issues to be resolved by the court in arriving at such a conclusion depend on the issues the parties have by their pleadings raised for trial. For pleadings are not just mere puppets in the process of adjudication but essential means of unfolding what is in dispute between the parties. It is through pleadings that parties set out the nature of their complaint and the basis of their disagreement with the opposing party. And from the nature of their complaints and the areas of disagreement, the issues in dispute between them are identified. It is in furtherance of identifying the issues between the parties that the rules of pleadings require that where a party makes certain allegation like fraud, forgery and negligence, the particulars of that allegation must be pleaded for the opposing party to know precisely how to respond to that allegation. Once the parties have complied with the requirements of pleadings and the issues between them have been identified and agreed upon, it is not permissible for the court to ignore the issues and dangle in fanciful legalities.

Master I H Jacobs in his paper: “The Present Importance of Pleadings in Current Legal Problems” (1960), pp 171-174 set out the functions of pleadings as follows:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings . . . Pleadings do not only define the issues

[p.629] of [2001-2002] 1 GLR 617 between the parties for the final decision of the Court at the trial; they manifest and exert their importance throughout the whole process of the litigation. They contain the particulars of the allegations of which further and better particulars may be requested or ordered, which help still further to narrow the issues or reveal more clearly what case each party is making. . . They limit the ambit and range of the discovery of documents and the interrogatories that may be ordered. They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or of fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure of comparing the evidence of a party with the case, which he had pleaded. They determine the range of admissible evidence, which the parties should be prepared to adduce at the trial. They provide the basis for the defence of res judicata in subsequent proceedings by reference to the record in the earlier proceedings.”

It follows as Master I H Jacobs pointed out at pp 172-173 that:

“The Court itself is as much bound by the pleadings of the parties as they themselves. It is no duty or function of the Court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.”

In the instant case, what were the issues for trial? As explained earlier, the ground for caveating the application for probate of the 1989 will was forgery—that is, the testator made no will on the said 29 January 1989. And thus, in their effort to establish the validity of the 1989 will, the plaintiffs pleaded in paragraphs (6), (7) and (8) of their statement of claim, the following:

“(6) All the defendants assert that the said 1989 will is forged will. The plaintiffs, however contend that the said 1989 will was made by the said testator at his residence at 6 Avenue Road, St John’s Wood, London NW 8 in the presence of the following persons, namely:

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(a) the said testator himself;

(b) the first plaintiff;

(c) Mrs Angelika Pennington (the said testator’s personal nurse);

(d) Dr Ayeh-Kumi (who subsequently died in or about 1989 in London);

(e) Nana Arvo Buah;

(f) Mr Kim (a Japanese aide to the said testator); and

(g) James Jehanyiere Kaku (nephew and personal attendant of the said testator).

(7) Out of the six others then present, only Dr E Ayeh-Kumi and Mrs Angelika Pennington were invited in the presence of all the others to attest the signature of the said two attesting witnesses who were present together. And they accordingly subscribed their respective signatures as witnesses in the presence of the said testa- tor and in the presence of each other and in the presence of all the others aforesaid.

(8) The plaintiffs therefore contend that the said 1989 will was then and has remained to this day perfectly genuine in all respects whatsoever, and no signature appearing on the face thereof is a forgery as alleged by the defendants or at all. Indeed, the plaintiffs’ allegation of forgery is not made in good faith, but on the contrary, is in bad faith, purely speculative, and calculated to mislead the court and to delay or even frustrate the grant of probate to the plaintiffs.”

To the above case of the plaintiffs the statement of defence of the first, third and fourth defendants stated, inter alia:

“(3) The defendants in further answer to paragraph (1) of the statement of claim say that the late Dr John Ackah Blay-Miezah did not make any will on 29 January 1989 and any will purporting to bear that date is a forgery.

(8) The defendants deny paragraph (6) of the statement of claim and will put the plaintiff to strict proof.

(9) The defendants deny that the persons named in

[p.631] of [2001-2002] 1 GLR 617 paragraph (6) of the statement of claim were present when the alleged will was made and will put the plaintiffs to strict proof of the presence of the persons named. Furthermore, the defendants deny that Mrs Angelika Pennington was the personal nurse of the late Dr Ackah Blay-Miezah and will insist on strict proof of the averment.

(10) The defendants will further contend that the signature of Dr Emmanuel Ayeh-Kumi, as one of the attesting witnesses appearing on the said will dated 29 January 1989, is a forgery and that the said will was never executed by the deceased.

(11) The defendants say that the genuine signature of the late Dr Ayeh-Kumi is to be found in his passport and other documents, and that the signature on the purported will of 29 January 1989 is different and a forgery. The defendants therefore pray the court to refer these three documents to the police laboratory for examination.

(11) The defendants deny paragraph (7) of the statement of claim and will put the plaintiffs to strict proof of the presence of the said Dr E Ayeh-Kumi and Mrs Angelika Pennington present together and in the presence of the deceased at the execution of the alleged will.

(12) The defendants deny paragraphs (8) and (9) of the statement of claim.

(13) The defendants in further answer to paragraphs (8) and (9) of the statement of claim say that no will of the late Dr Ackah Blay-Miezah was executed on 29 January 1989 and that any document purporting to be the will of the deceased executed on the said date is a forgery as false.

(14) The defendants will contend that the late Dr Ackah Blay-Miezah in his codicil dated 16 August 1990 and nuncupative will of 9 June 1992 specifically made reference of his will of 8 May 1988 which he had deposited in UBS and UOB in Switzerland whereas there was no mention whatsoever of 29 January 1989 will.

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(15) The defendants will further contend that the late Dr Blay-Miezah never made mention of any will of 29 January 1989 because no such will ever existed.

(16) The defendants will also request the plaintiffs to indicate with proof where the said will of 29 January 1989 was deposited when it was allegedly executed.”

The first, third and fourth defendants thereafter in their paragraphs (17) and (18) made the following serious allegations:

“(17) The defendants will at the trial lead evidence to establish that the plaintiffs and in particular the second plaintiff presented a will purported to have been executed on 15 June 1992 in identical terms as that of 29 January 1989, which said will was executed after the death of Dr Ackah Blay-Miezah.

(18) The defendants say that the late Dr Blay-Miezah during his lifetime signed blank letterheads and some of these signed blank letterheads got into the hands of unscrupulous people who have taken advantage to fill in the blank space, and one such document is the alleged will dated 29 January 1989. Evidence will be led of the existence of other such documents.”

The second defendant filed a separate statement of defence wherein he denied the claim of the plaintiffs and pleaded in paragraphs (1), (5), (13) and (14) as follows:

“(1) The second defendant vehemently denies paragraph (1) of the statement of claim and further avers that the late Dr John Ackah Blay-Miezah otherwise known as Nana Ackah Nyanzu II never ever executed the alleged will dated 29 January 1989 and will contend that the said purported will is a forgery.

Particulars of Forgery (a) That the contents of the alleged last will and testament was not and could not have been authored by Dr John Ackah Blay-Miezah alias Nana Ackah Nyanzu II.

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(b) That the supposed witness Dr E Ayeh-Kumi did not and could not have witnessed that particular document.

(c) That the signature of the said Dr E Ayeh-Kumi as a witness is and can only be a forgery.

(d) That having executed a genuine and valid will and which will he deposited at a bank in Switzerland in 1988 and having executed two other codicils to the said 1988 will and the last codicil having been made on his death bed on 9 June 1992 in which codicils he made supplementary to and refers to the will of 1988, it is obvious that there was not in existence another will, particularly the forged one that the applicants seek to apply for the grant of probate.

(e) Furthermore, there is overwhelming evidence to suggest that the signature appearing on the said alleged document is not and could not be that of the late Dr E Ayeh-Kumi as contained in the reports issued by the Ghana Police (Criminal Investigation Department) Accra dated 16 March 1994 and the report of Primus Forensic Consultancy, Accra dated 9 December 1994 and the second defendant will ask leave of the honorable court to tender both documents herein mentioned …

(5) The second defendant denies paragraph (6) of the statement of claim and further avers that no such meeting comprising of persons mentioned in paragraphs 6 (a), (b), (c), (d), (e), (f) ever took place and he will put the plaintiffs to strict proof of same… (13) In an attempt to circumvent the will of 1988 and the aforementioned codicils, the plaintiffs herein forged a will to which the second plaintiff and others appended their signature and back-dated same to 16 June 1992 but had to shelve it when the secret was exposed. The said will had the signature of the late Dr John Ackah Blay-Miezah on it alright, but the witnesses appended their signatures and thumbprints on same, on 6 March

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1993, eight months after the testator had died. The said forged will is hereby annexed and marked JABM/FKM/2.

(14) Furthermore, the contents of two letters both dated 28 June 1990 suggest that the late Dr John Ackah Blay-Miezah terminated or revoked the appointment of the first plaintiff and demanded the return of all documents in the possession of the first plaintiff which letters according to the first plaintiff he complied with, so that it is not possible for him to still have in his possession the document he seeks to admit to probate as the last will of the late Dr John Ackah-Miezah.”

From the above pleadings it is evident that the validity of the 1988 will was not in issue, neither did any of the parties allege that the 1988 will was a forgery. It is true that the defendants counterclaimed for grant of probate of the 1988 will, but the basis of that claim as averted to by the first, third and fourth defendants in paragraph (5) of their statement of defence, was:

“(5) . . . on 13 June 1994 in an application for probate of the will of the late Dr Ackah Blay-Miezah in suit No F 155/94, the court presided over by Mrs Justice Akoto-Bamfo noted that the first and second defendants were entitled to a grant of probate of the said will but the grant was stayed because it came to the notice of the court that the plaintiff had also filed for a grant of their alleged will in a suit No. F 600/94.”

The plaintiffs in paragraph (5) of their reply to the above averment denied the making of any such grant thus:

“(5) Still further as to paragraph (5) of the said defence, the plaintiffs contend that Mrs V. Akoto-Bamfo J made no such order on 13 June 1994 in suit No F 155/94 as alleged; and in any event, the allegation is irrelevant and unnecessary to the single issue as to forgery vel non of the 1989 will of the said Blay-Miezah (deceased).”

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It is also equally important to note that the plaintiffs did not deny that the late Dr Ackah Blay-Miezah made a will in 1988 and deposited it in banks in Switzerland. They admitted this. What they alleged was that the copies of the said 1988 will presented by the defendants had nothing on it to show the source from which they came. Thus in paragraph 2(b) of the plaintiffs’ reply to the second defendant’s defence, they pleaded: “(2)(b) the said Blay-Miezah executed a will in 1988 which he deposited in certain banks in Switzerland . . .” Then in paragraph (3) thereof, the plaintiffs continue:

“(3) At no time has the said 1988 will been retrieved from the Union Bank of Switzerland and deposited with the registrar of this court as alleged or at all. The second and other defendants have been passing off a paper writing dated 8 May alleged to be a copy of the said 1988 will deposited by the said Blay-Miezah (deceased) with certain banks in Switzerland. The said paper writing, however is not certified as a true copy by, nor does it carry any authentication by, or even a covering letter from or by the manager of the relevant (branch) bank showing a withdrawal or the making of a copy of the deposited 1988 will in accordance with laid-down procedures. Consequently, the said paper writing is null and void and of no legal effect whatsoever.”

Certainly, the objections raised in the above paragraph did not require the determination of the genuineness of the signature of Dr Blay-Miezah and Dr Ayeh-Kumi, and the typescripts of exhibits 28 and O. Yet the trial judge submitted these documents for forensic examination to determine:

“(a) Whether the signatures of the late Dr Ayeh-Kumi and his particulars in handwriting in both documents were from the same person.

(b) Whether the figures ‘8/8th’ and the word ‘May’ on both documents were written by the same person.

(c) Whether the signatures of Dr Ackah Blay-Miezah on

[p.636] of [2001-2002] 1 GLR 617 both documents came from the same person.

(d) Whether the typescripts on both documents are from the same machine.

(e) Which of the documents in your opinion is authentic.”

From the above directions to the forensic expert, the trial judge obviously misappreciated the nature of the objections raised in paragraph (3) of the plaintiffs’ reply. Consequently, the declarations made by the trial judge on exhibits 28 and O were thus unjustified and the Court of Appeal was right in setting those declarations aside.

Now to the main dispute, that is the validity of the 1989 will, the original of which, typed on one headed sheet of Oman Ghana Fund, was tendered as exhibit 21, and it reads:

“I REVOKE all my previous Wills and codicils and appoint Dr. John Robert Kells of 7 Upper Wimpole Street, London WIM 7TD, President of the British Tai Chi Chuan Association as my sole executor and heir. I GIVE DEVISE AND BEQUEATH to Dr John Kells all that I own including those funds once known as the Oman Ghana Fund now known as the Butterfly Trust, which is distributed amongst the following banks:—SUMOTOMO BANK, BANK OF TOKYO, TOKAI BANK, ROYAL BANK OF CANADA TORONTO, MORGAN TRUST, UNION BANK OF SWITZERLAND (UBS) NEW YORK UBS ZOLLIKON BRANCHZURICH, UBS BASEL, UBS WINTERTHURM, AMSTERDAM ROTTERDAM BANK (AMRO) NEW YORK, AMRO AMSTERDAM. The last two known as the DUTCH DECK. The leading bank and distributor is UBS 45 BUNHA STRASSE ZURICH, set up under the late President Schafer of UBS. The original Fund was set up in a Trust Deed described as ‘Power of Attorney and Deed of Trust’ on 24 December 1959 at Allenzura and signed by Abusukpanyili Nana—Nyameke Miezah VIII and Nana Kofi Asson 111 RTP, witness to RTP Dr E Ayeh-Kumi who also witnessed this Will. Dr John Kells was introduced by his father Dr Gordon Kells senior to the late Dr Kwame Nkrumah in 1948, who by letter introduced him to me in the

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USA in 1959. Our close connection has continued since that time and today Sunday 29 January 1989 I take the opportunity to follow the advice of all concerned to appoint Dr John Kells my sole heir with the conviction we all shared that he will fulfill all the responsibility set out in the original Trust Deed. Signed by the said testator in our presence and then by us in his presence on Sunday 29 January 1989.”

The signature of Dr Blay-Miezah appears boldly on the left side while that of the two alleged attesting witnesses appear opposite, not under, that of the testator. The two witnesses were Dr Ayeh-Kumi and Mrs E A Pennington.

In determining the validity of the 1989 will, the trial judge quoted in extenso only the evidence in-chief of the fourth plaintiff witness, and without examining same alongside her answers in cross-examination, and the evidence of other witnesses, concluded that the said evidence in chief was the whole truth. She said: “She both looked and sounded convincing witness of truth. She spoke without guile and without embellishing her story. Any fair-minded person would have had no trouble accepting her evidence as wholly true … I have not the lightest doubt that she spoke the truth, the whole truth. Her evidence as the only available witness of the making of exhibit 21 is accepted by the court as quality evidence as to the truth about the making of the 1989 will. Her evidence raises the presumption of due execution of the 1989 will… The onus now shifted to the defendants to disprove the due execution of the will.”

Certainly, in the face of the very serious allegations of forgery leveled by the defendants and wholly admitted by the plaintiffs’ own witness, the first plaintiff witness, the burden on the plaintiffs to prove the due execution of the 1989 will requires a critical examination of the evidence of the fourth plaintiff witness vis-à-vis the various items of forgery established by the evidence. For, the defendants alleged first, that the late Dr Blay-Miezah in his lifetime, signed blank letterheads and that some of these signed blank letterheads got into the hands of unscrupulous people who took advantage of it and typed in the alleged 1989 will. In proof of the

[p.638] of [2001-2002] 1 GLR 617 existence of signed blank letterheads, the defendants called the fifth defendant witness, Mr Nkum Adipa who explained why the late Dr Blay-Miezah signed blank letterheads. He said:

“I knew the late Dr John Ackah Blay-Miezah. I started working for him as a full time employee from 1984 as the accountant and the administrative manager . . . I worked for him up to 1991. During that period, he travelled a lot all over Europe. In most cases he travelled with me . . . Apart from travelling with him, I also went on business trips on his behalf alone. Usually, he gave me letterheads and he discussed the points that I was going to meet. He, then, authorised me to write whatever agreement we would reach on his letterhead. He gave me both blank and signed letterheads. I have with me a blank signed letterhead—signed by Dr Blay-Miezah, dated 18 April 1988. He signed it so that after I had completed a negotiation which I was going to carry out on his behalf, I would then have typed on the letterhead the terms of the agreement reached. When I finished typing, I would read it to him on the phone. If he agreed with the terms thereon, he would authorize me to hand over to whomever I went to negotiate with… I went on not less than twenty errands and on every occasion he signed blank letterheads for me. Some of them were not dated.”

The witness tendered in evidence one signed blank letterhead as exhibit 34. Earlier the first plaintiff witness had testified admitting seeing some of the signed blank letterheads after the death of Dr Blay-Miezah. In the face of the first plaintiff witness evidence in support of the defendants’ claim, the trial judge was compelled to find as a fact the existence of such signed blank letterheads. She said: “It is most unfortunate that Dr Blay-Miezah left blank signed headed note-papers around. This was rather irresponsible and dangerous and has no doubt created unnecessary problems for everybody.”

The defendants through the evidence of the first plaintiff witness next went on to establish that a will purported to have been made by Dr Blay-Miezah was indeed forged on one such signed

[p.639] of [2001-2002] 1 GLR 617 blank letterhead. This forged will dated 15 June 1992 was tendered through the first plaintiff witness as exhibit 6. It was prepared on a signed blank letterhead and is in form and substance the same as the disputed 1989 will. It reads:

“I Dr John Ackah Blay-Miezah being of sound mind, do hereby revoke all my previous Wills and codicils and appoint Dr John Robert Kells of 7 Upper Wimpole Street, London, England to be my sole Executor and Heir. I GIVE DEVISE AND BEQUEATH TO THE SAID DR J R KELLS ALL MY WORDLY GOODS SO THAT IN THE EVENT OF MY DEATH HE WILL BECOME the sole Beneficiary of the OMAN GHANA FUND with all the rights and privileges I now enjoy. I believe together with Dr K Nkrumah, Dr A Atta and Dr E Ayeh-Kumi that Dr J R Kells will be successful in my role. Any person or organization who contests this Will is to be excluded from any and all benefits under the said Fund.”

Exhibit 6 is dated 15 June 1992 and witnessed by five persons: Isaac Buah, J K Whaja, Whaja Kabemla, Nana Asemda and James Y Kaku, and was admitted by both the plaintiffs and defendants to be a forgery. The only point of difference between the parties on exhibit 6 is that whereas the plaintiffs through the first plaintiff witness alleged that this will was prepared in Ghana, the defendants contended that it was prepared in London by Dr J E Kells and brought down to Ghana by the first plaintiff witness for the five witnesses to sign.

The cross-examination of the first plaintiff witness on exhibit 6 reads:

“Q Look at exhibit 6, this is the document that is witnessed by five people.

A Yes.

Q You said the draft of exhibit 6 was prepared by Isaac Buah?

A Yes.

Q The draft was prepared in your house?

A Yes.

[p.640] of [2001-2002] 1 GLR 617

Q When did this event take place?

A In October 1992.

Q What date precisely?

A I don’t remember.”

Later down the cross-examination, the first plaintiff witness was asked:

“Q According to you, Nana Asemda told Mr Bossman how exhibit 6 had been executed.

A Yes he did.

Q Exhibit 6 is dated 15 June 1992.

A Yes.

Q You know that exhibit 6 was prepared in October 1992, long after the death of Blay-Miezah.

A Yes.”

Now as to why exhibit 6 was prepared, the first plaintiff witness in his evidence in-chief said that after the death of Dr Blay-Miezah, the family saw exhibit 16 (that is the handwritten codicil dated 9 June 1992) and so they searched the room of Mr Mochiah Ackah and seized some documents. What happened thereafter is better told in the words of the first plaintiff witness:

“In those documents they found three Oman Ghana letterheads which were blank but had Dr Blay-Miezah’s signatures on them. So the family also wanted to make a will, which would suppress exhibit 16. They asked my opinion so I agreed with them. I asked Kaku if he knew Mr Kessie’s house because he was the secretary of Oman Ghana. Mr Kessie was brought to my house while all the members of the family were there. Mr Isaac Buah drafted the proposed will to match that of Dr Kells’ will because I had shown it to them.”

The Dr Kells’ will referred to is the disputed 1989 will.

Now as against the above evidence of the first plaintiff witness, James Kaku, the first defendant witness, testified that it was the first plaintiff witness who rang the family from London and told “the elders that Dr John Kells had given him a document which he

[p.641] of [2001-2002] 1 GLR 617 said we should take to Nzema to work on. So, he wanted the family elders to sign the document.” He said the first plaintiff witness brought this document from London and got the elders to sign. And that he, the first defendant witness, was also made to sign it. When the first defendant witness was asked:

“Q Did you read the document before you appended your signature to it?

A I never read the document before I signed it.

Q Why didn’t you read it?

A Nana Buah said the document had been signed by the elders and it was for the benefit of the Nzema people so I had to sign it.

Q At the time you signed it, Dr Blay-Miezah’s signature was on it.

A Yes.

Q I put it to you that to a you appended your signature forged document.

A I agree.

Q Was it on 15 June 1992 or later than 15 June 1992?

A We signed it after my uncle (ie Dr Blay-Miezah) had been buried.”

It is certainly difficult to imagine how the elders of the family will truly concoct a will in respect of the estate of their wealthy member in which will the entire estate of that member would be devised and bequeathed to a stranger like Dr Kells. The version of Kaku, the first defendant witness, sounds more reasonable. And was, indeed, supported by the evidence of the second defendant witness, Mr Kwaw Swanzy, a distinguished lawyer and countryman of the late Dr Blay-Miezah. He testified as follows: “I know Nana Arvo Buah. I met him in London between October and November 1992. He came to my house and said a certain person called Dr Kells wanted to see me . . . He asked me to go with him to Dr Kells’ house. We went to Dr Kells’ house and met him . . . Dr Kells showed me a copy of a will dated 29 January 1989. Immediately I saw the will I had a feeling that this was not a properly executed will. I felt that

[p.642] of [2001-2002] 1 GLR 617 it was a forgery. He then asked me if the will was alright. I told him that I had heard that the late Dr Blay-Miezah had made a will just before he died. Then I said from my experience, the courts, when confronted with a will, would normally prefer that will which is later in date. I said further that the way things were they would have to make sure that their will was later in time. I left the house of Dr Kells and Arvo Buah took me back to the house… About a month or two later (the quarter part of 1993) he telephoned me and asked me to go and see him. I went to his house. In that house a lot of things were shown to me… Arvo Buah showed me a document, which purported to be a will of Dr Blay-Miezah, dated 15 June 1992; about two weeks before Dr Blay-Miezah died. I have a copy of that document, exhibit 6. I felt guilty about this because of what I told them, ie that the later will be accepted by the court.”

(The emphasis is mine.) The above evidence of Mr Kwaw Swanzy was not challenged, and clearly exposed the shameful part played by Nana Arvo Buah in the manufacture of exhibit 6.

Now, why was exhibit 6 not presented for probate but the 1989 will was? According to the first plaintiff witness, both exhibits 6 and 21 (that is the 15 June 1992 will and the 29 January 1989 will were given to their lawyer who advised that they should abandon exhibit 6 and present the 1989 will. This was to be expected because one of the witnesses in exhibit 6 had complained that because he had been paid nothing, he was going to expose the deal. In the first plaintiffs witness’ own words:

“In May 1993, Isaac Buah approached me at dawn and told me that he was secretary to the family while I was in England. Since I took over the affairs, not even a pesewa had been given to him. Unless I paid him something, he would sell the story behind the execution of exhibit 6 to Annancy and company.”

In the face of such threats, it was found prudent to shelve exhibit 6 and instead present exhibit 21. Hence the fight for probate of exhibit 21. But it is interesting to note very striking similarities between exhibit 6 and exhibit 21. Both,

[p.643] of [2001-2002] 1 GLR 617

(a) name Dr Kells as sole executor and sole heir;

(b) name Dr Kells as sole beneficiary;

(c) mention names like Dr Kwame Nkrumah and Dr Ayeh-Kumi;

(d) are made on letterheads of Dr Blay-Miezah; and (e) while exhibit 21 devises “all that I own”, exhibit 6 also devises “all my worldly goods” to the same Dr Kells.

These similarities are certainly not coincidental but tell volumes about exhibit 21.

Now, apart from exhibit 6, there was also exhibit 20 dated 29 January 1989, the same date as that of the 1989 will. Once again this exhibit 20 came from the same Dr Kells through the first plaintiff witness and like exhibit 6, admitted by the first plaintiff witness to have been signed after the death of Dr Blay-Miezah. Exhibit 20 reads:

“29 January 1989 Oman Ghana Fund 6 Avenue Road London NW8 I, Dr John Ackah Blay-Miezah, as sole beneficiary of the Oman Ghana Fund agree to pay Dr. Ako Adjei this sum of $50,000,000 (fifty million US dollars) and also I agree to pay to Mr Kojo Erskine the sum of $25,000,000 (twenty-five million US dollars). These monies to be paid from the first monies received by us in reward for services and support rendered.

Witness by: Dr J R Kells Signed Nana Arvo Buah Signed Signed by Dr John Ackah Blay Miezah.”

Now, a close examination of the above document tendered as exhibit 20 reveals that it is a photocopy and not the original. It also

[p.644] of [2001-2002] 1 GLR 617 shows, as it is evident from it, that the alleged witnesses signed before the donor, Dr Blay-Miezah, made his signature. For the signature of Dr Blay-Meizah is at the end. Was Dr Blay-Miezah rather witnessing the signature of the witnesses? Indeed, the form and position of Dr Blay-Miezah’s signature on this exhibit 20 are the same as the signature of Dr Blay-Miezah appearing on the signed blank letterheads. And the original of exhibit 20 is very likely to be on one of Dr Blay-Miezah’s letterheads. The first plaintiff witness testified that exhibit 20 was one of the three documents given to him by Dr Kells in London to send to Ghana. He was cross-examined on this as follows:

“Q In fact you are a witness to that document.

A Yes that’s my signature.

Q We’d like to tender it in evidence—Payment instructions from Blay-Miezah for Dr Ako Adjei and Erskine—No objection— Accepted and marked exhibit 20.

Q When was this document exhibit 20 signed by Kells, yourself and Blay-Miezah?

A I signed it the day I delivered it to Mr Erskine in the presence of Mr Erskine.

Q When did Kells give you the document?

A October, November 1992.

Q You signed this document exhibit 20 when you were giving it to Erskine?

A Between October November when I came from London.”

Then later down the cross-examination, the first plaintiff witness was asked:

“Q Exhibit 20 is also dated 29 January 1989.

A Yes.

Q Signed by Blay-Miezah and witnessed by Kells and Nana Buah.

A I was not present when Blay-Miezah and Kells were signing it. I had a duty to perform so I signed it when I gave it to Erskine and he gave me a note of acknowledgement.

Q What was the need for you to type your name and put

[p.645] of [2001-2002] 1 GLR 617 your signature there.

A I never typed my name there. My instructions was when you deliver this to this man let him sign the acknowledgement attached note, sign and give it to him.

Q Look at your signature, is this the original paper?

A Yes, this is my signature and this is the original paper.

Q So you are telling the court that you did not witness exhibit 20.

A No, I did not.”

From the above admitted acts of forgery perpetrated with the active participation of Dr Kells, Nana Arvo Buah, the first plaintiff witness and others in connection with the estate of Dr Blay-Miezah, the task of the plaintiffs in establishing the due execution of the 1989 will cannot be discharged solely on the evidence in-chief of Mrs Pennington. For after all the purpose of cross-examination is to test the authenticity of the evidence led in-chief and the credibility of the witness. It is only when the evidence in-chief had been subjected to critical examination alongside the witness’ answers in cross-examination and the other relevant evidence, can any weight be attached to the evidence of the fourth plaintiff witness. For where the validity of a will is challenged, especially on grounds of forgery, the proof of due execution in such an action demands a proof of all the elements thereof. This proof comprises:

(i) Proof of the genuineness of the disputed will: see McDonald v McDonald 142 Ind 55. In this wise, evidence must be established to remove all suspicious circumstances negativing the genuineness of the will.

(ii) Proof of the genuineness of the testator’s signature: see Weber v Storobel, Mo Sup 194 SW 272. (iii) Proof of the authorisation by the testator of another to sign for him when that method of signing is employed: see McCoy v Conrad, 64 Neb 150, 89 NW 665.

(iv) Proof of the presence of the entire instrument at the time of execution: see In re Maginn’s Estate, 278 Pa 89, 30 ALR 418.

(v) Proof of the attestation of the will in the presence of the testator: See Clarkson v Kirtright, 291, 111, 609, 126 [p.646] of [2001-2002] 1 GLR 617

NE 541.

Of course, where the opposing party by his pleadings admits any of the above elements, the proponents of the will are relieved from proving that element. But short of any admission, proof of due execution in a contentious probate action requires proof of all the elements of validity of the will in dispute. For in such a case, there is no presumption that the subscribing witnesses told the truth in testifying that they saw the will executed. Indeed, the court will not apply the maxim omnia praesumuntur rite et solemniter esse acta (all things are presumed to be correctly and solemnly done) where there are circumstances that excite the suspicion of the court that there must be something wrong with the will. The burden of the plaintiffs or those who propound the will is to lead credible evidence to remove such suspicion and to prove affirmatively that the will is indeed that of the testator. As Lindley LJ explained in Tyrell v Painton (1894) 151 P 157, CA, in all cases:

“in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the Will to prove fraud, or undue influence, or whatever else they rely on to displace the case made for proving the Will.”

(The emphasis is mine.) In this wise, as held in Baird v Shaffer 101 Kan 585: “The testimony of subscribing witnesses to a Will may be overcome by any probative facts and circumstances admissible under the ordinary rules of evidence.”

Indeed, in the unbiased search for the truth, the law has no favourites by presumption. Silent circumstances, without power to change their attitude, or to make explanations, or to commit perjury, may speak as truthfully in court as animated witnesses. Accordingly when an issue of forgery in a civil case is raised by pleadings and contested by evidence on both sides, there is no presumption either in favour of witnesses or in favour of circumstances. All of the evidential facts, which throw light on the issue,

[p.647] of [2001-2002] 1 GLR 617 must be considered in connection with the allegation of proponents that the will is genuine and with the charge of contestants that the document offered for probate is a forgery. If the truth is found in oral testimony, it must determine the issue, but it is equally potent if found in circumstances. As Rose J at the Nebraska Supreme Court said in In re O’Connor’s Estate, 179 NW 401 at 406:

“In a civil case, when there is substantial proof in support of the plea that the will offered for probate is a forgery, all presumptions in favor of genuineness fall. Thereafter the truth must be found in the evidence itself, and every item of proof must stand on its own footing in connection with each evidential fact considered in its proper light. In this test presumption creates no advantage one-way or the other. In such a situation persons who declare themselves to be subscribing witnesses and boldly speak from the witness stand as such, though not directly impeached, are subject to the same impartial and penetrating scrutiny as the mute instrument ascribed by them to the dead.”

I endorse and adopt the above statement of Justice Rose. For where the will is alleged to be a forgery and the procured attesting witnesses have the likelihood to commit perjury, it is difficult to see how the bogus will can be overthrown except by careful scrutiny of the evidence of such supposed attesting witnesses, with the other relevant evidence. In the instant case, what evidence did the plaintiffs produce to remove the strong suspicion created by the existence of the signed blank letterheads, exhibits 6 and 20? Now, the 1989 will, exhibit 21, was not deposited in any bank, court or secured place but produced from the custody of Dr John Kells by the first plaintiff witness, Nana Arvo Buah. Of course, in his evidence, the first plaintiff witness alleged that Dr Blay-Miezah gave him a copy of the 1989 will, which he tendered as exhibit D. He was asked:

“Q You told this court that Dr Blay-Miezah gave you a copy of this will.

A Yes.

Q That is exhibit D?

[p.648] of [2001-2002] 1 GLR 617 A Yes.

Q What date is it?

A 29 January 1989.”

As to the original of the 1989 will, exhibit 21, the first plaintiff witness gave inconsistent answers as to whether he had ever seen it or not. He was first asked:

“Q According to your record, Dr Blay-Miezah gave you a copy of the 1989 will.

A Yes.

Q Do you know the whereabouts of the original of the 1989 will?

A I don’t know.

Q Blay-Miezah did not show you the original of that will.

A No.

Q What will was sent to Accra to be shown to the family and to Mr Bossman?

A It was sealed so I gave it to Mr. Bossman.

Q So Mr Bossman had the original of that will?

A It was sealed so I have no idea.

Q Who gave you the sealed envelope which you said contained the will.

A Dr John Kells.”

But later when the first plaintiff witness was asked:

“Q Yesterday I asked you if you had seen the original of the will and you said no.

A When Dr Kells showed me the original will he put it in an envelope and sealed it. I brought it down to Accra and handed it over to the family comprising Paa Kwesi, Asemda and Mr.

Whajah.

Q Did you know whether or not it was an original will?

A Yes.

Q You put it in an envelope.

A No I said Kells did.”

Now, whatever be the situation, the undisputed fact is that the original of the 1989 will came from the custody of Dr Kells.

[p.649] of [2001-2002] 1 GLR 617

One of the issues hotly contested by the defendants was the genuineness of the signature of Dr Ayeh-Kumi appearing as an attesting witness on the 1989 will. In pursuit of their contention that the said signature was forged, the defendants on their own submitted a copy of the 1989 will together with an executed indenture and the passport of the late Dr Ayeh-Kumi, to a forensic expert, Mr John Albert Owusu, who testified as the second court witness. In his said report dated 9 December 1994, he expressed his opinion thus: “My conclusion was that the one who signed the indenture and the passport was not the same person who signed the will of 1989, ie in respect of Dr Ayeh-Kumi.”

Later following instructions from the court, the second court witness, and another expert, Alhaji Bubari Yakubo, the third court witness revised their opinion and concluded that the signature of Dr Ayeh-Kumi was genuine, because of the possible effect of Parkinson’s disease Dr Ayeh-Kumi was alleged to be suffering. The two experts said that they did not at first know that the late Dr Ayeh-Kumi was suffering from Parkinson’s disease. Thus, in his opinion, the third court witness, Alhaji Yakubo concluded: “In view of the above observations and with the declining condition of health and age of Dr E Ayeh-Kumi (exhibits H, J, L and the alleged Parkinson’s disease being suffered by subject) which grossly affected his neuro-muscular co-ordination, creating extreme variations and inconsistency in both the handwriting and signatures during the period between late 1980 and early 1989, it is concluded that all signatures representing Dr Emmanuel Ayeh-Kumi on exhibits 21, 28, H, I, L and O were produced by one and the same person.”

Now, what is clear is that the signature of Dr Ayeh-Kumi on the 1989 will is different from all the genuine signatures of Dr Ayeh-Kumi on all the exhibits presented to the experts for their comparison. The difference being that there is a complete break in the signature of the 1989 will, while there is no such break in any of the specimen signatures. And with one’s naked eye and without any expert knowledge, one would easily notice the difference both in the break and some of the characters in the alleged Dr Ayeh-

[p.650] of [2001-2002] 1 GLR 617

Kumi’s signature on the 1989 will. Thus, Mr Owusu, the second court witness while under cross-examination was asked in relation to the signature on the 1989 will, exhibit 21, and Dr Ayeh-Kumi’s passport—exhibit 22):

“Q Looking at the two signatures of exhibits 21 and 22, it does not require an expert to tell you that they are poles apart.

A Looking at the two signatures in isolation, ‘Yes.’ A layman looking at the two would not need an expert to tell him that they are different.”

The other expert, Alhaji Yakubo was also asked:

“Q In exhibit 21 (ie the 1989 will) there is a definite break in the writing.

A Yes I have indicated that break with a question mark.

Q Indeed, it is apparent on exhibit 21, and obvious even to the naked eye that there is a break in the signature.

A Yes, there is a definite break but not to many naked eyes.

Q We would like the court to take a look at the signature on exhibit 21 and at the break just before the last three ‘mums.’ A By court —Yes I see it.

Q After the break the author struggles to complete the signature.”

In the face of such visible difference in the signature on the 1989 will and the other genuine signature, the experts were made to change their earlier opinion and conclude that the Parkinson’s disease contributed to the difference in the 1989 will. But obviously such a conclusion needed positive evidence that during the period 1980 to 1989, Dr Ayeh-Kumi did sign his name as appearing on the 1989 will.

To begin with, the instructions from the court contained in a letter from the chief registrar, dated 15 July 1996, inter alia, reads:

“By direction I forward the under-mentioned documents in the above-named case exhibits 21, 22, 28, H, J, L and O:

1. Please find out whether the alleged signatures and

[p.651] of [2001-2002] 1 GLR 617 handwriting of Dr Ayeh-Kumi on exhibits 21—the will of 1989, 22—passport, 28—the will of 1989, H, J & O were signed by the same person …

Dr Ayeh-Kumi is alleged to have suffered from Parkinson’s disease towards the end of his life. This apparently, caused his hand to shake so that someone (had) to hold his hand to enable him to write. (Signed) Y K M Agbleta Chief Registrar.”

Such an instruction was highly prejudicial. And as I said earlier there must be evidence of the signature of Dr Ayeh-Kumi during the period 1980 to 1989. But on the contrary, the evidence of Dr Ayeh-Kumi’s signature during the period of the alleged Parkinson’s disease shows the contrary. There was first exhibit L, a letter written and signed by Dr Ayeh-Kumi on 22 December 1988 to the Secretary of Interior. This was less than a month and a half before the alleged signing of the 1989 will. There was then exhibit 46 dated 24 January 1989 containing the signatures of both Dr Blay-Miezah and Dr Ayeh-Kumi. This was just five days before the execution of the alleged 1989 will. But both signatures on exhibit L and 46 do not exhibit the break and the differences apparent in that of the 1989 will. Furthermore, Mrs Pennington the fourth plaintiff witness, who claimed to have seen Dr Ayeh-Kumi signing the 1989 will, did not say that Dr Ayeh-Kumi had any difficulty in signing his name. Mrs Pennington’s evidence on how Dr Ayeh-Kumi signed the 1989 will was as follows: “He (ie Dr Blay-Miezah) then passed the paper to Dr Ayeh-Kumi who signed it with his own pen which was an old scratching pen: I saw Ayeh-Kumi signing the paper.” Such evidence from the fourth plaintiff witness does not support the claim of one struggling to sign his name. It is therefore obvious that the conclusion of the experts based on the alleged effect of the Parkinson’s disease is not supported by the evidence of the fourth plaintiff witness, and the signatures of Dr Ayeh-Kumi in exhibits L and 46 within the period in which the 1989 will was allegedly made. Consequently, the revised opinion

[p.652] of [2001-2002] 1 GLR 617 of the two experts cannot be justified. Indeed, the revised opinion of the two experts are not binding on the court, and the trial judge ought to have made her own assessment in the light of the evidence of the fourth plaintiff witness and exhibits L and 46. For as noted in Sasu v White Cross Insurance Co Ltd [1960] GLR 4 at 5:

“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.”

I think the law is quite settled that where there is a dispute as to the genuineness of a signature, a safer way is to compare and examine the disputed signature with admitted genuine signatures alongside the evidence of those familiar with the usual signature, of the person whose signature is in dispute. Thus the Court of Appeal in In re Essien alias Baidoo (Decd); Essien v Adisah [1987-88] 1 GLR 539 at 543, CA said:

“The proof of any signature may be established by producing from the proper custody other documents bearing the signature of the person whose signature is in dispute and thereby afford opportunity to the witnesses who know the signature of that person and also to the court to compare the signatures in such documents directly with the disputed signature.”

Justice S Azu Crabbe made the same point in his book; The Law of Wills in Ghana, published by Vieso Universal (Gh) Ltd, 1998 at p 198:

“Where there is a dispute as to the genuineness of the signature of the testator, or of an attesting witness on the will, proof of custody of other documents bearing the signature of the person whose signature is in dispute may be produced for comparison. This affords an opportunity to the witnesses, who are conversant with the disputed signature, and also to the court, to compare the signatures in the will directly with the disputed signature.”

The evidence of Dr Ako Adjei and Mr E B Kwaw Swanzy, very close associates of the late Dr Ayeh-Kumi, to the effect that the signature appearing on the 1989 will was not the signature of

[p.653] of [2001-2002] 1 GLR 617

Dr Ayeh-Kumi together with exhibits L and 46 emphatically discredited the experts’ revised conclusion and supported the defendants’ contention that the said signature was forged. In In re O’Connor’s Estate (supra) the court held the will of the testator to be forged notwithstanding the evidence of experts that the signature of the testator was genuine. The duty to decide whether the signature is genuine or not, is that of the judge and not the experts.

Now, the only evidence on the preparation and execution of the 1989 will was that of Mrs Pennington, the fourth plaintiff witness. The relevant part of her evidence reads:

“The last time I saw Blay-Miezah was on 29 January 1989. I saw him at his house at Avenue Road; the house was in Hampstead, London. I went there that day by mini cab. I went with Dr John Kells. Dr John Blay-Miezah rang Dr John Robert Kells on Sunday morning and requested him to go to see him. He also asked that I would accompany him. If I had a typewriter to bring it also… The two of us set off and in taking the typewriter I knew there was typing to be done . . . I got to the house about 2 o’clock; I can’t be precise. The mini cab stopped at the gate and we announced who we were to the security at the gate and the mini cab drove to the front door and we got out. We rang the bell. Dr Blay-Miezah’s man-servant opened the door and let us in . . . After we’d been let in by the servant we went in the waiting room—it was a library. We waited for about 20 minutes and we were escorted into Dr Blay-Miezah’s sitting room by Kaku. Blay-Miezah was there with Dr Ayeh-Kumi. While I, John Kells, Blay-Miezah and Ayeh-Kumi were there nobody else came there. Dr Blay-Miezah asked me if I would do some typing and I said ‘Yes.’ So I set up the typewriter on a little anteroom on the left of Dr Blay-Miezah’s huge living room. He gave me several sheets of paper, which were handwritten in Block Capitals so I could read it. I had a quick look at the writing and said yes, I would. I said I would come and see him if I had any problem. He gave me one sheet of paper with the Butterfly on it and I had to make a good job of it. The Emblem was a

[p.654] of [2001-2002] 1 GLR 617 green Butterfly. Apart from that I think it had Oman Ghana Trust Fund underneath the Butterfly. I read the papers he gave me and made sure I could read them before commencing the typing. I plugged the typewriter. I was nervous because it was only one sheet. I asked him how he wanted it set out because I didn’t think it would all go on initially, but he said not to leave a margin but to type right across the page. I found that I could do it and I was relieved. I then handed it to Dr John Kells who handed it to Blay-Miezah who then checked it. After he had checked it he took out his pen and signed it. He then passed the paper to Dr Ayeh-Kumi who signed it with his own pen, which was an old scratching pen. I saw Ayeh-Kumi signing the paper. Dr Blay-Miezah asked me if I would witness it so I did with my own pen. . . After I signed it I handed it back to Dr Blay-Miezah as well as the sheets. I handed them to Dr John Robert Kells and he handed them to Dr Blay-Miezah—Dr Blay-Miezah’s servant Kaku came in once to serve refreshments in particular for Dr Ayeh-Kumi so that he would take his medication. . . Dr John Robert Kells and I probably left between 5 and 6 p.m. It was dark at the time. Just before we left Dr Blay-Miezah handed a package—like a thick envelope with a ribbon round it to Dr John Kells. I don’t remember the colour of the envelope (a manila type of envelope). After that Blay-Miezah and Dr John Robert Kells embraced each other. Ayeh-Kumi was still seated but he shook hands warmly with him. After the embracing and handshaking Kaku saw us to the door.”

From the above evidence of Mrs Pennington, those who were eye-witnesses to the preparation and execution of the 1989 will were, the testator, Dr Ayeh-Kumi, since deceased, Dr John Kells and Mrs Pennington herself. The testator and Dr Ayeh-Kumi are dead, leaving behind Dr Kells and Mrs Pennington. Dr Kells who is the sole executor and beneficiary of this will is the first plaintiff but he refused to testify himself. Instead, he appointed an attorney, Mrs Sophia Ofori-Attah, who honourably confessed that she had no knowledge about how the 1989 will was executed. Mrs Sophia

[p.655] of [2001-2002] 1 GLR 617

Ofori-Attah was asked in cross-examination: “Q So you have no personal knowledge of how the alleged 1989 will was executed?” And she answered: “No I don’t know.” This attorney of the first plaintiff, gave an impression of being quite familiar with the late Dr Blay-Miezah and even testified that Dr Blay-Miezah showed her the 1988 will. But in respect of the 1989 will she said Dr Blay-Miezah “never said anything to me about 1989 will.”

Now, the evidence of Mrs Pennington as to the number of people present during the preparation and execution of the 1989 will does not tally with what was pleaded in paragraphs (6) and (7) of their statement of claim. According to paragraph (6), the will was prepared in the presence of: the testator; Dr Kells; Mrs Angelika Pennington; Dr Emmanuel Ayeh-Kumi; Nana Arvo Buah; Mr Kim and James Kaku. While paragraph (7) pleads that from the above persons, Angelika Pennington and Dr Ayeh-Kumi were invited as attesting witnesses in the presence of all the remaining people mentioned in paragraph (6), and further did sign as such in the presence of those people.

Of the persons mentioned in paragraph (6) of the statement of claim, James Kaku who testified as the first defendant witness and Chong Han Kim, the third defendant witness emphatically denied that Mrs Pennington, Dr Kells and Dr Ayeh-Kumi were in the house of Dr Blay-Miezah on 29 January 1989. And when the plaintiffs’ counsel suggested to Kim that from his room in Blay-Miezah’s house he could not have seen all those coming to Dr Blay-Miezah that day Kim answered: “Anyone who went to the office must pass in front of my room which was opened all day long when I was working at 6 Avenue. No one could pass without me seeing them.”

The plaintiffs’ witness, Nana Arvo Buah, the first plaintiff witness, who was not mentioned as being present by the fourth plaintiff witness, but was listed in paragraph (6) of the statement of claim, alleged that though he was present with Dr Ayeh-Kumi, Dr Kells and Mrs Pennington on that day in Dr Blay-Miezah’s house, he did not know nor witness the preparation and execution of any will. Rather, it was when he was driving Dr Ayeh-Kumi home that evening that the latter showed him a copy of the 1989 will. He claimed he read it and when he came back, he challenged Dr Blay-

[p.656] of [2001-2002] 1 GLR 617

Miezah about the contents of the will. He said Dr Blay-Miezah explained and gave him a copy of the said will, which he tendered as exhibit D. The first plaintiff witness said:

“When I was taking Dr Ayeh-Kumi home . . . he showed me his copy of Dr Blay-Miezah’s will . . . Tread the whole thing . . . I returned to Dr Blay-Miezah and challenged him . . . After I had spoken to Blay-Miezah and he explained the whole thing to me he gave me a copy of it. I have always had a copy of it.”

Thus apart from the original of the 1989 will, we learn from the evidence of the first plaintiff witness that two copies of that will were made that very evening of 29 January 1989 before Dr Blay-Miezah left for Ghana. But the evidence of Mrs Penington was definite that she typed the will on one single sheet. No copy of the will was made that evening. Mrs Pennington testified: “He (ie Dr Blay-Miezah) gave me one sheet of paper with the Butterfly on it and I had to make good job of it . . . I was nervous because it was only one sheet.” Under cross-examination by Mr Erskine, Mrs Pennington was asked: “You want this court to believe that you typed only one page?” And she answered: “Yes I only had one page. I was only given one page. I only witnessed the two signatures once.” Later down the cross-examination, she was further asked:

“Q You told this court you typed one document — exhibit 21, and it was the only one you typed that day.

A Correct.

Q You are sure it was only one document you typed that day for him?

A Yes, positive.

Q When you went home did you type anything for Mr Blay-Miezah to sign?

A I do not believe so. No.”

From where then did the two copies the first plaintiff witness talked about come from? Especially as the first plaintiff’s attorney positively asserted in her evidence: “The will was written on 29, signed on 29 and given to Dr Kells on 29.” From which 1989 will [p.657] of [2001-2002] 1 GLR 617 were copies made to the first plaintiff witness and Dr Ayeh-Kumi as alleged by the first plaintiff witness? The evidence of Mrs Pennington and the first plaintiff witness on this cannot be true. Clearly, from their evidence the 1989 will could not have been prepared and copies made on 29 January 1989—the very evening Dr Blay-Miezah left London for Ghana and never returned.

Next, it is also important to note that from exhibit 21, it is clear that the names of the two attesting witnesses were typed before the signatures were made. Thus Mrs Pennington in the course of her evidence identified: “I have with me the paper that I typed and which was signed — exhibit 21.” If this was so, as it was, then Mrs Pennington who claimed to have typed exhibit 21 must have known after typing and before the signing that she was going to be an attesting witness. Because before she appended her signature on exhibit 21, her name had already been typed on it thus: “witnessed by Mrs E A Pennington, 7 Upper Wimpole Street, London W 1.” But in her evidence under cross-examination, she gave the following answers to the questions put to her:

“Q You told this court that after Blay-Miezah had read it he signed it.

A Yes, that is correct.

Q Did you know that you were also going to sign?

A At that point I didn’t know.

Q Did you know that Dr Ayeh-Kumi was going to sign?

A I realised when Dr Blay-Miezah handed it to him that he was going to sign it.

Q When Dr Ayeh-Kumi signed was it at that time that Dr Blay-Miezah craved your indulgence to sign as a witness for him?

A Yes, that’s correct.”

Such answers from Mrs Pennington clearly puncture her evidence that she typed exhibit 21. For at the end of the main body of the will, was typed the names and residential addresses of the two attesting witnesses as follows:

“(i) Witnessed by Dr E Ayeh-Kumi, I C Cromwell Lodge, Cromwell Gr London, W 6.

[p.658] of [2001-2002] 1 GLR 617

(ii) Witnessed by Mrs E A Pennington, 7 Upper Wimpole Street, London, W 1.”

How can the one who typed those names and addresses, now say under cross-examination that she did not know that she and Dr Ayeh-Kumi were going to sign as witnesses? Mrs Pennington’s answers above clearly show that she could not have been the one who typed exhibit 21. If she typed it, she would definitely have known that she was going to sign as an attesting witness. Consequently, her claim that she typed exhibit 21 on 29 January 1989 was obviously a lie.

Mrs Pennington was also confronted in cross-examination with exhibits 6 and 20 (the forged will of 15 June 1992 and Payment instructions). She denied typing them. However, although she claimed she typed exhibit 21 on her own typewriter which she carried to Blay-Miezah’s house for that purpose on 29 January 1989 and carried back home after typing, she admitted under cross-examination that it was possible that exhibits 21, 20 and 6 might all have been typed on the same typewriter. Which typewriter? Her own? She was asked:

“Q Have a look at this document, exhibit 6. The character of this document is the same as exhibits

20 and 21—which you said you signed. They are all from the same typewriter.

A It’s a possibility but I do not know for sure.”

Thereafter she was asked: “I also put it to you that all these documents were typed long after 30 June 1992.” And she answered: “I don’t know that:”

Now, if Mrs Pennington were indeed the one who typed exhibit 21, she obviously would not have replied that she did not know that exhibit 21 was typed long after the death of Dr Blay-Miezah. Such answers obviously puncture her evidence that she typed exhibit 21 on 29 January 1989. Thus her claim was nothing but a lie—a lie calculated to assist her employer, Dr Kells, to secure probate of an alleged will that was never in existence during the lifetime of Dr Blay-Miezah. In her evidence Mrs Pennington explained her relations with Dr Kells as follow: “I know John Robert Kells. He

[p.659] of [2001-2002] 1 GLR 617 was my employer from 1982 to 1992 or 1993.” Then in cross-examination we have:

“Q You were his personal secretary?

A I was his secretary, administrator of the school and teacher.

Q You were almost his alter ergo?

A I will call it his servant.

Q You were his most trusted employee?

A One of them.

Q You were very loyal to him?

A Yes.”

Not surprisingly, the defendants did not deny that the signature of Mrs Pennington on exhibit 21 was hers, because given the sort of relationship existing between her and Dr Kells, she would do everything to support the claim of Dr Kells. As she was later asked: “So that you would do everything to protect his interest?” she answered. “I would carry out my duties as required.” This was the relationship and obligation owed by Mrs Pennington to Dr Kells. And certainly, if the trial judge and the Court of Appeal had examined Mrs Pennington’s evidence, especially that of her cross-examination, they would have realised the improbability of her claim that she typed exhibit 21. But as Benin and Baddoo JJA held, the High Court had no jurisdiction to sit in London for the evidence of Mrs Pennington. Consequently, the evidence of the fourth plaintiff witness was taken without jurisdiction and therefore null and void.

The trial judge justified her sitting in London under Order 37, r 5 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). This rule reads:

“5. The Court or a Judge may, in any cause or matter where it shall appear necessary for the purposes of justice, make any order for examination upon oath before the Court or Judge or any officer of the Court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a

[p.660] of [2001-2002] 1 GLR 617 Judge may direct.”

As to the scope of this rule, the trial judge reasoned:

“I think that Order 5 gives very very wide powers to the court. The criterion in that section is where it shall appear necessary for the purposes of justice and the operative words are ‘make any order for examination upon oath before the Court or Judge . . . at any place of any witness or person.’ So that it is obvious that the judge has the power to make an order for the case to be adjourned to ‘any place’ be it in Ghana, Timbuktu or Iceland, because the section does not qualify the word ‘any’ and ‘any’ means ‘any’—an unspecified amount or number, ‘every’ no matter which.”

In her interpretation of the above rule the judge relied on the English case of St Edmundsbury and Ipswich Diocesan Board of Finance v Clark [1973] Ch 323 at 326 wherein an application under the then Order 39, r 1 was brought by the plaintiff before the court in London to take the evidence of one Mrs Mael at Iken by an examiner on grounds that the witness was physically unfit to travel to London to testify. At the hearing of the application Megarry J at 326:

“. . . inquired whether to make such an order was the only course open to the court, or whether it would be possible for the hearing before me to be adjourned to Iken for me to hear Mrs. Mael’s evidence; and the registrar helpfully referred me to Ord. 35, r. 3.”

Thereafter after satisfying himself that there was ample medical evidence to justify Mrs Mael not being required to come to London to testify, Megarry J concluded at 327—330:

“It seems to me that I have an inherent power to sit at Iken, and that this power is fortified by Ord. 35, r. 3 …

Accordingly, on the footing that I have mentioned, I rule that I can and should hear the evidence of Mrs. Mael at Iken . . .”

Order 39, r 1 of the English Rules under which the application was brought is the same as our Order 37, r 5 of LN 140A under

[p.661] of [2001-2002] 1 GLR 617 which the court could order evidence on deposition or commission to be taken. But the English Order 35, r 3 under which Megarry J granted the application and moved to Iken for the evidence of Mrs Mael is not similar to our Order 37, r 5 of LN 140A but rather Order 36, r 19 of LN 140A. The English Order 35, r 3 reads: “The judge may, if he thinks it expedient in the interest of justice, adjourn a trial for such time, and to such place, and upon such terms, if any, as he thinks fit.” The trial judge in the instant case, in relying on Megarry J’s decision, failed to realise that the rule under which the application in that English case was granted was Order 35, r 3, that is our Order 39, r 19, and not the English equivalent rule of our Order 37, r 5. And Iken where Megarry J moved to take evidence was outside London but within England. Thus the St Edmundsbury case (supra) can never be an authority for a court to adjourn a case to a place outside the territorial boundaries of the nation in which a court exercises jurisdiction.

Now, Order 36, r 19 of LN 140A empowers a court to adjourn the trial of a case from time to time and to such place within the judicial division of the court. Order 37, r 5 of LN 140A on the other hand empowers a judge to order deposition at any place. And the expression “at any place” in the rule certainly refers to a place in or outside Ghana. Order 37, rr 6, 7, 8 and 9 of LN 140A explain the modalities of taking such evidence in respect of witnesses abroad. But a judge in Ghana has no power under Order 37, 5 of LN 140A to move to a foreign country to take evidence from any witness. If evidence is to be taken abroad from a witness, the judge’s duty is to decide whether such evidence is necessary, and thereafter make the necessary orders in accordance with Order 37, rr 6, 7, 8 and 9 of LN 140A for the said evidence to be taken on a commission by writ before a commissioner, or a request to examine in lieu of a commission. For the territorial jurisdiction of the courts of Ghana is over Ghana and Ghana alone, as the trial judge later acknowledged in her ruling dated 26 February 1997 refusing a review application to order the United Overseas Bank, Geneva to produce the will of Dr Blay-Miezah. She said:

“The territorial jurisdiction of the High Court of justice is over Ghana and Ghana alone. No judge has power beyond

[p.662] of [2001-2002] 1 GLR 617 the territorial limits of Ghana . . . Mr Annancy is asking me to give a command with authority to the Swiss bank to send the alleged will unto them . . . You can only order or compel someone who is under your power or authority or control to obey your orders.”

It is precisely for the above reasons that the rules of court do not empower the High Court in Ghana to move and sit in a foreign country. The High Court would not have any means of enforcing its orders. The Court of Appeal was therefore right in setting aside the evidence of the fourth plaintiff witness.

Since the judgment of the High Court was based almost entirely on the evidence of the fourth plaintiff witness, one would obviously have thought that with the nullification of that evidence, the High Court judgment would likewise fall. But the majority held otherwise. Hence ground (6) of the original grounds of appeal of the first defendant-appellant:

“(vi) The majority decision having held that the evidence of Mrs Pennington taken in London was without jurisdiction and was void and the trial learned judge having wholly relied on the said evidence, it is submitted that the majority misdirected itself when it held that an affidavit of Mrs Pennington was sufficient to support the claim that the will was valid.”

The majority of the Court of Appeal (Lamptey and Benin JJA) held that notwithstanding the nullification of the evidence of the fourth plaintiff witness, an affidavit allegedly sworn to by Mrs Pennington, and brought down by the third plaintiff witness, Mr Rice, from the Ghana High Commission, London, was sufficient to sustain the trial judgment. The third plaintiff witness in his evidence in-chief said that he met Mrs Pennington in London and tried to convince her to come to Ghana and testify. But she refused saying that she was afraid for her life and that she had left an affidavit at the Ghana High Commission, which she asked him to take it to court in Ghana. This affidavit was tendered as exhibit E, and this is the affidavit, which the majority held to be sufficient to sustain the judgment. It was tendered in the face of strong

[p.663] of [2001-2002] 1 GLR 617 objection from the defendants. Mr Adumua-Bossman, counsel for the plaintiffs, in replying to the objections, rightly in my view, observed: “All the documents can be taken and Mrs Pennington can be confronted with the contents of the documents. If they are denied any cross-examination it is then a document that carries .“ zero weight.” (The emphasis is ours.) Accordingly, the trial judge in her ruling admitted the affidavit as exhibit E subject to the following condition:

“The third plaintiff witness cannot be cross-examined on it, therefore if Mrs Pennington cannot be cross-examined as to the veracity of the contents of the affidavit, it is then totally worthless. If she can be cross-examined then, of course, it is of some value.”

(The emphasis is mine.)

Indeed, after exhibit E had been admitted, the defendants filed a notice to cross-examine Mrs Pennington. The notice reads: “Take notice that the first, third and fourth defendants require the production of Mrs Angelika Pennington, the deponent of exhibit E for cross-examination at the trial.” And instead of the plaintiffs producing Mrs Pennington at the trial in Ghana, they rather moved the court to London. Thus exhibit E stands without any cross-examination on it. And if the majority of the Court of Appeal had realised that exhibit E was admitted subject to the deponent being cross-examined, they would obviously not have held that the uncross-examined affidavit could sustain a judgment. Once the deponent of exhibit E was not cross-examined, the exhibit, in the words of the trial judge, was “totally worthless.”

But this apart, the contents of this exhibit E do not satisfy the requirements of a valid will. Exhibit E reads:

“On Sunday 29 January 1989, in the afternoon, I accompanied Dr John Kells to his farewell meeting with Dr John Ackah Blay-Miezah, at the latter’s home in Avenue Road, St. Johns Wood, London. I carried a typewriter to use for a confidential document, which was to contain classified information. I had been employed by Dr John Kells for over ten years

[p.664] of [2001-2002] 1 GLR 617 and was in a trusted position for this special task. I had also on several occasions, acted as Dr Blay-Miezah’s nurse/secretary on trips to Europe.

On arrival at Avenue Road, security escorted us to the library where we waited to see Dr Blay-Miezah. After a while we were shown into a large room, with a huge television screen, and large wall-to-wall sliding doors which opened up to a floodlit garden. There was a huge wooden chair, almost throne-like in the room. Quite ornate. I set up my typewriter and commenced typing the documents requested by Dr Blay-Miezah. Meanwhile, Dr Emmanuel Ayeh-Kumi, an old and trusted advisor of Dr Blay-Miezah, Dr John Kells and Dr Blay-Miezah himself, spent the time reminiscing and telling stories until I had finished typing. This took about one hour. Dr Blay-Miezah’s man-servant known to me as Kaku came and went with refreshments.

After I had finished typing, I waited in a small side room or antechamber while the gentlemen held discussions to which I was not privy to . . . At about 5 pm I was asked along with Dr Ayeh-Kumi to witness Dr Blay-Miezah’s signature to what was his last will and testament. This I did. At approximately 6.00 pm everyone shook hands, the men embraced, and final farewells were said. Dr John Kells and I left together and went to a local restaurant near to our place of work and had a meal.”

The relevant part of the above affidavit dealing with the execution of the 1989 will is: “At about 5 pm I was asked along with Dr Ayeh-Kumi to witness Dr Blay-Miezah’s signature to what was his last will and testament. This I did.” The above averment does not state:

(i) at what stage, if any, did Dr Blay-Miezah sign the 1989 will. Was it before she Mrs Pennington was called in or in her absence? If before she came in, did Dr Blay-Miezah acknowledge his signature in her presence, and that of Dr Ayeh-Kumi?;

(ii) whether Dr Ayeh-Kumi too signed the will. And if he did, whether it was in her (Mrs Pennington’s) presence or

[p.665] of [2001-2002] 1 GLR 617 later, especially as she and Dr Kells were the first to leave; and

(iii) whether she made her signature in the presence of Dr Blay-Miezah and Dr Ayeh-Kumi.

Section 2 of the Wills Act, 1971 (Act 360) provides, inter alia:

“2. (1) No will shall be valid unless it is in writing and signed by the testator or by some other person at his direction . . .

(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 . . .”

None of the above requirements can be assumed in a contentious probate action where the challenge to the validity of the will is one of forgery. They are mandatory requirements without which the court cannot hold the will valid. And once exhibit E does not establish these requirements, the Court of Appeal grievously erred in holding that exhibit E could sustain the judgment of the High Court.

Now, with the evidence of the fourth plaintiff witness nullified, and the serious shortcomings of exhibit E, the plaintiffs have no evidence on the making of the 1989 will. On the contrary, the overwhelming evidence of forgery perpetuated by Dr Kells and Nana Arvo Buah in the preparation and execution of exhibits 6 and 20 confirm the defendants’ contention that the 1989 will was a forgery.

As stated earlier, there were two other testamentary dispositions. The first was dated 16 August 1990 and tendered as exhibit 13, while the other was dated 9 June 1992 and tendered as exhibit 16. In respect of exhibit 13, the trial judge held it to be valid and therefore entitled to probate. But in respect of exhibit 16 she declared it invalid and not entitled to probate because, as she stated: “Clearly Blay-Miezah did not sign exhibit 16 with intent that it should be treated as a will; he had no animus testandi when he dictated exhibit 16.” In the judge’s view, exhibit 16:

[p.666] of [2001-2002] 1 GLR 617

“was directing how moneys already bequeathed by his 1988 will and mentioned under payment instructions were to be channelled. The 1988 will would already have directed the executor what to do about the bequests thereunder. If exhibit 16 is construed as a testamentary instrument it would be creating a future clash between Joyce and the executors of the 1988 will. By reason of the absurdity of such construction exhibit 16 could not be held to be a will, nuncupative or otherwise.”

Now, the trial judge had already declared the copies of the 1988 will null and void. And one therefore wonders from which copy or source of the 1988 will was she comparing the contents of exhibit 16 with.

Now, when the defendants, in their respective statements of defence and counterclaim, counterclaimed for probate of the 1988 will together with exhibits 13 and 16, the plaintiffs in paragraph (4) of their reply to the first, third and fourth defendants’ defence pleaded that exhibit 16, ie the 9 June 1992 codicil: “was in any event procured by duress or pursuant to a conspiracy or both by and between the persons who then had charge of and contact with the dying Blay-Miezah.” Notwithstanding this pleading by the plaintiffs’, the plaintiffs themselves did not set this down as an issue for trial, neither did any of the defendants. Furthermore, not an iota of evidence was led on the alleged duress and conspiracy by any of the plaintiffs’ witnesses. On the other hand, the plaintiffs’ material witness, the first plaintiff witness, Nana Arvo Buah, testified that when he got to know of exhibit 16, he inquired from Dr Blay-Miezah’s personal attendant, the first defendant witness, who confirmed to him (the first plaintiff witness), that exhibit 16 was dictated by Dr Blay-Miezah when the latter was relaxing. The first plaintiff witness said: “. . . I called upon Kaku who also confirmed that it was written by Stan Barron while Nana was relaxing in a sofa. I confronted Mr Mochiah Ackah who also said it was dictated by Nana and written by Stan Barron.”

This evidence of the first plaintiff witness confirmed the

[p.667] of [2001-2002] 1 GLR 617 evidence of the three defendant witnesses who testified on how exhibit 16 was made. These witnesses were James Kaku, the first defendant witness; Bernard Miller, the fourth defendant witness, a German doctor and J E Mochiah, the sixth defendant witness. The evidence of these defendant witnesses on the making of exhibit 16, having been confirmed by the plaintiffs’ own witness on the validity of exhibit 16, while the plaintiffs’ contention that exhibit 16 was procured by duress or conspiracy stands unsupported by any evidence, a court of law is duty bound to accept the defendants’ version unless there are compelling reasons appearing on the record: see Asante v Bogyabi [1966] GLR 232, SC; In re Ohene (Decd); Adiyia v Kyere [1975] 2 GLR 89, CA and Banahene v Adinkra [1976] 1 GLR 346, CA.

The evidence from both the defence and the plaintiffs’ witness, the first plaintiff witness, establish that exhibit 16 was handwritten, signed by Dr Blay-Miezah and witnessed in the presence of Dr Bernard Miller, Mochia Ackah and Stanley Barron. Each of whom witnessed the document in the presence of the other. There is also the signature of a fourth witness. The evidence revealed that this was the signature of Blay-Miezah’s wife, Mrs Joyce Blay-Miezah. As to how Mrs Blay-Miezah came to sign, the sixth defendant witness— John Mochia Ackah—explained in his evidence in-chief as follows: “After we had signed, he (ie Dr Blay-Miezah) asked me to take the document to his wife, who was then in her room to sign—this was Mrs Joyce Blay-Miezah Adzo Nyameke. After she had signed it we brought the paper back to where Blay-Miezah was.”

Since the law requires only two attesting witnesses, the signatures of the three witnesses were more than enough. Thus the signature of Mrs Blay-Miezah was not necessary and has no effect on the validity of that document.

In this exhibit 16, Dr Blay-Miezah refers specifically to his will deposited in two banks in Switzerland and gives directions on the distribution of some of the bequests made therein. He also set up a consortium of named persons to take care of certain matters not dealt with in that Switzerland will, and even makes provision in the

[p.668] of [2001-2002] 1 GLR 617 event of the death of his wife Mrs Joyce Blay-Miezah. If Dr Blay-Miezah in dictating exhibit 16 did not have animus testandi, then one does not know what else is required to satisfy the requirement of testandi in a man who dictated such words at a time he was apprehensive of his death. For as Dr Miller explained, when he was attending to Dr Blay-Miezah between 11 May 1992 and 10 June 1992, Dr Blay-Miezah: “. . . had had the hiccups for the last four weeks but it got worse and worse. That was the reason he had called me. During the taking of the medical history Dr Blay-Miezah told me that one of his close relatives did get severe hiccups before his death. So this was having a great psychological effect and fear on him.”

In respect of the events of 9 June 1992, the day on which exhibit 16 was made, Dr Miller testified:

“On 9 June I visited Dr Blay-Miezah… In the evening of the same day about 8 pm, he complained of weakness but there was no sign of cardiac insufficiency. The examination was done in the bedroom of Dr Blay-Miezah in the presence of Mr Stanley Barron. After the examination, Dr Blay-Miezah called in Mr Mochia Ackah and he said he would like to dictate a will to him and he dictated exhibit 16 to him.”

In the face of such evidence, which was not challenged, how can it be said that Dr Blay-Miezah had no animus testandi when he dictated exhibit 16?

In Mortimer on Probate Law & Practice (2nd ed, Sweet & Maxwell, 1927) the learned author relying on Cock v Cooke (1866) 1 P & D 231 at 243, stated:

“Any document duly executed in accordance with the requirements of the statute, however irregular in form or inartificial in expression, is entitled to probate, provided the person executing it intended that it should not take effect until after his death, and it is dependent upon his death for its vigour and effect.”

[p.669] of [2001-2002] 1 GLR 617

Sir John Nicholl in King’s Proctor v Dames (1830) 162 ER 231 made the same point that if an instrument is made in accordance with the Wills Act, then:

“the form of the instrument is not conclusive against its testamentary effect; although it may not be valid in the form in which it was drawn up as a deed of gift, yet it may operate as a will. If there is any proof, either in the paper itself, or from clear evidence dehors, first, that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it, if considered as a will, and secondly, that death was the event that was to give effect to it, then whatever be its form, it may be admitted to probate as testamentary.”

In the case of exhibit 16, it is very clear that both from its contents and especially the evidence of the four witnesses, that Blay-Miezah intended it to be nothing but a will. As Dr Miller testified; after he had examined Dr Blay-Miezah, the latter “. . . called in Mr Mochia Ackah and he said he would like to dictate a “ will to him . . .” The trial judge clearly erred in holding that exhibit 16 was not a testamentary document because she failed to avert her mind to the evidence of the relevant witnesses.

In conclusion, it is clear that the plaintiffs woefully failed to prove the validity of the 1989 will. For the evidence of Mrs Pennington, led in London to establish the preparation and execution of the 1989 will, was without jurisdiction, and further exhibit E, the affidavit of Mrs Pennington, is also “totally worthless” as first, the defendants did not have the opportunity to cross-examine her on it in Ghana; and secondly, its contents did not satisfy the requirements of section 2 of Act 360. In addition, the plaintiffs failed to lead evidence to remove the strong suspicion created by exhibits 6 and 20 in the face of the admitted fact that the late Dr Blay-Miezah left behind a number of signed blank letterheads (exhibit 34).

On the other hand, assuming without admitting that the evidence of Mrs Pennington was taken with jurisdiction, it has been sufficiently demonstrated above that from her evidence alongside that of the first plaintiff witness, other witnesses and the exhibits,

[p.670] of [2001-2002] 1 GLR 617 particularly exhibits 6 and 20, her claim that she typed the 1989 will on 29 January 1989 with her own private typewriter at the residence of Dr Blay-Miezah in London, cannot be true. For if she, indeed, did type the 1989 will on a single sheet of paper, as she emphatically claims, from where did the two copies of the said will talked about by the first plaintiff witness, emerge that very evening of 29 January 1989 before Dr Blay-Miezah left for Ghana? Again, if she, indeed, did type the 1989 will on her own typewriter, which she brought to Dr Blay-Miezah’s house that evening and took it back after the typing, how could she have answered that it was possible that the said 1989 will, and exhibit 6 (the forged 15 June 92 will), and exhibit 20 (the payment instructions) could have been typed on the same typewriter, especially as she denied typing exhibits 6 and 20? And finally, if she did, indeed, type the 1989 will in which the names of the two attesting witnesses, including hers, had been typed, how could she say that until she was requested by Dr Blay-Miezah to sign as a witness to the will, she did not know that she was going to be an attesting witness, when her name had already been typed as one of the two attesting witnesses?

Mrs Pennington is obviously a shameless liar who in collaboration with her unscrupulous employer, Dr John Kells, and Nana Arvo Buah, forged the 1989 will, as they did exhibits 6 and 20. She was procured to bear false witness in furtherance of their grand forgery. She was an unworthy witness who, in the words of Proverbs, chapter 17 verse 28, vowed to make a mockery of justice. Not surprisingly, she was afraid to come to Ghana to testify. Her employer, Dr Kells, never appeared in court at all. Not even when the court moved to London. They had their own agenda. But the truth shall in all circumstances eventually triumph. As it now has. It is sad that the High Court and the majority of the Court of Appeal did not, with respect, critically analyse the evidence to expose the mischief of this unscrupulous gang. The 1989 will, exhibit 21, is obviously invalid. It is forged. And consequently not entitled to probate.

The defendants are entitled to probate of the 1988 will together with the testamentary documents tendered as exhibits 13 and 16, dated 16 August 1990 and 15 June 1992, respectively. The

[p.671] of [2001-2002] 1 GLR 617 additional evidence led at the Court of Appeal revealed that the trial judge, after her judgment, granted two probates in respect of the 1989 will. Since the 1989 will is hereby declared invalid, the two probates are accordingly revoked and ordered to be deposited at the High Court, Accra registry. Statements of accounts of the administration of the estate on the basis of the said probate are to be filed at the High Court registry.

In the end, the appeal is allowed. The judgments of the Court of Appeal and that of the High Court are, subject to this judgment, set aside. The claim of the plaintiffs is dismissed, and judgment entered for the defendants on their counterclaim as set out above. There will be costs for the defendants.

Bamford-Addo JSC. I agree.

Ampiah JSC. I agree.

Adjabeng JSC. I agree.

Atuguba JSC. In this “Treasure Island” case, several points of law and fact have been canvassed. I propose to deal with some aspects of them on which I feel the need to state my own views.

One fundamental point was whether the trial court’s adjourned proceedings which took place in the Ghana High Commission premises in London where the fourth plaintiff witness’s evidence was taken, were a nullity for want of jurisdiction. I must confess that this point greatly exercised my mind because of the fact that those proceedings took place in the premises of the Ghana High Commission. The Constitution, 1992 has defined the territories of Ghana in article 4; but if, at common law, the premises of an embassy are part of the territory of the sending state, then problems of interpretation could have arisen.

However, the notion that the premises of an embassy are part of the territory of the sending state, as submitted by Mr Adumua-Bossman, counsel for the plaintiffs at the trial court, though widely held by some ambassadors and lawyers, is not judicially accepted. This matter was most fully treated in the classic judgment of Cumming-Bruce J in Radwan v Radwan [1972] 3 All ER 967. The

[p.672] of [2001-2002] 1 GLR 617 facts of that case as stated in the headnote thereof are that:

“In 1951 the husband, an Egyptian national, entered into a contract of polygamous marriage with an English woman at the Egyptian consulate in Paris. In 1956 he decided to settle permanently in England and acquired an English domicil of choice. In April 1970 he went to the Consulate General of the United Arab Republic in London and, in accordance with the procedure laid down by Egyptian law, obtained a divorce there from his wife by talaq. In November 1970 the wife presented a petition for divorce and the husband cross-prayed for a decree. The issue arose whether or not the Consulate General of the United Arab Republic in London was a part of the territory of the sending state so that the talaq divorce obtained therein fell to be recognised under s 2(a) of the Recognition of Divorces and Legal Separations Act 1971 as a divorce obtained in a country outside the British Isles.”

(The emphasis is mine.) At 972 Cumming-Bruce J said:

“The term ‘extra-territorial’ has been used to describe in a compendious phrase that bundle of immunities and privileges which are accorded by receiving civilised states to the envoys sent by foreign states. One such immunity included in the term is the inviolable character of the premises of mission, which the agents of the receiving state may not enter without the consent of the head of the mission.”

After consulting Satow, A Guide to Diplomatic Practice; Starke, Introduction to International Law, Briggs, The Law of Nations, Cases, Documents and Notes; Oppenheim’s International Law; Kelsen, Principles of International Law; Hall, A Treatise on International Law; F E Smith, International Law; Hurst, International Law; O’Connell, International Law; Fawcett, The Law of Nations; McNair, International Law Opinions, the learned judge stated at 973:

“In all of them I find a consensus of opinion that there is no valid foundation for the proposition, or alleged rule, that

[p.673] of [2001-2002] 1 GLR 617 diplomatic premises are to be regarded as outside the territory of the receiving state.”

(The emphasis is mine.) Cumming-Bruce I next referred to judicial decisions on the question in Australia, France, Germany and Italy and said at 975: “In all these cases the court rejected the argument that diplomatic premises were not part of the territory of the receiving state. . .” (The emphasis is mine.) The learned judge also referred to international conventions and stated at 976:

“What is significant about those articles is not so much what they say as what they do not say. If it was the view of the high contracting parties that the premises of missions were part of the territory of the sending state, that would undoubtedly be formulated and it would have been quite unnecessary to set out the immunities in the way in which it has been done.”

(The emphasis is mine). Finally at 976 the learned judge said:

“I have been invited to consider the impact on this problem of the cases on the formation of marriage, some of which deal with marriage in foreign consulates. I have looked at such cases. 1 do not accept the proposition set out in Rayden on Divorce [(11th ed, 1971), p132], where it is stated in the text:

‘The only marriages in England clearly outside the provisions of this Act are those celebrated at foreign Embassies . . . which, by the fiction of extraterritoriality, are regarded as being celebrated in the dominions of the sovereign so represented’.”

(The emphasis is mine.) His lordship then concluded at the same page thus:

“I am satisfied that the cases do not justify the suggestion that the way in which marriages in consulates are recognised as being validly formed has any relation to the proposition that premises of the consulate are part of the territory of the sending state, and the authorities quoted by the learned

[p.674] of [2001-2002] 1 GLR 617 editors of Rayden on Divorce do not bear out the observation, if that is what they intended it to mean. For those reasons the husband, being at the material time a gentleman of English domicil, did not go through a proceeding for divorce in a country outside the British Isles when he pronounced the talaq three times in the Consulate General of the United Arab Republic of London in 1970.”

(The emphasis is mine.)

I am not only constrained by the depth of learning of Cumming-Bruce J to agree with his decision in that case, but also, by analogy to the Ghanaian case of Ghana Consolidated Diamonds Ltd v Boahene [1987-88] 1 GLR 87, CA. In that case the appellant company obtained a concession which provided, inter alia, that an area of land include in the concession and variously referred to as “fetish grove”, “fetish land”, “Ayawa fetish land”, “shall in no way be interfered with by mining or other operations of the holder of the time being of the concession.” (The emphasis is mine.) The Akwatia stool, by reason, inter alia, of this clause claimed that the said fetish land was outside the area of the appellant’s concession. This contention was rejected by the Court of Appeal which held that the clause introduced only a limitation as to the user of the land and not that the land had been taken out of the concession. Similarly, therefore, I hold that the privileges and immunities attaching to the Ghana Embassy in London only limit the rights of the British government with regard to it, but that embassy remains part of the territory of the United Kingdom and therefore the proceedings which the trial judge held there in this case, were held on British territory. As the courts in Ghana do not have extraterritorial jurisdiction, the same were a nullity.

It was also contended that since the plaintiff-respondents (hereinafter called the plaintiffs), had pleaded that six persons were present at the execution of the alleged 1989 will by the testator but at the trial they sought to establish that a fewer number had been present, the court could not accept a case contrary to their pleadings. It is generally well established that a party cannot set up a case contrary to his pleadings. But I do not think that it is an absolute principle. Generally speaking, the courts, having

[p.675] of [2001-2002] 1 GLR 617 established a legal principle, often strive, if possible, to avoid applying it in such a manner as would occasion an injustice. This is what the greatest book in the world, the Bible, itself teaches! Thus in Luke, chapt 13: 10-17 our Lord Jesus Christ healed a woman on the Sabbath and when an official of the synagogue criticised this act. Our Lord Jesus answered him:

“You hypocrites! Any one of you would untie your ox or your donkey from the stall and take it out to give water on the Sabbath. Now here is this descendant of Abraham who Satan has kept bound up for eighteen years; should she not be released on the Sabbath?”

(The emphasis is mine.) Again in Luke, chapt 6:1-5 when some Pharisees criticised Jesus’s disciples who picked and ate ears of corn on the Sabbath Jesus answered them:

“Haven’t you read what David did when he and his men were hungry? He went into the house of God, took the bread offered to God, ate it, and gave it also to his men. Yet it is against our Law for anyone except the priests to eat that bread.”

(The emphasis is mine.) Hence it has been held by the Privy Council in Jayesena v R [1970] 2 WLR 448 and by the English House of Lords in Dorset Yacht Co v Home Office [1970] AC 1004 that the common law is shaped as much by the way in which it is practised as by judicial dicta.

In practice, therefore, the courts have striven to prevent the rules of pleading from causing injustice or hardship. Consequently, the courts have held that where a matter, not pleaded, is let into evidence without objection, no surprise is involved and it must be considered; this is trite law. Nor would an immaterial conflict in pleadings have any consequence. In Odametey v Clocuh [1989-90] 1 GLR 14, SC, it was held, as stated in the headnote, that:

“(2) Variations in pleadings that did not substantially destroy the plaintiff’s case were not material and could in appropriate circumstances be safely ignored. Therefore if the plaintiff’s conveyance of 1970 was valid then the

[p.676] of [2001-2002] 1 GLR 617 abandonment of her claim of customary grant was wholly immaterial and was a variation of no consequence whatsoever. Majority decision in R T Briscoe v Preko [1964] GLR 322 at 352, CA criticised.”

(The emphasis is mine.) All this establishes what I said in Amuzu v Oklikah [1998-99] SCGLR 141 at 183 that: “In compelling circumstances the courts have not allowed the rules of pleading to stand in the way of justice.” (The emphasis is mine.) As Taylor J (as he then was) explained in Asantekramo alias Kumah v Attorney-General [1975] 1 GLR 319 at 344: “Pleadings are generally meant to be servants not masters of the judicial process.” (The emphasis is mine.) In Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 588, PC Lord Kilbrandon, delivering the judgment of the Privy Council, said: “The tendency, today, in all jurisdictions, is so far as possible to simplify the technical rules of pleading. Rules have to exist for the orderly conduct of litigation and especially for the prevention of surprise, which is injustice. But pleading and the rules of pleading are servants, not masters.”

(The emphasis is mine.)

Even in criminal trials, where the stakes are heavier, pleadings are not allowed to be the masters over and above the requirements of justice. In Obeng alias Donkor v The State [1966] GLR 259 at 260, SC Apaloo JSC (as he then was) as the trial judge, was quoted as having said that:

“The sum charged against the accused in count 4 is that he stole £G321 19s. 6d. No evidence whatsoever was led to prove this sum although evidence was led which satisfies me of the appropriation by the accused of £G315. As the charge was at no time amended, I am bound to hold that the amount charged in count 4 was not proved.”

(The emphasis is mine). Unanimously reversing him, the Supreme Court held that the evidence as to the part stolen, satisfied the statutory requirements of the offence of stealing. The court stated

[p.677] of [2001-2002] 1 GLR 617 at 261: “Therefore where a person is charged with stealing a certain sum it is sufficient if the prosecution proves that he in fact stole part of that sum.” (The emphasis is mine.) Thus the variance between the charge and the evidence was not allowed to stand in the way of substantive statutory justice.

In this case, I would hold that the variance between the plaintiffs’ pleading that six persons were present at the execution of the 1989 will and the evidence that fewer people than that were so present, is not the material factor. What the Wills Act, 1971 (Act 360), requires them to prove is due execution attested by two witnesses in each other’s presence. The rules of procedure are subsidiary legislation and their operation should not, unless inevitable, defeat the requirements of substantive legislation. This seems to be the ratio of the Obeng case (supra).

In this case, the presence of Dr Kells and Mrs Pennington at the residence of the testator on 29 January 1989 has been confirmed by documentary evidence, to wit, exhibit C and even exhibit 31. These documents were admitted in evidence without objection and caused no surprise to the defendants; and in any case, since they clearly established that fact, provided the other facts establish the true making and due execution of the 1989 will, then, since pleadings are servants and not masters, I do not see why a court should nonetheless, quod their servitium amissit, constrain itself to pronounce against that will. For these reasons I came close to agreeing with the vivid judgment of Benin JA in the Court of Appeal, who held, in support of the majority decision, that even if exhibit E; an affidavit of the fourth plaintiff witness as to the preparation and execution of the 1989 will (exhibit 21) , as well as her oral testimony in London were expunged, due to lack of opportunity of cross-examination and territoriality of jurisdiction, respectively, yet exhibit 9, another affidavit of the same fourth plaintiff witness, which was put in evidence by the defendants without objection, could support the due proof of the 1989 will. However, on reflection, I must differ, with great respect, from Benin JA. In law an ambiguous admission is no admission: see Pornaa v Fosuhene [1987-88] 1 GLR 244, SC.

Exhibit 9 does not stand alone. It cannot be said that the defendants wholly admitted exhibit 9 as the truth of the matter.

[p.678] of [2001-2002] 1 GLR 617

They also led evidence of suspicious circumstances surrounding the alleged preparation of the 1989 will, some of which are the existence of letterheads pre-signed by the testator which could have been exploited by anyone, the squeezing up of the contents of that will into one such letterhead, some material misspellings, therein, etc. In such circumstances, the burden was on the plaintiffs to remove these suspicions before the defendants could then undertake their burden of proving that the said will is a forgery: see the classic judgment on this matter, of the esteemed late Cecilia Koranteng-Addow J in In re Ayaye (Decd); Kukubor v Ayayee [1982-83] 2 GLR 866. The evidence of the fourth plaintiff witness in exhibit E and at the Ghana Embassy in London, which might have removed these suspicions was rightly expunged by the Court of Appeal for reasons already given.

As regards the 1988 will propounded by the defendants, the attempt to paint it as a forgery, cannot, on the evidence, be borne out. The trial judge accepted certain differences between it and exhibit O tendered by the plaintiffs to hold that, the said 1988 will (exhibit 28) was a doctored copy of the original, of which exhibit O was a carbon copy. That holding is a non sequitur because two documents can be similarly prepared or even two sets of originals and copies of the same document can be prepared (except, perhaps as to the signatories thereof), with or without an element of fraud see Akenten II v Osei [1984-86] 2 GLR 437, a decision of Apaloo CJ sitting as an additional judge of the High Court. The facts of this case do not necessarily point to forgery in respect of exhibit 28 the 1988 will. The testator had a changing mind and his testamentary documents suffered similar vacillation, not always propelled by improper intrigue.

For these reasons, I would also allow the appeal in the manner indicated by my able brother Acquah JSC.

Appeal allowed.

DRKS