IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION),
ACCRA - A.D 2019
NYANTAKYI KOFI KYE AND 3 OTHERS - (Plaintiffs)
MARGRET GYIMAH AND 11 OTHERS - (Defendants)
DATE: 14TH MAY, 2019
SUIT NO: BFA/45/2007
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
COL KOFI DANSO (RTD.) FOR THE PLAINTIFFS NIKITA
OWUSU (MS.) FOR THE 5TH DEFENDANT NOAH
ASAMANY FOR THE 6TH TO 12TH DEFENDANTS
 The history of this case makes it appropriate to prefix this judgment with the quote by the respected former Chief Justice of this Republic, Wood CJ (as she then was) in the case of AGYEMANG (Substituted by BANAHENE & OTHERS v. ANANE [2013-2014] 1 SCGLR 241 when she stated:
“The oft quoted legal maxim “Justice delayed is justice denied”, coined by the British politician, William Gladstone (1809-1898), is no mere cliché. The right to fair trial in a timely manner is neither a courtesy nor a favour, but a fundamental right. Protracted delays in the administration of justice, impact negatively not only on those who access the courts, such as the victims of crime, accused persons who are acquitted at the end of their trial, parties in civil proceedings and their privies, lawyers who practice before the courts but indeed the entire justice system. The judicial history of this relatively simple family related land matter, which was commenced in the High Court Kumasi, as far back as the 4th of April 1974, provides an insight into the harmful effects of systemic delays in the administration of justice. Regrettably, it has taken forty long years, a whole generation, for this case to finally find its way into this court; the court of last appeal. We hope court business shall always be managed in ways that will not occasion a repeat of this parody of justice”
 Sadly, due to many reasons including the joinder of the 6th to 12th Defendants to the Suit almost a decade after the filing of the suit at the Registry of the Court, her Ladyships’s lamentations were ignored by the parties and so this simple case involving the challenge of a Lawyer’s Last Will & Testament has taken over a decade since it was first filed on February 19, 2007. This case has taken many years with twists and turns to reach its final destination.
 The Plaintiffs seek a declaration and pray for the invalidity of the Last Will and Testament of Alfred Kye (the “Testator”) dated October 4, 2006 (the “2006 Will”) on the grounds of lack of testamentary capacity to devise House No. 3 Agyemang Street, Zoti Residential Area in Accra and another house at Abetifi Kwahu. They are also seeking a declaration that the 2006 Will is null and void and of no legal effect. Specifically, the Plaintiffs claim is for the following judicial reliefs:
i. A declaration that the late Alfred Kye did not have the capacity to devise H/No. 3 Agyemang Street, Zoti Residential Area mentioned in paragraph 3 of the purported WILL.
ii. An order that the said devise be declared null or void and of no effect.
iii. A declaration that the late Alfred Kye did not have the capacity to devise a purported self-acquired house at Abetifi Kwahu mentioned in paragraph 5 of his purported WILL.
iv. An order that the said devise is null and void and of no legal effect.
v. A declaration that the purported WILL of Alfred Kye (deceased) dated 4th October 2006 is null or void and of no legal effect.
vi. An order of the Court setting aside said WILL.
 The Writ of Summons was originally issued against the 1st to 4th Defendants who are
Executors of the Last Will and Testament of the Testator, Alfred Kye, deceased who died on October 14, 2006. By a Motion on Notice filed on November 8, 2007, the 5th Defendant Nancy Sakyiama who was the Testator’s wife and a beneficiary of the Will was joined as a party. The record shows that the Plaintiffs failed to amend the Writ of Summons after the order of joinder to join the 5th Defendant until Counsel for the 5th Defendant filed another motion on June 18, 2009 for an order to compel the Plaintiffs to comply with the earlier order. The record further shows that the 1st to 4th Defendants as Executors did not contest the suit and so when the matter came before me and after a long delay the contest was between the Plaintiffs and the 5th Defendant only who after being served with the Amended Writ of Summons filed a Statement of Defence and Counterclaimed as follows:
a) A declaration that the Last Will of the late Alfred Kye duly executed on the 4th day of October, 2006 is the true and last will.
b) An order that the said Will of the late Alfred Kye which was duly executed on the 4th day of October, 2006 be admitted to probate.
 After the mandatory Case Management Conference in February 2016 and after the matter was set down for trial on May 6, 2016 the 6th to 12th Defendants who are all children of the Deceased Testator also filed a Motion for Joinder. Again, the record shows that the Court and the other parties were never made aware of the application for joinder until December 2016. The application was therefore granted on December 19, 2016. The Writ of Summons was again amended on February 1, 2017 and the 6th to 12th Defendants were joined as parties. They duly filed their Statement of Defence and the matter proceeded to trial.
ii. The Issues
The issues set down for the determination by the Court were as follows:
a) Whether or not the late Alfred Kye executed a Will on the 6th day of December 2001?
b) Whether or not the late Alfred Kye revoked his Will of the 6th of December 2001 and executed a new Will on the 4th day of October 2006?
c) Whether or not the Will of the late Alfred Kye dated the 4th of October is his true and Last Will?
d) Whether or not House No. 3 Agyeman Street, Lartebiokoshie, Accra is the joint property of the late Alfred Kye and the late Margaret Kye?
e) Whether or not House No. 3 Agyeman Street Lartebiokoshie, Accra was put up on land acquired by the late Margaret Kye?
f)Whether or not when the late Margaret and the late Alfred Kye were alive, they made a gift inter vivos of the said House No. 3 Agyeman Street, Lartebiokoshie, Accra to the 1st, 2nd and 3rd Plaintiffs as well as the 4th Defendant?
g) Whether or not the late Alfred Kye had capacity to devise the said House No. 3 Agyeman Street, Lartebiokoshie, Accra?
h) Any other issue(s) raised by the pleadings
iii. Brief Facts of the Case based on the Pleadings:
 The 1st, 2nd and 3rd Plaintiffs are the children of the Testator and his the late wife Margaret Kye who died in 1995 and the beneficiaries of the 2006 Will. The 4th Plaintiff is the brother of the Testator. The 5th Defendant is the customary wife of the Testator and a beneficiary of the Will and the 6th to 12th Defendants are also the children of the Testator. The Plaintiffs contend that the Testator executed an earlier last will and testament and confirmed that the House No. 3 Agyemang Street, Lartebiokosie, Accra is the joint property of the Testator and his late wife Margaret Kye.
 The Plaintiffs say the above notwithstanding, on October 4, 2006, the Testator executed a new will (the “2006 Will”) and by paragraph 3 devised House No. 3 Agyemang Street, Lartebiokosie, Accra as his personal property. Also, they contend that the Testator lacked the capacity to do so because at the time the Testator and the late Margaret Kye were alive they made a gift inter vivos of the said property to the 1st, 2nd 3rd and 4th Defendant their children in accordance with custom. According to them there was an “aseda” performed and it was witnessed and made public. The Plaintiffs also contended that the land on which the property devised in paragraph 5 of the 2006 Will was built was family property and therefore the Testator had no capacity to devise same under his Will.
 According to the 5th Defendant she is the lawful widow of the late Alfred Kye and she contends that the 2006 Will duly executed by the Testator is his true and last will in accordance to law. It is the case of the 5th Defendant that the 2006 Will which was read at the High Court on the 5th day of February 2009 is indeed the Testator’s true and last Will. The 5th Defendant contends that by the 2006 Will the Testator revoked the previous Will dated 6th day of December 2001.
 Also, it is the case of the 5th Defendant that the Testator was leased the plot of land on which H/No. 3 Agyemang Zoti Street is situate by the President of the Republic of Ghana through the Lands Commission per a lease dated the 2nd day of December 1971 and made between the Government of Ghana and the Testator. According to the 5th Defendant the Testator mortgaged the said property to a bank in favour of a Construction Company by an agreement dated the 15th day of August, 2003. According to the 5th Defendant the fact of the mortgage is the evidence that the Testator was the sole owner of the property during his lifetime, contrary to the claim of the Plaintiffs.
 The case of the 6th to 12th Defendants is that the 1st, 2nd and 3rd Plaintiffs and their brother Gyimah Kwaku, the 4th Defendant/Executor sued their father during his lifetime in 1997 for their share of his properties which compelled him to dispose of his house at Tesano, a plot of land at McCarty Hill and land with Boys Quarters at East Legon, the proceeds of which he shared amongst them, apart from a three-bedroom house with a large compound which he built for the 1st, 2nd and 3rd Plaintiffs mother at Tutu, Akwapim, where the 1st and 2nd Plaintiffs reside.
iv. The Court’s Evaluation of the Evidence:
 Several of the issues set down are merely collateral or peripheral and do not help in the determination of the key issues in this suit. Be that as it may I shall determine the main issues based on the facts and evidence adduced at the trial. The important issues to my mind are issues B, D, E, F and G. Indeed it is the policy of the law that only those issues which are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See DOMFE v ADU (1984-86) 1 GLR 653.
 The law is trite and same supported by statute that for a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. This position is supported by various provisions of the Evidence Act 1975 (NRCD 323) Section 14 of which provides:
“(14). Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non existence of which is essential to the claim or defence he is asserting”.
 The burden of producing evidence by both sides in the suit as well as the burden of persuasion is one to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act 1975 (NRCD 323). Both the Plaintiffs and the 5th Defendant had the same burden to discharge to the Court because the 5th Defendant has a Counterclaim.
 It is trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; See Sections 10 – 17 of the Evidence Act 1976 (NRCD 323). I note that there is no paucity of case law interpreting the provisions of NRCD 323. In ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. See also RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420 which further elucidate the burden of proof as statutorily provided.
Now, how then did the Plaintiffs prove the reliefs they claim as per the Writ of Summons?
 I proceed to determine the main issues – as stated above. Now, in dealing with the issues set down I wish to combine and consider issues “D”, “E” “F” and “G” set out above together in my analysis. This is because they relate to the same subject matter, that is House Number 3 Agyemang Zoti Street, Lartebiokoshie, Accra. I shall later consider issue “B”.
v. The Plaintiffs’ Case:
 Giving evidence on oath in support of the claim for the Plaintiffs, Nyantakyi Kofi Kye, the 1st Plaintiff testified per the adopted witness statement that he is the first born child of the late Alfred Kye and therefore has full knowledge of the facts of the case. He said “I remember in 1970 my parents, the late Alfred Kye and the late Margaret Kye, borrowed money from the National Investment Bank to purchase two haulage trucks that were used to haul cocoa from the hinterlands to Tema on behalf of COCOBOD. The profits from this venture and contributions from both of them were used by them to build House No. 3, Agyemang Street, Latebiokorshie, Accra, in 1972”.
 On the Plaintiffs contention that House No. 3 Agyemang Street, Lartebiokorshie, Accra was gifted to them by the Testator and his late wife, let us hear from the 1st Plaintiff in part as to what happened and the circumstances of the said gift as per the witness statement filed and adopted by the Court
“One Saturday in June 1994, our parents, the late Alfred Kye and the late Margaret Kye, gifted to us their children namely Gyimah Kwaku Kye, Owusu Kwadwo Kye, Abena Korkor Kye and I, Nyantakyi Kofi Kye House No. 3, Agyemang Street, Latebiokorshie in the presence of our uncle Mr. Lawrence Bimpong, Mr. Gideon Adofo (Deceased), Mad. Margaret Gyimah, and Mad. Dora Nkwantabisa. This event took place at House No. 3, Agyemang Street, Latebiokorshie. The following day, accompanied by our uncle Mr. Lawrence Bimpong and Madam Juliana Ansah we the children presented to our parents a sheep, a bottle of schnapps, a carton of beer and a crate of assorted minerals to thank our parents as custom demands. I was given a deed of transfer of the property by my father. In June 1995 our mother passed away. In July 1995 my father requested for the title deed from me to register it at the Lands Commission and never gave it back to me”.
 His further evidence was that in August 1995 his father told him to leave House No. 3, Agyemang Street, Lartebiokorshie where he was living with him because he wanted Nancy Sekyiama, the 5th Defendant to move in. The 1st Plaintiff further testified that “on the night before his death my father asked me to forget everything, and in fact he died holding my hand in the presence of Nancy Sekyiama and Gladys Osei”.
 According to the 1st Plaintiff the children of the Testator are contesting the basis of the apportionment of House No. 3 Agyemang Street, Lartebiokorshie in their father’s last Will on the grounds that “it was jointly acquired by our father and mother and gifted to us by them in their lifetime”. He told the Court that “our mother paid the initial deposit, the receipt of which I have with me. She also paid for the sliding door, the receipt also I have with me. I remember on some occasions on her way from the office, she will pass by to give money to the artisans on site; and so did my father.
 He further testified that in “our father’s last Will he directed that House No. 3, Agyemang Street, Lartebiokorshie be sold and shared in three parts, one third of which should be given to Nancy Sekyiama. We are contesting this on the basis that our father did not have the capacity to do so after he and our mother had made a valid gift of the property, which was jointly acquired by them, to their children. In fact in his last but one Will our father stated clearly that the house was jointly acquired by our mother and himself”.
 The Plaintiffs’ witness tendered as Exhibits “A”, “B” and “C” further to a Supplementary Witness Statement filed on October 26, 2015.
“According to Mr. Nyantakyi Kofi Kye Exhibit “A” is a “copy of a receipt dated 19th January 1970 issued by one Adisa Walana to my late mother Margaret Kye, in part payment of blocks and the plot of land at Latebiokorshie, being the plot of land on which House No. 3, Agyemang Street, Latebiorkorshie was built, mentioned in paragraph 2 and 5 of my Witness Statement and paragraph 7b of the Amended
Statement of Claim pursuant to Court order filed on 6th July 2009”.
“Exhibit B - Copy of Profoma Quotation from UTC Industrial Department in the name of Margaret Kye in the sum of ¢1,316.62 for Amarlite Aluminium Sliding Door for the construction of House No. 3, Agyemang Street, Latebiorkorshie, mentioned in paragraph 5 of my Witness Statement. Exhibit C – Copy of receipt issued to Margaret Kye by UTC Ltd. For the payment of the sum of ¢1,361.62 for the payment of the Sliding Door mentioned in paragraph 1b above”.
 The next witness who testified for the Plaintiffs was Lawrence Bimpong, the 4th Plaintiff who is the brother of the Testator, the late Alfred Kye. He testified that:
“One Saturday sometime in June 1994 my brother, the late Alfred Kye, invited me to his house, No. 3 Agyemang Street, Latebiokorshie, Accra. I honoured the invitation on that Saturday and in the presence of my cousin, the late Gideon Adofo, my niece, Gladys Osei and my sister Margaret Gyimah who were in the house with the late Alfred Kye and his wife, the late Mr. Kye informed me in the presence of his wife, Margaret Kye (also deceased) and the others that he and his wife had decided to give their house, No. 3 Agyemang Street, Latebiokorshie, Accra, as a gift to their children Nyantakyi Kofi Kye, Kwadwo Owusu Kye, Awura Abena Kye and Gyimah Kwaku Kye and therefore he would like me to be a witness. Also present were Gyimah Kwaku Kye, Owusu Kwadwo Kye and Nyantakyi Kofi Kye, all children of the late Mr. and Mrs. Kye”.
 He further testified that the Testator then gave to his eldest son, Nyantakyi Kofi Kye, a document on the transfer of the property to the children. His further evidence was that “as custom demands I asked the children of my brother, Nyantakyi Kofi Kye, Kwadwo Owusu Kye and Gyimah Kwaku Kye to present their parents a sheep, a crate each of beer and minerals together with a bottle of Schnapps to thank their parents. The following day which was a Sunday I went back to the late Alfred Kye’s house, and in the presence of Juliana Ansah, a niece of the late Mrs. Margaret Kye and myself, the children presented the items listed above to their parents as “aseda” (thanks) to their parents, which the parents accepted”.
 Madam Juliana Ansah of Tutu Akuapem was next called as a witness by the Plaintiffs. She told the Court that she is the niece of the late Mrs. Margaret Kye, deceased and the wife of the late lawyer Alfred Kye, the Testator. This is what Madam Ansah told the Court “one Saturday in June 1994 I was invited by my cousin, Kofi Kye to meet him at his parent’s house at Latebiokorshie, Accra. I could not honour the invitation that Saturday, so I went the following day. I got there before him, but a few hours later he arrived with his siblings and their uncle, Mr. Bimpong. Kofi Kye asked me to join his brother and himself to thank their parents with a sheep and drinks for the gift of their parents’ house, No.3 Agyemang Street, Latebiokorshie which the parents had made to them the previous day. They presented the sheep and drinks to their parents in the presence of Mr. Bimpong and myself. Their parents accepted the sheep and drinks which the children presented to them”. The Plaintiffs closed their case after the testimony of Madam Ansah.
vi. The Case of the Defendants:
 The 5th Defendant Madam Nancy Sekyiamah testified in her own defence and called no other witness. The pith and substance of her evidence was that she is currently unemployed but was a businesswoman. She said she is the lawful widow of the late Alfred Kye, the Testator. She told the Court that “the deceased and I got married under customary law in 1997 following which we converted the customary marriage to one under the ordinance. Our marriage was blessed with an issue, Nana Ama Owusua Kye”
 Madam Sakyiamah said she knows the Plaintiffs as the children of her late husband. She also said she knows her late husband executed a Will dated October 4, 2006 and according to her it is the last Will of her late husband. A copy of the Will was tendered as Exhibit “1”. The further evidence of Madam Sakyiamah was that following the demise of her late husband “all his children and myself were invited to the Registry of High Court to witness the reading of the Will. The Will was read on the 5th day of February, 2009 as the true and last Will of the deceased”.
 She also testified that “my late husband Alfred Kye indeed executed an earlier Will on the 6th day of December, 2001, but he revoked that Will by his last Will executed on the 4th day of October, 2006. This latter Will represent the last and true wishes of my late husband and cannot be disturbed in any way”. According to Madam Sakyiamah “the property devised in paragraph 3 of the Will, which is House No. 3 Agyemang Street Zoti Residential Area, Latebiokorshie, Accra, the land on which it is situate was leased to the deceased by the President of the Republic of Ghana at the time through the Lands Commission per a lease dated the 2nd day of December, 1971 and made between the Government of Ghana and the deceased”.
 She further said “this same property during the lifetime of my late husband was mortgaged by him to a bank (Amalgamated Bank Limited) in favour of a construction company by an agreement dated the 15th day of August, 2003; which fact evidence the late Alfred Kye’s sole ownership of the property contrary to the Plaintiffs’ averment”. A copy of the said Mortgage Agreement was tendered as “Exhibit 2”.
 Madam Sakyiamah said during the lifetime of her husband he neither told her nor did anything by his conduct to represent to her that House No. 3, Agyemang Street, Zoti Residential area, Latebiorkorshie, Accra was built on the land acquired by his late wife and/or was a joint property of himself and his deceased wife, Margaret Kye. Speaking to the alleged gift, she said “I do not know of any gift-inter-vivos of the said property made by my late husband to the Plaintiffs or any other persons. Even if he did, the disputed paragraph 3 of his Will clearly and unequivocally states the revocation of any such gift”.
 In respect of the House at the Abetifi Kwahu devised in paragraph 5 of the Testator’s Will of October 2006, Madam Sakyiamah said she did not know about the said house as being a family property. She reiterated that “I am sure and believe that the last Will of my late husband which was duly executed on the 4th day of October, 2006 was duly executed in accordance with the Wills Act, 1971 (Act 360) of the Republic of Ghana”. She later filed a Supplementary Witness Statement which was adopted at trial to tender a copy of the Will executed by her late husband on the 6th day of December 2001 together with a receipt from the Judicial Service as Exhibits “3” and “3A”.
 The evidence of the 6th to 12th Defendants was given by the 6th Defendant Christabel Kye. She told the Court that “I applied together with my other siblings to join the suit which was initially instituted by the Plaintiffs against our step mother, the 5th Defendant and executors of our father’s Will”. She said “my deceased father died testate in October, 2006 and in the Will my deceased father devised one-third (1/3) of his self-acquired house at No. 3, Agyemang Street, Zoti residential area at Lartebiokorshie, Accra to all his children equally”.
Ms. Kye further said their father “directed his executors to sell the said house and share the proceeds thereof to beneficiaries including his children. This is captured under paragraphs 3 and 4 of his Last Will and Testament dated 4th October, 2006. We the 6th -12th Defendants have no cause to doubt the authenticity and or validity of the said Will”.
 The further evidence of Ms. Kye was that the 6th to 12th Defendants deny that House No. 3, Agyemang Street, Lartebiokorshie, Accra was gifted to the first three Plaintiffs and their brother Kwaku Kye. She said “if it were true that the said property was a gift inter-vivos made by our late father to the first three Plaintiffs and their brother Kwaku Kye, he would have mentioned this to us. If our late father ever made a gift of the said house to the Plaintiffs as is being alleged, he categorically revoked any such purported gift made by him orally or in writing under paragraph 3 of the his Will. We also deny that the land on which the disputed property, H/No.3, Agyemang Street, Lartebiokorshie, Accra is built is family property as our late father categorically stated in his Will that the said house is his self-acquired property”.
 Ms. Christabel Kye further testified that “it has also come to our knowledge that the first three Plaintiffs and their brother Gyimah Kwaku sued our father in 1997 during his lifetime for the share of his properties which compelled him to dispose of his house at Tesano, a plot of land at McCarthy Hill and land with a Boys Quarters at East Legon, the proceeds of which he shared amongst the first three Plaintiffs and their said brother”. She continued that “I vividly recall that on 21st May, 1999 in the morning, I visited my father at his Lartebiokorshie residence. I was sitting in the living room and watching television when my father returned home from his morning jogging. While in the living room, I overheard my brother, Kwadwo Kye and my father arguing on the compound of the house. Kwadwo Kye had confronted my father and a hot argument ensued. The argument went on for a while and intensified. They were exchanging words at the top of their voices. My stepmother, the 5th Defendant was in the bathroom. When I came out of the living room to the corridor, my brother had left and my father told me that Kwadwo Kye had slapped him in the course of the argument between them over his share of the proceeds from the sale of my father’s properties at McCarthy Hill, Tesano and others”.
In a nutshell, this is the evidence before the court. I note that I have provided details of the evidence heard because this is a facts-driven case.
vii. The Court’s Consideration of the issues & Analysis:
 Since a Will speaks from death, it is important to look at what the Testator is alleged to have done prior to his demise in order to determine the merits of the Plaintiffs’ claim. The Plaintiffs say the Testator lacked capacity to make the devises in paragraphs 3 and 5 of the October 2006 Will. With regards to paragraph 5 of the Will they contend that the late Alfred Kye “did not have the capacity to devise the purported self-acquired house at Abetifi Kwahu mentioned in paragraph 5 of his purported WILL” because the property was built on a family land. Also, the basis for the paragraph 3 objection as captured in the pleadings and the evidence heard was that the land on which House No. 3 Agyemang Street Zoti Residential Area, Latebiokorshie, Accra, which is at the centre of this litigation is situate was acquired by the late wife of the Testator, Margaret Kye. And so how did the Plaintiffs prove the allegations made?
 Having heard the evidence, I have no hesitation in dismissing the case of the Plaintiffs in regards to the Abetifi Kwahu house and their challenge of paragraph 5 of the Will. This is because apart from the allegations made as contained in the pleadings, no evidence was led to substantiate the allegation that the land on which the house was built is family land. Both Mr. Nyantakyi Kofi Kye and Mr. Bimpong said nothing in their evidence in chief to substantiate the allegation. It has long been held in the case BANK OF WEST AFRICA LTD. v ACKUN  1 GLR 176 @181 that the party who asserts the positive carries the burden to lead evidence in proof of his claim or assertion. Hence in the instant matter, since the Plaintiffs allege that the house at Abetifi Kwahu was built on a family land, they had the burden to lead positive cogent evidence in proof of that claim. They failed to do so.
 Now, with regards to the House No. 3 Agyemang Street, Lartebiokorshie Accra the
Plaintiffs’ presented Exhibits “A” and “B” to say that the land on which the house was built was acquired by the late Mrs. Margaret Kye. The following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the 1st Plaintiff as a witness by Counsel for the 5th Defendant on May 9, 2018.
“Q: You said your parents borrowed money from National Investment Bank to purchase two haulage trucks, do you have any evidence of this?
A: No my Lord.
Q: Kindly take a look at your Exhibit “A”. From Exhibit “A” the land was purchased from one Adiza Walani, am I correct?
A: Yes, my Lord.
Q: You said the property was purchased in 1970, am I correct?
A: It was there about my Lord.
Q: Can you confirm the date on Exhibit “A” for this Court?
A: My Lord it looks like 14th day of January, 1970.
Q: Your late father was a lawyer, am I correct?
A: Yes my Lord.
Q: Are you aware that your late father mortgaged the Lartebiokorshie house to Amalgamated Bank Ltd.
A: No my Lord, the reason being between 1974 and 1994 I lived mostly outside the country. So I am not aware.
Q: I am suggesting to you that the Lartebiokorshie property was leased to your late father by the government of Ghana through Lands Commission.
A: My Lord, this particular land was for an Ex-IGP, I think Mr. Yakubu who sold the land to my mother. So as to whether my father had it leased to him, I am not privy to that.
Q: I am suggesting to you that your late mother’s land which you claim from Exhibit “A” she purchased in 1970 is different from your late father’s property listed in his Will.
A: No my Lord, they are one and same property.
Q: Please take a look at your Exhibit “B”. From your Exhibit “B” you do agree with me that there is nothing on the face of it to show that these particular sliding doors were fixed at house number 3, Lartebiokorshie.
A: I do not agree with you my Lord.
Q: I am suggesting to you that the sliding doors listed in Exhibit “B” were not fixed at house number 3, Lartebiokorshie.
A: They were fixed at number 3 Agyemang Street, Lartebiokorshie House”.
 To the Plaintiffs Exhibits “A” and “B” together with the above answers of the 1st Plaintiff establish that the land on which the property, House 3 Agyemang Street, Lartebiokorshie, Accra was build was acquired by the late Mrs. Kye. With the greatest respect to the Plaintiffs I have struggled to no avail to see any link between Exhibit “A” which does not describe the land for which the money was paid and the property at the centre of the litigation. All that it says is that the payment made was for “blocks and plot of land at Lartebiokorshie sold to her by me”, which plot of land the Court was not told. In any case Mr. Nyantakyi Kofi Kye testified that his mother made the initial deposit and so the question is who paid for the remaining balance? Again, I do not know.
 Also, in my respectful opinion reliance on Exhibit “B”, being the receipt for the purchase of sliding door without more does not in any way shape or form indicate ownership of the land on which the disputed property was built, or the ultimate destination of the said sliding doors. It was not proven that the said sliding door was used to build the house at Lartebiokorshie. The receipt is dated 15th June 1978, though Mr. Nyantakye Kofi Kye in his evidence in chief said the house was built in 1972. As rightly pointed out correctly in my view by Counsel for the 5th Defendant in her submission to the Court, there is evidence before the Court that the late Mrs. Margaret Kye had a home at Tutu Akwapim, where the 1st Plaintiff presently lives. What it means is that an inference cannot be drawn that because the sliding door was purchased by the late Mrs. Kye in 1978 it was used to build House No. 3 Agyemang Street, Lartebiokorshie, Accra vice any other location in Ghana.
 The general rule is that where a party in a civil suit raises an issue which is essential to the success of his claim, he assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant. Discharging this burden requires that a party goes beyond merely repeating the averments in his pleadings on oath and produce cogent evidence of other facts and circumstances from which the Court can ascertain that what he claims is true. The old case of MAJOLAGBE v. LARBI  GLR 190 @ 192 has long shown the path to follow and laid in pithy terms what a party in an action such as the one at bar must prove on the preponderance of probabilities in order to secure a favourable verdict in his favour. The Court of Appeal case of FRANCE v GOLIGHTLY & ANOR
 1 GLR 74, CA (holding 3) where it was held “where a fact was capable of positive proof it was wrong to rely on assumptions” undermines the Plaintiffs’ contention that the land was acquired by the late wife of the Testator, Alfred Kye (deceased).
 The 5th Defendant says the land on which the house is situate was leased to the deceased by the President of the Republic of Ghana at the time through the Lands Commission per a lease dated the 2nd day of December, 1971 and made between the Government of Ghana and the Testator. The 5th Defendant’s further evidence was that the Testator was the sole owner of the property because by Exhibit 2 he mortgaged the property as the owner to Amalgamated Bank Limited during his life time. Having reviewed the evidence and in particular the contents of Exhibit 2, it is my holding that I prefer the story of the 5th Defendant as to the ownership of the land on which the property is situate to that of the Plaintiffs, which is clearly speculative.
 I now turn to the crux of the Plaintiffs’ claim, being whether the Testator gifted House No. 3 Agyemang Street, Lartebiokorshie Accra the property, the subject matter to the Plaintiffs.
Undeniably, from the evidence the house, the subject matter of the instant suit was acquired with the resources of the Testator. The Plaintiffs however say the property was gifted to the 1st, 2nd and 3rd Plaintiffs and the 4th Defendant in his lifetime. As a matter of law, the Plaintiffs who allege that the Testator gifted the property to them carry the burden in terms of Sections 10, 11 and 14 of the Evidence Act, 1975 (NRCD 323) to prove that indeed that was the case, in the face of the serious challenge by the Defendants.
 In their attempt to prove this assertion the Plaintiffs called the 1st Plaintiff to testify and his testimony is as captured at paragraph 17 of this judgment. The 4th Plaintiff also testified to explain the process of how the property was gifted to the 1st, 2nd and 3rd Plaintiffs and the 4th Defendant. Mr. Bimpong’s evidence is also captured at paragraph 22 above. Madam Juliana Ansah was also called as a witness. As a non-party to the suit her evidence was to corroborate the narrative proffered by the two Plaintiffs. For purposes of clarity and emphasis, I have decided to re-state part of her evidence in chief. She told the Court that:
“One Saturday in June 1994 I was invited by my cousin, Kofi Kye to meet him at his parent’s house at Latebiokorshie, Accra. I could not honour the invitation that Saturday, so I went the following day. I got there before him, but a few hours later he arrived with his siblings and their uncle, Mr. Bimpong. Kofi Kye asked me to join his brother and himself to thank their parents with a sheep and drinks for the gift of their parents’ house, No.3 Agyemang Street, Latebiokorshie which the parents had made to them the previous day”
I understood Madam Juliana Ansah to say that though she was invited to attend the ceremony where the gift was made by the parents of the 1st to 3rd Plaintiffs and their brother, the 4th Defendant she could not attend on the Saturday but rather went the next day when the “aseda” was made by the children.
 Under Cross-examination however, this is what Madam Ansah said on June 27, 2018
“Q: You were not present when House No. 3, Lartebiokorshie was purportedly gifted to the Plaintiffs, were you?
A: I was present.
Q: Were you present at the gifting ceremony or the thanksgiving ceremony?
A: Both the gifting and the thanksgiving ceremony, I was present.
Q: Please take a look at your witness statement filed on 26th of October, can you read the 2nd paragraph to the hearing of this Court?
A: Yes, my Lord (Witness reads)
Q: Do you still maintain that you were present at the gifting ceremony?
A: Yes, my Lord.
Q: Do you know anything about the ownership of House No. 3, Lartebiokorshie?
A: Yes my Lord, I know the ownership of the House No. 3, Lartebiokorshie.
Q: Can you tell this Honourable Court the ownership of House No. 3, Lartebiokorshie?
A: The house belongs to Lawyer Kye and his wife Mrs. Margaret Kye.
Q: Do you have any prove that indeed House No. 3, Lartebiokorshie belongs to Alfred Kye and Margaret Kye?
A: Yes, my Lord….
Q: Can you tell this Honourable Court the names of the people that were present at the gifting ceremony.
A: Mr. Adofo, Aunti Dora, Mr. Bempong, Kofi Kye, Kwaku Gyimah Kye, Ewurabena Kye.
Q: I am suggesting to you that you were not present at the gifting ceremony of House No. 3, you are being untruthful to the Court.
A: I am being truthful to the Court.”
 From the above exchange, it is clear that Madam Ansah contradicted her own evidence in chief. Indeed, Mr, Bimpong the 4th Plaintiff in his evidence said Madam Ansah was only present on the Sunday when the children performed the “aseda”. He said “the following day which was a Sunday I went back to the late Alfred Kye’s house, and in the presence of Juliana Ansah, a niece of the late Mrs. Margaret Kye and myself, the children presented the items listed above to their parents as “aseda” (thanks) to their parents”.
 Further, according to the 1st Plaintiff the gift was made by his parents in the presence of “Mr. Lawrence Bimpong, Mr. Gideon Adofo (Deceased), Mad. Margaret Gyimah, and Mad. Dora Nkwantabisa”. He did not say that Madam Ansah was present. It should be noted that it is not only Madam Ansah who contradicted herself on the issue of the gift. The 1st Plaintiff himself also had issues. The record of proceedings on April 10, 2018 demonstrates the said inconsistency of the 1st Plaintiff’s evidence in chief and his evidence under cross-examination. This is what transpired when she was cross-examined by Counsel for the 5th Defendant.
Q: You claim Margaret Gyimah, Gladys Osei and Gyimah Kwaku Kye were all present when your late father purportedly gifted house No 3 Lartebiokorshie to you. Am I correct?
A: No my lord. Those who were present were the late Mr. Gideon Adofo, Madam Juliana Ansah, Mr. Kwabena Bempong and my late parents.
Q: Can you take a look at your Witness Statement. Read your paragraph 3 to the hearing of this court
A: Witness reads.
Q: Do you still maintain that Margaret Gyimah was not present
A: She was present”
 On the issue of gift, the evidence further shows that after the purported gift the Testator continued to live in the house and at no point in time did the donees, being the 1st, 2nd and 3rd Plaintiffs and the 4th Defendant take possession of the property. The 1st Plaintiff conceded this when he was cross-examined by Counsel for the 5th Defendant on April 10, 2018.
“Q: Did your late father move out of House No. 3 Lartebiokoshie after gifting it to you and your siblings
A: No my lord
Q: So you would agree with me that after your late father purportedly gifted House No. 3 Lartebiokoshie to you and your siblings he was still in full occupation and control of the house
A: Yes my lord
Q: Since 1994 when you and your siblings allegedly became owners of House No. 3 Lartebiokoshie you never had control
A: Control as to
Q: That you have never been in possession
A: Yes my lord
Q: You stated that your late father asked you to leave House No 3, Lartebiokoshie, am I right
A: Yes my lord
Q: And this was after he had purportedly gifted House No. 3 Lartebiokoshie to you and your siblings, am I correct
A: Yes my lord
Q: You stated that before your mother died your parents documented the purported gift and made a deed of gift, am I correct
A: My Lord, according to my statement I cannot find where I said so.
Q: Take a look at paragraph 3 of your Witness Statement. Read from line 9 of paragraph 3
A: Witness reads.
Q: Can you explain to this court what that deed of transfer as you have stated in paragraph 3 was?
A: My lord all I can remember is that at the back of that document was “the deed of transfer”
Q: Where is the deed of transfer your late father gave to you in respect of House No. 3 Lartebiokoshie, Accra now?
A: My Lord I will not be able to tell where it is now”.
 Does the above evidence where the witnesses contradicted themselves as to who was present when the deed of gift was made and the fact that the donor during his life time continued to have possession of the property allegedly gifted pass the test of proof that House Number 3, Agyemang Street, Lartebiokorshie was indeed gifted to the 1st to 3rd Plaintiffs and the 4th Defendant in the teeth of the 5th to 12th Defendants’ strong denial and contention that the issue of gift was the figment of the Plaintiffs’ wildest imagination as averred in their Statements of Defence on the 5th and 6th Defendants’ insistence of same in their evidence? The Defendants have persistently maintained both in their pleadings and evidence that the Testator did not gift the property to anybody and that what is contained in the Will is how he exactly wished dispose of the property. As stated supra, the Plaintiffs carry that burden to prove the gift.
 I note that the Plaintiffs’ Counsel in his written legal submission stated at page 6 that “ideally the donees should have been put in possession of the property after the gift had been made to them. After referring to part of the evidence Col. Kofi Danso stated that “this is a peculiar case where a gift had been made of a house by parents to their children with the parents occupying the house with one of the children. The witness statement of the 1st Plaintiff states in part “in August 1995 my father told me to leave House No 3 Agyeman Street, Lartebiokorshie where I was living with him because he wanted Nancy Sakyiamah to move in”. (See paragraph 4). In such a case it would be difficult for the children to demand vacant possession of the house. They can only bide their time for possession to be ceded to them by their parents. In the circumstances it is submitted that the issue of possession should not be made to override the clear intention of the donors to gift their property to their children. It appears that the early death of Margaret Kye after the gift was made disrupted the expected trend of events after the gift was made”. But does Counsel’s submission represent the true nature of the law? In my respectful view the answer is no.
 At law, there are two (2) types of gift; one under customary law and the other under common law. Under common law, to perfect a gift there is the need for an execution of a deed under seal. In BUTT v CHAPEL HILL PROPERTIES LTD (2003-2004) SCGLR 636 the Supreme Court held that a gift promise, even if accepted, did not lead to a binding contract. To perfect the intention to confer a gift, there was the need for performance of an irrevocable act such as the execution of a deed of gift under seal.
 The essential characteristics of a valid customary law gift, on the other hand, are that the gift must move from the donor to the donee. The donee must accept it and by way of reciprocity, offer a token in appreciation therefor. Additionally, there should be due publicity of the gift before witnesses. There are legion of cases on this settled rule of law. See: NARTEY v NARTEY (1953) 14 WACA 259 and IN RE OHENE (DECEASED); ADIYIA v KYERE (1975) 2 GLR 89 C/A, YOGUO v AGYEKUM  GLR 482.
 Based on my review of the evidence and the law it is my holding that the alleged gift as proffered by the Plaintiffs in the instant case does not meet any of the essential prerequisites of either the common law or customary law gift. If the intention was to make a common law gift, then as I have stated supra, the gift should have been reduced into writing and there should have been an execution of a deed under seal to complete the alleged gift. Under Customary law as well apart from the fact that there is no cogent evidence from the Plaintiffs as to who was present when the gift was made the uncontested evidence was that the gift did not move from the donor(s) to the donees. All these essential requirements are lacking in this instant suit.
 Undoubtedly, in our part of the world it is not uncommon for parents to leave properties in different forms to their children. Indeed, customary law does not even frown on children acquiring properties in substantial nature with their parents. However, where the property in contention as it is in the instant case is a landed property and the intent is to gift it to some of the children, it should meet the requirements of either the customary law or the common law. As I have held elsewhere in this judgment the alleged gift in the instant case did not meet any of the requirements. In the circumstance it is only fair to conclude that either there was no such gift of the disputed property to the 1st, 2nd and 3rd Plaintiffs and the 4th Defendant or same was not perfected in the eyes of the law. In the result I resolve issue “F” set down above against the Plaintiffs and in favour of the 5th to the 12th Defendants.
 The next important issue set down was whether the property House No. 3 Agyemang Street, Lartebiokorshie was a joint property of the Testator and his late wife. The Plaintiffs in their pleadings contended that it was a joint property. The Defendants however say it was the self-acquired property of the Testator. The Plaintiffs have built their case on a devise made in a Will made in 1983 (Exhibit “D”) by the Testator at paragraph 2. The said Will was tendered as an exhibit by the Court’s witness, Doris Dansoa the Deputy Registrar of the Divorce and Matrimonial Division of the High Court at the instance of the Plaintiffs. The Testator stated:
“I GIVE absolutely to my children Nyantakyi Kofi Kye, Gyima Kwaku Kye, Owusu Kye and Awura Abena my storey building no. 3, Agyeman Street, Lartebiokorshie, Accra together with the furniture therein subject to the life interest of their mother in the said house. It was built through the joint efforts of my wife and myself. The house should be let out and the rest shared by my said children”. [Emphasis Mine].
 The record further shows that by Exhibit 3, which is also another Will dated either “October/December 2001” the Testator stated that House No. 3 Agyemang Street “is my self-acquired property with leasehold interest from Government”, Exhibit “E”, another Will made on 2nd January 2004 and again tendered by the Court’s witness, Doris Dansoa the Deputy Registrar of the Divorce and Matrimonial Division High Court. The Testator stated at paragraph 3 as follows:
“I direct my executors to sell my first house where I live at No. 3 Agyeman Street Zoti Residential Area Accra. This is my self-acquired property with a leasehold interest from Government. The title deed is in my name. Any purported gift made by me to whomsoever whether in writing or verbal is hereby revoked and more in particular any such gift in writing made by me to my first Four children is ABSOLUTELY HEREBY REVOKED”.
 Now, the October 4, 2006 Will which is the subject matter of this suit has at paragraph 3 similar wording to the 2004 Will. The case of the Plaintiffs is that the wording in the 1983 Will where the Testator stated that the property was built with the joint effort of his wife means the property was a joint property and therefore the Testator could not devise same in his later Wills. As the children of the late Margaret Kye the 1st, 2nd and 3rd Plaintiffs and the 4th Defendant contend that their mother jointly acquired the property with their father.
 It is trite canon of interpretation that in construing documents, the documents must be read as a whole. With regards to Wills specifically, it is generally accepted by text writers that the overriding principle in the construction of a Will is far as possible, effect must be given to the intention of the testator and the intention is to be ascertained from the words used. The learned author A.K.P Kludze in his book Modern Law of Succession in Ghana states at page 81, Chapter 5 as follows:
“The cardinal rule in the construction of a will is that the intention of the testator, as declared by him and apparent in the words of his will, must be given effect, so far as, and as nearly as may be, consistent with law”.
See also the Samuel Azu Crabbe in “Laws of Will in Ghana (2nd Printing, Chapter 12 (page 226-231).
 In the old English case of LUCAS-TOOTH v LUCAS TOOTH  1 A.C. 594 at page 601, Lord Birkenhead, L.C., opined in stating the golden rule in interpretation of Wills that:
“Indeed, in approaching a problem of this kind it is important never to lose sight of the true principle of construction in such cases, that it is the duty of the Court to discover the meaning of the words used by the Testator, and from them and from such surrounding circumstances as it is permissible in the particular case to take into account to ascertain his intention. For this purpose, it is important to have regard not only to the whole of the clause which is in question, but to the Will as a whole which forms the context to the clause. Unless this is done, there is a grave danger that the canons of construction will be applied without due regard to the Testator’s intention, tending thereby to ascertain his wishes by rules which in particular case, may produce consequences contrary to that intention”.
 Also, the statement of law by Adzoe JSC (as he then was) speaking for the unanimous Court in the case of IN Re: ATTA (Decd); KWAKO v. TAWIAH [2001-2002] SCGLR 461 which was quoted by Mr. Klutse in his submission is in line with the above quoted statement and is good law. See also the case of OTOO (No.1) & OTHERS v. OTOO (No. 1) & OTHERS (2013-2014) 2 SCGLR 777
 Having reviewed the devises and applying the law as I understand it, I am of the view that the Plaintiffs position that because in 1983 the Testator said the house was built through the joint effort of himself and the wife he could not later devise same in his subsequent Wills is untenable. Indeed the paragraph started as follows “I GIVE absolutely to my children….my storey building No. 3, Agyemang Street, Lartebiokorshie, Accra” before the later statement that it was built through the joint efforts of my wife and myself. To my mind, even if the property was a joint property with the passing of Mrs. Margaret Kye, her interest devolved to the husband, being the Testator in the absence of a Will disposing of her alleged interest in the property. I do not think that the evidence establishes, on a balance of probabilities, that the Testator did not acquire the property by himself. Indeed the 4th Plaintiff conceded that the Testator was the owner of the property when he was cross-examined by Counsel for the 5th Defendant on May 23, 2018. This is part of what transpired:
“Q: Do you know anything about the ownership of House NO 3, Lartebiokoshie.
A: Yes my lord.
Q: Can you tell this honourable court
A: It belongs to lawyer Kye”
I note that from the record of proceedings Mr. Bimpong later changed his position when the cross-examination continued the next day to say the property was jointly acquired by the Testator and the late wife.
 As stated above even if the property was jointly acquired based on my analysis and findings above, it is my holding that Mrs. Kye’s interest certainly devolved to the Testator after her demise. A principal reason for this conclusion is the finding above that the statement contained in the 1983 Will alone is not enough to say that the property is joint property and therefore the Testator lacked capacity to devise the property in his subsequent Wills. To my mind in all of the Wills executed by the Testator one thing was clear and consistent and it was that the Testator always stated that “House No. 3 Agyemang Street was a self-acquired property”. I accept same as his intention contrary to what is clearly a self-motivated desire by the Plaintiffs to alter the Testator’s wishes and intentions. It is therefore my holding that the property House No. 3 Agyemang Street was the property of the
Testator at the time of his death and he had the capacity to devise same in his Will executed on October 4, 2006.
 Finally, based on my analysis above it is clear that the answers to the issues A B and C are YES. It is my holding that the Testator Alfred Kye (deceased) executed a Last Will on October 4, 2006 and duly revoked all his earlier Wills including the Will of 6th December 2001. From my review of the evidence there is no reason to doubt that the Will of October 4, 2006 represents the Testator’s state of mind in 2006 and before his demise. In my respectful opinion in the absence of any evidence that the Testator did not have the mental capacity to make the Will of October 4, 2006, the wording of paragraph 3 of the 2006 Will does not support the Plaintiffs’ allegations made in this suit.
 In the opinion of this Court, the content of the 2006 Will is consistent with the wishes of the Testator who was a lawyer as expressed in the words used. It is clear the Testator suspected that after his demise this issue of a gift may rear its ugly head and so he categorically stated so in the Will as follows:
” Any purported gift made by me to whomsoever whether in writing or verbal is hereby revoked and more in particular any such gift in writing made by me to my first Four children is ABSOLUTELY HEREBY REVOKED”.
 It is important to note that it is generally accepted that a Will is the product of a Testator’s intent and wishes. To that extent, a Will reflects a Testator’s thoughts and intentions and when well drafted the intentions can be expressed in whatever way the Testator wants and in the language he/she chooses. From the foregoing and based on the law it is my conclusion that by a true and proper interpretation and construction of the October 4, 2006 Will, paragraphs 3 and 5 of the Last Will of the late Alfred Kye represent his intention and accept same as legal. I therefore hold that he had the capacity to make those devises. Consequently, based on all of the evidence I hereby DISMISS ALL of the Plaintiffs claims endorsed on the writ. Based on the evidence it is my finding that the 5th Defendant’s Counterclaim is GRANTED. The Last Will of Alfred Kye (deceased) is to be admitted to Probate.
 Finally, on the issue of costs; based on my findings above ordinarily, this would have been an appropriate case to award punitive costs against the Plaintiffs as a sign of public opprobrium and rebuke for embarking on such unwise, painful and costly litigation. However, in the interest of unity for and among the family and to foster peaceful co-existence especially because they are all related to the Testator as children and/or wife. Therefore I hereby order cost GH¢ 10,000 the 5th Defendant and GH¢5,000 to the 6th to 12th Defendants who joined the litigation late.
Cases referred to;
1. AGYEMANG (Substituted by BANAHENE & OTHERS v. ANANE [2013-2014] 1 SCGLR 241
2. DOMFE v ADU (1984-86) 1 GLR 653
3. ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74
4. RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420
5. BANK OF WEST AFRICA LTD. v ACKUN  1 GLR 176 @181
6. MAJOLAGBE v. LARBI  GLR 190 @ 192
7. FRANCE v GOLIGHTLY & ANOR  1 GLR 74, CA
8. BUTT v CHAPEL HILL PROPERTIES LTD (2003-2004) SCGLR 636
9. NARTEY v NARTEY (1953) 14 WACA 259
10. IN RE OHENE (DECEASED); ADIYIA v KYERE (1975) 2 GLR 89 C/A
YOGUO v AGYEKUM  GLR 482
12. LUCAS-TOOTH v LUCAS TOOTH  1 A.C. 594
13. IN RE: ATTA (Decd); KWAKO v. TAWIAH [2001-2002] SCGLR 461
. OTOO (No.1) & OTHERS v. OTOO (No. 1) & OTHERS (2013-2014) 2 SCGLR 777