JUDGEMENT

TORKORNOO, J. A:

There are two strands of complaints in this appeal. That the learned trial judge failed to hear the parties before entering a ruling that dismissed the suit, and that he wrongly evaluated the relevant document which was a Will and found it valid, when it lacked certain essential features of a Will executed by an illiterate.

The plaintiff appellants, who describe themselves as beneficiaries under the Will of Opanin Kwabena Nyanteng sued the executors named in his Will read after his demise. This was on 5^th October 2009. The case of the plaintiffs was succinctly spelt out in their Statement of claim. They said that although the Will contained a jurat and a certificate of the counsel who prepared it, the jurat and certificate did not have required features and this invalidated the Will.

First, within the jurat, they said there is no record that anyone ‘read, explained and interpreted the contents of the will to the late Opanin Kwabena Nyanteng in a language he understood when he, purported to thumbprint it…’ They said that this makes the Will invalid

Within the certificate of the lawyer, there is no record of the language that the lawyer used to interpret the Will and they said this fails to provide vital information on how the lawyer interpreted the Will to the Testator.

They therefore sought:

A declaration that the Will of the late Opanin Kwabena Nyanteng dated 28^th April, 2004 is invalid as nobody read, explained and interpreted the contents of the Will to the deceased in the language he understood before he purported to thumbprint it notwithstanding the fact that a jurat was provided for in the Will.

An order of perpetual injunction restraining the defendants whether by themselves, their servants or agents, personal representatives and all who claim title through them from exercising any rights under the said Will.

Any further orders that this Honourable Court may deem fit.

The defendants filed a defence to the action. Their position was that the fact that on the face of the Will the lawyer omitted to indicate the language in which the said Will was read and interpreted to the testator does not necessarily make the Will invalid. They described the plaintiffs’ claims as frivolous and counterclaimed.

The application for directions indicated that the primary issue that the plaintiff wanted resolved was whether the contents of the Will were read over and interpreted to the late Opanin Kwabena Nyanteng in accordance with law and whether the Will was valid.

The Will was filed in court, in December 2010. Then on 23^rd April 2012, parties from both sides of the dispute and their counsels appeared before the court. The plaintiff’s counsel addressed the court on the gravamen of their case, and the applicable law as the Wills Act 1971 Act 360 and the Illiterate Protection Act 1912, Cap 262. He also referred to the case of In re Kodie Stool; Adowaa v Osei 1998 -99 SC GLR 23. He ended his submissions by saying that the Will is not valid and the court should declare it invalid.

Defendant counsel’s response was that the Will is valid and conforms to all the legal requirements of a Will. He submitted that the Will was prepared by a lawyer on behalf of an illiterate testator, that a jurat clause was provided, that there was a lawyer’s certificate and the lawyer certified that he had interpreted the contents of the Will. He said ‘it is logical to think that it was read to the testator in the Twi language.’ He ended by referring to section 9 of Cap 262.

The court adjourned the proceedings to rule on the submissions on 15^th May 2012. On 5^th June 2012, the court gave his ruling. Because it is short, I will repeat it here;

‘There was an objection by counsel for the defendants. The plaintiffs since they filed the writ and statement of claim have refused to come to court to proceed. I have read the argument made by both counsel and I am convinced that the Will made by the testator is valid. Therefore the executors have been wrongly sued. I therefore order the will be granted to probate so that executors can administer the estate in accordance with the will of the Testator. There would be costs of GH5000 for the defendants herein. Suit is dismissed.’

It is the dismissal of the suit through this ruling that the plaintiff appellant (hereinafter referred to as appellant) has appealed. The appeal is mounted on four grounds.

Ground A – The trial judge erred in holding that the executors have been wrongly sued

In arguing the appeal, counsel for appellant submitted that since they were appointed in the disputed Will as executors, and the Administration of Estates Act 1961 Act 63 provides in section 1 (1) and (2) that the estate of a deceased person devolves on the executors appointed in his Will, the executors were the proper persons to be sued. Thus the learned judge was wrong in law when he said that the executors were wrongly sued and for this reason, the decision ought to be set aside.

I have considered this argument attacking the words ‘the executors have been wrongly sued’. In my respectful view, this ground of appeal fails to appreciate the context of the learned judge’s words. It is quite clear that the judge could not be talking about the capacity of executors to be sued, because that was not a matter in issue. He was talking about the competence of the action, because that was the matter in issue. The first ground of appeal is dismissed.

Ground B – The trial judge erred in holding that the Will made by the Testator is valid without taking evidence

Ground C - The trial judge erred by dismissing the Writ of Summons

Appellant counsel argued that the trial judge ought to have taken evidence before declaring that the Will is valid. He said that the defendants had admitted in paragraph 6 of their statement of defence that the certificate of the lawyers lacked a record of the language in which the Will was read and interpreted to the testator, and this raised an issue for resolution.

Appellant counsel pointed to section 2 (6) of the Wills Act 1971 Act 360 which reads:

“Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the will before it is executed, and shall declare in writing upon the will that he had so read over and explained its contents to the testator and the testator appeared perfectly to understand it before it was executed”.

He said that the Will therefore did not satisfy the requirements of section 2 (6) of Act 360. It was his contention that the fact that the testator thumb printed the Will meant that he did not understand the English language. Further since the Will was prepared in English, the language in which it was interpreted to the testator should have been provided in the Will. It could not be assumed that the language in which the Will was interpreted to him by the lawyer was Twi. This created an issue of fact that the court had to decide only by a trial. He cited two cases to buttress the point that the court should have conducted a trial. These were Zabrama v Segbedzi [1991] 2 GLR 221-247 and Yalley Jnr. v Kell & Another [1995 -1961] 1 GLR 91-117.

His submission was that the absence of the language in which the Will was interpreted to the Testator by the lawyer and the name of the one who interpreted it to him in Twi required evidence to establish. The court thus erred in holding that the Will was valid without taking evidence.

He moved on to submit that the court did not bother to take the application for direction for the purpose of setting down the action for trial. He said that the procedure adopted by the learned trial judge in dismissing the action was not sanctioned by any rule of law or procedure and was therefore null and void.

In re-hearing this case as required by Rule 8 of the Court of Appeal Rules 1997 CI 19 for every appeal, I must disagree with counsel for appellant in every material particular regarding his submissions. The contentions this appeal has raised regarding the procedure applied by the learned judge are answered within the High Court Civil Procedure Rules 2004 CI 47. The contentions regarding his holding that the Will was valid without taking evidence on fact are easily answered within the law on interpretation of documents.

The record shows that this is a suit in which all pleadings had been received by the court, including an application for directions. From the history given by respondent counsel, counsels agreed to address the court on the appellant’s objections to the Will. With the parties present, learned counsels addressed the court on 23^rd April 2012 as to the various issues raised by the pleadings. Thus the court’s ruling of 5^th June 2012 was given after hearing both counsels on the merit of the case. Counsel for Respondent in his submissions set out how the submissions of 23^rd April 2012 were arrived at and his words have not been contested. He said on page 2 of his submissions:

‘At the Direction stage, a preliminary issue was set down for determination pursuant to Order 32 rules 2 and 6 of the High Court Civil Procedure Rules of 2004. By the said rule, the Court is enjoined to set down an issue which can determine the entire suit so as to save the Court from going through a full trial. …My Lords, the

High Court received arguments from both parties and on the 5^th day of June 2012 the Court gave its judgment in favor of the Defendants’

Under CI 47, there are several procedures by which courts settle cases and every case need not go through a trial and calling of witnesses before it can be determined in accordance with law. The process described by Respondent counsel is a valid manner of resolving a case and this is supported by the Rules of Court.

The records show that the proceedings of 23^rd April 2012 was one in which all the parties were recorded as being represented, and their counsels addressed the court. It thus passed the test of the audi alteram partem rule of natural justice.

Order 33 Rule 5 of CI 47 provides:

5. Where it appears to the Court that the decision of any question or issue arising in any cause or matter and tried separately from the main cause or matter substantially disposes of the cause or matter or renders trial of the main cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment as may be just

This rule allows a court to finally determine the fate of a suit after hearing submissions on critical matter which disposes of the critical issue in the dispute. It must be remembered that litigation in the courts is a structured arrangement covered by various trajectories of rules. Each activity carries implications. Thus if parties and counsels agree to address the court on a certain critical question, such as the interpretation that ought to be given to a document, they thereafter become subject to the directions of the rules of court on such a proceeding.

Order 33 Rule 5 shows that the procedure adopted by the learned judge in dismissing the suit after listening to the parties viva voce on their contentions around the proper meaning to give to the will is supported by the Rules of Court.

Further, the rules of court make room for a party who fails to attend court and ends up with a judgment or ruling in which his suit is dismissed to set it aside. But like every situation in the justice delivery process, equity will not aid the indolent. I am afraid that the appellants have been quite indolent in the prosecution of this suit. They filed a suit in 2009 and the pleadings closed by November 2009. They filed the Will they were contesting more than a year later – in December 2010. Thereafter, it took almost a year and a half – in April 2012, for them to appear before the court and address him on their legal contentions. The case was set down for ruling after three weeks. More than a month later, the Defendants representative and their counsel stood alone before the court, and the court gave his ruling regarding the legal issues raised, and found that dismissing them should dispose of the suit. Appellant then filed an appeal against this decision. It has been four years between that appeal and this judgment – for a record that is all of 30 pages. These facts show the appellant as having been quite slow with prosecuting his interests in this case.

Be that as it may, the uncontested background of the ruling given by counsel for Respondent and the directions of Order 33 Rule 5 clarify that the learned trial judge was justified in giving a decision after hearing counsels on 23^rd April 2014.

The other part of ground B of the appeal, to the extent that it complains about the judge arriving at a decision without taking evidence is also unsustainable. The court indeed had before him the Will, which is the critical evidence and this was filed by the plaintiff. The court also listened to submissions regarding this Will.

It is settled law that an appellate court has a duty to review the record and arrive at its own decision regarding the matters contested and the supporting evidence. This is underscored by Rule 8 of the Court of Appeal Rules 1997 CI 19 which reads

8. Notice and grounds of appeal

1) An appeal to the court shall be by way of rehearing and shall be brought by a notice of appeal

A cursory examination of the Will shows that the Will carried all the features required by law. The jurat is immediately followed by the witness statement and the witnesses to the execution of the Will also testify of the interpretation of the Will to the Testator in the Twi language. It reads:

‘Marked by the above-named Testator as his last Will after the same had been first read over, interpreted and explained to him in the Twi Language by……in our presence and he appear perfectly to understand and approve its contents in the presence of us both present at the same time in his presence at his request and in the presence of each other have hereunto subscribed our names as witnesses:

Then the name of the person who read it over to him and interpreted same is provided in the Solicitor’s certificate which reads

‘I hereby certify that I did read and interpret the contents of this Will to the Testator herein and he approved same before affixing his mark in the presence of two witnesses.’ Within the stamp of the law firm is the name K. A. OKYERE

One of the basic rules of construction of documents is that every document should be read as a whole to determine the true intention of its maker. In the present case, when the Will is read as a whole document, the only meaning that can be obtained from its plain language is that on this Will, there was a jurat which set out the language in which the Will was interpreted and there is a Solicitor’s Certificate, which sets out who interpreted the Will to the Testator. Further, the two witnesses to the execution of the Will attested also to the interpretation of the Will in the Twi language to the Testator. These contents satisfied the requirements of Section 2(6) of the Wills Act. They also provided the testimony of the fact of the interpretation of the contents of the Will to the testator and made unnecessary the conduct of a trial to determine whether the Will was read over to the Testator.

But importantly, the Supreme Court has had the opportunity of examining a case dealing with jurats within the cast of the present matter as appellant has presented it. . In Re Kodie Stool; Adowaa v Osei 1998 -99 SCGLR, cited by appellant counsel, although there were two schools of thought regarding whether a jurat stricto senso was required for every document prepared by illiterates, each of the honorable Justices was very clear that jurats are not meant to be written in straight lace formats wherein a slight deviation from the structure that is known leads to invalidity.

Akuffo JSC, with the majority on the need for a jurat to be set out whenever a document is prepared for illiterates, it took time to expatiate on the principles pertaining to jurats as provided for by the Illiterates Protection Ordinance, Cap 262 (1951 Rev) and said on page 80 ‘As I see it, the crystallized position of the courts, in respect of the scope of the section is that it sets the evidentiary and formal parameters for documents allegedly executed by an illiterate person, and it is a strict one. No one who seeks to enforce or rely upon a written document against an illiterate person or the privy of such an illiterate person can succeed unless he is able to establish that: firstly, the writing was authorized by the illiterate person; secondly, the contents were read over to the illiterate person by the writer or another person; thirdly, the illiterate person ‘appreciated and had an intelligent knowledge of the contents of the document’ and finally, the document was indeed executed by the illiterate person in the manner stipulated’.

An evaluation of these factors shows that if the document can reflect these necessary factors, it passes the test of Cap 262 and in this case, Act 360 which makes the same demands for illiterate Testators. The language in which the Will was read does not need to be placed next to the name of the one who read it over to pass the test of Section 2 (6) of Act 360 as espoused by the appellant herein.

Indeed in his opinion, Atuguba JSC in Re Kodie went so far as to say on page 75 ‘Whether an illiterate has appreciated the contents of a document he has thumbprinted can be determined by evidence which can be circumstantial or direct or both. …This case also demonstrates that the identity of a document can be established by circumstantial evidence. The surrounding circumstances of exhibit (C) also show that the signatories thereto appreciated its content, the recitals to the document tallied with the antecedent events involving them, which are substantially covered by other exhibits (A and B)

This authority makes clear that the straight lace formats that the appellant herein seems to be demanding is not upheld by judicial precedent. It is not surprising therefore that the learned trial Judge, once the Will had been filed, and after he had listened to parties on why the appellant wanted the Will declared in valid, saw the need to curtail the litigation. And his action was supported by Order 33 Rule 5 of CI 47. Grounds B and C of the appeal are dismissed.

Ground D – The Cost awarded against the Plaintiffs/Appellants is unwarranted.

Costs in the high court are guided by Order 74 which enjoins a court to look at the expenses incurred in relation to the proceedings, court fees paid, length and complexity of the proceedings and the conduct of parties and their lawyers. My humble evaluation is that the appellant’s conduct was more obstructing of the stream of justice than should be countenanced and they had inordinately delayed the managing of an estate with this action. Clearly, the respondents had been put to cost in legal fees, court fees and related expenses and needed to be compensated in costs. I find the 5000 GHC costs awarded as justified. Ground D of the appeal will not succeed.

The appeal is dismissed. Costs of GH¢5000 for the Respondent.