IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
MR.SENTI MICHEAL - (Plaintiff/Respondent)
REV. FATHER MON KWAME AND DR. ASOMAH - (Defendants/Appellants)
DATE: 22NDMAY, 2018
SUIT NO: H1/14/2018
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
ALFRED TUAH YEBOAH FOR DEFENDANTS/APPELLANT
ROSE AMA APPIAH FOR PLAINTIFF/RESPONDENT
This is an appeal by the Defendants/Appellants (hereinafter called the Appellants) against the judgment of the High Court dated 21st July, 2015 in favour of the Plaintiff/Respondent (hereinafter called the Respondent).
The Respondent is the eldest son of the late Thomas Nana Asante aka Nana Senti, the Tufuhene of Techimantia who died on 25th February, 2013.
Upon the death of Nana Senti, a document purported or alleged to be the last Will of the deceased dated 27th August, 2012, was submitted to the High Court, Sunyani for Probate by the Appellants who were named in the alleged Will as the Executors. The Respondent filed a caveat against the grant of the Probate. Another Caveat was filed by one Madam AkuaAfriyie, a sister of the deceased.
Eventually, the Respondent filed a writ against the Appellants (Executors) claiming the following reliefs:
A declaration that the purported Will of the late Thomas Senti alias Nana SentiTufuhene of Techimantia is invalid.
The Appellants disputed the Respondents’ claim and after the trial, the judge upheld the Respondents’ claim and set aside the Will as invalid. The Appellants dissatisfied with the judgment mounted this appeal on the following grounds:
The judgment was against weight of the evidence.
That the trial judge contradicted himself when he held that the Testator was wrongly influenced in the execution of the will after he had held that the signature on the will is not that of the Testator and which said contradiction has resulted in a substantial miscarriage of justice.
That the finding by the trial judge that the Testator lacked testamentary capacity is erroneous and not backed by the evidence on record.
That the trial judge’s conclusion that the Testator would have informed 2ndDefendant (Dr. Asomah) if indeed he executed the will is erroneous and lacks any legal basis.
That the trial judge failed to consider properly the totality of the evidence and wrongly gave judgment against the Defendants/Appellants.
No additional grounds were filed as at the time of the appeal.
The Appellant’s counsel argued ground B of the appeal which reads as follows:
“b. That the trial judge contradicted himself when he held that the Testatorwas wrongly influenced (SIC) in the execution of the Will after he had held that the signature on the Will is not that of the Testator and which said contradiction has resulted in a substantial miscarriage of justice”
Counsel submitted that whether or not a Will signed by a Testator, and whether the Testator was unduly influenced, are mutually exclusive.The trial judge delivered himself thus in his judgment (as found on page 193 of the Record of Appeal):
“On the evidence it is clear that a fiduciary relationship existed between Nana Senti and AkosuaSenti and Angelina BommoSenti who permanently lived with Nana Senti and took care of him because of his health condition. It can therefore be said that this relationship resulted in undue influence by Angelina Bommo and Nana Senti. The influence was exerted on Nana Senti to obtain an advantage thus resulting in most of the properties in Exhibit ‘A’ or Exhibit ‘1’ being gifted to Angelina BommoSenti and her Associate”.
According to counsel for the Appellant, it is illogical and impossible for a court to find that a Will was not the act and deed of the Testator but nevertheless found that the said Testator was unduly influenced by a beneficiary.
The import of the reasoning of the trial judge was that the Will was indeed the act and deed of the Testator but in essence not valid because the Testator was unduly influenced.
The Appellant contended that the inconsistency in the trial judge’s reasoning and evaluation fortifies the Appellant’s case that indeed the Will was duly signed by the Testator and no one else. According to counsel, this attitude of approbating and reprobating in the judgment by the judge must be deprecated by this court.
Counsel for the Respondent in countering this ground, contended that the trial judge’s finding that there was a fiduciary relationship between Angelina BommoSenti and her sick father Nana Senti and that this relationship resulted in an undue influence by Angelina Bommo was not in respect of the signature on Exhibit ‘A’ or the execution of the alleged Will; rather the judge was making reference to the fact that the undue influence gave her an advantage to form a motive to forge the signature of her father, on the Will and on Exhibit ‘D’ the letter she submitted to Ecobank.
Indeed according to counsel for the Respondent, because of the dominancy she had over the sick father, she exercised that undue influence to gain advantage to prepare a Will and gifted most of the properties to herself and her associates. It also gave her the advantage according to the Respondent to “forge” the signature of her late father appointing herself as the sole signatory to the accounts at Ecobank after her father’s death on Exhibit ‘D’.
Counsel for the Respondent further explained that there was no contradiction between the trial judge’s finding that the signature on Exhibit ‘A’ (that is the Will) was not signed by the alleged Testator and his finding that the fiduciary relationship that existed between Angelina Bommo and her late father resulted in an undue influence.In his view they are not contradictory since the latter is referable to the sinister influence that gave her advantage to harbor sinistermotive to cause the Will to be made and the letter to Ecobank, Exhibit ‘D’ to be written.
At page 195 of the Record of Appeal, the judge expanded this position as follows:
“This influence could also be found in Exhibit ‘D’ the letter to Ecobank, which was allegedly written on 5th October, 2012, in which the Board of Directors of Senti Chemist Ltd. was supposed to have passed a Resolution on 2nd November, 2012 appointing DW1 as the sole signatory to the accounts of Senti Chemist Ltd…”
In effect, the Trial Judge who was the judge of the first instance and had the opportunity to observe the demeanour of all the witnesses was right in forming the opinion that the Testator was unduly influenced in making the Will. And we would not disturb that finding.
That the trial judge’s conclusion that the Testator would have informed 2ndDefendant (Dr. Asomah) if indeed he executed the Will is erroneous and lack any legal basis.
Counsel for the Appellant’s basis for this ground of appeal is in the trial judge’s judgment at page 187, that:
“It is therefore strange that Nana Senti never told Dr. Asomah that he had gone to Lawyer Kofi Iddrissahon 27th August, 2012 for the preparation of his Will, which Dr. Asomah consider to be very important document in Nana Senti’s life. Not to have discussed his intentions of making a Will with Dr. Asomah is very strange indeed”.
He further stated: “All these circumstances go to show that on 27th August, 2012 Nana Senti did not have the mental capacity to make a Will, he was paralyzed and bedridden and confined to his house” [SIC].
Counsel for the Appellant contended that it was rather strange for the trial judge to suggest that the late Nana Senti should have told his friend about his intentions to execute a Will. Wills are the hidden intents of a person and one need not disclose his intention to anyone. Therefore counsel urged us to uphold this ground of appeal.
Counsel for the Respondent argued that a Testator is not under any legal obligation to disclose an intention of making a Will to anybody. He however opined that having regard to the circumstances of the instant case, it would have been strange if he had kept to himself the fact that he went to lawyer Kofi Iddissah’s office and gave him instructions to make the Will.
The basis for this assertion is found in the evidence of the 2ndDefendant, Dr. Asomah to the effect that Nana Senti was paralyzed and bedridden and confined to his house. He engaged two physiotherapists to take care of Nana Senti’s health condition from April till his death in February, 2013. During this period, Dr.Asomah claimed that he and his wife visited Nana Senti every other day where they discussed politics, sports, shared the word of God, shared meals together and watched some programs on Television together.
It was with this background that informed the trial judge’s statements to the effect that the non-disclosure of the Will to Dr. Asomah was strange.
In my view, that statement by the Trial Judge is of no moment as a person is not bound by any legal obligations to disclose the making of a will. But in the circumstances of the rather restricted nature of the Testator’s movements, Dr. Asomah would have known about his going to see the lawyer. It so appears that it is this observation that the Trial Judge described as ‘strange’. Substantially, the Trial Judge was not wrong in making this observation and even if so no miscarriage of justice can be said to have been occasioned by it.
That the finding by the trial judge that the Testator lacked testamentary capacity is erroneous and not backed by the evidence on record.
Counsel for the Appellant argued that the trial judge at page 189 of the record, the judge found as follows: “All these circumstances go to show that on 27th August, 2012 Nana Senti did not have the mental capacity to make a Will, he was paralyzed and bedridden and confined to his house”.
This finding by the trial judge, he stated, is in response to the issue (2) set out in the application for direction at page 9 of the Record of Appeal which issue is as follows:
“Whether or not the Plaintiff’s late father Thomas Asante Senti alias Nana Sentiwas of sound mind and therefore had the testamentary capacity at the time the purported Will was executed”.
Indeed the Plaintiff in reply stated that the Testator was extremely sick, hard of hearing and his memory greatly impaired. He further stated that “From March 2012 till the date of death of the Testator, he was bedridden and was under the dominance of Angelina BommoSenti and he was completely dependent on her because he was infirmed both in body and mind”.
His argument was that having raised the issue of infirmity of mind or the lack of capacity to prepare a Will, the onus fell on the Respondent to adduce sufficient evidence to support his assertion. Counsel cited the case of AkotovrsMosi [1992-93] GBR 320per holding one – where it was held that:
“Section 15 (3) of the Evidence Decree 1975 (NRCD 323) provided that unless and until the burden is shifted, a party claiming that any person, including himself was or had been insane or of unsound mind had the burden of persuasion on that issue”.
The Defendants bore the onus of showing that the Testator was of unsound mind at the time of the execution of the Will. What evidence did the Respondent offer?
In the first instance, the Respondent’s averments were to the effect that his father’s memory was greatly impaired and not that he was insane or of unsound mind. Therefore the principle as espoused in Akoto vrs Mosi(supra) did not apply here.
The Respondent in his evidence stated that when he visited his father on 24th August, 2012 and 31st August, 2012, his father could not identify him. It was his further testimony that his father was bedridden and under the dominance and dependence of Angelina Bommo Senti because he was infirmed both in body and mind.
In resolving this issue then since the Respondent’s pleadings did not disclose any issue of insanity or of unsound mind, the Respondent is not under a legal obligation to prove or show that the Testator has been insane or of unsound mind.
Furthermore, it is the Respondent’s case that it is not Nana Senti who signed or executed the Will.
Therefore that ground is unproved therefore fails.
Ground A and E
a. The judgment was against the weight of evidence.
e. That the trial judge failed to consider properly the totality of the evidence and wrongly gave judgment against the Defendants/Appellants.
Ground (a) - The judgment was against the weight of evidence.
Where an Appellant makes this a ground of appeal, then in other words, he is asking the court to re-hear the matter. This is in consonance with Rule 8 of C.I 19 which states that:
“An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”
It is trite that where a party is of the view that the judgment is against the weight of evidence, there is a burden imposed upon him to substantiate the allegation. In Conduah, Ex Parte Aaba (substituted by) Asmah [2013/2014] 2 SCGLR 1032 (Holding 2), the Supreme Court held that:
“ The effect of an appeal on the ground that the judgment is against the weight of evidence was to give jurisdiction to the appellate court to examine the totality of the evidence before it and come to its own conclusion on admitted and undisputed facts. In the instant case, the Appellant, by that ground of appeal, was implying that there were pieces of evidence on record which, if applied properly or correctly, would have changed the decision in his favour; or that certain pieces of evidence have been wrongly applied against him. The onus in such an instant was on the Appellant to clearly demonstrate to the appellate court the lapses in the judgment being appealed against. AKUFO-ADDO V CATHELINE  1 GLR 377; and DJIN V MUSAH BAAKO [2007-2008] 1 SCGLR 688 cited”.
Also, in the case of Tonado Enterprise and others v Chou Sen Lin [2007-2008] SCGLR 135, the court stated that:
“When a party in a ground of appeal states that the judgment is against the weight of evidence he imposes upon himself the onus of satisfying the appellate court that the evidence let in the trial was not such as to warrant the findings made on it”
Therefore, as was held in Tuakwa v Bosom [2001-2002] SCGLR 61;
“It was incumbent upon the appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that in a balance of probabilities the conclusion of the trial judge are reasonably or amply supported by the evidence.”It is also the duty of the Appellant to point out lapses in the judgment which when corrected will enure to his benefit.
See also: Margaret Mary Adjei v The Attorney-General and two Others  50 GMJ 198, CA; Oppong v Anarfi  SCGLR 556; Aye &Akakpo v AyaaIddrisu  SCGLR891.
The Trial Judge is saying that an ocular observation could reveal the differences in the signatures in the Exhibits “B” and “C” on one hand and “A” and “D” on the other hand.
Counsel for the Appellant was of the view that the Trial Judge’s approach in resolving a delicate and more important document like a Willwas rather casual. According to him, it should be borne in mind that the signature of a person appearing on two (2) separate documents need not be same but similar. In finding out the similarity, the characters in the signatures are the ones taken note of and not the bare visual observation of the signature.
He argued that in ascertaining whether the Testator’s signature on a Will is valid or not, it is irrelevant to look out for the signature of the Testator from a document previously signed by the Testator.
He cited in support the case of In the matter of the estate of Dr. Emmanuel Boye vrs John Offei Armah  44 GMJ 186 @ 205,where His Lordship Kusi Appiah J.A stated that:
“In any case, it is trite law that a Testator who is too ill to sign his will, may have his hand guided to sign it or make his mark on it. It is significant that the guiding principle is whether it was the Testator who signed or made his mark on the documents and not whether the signature or mark was identical with the Testator’s previous ones”
In the view of the Appellant, the recourse by the trial judge to only observe the various signatures in Exhibits “B” and “C” against Exhibit “A” (Will) is hence problematic and led to the erroneous conclusion.
See:(1) In the matter of the estate of Dr. Emmanuel Boyevrs John OffeiArmah (supra) at pages 204-205; and (2)In Re Sackitey(deceased) Dzamioja alias AshongvrsSackitey and another [1982-83] 1 GLR 1196 holding 1 which reads as follows:
“With signatures of a Testator, the bottom line is that, there should be a witness to attest that the Testator did sign the Will. It is again submitted comparison with a previous signature is not a legal requirement”.
See: In Re Okine (deceased) Dodoo& another vrsOkine and others [2003-2004] SCGLR 582 holding 8.
Did the Testator give instructions as contained in exhibit “A”?
Again, one of the reasons assigned by the trial judge for declaring the Will invalid is that the Testator never gave instructions in the Will (exhibit “A”) in view of the fact that the property were not properly described despite the fact that the Testator was a scholar.
At page 191 of the record of appeal in the last but one paragraph, this is what the trial judge found:
“From the evidence of DW2, I am certain that it is not credible enough to be relied upon. I support the view expressed by counsel for the Plaintiff that as a scholar, Nana Senti will not give such instructions to a lawyer to prepare his Will, without the necessary details, particulars and proper description of his properties”.
The question to pose at this stage is, will an inadequate description or non-description or misdescription of properties devised in a Will vitiate or invalidate a Will? Or can that be a basis to conclude that an intelligent person or scholar never gave the instruction is his Will.
In the case of Yanka and others vrs Administrator General and another  2 GLR 186 at 194, the
Court of Appeal held as follows:
“Mr. Adjetey next says the Testator cannot have been in full possession of his senses when he executed the codicil because not only did he misdescribe his own house, but mixed up the names of his own children … As to missing up names, this may well be due to the Testator’s defective memory when his end was near. But there seems to be no doubt whom the Testator meant. Whatever the errors, the rule of law on which a court of probate acts in these matters is that mere misdescription does not invalidate a gift or put in the language of the classical Roman Lawyer, false demonstration non necet”.
Indeed as could be gleaned from the evidence on record, the Testator at the time of the execution of the Will was paralyzed from the waist. Certainly, his ability to recall or remember the particulars of his property may not be as sharp as a healthy person.
In any event, the Testator was able to mention the property that he had and the places they were.
Except that they were not described by their numbers.
This practice is not uncommon especially among many sick and aged persons even if they are first class scholars. The only danger is that if beneficiaries are not able to trace those properties, then the properties may be lost. Fortunately however in this case, the Respondent during cross examination was able to identify all the properties (see pages 54-56 of the record of appeal).
It was accordingly submitted by Counsel that the failure of the Testator to mention the specific numbers of houses, plots land or of bank account details should not raise suspicions that DW2 (Lawyer Iddrissah) was not given instructions by the Testator.
Section 12 (2) of the Evidence Act, 1975 (NRCD 323) on the proof by a preponderance of the probabilities, it is therein provides that:
“Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence”.
This Appellate Court does not seek to conclusively say for a fact that the signature appended on the will is that of the Testator or any other person. This is because there was no forensic evidence adduced to the effect that the signature on the will is not that of the Late Nana Senti I.
Furthermore, the term ‘undue influence’ has been described by Edusei J in Mercer vs. Brempong II (1975) 2 GLR 383 as:
“Undue influence means any influence by which the exercise of free and deliberate judgment is excluded at a time when some interest or benefit is given to another by someone over such influence was exercised”.
Also, In the case of In Re: Sackitey (Decd): Dzamioja alias Ashong(1982) GLR 128,Asare-Kwapong, J., said that;
“Again it was not sufficient to establish that a person had the power unduely to overbear the will of the Testator. It has to be shown that in the particular case, the power was exercised, and that it was by means of exercise of that power that the will was obtained.”
Flowing from the above, what the Court ought to do is to decipher the power so exercised by the party accused of unduly influencing another, and how the Will in question was procured by that power as alleged.
This Court takes the view that there existed a fiduciary relationship between the Testator and Angelina Bommo. This can be gleaned from the Cross Examination of Angelina Bommo (DW1) (as foundat pages 92 to 94 of the Record of Appeal) as:
“Q: During the period that your father was ill it was you and your sister Akosua who were permanently in the house.
Q. You will agree with me that since your father was paralyzed he needed to be attended by the two of you.
A: That is correct.
Q. The two of you were constantly present in the house during your father’s illness.
A. That is true”…
“Q: At the time that your father was ill none of his family members apart from you and AkosuaSenti lived permanently with him in his house.
A: That is correct.
Q. And no other person permanently lived with your father during the time of his ailment.
A. That is correct”.
It is clear from Angelina Bommo’s own evidence that the Testator was highly dependent on her. It so appears that by virtue of the fiduciary relationship that existed between Angelina Bommo and her late father it is more probable that she could exert an influence unduly on her late father, and same could have given her the advantage to harbor a sinister motive to cause the Will in contention to be made and the letter to ECOBANK, Exhibit “D” to be written, both to her advantage. It would then not be in error to say, therefore, that for the late Nana Senti I (the Testator) to be totally dependent on Angelina Bommo Senti could result in her influencing the Testator.
By virtue of this matter being a civil suit, it is sufficient for a question of fact to be established on a balance of probabilities , that is, that fact must, in the mind of the court, be more probable to exist, than not.
When we weigh the scales they tilt more towards the suspicious nature of the circumstantial evidence in this instant case. In other words, all the circumstances surrounding the making of the will points to the fact that there must have been an undue influence on the mind of the Testator. We take note of the conflicts in the evidence of the prime witnesses such as Dr, Asomah insisting that the Testator never moved out of his house from April 2012 to February 2013 when he died apart from one occasion when he went to see Dr. Abebrese at the Regional Hospital in Sunyani. This testimony juxtaposed with that of Lawyer Kofi Iddrissah who claimed that on 27th August 2012, the Testator came to his office in a car with a driver accompanied by Mr. Gyamfi, a law clerk at “Akyede Chambers” for the purpose of making a will indicates a discrepancy which does not enure to the benefit of the Appellant.
It is trite that whenever the testimony of a party on a critical issue is in conflict with the testimony of his own witness on that issue, it is not open to the Court to gloss over such a conflict, but make a specific finding on that issue in favour of the party whose case contained the conflicting evidence. This principle is enunciated in the case of Atadi v Ladzakpo  GLR 218 CA.
In Gligah and Atisovs The Republic  SCGLR 870, holding 3, the Supreme Court inter alia stated that:
“The Supreme Court was unable to agree with the submissions by counsel for the accused persons relating to the issue of credibility of the prosecution witnesses because, quite apart from the fact that the case of the prosecution, especially the first prosecution witness, the complainant and victim of the alleged rape, was one of oath against oath, there were pieces of evidence which if put together made a very strong case against the accused persons. It was like a series of small threads and which when put together, made a very strong rope. The same with circumstantial evidence. It was generally accepted that when direct evidence was unavailable, but there were bits and pieces of circumstantial evidence available (as in the instant case), and when those were out together, they would make stronger, corroborative and more convincing evidence than direct evidence. In the instant case, the pieces of evidence which helped in making very strong circumstantial evidence against the accused persons included (a) the detailed and correct description given by the first prosecution witness of the room where she had been allegedly raped by the accused; and (b) the confirmation by the second prosecution witness, the medical doctor, that the first prosecution witness had been carnally known by an erect male organ.”
This Appellate Court seeks to take an ocular view to determine the authenticity or otherwise of the signature on the Will by comparing it with other relevant documents previously signed by Nana SentiI by examining the whole of the evidence. This is not to say that this Court seeks to pronounce conclusively on the validity, or otherwise, of the signatures on both Exhibits “A” and “D”. However, this Court deems it worthy of comment that Exhibits “B” and “C”- one being a lease, and the other being a letter for commencement of leave, both signed by the Testator- were not in dispute. That is, the signatures, which were appended on these Exhibits, were undisputedly that of the Testator. The point of contention was with the signatures on Exhibits “A” and “D”.
On the face of the documents, it merely appears that the signature on Exhibit “D” was smartly signed (smartly, in the sense that, an aged, sick and bedridden person would most unlikely have the ability to sign in such a manner). This is to the effect that it so appears that a younger person might have signed the Resolution (Exhibit “D”) to appoint Miss Angelina Bommo Senti as the sole signatory to Senti Chemist’s Account at Ecobank. The signature on the will, however, does not seem to follow this style or pattern.
This notwithstanding, the observation made by this Court in respect of the signature on Exhibit D further seeks to buttress the assertion (made during the trial) by the Respondent, herein, that it was Angelina Bommo who signed Exhibit “D” (the Resolution)- this assertion can be found at page 98 of the Record.
A fraction of the Cross Examination of DW1 (at pages 96 to 98) would be reproduced herein as:
“Q: In your evidence before this court you said you are the Administrator of Senti Chemists.
Q. And your father was the signatory to the accounts of Senti Chemists during his lifetime
A. Yes, that is correct
Q. And your father had other accounts beside the account of Senti Chemists.
A. I do not know
Q. And you r father knew he had an account with Ecobank.
A. I do not know
Q. And the account at Ecobank was the Accounts of Senti Chemists where he was signatory.
A. I don’t know.
Q. so do you want this court to believe that as an Administrative officer of Senti Chemists, you do not know that Senti Chemists Accounts was with Ecobank.
A: I do not know.
Q. Apart from being an administrator of Senti Chemists you are also one of the Directors of Senti Chemists Ltd.
A. Yes, that is correct.
Q. And yet you did not know that Senti Chemists had its account as Ecobank.
A. I don’t know.
Q. In your Evidence in Chief, you commented on Exhibit “D” – Resolution to appoint.
A. That is correct
Q. On Exhibit D, a photocopy of your ID card was embossed on it
A. That is correct.
Q. You have you have your specimen signatory on Exhibit D.
Q. Exhibit ‘D’ was submitted to Ecobank after the death of your father.
Q: And the date on which Exhibit ‘D’ was written is 5/10/2012
Q. And according to Exhibit ‘D’ it was a resolution taken at a meeting on 2nd November, 2012.
Q. And the signature is purported to have come from your father.
It therefore seems rather questionable that Angelina Bommo who is the Administrator of Senti Chemists, as well as one of the board members of same, would not know of the number of accounts which the Company holds especially the one that she has been made a sole signatory to.
It is therefore suspicious that she was made the sole signatory of the Senti Chemists Account with Ecobank; given majority of the disposition in the father’s estate; and finally, that she prevented other family members from having access to the Testator when he was ill and bedridden. This assertion of other members being prevented from seeing the Testator when he was bedridden is manifested in the Evidence in Chief of PW1 (AkwasiKwakye) during the trial as found at page 60 of the Record of Appeal.
“When I came to visit my brother in August 2012 I met one Yaw and one AfiaBommo @ mother who prevented me from seeing my brother. The next day, I went again to visit Nana Senti. I expected the children to go out of the house to enable me visit my brother. I cannot tell the exact date. I hid myself somewhere and when a child came to lock the main door, I jumped over the fence wall and went inside the house. It was AfiaBommo @ mother and Yaw who left the house before I scaled the fence wall and followed the girl who came to lock the main gate. She however questioned me of my mission and I told her I was coming to visit my brother. I can’t describe it. He was unable to talk. I talked to him but he did not give me any answer”.
And also, the same assertion can be seen at page 64 of the Record of Appeal during his Cross Examination.
All the aforementioned pieces of evidence put together makes it more probable than not, that the validity of the will, as well as the disposition of the estates of the Testator, therein, is in doubt.
In the Supreme Court case of IN THE MATTER OF AN APPLICATION FOR GRANT OF LETTERS OF ADMINITRATION WITH WILL AND CODICIL ANNEXED BY MARY QUARCOO AND NII KOJO ARMAH II AND IN THE MATTER OF CAVEAT BY MRS. VICTORIA WELBECK AND AGNES ASHONG, CIVIL APPEAL NO. J4/41/2012 which was decided on 25th November, 2015, the Supreme Court discussed the appeal and affirmed the judgment of the two lower Courts. In effect, the Supreme Court found that the findings of the two lower Courts (the High Court and the Court of Appeal) were amply supported by with evidence and as was stated in the case of Bakers-Wood v. Nana Fitz ( 2007 -2008) 2 SCGLR 897, that it is then not permissible for the Supreme Court to interfere with the determination by the trial judge.
The Mary Quarcoo case (supra) can be distinguished from the instant case can be distinguished from the instant case before this Court. In the instant case, the Suspicious Circumstances surrounding the execution of the will of the late Nana Senti in relation to palpable inconsistencies in the signatures as adduced in evidence on the exhibits; Exhibit “A” (the Will) and Exhibit “D” (the letter to Ecobank) on one hand and Exhibit “B” (the lease agreement and Exhibit “C” (the letter for leave commencement) on the other hand and also the allocation of almost all the properties in the Estate of the Deceased to Angelina Bommo Senti and her associates, as critically analysed by the trial court and this court, this has given a compelling reason to this court to affirm the decision of the trial court judge to the effect that the will of the late Thomas Nana Asante is invalid.
For these reasons, the appeal is accordingly dismissed and the decision of the Trial High Court is affirmed.
MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]
I AGREE K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I ALSO AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]