In order to truly understand this appeal, one needs to recall the brief facts of the case leading to the appeal. One Thomas Komlah Atanley Kofigah alias Komlah Atanley Kofigah (hereinafter referred to as the deceased), a Togolese national, who was resident in Ghana, was a very successful business man who died leaving behind two wives and about twenty-one children. He died on the 5/9/2009 at the Korle Bu Teaching Hospital. On the 2/2/2010 an official of the High Court, Accra read what purported to be the last will and testament of the deceased dated 14/11/2007 which had allegedly been deposited at the registry of the court on the 7/10/2009. In the said will the deceased had nominated the defendants/respondents herein as executors of the will and who had accordingly applied for the will to be admitted to probate. The plaintiffs/appellants, who are children of the deceased and also beneficiaries under the will, had caveated, saying that the document attached to the application for the probate was a forgery and therefore not the will of the deceased. In the event, the motions court ordered the caveators to issue a writ so that a full trial could take place in accordance with the rules of court. This they did and asked for the following two reliefs in a writ that was subsequently amended twice:

i. A declaration that the purported last will and testament of Thomas Komlah Atanley Kofigah alias Komlah Atanley Kofigah executed on the 14^th November, 2007 and which was deposited at the registry of the High Court, Accra on October 7, 2009 after his death by the 1^st and 2^nd defendants is invalid.

ii. An order refusing the grant of probate to the 1^st, 2^nd, 3^rd and 4^th defendants, the within-named executors of the purported last will and testament of the late Thomas Komlah Atanley Kofigah alias Komlah Atanley Kofigah.

In the statement of claim accompanying the writ of summons, the plaintiffs/appellants averred, among other things, that the will alleged to have been deposited at the registry of the High Court was fraudulent and the signature on it had been forged. They further averred that the will had interlineations, alterations, erasures, and/or obliterations which had not been executed in accordance with the Wills Act, 1971 (Act 360) thus making it invalid. As would be expected, the defendants/respondents denied all of these averments in their amended statements of defense. The case thus proceeded to trial on the basis of the respective processes filed by the parties.

During the trial the 1^st plaintiff testified for himself. His main contention was that after the will had been read, he and the 2^nd plaintiff and others procured a copy of the will and realized to their chagrin that there were many defects in the documents. He said they knew that their father had many lawyers in his life time and yet the document seemed to have been prepared by a wayside typist. He also said the signature on the document was not that of his father since he knew his father’s signature very well as he had lived and worked with his father for many years. He tendered in evidence samples of his father’s signature as exhibits D, D1 and D2, E and E2 and F and F1 which he said differed from the signatures on the documents read at the High Court and attached to the application for grant of probate respectively. He was of the firm belief that the signatures on those two documents were forged and the will should therefore be declared invalid and the application for probate declined. The 2^nd plaintiff also testified and corroborated the testimony of the 1^st plaintiff regarding the forged signatures. She tendered in evidence exhibits G and G1.

The 1^st defendant testified for herself and for the 2^nd defendant. Her evidence was that after the demise of the deceased who was her husband, she traced his will to one of his numerous lawyers, Lawyer Somtim Tobigah and that the will was only deposited at the registry of the High Court on the 7/10/2009 after she had finished paying the lawyer’s fees to him. She testified that the signatures appearing on the will read at the high court and the one attached to the application for probate respectively were those of the deceased. The 4^th defendant also testified to the effect that he and one John Quarshie together witnessed the execution of the will of the deceased who had first signed the document. DW1, who gave his name as John Kwaku Quarshie, testified that he signed exhibit B (one of the copies of the will of the deceased). He said he also signed exhibit C (another copy of the will of the deceased). He said there were three copies of the will in all. At that juncture the plaintiffs then proposed to call Lawyer Somtin Tobigah as their next witness and indeed subpoenaed him to appear in court which he did but refused to testify for the reason that he had been acting for the defendants and since the brief had been taken away from him, it was professionally unethical for him to testify in the case. On the application of counsel for the plaintiffs, the court also ordered a forensic examination of the specimen signature of the deceased to be contrasted with the signatures on exhibits B and C.

On the basis of the evidence as summarized above, the learned trial judge proceeded to deliver his judgment in which he held that the will attached to exhibit C, which is the application for the grant of probate was invalid as the same had not been properly executed. He therefore refused to grant probate to the applicants who were the defendants in the court below and the respondents herein. Prior to that statement however, the learned judge had pronounced that he would not invalidate exhibit B and that pronouncements he had made concerning the invalidity of the will attached to exhibit C did “not in any way extend to the will deposited at the registry which was read to the parties which the court from available evidence before it found to be the will of the deceased.” It was this judgment that the plaintiffs/appellants (hereinafter referred to as the appellants) appealed against on the following grounds:

1. The decision of the trial judge in declaring exhibit B the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah deposited in the registry of the High Court, Accra on October 7 2009 to be his last will and testament is against the weight of the evidence.

2. The trial judge erred in holding that the particulars of fraud as set out in paragraphs 1 and 2 of the plaintiffs’ statement of claim was directed at exhibit C, the last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, annexed to the motion on notice for grant of probate and not exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, deposited at the registry of the High Court, Accra on October 7, 2009.

3. The trial judge erred in failing to comment on the refusal of Dr. Sontim Tobigah to testify on his authorship of exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, deposited at the registry of the High Court , Accra on October 7, 2009 which singular act cast a thick cloud of suspicion on the genuineness of exhibit B.

4. The trial judge erred in failing to address the failure of the defendants to call as a witness Afriyie, Esq., to testify to the deposition of exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, in the registry of the High Court, Accra on October 7, 2009.

5. The trial judge erred in law in rejecting the conclusion of the expert witness that the supposed signature of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah appearing on his purported last will and testament deposited in the registry of the High Court, Accra on October 7, 2009 and marked exhibit A was forged, without stating and/or offering any reasons for so doing.

6. The trial judge fell into grave error in declaring exhibit C, the last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, annexed to the motion on notice for grant of probate (which was a photocopy of exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, deposited in the registry of the High Court, Accra on October 7, 2009) invalid and yet found exhibit B to be the last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah and this has occasioned on the 1^st and 2^nd plaintiffs a substantial miscarriage of justice.

7.  Further grounds of appeal to be filed upon receipt of the record of appeal.

The relief the appellants are seeking from this Court is that the decision of the trial High Court in declaring exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, as valid, be set aside. It is pertinent to state that no further grounds of appeal were filed. We deem it necessary at this point in time to make a clarification as to the use of the term “the will attached to exhibit C” as opposed to the term “exhibit C” which was used throughout the judgment appealed against. We think the term “exhibit C” was a slippage on the part of the learned trial judge to continuously refer to “exhibit C” when referring to the copy of the will that was attached to the application for grant of probate. This set of documents can be found on pages 382 to 394 of the ROA. The whole set is marked exhibit C and the attached will starts from page 391 and ends on page 394. The next exhibit, D, starts from page 395. It was therefore erroneous for the trial judge and counsel on both sides to refer to the document as exhibit C, as if it was solely marked as exhibit C. We shall accordingly refer to the document as the will attached to exhibit C as contra-distinct from exhibit B which was marked as such and can be found on page 379 of ROA. We shall now proceed.

It is trite law that an appeal is by way of rehearing. It is also now very well established by legal precedent that where in an appeal, the ground of appeal or one of the grounds of appeal is that the judgment is against the weight of the evidence, the appellate court has a duty to go through the entire appeal record to satisfy itself that the evidence on record indeed supports the judgment. See cases such as Akufo-Addo v. Catheline [1992] 1 GLR] 377 SC, Tuakwa v. Bosom [2001-2002] SCGLR 61and Aryeh and Akapko v. Ayaa Iddrisu [2010] SCGLR 891 where Brobbey, JSC in characteristic fashion held at page 899 as follows:

“The authorities are replete on the principle that where an appellant appeals on the omnibus ground that the judgment is against the weight of the evidence, the appellate court is bound to consider comprehensively the entire evidence on record before coming to a conclusion on the matter. In the case of Akufo-Addo v. Catheline [1992] 1 GLR] 377, the Supreme Court (as stated in holding 3 of the headnote) held that:

‘Where the appellant exercised the right vested in him by rule 8(4) of LI 218 and appealed against a judgment on the general ground that the judgment was against the weight of evidence, the appellate court had jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts.’”

It is however the duty of the appellant to point the evidence on the record that, if used could have changed the decision in his favour or evidence that was wrongly used against him. In the case of Djin v. Musah Baako [2007-2008] 1 SCGLR 686, Aninakwa, JSC said on page 691 as follows:

“It has been held in several decided cases that where an (as in this case) appellant complains that a judgment is against the weight of evidence, he is implying that there are certain pieces of evidence on the record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.”

Bearing these two principles of the hearing of an appeal in mind, we have gone through this appeal record thoroughly just as we have read through the written submissions of learned counsel for both the appellants and the respondents. Since counsel for the two sides have decided to treat the grounds of appeal by taking grounds 1,5 and 6 together first, 3 and 4 together next and 2 lastly, we shall adopt the same approach in dealing with the grounds so that we are better understood when we make references to which grounds of appeal we are dealing with. We shall accordingly start by dealing with grounds 1, 5 and 6 together first. These state as follows: 1.The decision of the trial judge in declaring exhibit B the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah deposited in the registry of the High Court, Accra on October 7 2009 to be his last will and testament is against the weight of the evidence. 5.The trial judge erred in law in rejecting the conclusion of the expert witness that the supposed signature of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah appearing on his purported last will and testament deposited in the registry of the High Court, Accra on October 7, 2009 and marked exhibit A was forged, without stating and/or offering any reasons for so doing. 6 The trial judge fell into grave error in declaring exhibit C, the last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, annexed to the motion on notice for grant of probate (which was a photocopy of exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, deposited in the registry of the High Court, Accra on October 7, 2009) invalid and yet found exhibit B to be the last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah and this has occasioned on the 1^st and 2^nd plaintiffs a substantial miscarriage of justice.

As stated earlier, it is the duty of the appellants to convince us that there are certain pieces of evidence on the record which, if applied in their favour, could have changed the decision in their favour, or certain pieces of evidence have been applied against them and that there are certain lapses in the judgment being appealed against. In his written address filed on the 6/12/2016, counsel for the appellants has tried to carry out this exacting duty and we shall therefore proceed to examine his arguments in support of the appellants’ claim that they have carried out their task of persuading the Court in accordance with the dictates of the law. Counsel’s first contention was that the propounder of the validity of a will has the onus of proving the same. He cited such cases as Akenten II & Ors v. Osei [1984-86] 2 . GRL 437, In Re Okine (Dec’d), Dodoo & Another v. Okine & Others [2003-2004] SCGLR 582 and In Re Blay-Miezah (Dec’d), Ako Adjei & Another v. Kells & Another [2001-2002] SCGLR 339 in support of his proposition. He recounted the events leading to the issuance of the writ of summons and contended that in the light of “thick cloud of suspicion on the genuineness of the Will” which had been raised by the “interlineations, alterations, erasures and/or obliterations, on the face of the ‘Will’, and which had not been accounted for, as the same had not been executed and attested in the mode required by the Wills Act, 1971 (Act 360), the onus of proof lay on the respondents to have convinced the trial court that indeed the document presented to the court for the grant of probate was the will of the deceased. Counsel then proceeded to reproduce parts of the evidence of the respondents that he argued contradicted each other on very material issues.

For instance, counsel contended that the 1^st defendant and DW1 contradicted each other on the issue of whether or not exhibits B and the will attached to exhibit C are a replica of each other; that whereas the 1^st defendant readily admitted that they were different even in terms of the type-setting, DW1 said they were replicas. Counsel again argued that DWs 1 and 4 contradicted the 1^st defendant over the issue whether or not exhibits B and the will attached to exhibit C were one and the same document. He contended that the law is that whenever the testimony of a party on a crucial matter is in conflict with the testimony of his own witnesses on an issue, it was not open to a trial judge to gloss over such a conflict and make specific findings in favour of a party whose case contained the conflicting evidence in issue quoting the case of Atadi v. Ladzekpo [1981] GLR 219 CA in support. Counsel for the appellants pointed out several other instances of the failure of the respondents to prove that both exhibits B and the will attached to exhibit C had met the test of genuineness of a will as required by the provisions of Act 360, insisting that the signature of the deceased had been forged from the evidence available on the record. He argued that once it was the case of the respondents that exhibits B and C were replicas of each other, it was wrong for the trial court to reject the will attached to exhibit C as the will of the deceased and yet accept exhibit B as the valid will of the deceased. He then urged this Court, as an appellate court, to set aside the finding of fact made by the trial court to the effect that exhibit B was the will of the deceased because there was no evidence supporting the finding of fact.

He also argued that the rejection by the trial judge of the expert opinion proffered by CW1 (the court-appointed witness) without assigning any reasons was flawed in law since the law required that good reasons be given for deviating from reasons of the expert opinion. The response from counsel for the respondents to all this was that once the appellants conceded that testamentary documents appeared, ex facie, to be regular and bore the signatures of not only the testator but both the attesting witnesses, then the burden of proof shifted to the appellants to prove that the will was a forgery. He cited the case of Fenuku & Others v. John Teye & Others [2001-2002] SCGLR 985 (holding 5) where the Supreme Court held that whoever alleges forgery must prove it. Since forgery is a crime, it must also be proved beyond reasonable doubt. He also cited the case of In Re Blay-Miezah (Dec’d), Ako Adjei & Another v. Kells & Another (supra) and contended that the law is that it is for the trial judge, and not the handwriting expert, to decide the genuineness or otherwise of the signature on the will.

We have carefully considered the arguments put forth by counsel on both sides. What we found missing in the presentation of counsel for the respondents was any explanation for the interlineations, alterations, erasures and/or obliterations, on the face of the will attached to exhibit C which had not been accounted for, as the same had not been executed and attested in the mode required by the Wills Act, 1971 (Act 360). We must concede that the learned trial judge in the court below dwelt at length on the submissions of counsel in the court below but eventually made a finding that “the particulars of fraud as set out in the plaintiffs’ claim is directed mainly at the will (Exhibit ‘C’) which was annexed to the application for the grant of probate. The plaintiffs were right in raising the red flag because the variations, and abbreviations of the names and addresses in the attestation column arouses suspicion which was not well explained to the court.” On that basis the court below refused the respondents’ application for grant of probate. To all intents and purposes the trial court found as a fact that the appellants had succeeded in proving that one of the documents in contention (i.e. the will attached to exhibit C which had been used to apply for the probate) was not valid and that the respondents had failed to discharge the legal obligation they were required to meet in order for them to be granted the probate they were asking for. But the will attached to exhibit C went to the second relief that the appellants were asking for. The appellants had asked for two reliefs and the first one was a declaration that the purported last will and testament of the deceased deposited at the registry of the High Court on October 7, 2009 by the 1^st and 2^nd defendants be declared invalid as well. In our considered opinion this relief deserved as much treatment as the second one but the learned trial judge treated it like a footnote. As conceded by the learned trial judge himself, the case of the respondents was that the will attached to exhibit C was a replica of exhibit B. The trial judge proceeded to define the word “replica” as follows:

“A replica means the exact reproduction of the original.”

 He went on to say that:

“If one is to argue that the will attached to motion on Notice for the grant of probate is the exact reproduction of the one deposited and read at the court Registry then one need to explain to the Court why the abbreviation in the post office address supplied by the 4^th Defendant in Exhibit ‘C’ as one of the attesting witnesses and that of John Kwaku Quarshie abbreviated to read John K. Quarshie. This gives room for suspicion which in my humble view has not been removed by the defendants, in respect of the Exhibit tendered and marked as ‘C’.”

It was the case of the respondents that the will attached to exhibit C was a replica of exhibit B hence once the trial judge found the will attached to exhibit C to be invalid, there could be no logical reason for him to turn round and say that exhibit B could not be invalidated. He alleged that there was available evidence before the court that proved that exhibit B was the will of the deceased. But he failed to point out what that available evidence was. Such evidence as the trial judge was referring to ought to have been made patently clear on the face of the judgment so that anyone reading the appeal record, especially an appellate court such as this one, could readily point to the evidence the trial judge was relying on. This is precisely the kind of situation Aninakwa, JSC was referring to in Djin v. Musah Baako (supra). Besides, what made that available evidence applicable to exhibit B to make it the valid will of the deceased and yet not applicable to the will attached to exhibit C so that the learned trial judge could agree with the appellants that exhibit C was not properly executed? The learned trial judge appeared to have set up a completely different case for the respondents’ from their case that exhibits B and the will attached to exhibit C were replicas of each other. This was in violation of the time-honoured principle of law especially enunciated in the case of Dam v. J.K.Addo and Brothers [1962] 2 GLR 200 where the Supreme Court held in holding (2) that a court could not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with, that which a party himself put forward, be they plaintiff or defendant. For the forgoing reasons we are of the view that grounds 1, 5 and 6 ought to succeed and we hereby allow them.

We now come to grounds 3 and 4 which are couched as follows: 3.The trial judge erred in failing to comment on the refusal of Dr. Sontim Tobigah to testify on his authorship of exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, deposited at the registry of the High Court , Accra on October 7, 2009 which singular act cast a thick cloud of suspicion on the genuineness of exhibit B. 4.The trial judge erred in failing to address the failure of the defendants to call as a witness Afriyie, Esq., to testify to the deposition of exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, in the registry of the High Court, Accra on October 7, 2009. It was contended by counsel for the appellants that the failure of the trial judge to comment on the refusal of Dr. Sontim Tobigah to testify even though brought to court by subpoeana and Afryie, Esq. the lawyer who deposited exhibit B at the registry of the High Court was a fatal error to the case of the respondents. In response, counsel for the respondents argued that the failure of the judge to comment on those two matters was irrelevant as their testimonies would have added nothing of evidentiary value to the case. On our part, we think that counsel for the respondent completely misunderstood the import of a passage on page 8, line 15 of the written submission of counsel for the appellant filed on the 6/12/2016. We say this because on pages 7 and 15 of his own written submissions, he makes the point that the appellants have conceded that exhibits B and the will attached to exhibit C is in order and so he does not know what their case or complaint is all about. What counsel for the respondents appear to miss is that, the appellants’ complaint is that the purported signature of the testator is a forgery. So the point they are making under these two grounds is that Dr. Tobigah and Mr. Afriyie were material witnesses who could have testified on the issue whether or not the signature of the testator is a forgery. But having said that, we have to go back to the issue of the burden of proof. As was stated clearly above in cases such as In Re Blay-Miezah (Dec’d), Ako Adjei & Another v. Kells & Another (supra) and In Re Ayayee (Dec’d); Kukubor & Anor v. Ayayee [1992-93] GLR 866, where suspicion is cast on a will (especially where forgery is alleged) the burden to prove that it was validly executed was on the party propounding its validity, in this case the respondents. And indeed the respondents saw the need to do this and tried so to do. Whether the respondents succeeded or not, the trial court did not say and left everyone in a doubt.

There can be no doubt that Dr. Tobigah’s evidence would have gone a long way in clearing the doubt as to whether or not the signature on exhibits B and the will attached to exhibit C was the signature of the deceased or not. Dr. Tobigah was therefore a material witness and his failure to testify deserved to be commented on by the trial judge. The appellants’ point in these two grounds of appeal is that the respondents failed to call two material witnesses and the learned trial ought to have commented on that omission which he failed to do. The evidence on record (actually from the 1^st respondent) was that the will of the deceased was prepared by Dr. Sontim Tobigah but deposited at the registry of the High Court by Mr. Afriyie. It must be remembered that most of the evidence about how the will was prepared by Dr. Tobigah and deposited at the High Court registry by Mr. Afriyie was hearsay evidence from the 1^st defendant under section 117 of the Evidence Act, 1975 (NRCD 323). That being the case, it needed to be corroborated if the court had to attach any weight to it. This is how the 1^st respondent’s evidence-in-chief went:

“Q. At Dr.Tobigah office what information were you given?

A. That he has travel to the North so the secretary rang him and we spoke to him. We ask him about the Will and he confirm it that he is the one who made the Will for my deceased husband.

Q. Is it both of you who spoke on the phone to Dr. Tobigah?

A. I spoke to him.

Q. What happened next?

A. When he came back from the North he rang me and I went to his office and he confirmed again that he was the one …who made the Will but he has not deposited it at the Court.”

It is not for nothing that that section 7(4) of NRCD 323 provides as follows:

“(4) A finding of fact, verdict, judgment or decision shall not be set aside, altered or reversed on appeal or review on the sole ground that the Court failed to caution itself or the jury as to the danger of acting on the uncorroborated evidence unless the Appellate Court is satisfied that the failure resulted in a substantial miscarriage of justice.”

There was an allegation of fraud surrounding the will and the learned trial judge himself found as a fact that the suspicions had “not been removed by the defendants, in respect of the Exhibit tendered and marked as ‘C’. Exhibits B and the will attached to exhibit C had both been tagged as forgeries by the appellants and the same learned judge saw this as an issue worthy of his consideration. He nonetheless managed to decouple them and gave exhibit B a clean bill of health thus resulting in this appeal. The least the learned trial judge could have done was to have expressed an opinion on how Dr. Tobigah’s evidence could have helped to resolve the issue of whether or not the signature on exhibit B was truly the signature of the deceased, assuming of course that Dr. Tobigah was the lawyer who really prepared that document. Again the failure of the respondents to call Mr. Afriyie as a witness to testify as to how he came to deposit exhibit B in the High Court registry should have been a matter for comment by the trial judge because that evidence would certainly have helped greatly to resolve the issue of the genuineness or otherwise of exhibit B. The failure of the learned trial judge not delve into the real issues concerning exhibit B, including his omission to comment on matters concerning Dr. Tobigah and Mr. Afriyie, were made manifest in the following statement.

“This statements therefore the court will not accept by dwelling on it to invalidate the will, ie (Exhibit B).” (sic)

We will not go as far as counsel for the appellants did and call this a “lazy” approach to his judicial duties, but we think that the learned trial judge could have done better by laying bare his reasons for refusing to invalidate exhibit B just as he done the will attached to exhibit C. It is the duty of a trial judge to resolve all issues of conflict before deciding on the side of two conflicting stories to accept. The learned trial judge failed to resolve the issues whether or not Dr. Tobigah actually wrote the will in contention and whether or not Mr. Afriyie was the person who deposited it at the High Court registry. The failure of the trial judge to resolve those two issues by refusing to comment on them amounted to a serious abdication of his judicial duties. We therefore hold that the trial judge erred in not commenting on the failure of Dr. Tobigah to testify and the respondents to call Mr. Afriyie as a witness. Accordingly we also allow grounds 3 and 4.

We now move to ground 2 which is couched as follows: the trial judge erred in holding that the particulars of fraud as set out in 1^st and 2^nd plaintiffs’ statement of claim was directed at exhibit C, the last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, annexed to the motion on notice for grant of probate and not exhibit B, the purported last will and testament of the late Thomas Atanley Kofigah alias Komlah Atanley Kofigah, deposited at the registry of the High Court, Accra on October 7, 2009. It was submitted by counsel for the appellants that there was nothing in either the pleadings or evidence of the appellants to justify the conclusion reached by the trial judge that the particulars of fraud alleged by the appellants were directed at exhibit C. Counsel for the respondents, on the other hand, contended that during the trial the appellants directed their attacks at the will attached to exhibit C and not B hence the trial judge was perfectly right to have come to the conclusion that the particulars of fraud set out in the appellants’ statement of claim were directed at will attached exhibit C and not exhibit B. Unlike counsel for the respondents, counsel for the appellants cited some examples to illustrate the point the appellants were making. Here are a few excerpts:

“See 2^nd plaintiff’s evidence-in-chief on 06/06/11 @ pages 114, 115 and 116 of ROA;

Q. Can you identify your father’s signature if you see one?

A. Yes My Lord.

Q. The mark on Exhibit B is it the true deed and mark of your late father?

A. No  

Q. What about Exhibit C?

A. No My Lord.

Q. It is the case of the 3^rd defendant that in your father’s lifetime he informed him that he had made a Will and had mentioned him as one of the Executors thereof and that Will be none other than Exhibit B and C.

A. If my father made a Will at all and mentioned to my father it is not the one in issue?”

As stated earlier in this judgment, the learned trial judge seemed to have been so fixated with the idea that exhibit B had been so well proven to be the will of the deceased that he did not bother to look at any other evidence that was likely to derail his decision to declare it valid. This probably explains why he did not assign any reasons why he should reject the evidence proffered by the appellants to persuade the court that both exhibit B and the will attached to exhibit C were in issue and deserved his equal attention. He therefore focused his attention only on the will attached to exhibit C to the neglect of Exhibit B because had he paid more attention to exhibit B, he would have realized that the appellants were also attacking the validity of that document as exemplified in the excerpts of the evidence quoted above. But even then, he contradicted himself when he said in the same judgment at page 337 of the ROA that:

“The plaintiffs contention was that after perusing the signature which appeared, the signature as appearing on the will was not the true deed and mark of their late father and that it was forged. This was in reference to Exhibit B ie the will deposited at the Court’s Registry which was read to them.” (sic)

This alone should have alerted the learned trial judge that the appellants’ complaint was not just against the will attached to exhibit C but exhibit B as well. So even though he might still have come to the conclusion that exhibit B was the valid will of the deceased, he had a judicial duty to explain why, in the light of the appellants’ valiant efforts to discredit the document, he still came to the conclusion that it was the valid will of the deceased. One would have expected that from pages 337 to 340 of the ROA (all of which are parts of the judgment) there would have been a definitive pronouncement by the trial judge on the issue of the signature on exhibit B, which after all, was really part of the bone of contention between the parties. But even though he went to the trouble of analyzing the evidence of the two hand-writing experts and subsequently made findings of fact on other matters, he never really made a finding of fact that the signature on exhibit B was the signature of the deceased. This failure on the part of the learned trial judge was a very serious lapse that undermined the finding that exhibit B was the valid will of the deceased because it was, so to speak, based on nothing. He had a duty, as a trial judge, to make a primary finding of fact as to whether or not the signature on exhibit B was the signature of the deceased before making the declaration that it the valid will of the deceased. This failure was fatal to the declaration that exhibit B was the will of the deceased. In any case, he could not have made a finding different from the finding he made about the will attached to exhibit C because, as said earlier in this judgment, he would have being setting up a completely different case for the respondents’ from their case contrary to law. We therefore think the appellants are once again right in raising the matter on appeal and we according allow ground 2 of the appeal.

From the totality of the foregoing, we hereby allow this appeal in its entirety and set aside the judgment of the High Court, Accra dated 13^th February, 2015.

FRANCIS G. KORBIEH

(JUSTICE OF APPEAL)

ACKAH-YENSU (MISS), J.A.           I AGREE         BARBARA ACKAH-YENSU (MISS)

                                       (JUSTICE OF APPEAL)

I.O. TANKO AMADU, J.A.    I ALSO AGREE         I. O. TANKO AMADU

                     (JUSTICE OF APPEAL)