IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION),
ACCRA- A.D 2019
KWAME YEBOAH FREMPONG, NANA FREDUA FREMPONG, YAW ADOMAKO FREMPONG AND KWAKU OFOSU FREMPONG - (Plaintiffs)
OBENEWAA FREMPONG, TABUAH FRIMPONG AND ASANTEWAH FRIMPONG - (Defendants)
DATE: 27 TH MAY, 2019
SUIT NO: GJ/ 292/2015
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
JOSHUA AMIDU KANTON FOR THE PLAINTIFFS
ALI GOMDAH ABDUL-SAMAD WITH RITA KUNKUTI ALI FOR THE DEFENDANTS
 There are no “winners” in this litigation. While a judgment such as this may bring elation to either the Plaintiffs or the Defendants that justice has been served, there can be no assurance that the relationship between the parties herein will be completely ever repaired. This is a case between brothers as Plaintiffs and their sisters as Defendants. And the subject matter of the dispute is the Last Will and Testament of their late father, Frempong Kofi Yeboah deceased. In my respectful opinion the fact that the deceased left a property in his name for his children and taking into consideration the Deceased’s life worth and accomplishments as presented to the Court, his life ought to have been celebrated rather than his passing being litigated by his children.
 Quite clearly, this is one case that is most suited for the Alternative Dispute Resolution (ADR) program especially because all the parties are of the same nuclear family. It is certainly a case of fractured relationships and I am of the respectful view that mediation could have provided the soothing balm the parties need to mend their relationship at a time that they have lost a stalwart of their family. It is therefore a sad case that they did not avail themselves to mediation in spite of the availability of that option. The Court notes that after the evidence and before judgment, it was revealed that the 1st Plaintiff, who testified for and on behalf of the Plaintiffs has also passed. Undoubtedly, this litigation has not contributed markedly to the happiness of any of the parties herein and so I can only hope that they shall work within the framework of this judgment to once again remind themselves that they are all the children of Frempong Kofi Yeboah and live as such.
 This suit was instituted by the Plaintiffs against the Defendants as a result of an alleged fraud and forgery of the Last Will and Testament of the late Frempong Kofi Yeboah (deceased). According to the Plaintiffs the deceased did not execute the alleged Will.
Ii Brief Facts/Background
 The facts of the case are that after the death of the father of the Parties herein, the 1st Plaintiff and the 1st Defendant applied for Letters of Administration with the belief that the deceased died intestate to administer his estate. According to the Plaintiffs the 2nd Defendant herein later filed a caveat against the grant of the application on the grounds that a search conducted at the Court revealed that the deceased died testate. The Plaintiffs say they had cause to believe that the deceased did not execute a Will and so they issued the instant Writ of Summons against the Defendants on December 30, 2015 for the following declaratory reliefs:-
(a) An order that the purported Will and Testament of the late Frempong Kofi Yeboah is null and void.
(b) An order that the said Will be set aside on grounds of fraud and forgery.
The Plaintiffs provided the particulars of the fraud and forgery in the Statement of Claim filed together with the Writ of Summons.
 Mr. Felix Aboagye Esq, entered appearance and later filed a joint statement of defence for the 1st and 2nd Defendants on April 13, 2016. Mr. Ali Gomda Abdul Samad also filed a Statement of Defence for the 3rd Defendant on June 6, 2016. Mr. Abdul-Samad later filed a notice of appointment of solicitor to act as Counsel for all the Defendants. I also note that Counsel for the Defendant whose name appear in this judgment as Counsel of record, Mr. Joshua Amidu Kanton is the 3rd Counsel for the Plaintiffs since the suit was instituted. Mr. Amidu Kanton came in when the matter was already scheduled for trial and so the Court only granted him leave to file an Amended Witness statement because the suit had been unduly delayed by the Plaintiffs.
 In the reply filed on February 6, 2017, the Plaintiffs joined issues with the Defendants on their statement of defence filed. At the close of the pleadings, as per the application filed on February 2, 2017 the Plaintiffs formulated two main issues for the Court’s determination. The Plaintiffs’ issues were as follows:-
a) Whether or not the late Frempong (alleged testator left behind a valid Will?
b) Whether or not the alleged Will was executed in accordance with law?
Evidence Received at Trial:
Iv The Plaintiffs’ Case
 The trial commenced on January 29, 2019 and completed on February 7, 2019. I note that the Plaintiffs filed a witness statement in the name of one Archibald Kpakpo Coleman but at trial he was not called and Counsel prayed the Court to strike same out from the record. The case of the Plaintiffs as averred in the statement of claim and also testified to per the witness statement filed and adopted at trial by the Plaintiffs’ witness, Kwame Yeboah Frempong is that their late father died on October 11, 2013 in Accra. Mr. Yeboah Frempong stated that when their father died “I and Ama Obenewah Frempong applied to the High Court Accra, for the grant of Letters of Administration to administer the property of our late father”. A copy of the application was tendered as Exhibit “A”. He also said that the said application was caveated by Abena Tabuah Frempong. A copy of the Affidavit of Interest attached to the caveat was also tendered as Exhibit “B” by the witness.
 The further evidence of the 1st Plaintiff was that the Applicants for the Letters of Administration were informed by the Court that “our late father made a Will and therefore died testate. The Court then took steps to have the Will read”. He further testified that the said Will was read by the Registrar of the Court and “we the Plaintiffs had cause to believe that our late father never made a valid Will and therefore died intestate”. A copy of the Will was tendered as Exhibit “C” by the Plaintiffs.
 The 1st Plaintiff further testified that “our late father had earlier in his life time distributed all the rooms in his house among his children and for that reason the said Will which purports to redistribute the rooms in the house cannot be true. Also, according to the Plaintiffs the said Will does not meet the requirements of a valid Will. The witness said the two attesting witnesses did not sign the Will in the presence of each other and in the presence of the Testator. Mr. Kwame Frempong said
“the Will was witnessed by Senator Robert Akuamoah on the 26th of June, 2002 and was signed by the
Testator on 12th July, 2002 and was later witnessed by Archibald Kpakpo Coleman”. Mr. Frempong also said Mr. Kpakpo Coleman told him that he and Senator Akuamoah “did not both witness the Will in the presence of our late father”. Based on the evidence the 1st Plaintiff prayed the Court to grant the Plaintiffs’ reliefs. The Plaintiffs called no other witness to close their case.
v. The Defendant's Case:
 The 2nd Defendant testified for herself and the two other Defendants. The Defendants’ case is that their father died testate and the Will executed is valid. They also deny that the signature of the testator was forged.
 The 2nd Defendant’s evidence as per her adopted witness statement at trial is that their late father instructed all his children to donate his corpse to the Korle Bu Teaching Hospital for scientific research. This according to Madam Tabuah Frempong was contained in a declaration signed by their father. A copy of the declaration was tendered as Exhibit ‘1”.
 She also testified that before the father’s death, he showed her the part of his wardrobe where he had kept an envelope, which contained every information about him the children needed to know. According to the witness on the date their father died, when she and the 1st and 3rd Defendants returned from Korle Bu their brother, the 2nd Plaintiff had locked up their father’s room. It is the case of the Defendants that the room was opened about a week before the laying in state of their father to enable them retrieve all the items he had instructed them to use for his laying in state. According to Madam Tabuah Frempong when they opened the wardrobe all the persons present saw the envelope that their father told them about. She also said when the items were removed from the room, the drawer with the envelope in it was returned to the room and all those who were present saw it.
 Madam Tabuah Frempong further testified that after their father was laid in state at the medical school, her brother the 2nd Plaintiff took away a certain bag belonging to their father and which contained all his documents including documents covering his house and sent to the father’s room. According to her the Plaintiffs after that kept their father’s room locked up without giving the Defendants access to the room.
 According to her sometime in 2014, the 1st Plaintiff and the 1st Defendant applied to the High Court for Letters of Administration to administer the estate of their father and she caveated. She said she was later joined as an Applicant. According to her on the day the application was heard she told the Court that she was convinced that her father left a Will and her conviction was borne out of what their father told her about the envelope in the wardrobe in his room. She said the Court adjourned and directed that a search be conducted at the Registry of the Court to ascertain the veracity of her statement and conviction. She also testified that an initial search was conducted at the Koforidua High Court because their father’s lawyer was based in Koforidua but the search did not reveal that their father had a Will. She said as a result the Court granted the Letters of Administration but before same could be processed another search was conducted at the High Court in Accra and it revealed that indeed their father left a Will. A copy of the search and the Will were tendered as Exhibits “2” and “3’ respectively.
 The further evidence of Madam Tabuah Frempng was that before the grant of the Letters of Administration after the unsuccessful search at the Koforidua High Court she told the Court that her brother the 2nd Plaintiff had made a statement in Court to the effect that their father left a Will but he the 2nd Plaintiff had torn the Will apart. Speaking about the Will she said their father made same free from any infirmity of body or mind. She also said she knew both attesting witnesses. Based on all of the above, the Defendants prayed the Court to dismiss the Plaintiffs’ claim.
vi. Counsel’s Submission:
 Counsel for the Plaintiffs, Mr. Amidu Kanton after his review of the evidence submitted that the Will did not comply with both statute and case law. Relying on Section 2(3) of the Wills Act, 1971 (Act 360) and the case of RE: OKINE (DEC’D); DODOO & ANOTHER v. OKINE & OTHERS [2003-2004] 1 SCGLR 582, Counsel submitted that the law requires that the attestation clause should state that the witnesses signed in the presence of the testator and the presence of each other. In this case, Counsel submitted that was not the case and therefore the Will does not meet the requirements of a valid Will as alleged by the Defendants.
 The next argument made by Counsel was that a careful look at Exhibits 1 and 3 show that the signature on both documents are not the same. According to Counsel “the Defendants’ witness made a mockery of herself when she stated under cross examination that the Exhibits bear the same signature”. According to Counsel the signature on the two exhibits are different from the Will and therefore the Will was forged and/or obtained by fraud.
 Mr. Ali Gomda Abdul-Samad on the other hand submitted that the Defendants have proved that the Will their father left behind is a valid Will. Counsel’s submission is based on the facts that the Will was discovered after a search at the registry of the Court and same was opened and read in the presence of the parties. Further, Mr. Abdul-Samad submitted that the Plaintiffs, and in particular 2nd Plaintiff did not deny the damning evidence of the Defendants to the effect that ‘he said their father left a Will but he has torn same apart’.
 Further, Counsel submitted that while the Defendants pleaded that their father made a Will free from any infirmity of body or mind and testified to same, the Plaintiffs pleaded that prior to their father’s death he was sick , weak and frail from ill health and could not have made that Will. Again, Counsel submitted that the Plaintiffs pleaded in their Statement of Claim that their father did not leave behind a Will and that the Will produced was forged by the Defendants. This complete denial notwithstanding, Counsel submitted the Plaintiffs departed from their pleading and in their testimony said their father left a Will but same forged and there were problems with the Will. Counsel submitted that under the rules of Court a party is not permitted to depart from his pleadings. Counsel relied on the Supreme Court case of NYAAMA v. AMPONSAH  SCGLR 361 which affirmed the decision of Hammond v Odoi “that a party who departs entirely from his pleadings commits decessus. Such a party should fail on the issue”.
 Finally, Counsel submitted that the Plaintiffs have failed to prove who forged the Will and have also failed to prove how the Will was forged. Counsel conceded that the date of signature said to belong to the Testator was clearly arbitrary but said the fact that the date of “12th July 2002” appear on the Will is not conclusive about the fact that the Will was executed on the date by the Testator. Based on all of the submission Counsel prayed the Court to make a pronouncement in favour of the Defendants because no evidence was led by the Plaintiffs to support their position that the Will was forged.
vii. The Court’s Analysis, Opinion & Conclusion:
 I proceed to evaluate the nature of the evidence adduced at the trial. The general position of the law on proof is aptly stated by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221 at 246 as follows:
“…a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”.
 In my examination of the evidence adduced by the Plaintiff and Defendants in the instant suit therefore, it is the Plaintiffs who have the obligation to adduce sufficient evidence in support of their claims endorsed on the writ of summons. The Defendants did not file a Counterclaim and therefore carry no such burden. The evidence of the Plaintiffs would be measured, weighed in the same degree and extent which any litigant in a civil trial is obligated to adduce in order that upon a proper balance the logical inferences and findings would be arrived at relevant to support the conclusions. For, the general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.
“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”
 Before discussing the issues set down I wish to state that since this is a matter which concerns a deceased person and what he allegedly said, I am mindful of the fact that the deceased is not here to speak for himself. Therefore, the evidence ought to be thoroughly sifted and my mind as the judge ought to be first of all, be in a state of suspicion in regards to what the parties have said about the deceased. See GRACE ASANTEWAAH v. MARK AMANKWAH ADDO  1 GMJ 2009 @ page 212.
 I now start my analysis by first considering the Plaintiffs allegation that the deceased father distributed the rooms in the house to the children before his demise. The question is was that allegation proven? Having subjected the pleadings and the evidence on record to critical scrutiny and analysis, I find from the evidence that, the simple answer to the question is NO. The Plaintiffs provided no scintilla of evidence to prove the allegation. All that the Plaintiffs did through the witness who testified was to mount the witness box to repeat what is contained in the pleadings. With the greatest respect again to the Plaintiffs, it has long been held in the case BANK OF WEST AFRICA LTD. vs 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. In the opinion of the Court the Plaintiff failed to lead any evidence to prove that the rooms in the house were distributed by the deceased before his demise and therefore the Court. I therefore hold that the contention by the Plaintiffs that the Testator distributed the rooms in his house to the children was not proven.
 I now proceed to address the germane issue which is whether or not the Will of the deceased was validly executed in accordance with the Wills Act, 1971. The Plaintiffs’ witness testified that the two witnesses did not sign in the presence of the Testator and at the same time. According to Mr. Kwame Yeboah Frempong that information was given to him by Mr. Archibald Kpakpo Coleman. As earlier stated the said Archibald Kpakpo Coleman was not called as a witness and so he was not cross-examined on that issue by counsel.
 In in my view Counsel correctly pointed out the main question and it is whether or not the Testator signed the Will, and if so when? To my mind that is the main issue. The Wills Act, 1971, Act 360 provides at Section 2 titled Execution of a Will as follows:
(1) No will shall be valid unless it is in writing and signed by the testator or by some other person at his direction.
(2) No signature shall be operative to give effect to any disposition or direction which is underneath or which follows it, or which is inserted after the signature has been made.
(3) The signature of the testator shall be made or acknowledged by him in the presence of two or more witnesses present at the same time.
(4) A signature by some other person at the direction of the testator shall be made by that other person in the presence of the testator and two or more witnesses present at the same time.
(5) The witnesses shall attest and sign the will in the presence of the testator, but no form of attestation shall be necessary. [Emphasis Mine].
 In his authoritative book on Wills, titled “Laws of Wills in Ghana”, the learned jurist stated that “The witnesses are required to sign in the presence of each other, and the presence of the testator is highly essential throughout the ceremony. In Re: Essien alias Baidoo (Decd), Essien v. Adisah & Ors, it was held by the Court of Appeal as follows:
“The provisions of the Wills Act, 1971 (Act 360), S2 (1) & (3) would not be complied with unless both witnesses attested and subscribed after the testator had made his signature or had acknowledged the same to them when both were actually present at the same time. However, there could not be acknowledgement unless the witnesses either saw or had the opportunity of seeing the testator’s signature, despite the fact that the testator might have expressly declared that the document to be attested to was his will” .
 In IN RE OKINE (DEC’D); DODOO AND ANOTHER v OKINE AND OTHERS SUPRA, it was also stated that though the law did not require for the proper or due execution of a Will that the attesting witnesses must necessarily see the testator sign his name or that the attesting witnesses had to sign in the presence of each other, Section 2 (3) of Act 360 requires that the testator’s signature had to be made or acknowledged by him in the presence of at least two witnesses present at the same time. [Emphasis Mine].
 Further, the law is that where there is a dispute as to a Will those who propound it, that is rely on it must clearly show by evidence that prima facie, all is well and in order. That is to say there has been proper and due execution and that the Testator had the necessary mental capacity and freely and duly executed the Will. In this case, have the Defendants who rely on the Will showed by evidence that the Will was properly executed?
 Mr. Amidu Kanton in his written submission stated that the Will does not meet the requirements of the law but in my view he failed to state the reasons for the submission. Rather he relied heavily on his cross-examination of the 2nd Defendant to submit that the signatures are not the same. In my respectful opinion there is no evidence that the witnesses did not sign in the presence of the Testator and/or that the Testator did not acknowledge his signature in the presence of the witnesses.
 To my mind and with the greatest respect, Learned Counsel’s submission is over-enthusiastically put because it fails to demonstrate why the Will fails to comply with the law. The Court did not hear from any of the witnesses to the Will who was present when the Will was signed and therefore the Court is left to speculate as to what happened, I do not think that is what is required of a Court of competent jurisdiction in doing justice. From the evidence the Will was deposited at the Registry of the Court and there is no proof as to the role the Defendants played in the execution of the Will.
 In the absence of any cogent evidence, I cannot declare that because the date of signature of the Testator and that of a witness on the Will are different it is enough to declare the Will invalid. I note that there is even no date of signature by Mr. Kpakpo Coleman. The Court heard no evidence that the witnesses signed the document at different times and not at the direction of the deceased whose Will they witnessed except that the dates are different. In my view those witnesses are the only ones who can explain the dates discrepancy as the Court does not have the crystal ball to reveal and understand why. With respect, since the Plaintiffs had the onus to prove on the balance of probabilities why the dates on the Will are different but failed, in my view that issue ought to be resolved against them.
 On the allegation that the Will was forged, again I am of the respectful view that the Plaintiffs failed to meet their onus. I agree with Mr. Abdul-Samad that the Plaintiffs started off by pleading that there was no Will but later said it was forged. The question is forged by who? The Court heard no evidence that any of the Defendants is the one who forged it. It is a settled rule of law that where there is a departure from pleadings at a trial by a party whereas the other’s evidence accorded with his pleadings, the latter’s is preferable. See: TAKYI v APPIAH (1982-83) 1 GLR 1 C/A.
 While on this subject, I ought to be quick to state that the Plaintiffs’ witness actually admitted in the course of the cross-examination that the Will was after all not forged. The following evidence crucial on the subject was elicited on January 29, 2019 when the 1st Plaintiff was cross-examined by Counsel for the Defendants.
“Q: If I understand your witness statement what you are saying is that your father attempted to make a Will but did not succeed in making one, is that what you are telling the court
A: Yes my lord.
Q: And the reason for which you are saying this is that the witnesses did not sign the Will in the presence of each other and in the presence of your late father, is that what you are telling the court
A: Yes my lord. That is what we saw on the attempted Will that my father made. And what we saw is that one of the witness signed the Will before our father signed it and at first the other, Mr. Archibold said that he has not signed any Will for our father. But then at a later stage when things were explained to him when we went for settlement he told us at first that our father called him to sign a document for him for his medical bills at the university but then we showed him and the Will which bears his signature so in fact he was amazed to see that maybe our father has tricked him to sign a Will for him but he insisted that never in his life time has he signed any Will for our father but at the settlement section it was explained to him that whatever he signed for somebody is binding. So when he seems not to understand it very well then he was told by one of the counsels that when you sign a Will, it is not necessary for you to know what is inside before you sign it. But then the two witnesses have to be present and sign it simultaneously after our father has signed it but here is having the Will in his hands, one witness signed it after that the other witness signed it after my father has signed it and as a lay person in law we have to seek advice which we did.
Q: So if I understand you, you believe that your late father actually signed what you call attempted Will
A: The signature looks as his signature but earlier we believe that the whole thing was falsified
Q: I just heard you say that Mr. Archibold confirmed he signed the document your father gave to him to sign, do you believe that story
A: Yes my lord
Q: And if you believe that story then you must also accept that the signature on what you call the attempted Will is that of your father
Q: When you say in your witness statement that the Will is a forgery, what do you mean?
A: Because we saw that Mr. Archibold was one of the attesting witnesses to the Will so we went to Mr. Archibold and asked him that Mr. Archihold you were also part of the funeral management of our late father why then for all these years or months you have not come out to tell us that our father has a Will which you even signed as one of the witnesses. So this man beat his chest and asked me being a witness to your father’s Will, not on this earth. So this informed my decision that the Will is forgery and the way that the Will appear on stage because it took more than two years after our father’s demise for this Will to come out. So with all these contribution that add up for us to say it is forgery. And when you look at the last page of the Will where the hand writing was used it looked as if the hand writing was taking the same pattern accept the signature of our father.
Q: So if I understand you, you earlier believed that some other person other than you father authored the Will, is that what you want the court to believe
A: Yes my lord
Q: As you sit here now you in fact believe that it was your late father who signed the Will
A: I do not believe that as I sit now that it was my father who signed that Will
Q: So in other words you still believe that the signature as it appears on this Will is not your father signature
A: It is that of my father
Q: So the allegations in your pleadings especially your statement of claim that the Will was a forgery is clearly not true, do you agree with me
A: I agree”
 From the above exchange it is clear that the Plaintiffs case was built more on speculation rather than established facts. As stated above, in the absence of any evidence from the witnesses to the Will, this Court is left with no option than to conclude that the Plaintiffs have failed to prove the allegations made in this case. To that extent it is my conclusion that the execution of the will was in accordance with the Wills Act, 1971 9Act 360) fails. I also hold that there is no evidence that the Will was forged because I am of the view that because no two signatures are bound to be the same but that in itself does not mean it is forged.
viii. Conclusion & Disposition:
 I hereby conclude that the Will was properly executed and therefore the Plaintiffs case is DISMISSED. On the issue of costs, Counsel for the Defendants waived the Cost based on the facts of the case and the fact that the parties are siblings.