Manu and Another v Sowah and Others (GJ/0196/2021) [2025] GHAHC 125 (29 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION DIVISION, COURT 12) ACCRA, HELD ON THE 29TH DAY OF JULY 2025 BEFORE HIS LORDSHIP JUSTICE AYITEY ARMAH-TETTEH SUIT NO: GJ/0196/2021 1. ASARE MANU - PLAINTIFFS 2. STEPHEN SARFO VRS 1. DAVID SOWAH 2. ANANG GA 3. MENSAH GA - DEFENDANTS ------------------------------------------------------------------------------------------------------------------- PARTIES: - PLAINTIFFS ABSENT, REPRESENTED BY EMMANUEL YARBOYE 2ND DEFENDANT PRESENT 1ST AND 3RD DEFENDANTS ABSENT COUNSEL: - ANNE-MARIE PALMER- BUCKLE ESQ. FOR KWAASI DJIN FOR PLAINTIFF PRESENT PRINCE FREDERICK NII ASHIE NEEQUAYE FOR DEFENDANTS ABSENT ----------------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------------- INTRODUCTION Page 1 of 30 [1] Esther Choochoo Yarboye, a native of Teshie and a resident of Nsukwa, Koforidua, died on 2 October 2004 and left a will. Probate was granted on 24 July 2018 to the Plaintiffs, who were the named Executors. The Defendants are alleged to have intermeddled in the estate of the deceased by occupying and renting rooms in House Number 470/7 Shotso Lane, Teshie, which formed part of the estate of the deceased. The Defendants deny the claim of the Plaintiffs and challenge the validity of the document presented by the Plaintiffs as the last Will and Testament of the deceased, and allege that the document presented by the Plaintiffs is not the deed of the deceased and a product of fraud. The main question that this court is called upon to answer is the validity of the document presented by the Plaintiffs as the last Will and Testament of the deceased and whether the Defendants have intermeddled in the estate of the deceased. PLAINTIFFS’ PLEADINGS [2] It is the case of the Plaintiffs that they are the named Executors of the Will of the late Esther Chochoo Yarboye, who died on 2 October 2004, and Probate was granted on 24 July 2018. According to Plaintiffs, H/No. 470/7 Shostso Lane, Teshie, forms part of the estate of the deceased. [3] According to Plaintiffs, Defendants are relatives of the deceased and 1st Defendant is a beneficiary of the estate of the deceased. It is the case of the Plaintiffs that the Defendants have intermeddled in the estate of the deceased and that 1st Defendant has occupied the rooms he is entitled to and the Defendants collectively have rented all rooms in H/No. 470/7 Shostso Lane, Teshie. [4] It is the case of the Plaintiffs that, for about ten years and since 2016, when the last Will and Testament of the deceased was read and after probate was granted, the Defendants have refused to make the property available to the beneficiaries under the Will. Page 2 of 30 [5] The Plaintiffs, on 18 November 2020, issued out a Writ of Summons against the Defendants claiming the following reliefs: 1. A declaration that the Defendants are intermeddlers and ought to be accountable to all beneficiaries for the way they have taken control and managed the estate of Esther Chochoo Yarboye. 2. An order directed against the defendants as intermeddlers to account for their dealings with the estate of Esther Chochoo Yarboye (deceased) and for payment of all monies found due. 3. Perpetual injunction restraining the Defendants by themselves, servants, assigns, however described, from intermeddling in the estate of the said Esther Chochoo Yarboye. 4. Any other reliefs from the pleadings. DEFENDANTS’ PLEADINGS [6] The Defendants admit that probate in respect of the last Will and Testament of the deceased was granted to the Plaintiffs on 24 July 2018, but contend that on 18 September 2018, they filed a caveat which was served on one Emmanuel Yarboye, who was litigating with the Defendants at the Ledzokuku Municipal Assembly District Court. The Defendants aver that the document that the Plaintiffs claim to be the Will of the deceased is a product of fraud. [7] The Defendants denied renting out rooms in the property as alleged by the Plaintiffs and contended that they have not rented any room in the said house save what was personally rented out by the deceased in her lifetime. It is the case of the Defendants that, since 2004, the paternal family of the deceased has collected rent from the property. [8] Issues for determination: Page 3 of 30 The following issues were set down for the determination of the suit. 1. Whether or not the Will of late Esther Chochoo Yarboye was executed in accordance with the Wills Act or was a product of fraud. 2. Whether or not the Defendants have intermeddled with the estate of the deceased Esther Chochoo Yarboye. 3. Whether or not the Defendants are accountable for the dealings with the estate of Esther Chochoo Yarboye, deceased. ISSUE 1: Whether or not the Will of late Esther Chochoo Yarboye was executed in accordance with the Wills Act or was a product of fraud. [9] The Wills Act, 1971 (Act 360) and Order 66 of the High Court (Civil Procedure) Rule 2004, C.I. 47 govern matters in respect of Wills in Ghana. Act 360, among other things, provides the manner a Will shall be made for it to be valid. Order 66 of C.I. 47 provides the procedure for the application for the grant of probate to Wills and Letters of Administration with Will annexed and for trial of contentious probate matters. [10] In the present action, the fundamental question that this Court is called upon to answer is the validity of the Exhibit E, which was presented by the Plaintiffs as the last Will and Testament of the late Esther Chochoo Yarboye. The settled law is that, where the validity of a Will is challenged especially on grounds of forgery, the proponents of the Will have the burden to satisfy the Court that the document presented as the Will and Testament of the deceased was freely made by him or her and was duly attested to by two witnesses who were present at the same time. The proponents are further to satisfy the Court that the Testator or Testatrix at the time he or she executed the Will was corpus mentis and not suffering from any impairment of mind. Once the proponents of the Will discharge this burden on them, then the burden of proof shifts to the party alleging that Page 4 of 30 the document is a forgery or does not meet the requirements of the Wills Act to prove those allegations. [11] Mary Quarcoo and Anor vrs Mrs. Victoria Welbeck and Anor [2015] JELR 67875 (SC) Ansah JSC stated thus: “Where the validity of the will is challenged a Plaintiff must prove the Will in a solemn form. The onus was on the Plaintiff to prove positively that the will was duly executed, in that it complied with the requirements of sections 1 and 2 of the Wills Act, 1971 (Act 360). “The rule enunciated by Parke B is that in every case the onus lies on the propounders of the Will to satisfy the Court that the instrument is the Last Will of a free and capable testator, must, however, be taken, I think, to refer to the first stage so to speak, of the onus, for the onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie, all is in order, that is to say, there has been due execution and that the testator had the necessary mental capacity and was a free agent. Once they have satisfied the Court, prima facie, as to these matters, it seems to me the burden is then cast upon those who attack the Will and they are required to substantiate by evidence the allegation they have made as to lack of capacity, undue influence and so forth. “See – Johnson and others v. Maja and others 13 WACA 290 at 292.” In the instant case, since the will appeared ex facie to satisfy the formalities of due execution, under normal circumstances the maxim omnia praesumuntur rite esse acta would apply and the will would be presumed to have been properly executed and attested. However, since the validity of the will has been challenged, it must be Page 5 of 30 proved in solemn form by calling a witness who was present and saw the execution to give evidence in proof.” [12] See also the cases of: 1. Thomas Tata Atanley Kofigah and Anor v. Kofigah Francis Atanley and Anor Civil Appeal No. J4/05/2019 dated 22nd January 2020 (unreported). 2. In Re Blay-Miezer (Deced); Ako Adjei & Anor v Kells & Anor [2001-2002] SCGLR 339. 3. Dodoo & Anor v Okine & Ors [2003-2004]. [13] In the instant case, Plaintiffs being the proponents of the Will of the deceased have the burden of proof to the satisfaction of the Court that the Will was executed in accordance with the Wills Act, Act 360, and witnessed by the attesting witnesses at the same time and in the presence of the Testatrix and the Testatrix was corpus mentis. If they are able to satisfy the Court that the Will was executed in accordance with the Wills Act, then the burden will shift to the Defendants who allege that the Will is a forgery or a product of fraud to establish their allegations. ESSENTIAL REQUIREMENTS OF A VALID WILL [13] The essential requirements of a valid will in terms of the Wills Act, Act 360 are provided for by Sections I and 2 of the Act. 1. POWER TO MAKE A WILL 1) A person of or above the age of eighteen years may in writing and in accordance with this Act, make a will disposing of the property (a) of that person, or Page 6 of 30 (b) to which that person will be entitled at the time of death, or (c) to which that person may be entitled after death. 2) A person suffering from insanity or infirmity of mind so as to be incapable of understanding the nature or effect of a will does not have capacity to make a will during the continuance of that insanity or infirmity of mind. 3) A will, or a provision of a will, obtained by fraud or made under duress or undue influence, is void. 2. EXECUTION OF A WILL 1) A Will is not valid unless it is in writing and signed by the testator or by any other person at the discretion of the testator. 2) A signature is not operational to give effect to a 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 the testator in the presence of two or more witnesses present at the same time. 4) A signature by any other person at the discretion 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 a form of attestation is not necessary. 6) Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the Will before it is executed, and that competent person shall declare in writing on the Will that the Will Page 7 of 30 had been read over and its contents explained to the testator and that the testator appeared perfectly to understand the Will before the Will was executed. [14] In proof of due execution of the Will, the 1st Plaintiff testified and called two witnesses, Emmanuel Yarboye (PW1) and Collins Acheampong one of the attesting witnesses(PW2). [15] This is the testimony of the 1st Plaintiff on the execution of the Will of the Testatrix: 1. Madam Yarboye subsequently invited us for a meeting at her house to meet one lawyer Akoto from Oyerepa Chambers at Gateco. He prepared the Will. The meeting was held at the porch in her house. In attendance was Mr. Collins Acheampong, Mr. Bawuah Boateng who is now deceased and Mr. Stephen Sarfo. Madam Esther Chochoo Yarboye was also present together with lawyer Akoto. At the meeting, she explained to us that upon her death, she wanted Stephen Sarfo and I to share her properties. The contents of the Will was read to Madam Yarboye and explained to her in Twi, after which Bawauh Boateng and Collins Acheampong signed. Madam Chochoo also thumb printed the Will. (Emphasis mine). Madam Yarboye passed on in 2004 and was buried in Accra. After the funeral, her family members moved to occupy and manage her properties. I hinted to her son Emmanuel Yarboye that his mother has (sic) left a Will. I directed Mr Yarboye to the lawyer’s office at Gateco. The Will was read on 21st July 2016 after which we applied for probate which was granted on 24th July 2018. [16] The 1st Plaintiff tendered in evidence without objection a copy of the Will as exhibit ‘E’. A look at Exhibit ‘E’ shows on the face that it was executed by the Testatrix and Page 8 of 30 witnessed by two attesting witnesses namely Daniel Bawuah Boateng and Collins Acheampong. [17] Collins Acheampong (PW2) testified in part as follows. “I was also a witness to her Will that she made on 24th June 2002. I know the late Madam Esther Choochoo Yarboye as a member of my church. We both attended the Nsukwa congregation of the Jehovah Witnesses Church at Nsukwa, Koforidua. She attended the church with her only child, a son called Emmanuel Yarboye…… One Saturday after church, she invited myself, and another gentleman from church called Bawuah Boateng for a discussion at her house. We met at her house at Nsukwa that week. I met Bawuah Boateng there at the house since he lived in the same house with Madam Yarboye. Later we were joined by Mr. Asare Manu and Mr. Stephen Sarfo. We were also joined by Lawyer Akoto, who madam introduced to us as her lawyer……… At the meeting Madam Yarboye informed us that she had made a Will and wanted Bawuah Boateng and I to attest the Will. Lawyer Akoto took the Will from his file and explained the process to us. He then read over the contents of the Will and explained it in Twi to Madam Yarboye. After each line, he asked Madam Yarboye if she understood to which she replied yes. After reading and explaining the contents of the Will before us, Bawuah Boateng and I signed the Will while Madam Choochoo administered her thumbprint. (Emphasis mine) [18] PW2 testified that he was present at the same time as the other attesting witness Bawuah Boateng, at the house of the testatrix, and the testatrix requested them to witness the execution of her Will. They both signed and the testatrix thumb printed. All were done in their presence. Page 9 of 30 [19] The evidence of the 1st Plaintiff who was also present at the execution of the Will corroborated the evidence of the attesting witness (PW2) on the procedure and sequence in execution of the Will. However, 1st Plaintiff’s evidence under cross-examination seems to have contradicted his evidence in Chief on the sequence of the execution and Counsel for Defendants seems to make capital out of it. [20] This was 1st Plaintiff’s evidence under cross-examination. Q. How was the Will signed. A. Madam Choochoo Yarboye called Stephen Sarfo and I that she has done a Will, so we should come. We went to her house and met four other people. When we got there she told us she has done a Will so she wants I and Stephen Sarfo when she is not alive we should share her properties. After what she said, the lawyer told us to sign at a certain portion of the paper. After signing, we went to our homes. Q. According to your Witness Statement, which you have tendered in this Court this morning, you signed before the testatrix signed. Not so. A. We were the last to sign the Will. Q. Then the woman signed last according to what you have stated at paragraph 9 of your Witness Statement. A. When we got to the house the lawyer read the Will to Madam Choochoo Yarboye. After the reading of the Will the lawyer asked Madam Chochoo Yarboye to thumb print on the Will. After Madam Choochoo Yarboye’s thumbprint the other two persons present also signed. Q. Did you also sign a portion of the Will. A. Yes Page 10 of 30 Q. Can you name other persons who also signed this Will. A. Collins Acheampong, Mr Bawuah Boateng (deceased) and Mr. Stephen Sarfo. We were five in number that signed the Will. Further Q. I am putting it to you that by paragraph 9 of your Witness Statement the testatrix signed last. A. It was in the year 2001-2002 so I cannot remember exactly what happened. Q. I am putting it to you that by your own evidence before this court in paragraph 9 of your Witness Statement, the Will was not properly attested to. A. The lawyer was present and we signed before the lawyer. Q. I am putting it to you that on the contrary Esther Choochoo Yarboye should have invited or requested Collings Acheampong and Bawuah Boateng to sign the Will in her presence and in the presence of the two people after she had signed. A. I cannot tell. [21] As said earlier, the 1st Plaintiff evidence-in-chief contradicts his evidence under cross examination in respect of the sequence of signing of the Will. In his Witness Statement he said that the contents of the Will were read to the Testatrix and explained to her in Twi, after which Bawuah Boateng and Collings Acheampong (PW2) signed and the Testatrix also thumb printed the Will. What is the effect of these contradictions on the determination of the validity of the Will presented by the Plaintiffs? [22] The relevant provision in relation to the instant suit is Section 2(3) and (5) of Act 360, which provides that: Page 11 of 30 (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. (5) The witnesses shall attest and sign the will in the presence of the testator, but no form of attestation shall be necessary. [23] On the face of the Will, the marks that appear on it are the thumbprint of the Testatrix and the signatures of the two attesting, as well as that of the lawyer Akoto who prepared it. PW1 and the other executor, 2nd Plaintiff, do not have their signatures on it. What this means is that the Plaintiffs, as executors, did not sign the Will. The evidence on record is that the Plaintiffs were not invited to sign as attesting witnesses. They were invited and informed by the testatrix that they would be the Executors. In my view, the contradictions in the testimony of PW1 as to his signing the document and the sequence of signing by the testatrix and attesting witnesses are inconsequential to the validity of the will. The law requires that the attesting witnesses must be present at and sign at the time as the Testatrix and in the presence of the testatrix. [24] The facts of the instant case are similar to those of Mary Quarcoo and Anor vrs Mrs. Victoria Welbeck and Anor (supra), where the Supreme Court found inconsequential contradictions regarding the sequence of signing a Will by the testator and the attesting witnesses. For a fuller understanding of the issues, I will quote extensively from Ansah JSC’s recount of the facts and the conclusion drawn: The central issue in this case is the validity of the Will and codicil which the deceased testator executed in 1985 and 1989 respectively. The only evidence adduced to excite the trial court’s suspicion is the sequence the witness took in signing, to attest that they witnessed the signature of the testator. The case of the Appellants is that the evidence of PW1 and PW2 were conflicting and contradicted each other. PW1, Mr. James Edmund Aryee Addo at pages 19 and 20 of the record Page 12 of 30 of appeal stated as follows: ‘the deceased told me he would like to invite me to his house for an important discussion. … I went to see the deceased. The deceased invited me to his sitting room. I found already seated with the deceased, one Lawyer Addo and one Mr. Hammond. The deceased said he had made a will and that he would like Mr. Hammond and I to be witnesses to the will. I thought of it for some time and eventually decided to be a witness to the will because I had known him for years and was a family and close friend to my father. Mr. Hammond also agreed to be a witness to the deceased’s will. The deceased got up into the bedroom and brought out certain documents. The deceased gave the document to Lawyer Addo. Lawyer Addo got the document and went through and said it was the deceased’s will. In order to make sure of what I was to sign I collected the document and read the ‘headline’. I agreed and signed as a witness. Mr. Hammond also signed. The deceased, the late Ashong, also signed. Thereafter the deceased went into his bedroom and brought out a bottle of schnapps. He opened the drink, poured libation, and shared the drink…” Mr. Samuel Ashietey Hammond’s account of the signing as a witness is found at page 21 of the record of Appeal and it was as follows: “…He sent for me to come and be a witness in respect of a document - a will that he had prepared. When I got there I signed because he asked me to sign to be a witness to the document. When I got there I saw Mr. Ashong (deceased), Lawyer Addo and another Addo. The last Addo, was PW1, who had just given evidence. When I got there the paper was there I signed and Addo also signed. Mr. Ashong signed and Mr. Addo PW1 (signed) Lawyer Addo also signed and I also signed the will. After that we all departed.” Both witnesses gave account of how they were called on the 15/07/89 to witness the codicil. Section 2 (3) of the Wills Act 1971 (Act 360) states that: Page 13 of 30 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”. I am of the opinion that all the two witnesses were present when the testator signed the will. This can be gleaned from the evidence of both PW1 and PW2. Therefore any inconsistencies in relation to the sequence of the signature of the testator and that of the witnesses are of negligible legal consequences, if any at all. The relevant provision of Act 360 that is engaged here has not been breached. The requirement is that a testator signs or acknowledges his signature in the presence of two or more witnesses who must also sign to attest same. In the instant matter the testator signed his signature in the presence of the two witnesses as recounted above. There cannot be any difficulty on the part of the witnesses to identify the signature of the testator as per their evidence they saw him sign the will. The other requirement that both witnesses must be present at the same time when witnessing signature has also not been breached. From the evidence, both witnesses stated that Lawyer Addo signed the will. This is not borne out on the face of the will and hence it is immaterial whether it was at the back of the will or, or the envelope in which the will was placed. Clearly if Lawyer Addo signed the will, a fact which is not borne by the evidence, he could not have signed as a witness as he drafted the will as the legal representative of the testator…” [25] In the present case, under cross-examination of the 1st Plaintiff by Counsel for the Defendant, the following ensued: Q. I am putting it to you that by paragraph 9 of your Witness Statement, the testatrix signed last. A. It was in the year 2001-2002 so I cannot remember exactly what happened. Q. I am putting it to you that by your own evidence before this court in paragraph 9 of your Witness Statement, the Will was not properly attested to. Page 14 of 30 A. The lawyer was present and we signed before the lawyer. Q. I am putting it to you that on the contrary Esther Choochoo Yarboye should have invited or requested Collings Acheampong and Bawuah Boateng to sign the Will in her presence and in the presence of the two people after she had signed. A. I cannot tell. [26] From the line of cross-examination, the suggestion is being made that because the attesting witnesses signed the will before the Testatrix thumb-printed, the Will was not properly attested to and as such is invalid. [27] Section 2(3) of The Wills Act provides: 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. [28] This provision does not specify any particular mention or emphasise the required sequence or positioning of the signatures. The law requires that all witnesses and the testator must be present at the same time, without any specific mention or emphasis on the sequence or positioning of signatures. [29] This position was affirmed by Ansah JSC in the Mary Quarcoo and Anor vrs Mrs. Victoria Welbeck and Anor case when he held that: Therefore, any inconsistencies in relation to the sequence of the signature of the testator and that of the witnesses are of negligible legal consequences, if any at all. The relevant provision of Act 360 that is engaged here has not been breached. The requirement is that a testator signs or acknowledges his signature in the presence of two or more witnesses who must also sign to attest same. [30] The 1st Plaintiff and PW1 testified that they were present when the testatrix thumb- printed the Will. On the evidence, the two attesting witnesses, PW2 and Bawauh Boateng, were present at the same time and witnessed the testatrix thumbprint the Will. They also Page 15 of 30 signed simultaneously in the presence of the testatrix. PW2 recognised the Will as the one to which they affixed their signatures and acknowledged their signatures thereon. The testatrix thumb-printed in their presence. Although the witnesses may have signed before the testatrix thumb-printed, both were part of the same transaction, and in my view, witnesses signing before the testatrix does not invalidate the Will if they were done within a short period as a continuous process. The purpose of the witnesses’ presence is to witness or see the testatrix sign or acknowledge her signature. Therefore, the sequence of signing is not material if it was all part of one continuous transaction. [31] Concerning the mental state of the testatrix at the time of execution of the Will, the 1st Plaintiff, who knew the testatrix over a period and both attended the Nsukwa congregation of the Jehovah's Witnesses Church at Nsukwa, Koforidua the and was present when the Testatrix executed the Will, testified that, although Esther Choochoo Yarboye was old, she was healthy and of sound mind. 1st Plaintiff testified as follows: Madam Yarboye was old but not sick. She could walk and move by herself. She attended teachings by herself without any assistance. PWI corroborated this piece of evidence. [32] On the evidence, I am satisfied that Exhibit E was executed in accordance with the Wills Act, Act 360. The Plaintiffs have been able to discharge the burden placed on them to prove that the Will was executed in accordance with the requirements of Act 360. The burden of proof now shifts to the Defendants, who are alleging that the document, exhibit ‘E’ is a forgery and does not meet the requirements of the Act 360. They must prove that the Will is a forgery, and the proof is one beyond reasonable doubt since it is an allegation of a crime in a civil matter. [33] Section 13(1) of NRCD 323 provides as follows: Page 16 of 30 “In a civil or criminal action, the burden of persuasion as to the commission of a crime by a party of a crime which is directly in issue requires proof beyond reasonable doubt,” Section 14 also provides as follows: “14. Allocation of burden of persuasion Except as otherwise provided by law, unless 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 that party is asserting.” 15. Burden of Persuasion Unless it is shifted, (a) The party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue. 17. Allocation of burden of persuasion Except as otherwise provided by law (a) The burden of producing evidence on a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. And Section 10 (1) of the Act explains ‘burden of persuasion” as follows: For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Page 17 of 30 [34] In Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 at 903 Brobbey JSC held as follows: “It is provided by the Evidence Act, 1975 (NRCD 323), s.13 (1) that: “In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt “ This rule in section 13(1) of the Evidence Act 1975 emphasis that where in a civil case a crime is pleaded or alleged, the standard of proof changes from the civil one of balance of the probabilities to the criminal one of proof beyond reasonable doubt.” [35] By the terms of section 13(1), and the decisional authorities, where in a civil action it is alleged that a crime has been committed, that allegation should be proved to the same standard or degree as the onus of proof on the prosecution in a criminal case. This means that regardless of whether the case is a civil one, the allegation of crime in the trial should be proved beyond reasonable doubt. And the law is that it is the person who alleges that a person has committed a criminal offence who has the burden of persuasion to prove the allegation of the crime. Section 15 (1) of the Evidence Act 1975 NRCD 323 states that: - Unless and until it is shifted, the party claiming that a person is guilty of a crime or wrongdoing has the burden of persuasion on that issue. [36] The law is that fraud must be pleaded and proved. Order 11 rule 8(1) of the High Court (Civil Procedure) Rule, 2004 (C.I. 47) provides as follows: Page 18 of 30 8. (1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality (a) which the party alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise. [37] The particulars of fraud provided by the Defendants in their Statement of Defence paragraph 5 are as follows: “5. Save and except that Defendants are relatives of the Late Esther Chochoo Yarboye and it is alleged in the Will THAT THE 1ST Defendant is a beneficiary of the said estate, the 1st Defendant is of the view that the said Will is a fraudulent Will. PARTICULARS OF FRAUD a. That the Plaintiffs knew or ought to have known that in and around 1998/99/2001 the late Esther Chochoo Yarboye was bedridden and was so ill that she could not do anything for herself, she was always carried about to natures call, she could not talk until she died in 2004, consequently she did not make that Will. b. That the Plaintiffs knew or ought to have known that the thumbprint appearing at page 1 of the alleged Will at the lower right corner is not the thumbprint of the testatrix and it is complete forgery and the 1st Defendant has a document which the testatrix on 18th August 2002 wrote and thumb printed concerning her funeral and comparing that thumb print to the one Page 19 of 30 on the Will, one does not need a magnifying glass to notice the forgery perpetrated by Emmanuel Adeku. c. That the Jurat has errors like “he” instead of she and mistake like Testator instead of Testatrix and furthermore the testatrix was born and bred GA woman and the common cognomen is for the Jurat to be done in Ga language rather than Twi. d. Furthermore, the Ablu We family of Teshie who are the Paternal side of the alleged Testatrix in a Writ of Summons and Statement of Claim issued in suit No. FAL/538/12 entitled JOSEPH AYI AGO vrs NII GA TETTEH & 2 OTHERS at paragraph 32 of the Statement of Claim contended thus “Plaintiff says that Mrs. Esther Chochoo Yarboye died intestate and that the properties of her estate must be distributed according to the provisions of PNDCL 111. [38] Section 1(3) of the Wills Act, provides as follows: “A Will, or a provision of a Will, obtained by fraud or made under duress or undue influence, is void.” [39] Therefore, if the defendants are able to prove their allegation of fraud, this court will have no discretion in the matter and will declare Exhibit ‘E’ invalid and void. The particulars of fraud which the Defendants gave in paragraph 7 of the Statement of Defence was denied by the Plaintiffs in their reply, paragraph 3 thereof. [40] It is pleaded at paragraph 3 of Plaintiffs’ reply filed on 16 March 2021 as follows: Plaintiffs deny paragraph 5 of the statement of defence and the particulars of fraud therein and will put Defendants to strict proof of the averments therein. Page 20 of 30 [41] The effect of the denial in the reply is that a duty was cast upon the Defendants to adduce sufficient and credible evidence to prove whatever allegation of fraud that the statement of defence makes, particularly in the said paragraph 5, as required by sections 12,13,14 and 17 of the Evidence Act. [42] In Memuna Moudy & Ors v Antwi [2003-2004] SCGLR 967 AT 974 -975 WOOD JSC (as she then was) commented on the burden placed on a party making an allegation which is disputed as that: “A person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he doesn’t discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred.” [43] In the case of Ackah v Pergah Transport Ltd & Others [2010] SCGLR 728 at 736 the Supreme Court per Adinyira JSC opined as follows: It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be. [44] In Mojalagbe v Larbi & Ors [1959] GLR 190 the court defined proof in the following terms: Proof in law is establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, Page 21 of 30 description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true. [45] The principle in Mojalagbe v Larbi has been explained by the Supreme Court in Sarpong (decd) (substituted by) Kodua v Jantuah [2019-2020] I SCGLR 736. THE COURT Per Benin JSC stated the principle as follows: Again, counsel was stretching the principle in Mojalagbe v Larbi [1975] GLR 190 out of context. That principle did not mean that the party should not and cannot repeat what he had pleaded, what the principle meant was that a party should lead such evidence as would constitute proof in law. It is observed that a party is required to stick to his pleadings when giving evidence, so there is nothing wrong if he repeats on oath what he has pleaded; the only consideration by the court is that what has been said on oath is sufficient to discharge the burden of persuasion that lies on him. [46] Apart from repeating the allegation of fraud on oath in the witness box, the Defendants did not lead any further evidence in proof of the allegation of fraud. The repetition of the averments of the Defendants on oath in my view did not constitute sufficient evidence in proof of their allegation of fraud against the execution of the Will of the Testatrix. [47] The Defendants subpoenaed an expert witness to compare the thumbprint of the testatrix on the Will and her thumbprint on an indenture attached to a land certificate in the name of the testatrix. The report of the expert was tendered in evidence as Exhibit 3. Exhibit 3 reads: Page 22 of 30 2. I return herewith the following thumb print documents received from your outfit for examination and analysis; Original copy of Land Certificate number GA. 45264 ORIGINAL COPY OF LAST Will and Testament of ESTHER CHOCHOO YARBOYE dated 24/06/2002 3. RESULTS OF COMPARISON The thumbprint against the name ESTHER CHOCHOO YARBOYE on the document mentioned in paragraph 2(b) is blurred and does not support effective ridgeology analysis. [48] The expert was not able to analyse the thumb print and could to come to a conclusion whether the thumb print on the Will was not that of the Testatrix as alleged by the Defendants. The evidence of the Defendants at the trial fell short of discharging the evidential burden placed on them and required in proof of an allegation of fraud. [49] On the evidence, the Plaintiffs have been able to discharge the burden placed on them to prove that the Will of the late Esther Chochoo Yarboye was executed in accordance with the requirements of Act 360. The evidence led by Defendants in proof of the allegation of fraud against the execution of the Will was insufficient to meet the standard required by law in criminal case i.e., proof beyond reasonable doubt. I find and hold that the Will of the Testatrix Esther Chochoo Yarboye is valid and was executed in accordance with Act 360. [50] I will examine issues 2 and 3 together as they are related. 2. Whether or not the Defendants have intermeddled with the estate of the deceased Esther Chochoo Yarboye. Page 23 of 30 3. Whether or not the Defendants are accountable for the dealings with the estate of Esther Chochoo Yarboye, deceased. [51] It is the case of the Plaintiffs that the Defendants have intermeddled in the estate of the Testatrix and, as a consequence, are liable to account for their dealings. [52] Order 66 rule 3 CI 47 provides as follows: “Where any person, other that the person named as executor in a will or appointed by Court to administer the estate of a deceased person , takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.” [53] In Impraim v Baffoe [1980] GLR 520 Okunor J. held as follows: “Any person who, not having been appointed executor of a will, either expressly or by implication, intermeddled with the goods of the deceased in such a manner as to show an intention of exercising the authority of an executor, might make himself liable as an executor de son tort. Very slight acts of intermeddling would make a person executor de son tort, for example receiving debts due to the estate. In the present case, the defendant confessed to collecting rents due to the estate. The executor de son tort was liable to be sued by the rightful executor or administrator or by a legatee. He had to account to the personal representatives and would thus put an end to his liability except as regarded outstanding legal actions.” Page 24 of 30 [54] The testimony of the 1st Plaintiff is that the family members of the Testatrix moved to occupy and manage her properties and after the probate was granted, the family members who are the Defendants in this matter still refused to hand over the properties for the Plaintiffs to administer and they have also refused to render accounts. The defendants denied having intermeddled in the estate of the deceased. [55] The 1st Defendant testified that after the death of Esther Chochoo Yarboye he has not been collecting rent from the house. This is his evidence under cross -examination Q. In paragraph 3 of your Witness Statement you make reference to “Our House” is this the late Esther Chochoo Yarboye’s house. A. Yes. I live in Esther Chochoo Yarboye’s house. Q. Tell the Court how many rooms are in the house. A. Six Chamber and Halls and seven single rooms. Q. How many of these rooms are occupied by tenants. A. Five Chamber and halls and single rooms. Q. You have stated that you have been authorised to manage the property. With the exception of three tenants, you collect rent from all the tenants in this property. Not so? A. Yes Q. Since 2016/2017 when you claim you first heard of Esther Chochoo Yaaboye’s Will, have you rendered any accounts to the Plaintiffs herein who are the executors of the Will? Page 25 of 30 A. No, since 1979 to 2004 I was given charge of the late Esther Chochoo Yaaboye’s house in Accra and I have documents on the house. When the late Esther Chochoo Yarboye passed on I reminded the Plaintiffs of the documents that she brought to us concerning what should be done in the case of her demise but family were in opposition to what I said and asked me not to set foot in their house ever again. Therefore since then I have not been there and I am not the one collecting the rent for those rooms since 2004. The Plaintiffs are the ones collecting the rents now. When I was summoned with the intention that I have to make accounts for rent collected I did not understand because the rents were being collected by the Ablu We Family. Q. You have stated that you did not give out any of the rooms for rent. Is that correct? A. Yes. Q. Tell this Court what happened to Esther Chochoo Yaaboye’s kente, other clothing items and cooking utensils that she made mention in her Will. A. After the late Esther Chochoo Yaaboye funeral the women from the maternal family were in charge of keeping things like her clothing in good condition but after some time when it was realized that some of these materials were fading they called a family gathering and they were distributed to family members and that is according to the traditions of the Gas. [56] In the circumstances where the Defendants have denied intermeddling in the estate of the deceased, the Plaintiffs bore the burden of proof on that allegation. However, under cross-examination, 1st Plaintiff could not name the specific family members who occupied the property and managed it. This is what he said: Page 26 of 30 Q. How soon after the death of Esther Chochoo Yarboye did the family members start managing the property. A. I cannot tell. Q. I am putting it to you that you are not helping yourself in this court at all. All your answers as “I cannot tell”. A. I now say after three years the family members came to occupy the property. Q. What did the family members do when they occupied the house. And which family members. A. I live at Koforidua so the people who went to live in the property I cannot tell. Further Q. Since you cannot tell which family members occupy the house, then you cannot also tell if they collected rent from the property. A. I do not know. I cannot tell. [57] PW1 also could not name specifically anyone who has collected rent from the house, which forms part of the estate of the testatrix or intermeddled in the estate of the testatrix. This is his testimony under cross-examination: Q. Do you have a record of the rent which was collected by the Defendants? A. No. Q. Do you have a proof that they have mismanaged the moneys which were collected from the house? A. The Ablu We family are saying that they have not received any accounts from Chochoo’s family. Further Page 27 of 30 Q. Where is the proof. You are saying in paragraph 14 of your Witness Statement that they have refused to account for their stewardship. A. I do not have anything to prove. [58] The evidence on record is that PW1 collected rent from the property from 2004-2006. Under cross-examination of PW1, the following took place: Q. You told the Ablu We Family that you were the one who buried Esther Chochoo Yarboye and they allowed you to collect the rent from the property in dispute. Not so? A. That is not true. I did not ask them anything. The family told me to collect rent to pay off the loan I took for the funeral. Q. You collected rent from 2004-2006 from the property in dispute. Not so? A. I agree that I took rent from the property in dispute but I cannot remember the year. [59] On the evidence, the Plaintiffs have failed to establish that all the Defendants have intermeddled in the estate of the deceased. [60] However, the 2nd Defendant admitted taking rents from the tenants living in the house. This is his testimony under cross-examination. Q. You informed this Court that you reside in Teshie. Is it the same house that belongs to the late Esther Chochoo Yarboye? A. Yes, it is the same house I live in. Q. Since when have you lived in this house? A. I have been living there since the 2nd week of September 1985. I came to live there with my mother. Page 28 of 30 Q. Tell this Court, since when have you been collecting rent with regard to the property. A. I started taking the rent for the house after the Ablu We family stopped Emmanuel Yarboye from taking the rent, that was the year 2006. I take the rent and give it to the Ablu We family. Q. You are telling this Court that you have been collecting rent on the late Esther Chochoo Yarboye’s house since 2006. Not so? A. Yes, that is so. I have been giving the money to Ablu We family till about 2008 and normally I give the money to two persons namely joseph Ayi Ago and Atta Oko Omaboe. One time in 2008 when I took the money to the Ablu We family Atta Oko Omaboe told me that the money I brought for the previous month had not been given to him. Q. Currently, you still collect rent from the said house. A. Yes, currently I still collect rent from the said house. Q. Do you still collect rent on behalf of the Ablu We Family. A. No. [61] From the 2nd Defendant's own testimony, he currently takes rent from the property which forms part of the estate, when he is not an executor nor an administrator of the estate of the deceased. The law is that where the evidence of one party on an issue is corroborated by the evidence of the opponent or the opponent’s witness, while that of the opponent on the same issue stands uncorroborated, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some reason(which must appear on the face of the record) the court finds the corroborated one incredible or impossible. See Augustine Yaw Manu v Elizabeth Ama Nsiah [2006] 3 MLR SC. Page 29 of 30 [62] In the instant case, the evidence of the 2nd Defendant corroborates the evidence of the Plaintiff that 2nd Defendant has intermeddled in the estate of the testatrix and I have no reason not to accept the uncorroborated version of the 2nd Defendant, On the evidence I am satisfied and hold that the 2nd Defendant has intermeddled in the estate of the deceased and is liable to account for all the rents he has taken from the property since 2006. [63] In conclusion, I enter judgment for the Plaintiffs as follows: 1. That last Will and Testament was validly executed in accordance with the provisions of the Wills Act, Act 360. 2. I find the Defendants liable for intermeddling in the estate of the deceased. 3. The 2nd Defendant is to account for all the rents he has collected from the property since 2006 and pay all rents collected to the Plaintiffs as executors of the Will within 90 days from date of judgment. 4. The Defendants by themselves, servants, assigns, agents howsoever described are restrained from intermeddling in the estate of the late Esther Chochoo Yarboye who died on 2 October 2004. 5. Costs of Ghs15,000.00 in favour of the Plaintiffs and against the Defendants. (SGD.) AYITEY ARMAH-TETTEH (JUSTICE OF THE HIGH COURT) Page 30 of 30