Otoo and Another v Otabil and Others (PA/1258/2021) [2025] GHAHC 114 (17 January 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX, PROBATE AND LETTERS OF ADMINISTRATION DIVISION, COURT ‘1’ HELD IN ACCRA ON 17TH JANUARY, 2025 BEFORE HER LADYSHIP JUSTICE EUDORA CHRISTINA DADSON(MRS), JUSTICE OF THE HIGH COURT SUIT NO. PA/1258/2021 1. FLORENCE OTOO } 2. JONATHAN AYAA TAGOE } (SUING AS EXECUTORS OF LAST WILL }…PLAINTIFFS AND TESTAMENT OF EKOW STARR WILLIAM } VS 1. WILLIAM KWESI AIKINS OTABIL } 2. BRIGHT OKO AFFUL } H/NO. G8, COMMUNITY 4 }…DEFENDANTS TEMA } 3. ABSA BANK GHANA LTD. } HEAD OFFICE } HIGH STREET - ACCRA } --------------------------------------------------------------------------------------------------------------------- PARTIES: PLAINTIFF PRESENT 2ND DEFENDANT PRESENT 1ST DEFENDANT REPRESENTED BY JOANA SACKEYFIO PRESENT 3RD DEFENDANT REPRESENTED BY JOHN ALLOTEY HAMMOND PRESENT COUNSEL: DEBORAH OFORIWA ADU HOLDING BRIEF FOR MAXWELL MENSAH CLOTTEY FOR THE PLAINTIFFS PRESENT LOM NUKU AHLIJAH FOR THE 1ST & 2ND DEFENDANTS PRESENT GENEVIVE BOSUMTWI-SAM WITH JENNIFER GYABENG HOLDING BRIEF FOR ALBERT GYAN FOR THE 3RD DEFENDANT PRESENT -------------------------------------------------------------------------------------------------------------------- SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 1 of 55 JUDGMENT --------------------------------------------------------------------------------------------------------------------- [1] Introduction It is apposite to commence this Judgment by quoting Twum JSC (as he then was) in the case of In re Agyekum (Decd); Agyekum vs Tackie & Brown [2005-2006] SCGLR 851 who delivered himself thus: Where fraud is alleged, it is a different thing, for fraud vitiates every act or deed put forward as supporting a transaction or even a judgment of a court. But where fraud is alleged (and we may include duress and undue influence) they must be pleaded with the requisite particularity. Vague allegations of uncommon, unusual, or even unconscionable dispositions of his own property by a testator, induced by logic rather than facts properly pleaded, should be firmly ignored! The Courts have a duty to sustain the disposition of a deceased person made in a Will which prima facie, satisfies the statutory requirements of due preparation and execution.” Cockburn, C.J. said: “The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of the new ties, or artful contrivance, or sinister influences, may lead to the neglect of claims that ought to be attended to, yet, instincts, affections and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, that could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law1.” The Plaintiffs seek a declaration that the 1st and 2nd Defendants fraudulently obtained Letters of Administration in respect of the estate of Ekow Starr Williams on 10th November 2020. The Plaintiffs contend that the deceased died testate. The 1st and 2nd Defendants counterclaimed for a declaration that the letters of administration obtained by the 1st and 2nd Defendants is valid and that the document purported to be the Last Will 1 Banks v. Goodfellow: [1870] L. R. Q. B. 549 at 564 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 2 of 55 and Testament of Starr Ekow Williams is a forgery and does not represent the testamentary wishes of the late Starr Ekwaw Williams-Afful. [1.1] The Claim & Counterclaim The Plaintiff issued a Writ of Summons and a Statement of Claim on 1st July, 2021 for the following reliefs; a. “A declaration that the Letters of Administration granted to 1st and 2nd Defendants herein in respect of Ekow Starr William (deceased) on 10th November, 2020 by the High Court was obtained by fraud. b. An order setting aside and revoking the said Letters of Administration. c. A perpetual injunction restraining the 1st and 2nd Defendants from parading themselves as administrators of the said estate of Ekow Starr Williams (deceased) of Accra. d. A restoration of the accounts of the deceased and refund of all monies illegally withdrawn from the said account with interests. e. Fees and Damages especially legal fees to this suit.” The claim of the Plaintiffs was met with a Statement of Defence by the Defendants in which the Plaintiffs claim was denied. The 1st and 2nd Defendants filed their Statement of Defence on 30th July 2021 and Counterclaimed as follows per paragraph 29 as follows: a. A declaration that the Letters of Administration obtained by the 1st and 2nd Defendants is valid in all respects under Ghanaian Law. b. A declaration that the document purported to be the Last Will and Testament of Starr Ekow Williams is a forgery and does not represent the testamentary wishes of the late Starr Ekwaw Williams-Afful. c. An order to recover possession of H/No. Merchandy Estates, Gbawe which forms part of the estate of Starr Ekwaw Williams-Afful. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 3 of 55 d. An order for recovery of possession of the two vehicles (2014 Pontiac Vibe with registration number GX 1712-19 and 2006 Ford Fiesta with registration number GW 4646-14) belonging to the late Starr Ekwaw Williams-Afful; and e. A perpetual injunction restraining the Plaintiffs, their agents and assigns from having any further dealings with the said house located at H/No. 7 Merchandy Estates, Gbawe as well as all other assets forming part of the estate of the deceased Starr Ekwaw Williams-Afful. The 3rd Defendant entered appearance on 26th August, 2021 and filed its Statement of Defence on 15th September, 2021. The Plaintiff filed a Reply and defence to counterclaim on 17th December, 2021. [2] The Plaintiffs’ Case The Plaintiffs per their pleadings state they are the joint Executors of the Last Will and Testament of Ekow Starr William who died on 8th August 2020. The Plaintiffs pleaded that the 1st and 2nd Defendants are persons holding themselves as distant relatives to the deceased and have falsely applied and obtained Letters of Administration from the High Court which they have used to dissipate all bank accounts of the deceased. The 3rd Defendants are the bankers and custodians of funds of the deceased Ekow Starr Williams from which the 1st and 2nd Defendants made withdrawals. The Plaintiffs state that the notice of the Will was completely ignored by the 1st and 2nd Defendants who had gone for Letters of Administration from the High Court fraudulently as they were much aware that the late Starr Wiliams died testate. The Plaintiff proceeded in paragraphs 8 (i) to (vi) to particularize fraud. [3.1] The 1st & 2nd Defendants’ Case The 1st and 2nd Defendants pleaded that the 1st Plaintiff was a caregiver appointed by the family of the deceased to take care of Akweley Williams, the deceased mother Starr SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 4 of 55 Ekwaw Williams-Afful whilst he was unwell and the 2nd Plaintiff is the husband of the 1st Plaintiff. The 1st and 2nd Defendants further pleaded that a cousin of the deceased Eunice Biritwum interviewed the 1st Plaintiff in October 2014 to be the caregiver for the deceased when he returned from the United States of America as the 1st Plaintiff was already taking care of the deceased’s mother. It is the case of 1st and 2nd Defendants that any withdrawals of money belonging to the estate of the deceased were authorized by the Court unlike the Plaintiffs who withdrew money from the account of the deceased without the authorization of the Court. The 1st and 2nd Defendants further averred that: “The 1st and 2nd Defendants deny paragraphs 4 of the Statement of Claim and shall subject the Plaintiffs to strict proof thereof. In further answer to Paragraph 4 of the Statement of Claim, the 1st and 2nd Defendants state that they have examined the document the Plaintiffs are purporting to be the Last Will and Testament of the deceased and have found that the signature on the document is not the signature of the deceased. In addition, the deceased’s name as spelt on the document is different from the manner in which the deceased’s name was spelt throughout his life and the deceased will not have appended his signature to a document which bore a name which was different from his own.” The 1st and 2nd Defendants avers that the document being relied on by the Plaintiffs is not the Last Will and Testament of the deceased person whose estate they have been appointed by the courts to administer. The document purports to be the Last Will and Testament of one Ekow Starr-Williams, which is a different person from Starr Ekwaw Williams-Afful whose estate the 1st and 2nd Defendants have been appointed to administer. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 5 of 55 It is the 1st and 2nd Defendants’ case that notice of the existence of the purported Will was only brought to their attention by a letter from the Plaintiffs’ solicitor dated 24th March 2021 which is subsequent to the date on which the 1st and 2nd Defendants were appointed by the Court to administer the estate. The 1st and 2nd Defendants are direct relatives of the deceased appointed by the deceased family to apply for Letters of administration with respect to the deceased’s estate. Moreover the 2nd Defendant was in regular contact with the deceased when he was alive. The Plaintiffs were merely staying with him as caregivers and were paid to stay with him for that purpose alone. The 1st and 2nd Defendants particularized fraud as follows: - The Will of the deceased read on 8th April 2021 is not the last Will and Testament of the deceased. -The Will was not signed by the deceased - The name of the deceased as spelt in the alleged Last Will and Testament is not the name of the deceased [3.2] The 3rd Defendant’s case The 3rd Defendant contends that it does not hold any account in the name of the deceased Ekow Starr Williams and has subsequently not processed Letters of Administration in respect of the named deceased. Since it does not hold an account in the name of the deceased Ekow Starr William the Plaintiffs have no cause of action against it. The 3rd Defendant averred that it is a law abiding and regulatory compliant entity which abides by validly executed orders granted by the Court, including Letters of Administration. [4] Issues SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 6 of 55 At the application for direction stage on 27th April, 2022 the Court set down the following issues for determination of the case: 1. “Whether or not Ekow Starr William (deceased) died testate leaving behind a Will that names the Plaintiffs as his executors and administrators dated July, 3rd 2019? 2. Whether or not the Plaintiffs were mentioned in the Will as the Executrix(sic)? 3. Whether or not the said Will was procured by fraud? 4. Whether or not the Letters of Administration obtained by the Defendants was by fraudulent means? 5. Whether or not the said Ekow Starr William had a bank account with the 3rd Defendant bank? 6. Whether or not the said Ekow Starr William (deceased) on his demise left in the said account money amounting to over GH¢200,000.00? 7. Whether or not the said amount was withdrawn by the 1st and 2nd Defendants with the connivance of 3rd Defendant Bank in or about February, 2021? 8. Whether or not the said 3rd Defendant Bank were negligent in allowing 1st and 2nd Defendants to withdraw the said money without exercising due diligence? 9. Whether or not the Plaintiffs are entitled to their claims? 10. Any other issues arising from the pleadings? Additional issues: 1. Whether the said Ekow Starr William is the same person as Starr Ekwaw Williams Afful whose estate the 1st and 2nd Defendants have been appointed to administer. 2. Whether the last Will and Testament being propounded by the Plaintiffs is the last Will and Testament of Starr Ekwaw Williams Afful (Deceased) “. [4.1] Case management conference SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 7 of 55 After setting down the above issues, the Court ordered the parties to file their respective witness statements and attach all documents they intended to rely on in the trial. The parties duly complied and after Case Management Conference the matter was set down for trial. The Plaintiffs testified and called two witnesses, Francisca Djan and Daniel Opoku. The Plaintiffs subpoenaed John Aidoo Esq. to testify on the preparation of the Will and the Registrar of the Court to tender in evidence the original Will in the custody of the Court. The 1st and 2nd Defendants’ evidence was proffered by the 2nd Defendant and the Defendants called two witnesses Alhaji Bukari Yakubu and Eunice Biritwum. The 3rd Defendant testified through Raymond Dodoo and called no witness. After completion of hearing the Plaintiffs’, Counsel filed his address on 27th June, 2024 and the 1st and 2nd Defendants’ Counsel filed his address on 28th June, 2024 and the 3rd Defendant’s Counsel filed his address on 11th July, 2024. [5] Overriding issue In the case of Sam Quarshie vs Eddie Kusi Ankomah (Civil Appeal: No. J4/59/2022) 10th May 2023, the Supreme Court speaking through Pwamang JSC delivered itself thus: “From the above, a crucial fact in issue that has to be determined before a just decision can be given in this case is; whether the land in dispute falls within the plaintiff’s site plan contained in his lease or it lies outside it? This issue was not distinctly set down for determination in this manner at the application for directions, but it constitutes the crux of the dispute since the parties have a common grantor and the lands of the parties are said to share a common boundary. Unfortunately, both the lower court and the trial court failed to identify this issue and to address it. The talk about a road passing through the land of the plaintiff which reduced the size of land he was granted was diversionary and not germane on the facts here. “ In the case of Fattal v Wolley [2013-2014] 2SCGLR 1070 at p. 1076, Georgina Wood, C J said as follows; SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 8 of 55 “Admittedly, it is, indeed, sound basic learning that courts are not tired down to only the issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot, or even not germane to the action under trial, there is no duty cast upon the court to receive evidence and adjudicate upon it. The converse is equally true. If a crucial issue is left out, but emanates at the trial from the pleadings or the evidence, the court cannot refuse to address it on the ground that it is not included in the agreed issues.” Despite the voluminous issues that were set down for trial, after examining the pleadings filed and the evidences that have been led in this matter the main issue that stands out is “whether the Last Will and Testament of Ekow Starr-Williams is invalid”. In my opinion the resolution of this issue would deal conclusively with issues 1, 2, 3 and additional issue 2 and render some of the other issues redundant. I will therefore proceed to deal with this issue in accordance with the law on the subject and the evidence led in this Court. [5.1] Counterclaim The nature of the 1st and 2nd Defendants’ burden in the Counter-claim which is a suit on its own has been more appropriately captured by the dictum of Brobbey JSC (as he then was) in In Re Ashalley Botwe Lands Adjetey Agbosu & Ors vs. Kotey & Ors. (2003 – 2004) SCGLR 420 where he stated thus: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence, the defendant must realize that the SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 9 of 55 determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose…” Counter-claim has been defined in Black’s Law Dictionary Eighth Edition, Bryan A. Garner as follows: “A claim for relief asserted against an opposing party after an original claim has been made2” In substance a counterclaim is a cross-action, and not merely a defence to the plaintiff’s claim. Instead of suing separately the defendant may insert his claim into the plaintiff’s suit under the label of counterclaim if it is of a kind which by law he is entitled to raise and have disposed of in the plaintiff’s suit3. In the case of Moru vs Huseini [2013] 59 GMJ 17 the meaning of counterclaim was well stated. Baffoe-Bonnie JSC delivered himself thus: “It is true that a counterclaim is a separate action from the claim. But in the peculiar circumstances of this case the bottom of the matter had been knocked off for want of capacity. If there was no capacity to sue because of the defective Power of Attorney then there was no capacity to defend the action. Any pleading served on the Attorney would be deemed not to have been not to have been properly served on the principal. To the extent that service of defendant’s counterclaim on the 2 See also the definition of counterclaim in Osborn’s Concise Law Dictionary Eighth Edition, Leslie Rutherford and Sheila Bone: page 3 Nwadialo F., Civil Procedure in Nigeria, Second edition, page 392 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 10 of 55 deficient attorney is deemed as no service, evidence given in proof of the counter-claim cannot be allowed to stand4”. It has been held in the case of 2000 Limited vs Francis Otoo [2018] DSLC 3300 at page 5 per Appau JSC that “the Appellant could only succeed in his counterclaim on the strength of his evidence as he called no witness. Though we do not deny the fact that the appellant’s success or failure did not depend on whether he called a witness or not, the standard of proof required that for the appellant to succeed on his counterclaim, he must lead satisfactory evidence, either by himself or otherwise which, on the balance of probabilities makes his case more probable than not” [5.2] Issues 1, 2, 3 and additional issue 2. Overriding issue: Whether the Last Will and Testament of Ekow Starr-Williams is invalid? I shall proceed to consider issues 1, 2, 3 and additional 2 together since they are interrelated. 1. “Whether or not Ekow Starr William (deceased) died testate leaving behind a Will that names the Plaintiffs as his executors and administrators dated July, 3rd 2019? 2. Whether or not the Plaintiffs were mentioned in the Will as the executrix? 3. Whether or not the said Will was procured by fraud? Additional issue 2 2. Whether the last Will and Testament being propounded by the Plaintiffs is the last Will and Testament of Starr Ekwaw Williams Afful (Deceased) “. [5.3] Court’s evaluation of the evidence and analysis 4 See also the cases of SASU BAMFO v. SINTIM [2012] 1 SCGLR 136 at 155 and ARYEH & AKAKPO v. AYAA IDDRISU [2010] SCGLR 891 at 901 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 11 of 55 The court shall determine the main issues as set out above based on the facts and evidence adduced at the trial. As an overriding issue, it does not raise any complex matters. But in determining the issue, one must look at the guidance laid down by case-law as to what burdens the parties carry and which particular burden is assumed by either of the parties. In the case of Johnson v. Maja (1951) 13 WACA 290 at 292 it was stated: “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, that 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.... the burden is then cast upon those who attack the will, and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth.” The 1st and 2nd Defendants’ case was that a search was conducted at the registry of the court to ascertain whether a will had been deposited by the deceased and the result was in the negative. According to the 1st and 2nd Defendants they had examined the document the Plaintiffs are purporting to be the Last Will and Testament of the deceased and found that the signature on the document is not the signature of the deceased and in addition the deceased’s name as spelt on the document is different from the manner in which the deceased’s name was spelt throughout his life and the deceased will not have appended his signature to a document which bore a name which was different from his own. Accordingly, as I see it, the evidential burden assumed by each side in view of the positions taken by the parties, is that the Plaintiffs must show that the purported Last Will and Testament, is the testamentary wish of the Deceased Testator; that he was compos mentis at the date of its execution and was a free agent; and, lastly, that it was executed and attested in accordance with the requirement laid down in section 2 of the SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 12 of 55 Wills Act, 1971 (Act 360). Upon showing this, the burden then shifts to the Defendants to prove the fraud and undue influence they allege5. The law is trite and same supported by statute that for a Court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the Court to the standard prescribed by law. This position is supported by various provisions of the Evidence Act 1975 (NRCD 323). Section 14 of NRCD 323 provides as follows: “(14). 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”. In the case of Thomas Tata Atanley Kofigah & 1 Other vs. Kofigah Francis Atanley & 1 other, Civil Appeal, Suit No: J4/05/2019, the Supreme Court speaking through Pwamang JSC stated as follows: “In Ghana, issues pertaining to Wills are regulated by statutes and these are the Wills Act, 1971 (Act 360) and Order 66 of C.I 47. Act 360 states the manner a Will shall be made for it to be valid, the custody and interpretation of Wills and related matters. Or 66 of C.I. 47 sets out the procedure to be adopted in applying for the grant probate to Wills and for trial of contentious probate matters. Where any person challenges the validity of the Will, she has two alternative ways of proceeding under the Rules. She may file a notice pursuant to Rules 26 of Order 66 calling on the executors to prove the Will in solemn form or to renounce probate. Executors prove a Will in solemn form by issuing a writ of summons against the person calling for it to be proved and praying the court to declare the Will valid. Rule 26(1) & (2) provide; 5 AKENTEN II AND ANOTHER V OSEI [1984-86]2 GLR 437 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 13 of 55 “26. (1) Where for any reason the executors of a will are in doubt as to its validity or the validity of the wills disputed, the executors may if they consider it necessary to do so, prove the will in solemn form in an action commenced by writ asking the Court to pronounce the will as valid. (2) Any person who claims to have an interest in the estate of a deceased person may by notice in writing request the executors named in the will of the deceased to prove the will in solemn form.” The alternative method is for the person challenging the validity of the Will to issue a writ of summons pursuant to Rule 28 (1) of Order 66 against the executors praying the court to declare the will invalid. The Rule is as follows; “28. (1) Any person who claims to have an interest in the estate of a deceased testator may, instead of issuing a notice to the executor to prove the will under rule 26 (2) of this Order, bring an action against the executor for a declaration that the will is invalid.” On the facts of this case, the plaintiffs who challenged the validity of the Will adopted the second method”. The 1st and 2nd Defendants in the present case are proceeding under Order 66 rule 28 of CI 47 seeking a declaration that the Will of the late Starr Ekwaw Williams Afful dated 24th July 2019 is invalid, null and void. There is a plethora of authorities on the main issue confronting the Court in this very case, that is whether the Will of the late Starr Ekwaw Williams Afful dated 24th July 2019 is invalid and fraudulent. I will therefore proceed to deal with this issue in accordance with the law on the subject and the evidence led in this Court. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 14 of 55 Section 2 of the Wills Act are the relevant sections of the Act that will help us resolve this issue. It provides 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. (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 shall declare in writing upon the will that he had so read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed. The relevant sub-sections for this case are subsections 1 and 3. The main elements for a valid execution of a will per these subsections are that the will must be: i. Signed by the testator; and ii. The signature of the testator must be made or acknowledged by him in the presence of two or more witnesses present at the same time. These provisions of the Wills Act have been the subject of litigation before the Courts and Courts have time and again emphasized the relevance of these provisions with respect to the validity of a will. Cases such as In re Okine (Decd); Dodoo v Okine [2003-2004] SCGLR 582, In re Agyekum (Decd); Agyekum v Tackie & Brown [2005-2006] SCGLR 851 and In re Blay-Miezah (Decd); Ako Adjei v Kells [2001-2002] SCGLR 339 are cases in point. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 15 of 55 In re Blay-Miezah (Decd); Ako Adjei v Kells case, the Supreme Court held inter alia that Sections 2(1), (3) and (5) of the Wills Act are mandatory requirements without which the court cannot hold the will valid. In the case of Akua Prempeh & 3 Ors vs. S.D.A. Oddai; Civil Appeal No. 5/2000, 14th May, 2003 the burden of proof in Wills was discussed. The Court stated as follows: “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 allegations they have made as to lack of capacity, undue influence and so forth.” In the case of In Re Ayayee (Decd); Kukubor and Another vs Ayayee [1982-83] GLR 866 the Court held as follows: “Since in the instant case, there was evidence casting suspicion around the execution of the will, the court would apply the rule in Barry v Butlin, namely, that a party propounding a will prepared by a person who took a benefit under it, had the burden of showing that the paper propounded expressed the true will of the deceased.(emphasis mine) That rule was not confined to the single case where a will was prepared by or on the instructions of one taking large benefits under it, but extended to all cases where circumstances excited the suspicion of the court. In such event, those propounding the will (as in the instant case) were obliged to remove the suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document. Once this was done, the onus was thrown on the SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 16 of 55 opponents to prove fraud or undue influence or whatever else they relied on to displace the case made in proving the will”. Ekow Daniels in his book The Law on Family Relations in Ghana writing on fraud, undue influence and duress at page 440 states as follows: “Finally as noted above, section 1(3) of the Act renders void any will obtained by fraud or made under duress or undue influence perpetrated on a competent testator. The rules of law concerning these elements are merely declarative of the common law principles which are enunciated in reported court decisions. Thus a will would be declared to be invalid when it is proved that the testator was deceived or induced to sign it upon representation that it was a document of a differed and non-testamentary nature6. The fraud or the false representation must be distinctly alleged with the necessary particulars and proved for it is not allowable to leave fraud to be inferred from facts7. The representations must be made to the testator at the time of the execution of it and the representation must be known to be false by the person making it8. In order for a will to be set aside on the ground of duress or undue influence, there must be coercion not necessarily be means of force. In the words of Sir James Hannen, P. in Wingrove vs Wingrove9 said: “It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that is undue influence.” To constitute undue influence as stated in Atkinson on Wills10 there must be 1) “A testator who is susceptible to the domination of another, 2) A person capable of controlling the testator’s mind and actions, 3) The exertion by such a person of influence of a nature which will coerce testator into making a provision contrary to his own desires, 6 Boyse v Rossborough (1857) 6 H.L. Cas 2 at 49 7 Davy v Garrett (1877) 7 Ch. D 473 at 489 C.A; Birch v Birch [1902] P 130 8 T.E. Atkinson: Handbook of the Law of Wills 1937 op. cit 221 9 (1885) 11 P.D. 81 10 Atkinson, op cit SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 17 of 55 4) A disposition actually resulting from this influence.” N. A. Josiah-Aryeh in his book Ghana Law of Wills, writing on testamentary capacity at page 41 stated as follows: ”A testamentary instrument is ineffective unless it complies with the formalities prescribed by the law. Amongst others, a testator is required to satisfy the law as to the essential mental requirements for making a valid will. To be valid, a will should be the product of the testator’s intention, and no one else’s. The essential mental requirement to make a valid will is generally referred to as animus testandi. A fair number of testators make wills and testamentary dispositions at points in their lives when their physical and mental health may well be failing. The presence of animus testandi is crucial because disease and the aging process may affect the mental faculties rendering them incapable of making a will that reflects the testator’s true wishes, and may facilitate schemes by covetous and fraudulent persons to substitute fake wills for that made by the testator... Consequently, the personal representatives bear the burden of satisfying the court as to the testator’s mental capacity and where the will appears rational and duly executed, it is presumed that the testator had the necessary mental capacity.” [5.4] Burden of Proof For the will in issue to be valid, it must be established first, that will was signed by the testator and second, that the testator signed the said signature in the presence of two or more witnesses present at the same time. Under the Evidence Act, 1975 (NRCD 323), the person who usually asserts the positive has the burden of proving that assertion on a balance of probabilities. With respect to establishing the validity of a Will, this duty is placed on the propounder of the Will to establish on a balance of probabilities that the Will was duly executed by the testator. Usually where there is an attestation clause as in this case, it raises a presumption of due execution, and the burden is shifted onto the one SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 18 of 55 challenging the validity of the will to lead evidence to rebut that presumption failing which the Will shall be admitted to probate. In the case of In re Okine (deceased), the Supreme Court in dealing with the issue of the burden of proof in probate matters held that it is the duty of the propounder of the Will to establish the capacity of the testator and the due execution of the Will. This is what the Court held at holding (7) of the headnote: “The burden lay on the propounder of a will to satisfy the court that the document presented for probate was the freely executed will of a competent testator. If the proof provided by the propounder left the court in doubt, the will might be denied probate. Therefore, in the instant case, the plaintiffs assumed the onus probandi under which they must prove both capacity of the testator and due execution of the will.” The authorities have however held that where the validity of the Will has been challenged on the grounds of forgery, the propounder has the duty to establish the validity of the will on a balance of probability and no presumption of due execution is raised in favour of such a will. In the case of In re Blay-Miezah (Decd)11, the Supreme Court made the following observation at holding (1) of the headnotes on this issue: “For where the validity of a Will is challenged, especially on grounds of forgery, the proof of due execution in such an action, demands a proof of all the elements thereof. This proof comprises: i) Proof of the genuineness of the disputed Will: McDonald vs. McDonald 142 Ind. 55, 41 NE 336. In this wise evidence must be established to remove all suspicious circumstances negativing the genuineness of the will ii) Proof of the genuineness of the testator's signature: Weber vs. Storobel. Mo. Sup, 194 SW 272. 11 Re Blay-Miezah (Decd); Ako Adjei v Kells [2001-2002] SCGLR 339 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 19 of 55 iii) Proof of the authorization by the testator of another to sign for him when that method of signing is employed: McCoy vrs Conrad, 64 Neb. 150, 89 NW 665. iv) Proof of the presence of the entire instrument at the time of execution: In re Maginn's Estate, 278 Pa 89, 30 ALR 418, and v) Proof of the attestation of the Will in the presence of the testator: Clarkson vrs Kirtright, 291 111 609, 126 NE 541. Of course, where the opposing party by his pleadings admits any of the above elements, the proponents of the will are relieved from proving that element. But short of any admission, proof of due execution in a contentious probate action requires proof of all the elements of validity of the Will in dispute. For in such a case, there is no presumption that the subscribing witnesses told the truth in testifying that they saw the will executed. Indeed, the Court will not apply the maxim omnia praesumuntur rites es solemniter esse acta (all things are presumed to be correctly and solemnly done) where there are circumstances that excite the suspicion of the Court that there must be something wrong with the Will. The burden of the plaintiffs or those who propound the Will is to lead credible evidence to remove such suspicion and to prove affirmatively that the Will is indeed that of the testator. As Lindley L.J. explained in Tyrell vs. Painton (1894) 151 P 157 CA, in all cases: "in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the Will to prove fraud, or undue influence, or whatever else they rely on to displace the case made for proving the Will." In this wise, as held in Baird vs. Shaffer 101 Kan. 585: "The testimony of subscribing witnesses to a Will may be overcome by any probative facts and circumstances admissible under the ordinary rules of evidence." SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 20 of 55 The doctrine of suspicious circumstance is designed to prevent fraud by a third party drawing up a will. It is usually invoked in cases where the party drawing up the will takes the whole or part of the testator’s estate12. It was held in the case of Barry v Butlin (1838)2 Moo PC 480) that if a party writes or prepares a will under which he takes a benefit “that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed.” By the principle in Tyrrell v. Painton (1894) P 151) suspicious circumstance is created where a will is prepared by a close relative of a substantial beneficiary. In the case of Andrew v Fulton (1875) LR HL 488) a will was made in the handwriting of one of the executors leaving gifts to that executor and another. Evidence showed discrepancies between the testator’s actual instructions and the terms of the will. It was held that the executors had failed to alleviate the court’s suspicion. Prima facie therefore, the Plaintiffs had a duty to establish the validity of the will on a balance of probabilities and more so when the validity of the will has been challenged on the ground of forgery. In the present case before us, one of the grounds which the Will of the Deceased tendered by Plaintiffs as (Exhibit A), 1st and 2nd Defendants as (Exhibit 10) and the Registrar of the Court as (Exhibit CE1) has been challenged is that the signature on the Will was not the deceased’s signature. The 1st and 2nd Defendants are thus alleging that the deceased Testator’s purported signature was procured by duress and undue influence. 12 N.A. JOSIAH-ARYEH, GHANA LAW OF WILLS Page 52 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 21 of 55 In that vein a duty was placed upon the Plaintiffs to lead evidence in respect of the genuineness of the deceased Testator’s signature. I will now assess the evidence that was led in line with the two elements I have already identified to determine whether the Plaintiffs have been able to discharge the duty placed on them with respect to the genuineness of the deceased Testator’s signature and the validity of the Will. [5.4.1] Signed by the Testator Prima facie therefore, the Plaintiffs had a duty to establish the validity of the will on a balance of probabilities and more so when the validity of the Will has been challenged on the ground of forgery. What evidence did the Plaintiffs proffer in respect of the execution of the Will? The 1st Plaintiff a named executrix and sole beneficiary of the devises and bequests in impugned Will, testifying per her adopted witness statement stated that the deceased died testate and left behind a Will dated 24th July 2019. The Will was authored by Mr. John Aidoo whose chambers was in North Kaneshie near Holy Trinity Hospital. The 1st Plaintiff testified further that she lived with the deceased a while before his death and due to the personal relations she had with him, he considered her as his daughter and told everyone about his relationship with her and upon his death, she wrote a tribute as a daughter. PW1 Daniel Opoku testifying per his adopted witness statement stated that “One day, he (Mr Starr) urgently sent for me through the first Plaintiff. On my arrival he disclosed to me that he was writing his will through his lawyer Mr Aidoo who’s chambers were at North Kaneshie…I met the lawyer at his office and asked whether I could read the contents of the will but he denied me that opportunity. The lawyer later told me that he did the letters of administration for the mother of the testator who had died previously. I signed my portion of the SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 22 of 55 will as a witness whilst the other portion was signed by a lady called Francisca Djan.” PW1 described how he became a friend to the deceased. PW2 Francisca Gyan testifying her adopted witness statement stated as follows: “…he was my childhood friend at Aayalolo in Accra where we stayed together during our infant period…Sometime afterwards, Mr. Starr who was not very well and did not hear properly sent for me to come to his house where he informed me that he wanted to do something very nice for the 1st Plaintiff. I told him that whatever he wished to do must be written down if he was serious with it. He then told me he had caused his lawyer, the same lawyer who prepared the Letters of Administration for his mother to prepare a will for which he would like me to sign on as a witness. A few days after this meeting, Mr. Starr again sent for me to meet him and another person at the lawyer’s office at North – Kaneshie near Holy Trinity Hospital where the lawyer explained to me what to do. There were 2 of us who were to sign the document. I signed my portion as a witness whilst the other potion (sic) also signed his portion.” PW2 in her adopted witness statement testified that the deceased was not very well and did not hear properly. The 1st Plaintiff was subjected to extensive cross-examination in respect of her evidence- in-chief. On 23rd February 2023 the following answers was elicited when the 1st Plaintiff was cross-examined by Counsel for 1st and 2nd Defendant. Below is an extract of relevant portion of the cross-examination: “Q: Were you present when the deceased allegedly went to see the lawyer to draft his Will for him? A: No my lady. Q: So who took the deceased to see the lawyer? A: I do not know. Q: In all the time you were taking care of the deceased, did he ever go anywhere by himself? SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 23 of 55 A: No my lady the deceased never went to any place all by himself, but rather whenever I have to go to the market I leave him. Q: Were you also present when the Will was signed? A: No my lady. Q: So as far as the Will is concerned you have no knowledge as to when it was drafted or when it was signed? A: That is so my lady. Q: But you have said in your witness statement that the lawyer’s office is at Holy Trinity North Kaneshie, how did you know about that? A: It was the deceased who told me that he has a lawyer who has his office at Kaneshie. Q: When the deceased died, you were present at the hospital is that right? A: No I was not present, it was when we got to the hospital and we were informed that he has been taken to the mortuary so we should also follow up and go to where he has been placed. Q: Did you take steps to collect the death certificate? A: No my lady. Q: Take a look at proposed Exhibit 14 and confirm it if that is your name there as the person who witnessed the death certificate? A: Yes my name is on the death certificate of the deceased as a witness. When the deceased was unwell I was taking care of him at the hospital so when he died, the hospital said that the one who has her name on the deceased’s hospital bill should be inscripted on the death certificate that was how come my name was added as a witness on the death certificate of the deceased.” The 1st Plaintiff contends that the 1st and 2nd Defendants were not visiting the deceased yet Exhibit 3 shows that, that is not the case. 1st Plaintiff admits under cross-examination that the 1st and 2nd Defendants were checking on the deceased. To questions posed the 1st Plaintiff denied that she sent the deceased to the lawyer’s office and her presence SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 24 of 55 when the deceased went to the lawyers office for drafting the Will. Her answer conflicts with the 1st Plaintiff’s own Exhibit A which is the Will. For ease of reference I shall set out the entire Will, Exhibit A/10/CE1. “THE LAST WILL AND TESTAMENT OF EKOW STARR WILLIAMS THIS IS THE LAST WILL AND TESTAMENT of me EKOW STARR-WILLIAMS of House No. 442, Awoshie Last Stop, Accra in the Greater-Accra of the Republic of Ghana which I make this 24th day of July 2019. 1. I hereby revoke all former Wills and Testamentary documents or dispositions made by me before this date. 2. I appoint Florence Otoo and her husband Jonathan Ayaa Tagoe as the Executors and Trustees of this my Will 3. I direct my Executors and Trustees to be responsible for my funeral and pay all my just debts, funeral and testamentary expenses. 4. I hereby acknowledge, appreciate and cherish the kindness, extreme tender care and love practically shown me by the said Florence Otoo by living with me, cooking and washing for me and catering for my every need and comfort in my senile and helpless condition over the years. 5. I hereby express my profound gratitude to the said Florence Otoo for her selfless devotion and service to me and reward her abundantly in this my Will as my child. 6. I give, devise and bequeath absolutely to the said Florence Otoo all my landed properties wherever located including my house in which I intend to live with her. 7. I give my money in my Barclays Bank accounts and elsewhere as well as proceeds from my pension or investment to the said Florence Otoo exclusively. 8. I give all my personal effects, chattels and clothes to the said Florence Otoo. 9. I hereby direct that all properties of any description whatsoever movable or immovable to which I may be entitled at the time of my death but which I have not otherwise disposed of in my Will be given to the said Florence Otoo exclusively. … IN WITNESS WHEREOF I, the said EKOW STARR-WILLIAMS have hereunto set my hand the day and year first above written. Signed by the above-named Testator EKOW STARR-WILLIAMS SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 25 of 55 As his last Will and Testament in the presence of us both being present at the same time of signing …and interpreted to him in the Ga language by the said Florence Otoo and he appeared perfectly well to understand the same before affixing his mark thereto.” (Emphasis mine). For the 1st Plaintiff who claims she was not present when the deceased was making the impugned Will, how did her name appear on Exhibit A/10/CE1 as interpreting the Will in Ga to him? Was the 1st Plaintiff being economical with the truth? The evidence elicited from PW1 on the issue of the 1st Plaintiff’s absence when the deceased was executing the Will contradicts that of 1st Plaintiff. PW1 confirms that the 1st Plaintiff was present when the deceased executed the Will (Exhibit A/10/CE1) and subsequently in response to a question states that the 1st Plaintiff was nowhere near the place of execution. Please find below extract of PW1’s cross-examination by Counsel for the 1st and 2nd Defendants on 1st June 2023: “Q. You said in your witness statement that the late Starr Williams Afful sent for you through the 1st Plaintiff Florence Otoo to witness his Will for him, is that correct. A. Yes My Lord. Q. So you went with the 1st Plaintiff to the lawyer’s office. Is that correct. A. Yes My Lord. Q. At the lawyer’s office you were there with the 1st Plaintiff and one Francisca Gyan. Is that correct? A. Yes My Lord. Q. So on that day the three of you were the only people who met the lawyer, is that correct? A. That is not correct. In those aforementioned, Starr William was part of the group. Q. On that day what language was spoken by those present? A. On that day I was introduced to their lawyer in English and that was the first time I met the lawyer. We spoke English. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 26 of 55 Q. Was the alleged Will translated into any other language to the late Starr. A. It was not until about the second visit that his lawyer pulled out a document that is Starr’s Will and that I was there was to witness on behalf of Starr. Q. So tell the court how the signing was done by those present. A. The lawyer, Lawyer John Aidoo said I am here to sign the Will on behalf of Starr and I insisted that if I know the content of the Will but Lawyer John Aidoo refused and said I am only a witness to sign and not to read the content of the Will. Q. My question is how the signing was done. So tell the court how the signing was done. A. I was presented with the back page of the Will where my name was and I signed having seen the signature Starr William Afful already there. Q. Was Starr’s signature on the back page? A. it was a long time so I cannot recollect the line or page on which Starr signed but it was shown to me by the lawyer. Q. So the lawyer showed you the alleged Will signed by the late Starr and asked you to sign your portion, is that correct. A. Yes My Lord. Q. Did you sign first or Francisca Gyan sign first. A. I signed first. Q. So on that day you and Francisca Gyan were the only people who signed. A. Yes My Lord. Q. Florence Otoo did not play any role in the signing. A. No my Lord. Q. So although you, Francisca Gyan, the late Starr, Florence Otoo and the Lawyer were present, only you and Francisca Gyan signed. A. Yes My Lord, only I and Francisca Gyan signed because it was in the lawyer office and is a small place which cannot accommodate more people. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 27 of 55 Q. So the content of the Will was not translated by Florence Otoo to the late Starr in the Ga language. Is that correct. A. No My Lord. Because if we can go back I said the lawyer refused to allow me read the Will and said I am only here to sign. Florence Otoo was not near the confines of the lawyer’s office. Q. After you and Francisca Gyan signs what happened. A. Starr William Afful thanked us. The lawyer thanked us for availing ourselves to assist Star William initiate a Will.” PW1 cannot approbate and reprobate. In one breath the 1st Plaintiff was at the Lawyer’s Office and when asked later he states that the 1st Plaintiff was not near the confines of the lawyer’s office. The issue of the person who took deceased to the lawyer’s office was not addressed. 1st Plaintiff has testified that she runs errands with the deceased or for him. In this instance how did the deceased get to the lawyer’s office? PW2 under cross-examination testified that it was the deceased and 1st Plaintiff who picked her up and together they went to the lawyer’s office. Please find below extract of PW2 cross-examination by Counsel for 1st and 2nd Defendants on 5th June 2023: “Q. The day you went to the lawyer’s office, how did you get there? A. The deceased and Florence came to pick me up at Awoshie. Q. So the three of you went to the lawyer’s office together. A. That is so My Lady. We also went with the driver. Q. So at the Lawyer’s office, did Florence performed any task related to the Will there? A. No My Lady. When we went to the Lawyers office, we met a certain man by name Mr. Opoku. So we became five in number. So the lawyer told the driver and the 1st Plaintiff to excuse us. So they went out. It was left with me, the lawyer, the deceased and Mr. Opoku alone in the lawyer’s office.” SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 28 of 55 Why would 1st Plaintiff testify that she was not there when the Will was being executed when PW1 and PW2 have asserted the contrary? PW3, (John Aidoo Esq.) on subpoena on 13th June 2023 testified with regards to the preparation of the Will(Exhibit A/10/CE1) as follows:- “Yes my lady. In the month of June, 2019, Florence Otoo and Mr Ekow Starr-Williams came to my office to indicate to me that Ekow Starr-Williams wanted to make his Will, so I proceeded to take instructions from Mr Ekow Starr-Williams and necessary for me to undertake the request. After a series of interactions in respect of the wish of Mr Ekow Starr-Williams to make his Will I finalised the document for him to come and sign on a particular day. So eventually, on the 24th of July, 2019, the final draft of the Will was ready and at my invitation Mr Ekow Starr-Williams, Florence Otoo, Francisca Djan and Daniel Opoku came to my office for the signing of the Will. In the presence of Mr Ekow Starr-Williams and Florence Otoo, I read the text of the entire Will in English to Mr Ekow Starr-Williams and also asked Florence Otoo to do the interpretation of the text in the Ga Language to him. After that was done, I invited the two witnesses in the persons of Francisca Djan a trader and Daniel Opoku a pensioner to witness the signing of the Will by Mr Ekow Starr-Williams. That was duly done after which they left and I completed the enclosing of the Will and same sealed by me. Two days later on the 26th of July, 2019, I deposited the sealed Will by myself at the Registry of the High Court. A filed copy was given to me which I later gave to Florence Otoo to be given to Mr Ekow Starr-Williams for custody. That is how come the Will is in existence. Q. At the time of procuring the Will, where there any signs of ailment physically or mentally with the said Ekow Starr-Williams that you noticed? A. I noticed that Mr Ekow Starr-Williams was partially blind and hard of hearing and so when I and Florence Otoo had to do the interpretation and reading over of the text to him, we virtually had to shout for him to hear and that is how come I had to put a Jurat in the SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 29 of 55 Will to indicate that condition, apart from that I did not notice any mental situation to inhibit the signing of the Will by Mr. Ekow Starr-Williams.” The following ensued during the cross-examination of PW3 by Counsel for 1st and 2nd Defendants on 13th June 2023: “Q. You have indicated to this court that the deceased came to your office with Florence Otoo to see you to draft a Will for him and then subsequently came to sign with Florence Otoo present is that correct? A. That is correct. Q. In Florence Otoo’s evidence before this court, she has indicated that she does not know who brought the deceased to your office for you to prepare a Will for him, what do you say to that? A. It was Florence Otoo who brought the deceased. Q. Florence Otoo before this court has indicated that she was not present when the Will was signed. A. She was present when the Will was signed. Q. Florence Otoo before this court has indicated as far as the Will is concerned she has no knowledge of when it was drafted and when it was signed, what do you say in response to that? A. As to when the Will was drafted she will normally not know but when the draft was ready to be signed she definitely would be present with the testator for that purpose. Q. But in your evidence before this court you indicate that Florence Otoo was present when the instructions was given. A. That is so. Q. So Florence Otoo was with the deceased when the instructions were given? A. That is so. Q. Kindly tell this court in what language the instructions were given? A. The instructions were given in a mix of Twi, English and Ga. Q. Florence Otoo has also indicated before this court that she did not interpret the content of the Will to the deceased in the Ga language, what do you say to that? A. She definitely did.” SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 30 of 55 PW3 also confirms that the 1st Plaintiff was present from the instructions taken for the preparation of the Will to execution of same. In the case of Re Blay-Miezah (Decd); Ako Adjei v Kells [2001-2002] SCGLR 339 Acquah JSC (as he then was) delivered himself thus: “Indeed, in the unbiased search for the truth, the law has no favourites by presumption. Silent circumstances, without power to change their attitude, or to make explanations, or to commit perjury, may speak as truthfully in Court as animated witnesses. Accordingly, when an issue of forgery in a civil case is raised by pleadings and contested by evidence on both sides, there is no presumption either in favour of witnesses or in favour of circumstances. All of the evidential facts, which throw light on the issue, must be considered in connection with the allegation of proponents that the Will is genuine and with the charge of contestants that the document offered for probate is a forgery. If the truth is found in oral testimony, it must determine the issue, but it is equally potent if found in circumstances. As Rose J at the Nebraska Supreme Court said in In Re O'Connor's Estate, 179 NW 401 at 406: "In a civil case, when there is substantial proof in support of the plea that the Will offered for probate is a forgery, all presumptions in flavor of genuineness fall. Thereafter the truth must be found in the evidence itself, and every item of proof must stand on its own footing in connection with each evidential fact considered in its proper light. In this test presumption creates no advantage one-way or the other. In such a situation, persons who declare themselves to be subscribing witnesses and boldly speak from the witness stand as such, though not directly impeached, are subject to the same impartial and penetrating scrutiny as the mute instrument ascribed by them to the dead." I endorse and adopt the above statement of Justice Rose in the In Re O’Connor’s Estate case. In the instant case what evidence did the Plaintiffs (Propounders of the Will) produce to remove the strong suspicion and suspicious circumstances created by the devises contained in Will which was all made in favour of 1st Plaintiff, the different SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 31 of 55 spelling of the deceased name in the Will and the issue of the deceased senility as captured in Clause 4 of Exhibit A/10/CE1? From the facts before the Court and evidence adduced by the parties in this case the 1st Plaintiff is one of the Executrix of the estate of the deceased. The other Executor is the husband of 1st Plaintiff. Though 1st Plaintiff testified that she was not present when the Will was prepared, PW1, PW2 and PW3 fix her squarely at the Lawyer’s Chambers where the impugned Will was prepared and executed by the deceased. PW3 testifies that the deceased was partially blind and hard of hearing and also testified that the 1st Plaintiff sat through the giving of instructions for the preparation of the Will, execution of the Will and even interpreted the Will in Ga for the deceased13. PW2 has testified that the deceased was not very well and did not hear properly at the time the Will was made. Clause 6 to 9 of Exhibit A/10/CE1 set out supra is to the effect that all the devises and bequests in the Will was made to the 1st Plaintiff and for her benefit. The evidence of 1st Plaintiff on her non-presence in the lawyer’s chambers conflicts with that of all her witnesses, PW1 to PW3. The principle is that whenever the testimony of a party on a crucial issue was in conflict with the testimony with his own witness on that issue (as in the case of the 1st Plaintiff in the instant case) it was not open to this Court to gloss over such a conflict to make a specific findings on that issue in favour of the 1st Plaintiff whose case contained the conflicting evidence on the issue. The Supreme Court addressed this principle succinctly in the case of Nii Narh Dowuona II vs. Addokwei Tetteh Olewolon & 3 Ors [2006] DLSC 2428. The Supreme Court speaking through Aninakwa JSC (as he then was) stated thus: In a situation of this nature, the principle of law applicable is different. See the case of Atadi v Ladjekpo (1981) GLR p 219 where Wiredu JA (as he then was) stated thus: - 13 PW3’s evidence-in-chief and cross-examination on 13th June 2023 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 32 of 55 “whenever the testimony of a party on a crucial issue was in conflict with the testimony with his own witness on that issue (as in the case of the Respondent in the instant case) it was not open to a trial Court to gloss over such a conflict to make a specific findings on that issue in favour of the party whose case contained the conflicting evidence on the issue …”.And in OBENG V BEMPOMAA – 1992-93 3GBLR p 1029 Lamptey JA. (as he then was) remarked “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim.” On the issue of undue influence the following extract is responses elicited from PW3 on 3rd July 2023 when he was further cross-examined by Counsel for 1st and 2nd Defendants: Q: “In your professional assessment, when the deceased was giving the instructions to you while the 1st Plaintiff was present and allegedly all his property was to go to the 1st Plaintiff, did you consider any influence the presence of the 1st Plaintiff may have had on the deceased? A: In all my interactions with the testator I found him to be quiet forthright and vocal and my view on this question is that, if there was any shade of influence being exerted on him he would storm out of the office.” In the case of Re Ayayee (Decd); Kukubor and Another vs Ayayee [1982-83] GLR 866 the Court held as follows: “Since in the instant case, there was evidence casting suspicion around the execution of the will, the court would apply the rule in Barry v Butlin, namely, that a party propounding a will prepared by a person who took a benefit under it, had the burden of showing that the paper propounded expressed the true will of the deceased. Taking cognizance of the above quotation can it be said that this principle “Proof of the genuineness of the disputed Will: McDonald vs. McDonald 142 Ind. 55, 41 NE 336. In this wise evidence must be established to remove all suspicious circumstances negativing the genuineness SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 33 of 55 of the will” from In Re Blay Miezah case has been satisfied in this case? Have the Plaintiffs who benefitted directly and indirectly from the deceased Will and had the burden of showing that the paper propounded expressed the true will of the deceased satisfied that burden? Senility has been defined in Black’s Law Dictionary as follows: “Mental feebleness or impairment caused by old age. A senile person (in the legal, as opposed to the popular sense) is incompetent to enter into a binding contract or execute a Will.” PW3 drafted the Will, Exhibit A/10/CE1. He used the word “senile” to describe the deceased. Being a lawyer I will draw the inference that he knew the legal import of the word. Senile has been defined as mental feebleness which renders a person incapable of entering into a binding contract or execute a Will. As discussed in the earlier part of the Judgment establishing testamentary capacity or animus testandi is very crucial for a testamentary instrument to be effective. To be valid, a Will should be product of the testator’s intention and no one else’s. A question demanding answer based on the totality of the Plaintiffs’ evidence, is whether they were able to establish the requisite animus testandi of the deceased at time he made the Will? I do not think so. Had the Plaintiffs managed to remove all suspicious circumstances negativing the genuineness of the will (Exhibit A/10/CE1)? Again my answer is negative. Despite the Plaintiffs’ inability to propound the Will in solemn form the Defendants proffer some evidence in support of their position that the Will is invalid. How did the Defendants prove the fraud that they alleged in the execution of the Will? DW1 Alhaji Bukari Yakubu testified per his adopted witness that: “I was assigned to conduct a forensic examination of the signatures of some submitted documents including power if attorney, passport, special power of attorney and an alleged Last Will and Testament all allegedly signed by Ekow (Ekwaw) Starr-Williams. I conducted the examination in SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 34 of 55 accordance with the principles and techniques applied in the examination of documents. …After the examination, I concluded that it was highly probable that the said Mr. Starr Ekwaw Williams- Afful could not have produced the signature on the document labelled the Last Will and Testament of Ekow Starr-Williams dated July 24, 2019”. DW1 was extensively cross-examined as to the nature of making an application for the appointment of an expert witness and the potential bias on the part of DW1 since it was the 1st and 2nd Defendants who engaged his services to conduct the forensic examination of Exhibit CE1 without an order of the Court and he was firm in his response that there was no bias. The following are extracts from the cross-examination of DW1 by Counsel for Plaintiffs on 31st October 2023: “Q: You will agree with me that for almost all questioned documents they come by way of a request from the Court. A: Request are made by any institutions, any individuals so far as it passes through the Director CID. Q: But you will agree with me that once a document is contested by parties it will either come to you by the consent of both parties or through a request from the Court, is that not the case? A: That is not the case. As earlier said, all requests for forensic examination pass through the Director CID and forwarded to the forensic laboratory for examination and report. It does not matter who brings, it could be the Court or any institution, it could be a company and it could be any individual. Q: I put it to you that this your report is only request made by one party of the parties in Court is that not the case? A: That I cannot tell. Once the order has been given by the Director CID to do the work I obey the instructions. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 35 of 55 Q: The report that you have given is biased towards the other party. A: That is not true. At the first place the Director CID who receives the exhibits for examination does not know any party and forwarded to the Director in charge of forensic lab who also does not know the parties, so this report is neutral. The forensic laboratory did not take any sides.” Does the rules really provide that a party cannot appoint an Expert Witness without a Court Order? Who is an Expert Witness? The learned jurist and Author SA Brobbey JSC (Rtd), in his Book, Essentials of the Ghana Law of Evidence, page 334 explains who an Expert Witness is as follow: “An expert witness gives evidence in the form of an opinion or inference where the subject matter of the testimony is beyond common experience. The common experts one meets in the courts are handwriting experts, forensic experts…” NRCD 323, Section 67 defines qualification for an expert as: Qualification as an expert “(1) A person is qualified to testify as an expert if, to the satisfaction of the Court, that person is an expert on the subject to which the testimony relates by reason of the special skill, experience or training of that person. (2) Evidence to prove expertise may but need not consist of the personal testimony of the witness.” See the case of Sam Quarshie vs Eddie Kusi Ankomah, Civil Appeal: No. J4/59/2022, 10th May 2023 where the Supreme Court held as follows: “…so the lower court ought to have adverted its mind to its powers under section 114 of the Evidence Act, 1975 (NRCD 323) and Rule 1 of Order 26 of C.I.47. Section 114 of NRCD 323 is as follows; … SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 36 of 55 Of course, there is no express rule of procedure or evidence that prohibits a party to civil proceedings, in the absence of a court appointed expert, from adducing evidence in support of her case through her self-appointed expert. However, such expert evidence may not have been produced under the right conditions and certainly not under the supervision of the court, so its probative value would not be as compared with that given within the context of Or 26 of C.I.47. (Emphasis added) If a party calls her own expert to contradict a court expert’s evidence under Rule 6 of Or 26 of C.I. 47, such expert would have to take into account and react to the report of the court expert. That way, there would be a basis for comparison of the two expert opinions by the trier of facts and that is preferable to ignoring the option made available by the rules of evidence and procedure and using your self-appointed expert to start with. In this case, the surveyors engaged by the police did not qualify as court experts neither were they self-appointed by the defendant.” In the considered view of the Court the appointment of DW1 by 1st and 2nd Defendants does not necessarily mean bias on the part of the Expert Witness. The Court shall consider the evidence of DW1 in the context of the admonition by the Supreme Court in the case of Sam Quarshie vs Eddie Kusi Ankomah supra in terms of the probative value to assign to the evidence of DW1 and Exhibit 13. It must be noted that from Exhibit A/10/CE1 which the Defendants were challenging the signature on it, Exhibit F Series and Exhibit H bore the undisputed signature of the deceased from both sides because the said exhibits was admitted in evidence without objection. To help resolve the issue of the signature of the deceased on Exhibit A/10/CE1, the 1st and 2nd Defendants called for a forensic examination of the signature on Exhibit A/10/CE1 to determine whether that signature was the testator’s signature. The forensic examination was done at the instance of the 1st and 2nd Defendants without a court order. DW1 (Alhaji Bukari) who tendered his finding in court as Exhibit 13 (Document SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 37 of 55 examination report ) and was cross-examined extensively by Counsel for Plaintiffs but he stood his ground with respect to his conclusions which was to the effect that: “In view of the above analysis, it is highly probable that the author of signatures on documents marked “A”, “B” and “C” could not have produced the signature allegedly representing Mr. Starr Ekwaw Williams Afful on the Last Will and Testament dated 24th July, 2019 on document marked “D”. Page 2 of Exhibit 13 had the observations and findings of the Expert Witness (DW1) as follows: 1. “All signatures representing or allegedly representing Mr. Starr Ekwaw Williams Afful on documents marked “A”, “B”, “C” and “D” have similar forms. 2. All signatures representing Mr. Starr Ekwaw Williams Afful on documents marked “A”, “B” and “C” have similar identifying characteristics with extensive variations. 3. Similar identifying characteristics do not exist between signature allegedly representing Mr. Starr Ekwaw on document marked “D” and the known signatures of the same subject on documents marked “A”, “B” and “C”. The above observations made and conclusions reached by the Document Examiner, to the mind of some people, should have settled the issue as to whether the Will was that of the late Mr. Starr Ekwaw Williams Afful. The issue, however, is not as simple as that. The issue really is the treatment of such expert evidence by the Court. It has been held time and again by the Courts that the evidence of forensic expert is only to assist the Court to come to a decision one way or the other but such evidence is not binding on the Court. The Court of Appeal in Conney vs Bentum-Williams [1984-86] 2 GLR 303 made this position very clear at holding (1) of the headnotes. Similarly in Fenuku vs John-Teye [2001 – 2002] SCGLR 985, the Supreme Court speaking through Ampiah JSC (as he then was) for the majority in dealing with the treatment of expert forensic evidence by the Court had this to say at page 1004 of the report: SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 38 of 55 “However, this court could itself examine documents in cases of disputed handwriting and form its own conclusion. After examining the disputed signatures and comparing them with those admitted by the defendants to be genuine, the court would in one way or another, conclude whether they had all been written by the same person or not. With regard to handwriting expert evidence, the principle of law is that the judge need not accept any of the evidence offered. The judge is only to be assisted by such evidence to come to a conclusion of his own after examining the whole of the evidence before him. The role of a judge in considering an issue whether or not a signature or handwriting is forged is clearly set out in the case of Conney v Bentum-Williams [1984-86] 2 GLR 303 on which both the lower courts had heavily relied. The court said (as stated in holding (1) at page 303): "a handwriting expert was not required to state definitely that a particular writing was by a particular person. His function was to point out similarities or differences in two or more specimens of handwriting submitted to him and leave the court to draw its own conclusions. In other words, a handwriting expert having examined, deciphered and compared the disputed writing with any other writing, the genuineness of which was not in dispute, was only obliged to point out the similarities or otherwise in the handwriting; and it was for the court to determine whether the writing was to be assign/ed to a particular person..." The expert evidence was only a guide to arrive at the conclusions. A similar view was expressed by Cooper P in Davies v Edinburgh Magistrates (1953) SC 34 at p. 40 thus: "The duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusion /so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in the case." Such an issue arose in a probate action. In Sugen v Lord Leonards (1876) 1 PB 154 at page 242, Jessel MR had this to say: "It is not strictly evidence of the contents of the instrument, it is simply evidence of the intention of the person who afterwards executes the instrument. It is SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 39 of 55 simply evidence of probability- no doubt a high degree of probability. The cogency of the evidence depends very much on the nearness in point of time of the declaration of intention to the period of the execution of the instrument." In re Agyekum (Decd); Agyekum vs Tackie & Brown [2005-2006] SCGLR 851, the Supreme Court speaking through Dr. Twum JSC noted at pages 856 to 857 of the report as follows: “The Appellants laboured under one huge misapprehension, that is, the moment they alleged forgery, the matter could only be determined by reliance on the opinion of a handwriting expert. This is not a requirement under the Wills Act 1971 (Act 360) or the Evidence Decree, 1975 (NRCD 323). This type of witness is ordinarily employed to furnish aids to the trier of facts by which he is enabled, without any personal expertise, to reach conclusions as to the genuineness or lack thereof of a disputed writing. But in the last analysis the fact-finder has both the privilege and function of reaching his own conclusions as to the genuineness of disputed signatures or other writing with or without the opinion evidence of a handwriting expert. What is crucial, is evidence which will establish the fact of due execution as prescribed by section 2 (3) of the Wills Acts 1971 (Act 360). The learned High Court Judge made that “crucial finding.” (emphasis added). See also the cases of Hayford v Tetteh (substituted by) Larbi & Decker [2012] 1 SCGLR 417 and Sasu vs White Cross Insurance Co. Ltd [1960] GLR 4. It therefore follows from the discussions above that on the strength of the authorities, a Court is not bound by the evidence of an expert witness (DW1), but the Court has to evaluate all the evidence on record to determine whether on the totality of the evidence on record, the conclusion that was reached by the expert witness (DW1) is sustainable or not. I will therefore proceed to do just that. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 40 of 55 When one takes a critical look at the signature on Exhibit 9 series deceased passport bio data with passport No: 462804452 and Exhibit CE1 the impugned Will there are marked differences between the two signatures. It is noteworthy that no objection was raised to the tendering of Exhibit 9 series by Plaintiffs. The signature on Exhibit 9 series is in two distinct parts with a line drawn over the two parts. The signature on Exhibit CE1 is in two parts with a short line drawn over the first part. The second part of exhibit 9 series is different in terms of strokes from the second part of Exhibit CE1. Admittedly Document Examiners concede that no two signatures from the same person are the same however there would be similarities. Another signature I will compare to that of Exhibit CE1 is the deceased signature on Plaintiffs’ Exhibit H which is in two parts, the signature on the Statutory Declaration and the signature on deceased passport data page with Passport Number 087963087. As regards the deceased signature on the passport bio data page and deceased signature on Exhibit CE1 there are marked differences in the strokes. It is based on my critical examination of the deceased signature on the documents tendered in evidence by both Plaintiffs and Defendants that I draw the conclusion that the observations and findings in Exhibit 13 is more probable. The rules allow the Plaintiffs to also appoint their expert witness in rebuttal of Exhibit 13. They failed to take advantage of the rule. The inconsistencies and doubts regarding the execution of Exhibit CE1 are too loud to be ignored. They are screaming for attention. From the totality of the evidence led in this case, I hold that the said Will (Exhibit CE1) is not the valid will of Starr Ekwaw Williams Afful as the evidence led by Plaintiffs was unsatisfactory to prove the due execution of the Will, Exhibit CE1 in solemn form. I therefore resolve issues 1 and 2 against the Plaintiffs. I resolved additional issue 2 against the Plaintiffs. I resolve issue 3 in favour of the Defendants. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 41 of 55 I now turn my attention to issue 4. [5.5] Issue 4: Whether or not the Letters of Administration obtained by the Defendants was by fraudulent means The standard of proof when it comes to fraud is proof beyond reasonable doubt. The Plaintiffs bears the burden of proof in relation to this issue. How did they prove same? The 1st Plaintiff testifying per her adopted witness statement stated as follows: “The 1st and 2nd Defendants are persons holding themselves as distant relatives of Ekow Starr William (decd of Accra) and have falsely applied for and obtained Letters of Administration from the High Court which they have used to dissipate the contents of all bank accounts of the said deceased person above mentioned…I caused a diligent search to be conducted at the court’s registry which revealed that the 1st and 2nd Defendants had indeed fraudulently obtained letters of administration from the court on 10th November 202. The affidavit sworn by the Defendants in support of the said application were full of lies and speculation and indeed the Defendants were only distantly related to the said Ekow Starr Williams (decd) and never had anything at all to do with him when he was alive.” The 1st Plaintiff admitted that at the time a notice was sent for the reading of the Will the 1st and 2nd Defendants had already obtained Letters of Administration albeit fraudulently allegedly aware that the deceased died testate. The 1st Plaintiff particularized fraud as follows: - 1st and 2nd Defendants were distant relatives who had nothing to do with the deceased in his lifetime. - The 1st and 2nd Defendants falsely obtained death records from the hospital morgue to procure death certificates - No notice of Letters of Administration were posted at the last place of abode of the deceased person as required by law. - No proper search conducted to ascertain if deceased died testate. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 42 of 55 The 2nd Defendant testifying per his adopted witness stated that the deceased died leaving no spouse or child. The 1st Plaintiff was appointed as the caretaker of the deceased by Eunice Biritwum a cousin of the deceased and was paid monthly allowance by the said Eunice. The deceased and the family were in constant communication before his demise. Exhibits 3 and 4 were photographs of the deceased and the 2nd Defendant. It is the case of 2nd Defendant that the Head of family at a meeting appointed the 1st and 2nd Defendants to apply for Letters of Administration after ascertaining that the deceased left no Will. Notices were posted and the grant was made on 10th of November 2020. Exhibit 5 is the certificate of letters of administration. From Exhibit 7 a letter dated 24th March 2021 through which the 1st and 2nd Defendants were informed that the deceased died testate. The particulars of fraud alleged that the 1st and 2nd Defendants were distant relations of the deceased who had nothing to do with him and further that though the deceased died testate the 1st and 2nd Defendants had proceeded to obtain letters of administration in respect of his estate. When the 1st Plaintiff was cross-examined on Exhibits 3 and 4 she admitted that the 2nd Defendant visited the deceased. Plaintiffs Exhibit F series tells a compelling story. It is hand-written notes of expenses from January 2018 to February 2019. It reads as follows “(2) JANUARY 2018 MAA U GAVE - 4100 FOOD - 10000 INSULIN - 400 MEDICINE - 300 JONATHAN - 400 FLORENCE - 300 UTILITIES - 400 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 43 of 55 BRA EKOW - 100 FUEL - 300” For ease of reference I have set one of the Exhibit F series out. It starts with “Maa U gave – 4100”. Who is Maa U, I will infer from the evidence on record that Maa U refers to DW2, Eunice Biritwum. Exhibit F series supports the 1st and 2nd Defendants evidence that the 1st Plaintiff was being given money through DW2 to take care of the deceased. Has the particulars of fraud been made out? What are the grounds on which grant of letters of administration may be revoked? In the book, Williams and Mortimer on Executors, Administrators and Probate, 15th Edition pages 352 to 353 the Authors writes thus: - “ The principal grounds for revoking a grant are - (i) that it was obtained by a false or incorrect statement, e.g., where a grant is made to a person falsely claiming to be the widow of the deceased or his next-of-kin - (ii) that there is a supervening defect in the grant, e.g., where a grantee becomes incapable or where the grantee disappears or where a grantee is no longer interested in the estate - (iii) That the grant was in effect a nullity, e.g., where a grantee has died before the grant has passed the seal or name of the deceased wrongly stated in the grant.14” From the above textbook writings and the principles espoused therein, it is very apparent that a grant of letters of administration or probate can be revoked for three main grounds, i.e., that the grant was obtained by fraud or mala fide, there was supervening defect or the grant was a nullity. - 15 Tristram and Coote’s, Probate Practice, 23rd Edition at page 452 “The main grounds for revocation of a grant are as follows: False statement -where a grant has been made to a person who was not entitled thereto either where he acted in ignorance of the true facts or where he has acted fraudulently; Supervening defects in grant – where a grant has been properly made, but has subsequently become ineffective and useless or which if allowed to subsist would prevent the proper administration of the estate;Other cases – where a grant should not have been made e.g., because of the entry of caveat, or because it was made before the effluxion of the necessary time or where the grantee had died before its issue.” SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 44 of 55 The following cases discuss some of the grounds on which grant of letters of administration can be revoked. In the case of Re Agyepong (Decd) Poku v Abosi [1982-83] GLR 254 CA the Court of Appeal decided that fraud is a ground for the revocation of grant of probate or letters of administration. The Court held that: “A grant obtained by fraud, mala fide, or by concealing information which should have been disclosed to the court might also be revoked…The circumstances surrounding the fraud must be inconsistent with any other view but that of the fraud”. See the case of In re Caesar (Decd); Ceasar and another v Kwapong and Another [1974] 2 GLR 24815 . See also the case of Ennin v Ampah & Others [1982-83] GLR 952 where the grounds of revocation of grant was stated as: (a) where a defect was disclosed in the grant such as the grant having been obtained by fraud or surprise; and (b) where there was a ceaser of the interest of the grantee. From the evidence adduced were the Plaintiffs have not been able to establish that the grant of letters of administration made to the 1st and 2nd Defendants on 10th November 2020 was obtained by fraud, mala fide, there was a supervening defect or the grant itself was a nullity. The general position of the law is that he who alleges must prove same. In the case of Ababio v Akwasi III [1994-95] GBR 774 at 777 Aikins JSC (as he then was) expounded the position as follows: 15 In re Caesar (Decd); Ceasar and another v Kwapong and Another [1974] 2 GLR 248: SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 45 of 55 “The general principle of law is that it is the duty of a plaintiff to prove his case, i.e., he must prove what he alleges. In order words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not, he loses on that particular size.” See also the case of Zabrama v Segbedzi [1991]2 GLR 221 at page 246. Fraudulent misrepresentation has defined in Blacks Law Dictionary, 8th Edition, Bryan A Garner as “A false statement that is known to be false or is made recklessly – without knowing or caring whether it is true or false – and that is intended to induce a party to detrimentally rely on it”. Whether it is called common law fraud, fraudulent misrepresentation, or intentional misrepresentation, the elements of the claim are the same. The first three elements largely address the defendant’s conduct or state of mind, and the last two address the Plaintiff’s. The elements are: (1) The defendant made a false representation of a past or existing material fact susceptible of knowledge. (2) The defendant did so knowing the representation was false, or without knowing whether it was true or false. (3) The defendant intended to induce the plaintiff to act in reliance on that representation. (4) The plaintiff acted in reliance on the defendant’s false representation. (5) The plaintiff suffered pecuniary damage as a result of that reliance16. 16 Common Law Fraudulent Misrepresentation and negligent misrepresentation, Michael Krauss, Greenberg Traurig, LLP accessed on 11/06/2022 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 46 of 55 The standard of proof when it comes to fraud is proof beyond reasonable doubt. The Supreme Court in the case of Mass Projects Ltd (No.2) vs Standard Chartered Bank & Yoo Mart Ltd (No.2) SCGLR 309 stated that fraud vitiates every conduct, an allegation of fraud if proven and sustained will wipe and sweep away everything in its trail as if the thing had never existed17. The Plaintiffs has not been able to prove the assertion that the grant of the letters of administration to 1st and 2nd Defendants is a fraudulent apart from merely stating same in their Statement of Claim and repeating that in their adopted witness statements. What then was the entitlement that the 1st and 2nd Defendant used fraudulent means to obtain the letters of administration? I do not see any. Having regard to the view I have taken that the deceased died intestate the 1st and 2nd Defendants were entitled to the grant. I find that the Plaintiffs failed to establish any basis for a declaration that the grant to the 1st and 2nd Defendants is not in order. Does the 1st and 2nd Defendants conduct of applying for letters of administration when Plaintiffs allege that the deceased died testate amounts to fraudulent misrepresentation? In the Supreme Court case of The Republic Vrs High Court Accra, Ex Parte Mireilli Hitti George Jamil Mouganie, Caroline Aki and Alwan Robert Hitti – Interested Parties [2019] DLSC 5637, Gbadegbe JSC delivered himself thus: “We are of the opinion that there is ample jurisdiction in the court to intervene to get rid of the grant on which this case turns and make reference to previously decided cases in which the court revoked letters of administration after the discovery of a will by the deceased. Reference is made to the following cases of persuasive authority; (1) Carolus v Lynch 161 ER 6; (2) Baker v Russel 161 ER 62; (3) In the Estate of Musgrove, Davis v Mayhew [1927] P 264. Indeed, in the Estate of Musgrove, the revocation was made twenty years after the death of the testator… In our view as 17 Akim Akroso Stool & Others vs Akim Manso Stool & Others (1989-90) GLR 100 the stated as follows: ”Fraud was an extrinsic collateral act which vitiates the most solemn proceedings of court of justice. Thus however solid a judgment might be to create estoppel, once fraud was alleged and proved against that judgment, that judgment could not stand.” SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 47 of 55 a will was discovered subsequent to the grant of letters of administration to the wife of the testator and the 3rd interested party herein, the said grant was made on the basis of a fact which did not exist and made the grant contrary to the provisions of the Administration of Estates Act, Act 63. In our opinion where a grant is made to a person other than the one lawfully entitled, there is authority in a court to revoke the grant. In the course of his judgment in the case of Asamoah v Ofori alias Renner, [1961] 1 GLR 269, Ollennu J observed of the position at page 273 as follows: “Again, the contention that administration cannot be revoked is erroneous. Administration may be revoked for good cause, e.g., when, as in this case, it is granted to a person other than the person lawfully entitled to it.” In the case before us, we have no doubt that “good cause” includes the mandatory provision of section 67 of the Administration of Estates Act, 1961, Act 63 which provides as follows: “Where administration is granted in respect of an estate of a deceased person, a person shall not bring an action or otherwise act as an executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant is recalled or revoked.” Though a grant of letters of administration shall be revoked pursuant to the discovery of a Will, the case supra can be distinguished from the present case where the Will has been declared a nullity. In the considered view of the court, the elements of fraudulent misrepresentation has not been satisfied per the evidence placed before the Court. I therefore find the letters of administration granted to the 1st and 2nd Defendants was validly obtained. I resolve issue 4 against the Plaintiffs. I shall now turn my attention to issues 5, 6, 7, 8 and additional issue 1 together since they are interrelated. [5.5] Issues 5, 6, 7, 8 and additional issue 1 SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 48 of 55 Issue 5 Whether or not the said Ekow Starr William had a bank account with the 3rd Defendant bank? Issue 6 Whether or not the said Ekow Starr William (deceased) on his demise left in the said account money amounting to over GH¢200,000.00? Issue 7 Whether or not the said amount was withdrawn by the 1st and 2nd Defendants with the connivance of 3rd Defendant Bank in or about February, 2021? Issue 8 Whether or not the said 3rd Defendant Bank were negligent in allowing 1st and 2nd Defendants to withdraw the said money without exercising due diligence? Additional issue one: Whether the said Ekow Starr William is the same person as Starr Ekwaw Williams Afful whose estate the 1st and 2nd Defendants have been appointed to administer. It is the case of the Plaintiffs that the 3rd Defendant was negligent and reckless and did not verify at the Registry of the Court whether the supposed letters of administration submitted by the 1st and 2nd Defendant had been properly obtained before going ahead to close the said account and pay all the saved money to the 1st and 2nd Defendants. The 1st Plaintiff testifying per her adopted witness statement stated that “It is also clear that the 1st and 2nd Defendants are bent on using the said letters of administration to dispose of the estate of the deceased without recourse to anybody and thereby denying the rightful persons to exercise such rights.” The 1st Plaintiff contends that the name Starr Ekow William – Afful, Ekow Starr Williams, Afful Williams Starr Ekow used interchangeably on the Will of the deceased testator, on his funeral brochure, on his certified copy of entry in the Register of Deaths and as SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 49 of 55 appears in his ABSA Bank Ghana Limited Account No. 1010986, Darkuman Branch all refer to one and the same parson. The evidence of the 1st Plaintiff is sharply countered by Raymond Dodoo who testified on behalf of the 3rd Defendant per his adopted witness statement that the 3rd Defendant’s customer database does not hold any accounts in the name of Ekow Starr William. According to him Exhibit 19 an extract of the findings of a search of the name “Ekow Starr William” on the 3rd Defendants’ customer database which shows “There are no accounts matching the specified criteria.” 3rd Defendant witness states as follows: “The 3rd Defendant has therefore neither received nor processed Letters of Administration in respect of a customer named Ekow Starr William. By virtue of the 3rd Defendant being a regulated banking institution, and law-abiding legal person, it obliges lawful orders of Courts of competent jurisdiction and frequently oblige lawful Court Orders and letters of Probate or Administration, issued by Registrars of the various courts of Ghana which have jurisdiction to so issue in relation to accounts of its customers…The suit against the 3rd Defendant is therefore ill-conceived.” I have already found that the letters of administration granted to the 1st and 2nd Defendants was not fraudulent and therefore the issue of connivance between the 1st and 2nd Defendants and 3rd Defendant to obtain the Letters of Administration does not arise. The name captured on Exhibit C the Letters of Administration certificate is Starr Ekwaw Williams Afful which arrangement is different from Ekow Starr William. Financial institutions being regulated by Bank of Ghana and upholding the principle of Know your customer (KYC) are very particular about the arrangements of names presented to them. Exhibit 19 provides as follows: “…Name: Ekow Starr Williams …There are no customers or accounts matching the specified criteria.” SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 50 of 55 What evidence did the Plaintiffs lead to rebut Exhibit 19? The 1st Plaintiff merely mounted the witness box and rehashed her pleading through her adopted witness statement. What prevented the Plaintiffs from subpoenaing the Manager in charge of the Darkuman Branch on the issue of the alleged negligence and recklessness. The 3rd Defendant have been accused of conniving with the other Defendants to perpetuate fraud. Fraud as stated supra vitiates everything and the proof in civil proceedings is proof beyond reasonable standard. See Section 13(1) of Evidence Act which provides as follows: “13(1) In any 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 a reasonable doubt”. The 3rd Defendant has been described by the Plaintiffs as negligent and reckless because allegedly the 3rd Defendant did not verify at the Registry of the Court whether the supposed letters of administration submitted by the 1st and 2nd Defendants had been properly obtained before going ahead to close the said account and pay all the saved money to the 1st and 2nd Defendants. Negligence has been defined in Black’s Law Dictionary, 8th Edition, Bryan A. Garner as “the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. The term connotes culpable carelessness” Reckless has been defined in Black’s Law Dictionary, 8th Edition, Bryan A. Garner as follows: “Characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. Reckless conduct is much more than mere negligence: it is a gross deviation from what a reasonable person would do”. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 51 of 55 The cross-examination of 3rd Defendant witness on 11th December 2023 by Counsel for Plaintiff is relevant to these proceedings. See below extract of the cross-examination below: Q. “The branch of the Testator is the Darkuman branch is that not it? A. Yes my lady. Q. You will agree with me that you will not be seized with the operations of that branch relating to the deceased person is that not so? A. That will not be difficult for me to answer because we are networked and can easily access all information on all accounts. Q. So then you know that transactions between the account holder and the bank are mostly conducted through Florence Otoo and you should know that. A. Until there is an issue I will not be able to identify who transacted on the account but our core mandate is to check whether who is ever is transacting on the account has adequate mandate to carry on a transaction presented to us. Q. The Testator Ekow Starr William who’s Will is now in contention in this Court has a relationship manager in that branch is that not so? A. There are records we do not have a customer by named Ekow Starr William Q. So which customer do you have whose name looks like Ekow Star Williams and whose bank branch is at Darkuman and whose Will is being contested in this Court for which reason you have come to give evidence? A. From our records the customer we have at the Darkuman branch name is Ekwaw Starr Williams Afful. Q. So for the situation we have in court, the reference I make in this Court will be to that same person I am putting that to you. A. Per our records Ekow Starr Williams and Ekwaw Starr Willams Afful are two different persons they are not the same person. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 52 of 55 Q. At this point there is only one personality you are referring to is that not the case? A. From the records we are looking at two different persons. Q. Are you tell this Court that you have two different names on your records? A. From our records we only have one personality that is Ekwaw Starr Williams Afful, the other personality from our checks does not exist on our records. Q. So when I referred is the same person whose record I am referring to. A. As indicated earlier we are dealing with two personalities, Ekwaw Starr Williams Afful happens to be our customer, Ekow Starr Williams does not exist on our records. Were the Plaintiffs able to establish the recklessness and negligence on the part of 3rd Defendant? The letters of administration was properly obtained by the 1st and 2nd Defendants. The deceased having died intestate with no surviving spouse or children the estate devolves in accordance with Intestate Succession Law, 1985, PNDCL111. See Section 11(1) of PNDCL111. The 3rd Defendant has established that there was no account being held by them in the name of Starr Ekow Williams. In conclusion of the issues as set out above the Court is of the opinion the Plaintiffs’ allegations of negligence and recklessness was not proved. The particulars of fraud as contained in the statement of claim were not proved beyond reasonable doubt. The erudite judgment of Ollenu J (as he then was) in Majolagbe vs Larbi [1959] GLR 190 always gives guidance to the courts on how the burden of proof is discharged: Proof in law is the 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, 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. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 53 of 55 I therefore find that the name Ekow Starr William did not have a bank account with the 3rd Defendant Bank. I resolve issue 5 against the Plaintiffs. I resolve additional issue one in favour of the 3rd Defendant. The resolution of the issue 5 and additional issue 1 effectively resolves the case and I do not intend to deal with the issues 6 and 7. I find support in the decision of the Supreme Court in Mrs. Vicentia Mensah v. Numo Adjei Kwanko II, Civil Appeal No. J4/17/2016 (14th June 2017) where the Supreme Court speaking through Anin-Yeboah JSC noted at page 7 of the judgment as follows: “It must, however, be made clear that a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence if in its opinion few of the issues could legally dispose off the case in accordance with the law.” I find that the 3rd Defendant has not been reckless or negligent. I resolve issue 8 against the Plaintiffs. [6] Conclusion The Plaintiffs having failed to prove their case on preponderance of probabilities, same is dismissed. For avoidance of doubt Reliefs, a to e is dismissed. Judgment is entered is entered for the 1st and 2nd Defendants on their counterclaim: a. Relief A is granted as follows: I declare that the letters of administration granted to 1st and 2nd Defendants on 24th July 2019 is valid. b. Relief B is granted as follows: I declare that the Last Will and Testament of the late Starr Ekwaw Williams-Afful dated 24th July 2019 is invalid and therefore a nullity. c. Relief C is granted as follows: I order the 1st and 2nd Defendants to recover possession of H/No 7 Merchandy Estates, which forms part of the estate of Starr Ekwaw Williams -Afful within three months from today. SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 54 of 55 d. Relief D is granted as follows: I order the 1st and 2nd Defendants to recover possession of two vehicles (2014 Pontiac Vibe with registration No. GX 1712-19 and 2006 Ford Fiesta with registration number GW 4646-14) belonging to the estate of the late Starr Ekwaw Williams-Afful forthwith. e. Relief E is granted as follows: I hereby grant perpetual injunction restraining the Plaintiffs, their agents and assigns from having any further dealings with H/No. 7 Merchandy Estates, Gbawe as well as all other assets forming part of the estate of the deceased Starr Ekwaw Williams-Afful. Cost of GH¢20,000.00 awarded in favour of 1st and 2nd Defendants and cost of Ghc30,000.00 awarded in favour of the 3rd Defendant. (SGD.) EUDORA CHRISTINA DADSON (MRS.) (JUSTICE OF THE HIGH COURT) SUIT NO:PA/1258/2021 – FLORENCE OTOO & 1OR VS WILLIAMS KWESI AIKINNS OTABIL & 2ORS – JUDGMENT - Page 55 of 55