IN RE OKINE (DECD); DODOO AND ANOTHER v OKINE AND OTHERS

[2003-2005] 1 GLR 630

Division: SUPREME COURT, ACCRA

Date: 28 January 2004
Before: ACQUAH CJ, BADDOO, TWUM, KLUDZE AND
DATE-BAH JJSC

Practice and procedure—Appeal—Findings of fact—Principles on which appellate courts act—Evidence

taken by one judge but judgment delivered by another—Death of trial judge after taking evidence but
before delivery of judgment—Judgment delivered by another judge based on evidence taken by trial
judge—Whether appellate court can interfere with findings of fact made by judge who delivered
judgment.

Evidence—Admissibility—Erroneous admission of evidence—Failure to object—Effect—Omission by

defendants to plead gift of house to them by deceased by samansiw—Attempts by defendants to amend
pleadings to include claim unsuccessful—Evidence led by defendants to establish claim without objection
by plaintiffs—Whether court to take evidence into account in evaluation of facts—Evidence Decree, 1972
(NRCD 323), s 6—High Court (Civil Procedure) Rules, 1954 (LN 140A), Order 28, rr 7 and 12.

Customary law—Samansiw—-Essential requirements—Rationale for publicity—Claim by defendants that

deceased made secret samansiw in their favour—Deceased in perfect health at time of alleged
samansiw—Whether claim to be allowed.

Customary law—Samansiw—Validity—Right to make samansiw when deceased has made a will—Lawful

methods for altering provisions of a will—Samansiw restricted to portions of estate not disposed of by
will—Whether valid testamentary disposition of house can be defeated by samansiw—Wills Act, 1971
(Act 360), ss 5 and 9.

Practice and procedure—Pleadings—Omission—Failure by defendants to plead gift of house by deceased

by samansiw—No issue joined on alleged gift by samansiw—Evidence on samansiw admitted during
trial—Whether trial court order in favour of defendants on samansiw valid.

Wills—Execution—Proof—Handwritten will—No requirement that will be written or typed personally by

testator—Will to be signed by testator or at his direction—Whether handwritten will can be denied
probate only on ground handwriting not that of testator—Act 360, s 2(1).

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Evidence—Witness—Hostile or adverse witness—Credibility —Determination of hostile or adverse

witness—Circumstances in which trial court can believe evidence of adverse witness—Evidence of hostile
witness nugatory, unless independently corroborated—J signing attestation clause that will properly
executed by testator and another witness (Q)—Q affirming due execution of will in his testimony in
court—J denying due execution of will in his testimony in court—Trial court finding J hostile
witness—Effect—Whether trial court erred in accepting J’s evidence to deny probate of will—Whether
Court of Appeal justified in affirming that decision on ground J not hostile but adverse witness—Whether
court can grant probate on uncontested evidence of Q.

Wills—Execution—Attestation—Acknowledgment of signature—Attestation clause signed by two attesting

witnesses (Q and J) that will properly executed—Q affirming in testimony testator signed will in their
presence before both of them signed their portion—J denying seeing either testator or Q sign will but
admitting testator acknowledging his signature on will and signing his portion in presence of testator and
Q—Whether evidence satisfying due execution requirements of section 2(3) and (5) of Act 360—Evidence
of J expunged for being a hostile witness—Whether will can be admitted to probate—Act 360, s 2(3) and
(5).
The plaintiffs, the two executors named in the hand written will of the testator applied to the High Court,
Accra for probate of the will. The defendants, some of the children of the testator alleging that the will
was a forgery filed a caveat against the grant. Following the failure of the parties to reach an agreement,
the plaintiffs, on the order of the trial court, issued a writ against the defendants claiming an order for (a)
grant of probate of the will to them; and (b) removing the caveat filed by the defendants. In their defence,
the defendants denied that the testator had made any handwritten will and rather claimed that the
testator’s will was typewritten but had been suppressed by their stepmother and her children. They then
counterclaimed for a declaration, inter alia, that (i) the handwritten will was not the act and will of the
testator; and (ii) that the will did not comply with statutory requirements. In their reply, the plaintiffs
denied that the testator had made any typewritten will and then averred that the handwritten will had been
signed by the testator in the presence of two witnesses who attested and signed the will in the presence of
the testator. At the trial, the second plaintiff witness (RQ) one of the attesting witnesses, testified that both
he and the third plaintiff witness (J), the other attesting witness, were with the testator when he signed the
will in their presence. And that after that, both J and he signed the will as witnesses to the testator’s
signature. However, in his testimony, J said he did not see either the testator or Q sign the will but he
admitted that earlier the testator

[p.632] of [2003-2005] 1 GLR 630

had invited him to witness a will for him. Counsel for the plaintiffs therefore obtained permission to treat
J as a hostile witness. During his cross-examination, J admitted that at the time he signed the will both the
testator and Q were present and also that he had seen the testator’s signature on the will even though he
had not seen him sign it. In their defence, the defendants contended, inter alia, that (i) both the
handwriting and the signature on the will was not that of the testator; (ii) the document could not be
admitted to probate because since J had testified that he had not been present when both the testator and Q
signed the will, the will had not been duly executed in conformity with section 2 of the Wills Act, 1971
(Act 360) and therefore not valid; and (iii) the testator had made a valid samansiw disposing of some of
the properties to the defendants and therefore the dispositions in the will were so unnatural that they could
not have been written or signed by the testator. After counsel for the parties had filed their addresses but
before he could write his judgment the trial judge, K-A, died. The case was then transferred to a new
judge, G-T. Before him, the parties agreed to adopt the proceedings, and he therefore wrote his judgment
based on the evidence on the record. G-T dismissed the plaintiffs’ action on the ground that since J had
denied having been present and seen the testator and Q sign the will, the will had not been attested in
accordance with the provisions of Act 360, and it was therefore invalid. He accordingly, refused to grant
probate of the will to the plaintiffs. He however held that on the evidence; the testator had made a gift by
samansiw of one of his houses to his elder or senior children. On appeal by the plaintiffs from that
decision, the Court of Appeal held, inter alia, that J had been an adverse rather than a hostile witness and
on the basis of his testimony affirmed the decision of the trial judge that the will had not been attested in
accordance with the provisions of Act 360. The court, however, reversed the finding of the High Court
that the deceased had made a samansiw and held that in any event since the defendants had not
counterclaimed for that relief, the High Court had erred in giving them judgment for it. On appeal by both
the plaintiffs and the defendants from that judgment, the Supreme Court found, inter alia, that (a) J’s
testimony in court had been in conflict with the attestation clause he had signed in the will; (b) the
defendants had not amended their pleadings to counterclaim for relief based on the alleged samansiw; (c)
evidence had been led by the defendants, without objection from the plaintiffs, on the samansiw; (d) that
evidence had been full of contradictions; and (e) the alleged samansiw had been made in secret.
Held: (1) the proposition of law that where the evidence could reasonably support the conclusions of the
trial judge, the appellate judges should not order a reversal just because their assessment and comparison,
or their view of the probabilities might be at variance with those of the trial

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judge, was predicated on the advantage that the trial judge in hearing and seeing the witnesses, including
their demeanor, since the words of a witness in cold print though permanent, it might not be always easy
to assess their impact and credibility. Therefore, where that advantage was not available to the judge who
rendered the verdict, the rule as to expressing preference for the conclusions of the trial judge were less
compelling when the matter went on appeal. In the instant case, since the entirety of the evidence has
been taken by judge K-A who had also received the written addresses for the parties before his death, the
new judge G-T had based his verdict on a mere reading of the record of proceedings, much in the same
way that an appellate judge might read it. In the circumstances, his conclusions in his verdict were not
clothed with the same level of presumption of validity when the judgment was submitted to appellate
review. Accordingly, the court would be more willing to disagree with his conclusions if the evidence on
the record could be read differently from the way he evaluated it. Dictum of Lord Sumner in SS
Hontestroom v Sagaporack [1927] AC 37 at 47, HL distinguished.
(2) The making of a samansiw or customary law will by the deceased was not pleaded in the statement of
defence and was not one of the claims in the defendants’ counterclaim, and since the amended statement;
even if filed with leave, had not been filed within the time limits required by Order 28, r 7 of the High
Court (Civil Procedure) Rules, 1954 (LN 140A), it would have been void ipso facto as the Court of
Appeal rightly pointed out. Moreover, the defendants did not seek to have the defect cured under Order
28, r 12 of LN 140A by asking for the amendment to be regularised during the course of the proceedings.
However, the case had been fought to a considerable extent on the assumption by both parties that the
amendment itself had been properly filed, and extensive evidence to establish that a valid samansiw had
been made by the deceased as contained in the void statement of defence had been admitted without
objection from counsel for the plaintiffs. Since that evidence was not inadmissible per se because a statute
or law had not made it inadmissible, the trial judge, contrary to the position taken by the Court of Appeal,
did not err in admitting the evidence. Accordingly, the court on the authorities and, as provided by section
6 of the Evidence Decree, 1975 (NRCD 323) would take it into account for the purpose of evaluating the
contentions about the probability that the deceased could, in the face of the alleged samansiw, have made
the will in dispute. Atta v Adu [ 1987-88] 1 GLR 233 at 238, SC; Quashie v Boahema [1987-88] 1 GLR
727 at 777, CA and Edward Nasser v McVroom [1996-97] SCGLR 468 cited.

[p.634] of [2003-2005] 1 GLR 630

(3) In many Ghanaian communities including the Ga to which the deceased had belonged, samansiw was
a recognised customary law will. However, since the customary law did not demand writing, it relied on
publicity to avoid false claims and to register the transaction in the public memory. Thus, even though on
the authorities the stringent requirements of the presence of the putative heir, the consent of the family
and the presentation of aseda or thanks-offering had been whittled down, the requirement of publicity had
not been dispensed with. In the instant case, however, the defendants’ claim was that the deceased had
made gifts to them by a secret samansiw, and even after the pleadings had closed, they had kept the
alleged samansiw a secret. Since the deceased was in perfect health at the time the transaction was alleged
to have occurred and there had been no emergency, because of the deliberate secrecy in which it had
allegedly been shrouded, the samansiw would be rejected so as not to open the floodgates to spurious
claims of secret dispositions by secret samansiw to destabilise estates. In re Armah; Awotwi v Abadoo
[1977] 2 GLR 375, CA (full bench) distinguished.
(4) Where it was recognised by his customary law, a Ghanaian was not deprived of his right to make a
samansiw merely because he had made a will under the Wills Act, 1971 (Act 360). However, since under
section 5 of Act 360 any alteration to a statutory will would have no effect unless it was separately
executed as a will, and under section 9 of Act 360 the only methods of revocation of a will were by
another statutory will, tearing or physical destruction, or a written declaration, a statutory will could not
be amended by an oral simansiw. Accordingly, the validity of a samansiw would be restricted to portions
of the estate which had not been effectively disposed of by the statutory will. Accordingly, in the event of
an inconsistency, the simansiw would be void to the extent that it directly or indirectly sought to revoke
or alter dispositions in an existing will. Accordingly, in the instant case, in the event there was a valid
testamentary disposition of the house in dispute to the beneficiaries under the statutory will and a
subsequent valid gift by samansiw by the testator in favour of the defendants, the testamentary gift of the
house would not be defeated by the samansiw.
(5) On the evidence, the defendants did not seek a declaration or otherwise in the original counterclaim
that there was a valid gift by simansiw in their favour. And even though their proposed amendment would
have permitted evidence on the simansiw, there had been no attempt by them to seek that declaration.
Thus, issue had not been joined on the alleged gift by samansiw and the plaintiffs could not be said to
have had

[p.635] of [2003-2005] 1 GLR 630

notice of such a claim. In the circumstances, the trial court should have limited itself to only the claims
enumerated in the counterclaim, which did not include any claim to uphold a gift by samansiw. It did not
matter that evidence touching the samansiw was admitted during the trial. Accordingly, the trial courts
erroneous order in favour of the defendants on the samansiw was absolutely null and void and would be
reversed and expunged. Oloto v Williams (1944) 10 WACA 23; Dam v Addo [1962] 2 GLR 200, SC and
Robinson v Duleep Singh (1879) 11 ChD 798 at 813, CA applied.
(6) Act 360 did not require that a handwritten will be written in the hand of the testator. Section 2(1) of
Act 360 only required that a will be “in writing.” Thus, a will could be written for a testator or could be
typewritten by the testator or some other person for the testator. The only requirement was that the will,
by whomever it was written or typed, had to be duly signed by the testator or some other person at his
direction. Accordingly, a handwritten will could not be denied probate for the only reason that it was not
in the handwriting of the testator himself. Accordingly, in the instant case, it was totally irrelevant
whether the deceased testator wrote the will himself or it was written for him by another person, provided
there had been a proper execution animo testandi.
(7) The fact that a witness called by a party gave an adverse or contradictory testimony did not lead to the
irresistible conclusion that the adverse witness was an untruthful witness. The witness might be adverse
precisely because he insisted on telling the truth rather than commit perjury in support of the fabricated
story of the party who called him. Thus, the trial judge with the benefit of observing the witness might
choose to believe an adverse witness or part of his testimony. A witness was however a hostile witness if
it could be shown that she knew the truth but deliberately persisted in lying to the court. Although the
clearest and easiest way to make that determination was if he had made a previous contradictory
statement, there might be different ways of arriving at that decision. The law was however clear that when
a witness was declared a hostile witness, his evidence was nugatory. It was only in exceptional
circumstances, for instance when the evidence was independently corroborated that the court might rely
on the testimony of a hostile witness and, in that event, the reasons therefor must be articulated. In the
instant case, since the third plaintiff witness (J’s) testimony in court that he had not seen the testator or the
other attesting witness (Q) sign the will, and that he did not see the testator’s signature on the paper he
signed, flatly contradicted his written statement in the attestation clause of the will, he was a hostile and
not an

[p.636] of [2003-2005] 1 GLR 630

adverse witness. His evidence was therefore nugatory. Accordingly, the trial judge erred when he relied
on that nugatory testimony of the third plaintiff witness to hold that the will had not been properly
executed. The Court of Appeal had also erred in affirming the decision of the trial judge but on the
ground that the third plaintiff witness was an adverse rather than a hostile witness. Since the testimony of
the third plaintiff witness was nugatory, his testimony would be expunged from the evidence.
Accordingly, the only remaining evidence regarding the execution of the will was that of Q. His
testimony that the testator had signed the will in his presence and that of J and that both of them
subscribed their names as attesting witnesses present together was not seriously challenged. Furthermore,
his testimony was supported and confirmed by the attestation clause which J himself had signed. In the
circumstances, his testimony might support the grant of probate. Commissioner of Police v Owusu (1958)
3 WALR 364 and R v Harris (1927) 20 Cr App R 144 applied.
(8) The law did not require for the proper or due execution of a will that the attesting witnesses must
necessary see the testator sign his name or that the attesting witnesses had to sign in the presence of each
other. Section 2(3) of Act 360 required that the testator’s signature had to be made or acknowledged by
him in the presence of at least two witnesses present at the same time. Therefore, even if the witnesses did
not see the testator sign his name, it was proper and sufficient if his signature was acknowledged by him.
The acknowledgment of the signature did not need to be in so many words. It might be by a mere gesture.
Furthermore, section 2(5) of Act 360 provided that each of the attesting witnesses had to sign in the
presence of the testator; but they did not need to sign in the presence of each other. Therefore, after the
testator had signed or acknowledged his signature in the presence of both witnesses, one of them might be
away while the other sign in the presence of the testator. Thus, even though it was usual for the attestation
clause to state that the witnesses signed in the presence of the testator “and in the presence of each other”,
that was not a legal requirement. On the evidence, J had admitted that the testator had not only invited
them expressly and specifically to witness his will but had actually laid it on the table before both
witnesses, and therefore the testator had to be deemed to have acknowledged to them his signature on the
document, if it had not been signed in their presence. That had fully complied with section 2(3) of Act
360. Furthermore, with the rejection and expunction of the testimony of the third plaintiff witness, for
being a hostile witness, and leaving the unchallenged evidence of the second plaintiff witness that both of
them had appended their signatures to the will in the presence of the testator; and

[p.637] of [2003-2005] 1 GLR 630

which evidence had been corroborated by the attestation clause which both witnesses had signed, the
requirement of section 2(5) of Act 360 had been satisfied. Accordingly, the will had been properly
executed in accordance with the law. Accordingly, it was admissible to probate. Gaze v Gaze (1843) 3
Curt 451; Keigwin v Keigwin (1843) 3 Curt 607 and In re Swinford (1869) LR 1 PD 630 at 632 applied.

Cases referred to:

(1) Gaze v Gaze (1843) 3 Curt 451; 163 ER 788.
(2) Keigwin v Keigwin (1843) Curt 607; 113 ER 841.
(3) Daintree v Butcher & Fasulo (1883) 13 PD 102, CA.
(4) Swinford, In re (1869) LR 1 PD 630; 30 LT 87.
(5) Ilot v Genge (1842) 3 Curt 161; 163 ER 689.
(6) Hontestroom, SS v Sagaporack [1927] AC 37; 136 LT 33, HL.
(7) Ghana Commercial Bank v Kofie [1963] 2 GLR 235, SC.
(8) Nkyi XI v Kumah [1959] GLR 281, CA.
(9) England v Palmer (1955) 14 WACA 659.
(10) Jacker v International Cable Co Ltd (1888) 3TLR 13, CA
(11) Oppong v Dagomba, Court of Appeal, 13 January 1969; digested in (1969) CC 102.
(12) Adejumo v Abegunde [1965] GLR 499, SC.
(13) Yartey v Construction & Furniture (WA) Ltd [1962] 1 GLR 86, SC.
(14) Marfo v Adusei [1963] 1 GLR 225, SC.
(15) Atta v Adu [1987-88] 1 GLR 233, SC.
(16) Quashie v Boahema [1987-88] 1 GLR 727, CA.
(17) Edward Nasser v McVroom [1996-97] SCGLR 468.
(18) Abowaba v Adeshina (1946) 12 WACA 18.
(19) Summey v Yohuno [1960] GLR 68; Oll Cll 233; affirmed [1962] 1 GLR 160, SC.
(20) Akele v Cofie [1961] GLR 334.
(21) Hausa v Hausa [1972] 2 GLR 469, SC.
(22) Armah, In re; Awotwi v Abadoo [1977] 2 GLR 375, CA (full bench).
(23) Oloto v. Williams (1944) 10 WACA 23.
(24) Dam v Addo [1962] 2 GLR 200, SC.
(25) Robinson v Duleep Singh (1879) ChD 798, CA.
(26) Quartey v King (1969) CC 122.
(27) Commissioner of Police v Owusu (1958) 3 WALR 364.

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(28) R v Harris (1927) 20 Cr App R 144.

(29) Coles v Coles 13 LT 608.
(30) Davies, In the Goods of (1850) 2 Rob Ecc 337; 163 ER 1337.
APPEAL by the plaintiff-appellants from the judgment of the Court of Appeal affirming in part the
decision of the High Court wherein the High Court refused to grant probate of the will of the testator on
the ground that the will had not been duly executed in conformity with the provisions of section 2 of the
Wills Act, 1971 (Act 360). The facts are sufficiently stated in the judgments of Twum and Kludze JSCC.
E Ansah Obiri for the plaintiff-appellants.
Nii Aponsah for the defendant-respondents.

Acquah CJ. I have had the benefit of reading in draft the judgment to be delivered by my learned brother
Kludze JSC. I agree with the reasoning and conclusions and I have nothing useful to add.

Baddoo JSC. I also agree with the judgment of my brother Kludze JSC.

Twum JSC. This is an appeal from the judgment of the Court of Appeal dated 10 May 2001. It
substantially affirmed the judgment of the High Court given on 2 June 1999.

The facts
On 2 December 1986, one Moses Nii Ayikai Okine (the testator) made or purported to make a will of his
self-acquired properties. It was handwritten. In it he appointed Michael Darku Dodoo and Lawrence
Danso Dodoo, his executors. The testator died on 30 May 1989 and the executors applied for probate. It
was granted by the High Court on 17 July 1989.
On 15 September 1989 Louis Ayitey Okine, Elizabeth Dedei Okine, Alfred Armah Okine, Francis Ayitey
Okine, Victor Armah Okine and Mercy Dedei Okine (hereinafter referred to as the caveators) applied to
the court for the revocation of the said probate on the ground that a caveat had been filed by them before
the grant

[p.639] of [2003-2005] 1 GLR 630

of the probate but unfortunately, this was not brought to the notice of the court. The probate was therefore
set aside.
Upon the setting aside of the probate, the executors were served with a copy of the caveat. They then
caused a warning to be served on the caveators under Order 60, rr 17 and 18 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A). On 13 September 1989 the caveators filed their affidavit of interest.
In it they alleged that the will was a forgery. The executors then applied, on notice to the caveators, for
the grant of probate of the will. In their affidavit in support they denied, among others, that the will was a
forgery. In paragraph (26) of their said affidavit, they prayed that probate be issued to them or in the
alternative that the court should order the executors to issue a writ against the caveators. It would seem
that the court made the order for a writ to be issued as prayed.
On 29 November 1989 the executors (as the plaintiffs) issued a writ of summons, accompanied by a
statement of claim, against the caveators (as the defendants), claiming the following reliefs:
“(i) An order for a grant of probate to the plaintiffs for the will of the Late Moses Nii Ayikai Okine who
died on 30 May 1989. The said will is dated 2 December 1986.
(ii) An order removing the caveat filed by the defendants prohibiting the grant of the said probate to the
plaintiffs.”
The defendants filed a statement of defence in which they denied that the testator made any handwritten
will on 2 December 1986, and rather alleged that the testator’s true will was typewritten and that this had
been suppressed by certain interested persons, including their half-brothers and sister and their mother,
Mrs Awura Hannah Okine. They further averred that the alleged handwritten will was perverse and that
the testator had a short time before his death, been receiving rent for the first defendant, Louis Ayitey
Okine. Again, the defendants pleaded that the testator had initiated moves to recover possession of one of
his houses from a tenant with a view to gifting it to the second defendant. They also averred that as
children of a Ga six-cloth marriage, they were entitled to residential accommodation from the testator.
Consequently, they concluded that the testator could not have made the will ascribed to him by the
executors. They counterclaimed as follows:

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“(a) A declaration that the so-called will dated 2 December 1986 was not the act and deed of their late
father Moses Ayikai Okine.
(b) A declaration that the so-called will does not comply with statutory requirements.
(c) A declaration that the so-called will was inconsistent with the last declarations and conduct of the late
Moses Ayikai Okine and could not reasonably or rationally be ascribed to him.
(d) A declaration that as Ga six-cloth children of their father to whose burial expenses they had
contributed, the defendants are entitled to accommodation in any of their late father’s self-acquired
houses like their step-mother’s children.
(e) Perpetual injunction against molestation by the plaintiffs, their agents, etc.”

In their reply and defence to the counterclaim, the plaintiffs reiterated the substance of their averments in
the statement of claim and further denied that the testator made any typewritten will. Rather they averred
that the said handwritten will was signed by the testator in the presence of two witnesses who attested and
signed the will in the presence of the testator.
The action was tried by Kwadu-Amponsem J. Unfortunately, after all the evidence had been taken, he
died before he could write his judgment and the suit was transferred to Gyamera-Tawiah J. Before him,
the parties agreed to adopt the proceedings and he therefore wrote a judgment based on the evidence on
the record. In a short and terse judgment, he held, inter alia, as follows:
“The third plaintiff witness stood his ground and said that he did not see the testator or the other attesting
witness, that is Mr Quaye, signing the will. If this is so, then the will did not meet the statutory requirements,
and I hold so to be an invalid piece of document, and probate cannot be granted to a document which is a
nullity.”

As will be shown below, the learned High Court judge was wrong.
The plaintiffs appealed to the Court of Appeal. Seven grounds were filed as follows:

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“(a) The learned trial judge, Gyamera-Tawiah J, erred in law in rejecting the will of the late Moses Ayikai
Okine for probate on the erroneous grounds that the will did not meet the statutory requirement.
(b) The trial judge erred in failing to observe that the handwritten will of the late Moses Ayikai Okine
which was duly signed by him in the presence of the second plaintiff witness, Charles Armah Quaye
and the third plaintiff witness, Joseph Ayitey Okine, is in keeping with the statutory requirements of
the Wills Act, 1971 (Act 360), s 2.
(c) The trial judge erred in law in giving full weight to the nugatory evidence, of Joseph Ayitey Okine
who tried to deviate from the attestation clause which he signed and was treated as a hostile witness
 with leave of the court.
(d) The trial judge erred in law in not considering the clear evidence of Charles Armah Quaye, the second
plaintiff witness, which fall in line with the attestation clause of the will.
(e) The learned trial judge who did not have the opportunity to listen to the evidence adduced in the case
from the start to the end and confessed of being handicapped in assessing the veracity of witnesses by
their demeanour, did not make any proper findings of fact in the whole case.
(f) The trial judge erred in law in holding that the late Moses Ayikai Okine made a gift of the house at
Asylum Down through samansiw to his elder or senior children.
(g) The trial judge erred in not giving judgment for the plaintiffs against the second to sixth defendants
who abandoned or deserted the case.”

In a well-considered judgment, the Court of Appeal dismissed all but one of the defences and
counterclaims raised by the defendants, particularly the claims based on the so-called samansiw, Ga
six-cloth marriage and the alleged intention of the testator to evict a tenant, Madam Fokuo, so that the
house could be gifted to the second defendant. The Court of Appeal upheld the plaintiffs’ (the
appellants’) ground (f), namely, “the trial judge erred in law in holding that the late Moses Ayikai Okine
made a gift of the house

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at Asylum Down through samansiw to his elder or senior children.” In the view of the court, the
quintessential issue for determination was whether or not the statutory requirements for the due execution
of a will were satisfied in this particular case. Writing the judgment of the court, Benin JA, said:
“I am unable therefore to fault the trial court’s conclusion that the will was not attested in accordance with
the provisions of Act 360 in that the third plaintiff witness was not present when both the deceased and the
second, plaintiff witness purported to have signed the will.”

(The emphasis is mine.) There is no appeal by the defendants (the respondents) in this court. In these
circumstances, I will not review the reasons the Court of Appeal offered in support of their judgment.
Aggrieved and dissatisfied with that judgment, the plaintiffs (hereinafter referred to as the appellants),
have appealed to this court by a notice of appeal filed on 9 August 2001. The grounds of appeal are:
“(a) The Court of Appeal erred in law by affirming the High Court’s judgment of rejecting the will of the
late Moses Ayikai Okine on appeal on the erroneous grounds that the will fails for failure to prove
due execution or meet statutory requirements.
(b) The Court of Appeal erred in law by giving full weight to the nugatory evidence of Joseph Ayitey
Okine, who tried to deviate from the attestation clause which he signed justice (sic) for the Court of
Appeal’s judgment to be received in accordance with rule 76 of the Supreme Court Rules, 1996 (CI
16).
(c) The Court of Appeal failed to adequately consider the fact that the judge who believed the judgment
of the High Court was not the trial judge and who himself confessed of being handicapped in
addressing the [issue of] veracity of the witnesses, and thus the court should have given judgment
based on their own assessment of the facts.
(d) That new evidence available to the appellants exemplified by the attached affidavit hereto require in

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the interest of justice for the Court of Appeal’s judgment to be reconsidered in accordance with rule
76 of CI 16.”

Before I deal with the substance of the appeal, it behoves me to comment on the perfunctory manner in
which the notice of appeal was prepared. Admittedly, a pleading is not necessarily bad merely because it
does not come up to the standard of Bullen and Leake, the well-known practice book on pleadings. But
where the Supreme Court Rules, 1996 (CI 16), have prescribed in Form 1 of its Schedule, the format and
content of a “notice of civil appeal”, it is really unpardonable for learned counsel not to pay heed to the
particular matters set out in Form 1 and in the result make avoidable mistakes. The notice of civil appeal
set out in Form 1 is in six numbered parts. Each part addresses a particular component of the appeal. In
this appeal, counsel inadvertently or otherwise omitted the sub-heading “3 The Grounds of Appeal are ...”
with the result that the grounds of appeal are stated under the sub-heading “2 The part of the decision
complained of . . .” Apart from this serious defect, the second part of paragraph (b) of the grounds of
appeal (as stated above) is incomprehensible and the words “believed” and “addressing” in paragraph (c)
are quite meaningless in the context in which they appear.
One more procedural matter of importance. Paragraph (d) of the grounds of appeal states:
“(d) That new evidence available to the appellants as exemplified by the attached affidavit hereto require
in the interest of justice for the Court of Appeal’s judgment to be reconsidered in accordance with rule
76 of the Supreme Court Rules, 1996 (CI 16).”

Rule 76 of CI 16 provides:
“76. (1) A party to an appeal before the Court shall not be entitled to adduce new evidence in support
of his original action unless the Court, in the interest of justice, allows or requires new
evidence relevant to the issue before the Court to be adduced.
(2) No such evidence shall be allowed unless the Court is satisfied that with due diligence
or enquiry the evidence

[p.644] of [2003-2005] 1 GLR 630

could not have been and was not available to the party at the hearing of the original
action to which it relates.
(3) Any such evidence may be by oral examination in Court, by an affidavit or by
deposition taken before an examiner as the Court may direct.”

It should be obvious that for the “Court to be satisfied” it must be properly moved by an application on
notice to the other party, supported by affidavit setting out the facts upon which the court may be asked to
exercise its discretion to allow new evidence to be adduced. The court does not have untrammeled
discretion. It must be satisfied that “with due diligence or enquiry the evidence could not have been and
was not available to the party at the hearing of the original action to which it relates.” (The emphasis is
mine.) Until that is done, a party shall not be entitled to adduce new evidence in support of his original
action. In this case, learned counsel sought to introduce new or fresh evidence into the record by simply
annexing an affidavit reciting the “fresh evidence” to the notice of appeal without first satisfying rule 76
of CI 16. For this reason, I would expunge the affidavit from the record of appeal and will not consider
any arguments based on it.
Now, to the merits of the appeal. Grounds (a), (b) and (c), as stated above, are amplifications of one
theme, that is whether or not the Court of Appeal was right in affirming the decision of the High Court
which refused to admit the testator’s will into probate because it was not executed in accordance with the
Wills Act, 1971 (Act 360). I shall therefore consider grounds (a), (b) and (c) together.
Section 2 of Act 360, sets out the provisions concerning the execution of a will. I set out below only those
subsections, ie sub-sections (1), (3) and (5) of section 2 that are relevant for the determination of the
appeal:
“2. (1) No will shall be valid unless it is in writing and signed by the testator or by some other person
 at his direction...
(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...

[p.645] of [2003-2005] 1 GLR 630

(5) The witnesses shall attest and sign the will in the presence of the testator, but no form of
attestation shall be necessary.”

During the trial, the appellants called three witnesses to discharge the onus on them in order to establish
due execution of the will. Simmon Sunu, the first plaintiff witness, a district registrar attached to the
Probate Division of the High Court, Accra tendered the will in evidence. It was marked as exhibit A.
During cross-examination, he was asked: “Have you got the affidavit of any of the attesting members to
the late Okine’s will in your custody?” He replied: “We have, because probate has been applied for.”
The next witness to be called was the second plaintiff witness, Charles Armah Quaye, a systems engineer
for Masai Developers. He testified that he had known the testator for about ten years. He identified his
own signature at the bottom of exhibit A. He said he was in his house when one of his daughters went to
tell him that Mr Okine, the testator, had come to the house and said he would like to see him. He said Mr
Okine told him that he wanted him to witness his will for him. He said Mr Okine had the will with him
and that he was accompanied by his nephew Joseph Ayitey Okine. He said Mr Okine (the testator) put the
will on the center table in his hall and signed it. He added that the three of them, the testator, Joseph
Ayitey Okine and he, were present when the testator signed the will. He said the testator signed first,
followed by Joseph Ayitey Okine and he signed last. Under cross-examination, the second plaintiff
witness said the signing took place between 5:30pm and 6pm. He said when he was about to sign the will,
he saw the testator’s signature on it. Finally, it was suggested to him that exhibit A was neither in the
testator’s writing nor did it bear his signature. His reply was: “I signed as a witness to his signature.”
The third plaintiff witness, was Joseph Ayitey Okine. He said he lived at Abossey Okai and that he was a
pensioner. He identified his signature on exhibit A. He said that following his signature was that of
Charles Armah Quaye, the second plaintiff witness. He said, above his signature, was the signature of
Moses Ayikai Okine, the testator. He said in December 1986 the testator called at his house. He was not
in but the testator left a message that he should go and see him. He went to see him on the same day. He
said between 7pm and 7:30pm the testator asked him to accompany him to the

[p.646] of [2003-2005] 1 GLR 630

house of a lawyer to sign a will. They went. In the house he saw Mr Quaye. The testator introduced him
to Mr Quaye. Mr Quaye went out and brought some drinks which he and Quaye drank. He said his
cousin, the testator, took minerals. After that, the testator asked Mr Quaye to bring the will and Mr Quaye
brought it and put it on a table. He said the testator put a hand on the will whilst Mr Quaye put paper on
it. They showed him his position and he signed. He said he did not see either the testator or the second
plaintiff witness sign the will but he admitted that earlier the testator had told him to come and witness a
will for him. He said: “So when I was signing the paper I knew I was signing a will.”
As a result of the testimony of the third plaintiff witness, namely that he did not see either the testator or
the second plaintiff witness sign the will, counsel for the executors applied for permission to treat him as
a hostile witness. Learned counsel for the defendants was right when he submitted that the witness should
be rather treated as adverse witness and not as a hostile one. The reason is that any attesting witness will
be a witness of the court and not that of the party calling him. The record does not show whether or not
the court ruled on the question of the status of the witness but leave was granted and counsel
cross-examined the third plaintiff witness. One important question put to him was: “At the time you were
signing your name here, Moses Ayikai Okine and Mr Charles Armah Quaye were present.” His answer
was: “Yes.” The third plaintiff witness further admitted that he saw the testator’s signature on the will
even though he did not see him actually sign it.
According to the second plaintiff witness, exhibit A was a holograph will. There was some dispute
between the plaintiffs and the defendants about this. The will was certainly handwritten. In my view, for
the purpose of determining whether or not the will was duly executed, it does matter whether or not the
will was composed in the testator’s handwriting. The next point worthy of note is that under section 2(5)
of Act 360, no form of attestation is necessary for due execution of a will. However, where as in the
instant case, the will contained an attestation clause, it is a material circumstance to be taken into
consideration in deciding whether the will was duly executed. The attestation clause in exhibit A reads:
“Signed by the said testator, Moses Ayikai Okine, in the presence of us, present at the same time, who at his
request and

[p.647] of [2003-2005] 1 GLR 630

in his presence and in the presence of each other have subscribed our names as witnesses.”

One fact is admitted by the two witnesses. The third plaintiff witness signed the will in the presence of the
testator and also in the presence of the second plaintiff witness. There is also evidence from the second
plaintiff witness and corroborated by the third plaintiff witness that the will bore the signature of the
testator. According to the second plaintiff witness, the will was placed on the center table in his hall
around which were seated the testator and the two witnesses. The evidence of the second plaintiff witness
was that he signed the will in the presence of both the testator and the third plaintiff witness. What the
third plaintiff witness said was that he did not see the testator or the second plaintiff witness sign the will.
It was on these pieces of evidence that both the High Court and the Court of Appeal rejected the will as
not duly executed in accordance with the statutory provisions. The two courts proceeded on the erroneous
view that the two witnesses must sign their names on the will, in the presence of the testator, both being
present at the same time. In my view, the correct proposition of law is that each of the two witnesses must
sign his name in the presence of the testator but it is not fatal for due execution of the will if it is not done
in the presence of each other. This is because whereas section 2(3) of Act 360 stipulates that “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” (the emphasis is mine); section 2(5) of Act 360 merely requires that: “The
witnesses shall attest and sign the will in the presence of the testator...” (The emphasis is mine.) There is
no requirement that they should be present at the same time. In other words, a witness need not sign the
will in the presence of the other witness so long as he does so in the presence of the testator. For example,
after the two witnesses have together seen the testator sign or acknowledge his signature, one witness
could go to the corridor to answer a phone call whilst the other remained with the testator to sign his
name on the will. If the phone call was for the other witness, that witness having signed his name could
go to take the call whilst the one who first answered the phone now remained with the testator and signed
his name. I hold therefore that the attestation of the will by the second plaintiff

[p.648] of [2003-2005] 1 GLR 630

witness and the third plaintiff witness was complete and valid. Each signed in the presence of the testator!
And that is all that the law requires.
The next matter to be considered is whether the testator himself duly executed the will. I have already
referred to the attestation clause in the will. It is established that where there is a proper attestation clause
in a will, there is a presumption of due execution. The authorities further establish that the evidence of a
witness seeking to impeach his own act when there is an attestation clause must be viewed with extreme
caution and not generally accepted without corroboration. The need for affirmative evidence of due
execution by the testator has arisen because the, third plaintiff witness testified that he did not see the
testator sign the will. Without further examination of the essential elements of section 2(5) of Act 360
both the High Court and the Court of Appeal concluded that the will was invalid. That was a serious error.
They both failed to consider the full effect of section 2(3) of Act 360, that is to say, on the facts of the
instant case, there was sufficient acknowledgment by the testator of his signature within the meaning of
section 2(3) of Act 360.
Act 360, particularly section 2(3) is in pari materia with section 2(9) of the English Wills Act, 1837. In
the circumstances, it is fair to consider how the English courts interpreted their section 2(9) in our search
for the true meaning and intent of our section 2(3) of Act 360. Except for a few minor details, the present
case before this court is on all fours with the case of Gaze v Gaze (1843) 3 Curt 451. In that case, the
testator died on 25 September 1842. A testamentary paper dated 21 April 1842 was propounded as the
last will of the deceased by his executors, Charles Gaze and George Gaze. Its admission to probate was
resisted by John Gaze and other persons entitled to the estate on his intestacy. It was pleaded that the will
was in the handwriting of the deceased and that it was duly executed on 21 April 1842 in the presence of
three witnesses who duly subscribed same in his presence. The first plaintiff witness testified that the
deceased called at his house and requested him to let him use his table in his parlour. The deceased then
placed a folded paper on the table and wrote “something” on the paper but he could not tell what it was.
He covered the unfolded part of the will with a book so he could not see what was written on the paper.
The deceased then asked the witness to sign his name below his

[p.649] of [2003-2005] 1 GLR 630

signature. Witness did that accordingly. Two other witnesses also signed their respective names
underneath the deceased’s name and the name of the first plaintiff witness. The first plaintiff witness said
that to the best of his recollection, the deceased, when he asked him to sign his name pointed to that part
of the paper where his name was prefixed. On cross-examination, this witness said that the deceased did
not sign his name in his presence or acknowledge his name or signature as having been written or signed
on the will in his presence. He said the testator did not do so formally, other than by asking him to put his
name underneath his (the deceased’s) name.
On the other hand, the second plaintiff witness said on 21 December 1842 he had a message from the
deceased to go to the house of the first plaintiff witness. He said he went and he, the deceased and two
other people went into the parlour of the first plaintiff witness together. The deceased, while alone with
the witness, the second plaintiff witness, told him he was going to sign his will and wanted him to sign it.
He said the deceased put a book on it and he could not see what was written on it. The first plaintiff
witness signed, then the second plaintiff witness signed underneath the signature of the first plaintiff
witness. He added that the deceased did not sign it. He merely wrote something on it. The second plaintiff
witness too had no recollection whatsoever that the deceased acknowledged his signature. He only
recollected the deceased asking the first plaintiff witness to write his name underneath his. The third
plaintiff witness confirmed the evidence of the first and second plaintiff witnesses in all material respects.
For example, he confirmed that the deceased pointed to them where they should sign their names.
In its judgment, the court pointed out that nobody had suggested that the signature on the will was not that
of testator. The case of the plaintiff was that no witness saw him sign it. But they also admitted signing
their names below his as directed. The purport of the evidence in the case was that the deceased told two
witnesses that he was going to sign his will, and they went to the appointed place for the purpose. It
happened to be the house of the third plaintiff witness. At the parlour, he produced this paper as his will.
It was already signed and he directed them to sign as witnesses. It was not clear whether the words he
used were “put your names below mine” or he pointed out the place where their names were to

[p.650] of [2003-2005] 1 GLR 630

be signed. The witnesses duly signed their names. The court held that there could be no doubt of the
intention of the deceased that the paper should operate and take effect as his will. Consequently, on the
facts, there was a sufficient acknowledgment by the testator of his signature.
The next case to be considered is Keigwin v Keigwin (1843) 3 Curt 607. Here too, a testator showed a
paper to two persons and requested them to sign it. Both parties observed the signature of the testator on
the will. They did not recollect if the deceased pointed out her signature to them but they recollected the
testator saying to them: “I want you to sign this paper” and pointed out the place where they were to sign.
They also testified that the paper was so folded that they only saw the signature on the paper when they
signed the will in the presence of the deceased and of each other. They did not recollect whether the
deceased pointed out her signature to them as being her name. It was held that the will had been duly
executed. The court said that it was not necessary that the party should say in express terms: “that is my
signature.” It was sufficient if it clearly appeared that the signature was on the will when she produced it
to the witnesses, and was seen by the witnesses when they signed it.
In Daintree v Butcher & Fasulo (1883) 13 PD 102, CA, a testatrix showed a codicil to her last will, which
was entirely in her own handwriting, to one of the attesting witnesses, telling her she had something
which required two witnesses. Subsequently, the second attesting witness having come into the room was
asked either by the testatrix or by the other attesting witness in her presence to sign it and they both
signed. But the testatrix did not tell them that it was a testamentary paper, nor did they know what sort of
paper it was that they had attested. They did not recollect seeing the testatrix sign but one of them was
clear that her signature was on it at the time they signed it. It was held that this was a sufficient
acknowledgment by the testatrix of her signature and consequently the codicil was entitled to be admitted
to probate.
In the case of In re Swinford (1869) LR 1 PD 630 at 632, Sir J P Wilde summed up the authorities on
acknowledgment thus:
“In all the cases that have been decided, either the testator has signed his name in the presence of the
witnesses, or his signature has been or might have been seen by the witnesses,

[p.651] of [2003-2005] 1 GLR 630

or he has informed them that the paper they were about to sign was his will.”

Indeed, the authorities have firmly established that the production by the testator of a document, without
express reference to it as his will, coupled with a request to the witness to attest his signature on it,
constitutes sufficient acknowledgment. This means that, the testator need not inform the witnesses of the
nature of the instrument, much less of its contents. All that is required is that the witnesses must, at the
time of the acknowledgment, see or have the opportunity of seeing the testator’s signature: see Sir David
Hughes Parry: The Law of Succession (1961) at p 16.
From the authorities reviewed above, it is not fatal to the validity of the execution of the will (exhibit A),
that the third plaintiff witness testified that there was a signature on the will (exhibit A) before he signed
his own, even though it was later that he discovered it was that of the testator. Again, the third plaintiff
witness admitted that when he was signing exhibit A he knew that he was attesting to the will of the
testator. He also admitted that at the time he signed his name on the will, both the testator and the second
plaintiff witness were present. The second plaintiff witness on the other hand, went further and said that
the testator signed exhibit A in the presence of both the third plaintiff witness and himself. It must also be
remembered that like the case of Gaze v Gaze (supra), the witnesses had been invited and forewarned that
they were going to witness the testator’s will. Considering the position of the testator’s signature on the
will (exhibit A) and the fact that the signatures of both the second plaintiff witness and the third plaintiff
witness were separated from the testator’s signature by the attestation clause, even if I accept the evidence
of the third plaintiff witness that he did not see either the testator or the second plaintiff witness sign the
will, from the totality of the evidence and all the circumstances, I would come to the following safe
conclusions:
(1) that exhibit A bore the signature of the testator before both the second and third plaintiff witnesses
signed the will. It does not matter whether the testator signed before he and the third plaintiff
witness went to the house of the second plaintiff witness, or whether it was put there when the three
of them sat around the center table;

[p.652] of [2003-2005] 1 GLR 630

(2) the will (exhibit A) was put on the center table of the second plaintiff witness for the purpose of
being executed and attested by the second and third plaintiff witnesses. I hold that this constituted
sufficient acknowledgment by the testator of his signature on the will to both the second and third
plaintiff witnesses;
(3) the third plaintiff witness signed the will in the presence of the testator (and the second plaintiff
witness); and
(4) the second plaintiff witness signed the will in the presence of the testator. On these facts, section
2(3) and (5) of Act 360 was satisfied.
The only matter left for determination is whether or not the executors having pleaded that the testator
signed the will in the presence of the two witnesses, the execution of the will can be sustained on the basis
of the testator’s acknowledgment. In Ilott v Genge (1842) 163 ER 689 at 693, the court held that
notwithstanding the form of the pleading, the court would be inclined to give the party propounding the
will the benefit of any proof which may arise from the circumstances of the case. The courts have a
solemn duty to ensure that when a man has reposed his confidence in the acts of witnesses to sustain the
validity of his will, the same is not aborted unless there are strong and compelling reasons. In my view,
the way the case was pleaded is not one such compelling reason.
In the result, I hold that both the High Court and the Court of Appeal erred when they ruled that the will
of the testator, Moses Ayikai Okine, tendered in this case as exhibit A, was not duly executed in
accordance with the provisions of Act 360. In my view, it was and it should be admitted to probate.
The appeal is accordingly allowed.

Kludze JSC. The plaintiffs-appellants-appellants (hereinafter referred to as the plaintiffs) are the
executors under the piece of writing purporting to be the last will of Moses Ayikai Okine, late of Accra,
who died on 30 May 1989. The defendants-respondents-respondents (hereinafter referred to as the
defendants) objected to probate and had filed a caveat, but inadvertently this was not brought to the
attention of the court. When the error was noticed, the court revoked the probate previously granted to the

[p.653] of [2003-2005] 1 GLR 630

plaintiffs. The parties being unable to reach an agreement, the plaintiffs were ordered to issue a writ of
summons, which they did.
At the commencement of the suit there were six defendants. Before the conclusion of the case, the second,
third, fourth, fifth and sixth defendants were no longer attending court and their representation by the
defence counsel had been withdrawn with the leave of the court. However, the other defendants did not
formally withdraw from the case. As the Court of Appeal observed, even though only the first defendant
effectively continued with the case, the trial court could not have given a judgment which would not
affect the other defendants. From the nature of the case, the trial court could not have held the will to be
invalid as against the first defendant but valid against the other defendants or vice versa. Therefore, unless
the context otherwise indicates, I shall refer to the defendants in the plural.
The suit was tried before Kwadu-Amponsem J at the High Court, Accra. Evidence was concluded by both
parties, and, pursuant to the order of the court, written addresses were filed by both counsel. Because the
other defendants had ceased to participate actively in the proceedings, it was only on behalf of the first
defendant that an address was filed.
Unfortunately, the trial judge could not deliver judgment before his death. By consent of all the parties,
the record of proceedings was adopted. Based on that, the new judge, Gyamera-Tawiah J, who did not
hear the evidence personally, delivered judgment on 2 June 1999. The plaintiffs were aggrieved by the
decision of the court and promptly appealed to the Court of Appeal. In a unanimous verdict, the Court of
Appeal allowed the appeal in part and in part affirmed the lower court.
At the trial, the plaintiffs presented a handwritten document claimed to be the will of the said Moses
Ayikai Okine. It was signed; and the attestation clause declared that two witnesses had subscribed to it as
witnesses to the signature of the said Moses Ayikai Okine. The defendants strenuously argued that the
writing was not the will of the deceased. They raised several objections. They averred that the writing was
not in the handwriting of the said Moses Ayikai Okine as alleged by the plaintiffs. They also denied that
the signature was that of the alleged testator. Above all, the defendants contended that the document
could not be admitted to

[p.654] of [2003-2005] 1 GLR 630

probate because it was not duly executed in conformity with the Wills Act, 1971 (Act 360).
The defendants did not only challenge the alleged will. They also averred that the deceased had made a
valid samansiw disposing of some properties to the defendants. Based partly on the samansiw and other
declarations and expressions of affection for the children who were disinherited by the alleged will, the
defendants also argued that the dispositions in the alleged will were so unnatural that they could not have
been written or signed by the deceased Moses Ayikai Okine.
The High Court denied probate of the will because of improper execution, since it considered that there
was conflicting evidence as to whether the attesting witnesses saw the deceased sign the document held
out to be his will. That court also upheld the samansiw allegedly made by the deceased. The Court of
Appeal affirmed the decision of the High Court that the will was invalid because it was not duly executed
in accordance with Act 360. The Court of Appeal, however, reversed the finding of the High Court that
there was a valid samansiw. The Court of Appeal held that the defendants had not been properly granted
leave to amend their statement of defence to allege a samansiw. The Court of Appeal also held that, in
any event, the High Court erred in giving judgment in favour of the defendants on the samansiw because
the defendants did not counterclaim for that relief. Both the plaintiffs and the defendants are aggrieved by
the judgment of the Court of Appeal.
In the Court of Appeal, and before us, it was urged that we must not disturb the findings of fact made by
the trial judge unless they are wholly unsupportable by the evidence. I accept that as a sound proposition
of law. There is a long line of cases to the effect that, even if the appellate court would have come to a
different conclusion, it should not disturb the conclusion reached by the trial court. This is because the
trial court is presumed to have made the correct findings. Therefore, where the evidence is conflicting, the
decision of the trial court as to which version of the facts to accept is to be preferred, and the appellate
court may substitute its own view only in the most glaring of cases. This is primarily because the trial
judge has the advantage of listening to the entire evidence and watching the reactions and the demeanour
of the parties and their witnesses. The oft-quoted words of Lord Sumner in S S Hontestroom v
Sagaporack [1927] AC 37 at 47, HL are that “. . .

[p.655] of [2003-2005] 1 GLR 630

not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the
trial judge ...” Therefore, unless it is apparent that this advantage of seeing the witnesses and evaluating
their testimony for credibility has been woefully abused, the conclusions of the trial judge should be
respected. In other words, where the evidence can reasonably support the conclusions of the trial judge,
the appellate judges should not order a reversal just because their assessment and comparison, or their
view of the probabilities, may be at variance with those of the trial judge. If the evidence can lead to two
or more plausible conclusions, the conclusion of the trial judge should prevail, even though a different
judge might come to a different conclusion.
It is important to emphasise that these propositions of law are predicated on the advantage that the trial
judge has in hearing and seeing the witnesses, including their demeanour. The words of a witness in cold
print, though permanent, may not be always easy to assess for their impact and credibility. If a witness
hesitated in his answer to the extent that his demeanour cast a doubt on his credibility, this may not be
apparent from the record of proceedings. Therefore, where this advantage is not available to the judge
who renders the verdict, the rule as to expressing preference for the conclusions of the trial judge are less
compelling when the matter goes on appeal.
In the instant case, the entirety of the evidence was taken by Kwadu-Amponsem J, who also received the
written addresses of the counsel for the parties. When, therefore, upon his death, the parties agreed to
adopt the entire proceedings before the new judge, the new judge did not have the normal advantage of a
trial judge in assessing and evaluating the evidence or deciding on the credibility of the witnesses. The
new judge, Gyamera-Tawiah J, acknowledged this when he prefaced his judgment with the candid
observation that “... I am handicapped in the sense that I did not have the opportunity to listen to evidence
given by the various witnesses to observe their demeanour . . .” In the circumstances, the conclusions of
Gyamera-Tawiah J, the judge who eventually delivered the verdict, are not clothed with the same level of
the armour of a presumption of validity when the judgment is submitted to appellate review. The verdict
of the judge in this case is based on a mere reading of the record of proceedings, much in the same way
that an appellate judge might read it. Therefore, for my part,

[p.656] of [2003-2005] 1 GLR 630

I would be more willing to disagree with the conclusions of the deciding judge, if we may so describe
him, if the evidence on record can be read differently from the way he evaluated it. This does not
constitute a departure from the established rule that the conclusion of the trial judge should not be
disturbed unless it is palpably wrong. The exception here is that the judge who delivered the verdict was
not the one who “tried” the case in the conventional sense to which the rule applies. With this caveat, I
will proceed to consider the grounds of appeal argued before us.
I will first deal with the submission that a samansiw or customary law will was allegedly made by the late
Moses Ayikai Okine before his death. There are several layers to the issue of the samansiw and each must
be separately removed for analysis. Two of the issues revolve around law and procedure in the trial court.
There is also the question whether the samansiw was made in the manner required at customary law.
There is the procedural question whether evidence should have been allowed at all on the samansiw. The
making of a samansiw or customary law will by the deceased was not pleaded in the statement of defence
and was not one of the claims in the defendants’ counterclaim. The defendants seem to have later sought
leave to amend their statement of defence to allege a samansiw by the deceased. The record of
proceedings, however, does not show that the motion for leave was ever moved, let alone that leave was
ever granted.
Confronted with this situation, counsel for the defendants adopted a rather cavalier attitude to this issue
when it arose in the Court of Appeal. That is unfortunate. In paragraph (40) of the statement of case for
the first defendant in the Court of Appeal, Mr Nii Aponsah stated:
“If she [ie Emelia Aryee J] had not recorded her ruling on our application for leave to amend, this is not to be
blamed on the defence... the motion for leave to amend the defence was filed on 12 June 1990, that is to say
during Miss Justice Aryee’s apparently high-handed dealing with this case.”

Counsel reiterated this in paragraphs (41) to (44) with attacks on the conduct of Emelia Aryee J, and
concluded that “it would be disingenuous, if not mischievous and unfair to palm a judicial

[p.657] of [2003-2005] 1 GLR 630

misfeasance on to us the defence”, whatever that language means and reveals! It was not proper for the
defence counsel to merely blame this on Emelia Aryee J, who handled the preliminary matters and about
whom counsel did not make very complimentary remarks. It is, to say the least, improper for learned
counsel to make those remarks about the High Court judge, whatever the provocation. In any case, if
indeed Emelia Aryee J failed to record that she had granted the motion for leave to amend the statement
of defence regarding the making of samansiw by the testator, it was the professional responsibility of
counsel to ensure that the ruling on the motion had been properly recorded. If there was this lapse on the
part of the learned judge, counsel had a duty to correct it. This is what the professional responsibility of
counsel requires of him when the appeal record is settled. He had to ensure that a ruling made to his
hearing in court was not omitted, and if the record on the ruling was wrong, to demand that it be
corrected. There is nothing in the record of appeal to show that Emelia Aryee J, or any other judge
granted leave to amend the statement of defence. I am bound to confine myself to the record of
proceedings which, up to this stage, counsel for the defendant has made no effort to rectify.
In any event, as pointed out by the Court of Appeal, if indeed leave to amend was granted by Emelia
Aryee J, then the amended statement of defence was filed out of time. After the preliminary proceedings
before Emelia Aryee J, the case was transferred to Piesare J (as he then was), who, according to the
record, sat on the case on 30 January 1992. However, according to the record, the amended statement of
defence was not filed until 3 September 1993. By that time the matter had been with Kwadu-Amponsem
J, who according to the record, had started hearing testimony on 16 July 1992. The amended statement of
defence, even if filed with leave, was badly out of time, that is at least more than one and a half years
after the case had been transferred from Emelia Aryee J who is alleged to have granted leave. Clearly, the
amendment was not filed within the time limits required by Order 28, r 7 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A). Therefore, if we were to rely on only Order 28, r 7 of LN 140A the
amended statement of defence would have been void ipso facto, as the Court of Appeal rightly pointed
out.
However, it was open to counsel for the defendants to ask for the amendment to be regularised. He made
a professional decision
[p.658] of [2003-2005] 1 GLR 630

against an application in this regard. Order 28, r 12 of LN 140A says:

“12. The Court or a Judge may at any time, and on such terms as to costs or otherwise as the Court or
Judge may think just, amend any defect or error in any proceedings, and all necessary amendments
shall be made for the purpose of determining the real question or issue raised by or depending on the
proceedings.”

If learned counsel had chosen to avail himself of this rule, the fact that the record does not show that leave
for the amendment was formally granted could have been cured. The defect could be rectified at any time
during the course of the proceedings. It would not have created or caused any particular difficulty or
occasioned an injustice, since the case was fought to a considerable extent on the assumption that leave
for the amendment had been granted and that the amendment itself had been properly filed. There is
authority for this. In Ghana Commercial Bank v Kofie [1963] 2 GLR 235 at 236, SC, the Supreme Court
said that, since the plaintiffs’ notice of amendment was before the court at the time it delivered the
judgment, the court should have considered it and amended the claim accordingly in the exercise of its
powers under Order 28, r 12 of LN 140A. The Supreme Court said that in view of this rule it would, if it
were necessary, have no hesitation in invoking its own powers under rule 31 of the then Supreme Court
Rules, 1962 (LI 218) to effect the necessary amendment. Earlier, in Nkyi XI v Kumah [1959] GLR 281,
CA, the old Court of Appeal, then the highest court of the land, did grant leave to the plaintiff to amend
his claim since the amendment did not raise any issue on which evidence had not already been taken. See
also England v Palmer (1955) 14 WACA 659. Before us, as also before the Court of Appeal, the
defendant has not seen it fit to ask for the exercise of our powers to effect the amendment, and I do not
think that we should do so proprio motu.
Nevertheless, evidence on matters contained in the void amended statement of defence was admitted
without objection from counsel for the plaintiffs. In particular, considerable evidence was adduced by the
defendants to establish that a valid samansiw had been made by the deceased, Moses Ayikai Okine.
Before the

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enactment of the Evidence Decree, 1975 (NRCD 323), there was a divergence of judicial opinion on the
question whether the trial court may rely on evidence admitted without objection, where the matter was
not pleaded. The line of cases relying on Jacker v International Cable Co Ltd (1888) 5 TLR 13, CA and
Oppong v Dagomba (1969) CC 102, held that evidence led in an attempt to prove facts which had not
been pleaded was inadmissible by reason of the failure to plead them. However, even before NRCD 323,
there were other authorities to the effect that evidence on matters not pleaded, if adduced without
objection, must be considered by the court. It is, for instance, stated in the headnote to Adejumo v
Abegunde [1965] GLR 499, SC, decided by the Supreme Court, that: “although evidence is inadmissible
to prove material facts which have not been pleaded, yet when such evidence is adduced at a trial without
objection from counsel, the trial judge is bound to take it into consideration.” See also Yartey v
Construction & Furniture (WA) Ltd [1962] 1 GLR 86, SC and Marfo v Adusei [1963] 1 GLR 225, SC,
both decided by the Supreme Court.
Since the promulgation of NRCD 323 it is now beyond dispute that evidence let in without objection
must be considered by the court even if the facts to be proved had not been pleaded. Section 6(1) of
NRCD 323 now provides that: “In every action, and at every stage thereof, any objection to the
admissibility of evidence by a party affected thereby shall be made at the time the evidence is offered.” In
Atta v Adu [1987-88] 1 GLR 233 at 238, SC Francois JSC, speaking for a unanimous Supreme Court,
interpreted this to mean that where evidence is not pleaded but is let in at the trial, the court is obliged to
consider the matter so let in. Earlier than that, in Quashie v Boahema [1987-88] 1 GLR 727 at 733, CA,
actually decided in 1985 by the erstwhile Court of Appeal as the court of final resort, it was again
unanimously held that where evidence is let in without objection or drawn from a party in
cross-examination, the trial court, in the light of section 6 of NRCD 323, is bound to consider the
evidence. For, in that case, it was evidence that properly became part of the case of the party that led the
otherwise inadmissible evidence.
The matter has now been authoritatively resolved by this court. In Edward Nasser v McVroom [1996-97]
SCGLR 468 the plaintiff sued his employer for negligence because a house allocated to him by the
employer had caught fire, resulting in the destruction of his

[p.660] of [2003-2005] 1 GLR 630

property. He alleged that the fire was caused by faulty electrical wiring. There was nothing in the
pleadings alleging an absence of a building permit, the age of the building or the nature of the
construction. However, evidence was led by the plaintiff’s witnesses concerning building permits,
certificate of occupancy, construction and age of the building, without objection from the defendant. On
appeal, it was argued for the defendant that the trial court erred in considering such evidence when those
facts had not been pleaded. Writing for the unanimous Supreme Court, Acquah JSC (as he then was),
examined the state of the authorities. He then said at 477:
“The correct answer, in the light of the Evidence Decree, 1975 ... is that where evidence in respect of an
unpleaded fact had been led without objection, unless that evidence is inadmissible per se, the court is bound
to consider that evidence in the overall assessment of the merits of the case. And an appeal or review against
the judgment may succeed only where it is established that the admission has occasioned a substantial
miscarriage of justice.”

An exception is made for only evidence which is inadmissible per se. Evidence is inadmissible per se
when a statute or law makes it inadmissible and its inadmissibility is not founded upon the fact that the
matter to be proved by that evidence had not been pleaded. As was explained in Abowaba v Adeshina
(1946) 12 WACA 18, the types of evidence inadmissible per se include hearsay, unstamped documents
and unregistered documents. It is the law itself which makes them inadmissible, and they are inadmissible
even if the opposing party does not object. However, as pointed out by Acquah JSC (as he then was) in
Edward Nasser v McVroom (supra): “Our Evidence Decree, 1975 has made a number of major in-roads
into the law of hearsay, and consequently hearsay evidence cannot under the Evidence Decree, 1975 be
said to be inadmissible per se.”
In the present case, extensive evidence was led without any objection whatsoever regarding the making of
a samansiw. This was not evidence that can be said to be inadmissible per se. The only criticism now is
that the matter of the samansiw had not been pleaded and evidence relating thereto should have been
rejected.

[p.661] of [2003-2005] 1 GLR 630

The Court of Appeal pointed out that the samansiw should have been specifically pleaded under Order
19, r 16 of LN 140A and, as that was not done, the “trial court ought to have refused any attempt to
introduce the evidence on ‘samansiw.’’’ I disagree. Since counsel for the plaintiffs did not object to the
evidence being led, the trial judge did not err in admitting the evidence which was not inadmissible per
se. If the evidence had fallen into that category of evidence which was inadmissible per se, the court
would have been obliged to reject it even if there was no objection.
In the present case, as I have said, the evidence was not inadmissible per se. The only technical objection
to the evidence, as the matter came on appeal, was that the samansiw was not pleaded, and, therefore,
evidence regarding the samansiw should not have been allowed. In this regard, I respectfully disagree
with the Court of Appeal that the evidence relating to the samansiw may not be considered by the trial
court, merely because the samansiw was not pleaded. The decision by this court per Acquah JSC (as he
then was) in Edward Nasser v McVroom (supra), applies to this case and the evidence led without
objection, albeit relating to unpleaded matter, ought to be considered by the court and by us on appeal. I
shall, therefore, take into account the evidence on record pertaining to the samansiw, for the purpose of
evaluating the contentions about the probability that the deceased could, in the face of the alleged
samansiw, have made the will in dispute. The alleged samansiw contains provisions diametrically
opposed to many of the dispositions and statements in the alleged will. The samansiw is, therefore,
offered at least in part as evidence that it was highly improbable that the deceased could have made such a
will.
The samansiw or customary law will is an alternative method of testation in some Ghanaian communities
but not in all. It is certainly not recognised as a valid exercise of the testamentary power among the Ewe.
Although the Ewe would wish to give effect to the last wishes of a deceased person, any such declaration
of wishes by a deceased is not enforceable as a will and has no binding effect on the family or on
individuals interested in the estate: see A K P Kludze, Ewe Law of Property (Sweet & Maxwell, London,
1973) at pp 316-317. In many other Ghanaian communities, including the Ga to which the deceased
belonged, the samansiw is a recognised customary law will. Where it is

[p.662] of [2003-2005] 1 GLR 630

recognized by his customary law, a Ghanaian is not deprived of making the samansiw merely because he
has made a will under Act 360. Therefore, assuming that Moses Ayikai Okine had made a valid statutory
will on 2 December 1986, he could subsequently make a valid samansiw on 2 May 1987. The validity of
the samansiw made after a statutory will would, however, be restricted to portions of the estate which had
not been effectively disposed of by the statutory will. The reason is that a statutory will cannot be
amended by the oral samansiw. By virtue of section 5 of Act 360, any alteration to a statutory will has no
effect unless it is separately executed as a will. Furthermore, section 9 of Act 360 stipulates the only
methods of revocation of a will, to wit, by another statutory will, tearing or physical destruction, or a
written declaration. The samansiw is not one of the methods for revocation of a will made under Act 360.
Therefore, even if the samansiw was validly made by the deceased, it cannot operate to alter or revoke the
existing statutory will. The samansiw or customary law will, even when recognised by the deceased’s
customary law, can only co-exist with the statutory will to the extent that there is no inconsistency. In the
event of an inconsistency, the samansiw is void to the extent that it directly or indirectly seeks to revoke
or alter dispositions in an existing statutory will. Assuming, therefore, that there was a valid statutory will
giving house No 14, Mango Tree Avenue, Asylum Down, Accra to the beneficiaries under the statutory
will, and a subsequent otherwise valid gift by samansiw was made in favour of the defendants, the
testamentary gift of the house cannot be defeated by the samansiw. Of course, if a gift inter vivos was
made of the same house to the defendants after the making of the statutory will, the effect will be
ademption of the gift in the will without revoking it. We are not presented with that scenario because the
averment is that of a samansiw to take effect at death rather than a gift inter vivos.
I come now to the evidence on the making of the samansiw or customary law will by Moses Ayikai
Okine, the deceased. The first defendant led evidence with witnesses to establish that on 2 May 1987 the
deceased made a samansiw in favour of some of his children other than those mentioned in the alleged
statutory will. The beneficiaries of the samansiw were the first, second, third, fourth, fifth and sixth
defendants. According to the first defendant witness, on 2 May 1987, he, a brother of the deceased, was
invited

[p.663] of [2003-2005] 1 GLR 630

to the house of one Ayitey Adjin, a herbalist who was also a brother of the deceased. At the house of
Ayitey Adjin, the deceased informed him (the first defendant witness) and Ayitey Adjin that “after his
death the house at Asylum Down was gifted to his children from Akim Oda, Saltpond and Faase. It was
there that the children thanked their father much.” Also present were Ayitey Okine and Danso Appiah III,
the Akwamuhene of Akim Kotoku who was one of the children of the deceased. The evidence was that
the children beneficiaries presented what was referred to as aseda (although that is not a Ga word) in the
sum of ¢25,000 to thank their donor father. Beyond that, the evidence is conflicting. According to the first
defendant witness, “Nana Danso does not understand Ga; so Moses Ayikai Okine spoke to him in Akan
for him to understand what exactly took place.”
When Nana Danso Appiah III himself gave evidence as the second defendant witness, he contradicted the
first defendant witness on the medium of communication. This was Nana Danso Appiah’s
cross-examination:
“Q You don’t speak Ga, do you?
A I do.
Q You don’t understand Ga too?
A Yes, I do.
Q We have evidence from the first defendant witness that somebody had to interpret to you because you
don’t speak Ga?
A Not at all.
Q The first defendant witness testified that you did not understand Ga, so he helped to interpret what
took place to you?
A He did not; because he does not speak Twi.”

The deceased was a Ga, and so were his children and brothers who were alleged to be present when the
samansiw was made.
What does one make of evidence of this nature? Not having the benefit of hearing the witnesses or
watching their demeanour, this obvious conflict in the testimony raises a serious doubt in my mind as to
whether a samansiw was made at all. In this regard, I think that I am in the same position of handicap as
Gyamera-Tawiah J, who gave the judgment in the High Court. He also did not listen to

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the evidence but relied on the record of proceedings made by a different judge. Therefore, he is not better
placed than I am in evaluating the evidence. Therefore, I am not bound by authority to defer to his
conclusion. In my opinion, the disagreement between the vital witnesses as to the language in which the
formalities of the samansiw occurred is so substantial an issue that it casts a grave doubt on the samansiw
story. If this were the only issue before me, I would reject the samansiw as unproven when the parties
could not agree on the language spoken and it is suggested that even a witness did not quite understand
what had transpired that day.
There is also a fundamental problem with the samansiw even as related, assuming that it occurred in a
language that was understood by all the parties present. The problem is that this was presented to be a
secret samansiw. According to the defendants, the secrecy was the reason why the samansiw was not
originally pleaded by them. Therefore, when later in the proceedings it was decided to plead the
samansiw, the defendants were at pains to explain that it was not a lie concocted as an afterthought.
According to the defendant witnesses, Louis Ayitey Okine, one of the children of the deceased and the
first defendant in this suit, was present when the samansiw was made. Therefore, Louis Ayitey Okine, the
first defendant, swore an affidavit on 14 June 1990 in support of the leave to amend the statement of
defence so as to plead the samansiw. In the record of appeal is the affidavit of Louis Ayitey Okine in
support of the motion for leave to amend the statement of defence, a motion that does not appear from the
record to have been moved. Although the motion was apparently not moved, the affidavit of the first
defendant, Louis Ayitey Okine, is on the record. The first defendant says in paragraph (2) that: “We
originally did not want the facts about the gift to become known to our step-mother because our father
told us not to let her know of the same...” In paragraph (3) he adds: “After the death [ie of their father
Moses Ayikai Okine] we still felt an obligation to honour his injunction . . .” Then he offers an apology in
paragraph (4) that “We regret that our father’s solemn injunction to keep the gift away from the
knowledge of our step-mother should have driven us into silence over that fact until now.”
For my part, I would refuse to enforce an alleged samansiw that is made in deliberate secrecy. The
recurrent theme in all our cases on samansiw, as in other customary law transactions, has been to

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demand wide publicity. A system of law, such as the customary law, which does not demand writing,
relies on publicity to avoid false claims and to register the transaction in the public memory. It is for this
reason that, in cases like Summey v Yohuno [1960] GLR 68 and Akele v Cofie [1961] GLR 334, Ollennu J
(as he then was) insisted on such factors as the presence of the putative heir, the consent of the family and
the presentation of aseda or thanks-offering. In subsequent cases, these requirements were whittled down
because of the stringent forms in which they were formulated; but it was never intended to encourage the
making of the samansiw in secret. In Hausa v Hausa [1972] 2 GLR 469, SC, dicta from the Supreme
Court suggested that the presence of two disinterested witnesses would be enough to uphold a samansiw.
Later, in In re Armah; Awotwi v Abadoo [1977] 2 GLR 375, CA the full bench of the Court of Appeal
(the equivalent of the present Supreme Court) categorically approved a samansiw made in the presence of
only one witness. In Awotwi v Abadoo (supra), the Archdeacon who took down the oral dispositions, did
state that he was to keep the contents in confidence until the death of the declarant. However, I do not
think that the case can be understood to open the door to secret samansiw or to dispense with publicity.
Unless we rein in the relaxation of the procedures for making samansiw, we assume the risk of running
down the slippery slope. If we allow the secret samansiw in this case, cases may soon arise when, after
the death of a father, individuals or a set of children would allege gifts made to them in secrecy by
samansiw, may be five or ten years prior to death. If a person in good health can make a secret samansiw
any time before his death, it would unsettle estates of deceased persons, including those who make wills.
It would open the door to perjury and subornation of perjury, as secret witnesses may be procured to
testify to secret samansiw which had not been revealed to any person except themselves. That is exactly
what is being alleged in this case. Even after the pleadings had closed, the alleged samansiw was kept
secret. This must be contrasted with Awotwi v Abadoo (supra). In Awotwi v Abadoo (supra), the court was
dealing with a death-bed disposition made within only about ten days before the death of the declarant. In
fact, the court in Awotwi v Abadoo (supra) confined itself to only death-bed dispositions in the form of
samansiw, giving some credence to the view that the samansiw must be a death-bed declaration,

[p.666] of [2003-2005] 1 GLR 630

although Sarbah suggests that it may also be made in good health. Furthermore, the Archdeacon, who was
the parish priest of the deceased, was regarded as a disinterested witness. One cannot vouch for the
disinterestedness of the witnesses in the present case. Therefore, I would reject the samansiw because of
the deliberate secrecy in which it was allegedly shrouded even though there was no emergency, as the
transaction apparently occurred when the deceased was in perfect health. We must not open the
floodgates to spurious claims to destabilise estates by upholding secret dispositions by secret samansiw.
In any case, as pointed out by the Court of Appeal, no judgment can be pronounced on the validity of the
samansiw. Relief in that respect was not claimed in the original counterclaim. Even when a motion for
leave to amend the statement of defence was filed, it contained no claim for a relief in the form of a
declaration or otherwise that there was a valid gift by samansiw. Therefore, even if the statement of
defence had been properly amended in terms of the motion for leave, there would have been no change in
the reliefs sought in the counterclaim. Even though the proposed amendment would have permitted
evidence on the samansiw, there was no attempt to seek a declaration that there was a valid gift by
samansiw. This being the case, the trial judge erred in law in giving judgment in favour of the defendants
on the samansiw. In Oloto v Williams (1944) 10 WACA 23, the West African Court of Appeal held that
in giving judgment the court must confine itself to what the party claimed, as can be ascertained from the
claims indorsed on the writ of summons. This means that the trial court in the present case must have
limited itself to only the claims enumerated in the counterclaim, which did not include any claim to
uphold a gift by samansiw. It did not matter that evidence touching the samansiw was rightly or wrongly
admitted during the trial. The decision in Oloto v Williams (supra) was applied by the Supreme Court in
Dam v Addo [1962] 2 GLR 200, SC, in which the court explained that it is a travesty of justice if
judgment is given against a party on a ground on which he did not have notice from the writ of summons
or, as in this case, the counterclaim. See also Robinson v Duleep Singh (1879) 11 ChD 798 at 813, CA.
The summons for directions contains as much as fourteen issues, but nowhere does it mention the
samansiw. Issue was not joined on the alleged gift by samansiw because there was no such claim before
the court; and the plaintiffs

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cannot be said to have notice of such a claim. In my opinion, an order for a relief that was not claimed on
the writ of summons or in a counterclaim is “absolutely null and void” and must be reversed and
expunged. Therefore, I would affirm that part of the judgment of the Court of Appeal which set aside the
trial court’s verdict that “the said Moses Ayikai Okine did gift the house at Asylum Down through
samansiw to his elder or senior children . . .” That relief was not claimed in the defendants’ counterclaim
or in their abortive amendment of the statement of defence.
It remains to deal with the paper writing presented to the court as the will of the late Moses Ayikai Okine.
Several objections were taken to the will by the defendants. It was argued that the will was not in the
handwriting of the testator, Moses Ayikai Okine. The signature on the alleged will was also disputed.
However, the most fundamental attack on the validity of the will was that it was not properly executed
because of improper attestation. We may examine the evidence on which these attacks are founded.
Before doing so, I would like to say that in all cases, the burden lies on the propounder of a will to satisfy
the court that the document presented for probate is the freely executed will of a competent testator. If the
proof provided by the propounder leaves the court in doubt, the will may be denied probate. Therefore, in
the instant case, the plaintiffs, who are executors propounding the will, assume the onus probandi under
which they must prove both capacity and due execution. Technically, the defendants assume no burden of
proof. However, as in all cases of civil litigation, once primary facts are established by the plaintiffs
which would point to due execution, the risk of non-persuasion may shift to the defendants, but only in
the limited sense that, if they do not offer sufficient countervailing evidence, they run the risk that the
court may pronounce for the will. Therefore, we must consider the evidence by the plaintiffs against that
offered by the defendants. The capacity of the deceased to make a will was not questioned; neither were
other vitiating factors such as fraud, duress or undue influence alleged to defeat the will. The main bone
of contention is compliance with the formalities for execution under our Act 360 and doubts on both the
writing and the authenticity of the signature.
I would first deal with the contention about the writing. This is a handwritten will, and the defendants
contended that it was not in the handwriting of the deceased, Moses Ayikai Okine. When the

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first plaintiff gave evidence he was cross-examined on the writing. He said that he was not present when
the deceased signed the will. Then it was put to him that: “…you are relying on hearsay to say that this
was his handwriting.” He replied “it is not correct. I know his handwriting. I can decipict (sic) it.” On the
next page, he said his opinion, was not “baseless.” The defendants’ counsel then said: “I am suggesting
further to you that neither the writing nor alleged signature is that of Mr Okine.” The first plaintiff replied
“My lord, it is a wicked suggestion.” The trial judge did not think it was rude. At the Court of Appeal and
before us, it was contended for the defendants that this was a rude answer to which we should not refer.
With great respect for learned counsel, I think that the witness used such language only for the purpose of
emphasis.
When the second plaintiff witness, Charles Armah Quaye, who was one of the two attesting witnesses,
testified, he was not asked whether the writing on the paper presented as Mr Okine’s will was in Mr
Okine’s handwriting. Mr Quaye, who described himself as a systems engineer, said: “Mr Okine signed
the will in my house in my hall. The three of us were there...Mr Okine signed first...” Therefore, the only
person who testified that he could identify the writing as being in the hand of the deceased, Mr Moses
Ayikai Okine, was the first plaintiff who was not shaken in his evidence.
In the face of this, counsel for the defendants says that we should reject the paper writing presented as the
will of Moses Ayikai Okine because it was not satisfactorily established that it was in the handwriting of
the deceased. He argues that as the genuineness of the handwriting had been attacked with the averment
that it was not in the hand of the alleged testator, the burden was on the plaintiffs, as propounders of the
will, to prove it. He elaborates that there must be other writings of the deceased which the plaintiffs could
have produced as specimens to be compared with the writing of the alleged will. Since this was not done,
counsel invites us to hold that the will is not in the handwriting of the alleged testator. For my part, I find
this argument unconvincing. Learned counsel for the defendants, for a reason I cannot understand,
vehemently argues that a disputed writing can only be established as genuine when it is compared with an
undisputed specimen of a writing by the alleged author. That is a fallacy. Such a comparison may resolve
doubts if an undisputed is available, and an appropriately qualified calligraphic engaged to undertake the
task; but

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that is hardly the only way. In any case, proof by comparison is not a requirement of the law. In Quartey
v King (1969) CC 122, the circuit court applied the same erroneous reasoning and dismissed the
plaintiff’s case because he did not provide a proper specimen writing of the deceased for comparison. On
appeal, the Court of Appeal reversed the circuit court. The Court of Appeal (per Lassey JA) said that the
comparison with a specimen writing was not the only way of proving a writing or a signature. There are
several other ways to prove one’s writing, including the testimony by a witness who saw the document
written or signed.
In this case, the only evidence on record positively identifying the will as being in the handwriting of the
testator came from the first plaintiff who said he knew the deceased very well. That being the case, if the
defendants had reason to believe that the handwriting was not that of the deceased, they also had the
option of leading evidence to contradict the testimony of the first plaintiff including the production of an
undisputed specimen of the deceased’s writings for comparison. It must have been easier for the
defendants, as children of the deceased, to supply samples of their father’s writing. I think it would have
been easier for the defendants who are children of the deceased, than for the plaintiffs who were merely
executors. In their wisdom, the defendants chose not to lead evidence in contradiction. They also chose
not to provide any samples to disprove the testimony that the handwriting was that of Mr Okine. True, the
defendants did not bear the burden of proving that the handwriting was not that of their father, the late
Moses Ayikai Okine. The burden was always on the plaintiffs to prove everything necessary to satisfy the
court that the paper writing was the will of the deceased. However, in the circumstances in which the
court was left with only the testimony of the first plaintiff that the handwriting was that of the deceased,
the court was, in my opinion, justified in accepting that evidence that the writing was in the hand of the
deceased. I cannot see how the court could have reached any other conclusion. A bald denial of the
handwriting, especially when essentially undertaken inferentially by cross-examination, cannot suffice to
overcome the positive identification of the writing by a witness who knew the testator and his
handwriting.
In any case, the question of the authorship of the handwriting is a big red-herring. It is of no legal import.
Our Act 360 does not

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require that the will be written in the hand of the testator. Section 2(1) of Act 360 only requires that a will
be “in writing.” The writing can be in the hand of a person other than the testator himself. In other words,
it can be written for him. It can be typewritten by the testator or by some other person for the testator. The
only requirement is that the will, by whomever it is written or typed, must be duly signed by the testator
or by some other person at his direction. This being the law, the writing cannot be denied probate for the
only reason that it is handwritten but not in the handwriting of the testator himself.
The only circumstance under our law when the handwriting may be a relevant issue is where we are
concerned with the privileged will of a member of the Armed Forces. Under section 6(l)(a) of Act 360 a
member of the Armed Forces, while engaged on active service, may make a valid will if it is “written and
unattested, if the material provisions and signature are in the handwriting of the testator.” That is not the
case we are called upon to decide.
In some foreign jurisdictions, what are known as holographic wills are allowed by law. I understand that
the word comes from two Greek words which mean “whole” and “written.” Holographic wills were
presumably permitted in England in the early ecclesiastical courts with respect to personal property but
were abolished by the Wills Act of 1837: see Helmholz, The Origin of Holographic Wills in England Law
(1994) 15 Journal of Legal History 97. They were re-introduced in Europe under the Napoleonic Code,
and have since been adopted in many of the American jurisdictions. The Uniform Probate Code, adopted
by the prestigious American Law Institute, provides for it in section 2-502(b). Originally the holograph or
olograph is a will entirely in the handwriting of the testator and signed by him. If these requirements are
satisfied the will is admissible to probate without an attesting witness. In recent years, some countries
have amended their laws by statute, or judicial interpretation, to hold that the will is admissible to probate
as holographic, if the material provisions thereof are in the testator’s handwriting and it is signed by
himself. This latter characterisation of the holographic will appears to be by definition similar to the
privileged will of a member of the Armed Forces engaged on active service under section 6(1)(a) of our
Act 360 because that section requires “the material provisions and signature [to be] in the handwriting of
the testator.” Short of

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allegations of forgery, it is only in the case of a privileged will under section 6(1)(a) of our Act 360 that
the question can truly arise as to whether the handwriting is that of the testator.
Our law does not recognise holographic wills. And what is here offered as the will of the late Moses
Ayikai Okine is not presented as a privileged will of a member of the Armed Forces engaged on active
service. It is, therefore, totally irrelevant whether Mr Okine wrote it himself or it was written for him by
another person, provided there was a proper execution animo testandi.
A feeble attempt was made by the defendants to suggest that the signature on the paper writing is not that
of the late Moses Ayikai Okine, the testator. Except indirectly by cross-examination, counsel for the
defendants did not even as much as endeavour to offer any evidence to contradict the plaintiffs’ assertion
that the signature was that of Mr Okine himself. As in the case of the handwriting, the defendants did not
produce any evidence to show that the signature was not that of Mr Okine or that it was forged. The
defendants, children of the testator, were uniquely placed to have in their custody a specimen signature of
a father to whom they claimed to be very close in a paternal bond. Although the defendants did not bear
any onus of proof, a specimen signature of their late father, if introduced in evidence, would have settled
any possible doubts about the authenticity of the signature on the alleged will. Instead, the defendants, as
they were entitled to do, chose to rely on the plaintiffs to prove their case. The result of this litigation
strategy adopted by the defendants was that the only evidence on record is that of the second plaintiff
witness, Charles Armah Quaye. Mr Quaye was one of the two attesting witnesses. His testimony covers
pages 67 to 70 of the record. He stated that he had known the deceased for about ten years. On the
signature, he testified in his examination-in-chief that:
“… Mr Okine signed the will in my house in my hall. Three of us were there... He signed here (witness
points to page 3 middle). Mr Okine signed first... He sat down and signed it... Mr Okine signed in my
presence and in my hall.”

Under cross-examination, the second plaintiff witness maintained that he had known Mr Okine for “about
ten years” before the

[p.672] of [2003-2005] 1 GLR 630

latter’s death. Then came the following exchange with counsel for the defendants: “Q At the time you
were going to put your signature on the document, did you see Mr Okine’s signature on it? A Yes.”
In my opinion, even without the benefit of seeing the demeanour of the witness, the second plaintiff
witness did not appear to waver in his categorical assertion that the signature was that of the late Moses
Ayikai Okine. He knew Mr Okine very well and was present when the will was signed in his (the
witness’s) house. There is nothing on the record to cast any doubt on the finding that the signature on the
will was that of the testator, Moses Ayikai Okine. As I have already said, in the teeth of such convincing
evidence, it is not enough for the defendants to merely say they reject the signature. They need an almost
equally convincing evidence to tilt the balance of probabilities in their favour, as in any civil litigation.
The defendants are not the proponents of the will and do not bear the burden of proof of due execution.
However, on certain issues, they may bear the risk that a finding may be legitimately made against them
in the absence of evidence to the contrary of what their opponents have established.
I must now address the question whether the purported will of the deceased, Moses Ayikai Okine, was
properly executed in conformity with the formalities prescribed by Act 360. To do so, however, we must
evaluate the testimony of the third plaintiff witness, Joseph Ayitey Okine, one of the two attesting
witnesses.
My lords, the plaintiffs presented the third plaintiff witness, Joseph Ayitey Okine, as one of the two
witnesses who attested the contested will. His testimony was, however, unfavourable to the plaintiffs. He
had signed the attestation clause of the will, in which it was stated that the testator had signed the will in
the presence of himself (the third plaintiff witness), and the other attesting witness; and that the witnesses
also signed in the presence of the testator and of each other present at the same time. On the witness
stand, however, the third plaintiff witness stated that he never saw the testator sign the will, and neither
did he see the other witness sign. He said the will was covered when he was simply directed to sign on the
paper at a particular spot; and, therefore, not only did he not see the signature of the testator on the paper
but he did not also read what was written on it. He said that he knew that he was to witness a will because
he had been invited by the testator, his cousin, for

[p.673] of [2003-2005] 1 GLR 630

that purpose. In the circumstances, he was, with the permission of the court, treated as a hostile witness by
counsel for the plaintiffs who had called him. Counsel for the plaintiffs was allowed to cross-examine the
third plaintiff witness as a hostile witness.
At the close of the trial, learned counsel for the defendants submitted, inter alia, that as a hostile witness,
the testimony of the third plaintiff witness regarding due execution was “nugatory.” By that he meant that
no reliance could be placed on his testimony. Counsel, therefore, further submitted that as there was the
testimony of only one attesting witness rather than two, the will should be denied probate. Unfortunately,
the judge who listened to and recorded the evidence of the parties and their witnesses died before
judgment. The case was thereupon transferred to a new judge who, upon agreement by the parties to
adopt the proceedings, delivered judgment. If the judge who delivered judgment had seen and observed
the witnesses and their demeanour, he could decide to believe the hostile witness even though he was so
classified. In the present case, however, Gyamera-Tawiah J, the “deciding judge”, if I may so refer to him,
did not see or listen to the hostile witness in person. He also made no effort to consider the legal effect of
the testimony by a hostile witness but proceeded to render his verdict denying probate of the will. All he
said was:
“The third plaintiff witness stood his ground and said he did not see either the testator or the other attesting
witness, ie Mr Quaye, signing the will. If this is so, then the will did not meet the statutory requirement. And
I hold so to be an invalid piece of document, and probate cannot be granted to a document which is a
nullity.”

The learned deciding judge did not explain how and why he chose to rely on the evidence of the hostile
witness in concluding that there was not a proper execution. Neither did he elaborate on his reasoning that
the formalities of Act 360 were not complied with. No wonder this drew a comment from the Court of
Appeal that the judge had taken “too hasty and simplistic view of the matter.” Indeed, the issues facing
him were more complex than the deciding judge appeared to comprehend.
The Court of Appeal, nevertheless, affirmed that part of the judgment which denied probate of the will.
The Court of Appeal

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deferred to the trial judge because his finding of lack of due execution “can be supported when the record
is read carefully.” In almost so many words, the Court of Appeal affirmed the denial of probate because it
seemed to believe the third plaintiff witness, (the hostile witness) that he “was not present when both the
deceased and the second plaintiff witness purported to have signed the will.” It is the law, and also the
practice of appellate courts, to defer to the findings of the trial judge if there is sufficient evidence on
record to support his findings. Therefore, the conclusions of the trial judge will not be disturbed even if
the appellate judges themselves, on the evidence on record, could have arrived at a different conclusion.
The reason for this is primarily because the trial, judge has the advantage of listening to the witnesses,
seeing them personally, and observing their demeanour, to decide questions of credibility when there is
contradictory evidence. The judge who delivered the judgment in this case had no such advantage. He
was, in fact, only a “deciding judge” who, like an appellate judge, did not see the witnesses. His
conclusions are not, therefore, of the same compelling force, especially as he did not elaborate on his
reasons for preferring one version of the facts over the other. I think that in such a situation we are
entitled to examine the evidence in the light of the legal consequences of treating the attesting witness as a
hostile witness.
The Court of Appeal drew a distinction between a hostile witness and an adverse witness. If a witness is
merely an adverse witness, his evidence is not “nugatory” as the counsel for the defendants described it, a
description which the plaintiffs’ counsel seemed to adopt. The trial judge, with the benefit of observing
the witness, may choose to believe an adverse witness or part of his testimony. The fact that a witness
called by a party gives an adverse or contradictory testimony does not lead to the irresistible conclusion
that the adverse witness is an untruthful witness. The witness may be an adverse witness precisely
because he insists on telling the truth rather than commit perjury in support of the fabricated story of the
party who called him. Usually it is difficult to determine whether the witness is merely adverse or hostile,
when there is no previous statement by him with which he could be confronted.
In the instant case, the Court of Appeal held that the lower court as well as counsel on both sides erred in
treating the third plaintiff

[p.675] of [2003-2005] 1 GLR 630

witness as a hostile witness. The Court of Appeal stated that in those cases in which witnesses have been
treated as hostile witnesses:
“there should be a previous statement on the same subject attributable to the witness which is in distinct
conflict with the testimony he presently gives to the court and he be given the chance to explain the conflict
before the court could even conclude that he had been a hostile witness in the true sense of the word...”

As, in the opinion of the Court of Appeal, there was no previous statement of the third plaintiff witness
which he contradicted in his evidence on oath, he was merely an adverse witness whom the trial court
could choose to believe. I am not prepared to indorse the view that there cannot exist a proper basis for
declaring a witness to be a hostile witness unless there is a contradictory statement previously made by
that witness. I agree that it is clearest and easiest to make that determination if there is a previous
statement by the witness; but that is not the only means of ascertaining if a witness is a hostile witness. In
my view, a witness is a hostile witness if it can be shown that he knows the truth but deliberately persists
in lying to the court. There may be different ways of arriving at that decision.
In its judgment, the Court of Appeal held that the third plaintiff witness was only an adverse witness, and
not a hostile witness, because he had not made any previous statement which he could be said to have
contradicted in his testimony on oath. The result was that, in the opinion of the Court of Appeal, his
testimony was not nugatory or negligible. The Court of Appeal, therefore, concurred with the deciding
judge in choosing to rely on his evidence to hold that the will had not been properly executed. It is for this
reason that the Court of Appeal affirmed the trial court that the will was invalid.
After stating that a hostile witness must have made a previous contradictory statement, the Court of
Appeal stated that: “In the instant case, however, it turned out that the third plaintiff witness had made no
previous statement contradictory to what he was telling the court.” With respect, I cannot agree with the
learned justices of the Court of Appeal. The previous contradictory

[p.676] of [2003-2005] 1 GLR 630

statement was not the one that, as the Court of Appeal rightly pointed out, the counsel for the plaintiffs
failed to make him admit having orally made to him in his office. The previous contradictory statement of
the third plaintiff witness is in the attestation clause of the disputed will. This is exhibit A. In that
attestation clause, the said witness, Joseph Ayitey Okine, signed a statement that the will was signed by
the testator in his presence and in the presence of the other attesting witness, all present at the same time;
and that at the request of the testator and in the presence of the testator and of each other, he also signed
as a witness. This was not a private communication. It was a declaration intended to be published to the
whole world, as the witness testified that he knew he was attesting a will. When on oath, the same witness
testified in court that he did not see the testator or the other attesting witness sign the will, and that he did
not see anything on the paper he signed, he was flatly contradicting a written statement which he admitted
making. It does not in my opinion, matter that the previous contradictory statement was contained in the
attestation clause of a will, particularly as the very will is the subject of contention.
It seems to me that the original trial judge, Kwadu-Amponsem J, before whom testimony was taken, took
the same view. He saw the witness, the third plaintiff witness, in the witness box and observed his
demeanour. When learned counsel for the plaintiffs applied for leave to treat the third plaintiff witness as
a hostile witness, the learned judge took time to consider the submission and made a ruling on a later day
to allow the witness to be treated as a hostile witness. I would have deferred to the conclusion of the trial
judge on this issue. Independently, however, as the record itself shows, the third plaintiff witness
indisputably contradicted the statement, contained in the attestation clause which he signed. Therefore,
even going by the stringent criterion of the Court of Appeal that a witness may only be treated as a hostile
witness after confrontation with his previous contradictory statement, it seems to me that this witness was
clearly hostile. He contradicted his previous written statement. The trial judge, in my view, was right in
treating him as a hostile witness. I also consider him a hostile witness.
What is the consequence of declaring that the third plaintiff witness was a hostile witness? The law seems
to be clear that when a witness is declared to be a hostile witness, his evidence is

[p.677] of [2003-2005] 1 GLR 630

nugatory: see Commissioner of Police v Owusu (1958) 3 WALR 364 and R v Harris (1927) 20 Cr App R
144. It is only in exceptional circumstances that the court may rely on the testimony of a hostile witness
and, it seems to me, the reasons therefor must be articulated. A person who, on the witness stand,
repudiates his earlier unsworn statement is presumptively not to be believed. That is the position in which
a hostile witness is cast. We cannot reject the earlier statement of the witness in the attestation clause as a
lie and substitute what he now says on oath, because the witness is untrustworthy and it is not possible to
ascertain when he is speaking the truth. Similarly, it would be wrong to say that the testimony on oath is
to be disbelieved, once it is established that the witness had earlier made an untrue statement, albeit
unsworn, regarding the same subject matter. That is why the testimony of a hostile witness is said to be
nugatory. We cannot rely on a nugatory testimony to deny probate of the will or, in the same vein, to
grant probate. The practical solution with respect to a nugatory statement is as if that witness had not
testified at all. When the evidence is nugatory, it cannot support the case for the party who called him; but
so also it cannot be relied upon by the opposite party to support his case.
That, however, is not the manner in which either the deciding judge or the Court of Appeal evaluated the
evidence of the hostile third plaintiff witness. It is significant that counsel on both sides agree that, as a
hostile witness, the testimony of the third plaintiff witness was nugatory. They maintained this position in
the High Court as in the Court of Appeal. However, the deciding judge relied on the nugatory testimony
of the hostile witness to hold that the will was not properly executed, because the hostile witness had said
on oath that the testator did not sign the will in his presence. The Court of Appeal affirmed this part of the
judgment because of the view it took that the witness was not hostile but adverse. On this point, I differ
from the Court of Appeal because the witness was clearly hostile and must not be believed. I would not
buy a used car from him!
Quite apart from whether a witness is treated as a hostile witness or not, the degree of credibility to be
accorded to him must be negligible, once it is demonstrated that he has contradicted himself on the same
issue. When a witness deliberately makes two contradictory statements on the same subject, it is unsafe to
prefer one version to the other. It is difficult to say when the witness has

[p.678] of [2003-2005] 1 GLR 630

chosen to tell the truth. The testimony of such a witness is inherently unreliable. Unless it is
independently corroborated, the court should not rely on one version of such unreliable evidence to
support its verdict.
My lords, if testimony is said to be nugatory, it is almost tantamount to saying that it must be ignored in
arriving at the decision of the court. Viewed that way, if we expunge the testimony of the third plaintiff
witness, the only remaining evidence regarding the execution of the will is that of the second plaintiff
witness, Charles Armah Quaye. Therefore, I would focus on the evidence of the second plaintiff witness
in resolving the question whether the will was properly executed, together with attention to what Act 360
mandates us to enforce as to due formalities.
According to the second plaintiff witness, the contested will was executed in his house, in his hall as he
put it. He did not read the will but he said that the testator signed it in the presence of himself and the
third plaintiff witness who now denied this. He also said that both he and the third plaintiff witness
appended their signatures to the document in the presence of the testator after the testator had signed it. If
we reject or expunge the testimony of the hostile witness (the third plaintiff witness), or at any rate treat
the evidence of the hostile witness as negligible or unreliable, there was no challenge to the testimony of
this attesting witness. Moreover, the testimony of the second plaintiff witness as to due execution is
corroborated by the attestation clause which both attesting witnesses had signed.
There is a further point that both counsel and the lower courts do not fully appreciate. Probate litigation
differs from ordinary civil litigation in certain respects. In ordinary litigation the credibility of witnesses
may be established in diverse ways. In probate cases, however, the attesting witness who testifies against
the will must be treated with judicial scorn and disparagement. It does not matter for this purpose whether
the witness is hostile or merely adverse. The person who would attest a will and let the testator die in the
belief that his testamentary wishes would be honoured, only to turn round to condemn the will in order to
achieve intestacy, deserves contempt and reproach. Therefore, testimony from an attesting witness
impugning due execution or casting doubt on testamentary capacity must be received with more than a
mere grain of salt. If the witness thought that the testator lacked testamentary capacity,

[p.679] of [2003-2005] 1 GLR 630

he should not have attested the will. Similarly, if the due formalities were not being observed as regards
execution, the witness should not have subscribed his name. These are some of the reasons why due
execution of the will is presumed, even though rebuttably, when there is an attestation clause. Calling an
attesting witness to testify against a will which he has attested is not the easiest way to attack the will.
The nature of proof required to ensure probate of a will has also been misconceived, particularly by
learned counsel for the defendants. In paragraph (6) of his written address to the trial court, he stated:
“(6) It appears the essence of the foregoing paragraph is that the plaintiffs as proponents of the alleged will
dated 2 December 1986, must put forward no less than two credible persons of sound mind and integrity who
could testify convincingly . . .”

This has been the main thrust of the defendants’ counsel’s submissions in the Court of Appeal and before
us. In the Court of Appeal, for instance, in paragraph (24) of the statement of case for the defendants,
counsel argued that because of: “the plaintiffs’' default to marshal the statutory two-man evidence to
present to the court... the court’s clear and impartial bounden duty is to dismiss the plaintiffs-appellants’
unproven case without more.” My lords, I know of no such rule or law. I know of no statute which
requires two persons to testify even when a will is to be proved in solemn form. It is certainly not
contained in Act 360. My lords, what section 2(3) of Act 360 requires is that the testator’s signature be
attested by at least two witnesses. It does not require that the two attesting witnesses must testify when the
will is produced for probate. The suggestion that all the two attesting witnesses must testify at the trial is a
novel proposition and has no legal basis, either in statute or in decisional law. It is also fraught with
practical difficulties.
Longevity is an individual attribute, and there cannot be a guarantee for any testator that his attesting
witnesses, even if they be younger, will outlive him to testify in proceedings for probate of his will after
his demise. In modern times of easy social mobility, attesting witnesses may have moved away from the
community or

[p.680] of [2003-2005] 1 GLR 630

may otherwise be difficult to locate. It cannot be the law that the otherwise valid will must be denied
probate only because one attesting witness is dead, has relocated, or for other reasons cannot be procured.
It would be odd if the law would lead to such an absurdity. In my opinion, even if none of the attesting
witnesses is available to testify, the will may be granted probate if there is credible evidence, including
the attestation clause, that the will was duly executed by a testator of sound mind. Therefore, where, as in
this case, one of the attesting witnesses who signed the attestation clause is declared a hostile witness
whose testimony is thereby rendered nugatory, the court is entitled to rely on the testimony of the
remaining witness if considered credible. Of course, where only one of the two available witnesses
testifies in favour of the will, the court of probate should warn itself of the potential for perjury and must
weigh the credibility of the testifying witness.
The courts have always been cautious not to allow one person, for whatever reason, to derail a will. If all
wills must fail because one witness refuses to testify, or is unavailable, or gives untruthful testimony, only
God knows how many a will can survive the probate process. It is for this reason that, where there is a
proper attestation clause, due execution of the will is presumed until there is strong evidence in rebuttal.
The courts have been quite slow or even reluctant to reject a will just because an attesting witness elects
to give adverse evidence as to the due execution. In Coles v Coles 13 LT 608 it is correctly stated that
“where an attesting witness denies due execution, other evidence thereof is admissible, and the Court may
thus uphold the document in spite of the denial.” In this case, one attesting witness, the third plaintiff
witness, chose to deny due execution. However, the testimony of the other attesting witness, the second
plaintiff witness, together with the clear attestation clause may support the grant of probate.
In my opinion, when the hostile evidence of the third plaintiff witness is treated as nugatory as counsel for
the defendants urges, or that evidence is expunged, we are left with the credible evidence of the second
plaintiff witness that the will was duly executed. He testified that the testator signed the will in his
presence and that of the hostile witness (the third plaintiff witness), and that both of them subscribed their
names as attesting witnesses present together in the presence of the testator. He was not seriously
challenged. Furthermore, his testimony is supported and confirmed by the

[p.681] of [2003-2005] 1 GLR 630

attestation clause which the hostile witness himself signed. In addition, the first plaintiff testified that he
knew the testator very well and knew his signature, thereby confirming that the signature on the will is
that of the testator.
There are other fallacies of law that crept into this case. These are based on the testimony of one of the
attesting witnesses, the third plaintiff witness, Joseph Ayitey Okine, that he did not see the testator sign
and that he did not see the other witness sign. It is argued in one breath that we reject the testimony of the
third plaintiff witness, a hostile witness, as nugatory, that is of no value. At the same time, it is argued
that, because the hostile witness said that he did not see the testator sign the will, there was not a proper
execution. In the first place, this is an obviously inconsistent position to take.
In any event, the law does not say that the attesting witnesses must necessarily see the testator sign his
name. What section 2(3) of Act 360 says is that the testator’s signature must be made or acknowledged by
him in the presence of at least two witnesses present at the same time. Therefore, even if the witness did
not see the testator sign his name, it was proper and sufficient if the signature was acknowledged to him.
The acknowledgment of the signature need not be in so many words. It may be by a mere gesture: see A
K P Kludze, Modern Law of Succession in Ghana, (Foris Publications, 1988), p 43. And see also In the
Goods of Davies (1850) 2 Rob Ecc 337. Therefore, when, on the admission of the third plaintiff witness
(the hostile witness), the testator not only invited them expressly and specifically to witness his will but
actually laid it on the table before both witnesses, he must be deemed to have acknowledged to them the
signature on the document, if it was not signed in their presence. This complied with section 2(3) of Act
360.
Reliance was also placed on the nugatory evidence of the hostile witness (the third plaintiff witness) that
he did not see the other attesting witness append his signature. In other words, it was urged on us that
there was not a due execution because, although the second plaintiff witness admitted that he signed in
the presence of the testator and the other attesting witness, the other witness, ie the third plaintiff witness,
did not sign in his presence and that he did not even see him sign. The argument is that the attesting
witnesses are required by law to sign in the presence of each other. The Court

[p.682] of [2003-2005] 1 GLR 630

of Appeal fell into error when in its judgment it stated the fourth provision of the due execution of a will
to include the requirement that “(iv) the two persons must sign as witnesses at the same time in the
presence of the testator.” With the greatest respect, that is not the law. The law as provided in section 2(5)
of Act 360 is that the attesting witnesses must each sign in the presence of the testator; but they need not
sign in the presence of each other. Therefore, after the testator has signed or acknowledged his signature
to both witnesses present together, one of them may be away while the other attesting witness signs in the
presence of the testator: see again, A K P Kludze, op cit, p 44. It is usual for the attestation clause to state
that the witnesses signed in the presence of the testator “and in the presence of each other.” That,
however, is not a legal requirement. What the statute requires is that each witness must sign in the
presence of the testator. Because of this error, the Court of Appeal erroneously concluded that the will
had not been properly executed, since, inter alia, the hostile attesting witness had in his evidence denied
that he was present when the other witness appended his signature to the will.
A good amount of time was expended on the letters written by the solicitor of the testator after the date of
the execution of the will, particularly a letter dated 24 March 1987, written on the instructions of the
testator to the solicitor of the tenant who rented house No 14, Mango Tree Avenue, Asylum Down, Accra.
In that letter of 24 March 1987, tendered as exhibit 3, the testator sought recovery of possession of the
premises “for use and occupation by his adult children.” The adult children were not named, but could
include those whom the testator had practically excluded from his will. He could make an inter vivos gift
of that house to the adult children, thereby causing the gift in the will to be adeemed. He chose not to do
that. Therefore, it is not clear what was the exact purpose of the exhibition of those letters. On the one
hand, they could have been tendered to show that the testator could not have possibly made the will
attributed to him. If so, the effort failed because no evidence was led to show that the testator lacked the
mental capacity to make the will as he did or to establish other nexus. Since neither the handwriting nor
the signature was seriously disputed, we cannot rely on those letters to establish that the will was forged.
It is true that the letters were more kindly to the defendants, if the “adult children” included the
disinherited children, than the hard words

[p.683] of [2003-2005] 1 GLR 630

written about some of them in the will. That by itself proves nothing, unless there is a connecting
evidence to show that at the time of the will the relationship between the defendants and their father was
cordial. As the letters were not written contemporaneously or soon before the alleged will was executed,
we cannot say that they had a reflection on the testator’s mind at the time of the will.
The letters are also subject to different interpretations. The more charitable interpretation is that there was
reconciliation between the father and the children after the will had been made. The father, therefore, may
have decided to change his will. If so, there were methods by which he could effect amendments to the
will. Act 360 has provisions on amendment and revocation. Unattested letters, and letters written without
the animus testandi, however clear they may be, cannot amend or revoke an existing will. If, therefore,
those letters were tendered in evidence to modify the will, it was a fruitless effort. There is no doubt in
my mind that the letters were genuine; but in my opinion they had absolutely no effect on the will. They
did not invalidate the will any more than they could amend it.
It may also be pointed out that, even those letters, as written, do not necessarily express a preference for
particular issue or sets of children of the testator. In the letter of 24 March 1987, exhibit 3, the testator
stated that he wanted the house for “use and occupation of his adult children.” After the death of the
deceased, however, we are being told that “adult children” was a special expression which did not mean
all children who were not infants. Instead, we were invited to interpret “adult” to mean only the children
of the three wives of the deceased because they were all older than the children of the woman married
last. There is no warrant for this. All the children may be adult children, although some are older than
others. Therefore, if the letter were to have any bearing on the disposition of the estate, I would, in the
absence of sufficient countervailing evidence, interpret “adult children” to mean all the children who were
not in their infancy. I would assign to the word “adult” its ordinary meaning when it is employed in
correspondence by counsel learned in the law. In this particular case, the evidence suggests that all the
children were adults in the normal signification of that terminology. Therefore, all the children would
have benefited. However, as I have said, this letter has no effect on the disposition of the estate. I do not,
therefore, have to decide that.

[p.684] of [2003-2005] 1 GLR 630

The fact that the deceased, Moses Ayikai Okine, was married under the six-cloth marriage ceremony of
the Ga people, was debated. Again, I have difficulty in appreciating the relevance of his marital status. No
evidence was led as to the rights of the children of the six-cloth marriage. It was suggested that this
special form of marriage gave a right of permanent residence to the children of such, a marriage in their
father’s house after the death of their father. On the contrary, it was contended that the right of residence
enjoyed by children of a six-cloth marriage was limited to residence of the children in their father’s house
only during their infancy, as this was the only period in their lives when the father would bear
responsibility for their support and maintenance if he were alive. I do not have to decide this. The reason
is that I have never understood the law to mean that the six-cloth marriage by a Ga man constituted a
limitation on his testamentary capacity. I am of the view that a Ga citizen, even when he had contracted a
six-cloth marriage, is nonetheless competent to make a valid will under Act 360 and may by that will
dispose of all his self-acquired property. The six-cloth marriage could confer a benefit in their father’s
estate on the children of such a marriage only in the event of intestacy. However, even this right has now
become subject to the Intestate Succession Law, 1985 (PNDCL 111), which now treats all children
equally without regard to the form of marriage in which they were procreated. As the late Moses Ayikai
Okine died in 1989, after the coming into force of PNDCL 111 in 1985, the devolution of his estate, if he
were to die intestate, would be regulated by PNDCL 111. Under its provisions, only an infinitesimal
portion of the estate would have been distributable according to customary law. As, in my opinion, the
late Moses Ayikai Okine did not die intestate, I will not make a pronouncement on the effect, if any, of
the six-cloth marriage on the distribution of his estate, except what I have already stated, that in my
opinion the six-cloth marriage cannot diminish of derogate from the testamentary capacity under Act 360.
In my view, the will has been proved to be the last will of Moses Ayikai Okine and is admissible to
probate. The order of the Court of Appeal, as of the High Court, denying probate ought to be reversed and
is thereby reversed. In its place is substituted an order granting probate of the writing presented in this
case as the last will and testament of Moses Ayikai Okine deceased. That part of the

[p.685] of [2003-2005] 1 GLR 630

decision of the Court of Appeal rejecting the samansiw or customary law will is correct and is affirmed.

Date-Bah JSC. I agree that the appeal should be allowed in part. I have had the opportunity of reading in
draft the judgment of my brother Kludze JSC which very ably expounds the reasons for allowing the
appeal in part. I am in full agreement with those reasons and it would be pointless for me to say anything
more.

Appeal allowed.
DRKS