COURT OF APPEAL, ACCRA
ABBAN, WUAKU AND AMPIAH JJ.A.
Wills Act, 1971 (Act 360), s. 2(1)
Abban JA. The late Francis Kojo Essien died on 7 December 1979. A document dated 3 January 1975 and believed to be his last will and testament was submitted to the High Court, Kumasi for probate by one of the two named executors—the other executor having predeceased the late Essien.
A caveat was filed against the grant of probate by one Madam Afua Addisah, Dr. Harry Ansah and Abena Ansah. It therefore became necessary that the will should be proved in solemn form. Consequently, the executor—Papa Kwanan—as plaintiff, issued a writ of summons against the two caveatrices and the caveator as defendants.
The claim as indorsed on the writ of summons was as follows: “The plaintiff’s claim against the defendants is for a declaration that the will of the late Francis Kojo Essien alias Kojo Baidoo (deceased) is his true and last will.”
In the statement of claim, the plaintiff alleged, inter alia, that the document was the will and the deed of the late Francis Kojo Essien and that the signature on it was that of the testator who at the material time was “capable of signing his name which he did.” The defence denied the claim. The case of the defendants was that the late Essien long before his death and on the date on which the alleged will was supposed to have been signed, was suffering from the effects of strokes and was so ill that he was incapable of writing and could not therefore have reasonably signed the said will. The defence further averred that because the deceased was incapable of writing at the material time,
very important documents, such as his marriage certificate, which needed his signature, had to be thumbprinted by him.
The main issue settled for trial was “Whether or not the will of the late Francis Kojo Essien alias Kojo Baidoo dated 3 January 1975 is his true and last will.”
In his judgment dated 11 March 1985 the learned High Court judge dismissing the plaintiff ‘s claim held that “the signature appearing on exhibit A [the will] was not made by” the late Essien. It is against this judgment that the plaintiff (hereinafter referred to as the appellant) appealed.
The grounds of appeal filed were argued together. Learned counsel for the appellant contended that the judgment was against the weight of the evidence. He argued that since there was a signature on the face of the will there was a presumption that it was made by the testator and the burden was on the defendant-respondents to prove that at the relevant time the testator could not write at all and was thumbprinting every document. Counsel submitted that the evidential burden was not discharged by the defendant-respondents.
It seems to me that the argument of learned counsel for the appellant begs the question. The crux of the matter was whether the will was signed by the testator, and if so, whether it was properly executed by him in accordance with the provisions of the Wills Act, 1971 (Act 360). In other words assuming for the purpose of argument that the signature on the will was, in fact, made by the testator, as learned counsel for the appellant contended, the question which called for answer was whether he made that signature in the presence of the two attesting witnesses or the testator acknowledged it in their presence. In my view, the proof of the affirmative rather lies squarely on those who propound the will and so the court could not presume that the will was signed in the presence of the witnesses in the face of the positive evidence from one of the attesting witnesses—Dr Roberts—that he never saw the testator signing the will.
I will consider in detail the question whether or not the will was ever signed in the presence of the witnesses when I come to deal with the last ground argued by learned counsel.
The next submission of learned counsel for the appellant was that the learned trial judge ought to have rejected exhibits 3, 4 and 5, as irrelevant, even though they were never objected to by the appellant at the trial. The submission was totally misconceived. Exhibits 3, 4 and 5 were letters admittedly written by the late Essien, and they bore his signatures. All the parties agreed that those signatures were those of the late Essien and those letters were produced from the proper custody. The defendant-respondents disputed the signature on the will
contending that it was not the genuine signature of the late Essien as it was not made by him.
In those circumstances it was fair and proper to compare the admitted genuine signatures of the late Essien on those exhibits with the disputed signature on the will; and it was for that purpose only that the exhibits in question were tendered by the respondents. In that respect, I am of the view that those exhibits were relevant. The proof of any signature may be established by producing from the proper custody other documents bearing the signature of the person whose signature is in dispute and thereby afford opportunity to the witnesses who know the signature of that person and also to the court to compare the signatures in such documents directly with the disputed signature. This was precisely what was done in the present case and to that extent, as I have already held, the exhibits were very material.
Learned counsel again contended that the mere fact that the testator thumbprint his marriage certificate did not prove that he could not write, for there was evidence showing cogent reasons for thumbprinting that certificate and there was also evidence that the testator recovered sufficiently from his strokes and was doing things for himself. That may or may not be so. These were all questions of fact to be determined by the learned trial judge who after reviewing the evidence as a whole did not believe the said explanations for thumbprinting the certificate as given by the witnesses for the appellant; and it was within his rights to reject those explanations as false.
The third appellant witness was in exhibit 2, which was a wedding picture taken apparently in the vestry of the church after a wedding ceremony that took place in October 1973. That photograph—exhibit 2—showed a bride and the late Essien who was being helped by the officiating priest to thumbprint a marriage certificate. As it turned out, this third witness was the bride in that picture and it was she who attempted to give reasons why the late Essien did not sign but thumbprinted the certificate. In her examination-in-chief she said:
“I am in exhibit 2. So also is the late Essien. It was taken at a wedding at the Catholic Church ... In exhibit 2 I see that the late Essien is thumbprinting a document. The driver who was to collect the late Essien came late. When we were at the church and the late Essien was to sign his name he discovered that he had not brought a pen with him. The priest offered him one but he refused saying that if I had thumbprinted the document he would also thumbprint it. The wedding was in October 1973.”
Under cross-examination she said: “I agree that I thumbprinted the marriage certificate because I am an illiterate.” It was established that the bride was an illiterate and could not sign her name. That was why
she had to thumbprint it, and that was reasonable and in order. But for a well-educated man, like the late Essien, to thumbprint such an important document in his life sounds rather odd. The late Essien, according to the third witness for the appellant, had intended to go to church with a pen apparently for the purpose of using it in signing the marriage certificate; but he forgot because he was in a hurry. But strangely enough, when he was obliged by the priest by offering him one, he refused to use it on the ground that his partner had already thumbprinted it. If an illiterate woman thumbprints an important document does it follow that a well-educated man who is a party to that document must also necessarily thumbprint it? I do not think so. It was obvious that there was something physically wrong with the late Essien at that time. There was the possibility that he could not even hold the pen, much less write. In simple terms, the late Essien was incapable of signing that marriage certificate. The learned trial judge was therefore right when he stated:
“I reject as unworthy of belief the explanation of his bride that the old man thumbprinted the marriage certificate because he had left his pen at home. A wedding is hardly an occasion for a literate man to feign illiteracy, not even out of love for his illiterate bride. The story sounds even more absurd when one comes to think of the fact that the bride and the bridegroom had been married customarily for, I suppose, more than twenty years.”
There was therefore no doubt that the late Essien for some time before the wedding on 2 October 1973 and thereafter was incapable of writing due to the ill effects of the two strokes he had previously experienced. Indeed, he suffered yet a third stroke in 1975 from which he never recovered fully and eventually died in 1979. There was therefore sufficient evidence before the court from which the learned trial judge could legitimately hold that:
“In 1975, he suffered his third and last stroke. He was taken to Takoradi and died there in 1979 without recovering fully from his illness. There being no evidence before me that after 2 October 1973 anyone ever saw the late Essien write, I accept the contention of the defendants that the disability remained with him until his death in 1979.”
It was also submitted that the learned trial judge misdirected himself in law, for although he found that the witnesses attested what the testator declared was his will, yet he did not believe that the testator’s signature was on the will at the time the attesting witnesses subscribed to the will. I do not think there was a misdirection of any
kind. It is true that the learned judge accepted the evidence of the first appellant witness—Dr. Roberts—that before the latter signed his name as a witness, the late Essien had declared to the witness that the document was his will.
However, the declaration made by the late Essien to Dr. Roberts about the nature of the document about to be witnessed by the latter was not so important in the circumstances of this case. What was important was whether the will as declared by the late Essien to Dr. Roberts was validly executed in accordance with the provisions of Act 360 which requires that the signature of the testator must be made or acknowledged in the presence of two or more witnesses.
Our Act 360 which came into operation on 3 July 1971 provides in section 2 (1) and (3) as follows:
“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.”
(The emphasis is mine.) Thus a testator may declare to the attesting witnesses that the document being attested to is his will, but each witness should be able to say that he knows of his own knowledge that the testator signed the will or acknowledged his signature in his presence. This was what was lacking in the present case. Dr. Roberts, one of the two subscribing witnesses said, under cross-examination, as follows: “When I went to Essien I did not see him signing his name. I signed my part. I was familiar with Essien’s signature.” The message from this piece of evidence is clear, namely the late Essien did not sign the signature on the will in the presence of Dr. Roberts—one of the attesting witnesses. Dr. Roberts had been the late Essien’s physician since 1955 and, according to him, he was very conversant with the signature of the late Essien, and at the material time Dr. Roberts was subscribing to the will as a witness if the late Essien’s signature was already on the will, Dr. Roberts would definitely have seen it. The signature of Dr. Roberts, as indicated on the will (exhibit A), is very close to the signature alleged to be that of the late Essien. Thus as already said, had the signature of the late Essien been, in fact, on the will at the material time, Dr. Roberts could not have failed to see or recognise it, especially as there was no evidence that the late Essien covered any portion of the will while Dr. Roberts was subscribing to the will.
It is therefore clear that the late Essien neither signed the will in the presence of the attesting witnesses nor was his signature already on the will at the time Dr. Roberts and Mr. Opoku were subscribing to the will.
Consequently, the question of the late Essien acknowledging his signature in the presence of the attesting witnesses could not have arisen. There could not be acknowledgment unless the witnesses either saw or had the opportunity of seeing the testator’s signature, despite the fact that the testator might have expressly declared that the document to be attested to was his will.
In the Goods of Mary Gunstan; Blake v. Blake (1882) 7 P.D. 102, Jessel M.R. said at 107-108:
“The real question is, what the law requires to be proved in order to support a will so that it shall be validly executed.
In this case it does not appear that the testatrix signed her name to this document in the presence of the witnesses . . . for on careful examination of the evidence in this case I think it is clear that this will was not signed in the presence of either witness . . . What I take to be the law is correctly laid down in Jarman on Wills, 4th ed. p. 108, in the following terms: ‘There is no sufficient acknowledgment unless the witnesses either saw or might have seen the signature, not even though the testator should expressly declare that the paper to be attested by them is his will;’ and I may add, in my opinion, it is not sufficient even if the testator were to say, ‘My signature is inside the paper,’ unless the witnesses were able to see the signature.”
In The Goods of Kellick (1866) L.R. 1 P & M 143, the court rejected the codicil and held, inter alia, that “presence” of witnesses means that the witnesses must see the testator sign. In Brown v. Skirrow 
P. 3 it was held that the expression “in the presence of” in section 9 of the Wills Act, 1837 (1 Vict, c. 26) (which is in identical terms with our section 2 (1) and (3) of Act 360) must be taken to mean visual presence.
Again in Ilott v. Genge (1842) 3 Curt 160 the witnesses did not see any writing on the paper and did not see the testator writing his name. It was held that the will was not entitled to probate, the provisions of section 9 of the Wills Act, 1837 not having been complied with. Sir Herbert Jenner Fust in the course of his judgment said at 167-171:
“It is quite clear, according to this witness, that he did not see the subscription of the testator, . . . there was no possibility of seeing any writing; he says the deceased did not sign the will in his presence . . . Then what is the effect which his evidence ought to have on the mind of the Court? It is said that the Court may presume that the paper was signed while the witnesses were in the room; but the Court cannot presume this, while the impression on the minds of the witnesses is that it was not signed in their presence.”
After dealing with the question of acknowledgment, the learned judge continued at 175-185:
“. . . it would seem to require that the witnesses should see the signature; that they should know that the paper was signed at the time, a fact which could only be known by seeing the testator sign, or hearing him say that he had signed, and ‘that was his signature:’ . . . How is it possible that a signature should be acknowledged . . . unless the signature is exhibited to the witnesses . . . In this case it has not been proved that the will was signed by the testator before the witnesses attested it . . . I therefore pronounce against the validity of the will, and decree administration.”
All these authorities clearly establish that the provisions of Act 360 are not complied with, unless both witnesses attest and subscribe after the testator has made his signature or has acknowledged the same to them when both are actually present at the same time. But this was never done in the present case and the learned judge was right in pronouncing against the validity of the will.
Learned counsel for the appellant finally contended that on the true construction of the contents of the will, public policy and morality required that the learned judge should have admitted the will to probate as the testator intended to benefit many people. I think learned counsel for the appellant did appreciate that the validity or otherwise of a will must not be decided according to public morality or policy.
The court is enjoined to decide the case in accordance with the provisions of Act 360, even though its decision would have the effect of defeating the purpose or the intentions of the testator. The courts always have a strong inclination to carry into effect clear intentions of deceased persons. But where the intentions are contained in an instrument, purporting to be a will whose execution did not comply with the provisions of the law, there is very little that can be done, but to pronounce against it, the extent of bequests and the number of the beneficiaries notwithstanding.
In the result, I would dismiss the appeal.
Wuaku J. A. I agree.
Ampiah J. A. I agree.