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JUDGEMENT
[1] Introduction
Justice Kweku T Ackaah-Boafo J (as he then was) faced with a similar case, a claim against a dead person, stated succinctly in the case of Grace Adu & 1 other vs Martin Anaglate & 2 Others Suit No: BFA 103/2009, 5th April 2019,as follows:
“In proceeding to evaluate the nature of the evidence adduced at the trial I need to caution myself that this suit concerns Dr. Emmanuel Anaglate who is now deceased and is unavailable as a witness in terms of S. 116(e) (iii) of the Evidence Act, 1975 (NRCD 323) and therefore cannot appear to tell his side of the story as to whether he indeed married both Plaintiffs. The settled rule of law is that the evidence involving a deceased person is always received and treated with extreme circumspection and suspicion. The policy rationale is that the deceased, unlike the Biblical Lazarus, cannot come out of his grave to tell his side of the story, to assert any claim or disprove one. Proof must therefore be strict and utterly convincing from the living witnesses.
Judges have been advised to look with suspicion when claims are made against deceased persons. In the case of Kusi & Kusi vs. Bonsu [2010] SCGLR page 60 at page 73, 82-84 the Supreme Court stated the principle succinctly as follows:
*“…the claims the plaintiff family made against the deceased Asante in respect of the property, were all critical assertions against the deceased, in whose favour the presumption of ownership stood. These claims belong to the class of evidence that must first be received with the greatest caution and scrutinized carefully before being given the requisite weight. It is however clear from the evidence that the plaintiff family acquitted themselves creditably, by discharging satisfactorily, the legal burdens placed on them… The main argument is that the respondents, i.e. the plaintiff’s family, failed to provide the requisite corroboration to the claim that Asante signed the petition exhibit A. There is no intractable rule of law that charges or claims against a dead person could not succeed without corroboration. To the contrary, the discernible principle was that a court could proceed on the uncorroborated evidence if satisfied about its truthfulness. The only rider or caution was that the court must examine the evidence critically, with utmost care, weighing or sifting it thoroughly, to ensure there were no loopholes or that the charge or claim did not suffer from any absurdities or the like. A jud