Clara Chimfwembe (In her capacity as Executrix of the Estate of the late Donald Chimfwembe) v Hellen Mutale Chimfwembe (In her own and on behalf of Mwansa Chimfwembe, Kafwimbi Chimfwembe Mumbi Chimfwembe & Donald Chimfwembe Jnr. being beneficiaries of the Estate of the late Donald Chimfwembe) (CAZ Appeal No.015/2021) [2024] ZMCA 180 (28 March 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) ~ f <o\.lC O AZ Appeal No. 015/2021 O F AP~ AZ/08/429/2020 lA"-18; ~ :-1 __ , . ,~ i ~ e MAR 2023_j ~.1 Lc,viL"r<'EG1s1RY 2 BETWEEN: CLARA CHIMFWEMBE (In her ca P of the Estate of the late Donald Chimfwembe) i ~ . ?';e ~ '{. I'-' ri.x APPELLANT AND HELLEN• MUTALE CHIMFWEMBE (In her own and on behalf of Mwansa Chimfwembe, Kafwimbi Chimfwembe, Mumbi Chimfwembe & Donald Chimfwembe Jnr. being beneficiaries of the Estate of the late Donald Chimfwembe) RESPONDENT CORAM : Chishimba, Sichinga and Ngulube JJA On 19th January, 2023 and 28th March, 2023 For the Appellant : Mr. C. Ch angano of Mmes. D. Findlay & Associates For th e Respond en t : Mr. M. Phiri and J . H . Mwaab a of Messrs. Mwansa, Phiri, Shilimi & Theu Legal Practition ers JUDGMENT Chishimba JA, delivered the Judgement of the Court. CASES REFERRED TO: 1) Zambia Railways Limited v Pauline S. Mundia & Brian Sialumba (2018) 1 ZR 278 2) Nkongolo Farms v Zambia National Comm ercial Ban k & Two Others SCZ Judgment No. 19 of 2007 J.2 3) Sithole v State Lotteries Board (1975) ZR 106 4) Bater v Bater (1 950) 2 All ER 458 5) Khalid Mohamed v The Attorney-General (1 982) Z. R. 49 6) Zambia Telecommunications Company Limited v Chipowe SCZ Appeal No. 207 of 2008 7) Ha rtley & Another v Fuld & Others (In the Estate of Fuld (deceased) (No. 2)) ( 1965) 2 All ER 657 8) Joseph Knox Simwanza v The People (1985) ZR 17 9) Double Mwale v The People (1984) ZR 76 10) Sable Hand Zambia Limited v . Zambia Revenue Authority (2005) ZR 109 11) Giraffe Bus Services Limited v Abel Lwitikiko Mwandemwa (2001) ZR 34 LEGISLATION CITED: 1) The Wills and Administration of Testate Estates Act Chapter 60 of the Laws of Zambia. 2) The Intestate Succession Act Chapter 59 of the Laws of Zambia OTHER WORKS CITED: 1. Laws of England, Volume 17 paragraph 892 2. Phipson on Evidence, 17th edition. London, Thomson Reuters (Legal) Limited, 2010. 1.0 INTRODUCTION 1.1 This appeal s eeks to impugn the judgment of the Hon. Mrs. Justice P. K. Yangailo dated 3 0 th October , 2020 in which the learned Judge held that the will of the late Donald Chimfwembe was null and void, and revoked the grant of probate issued to the appellant. The learned High Court Judge further held the deceased to have d ied intestate. J.3 2 .0 BACKGROUND 2.1 The respondent, who was the plaintiff in the court below, issued a writ of summons against the appellant endorsed with the following claims: (1) A declaration that the purported will of the late Donald Chimfwembe dated 19/ 11/ 16 is null and void; (2) An order for revocation of the grant of probate issued out of the Probate Registry of the High Court for Zambia at Lusaka to the Defendant (Appellant); (3) A declaration that Rabecca Makhumalo Chimfwembe is not a beneficiary and child of the late Donald Chimfwembe as alleged in the purported will dated 19/ 11/ 16; (4) An order against the defendant to render a full account of the assets received including rentals from the lease of Stand No. 471 of 11063, Libala Stage 3 in Lusaka; (5) An order striking out the defendant as a beneficiary of the purported will for being an executrix of the same will; (6) An order to vary the contents of the purported will by removing Rabecca Makhumalo Chimfwembe as beneficiary; (7) An order of interim injunction restraining the defendant by herself, her agents or servants or whosoever from continuing to administer or carry on activities relating to the estate of the late Donald Chimfwembe until the matter is fully determined or until further order of the court; (8) Interest on rentals to the plaintiff; and (9) Any other relief the court may deem.fit and costs. 2.2 In a ruling dated 7 th August, 2018, the court below granted an interim order of injunction against the appellant on the basis J.4 =· ~ that the balance of convenience tilted in favour of the respondent so as to preserve the status quo until the rights of the parties are determined. 3.0 EVIDENCE IN THE COURT BELOW 3 . 1 At trial, the respondent, Hellen Chimfwembe (PWl) testified that the deceased had five children from his first marriage . He went on to marry the appellant who had one child, Rabecca Makhumalo Chimfwembe. 3.2 Following the death and burial of the deceased, the family held a meeting at which it was discovered that the deceased did not leave a will. In that regard, the family accepted the proposal of the appellant that she and an uncle to the deceased be appointed co-administrators of the estate. However, when they went to the Chilenje Local Court to have the nominees appointed as administrators, the appellant informed the family that she was uncomfortable with proceeding with the process. Therefore, the parties left the court without any appointments being made . Two weeks later, the respondent learnt through her uncle , Alfred Mulenga, that one Chilunga Mubanga had informed him that there was a will left by the deceased. J.5 3.3 When PWl contacted Chilunga Mubanga, she was directed to ICN Legal Practitioners where she met Mr. Inambao who was alleged to have prepared the will. On 2nd March, 2018, the will was read to the family and a copy given to the appellant who was named as executrix. Another copy was given to Judge Phillip Musonda in his capacity as family representative. 3.4 When given a copy of the will, the respondent and her siblings were not satisfied with its contents. The dissatisfaction arose from the signature of the deceased which appeared strange to them being familiar with it; the cover page which r eferred to ICN Legal Practitioners as "Advocates for the Purchasers" as though it were a sale agreement; the use of the expression "she/he" in the clause appointing the executrix when it is known that the appellant is a woman; in clause 3 the person named therein is "Rabecca Chimfwembe" which was not correct because she believed that the said name was in reference to the step daughter of the deceased, and daughter of the appellant, who is known as "Rabecca Makhumalo". The said Rabecca Makhumalo is neither a biological daughter of the deceased nor did he ever adopt her as such. J .6 3.5 Other areas of discontent were that clause 3 of the purported will provided that the appellant, and children of the deceased being Rabecca Chifwembe and Natasha Chimfwembe were to hold the bank account of the deceased in trust for the children of the deceased "until they attain maturity" and yet some of the children of the deceased had already attained the age of majority. 3.6 Further, while clause 4 referred to the wife , parents and children of the deceased to share his pension monies , but only named the children together with "Rabecca Chimfwembe" and Natasha Chimfwembe. Clause 5 provided that Stand No. 471 of 11063, Chilenje, Lusaka be h eld in trust for his children b eing Rabecca and Natasha Chimfwembe until they attain majority age when title can be changed to their names. The said Rabecca Chimfwembe was not a minor at the time the will was said to have been executed. 3 . 7 PW 1 testified that she and her siblings reported the matter to the police to have the alleged signature of the d ecease d on the will subjected to forensic investigations. The police forensic report revealed that the deceased never appended his signature J.7 to the purported will and that the disputed s ignature 1s a simulated forgery. 4 .0 DECISION OF THE COURT BELOW 4.1 In her judgment, the learned Judge considered the evidence on record and the submissions filed on behalf of the parties. She noted that on perusal of the record, there were two sets of submission s filed on behalf of the appellant. One set was filed on 30t h September, 2020 by D. Findlay and Associates who referred to themselves as co-advocates of the appellant, and another set filed on 1st October, 2020 by Messrs. Munansangu and Comp any, who were the advocates for the appellant on record. She observed that a perusal of the record reveals that D. Findlay and Associates do not appear as co-advocates for the appellant having never filed a notice of appointment therein. 4.2 Consequently, the court decided to only consider the submissions filed by Messrs. Munansangu and Company, who are the appellant's advocates on record. 4.3 The learned Judge found that the issue for determination, was whether the respondent had proved on a balance of probabilities that the signature on the purported will is a forgery. She took J.8 the view that the purpose of the signature appended next to the name of the deceased was to authenticate the contents of the will and thereby demonstrate that it contained the wishes of the deceased. 4 .4 She considered the case of Zambia Railways Limited v Pauline S. Mundia & Brian Sialumba 111 which holds that the standard of proof in civil cases is on a balance of probability as opposed to proof beyond all reasonable doubt in a criminal case. Though noting that the respondents did not specifically plead fraud with subheadings stating the particulars of fraud as required in claims of fraud, she relied on the case of Nkongolo Farms v Zambia National Commercial Bank & Two Others 121 to hold that sufficient details of the allegation of fraud were set out in the Plaintiff's Statement of Claim under paragraphs 4(e) and (f). 4.5 On the above basis, the court reasoned that the respondent having alleged forgery, was required to prove the allegation on a higher degree of probability than a simple balance of probability as per the case of Si thole v State Lotteries Board 131 • 4. 6 The court below then considered the evidence on record and found that the police forensic report was not conclusive for the J.9 reason that the handwriting expert who prepared the report was . - not called to testify to its correctness, and to point out the similarities and differences in the specimens examined that formed the basis of his opinion. 4.7 Notwithstanding the above guidance by the Sithole case and on her own visual analysis of the disputed signature and the samples signatures, the trial court found that the signatures appearing at pages 1, 2, 3, 4 and 5 of the plain tiff's bundle of documents appear similar to each other. But that the signature on the will differed materially from the sample signatures. The court below determined that the deceased was not the one that appended his signature on the purported will contrary to section 6( 1 )(a) of the Wills and Administration of Testate Estates Act Chapter 60 of the Laws of Zambia. 4.8 The court below held that the respondent had proved the case to the required standard that the purported will was not signed by the deceased and is therefore , null and void. She proceeded to revoke the grant of probate issued to the appellant. 4.9 The court below ordered the appellant to render within a month a full account of all the assets of the deceased that had come J.10 into her possession and control including r entals. The will .. having been declared null and void, the court directed that the estate of t h e deceased b e a dministered in accordance with the provisions of the Intestate Succession Act Chapter 50 of the Laws of Zambia, with the Administrator General as administrator of the estate. 4.10 The court concluded by holding that Rabecca Makhumalo, who is a step-child of the deceased, is a beneficiary and entitled to the children's s h are of the estate of the deceased. 5.0 GROUNDS OF APPEAL 5.1 The appellant h as advanced three grounds of app eal cou ched as follows: 1) The court below erred in law and in fact in holding that the signature appended to the will of the late Donald Chimfwembe was forged despite the plaintiff having failed to adduce sufficient evidence to prove, on a greater degree of probability than that of a simple balance of probability, that the signature was forged; 2) The court below erred in law and in fact, in holding that the will of the late of Donald Chimfwembe was null and void: i. When upon concluding that the signature on the disputed will and signatures on the samples differed materially, the court failed to further consider whether or not the plaintiff J.11 had adduced sufficient evidence to prove that the signature on the will was in fact forged; and ii. Without considering that the witnesses to the will were not called before the court to disprove the validity of the signature appended to the will of the late Donald Chimfwembe; 3) The court below erred in law and in fact in stating that the co advocates for the appellant herein did not file Notice of Appointment and thereby wholly disregarded their submissions when in fact the record will show that Notice of Appointment as co-advocates was filed into court on 4 th September, 2020. 6.0 APPELLANT'S HEADS OF ARGUMENTS 6. 1 The appellant filed h eads of argument dated 18th January, 2021. In ground one, the appellant submits t h at it is trite law that the standard or degree of proof required in matters relating to fraud is higher than that required in ordinary civil matters. 6.2 We were referred to Black's Law Dictionary for the definition of 'forgery' being: "The act of fraudulently making a false document or altering a real one to be used as genuine." Therefore, the respondent in alleging forgery of the signature appended to the will of the late Donald Chimfwembe, was required to prove h er allegations beyond the standard generally J.12 required in civil proceedings due to the gravity of the allegations made against the appellant. 6.3 The appellant argued that th e trial court having held that the police forensic report was inconclusive, there was therefore no evidence given by the respondent to satisfy the required standard of proof that a forgery had been committed in the making of the will. 6.4 It was contended that the trial court erred in law and in fact when it held that the respondent, having provided s ignature samples of the deceased and the will on which the disputed signature was appended, had proved to the required degree on a balance of probabilities that the purported will was not signed by the deceased, and was therefore null and void. This is because the respondent had not advanced credible evidence as to the alleged forgery of the signature in issue. 6.5 In support of this argument, the case of Bater v Bater 141 was cited wherein Lord Denning L. J. said: " ... The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, w i ll naturally requi re a h igher degree of probabi lity than that which it would require if J.13 considering w hether negligence were est ablished. It does not adopt so high a degree as a c riminal court, even when it is considering a charge of a c rim i nal nature, but still it does requi re a degree of probabili ty which is commensurate with the occasion. . .. " 6 .6 In this regard, it was submitted that allegations of fraud being serious and requiring a higher standard of proof to satisfy the court, cannot be met by the testimony of a single witness without the backing of forensic or expert evidence to support the allegation of forgery. Having found that the police forensic report was inconclusive, the court below erred in not requiring further evidence for the respondent to meet the higher degree of proof required to prove her case. 6. 7 The nature of the subject matter being that of the handwriting or signature of the deceased which is technical, and required the expertise of a handwriting expert, who in this case rendered an inconclusive report on the matter. The respondent, having failed to prove her case, the matter ought to have been dismissed. In this regard, reliance was placed on the case of Khalid Mohamed v The Attorney-General 151 where the court guided that: J . 14 "An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment. I would not accept proposition that even if a plaintiffs case has collapsed of its inanition or for some reason or other, judgment should nevertheless be given to him on the ground that defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need defence." 6 .8 While alive to t h e principles set out in Sithole v State Lotteries Board '31 regarding handwriting experts and the cou rt's power to rely on its own examination in order to determine the issue of handwritings, it was argued that the cour t below d id not appreciate the samples that were addu ced into evidence despite righ tly relying on the aforesaid case. The ap pellant took the view that the court below ought to have considered that t h e sample signatures produced into evidence also differed and as such, d id not give a clear picture of the sign ature of the deceased. 6.9 For t h is reason , we were urged to reverse the finding of the court below on the auth ority of the case of Zambia Telecommunications Company Limited v Chipowe '61 . J.15 6.10 In the first limb of ground two, the appellant contends that the court below having found that the signatures on the record differed, did not go further to determine or require further evidence from the respondent to prove that the signature on the will was forged. There being no further evidence beside that of PW 1, it was not established that the signature appended on the will of the deceased was forged, and if so , that such forgery was occasioned by the appellant. 6.11 It was contended that it is not sufficient for a party to simply claim that a signature is a forgery without adducing further and more credible evidence that a forgery was indeed committed. 6.12 In the second limb of ground two, it was submitted that the nature of the proceedings in the court below required the determination of the authenticity of the signature appended to the will in issue. Therefore, it was important for the attesting witnesses to have been called before the trial court in order to determine the issue of due execution by the deceased. 6. 13 This is because in such a case, the trial court has the judicial discretion to require, on its own motion, an attesting witness to attend court and testify. As authority, reliance was placed on J.16 the learned authors of Halsbury's Laws of England, Volume 17 paragraph 892 and the cases of Hartley & Another v Fuld & Others (In the Estate of Fuld (deceased) (No. 2)) (7), Joseph Knox Simwanza v The People 181 and Double Mwale v The People 191. 6.14 In ground three, it is submitted that the appellant's advocates did in fact file a Notice to Join as Co-Advocates appointing them as co-advocates of the appellant as evidenced by the notice at page 135 of the record of appeal. Therefore, the court below erroneously stated that the appellant's advocates did not file the requisite notice . By disregarding the submissions filed by counsel, the trial court not only prejudiced the appellant, but denied her the opportunity to be heard. 6.15 We were urged to interfere the decision of the court below and allow the appeal. 7.0 ARGUMENTS BY THE RESPONDENT 7.1 The respondents relied on heads of argument dated 10th February, 2021. It was submitted that the court below was on firm ground when it held that the signature appended on the J.17 will of the deceased was forged based on the evidence adduced and the cases cited in support of the finding. 7 .2 It was submitted that the issues of fraud and forgery in respect to the required standard of proof required, were adequately dealt with by the court below. Therefore, the learned trial Judge d id not err by holding that the will was invalid on the basis of a forged signature. 7 .3 It was subm itted that the cases of Zambia Railways Limited v Pauline S. Mundia & Brian Sialumba 11 , and Nkongolo Farms v Zambia National Commercial Bank & Two Others 121 show that the court below not only addressed itself to the issues appealed against but was alive to them, and left no room for any errors. 7.4 The respondent contended that the evidence of PW 1, which remained largely unchallenged, met the required standard and degree of proof in such a case where forgery was alleged. The court relied on its own examination and the appellant cannot fault the court on this one. Therefore, to allege that the court below d id not appreciate the signature samples adduced in J.18 evidence, is not correct as no reasons or circumstances exist for such an allegation by the appellant. 7.5 The respondent contended that the trial court properly relied on its own visual analysis of the signatures. Therefore, the finding that the signatures in the samples differed from the signature in the will was a proper finding as grounds to reverse the finding do not exist. Consequently, the court below properly evaluated the evidence on record before it arrived at the said finding of fact. Therefore this Court is not entitled to interfere with the findings thereof. 7.6 It was argued that in any event, it wa s not wise for the appellant to remain mute in the face of strong allegations. Though tha t was not the basis upon which the judgment was rendered in favour of the respondent. 7.7 With respect to ground two , it was contended that the court below was on firm ground in holding that the will of the deceased was null and void as it was riddled with many irregularities and illegalities as highlighted by PW 1 in her testimony. On face value , the will was in no way professionally written and gave a clear indication that something was wrong J . 19 about it as it contained a property which did not belong to the deceased. 7.8 As regards the witnesses to the will, it was submitted that only the appellant and the advocates that purportedly prepared the will knew them. It was thus prudent for the appellant, if so she wished, to find and call them as her witnesses. The appellant chose to remain mute and offered no evidence whatsoever even when she had the right to subpoena any witness she so desired. 7. 9 Therefore, the absence of the witnesses who witnessed the alleged will did not affect the judgment given by the court below. 7.10 In response to ground three, the respondent submitted that the same is of no consequence to the judgment rendered by the court below as two law firms represented the appellant with one submitting and its submissions were taken into account. That there is no law requiring the mandatory consideration of submissions by counsel. 7 .11 It was contended that the court below considered the evidence on record and the submissions by the other law firm. That the appellant has not shown any prejudice the she may have suffered as a result of considering only submissions from the J.20 other law firm which in fact represented the appellant in the court below during trial. 7.12 The respondent urged the Court to dismiss the entire appeal with costs. 8.0 DECISION OF THIS COURT 8.1 We have considered the appeal before us, the authorities cited and the arguments advanced by their Learned Counsel on record. 8. 2 It is not 1n dispute that the alleged will of the late Donald Chifwembe was brought to the attention of the respondent well after his demise. The appellant is the wife of the late Chimfwembe whilst the respondent is his daughter. The deceased sired five children with his first wife. The late Chimfwembe married the appellant, who came to the union with one child Rabeca Makhumalo Chimfwembe. 8.3 The issues raised in ground one and two which will be dealt with together as they are related or raise same issues are as follows. ( 1) Whether it was proved to the required standard of proof that the signature of the testator on the will was forged. (2) Whether the court below erred in law and fact by holding that the will was null and void on the basis of forgery. J.21 8. 4 We shall start by resolving the minor issue raised in ground three regarding the om1ss10n by the court to consider the submissions filed by the co- advocates of the appellant. The appellant contends that the court below erred in finding that the co-advocates of the appellant had not filed a notice of appointment as co-advocates and consequently disregarded their submissions. 8.5 We have perused the record of appeal and find that at page 135, the firm of Mmes. D. Findlay & Associates did file a 'Notice to Join as Co-Advocates' of the appellant with Messrs. Mwansa. Phiri, Shilimi and Theu Legal Practitioners. The notice was filed on 4 th September, 2020 being two years after the close of trial on 3 rd August, 2018, and two months before judgment was delivered. The submissions by the co-advocates were filed on 30th September, 2020. 8.6 The comments by the learned trial Judge show that for some unknown reason, the notice of appointment as co-advocates had not been placed on the record and hence the Judge having had no sight of it. J.22 8. 7 Therefore, it was an oversight of the court below to state that no notice of appointment was filed by the co-advocates. It is simply a matter of the court not having had sight of the notice of appointment of co-advocates. We are of the view that the appellant did not suffer any prejudice. Neither was she denied the right to be heard as a result of the decision of the court below not having considered the submissions of the co advocates. Submissions are a mere guide to the court and a court is not mandated to make reference to them. 8.8 Further, we have perused the submissions of the co-advocates at pages 1 71 to 180 of the record of appeal and those of the main advocates at page 181 , they more or less address the same issues of the respondent and trial court not having called the attesting witnesses; whether the court should have accepted the police forensic report; the alleged discrepancies in the dispositions ; typographic errors in the will; rendering of an account; and whether to remove the appellant as executrix. 8.9 In ground one, the appellant contends that the court below erred in holding that the signature appended to the will of the deceased, was forged despite the failure of the respondent to J.23 adduce sufficient evidence to prove to the required degree of probability, that the signature was forged. 8. 10 In our view, this ground raises two issues for determination being as fallows : 1) Whether the court below was on firm ground to hold that the signature appended to the will of the deceased was forged; and 2) Whether the court below properly guided itself on the standard of proof required in a case where fraud is alleged. 8. 11 A will is the means by which a person exercises his or her testamentary freedom to bequeath his/her estate. In law, the testator must have capacity to make the will. The formal procedural requirement to make a will are that it must be in writing and signed at the end of it by the testator and at least two witness in their presence. 8.12 It is trite that a will, the making of which has been caused by fraud or coercion as takes away the free agency of the testator is void. The validity of the will ensures that the property of the testator will be distributed according to his wishes upon death. 8.13 The respondent contends that the will of the deceased failed to meet the formal requirement for execution of a valid will. In the J.24 cou rt below, and on appeal, the respondent raised the issue of the authenticity of the signature. The respondent sought to invalidate the will in relation to the signature alleged to be forged. Th at the signatu re of the deceased defeats the clear known signature of the testator. That the fixed signature in the will was a variance with their acquainted testator's signature and handwriting. Therefore the signature in the will was a forgery. 8 . 14 The law places a higher standard of proof where forgery is alleged. In the case of Sable Hand Zambia Limited v . Zambia Revenue Authority 1101 the Supreme court in reference to a plea of forgery stated that: "We enti rely agree w ith the appellant's Counsel that where fraud is to be a g round in t he p roceedings, then a defendant or respondent wishing to rely on it must ensure it is clearly and distinctly alleged. Further at the end of trial of the cause, the party alleging fraud must equally lend evidence so that the allegation is clearly and distinctly proved .. ... allegations of fraud must once pleaded, be proved on a higher standard of proof than on a mere balance of probabilities because they are criminal in nature ". 8.15 The burden of proof lies upon the party (respondent) seeking to invalidate or challenge the due execution of the will. Did the J.25 applicant 1n the court below demonstrate potential characteristic which appropriately distinguishes the known signature of the testator with the signatures on the will to prove that the signature on the will was forged and did not belong to the deceased? 8. 16 A perusal of the record shows that the evidence of PW 1 was to the effect that the signature on the will of the deceased was forged. Sample signatures were availed to the police to conduct a forensic examination which concluded that the signature on the purported will was a forgery of the signature of the deceased. 8.17 In her analysis, the learned trial judge took the view that there was need for the handwriting expert to testify at trial as the forensic report did not point out the similarities and differences in the specimens on which the handwriting expert made his conclusions. 8.18 It is not in issue that the document examiner did not come before court to explain his finding. Was the court in order to exclude the Forensic handwriting expert's report? We are of the view that the learned judge was on firm ground. We refer to J.26 holding by the Supreme Court 1n Sithole v State Lotteries Board 13 1 where it was stated as follows: "The function of a handwriting expert is to point out similarities or differences i n two or more specimens of handwriting and the court is not entitled to accept his opinion that these s i milarities or differences exist but once it has seen for itself the fact ors to which the expert draws attention, it may accept his opinion in regard to the significance of t hese factors. " 8.19 Though the expertise of questioned document examiner 1s useful in the examination of forged documents, resort to expert examination is not mandatory. A finding of forgery does not depend entirely on the testimony of handwriting experts, the judge still exercises independent judgment on the issue of the authenticity of the signatures under scrutiny. 8 .20 A judge must therefore conduct an independent examination of the signature itself in order to arrive at a reasonable conclusion as to its authenticity. 8.21 We have perused the forensic report and agree with the court below that it does not point out the similarities and differences on which the forensic handwriting expert drew his conclusion that the deceased never appended his signature to the will. The J.27 , . report merely concluded that the disputed signature is a simulated forgery. Therefore, the trial court was on firm ground in finding that the forensic report was inconclusive for it to attach weight to it. 8.22 In Giraffe Bus Services Limited v Abel Lwitikiko Mwandemwa (io1, the Supreme Court cited its decision in the Sithole case and held as follows: "The question of the correct approach by a court was discussed by this court in Sithole v State Lotteries Board. The court is not required to blindly accept what the handwriting expert has said. As we have said in that case - quoting from the head note - the function of a handwriting expert is to point out similarities or differences in two or more specimens of handwriting and the court is not entitled to accept his opinion that these similarities or differences exist but once it has seen for itself the factors to which the expert draws attention, it may accept his opinion in regard to the significance of these factors. It is for the court to decide after seeing the points highlighted by the expert whether to accept his opinion or not. Even our own looking for ourselves and making up our own minds is a proper course to adopt and this is precisely what we did in Nwume v The People (1980) ZR 189." 8.23 Did the learned trial judge arrive at a reasonable conclusion as to the alleged authenticity or forgery of the signature appended to the will in contion? The learned judge analysed the disputed J.28 the signature against the sample signatures, and found that the disputed signature materially differed from the sample signatures of the deceased on the other documents. She then concluded that the deceased was not the person who appended his signature on the will and thus the said will was null and void. 8 .24 We hold the view that having the sample signatures of the deceased together with the disputed signature on the will, the learned trial judge was entitled to look for herself and make up her own mind that the disputed signature was not made by the deceased, and thus the will was forged. Analysis of the sample signatures of the testator and the signature of the testator on the will reveals the dissimilarity between the genuine and false specimens, which are visible to the marked eye. It was conspicuously evident that the signature on the will was forged. We are of the view that the judge exercised her independent judgment 1n determining the authenticity or lack of genuineness of the signature in question. We uphold the learned judge's holding that the forgery was proved. J.29 8.25 The second limb of ground one is that the respondent failed to adduce sufficient evidence to a greater degree of probability than that of a simple balance of probability to prove that the signature on the will of the deceased was forged, the police forensic report having been rejected. 8.26 The gist of the argument by the appellant that since the police forensic report was rejected by the court below, there was no sufficient evidence to prove the forgery. Therefore the respondent failed to prove her case. 8.27 The respondent's bundle of documents appear at pages 53 to 73 of the record of appeal. At pages 56 to 60 are documents containing signatures of the deceased made at different times. Pages 70 to 72 is the will containing the disputed signature. We wish to point out that what was rejected by the court below was the conclusions or findings of the handwriting expert (the police forensic report) at pages 68 and 69 of the record of appeal, and not the rest of the documents that were produced by the respondent and properly admitted into evidence by the trial court. : : . .. J.30 8.28 The trial court having accepted the said documents, was entitled to look at them in arriving at a decision. The said documents containing sample signatures and the disputed signature in the purported will having been adduced by the respondent for the consideration of the court, it cannot be said that the respondent failed to adduce evidence to the required degree of proof that is greater than that on a balance of probability. There was clear, convincing evidence adduced proving on the higher standard of proof required by the law, that the signature on the will was forged and did not belong to the deceased. Therefore, we find no merit in ground one. 8.29 In arguing the first limb to ground two, the appellant more or less repeated the arguments in ground one. Having held that ground one lacks merit, we find no merit in the first limb to ground two . 8.30 We shall proceed to consider the second limb of argument, by the appellant that the court below should have exercised its discretion to call the witnesses to the will of the deceased to disprove the validity of the signature appended on the will. J.31 8.31 The respondent pleaded that the will was forged in that the . • signature on it is not that of the deceased, and led documentary evidence to that effect. The appellant, having filed a defence denying the allegations of the respondent, elected to neither testify nor call witnesses who attested and the lawyer who drew up the will to show that the will was in fact validly executed by the deceased. 8.32 It appears to us that the appellant chose neither to lead evidence nor subpoena the witnesses to the will in the hope that the trial Judge would exercise her discretion on her own motion to call the said witnesses. 8 . 33 The general rule relating to the burden of proof in civil cases is stated as follows by the learned authors of Phipson on Evidence, seventeenth edition (London, Thomson Reuters (Legal) Limited, 2010) paragraph 6-06 at page 151 : "So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issues. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons." J.32 • ~ . -. -., : .. 8.34 The learn ed a u t h ors of Phipson on Evidence, (supra) continu e in p aragraph 6-06 at page 151 as follows: "This n. Lle is adopted principally because it is just that he who invokes the aid of the law should be.first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirmative. The burden of proof is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleading place it, and never shifting in deciding which party asserts the affirmative, regard must be had to the substance of the issue and not merely to its grammatical form; the latter the pleader can frequently vary at will." 8.35 We take th e view t h at th e b u rden of p roof was on the a p pellant to adduce evidence and where need be, apply to have the witnesses to the will subpoenaed to testify as to due execution of the will or disprove allegations of forgery. It is a formal requiremen t of the validity of a will t h at amongst other things, it is in writing, it is signed by the testator and is duly witnessed. Wh ere fo rgery of a will is alleged, th en the u ltimate bu rden of proving or rebutting that th e will is not a forgery rests on the party propou nding the will, as part of t h e form al requ irements . .___. • • .. ,, . I - J.33 of proving that the will was duly executed by the testator and witnessed . 8.36 Having sat back and adduced no evidence whatsoever, the appellant cannot fault the trial Judge for not having exercised her 'alleged' discretion to call the witnesses who attested to the will. We find no merit in the second limb to ground two. 9 .0 CONCLUSION 9 .1 For the forgoing reasons, we dismiss the appeal and uphold the judgment of the lower court and orders made therein. We make no order as to costs .s ......... . F. M. Chishimba COURT OF APPEAL JUDGE . . COURT O APP a SC JUDGE ~~ .••••••..... .......... •.. ...••.... P. C. M. Ngulube COURT OF APPEAL JUDGE