THOMAS TATA ATANLEY KOFIGAH & BILOLA ROSE ATANLEY KOFIGAH vs. KOFIGAH FRANCIS ATANLEY & REV. FATHER ATSU [2020]DLSC8754

THOMAS TATA ATANLEY KOFIGAH & BILOLA ROSE ATANLEY KOFIGAH vs. KOFIGAH FRANCIS A... [2020]DLSC8754

Date	2020-01-22
Suit No.	CIVIL APPEALSUIT NO. J4/05/2019
Citation No.	[2020]DLSC8754

YEBOAH CJ (PRESIDING)

BAFFOE-BONNIE JSC

APPAU JSC

PWAMANG JSC

AMEGATCHER JSC

S. K. AMOAH FOR THE DEFENDANTS/RESPONDENTS/APPELLANTS.

ALEXANDER QUARTEY FOR THE PLAINTIFFS/APPELLANTS/RESPONDENTS

[2020]DLSC8754
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													<main id="main" class="content" style="min-height: 60rem" >THOMAS TATA ATANLEY KOFIGAH &amp; BILOLA
ROSE ATANLEY KOFIGAH (PLAINTIFFS/APPELLANTS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>KOFIGAH FRANCIS ATANLEY &amp; REV.
FATHER ATSU&nbsp;&nbsp; (DEFENDANTS/RESPONDENTS/APPELLANTS)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEALSUIT
NO. J4/05/2019&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 22ND
JANUARY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>S. K. AMOAH FOR THE DEFENDANTS/RESPONDENTS/APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ALEXANDER QUARTEY FOR THE PLAINTIFFS/APPELLANTS/RESPONDENTS. <o:p></o:p>

</div>CORAM: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;<o:p></o:p>YEBOAH CJ (PRESIDING), BAFFOE-BONNIE JSC, APPAU JSC, PWAMANG JSC,
AMEGATCHER JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>PWAMANG, JSC:-<o:p></o:p>This is an appeal against the judgment of the
Court of Appeal dated 22nd February, 2018 which judgment reversed
the decision of the High Court upholding the validity of the Will and Testament
of the late Thomas Komlah Atanley Kofigah dated 14th November, 2007
and deposited in the registry of the High Court, Accra.<o:p></o:p>The background of the appeal is as follows; The
late Thomas Komlah Atanley Kofigah was a Togolese national who migrated and
settled in Ghana. He had a successful business stint while in Ghana, setting up
companies, establishing a hotel and other businesses. He acquired several
movable and immovable properties in the Republics of Togo and Ghana. He had
twenty-one children from different marriages. He died on 5th
September, 2009 in Accra. After his death, it emerged that he left a Will which
was said to be in the possession of one Lawyer Asiedu and he had it deposited
in the Registry of the High Court, Accra on 7th October, 2009. <o:p></o:p>Following the deposit of the Will, the Registrar
of the High Court summoned the relations of the deceased and read the Will to
them. The plaintiffs/appellants/respondents, hereafter referred to as the
plaintiffs, who are two children of the deceased, had course to complain about
the Will so they caused their lawyer to file a caveat against the grant of
probate in respect of it. In accordance with the procedure on caveats against
Wills, they were warned to disclose their interests and the grounds for the
caveat which they did by filling an affidavit of interest. Paragraphs 4 and 5
of the affidavit are as follows; <o:p></o:p>“4. We have subsequently procured a copy of the
said Will and it is our contention that the Last Will &amp; Testament as
deposited is fraudulent, to the extent that the signature which appears on the
Will as the signature of our late father, Thomas Komla Atanley Kofigah is
indeed not the mark of the testator”<o:p></o:p>5. In consequence therefore, we make bold to state
that the Last Will &amp; Testament of Mr Thomas Atanley Kofigah alias Komlah
Atanley Kofigah allegedly made on 14th day of November, 2007 is a
complete forgery and ought to be cancelled and/or annulled.” <o:p></o:p>Having regard to the above depositions in the
affidavit, the filing of the caveat was a false procedural step since by Rule 11 of Or 66 of the High Court (Civil
Procedure) Rules, 2004 (C.I.47), the filing of a caveat against grant of
probate or letters of administration is for the court to determine the proper
persons to be appointed executors or administrators and not for the purpose of
challenging the validity of a Will. Under the Rules, the procedure by which the
validity of a Will may be challenged is different and it will be discussed in
the course of this opinion. <o:p></o:p>Upon service of the affidavit of interest on the
executors named in the Will they, acting through Lawyer Somtim Tobiga, filed a
motion on notice in the High Court, Accra praying for grant of probate over the
Will, with what was described as a copy of the Will annexed. It was served on
the ceveators. The record before us is silent on what happened in the
proceedings on the motion for the grant of probate but the next development in
the matter was that the caveators issued a writ of summons in the High Court,
Accra against the defendants/respondents/appellants, hereafter to be called the
defendants, who are the executors named in the Will praying for;<o:p></o:p>i.