IN RE ARTHUR (DECEASED) ABAKAH AND ANOR. v. ATTAH-HAGAN AND ANOTHER

JUDGMENT OF AZU CRABBE J. S.C.

Azu Crabbe J.S.C. delivered the judgment of himself and Lassey J.A. This is an appeal from a decision of Griffiths-Randolph J. setting aside a consent order made by the late Owusu J. in an application for a grant of probate of the will of Robert Benjamin Arthur (deceased) of Cape Coast.

The material facts may be shortly stated. By his will dated 6 January 1967, Robert Benjamin Arthur appointed his son Robert Samuel Arthur and his brother Ekow Abakah, executors (hereinafter called the appellants) and made various bequests. He bequeathed to each appellant and to the wife of the first appellant the sum of ¢30.00. The first appellant was also to share in other personal estate including furniture and personal effects of the deceased. The appellants were also the attesting witnesses.

The proceedings in this case commenced with an application by the appellants in the High Court, Cape Coast, for an order granting probate [p.438] of the will of Robert Benjamin Arthur who died testate on 15 December 1969 at Cape Coast. Against this application, three persons, namely, John Kwame Attah-Hagan, Efua Akon and Efua Attah, maternal brother and sisters respectively of the deceased (hereinafter called the respondents), filed a joint caveat. Consequently, the appellants caused warning to issue calling upon the respondents to file their affidavit of interest. They duly obeyed the warning and in a joint affidavit of interest sworn to by John Kwame Attah-Hagan on behalf of himself and his sisters it was alleged as follows:

"(1) That I and my sisters Efua Akon and Efua Attah all of Cape Coast have filed caveat in respect of the above-mentioned estate.

(2) That we are the maternal brother and sisters of the deceased.

(3) That I have been authorised by the other caveatrices to swear to this affidavit for myself and on their behalf.

That we are informed and verily believe same that the will does not bear the true signature of the testator.

That again all the two attesting witnesses to the will are beneficiaries in respect of certain properties in the will; and incidentally one of the said witnesses is also one of the executors.

That I am advised and verily believe same that the alleged execution of the said will by the testator is fraught with doubts.

That in the circumstances, we challenge the validity of the said will and do hereby subject the executors to prove the will in solemn form."

On 25 March 1970, the appellants filed a notice of