THOMAS TATA ATANLEY KOFIGAH & ORS v. KOFIGAH FRANCIS ATANLEY & REV. FATHER ATSU

PWAMANG, JSC:-

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.

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.

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;

“4. We have subsequently procured a copy of the said Will and it is our contention that the Last Will & 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”

5. In consequence therefore, we make bold to state that the Last Will & 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.”

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