IN RE LARTEY (DECEASED); LARTEY v. AFFUTU-NARTEY [1972] 2 GLR 488
COURT OF APPEAL
Date: 24 JULY 1972
BEFORE: KOI LARBI J.S.C., ARCHER AND ANNAN JJ.A.
CASE REFERRED TO
Boyse v. Colclough (1854) 1 K. & J. 124; 24 L.J.Ch. 7; 3 Eq. Rep. 78; 3 W.R. 8; 69 E.R. 396.
NATURE OF PROCEEDINGS
APPEAL against an order of the High Court setting aside probate granted to the appellant. The facts are fully set out in the judgment.
COUNSEL
S. H. Annancy for the appellant.
The respondent in person.
JUDGMENT OF ARCHER J.A.
Archer J.A. delivered the judgment of the court. This is an appeal from the decision of the High Court, sitting at Accra, refusing to grant probate of the will of the late Solomon Dorme Lartey who died on 3 August 1969 in Monrovia, Liberia. The case is a simple and straight forward one and it is unfortunate that it has had an unusually chequered career in Ghana.
The deceased was by birth a Ghanaian who later settled in Liberia and ultimately became a naturalised Liberian citizen. He married a Liberian woman and had issue with her. Before his death, he was the Bishop of the A.M.E. Zion Church in Liberia and also Episcopal Head of that church in West Africa.
According to the dispositions in his will dated 28 September 1965, he left an enormous estate of landed property in Liberia and shares in companies operating in that country. He also died possessed of a plot of land on the Winneba Road, Accra, two buildings and some personal effects in Ghana—the total value of the estate in Ghana was declared as ¢14,750.00.
By his will, the deceased appointed his wife Alicia Ethel Lartey as the sole executrix. On 27 October
1969 the will was “admitted to [p.491] of [1972] 2 GLR 488 probate and registration” in the Monthly and Probate Court, Montserrado County, Liberia. To enable her to administer the estate in Ghana, the executrix applied to the High Court at Accra, for probate of the will.
She also appointed an attorney who swore an affidavit in support of the motion and exhibited copies of the court proceedings in Liberia together with the probate granted there. In addition, the executrix filed two affidavits by the two attesting witnesses to the will to prove that both of them were present at the same time when the testator signed his will and that they also signed as witnesses in the presence of each other and in the presence of the testator. The executrix also filed the usual oath that she will faithfully administer the estate.
On 17 June 1970 counsel appeared for the executrix when the motion was heard and probate was granted.
Five days later, the present respondent, who claims to be a younger brother of the deceased, filed a
caveat. Of course, the caveat was of no consequence, as probate had already been granted. The respondent therefore applied to the High Court for an order to set aside the probate granted. One of the grounds stated in his affidavit was that the respondent had already been granted letters of administration by the same court to administer the estate. It is not necessary to mention the other grounds in the affidavit.
After hearing legal arguments from both parties, the learned trial judge decided as follows:
“I have examined the necessary documents filed in the application for probate in this case. Probate of the said will has been granted in Liberia. This presupposes that the will conforms with the form of a valid will in Liberia where the testator was domiciled at the time of his death. The will is in the English language and appoints Mrs. Alicia Ethel Lartey as executrix. She may therefore, obtain probate here in person or appoint an attorney in that capacity to obtain probate for her.
I have seen an affidavit by one Reverend Thomas Sakyi Jonah, General Manager of A.M.E. Zion Mission Educational Unit of Ghana, who purports to be the attorney for the executrix. There is no document in evidence that the Reverend Thomas Sakyi Jonah has been appointed by Mrs. Alicia Ethel Lartey as her attorney to obtain a grant of administration with the will annexed. A mere affidavit by the Reverend Thomas Sakyi Jonah in that regard is not enough. I will therefore set aside the probate granted on 17 June 1970.”
On 7 July 1970 the executrix, through her solicitor, filed a motion to review the decision setting aside the probate and exhibited a copy of a power of attorney executed by the executrix in favour of the Reverend Jonah. After hearing further legal arguments by both parties, the learned trial judge ruled:
“It is clear from the attestation clause of the will in question in this case that the attestation clause is defective … The attestation [p.492] of [1972] 2 GLR 488 clause in this will in question does not show that the witnesses were present at the same time when the testator made or acknowledged his signature . . . It is therefore my painful and unpleasant but bounden duty in the state of the law to hold that the will, in so far as the dispositions of realty in Ghana are concerned, was not executed in accordance with the provisions of the necessary enactments.
The application also being one of a review I have not been satisfied that the question of the power of attorney was not within the knowledge of the applicant at the first instance within the purview of Order 39. However, I will grant the application but it will be limited to personalty of the testator in Ghana. As regards his realty in Ghana in so far as the attestation clause is defective, I declared that the deceased died intestate as regards it.”
Considering the legal submissions made during the hearing of this appeal, it seems to us that only three legal points need be concentrated upon to dispose of this appeal. The first point is whether the attestation clause was defective. If so, whether the defect was cured by the affidavits of the two attesting witnesses.
The second point is whether the court below was justified in setting aside the grant already made; and the third point is whether the presence of the executrix within the jurisdiction was necessary as a condition for obtaining a grant.
Section 19 of our Wills Act, 1971 (Act 360), provides that the Act shall only apply to wills made after the commencement of the Act which, according to section 20, came into force on 1 June 1971 although it received the Presidential Assent later on 3 July 1971. The will in the present appeal was executed on 28 September 1965 and it is therefore governed by the English Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26), section 9 of which (as amended by the Wills Act (Amendment) Act, 1852 (15 & 16 Vict., c. 24)), reads: “No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”
When the present appellant applied for probate, she exhibited not only the will but also two affidavits
sworn to by the attesting witnesses. The attestation clause in the will reads:
“This instrument was on the day of date hereof signed, published and declared by the said testator Bishop Solomon Dorme Lartey to be his last will and testament in the presence of us who at his request have subscribed our names hereto as witnesses in his presence and in the presence of each other.” [p.493] of [1972] 2 GLR 488 Section 9 of the Wills Act, 1837, itself makes it categorically clear that no form of attestation shall be necessary. In other words, any words in the attestation clause which indicate that the witnesses were present at the same time when the testator signed or acknowledged his signature shall be sufficient. The will was executed in Liberia and it is not known whether the local laws governing execution of wills provide for the language used in the attestation clause. However, the question one may ask is whether there is any difference between the expression “in our presence” and “in the presence of us present at the same time.” Is the later expression not cluttered up with unnecessary verbiage?
We think that all that section 9 of the 1837 Act requires is that the two witnesses must be simultaneously present when the testator signs or acknowledges his signature. In other words, the testator cannot sign or acknowledge his signature in the presence of one witness only and after the departure of that witness, call a second witness to come and see his signature.
The duties of a probate court are distinctly stated in Order 60, rr. 25, 26 and 27 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), as follows:
“25. (1) On receiving an application for probate or for administration with will annexed, the Court shall inspect the will, and see whether it appears to be signed by the testator, or by some other
person in his presence and by his direction, and to be subscribed by two witnesses according to
the enactments relative thereto, and shall not proceed further if the will does not appear to be
so signed and subscribed. (2) If the will appears to be so signed and subscribed, the Court shall then refer to the attestation clause, if any, and consider whether the wording thereof states the will to have been, in fact, executed in accordance with those enactments. 26. (1) If there is no attestation clause, or if the attestation clause is insufficient, the Court shall require an affidavit from at least one of the subscribing witnesses, if either of them is living, to prove that the will was, in fact, executed in accordance with those enactments . . . 27. If on perusal of the affidavit it appears that the will was not, in fact, executed in accordance with those enactments, the Court shall refuse probate.” What happened in the present case is fascinating. When the court below granted probate on 17 June 1970
it must have satisfied itself that all the statutory requirements had been complied with as regards
execution. The attestation clause contained the expression “in our presence,” but the appellant filed an affidavit by each attesting witness to prove that both of them were present at the same time. Yet when the court below was setting aside the probate it did not do so because the will was not executed in accordance with the enactments concerned but on the [p.494] of [1972] 2 GLR 488 ground that there was no evidence that one Reverend Jonah was an attorney for the appellant.
When the appellant applied for review of the decision to set aside the probate, the court below ruled, inter alia, that: “The application also being one of a review I have not been satisfied that the question of the power of attorney was not within the knowledge of the applicant at the first instance within the purview of Order 39.”
We are of the opinion that Order 39 is not so restricted in its ambit. Any of the following grounds are
open to an aggrieved person:
(a) discovery of new and important matter or evidence which, after the exercise of due diligence, was
not within his knowledge or could not be produced by him at the time when the judgment was
given or the order made;
(b) on account of some mistake or error apparent on the face of the record;
(c) for any other sufficient reason.
The appellant’s complaint was that Rev. Jonah had a power of attorney duly executed but the court did not at any time demand the production of the instrument and therefore the appellant had exhibited the instrument to enable the court to review its decision. Was this explanation not “a sufficient reason” for reviewing the decision to set aside the probate? It was too strong a reason to be ignored. Before granting probate in the first instance on 17 June 1970 it must be assumed that the court below considered rules 25, 26 and 27 of Order 60 and must have been satisfied that the execution of the will was in compliance with the Wills Act of 1837 as amended by the Act of 1852. Moreover, even if the attestation clause was insufficient, the court below had before it two affidavits sworn to by the attesting witnesses which must have made up for any insufficiency in the attestation clause. The reason for setting aside the earlier grant was that the executrix did not appear in person but had appointed someone as attorney who had not adduced evidence of his appointment as such. The appellant, therefore, sought a review by producing the power of attorney. One would have thought that the production of the power should have ended the matter and a review should have been granted in order to re-instate the grant of probate. But what happened was extraordinary. The court below took pains to review the whole law governing the execution of the will and held that the attestation clause was defective, thereby reviewing the court’s own decision on 17 June 1970 to grant probate. This is clearly not permissible. The court below appears to have brushed aside the evidence adduced by the appellant that a power of attorney had been properly executed and it had embarked on an entirely different judicial exercise in order to refuse a review. Order 39, r. 1 enables “any person considering himself aggrieved . . . to apply for a review of a judgment [p.495] of [1972] 2 GLR 488 given or order made against him.” The order does not empower the court to review its judgments or orders suo motu. What prompted the court below to stray is obvious from the written ruling on the application for review:
“The court of probate in Liberia took evidence from one of the executors E. A. Thomas. I will here refer to the question put and the answer:
‘Q. Did you sign the document in the presence of the testator and upon his request?
A. Yes.
Q. Did you and the other attesting witnesses sign in the presence of each other and the testator?
A. Yes.’
The answers obtained from this witness do not satisfy me that both attesting witnesses were both present at the same time when the testator signed the will.”
There is no doubt that the attestation clause in the will is not emphatic that both witnesses were present at the same time. It is also clear, from the above quoted oral evidence, that it is arguable whether both witnesses were simultaneously present. In other words, the oral evidence could mean that they were or they were not present at the same time. In such a case, it was the duty of the court below to consider the two affidavits sworn by the two witnesses for the purpose of applying for a grant in Ghana.
Unfortunately, the learned trial judge ruled as follows:
“I have adverted my mind more to the proceedings of the probate court in Liberia as the best available evidence as to the requirements of the attestation clause than the affidavits of the attesting witnesses to the will which are mere forms prepared by a solicitor to cure a defect in the attestation clause.” We think it was unfortunate to have dismissed these affidavits as “mere forms prepared by a solicitor.”
The innuendo in this expression is that the solicitor prepared these affidavits for swearing by the attesting witnesses irrespective of the falsity or correctness of the contents. These affidavits are permitted by rule 26 where the attestation clause is insufficient or where there is no attestation. In our own experience, these affidavits should have been accepted by the courts without much ado unless or until it is proved that the contents are false. In any case, Order 60, r. 27 provides: “If on perusal of the affidavit it appears that the will was not, in fact, executed in accordance with those enactments, the court shall refuse probate.” In the two affidavits, each attesting witness deposed that the testator signed the will in the presence of the two witnesses being present at the same time. Apart from this affidavit evidence, there was no other evidence before the court below, whether oral or documentary, to contradict the contents of the affidavit, and if it was felt that the affidavits were not convincing, the court below could have demanded oral evidence, for this is provided for in rule 35:
[p.496] of [1972] 2 GLR 488 “In every case where evidence is directed or allowed to be given by affidavit, the Court may require the personal attendance of the deponent, if within the jurisdiction, before the Court . . . to be examined viva voce respecting the matter of his affidavit . . .”
We are therefore of the opinion that there was no legal justification for rejecting the affidavits sworn to by the attesting witnesses.
The next point is what law governs the formal validity of the will. It used to be settled in Private
International Law that with regard to wills of immovables the rule of common law was that the lex situs, and the lex situs exclusively, decided whether the testator had capacity, whether the appropriate formalities for the making or for the revocation of a will had been observed, whether the testator had an unlimited or only a restricted power of disposition and whether the interest devised was essentially valid.
Also at common law, a will of movables had to comply with the formalities prescribed by the law of the testator’s last domicile. But in view of much inconvenience and hardship, the Wills Act, 1861 (24 & 25 Vict., c. 114), was passed to afford British subjects only other forms of alternatives of bequeathing their personal estate. However, the 1861 Act has been repealed and these common law rules have been substantially altered by the English Wills Act, 1963 (11 Eliz. 2, c. 44), which gave effect to the fourth report of the Private International Law Committee and to a Draft Convention on the Formal Validity of Wills made at the Hague in 1961. These international provisions have been incorporated in section 15 of the Ghana Wills Act, 1971 (Act 360).
Section 1 of the English Wills Act, 1963, provides that:
“A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence or in a state of which, at either of those times, he was a national.” Section 2 (1) also reads:
“Without prejudice to the preceding section, the following shall be treated as properly executed . . .
(b) a will so far as it disposes of immovable property, if its execution conformed to the internal law in force in the territory where the property was situated.” It follows that as from 1 January 1964 when the English Act came into force, the will of a testator dying on or after that date is valid if its execution complied with any of the seven systems of law mentioned in section 1, which applies to both immovables and movables, or in the case of immovables alone, if it complies with the lex situs. It would be seen, therefore, that so far as immovables are concerned, the lex situs [p.497] of [1972] 2 GLR 488 is no longer predominant and not exclusive in determining the formal validity of a will.
Did the English Wills Act, 1963, apply to Ghana when the testator died? The answer is yes. The learned trial judge himself had stated in his ruling on 29 July 1970 that:
“So far as probate matters are concerned they are to be governed by the law and practice for the time being in force in England. It is therefore necessary that any will which is not a nuncupative will before it is admitted to probate must conform to the Wills Act, 1837.”
Now the law for the time being in force in England when this matter came before the court below was not only the Wills Act 1837, but subsequent Acts including the Wills Act, 1963. The 1963 Act was applicable not because it was a statute of general application—it could not be because it was passed after 1874—but because it was the law relating to probate for the time being in force in England which was applicable to Ghana by virtue of paragraph 93 (2) of the Courts Decree, 1966 (N.L.C.D. 84). At the time of the death of the testator, the English Wills Act, 1963, was law for the time being in force in England and the court below was bound to consider that Act. The will had already been proved in the Probate Court in Liberia, where the testator was domiciled and resident. He was also a national of that country. It appears from the proceedings in the Liberian court, that the court in Montserrado County was satisfied as to the formal validity of the will. Accordingly, section 1 of the Wills Act, 1963, applied. The will was valid under any of the seven internal laws permitted by section 1 of the Act. These laws are the internal law in force in the territory:
(1) where the will was executed;
(2) where, at the time of execution of the will, the testator was domiciled;
(3) where, at the time of execution of the will, the testator had his habitual residence;
(4) where, at the time of his death, the testator was domiciled; (5) where, at the time of his death, the testator had his habitual residence, or
(6) the internal law of a state of which the testator was a national at the time of execution of the will, or
(7) the internal law of a state of which the testator was a national at the time of his death.
The affidavit filed in support of the motion for probate clearly revealed that the will was executed in
Liberia and that Bishop Lartey was a naturalised Liberian, who had his fixed place of abode in Liberia.
Fixed place of abode means both domicile and habitual residence. He had all these legal trimmings both at the time of execution of the will and at the time of his death. His will was therefore valid according to not only one but to all the seven internal laws permitted by section 1 of the wills Act, 1963. [p.498] of [1972] 2 GLR 488 Even if, as the court below held, the formalities of Ghana, the lex situs, had not been complied with in executing the will, it appears that the internal law of Liberia by virtue of section 1 of the Wills Act, 1963, made the will valid. In any case, we are of the opinion that the attestation clause re-inforced by the two affidavits of the attesting witnesses complied with the law of Ghana, the lex situs, and there was no transgression of the Wills Act, 1837. In brief, the will was formally valid either under section 1 of the 1963 Act or the lex situs under section 2 (b) of the Act.
The proceedings in the Liberian court clearly show that the will complied with all the formalities required by the internal law of that country. Viva voce evidence was taken from one attesting witness and the executrix, although in Ghana affidavits from them could have been sufficient. Even the procedure in Liberia also appears to be more elaborate and characterised by ceremonial solemnity. This is what the final order of the Liberian court states:
“The last will and testament of the late Bishop Solomon Dorme Lartey, deceased of the City of Monrovia, Montserrado County, Republic of Liberia, having been proved by the attesting witnesses to be genuine, the clerk of this court is hereby ordered to place the endorsement thereon. The sheriff of this court is hereby ordered to cry the said last will and testament of the testator three times at the door of the Court room. The last Will and testament having been cried three times at the door is hereby ordered admitted to probate and registration.”
When the will of a testator has been proved with such pomp and circumstance according to the internal law of Liberia, another foreign jurisdiction should hesitate before declaring the will invalid. It is to avoid such conflicts that the Hague Convention of 1961 was agreed to by the participating countries. Ghana has adopted that convention by incorporating the agreement in section 15 of the Wills Act, 1971. The Wills Act, 1963, was not considered by the court below and unfortunately learned counsel for the appellant did not draw the court’s attention to it. If that Act had also been considered, the court below would have declared the will valid. Since the 17th century, other jurisdictions have complained about this conflict.
For instance, this is what Page Wood V.C. said in Boyse v. Colclough (1854) 1 K. & J. 124 at p. 137:
“I wish that our laws were in such a state of perfection that any argument of inconvenience would at once be a reductio ad absurdum . . . With regard to this very matter of wills, it is more than a hundred years since Lord Hardwicke said he trusted that some member of the Bar, who occupied a seat in the Legislature, would take care to get rid of the extreme absurdity of its being possible to hold that a testator was utterly incapable of bequeathing his personal estate, and yet that he was perfectly [p.499] of [1972] 2 GLR 488 capable, by the same instrument and at the same time, of disposing of the whole of his real estate.”
The mischief which Lord Hardwicke wanted to bury through legislation in the 17th century is exactly the very predicament which the court below resurrected by declaring the will of Bishop Lartey valid as regards his personalty in Ghana but invalid as regards his realty in Ghana. It has taken the English three centuries to listen to the cries of Lord Hardwicke by enacting the Wills Act, 1963. Ghana has followed the example by enacting similar legislation eight years later. The new law is so important and so vital that no court should overlook its effect when considering wills executed outside Ghana.
The next point is whether the Reverend Jonah, the attorney, had applied for administration with the will annexed. The answer is No and it is clear from the papers filed for the grant of probate. The motion paper reads:
“Motion ex-parte by Stephen Hudson Annancy Esquire, counsel for and on behalf of ALICIA ETHEL
LARTEY the applicant herein praying for an order for grant of probate of the will of the late Solomon
Dorme Lartey late of Monrovia Republic of Liberia, deceased, to his executrix thereof and for such further or other order as to this honourable court may seem fit.”
In support of the motion was an affidavit by the Reverend Thomas Sakyi Jonah, General Manager of
A.M.E. Zion Mission Educational Unit in Ghana. The first paragraph of the affidavit reads: “That I am the attorney of the applicant Alicia Ethel Lartey (Mrs.) and have her authority to swear to this affidavit on her behalf.” Attached to the motion were not only the court proceedings in Liberia including a copy of the will but also the two affidavits by the attesting witnesses and the executor’s oath sworn to by Mrs. Alicia Ethel Lartey, the sole executrix. It cannot be denied therefore that Mrs. Alicia Ethel Lartey was the executrix-applicant. She applied for probate to be granted to her and she appeared by counsel when the motion was heard and granted. When the Reverend Jonah appeared in court at the time the application to set aside the grant was being heard, he did so not as the person to whom the grant had been made but as a person who had been lawfully authorised by the named executrix to do certain things enumerated in the power of attorney as follows:
“(1). To engage and employ the legal services of legal practitioner Stephen Hudson Annancy of Accra,
Ghana, for the probation and registration of the last will and testament of my late husband, Solomon
Dorme Lartey, and to prosecute and defend all suits, actions or claims that may be incident to the
probation and registration of the said last will and testament. (2) To obtain from the court in Ghana appropriate order for the administration of the estate of my late husband situated in Ghana.
[p.500] of [1972] 2 GLR 488 (3) And to do all necessary acts which I would personally do if I were physically present in Ghana as well as to perform all acts which I will authorise him to do or carry out from time to time.
This power of attorney shall remain in force until revoked by the undersigned.”
Although the attorney had power to apply for grant to himself, the executrix herself applied and probate was rightly granted to her. When the respondent applied to set the grant aside, the Reverend Jonah as a lawfully authorised attorney had to defend the action on behalf of his principal, the executrix. This can be the only reason for the presence of the Reverend Jonah in court.
The Administration of Estates Act, 1961 (Act 63), is silent on grants to attorneys. Moreover, Order 60 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), does not make provision for such grants. Accordingly, recourse must be had to Order 74 which provides that:
“Where no provision is made by these Rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the Supreme Court of Ghana.”
The practice in England, as can be ascertained from pages 326 to 333 of Tristram Coote’s Probate Practice (20th ed.), is that an executor who resides outside the jurisdiction of the court, may appoint an attorney to obtain the grant in his stead and on his behalf. The application is made by the attorney, acting under a power of attorney executed by the person entitled to the grant. The power of attorney must be filed in court. The attorney is also required to swear an oath that he will administer the estate according to law for the use and benefit of the executor who appointed him. The attorney is also required to sign a bond. None of these things was done in the present case. The named-executrix herself applied for the grant and swore the executor’s oath. There was therefore no indication that the Reverend Jonah was applying for a grant to himself as an attorney. In any case, if a grant had to be made to him at all, it would have been a grant of letters of administration with the will annexed for the use and benefit of the executrix, and limited until she shall apply for and obtain a probate. But on 17 June 1970 the court granted probate to the executrix, Alicia Ethel Lartey as prayed and not letters of administration with will annexed and limited. Although the executrix was resident in Liberia and outside the jurisdiction, she was competent to obtain a direct grant to herself. There is no law which provides that before a named-executor is granted probate, he should necessarily be resident within the jurisdiction. It is also not obligatory that he should be present in court when the application is being considered provided his legal representative, that is, his [p.501] of [1972] 2 GLR 488 lawyer or his lawfully appointed attorney, attends court to prosecute the application on his behalf.
We would therefore allow the appeal and set aside the decision of the court below and hold that:
(1) The will of the late Bishop Lartey was valid as far as formalities of execution were concerned
because the will complied either with the law of Ghana or with the internal law of Liberia, under
sections 1 and 2 of the English Wills Act, 1963, an Act which was the law of Ghana at the time of
the testator’s death, as the law for the time being in force in England as regards probate matters.
(2) When the respondent applied to set aside the probate, the court below should have refused the
application on the ground that the executrix although resident outside the jurisdiction was
competent to apply for a grant to herself and her presence in court was not necessary.
(3) When the appellant applied for review by producing the power of attorney (which was not
necessary because a grant had in fact been made to the executrix), it was not open to the court
below to review suo motu the question whether the attestation clause was defective or not as the
court must have satisfied itself on the formal validity of the will before granting probate on 17 June
1970 when the court became functus officio as regards that issue.
(4) As it was the testator’s wish that his widow should administer the estate, his wishes in the will must prevail. Accordingly, the letters of administration granted to the respondent should be revoked by this court to enable the executrix to administer the estate. Probate will therefore issue to the
executrix.
(5) The respondent should file his statement of account in the court below within fourteen days from
today and hand over all properties in Ghana mentioned in the will to the executrix or her attorney
within the same period.
Finally, we wish to remark that an attempt to reseal the Liberian grant in this case was refused here
because there was no agreement between Ghana and Liberia. Section 84 (1) of the Administration of
Estates Act, 1961 (Act 63), enables grants in Commonwealth countries and other countries to which the section has been applied, to be resealed in this country. It is our hope that the appropriate authorities will consider this matter and enter into agreements with other countries, especially African countries, to enable grants made abroad to be resealed here and vice versa. This is an area in which the aims and objectives of African unity can be demonstrated by action and with realism.
There will be no order as to costs.
DECISION
Appeal allowed.
