Anyinam v. Mensah [1989-90] 2 GLR 96, Holding 1 @P.98, H.C.

ANYINAM v. MENSAH [1989-90] 2 GLR 96 @ P.98 HIGH COURT, ACCRA OMARI-SASU J.
Ref.: Administration of Estates Act, S.67
JUDGMENT OF OMARI-SASU J.
Page 97

From the amended indorsement on the plaintiff’s writ of summons, the plaintiff has among other relief’s prayed for: “(a) An order revoking the letters of administration granted to the defendant to administer the estate of Kwabena Ofosu alias Kwabena Kufour (deceased).”

I should like to observe from the onset that no citation was filed by the plaintiff either before or at the time he commenced the present action calling on the defendant to bring his letters of administration to the registry of this honourable court and show cause why the letters of administration should not be revoked.

After the close of pleadings and summons for directions had been taken, formal hearing of the case commenced after which the plaintiff closed his case. It was at this stage that learned counsel for the defendant raised a preliminary legal objection to the trial. The substance of the said objection is that in an action in which a plaintiff seeks, inter alia, the revocation of letters of administration granted to the defendant, the plaintiff is bound to file a citation before or at the time of filing the writ and the citation must call upon the defendant to deposit his letters of administration with the registry of the court and show cause why his grant of letters should not be revoked. When the plaintiff was called to reply to the legal objection raised on behalf of the defendant he could not seriously resist the objection.

For a resolution of this problem one must look at section 67 of the Administration of Estates Act, 1961 (Act 63) which provides as follows:
“67. Where administration has been granted in respect of any estate of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked.”

(The emphasis is mine.) Halsbury’s Laws of England (3rd ed.), Vol. 16, para. 518 at 257, gives a clear elucidation of the procedure applicable and states:

Page 98

Manner of obtaining revocation”. Revocation may be obtained either voluntarily or by compulsory proceedings. In the former case evidence is filed setting out the circumstances, and the order may be made on motion or by a registrar. In the latter case a writ is issued, and a citation is served upon the grantee [citee] by the citor requiring him [grantee-citee] to bring the grant into the principal registry, and show cause why it should not be revoked. The citation must either precede or be simultaneous with the writ, and the plaintiff should allege in the endorsement of his claim on the writ and in his statement of claim, as the ground for revoking the grant, the invalidity of the will or the defendant’s want of interest...

A revoked grant must be produced and delivered at the registrar at the time of its revocation, so that it may be cancelled in the registry.”

A close examination of section 67 of Act 63 shows that before an aggrieved plaintiff commences an action aimed at the revocation of letters of administration already granted he must as a first step file a citation calling upon the citee to produce his letters of administration at the registry of the court and the citee must show cause why his grant of letters should not be revoked. Within the citation, it is the duty of the plaintiff-citor to give the reason for his filing the citation.

In the instant case, the plaintiff who seeks the revocation of the defendant’s grant of letters of administration has woefully failed to file the citation which by section 67 of Act 63 is a mandatory statutory condition precedent to the commencement of an action for the revocation of letters of administration. The whole proceedings are thus a nullity and the plaintiff’s action is struck out and dismissed with costs to the defendant. The plaintiff is, however, granted the liberty to commence a fresh action and along the lines indicated in this ruling. The plaintiff is to pay ¢30,000 costs to the defendant.

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