Asafu-Adjei v. Okrah & Anor. [1984-86] 1 GLR 440, Holding 1, C.A.

ASAFU-ADJEI V OKRAH & ANOR [1984-86] 1 GLR 440 COURT OF APPEAL, ACCRA ADADE JSC, AMUA-SEKYI AND APPIAH JJ
JUDGMENT OF AMUA-SEKYI J
Page 441

Amua-Sekyi J. delivered the judgment of the court. The late Emmanuel Kwasi Asafu-Adjei died in London on 24 September 1979. He left a will devising the whole of his estate in the United Kingdom to his widow, the appellant herein and mother of three of his four children. The fourth child, Nicholas, and his maternal family in Ghana were not provided for under the terms of the said will. He left property in Ghana but, it is agreed, he died intestate as far as his estate here is concerned.

In April this year, the respondent, Captain James Okrah, and Joseph Ansah who claim to represent the maternal family, applied for letters of administration to administer the estate in Ghana. The appellant entered a caveat and filed an affidavit of interest. The matter thus fell to be dealt with under Order 60, r 21 (2) of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which reads:

“(2) Failing the parties coming to such an agreement, however, the Court may order that the applicant do issue a writ of summons against the caveator within a specified period from the date of such order, to determine the issue as to who is entitled to a grant of probate or letters of administration, as the case may be.”

At one time, it was thought that the High Court had no discretion in the matter, but was bound, in the absence of agreement between the applicant for letters of administration and the caveator, to order the issue of a writ: see Nimoh v Acheampong [1959] GLR 49, CA. Now, however, effect has been given to the natural meaning of the words’ and it has been held in In re Agyepong (Decd); Donkor v Agyepong [1973] 1 GLR 326, CA, that the court is not so bound but may, if the affidavit of interest does not disclose that there are issues which ought to be tried before grant, order the removal of the caveat and make the grant.

In this case, Ansah-Twum J who considered the rival affidavits was of the view that it was a proper case to order the issue of a writ

Page 442

and, accordingly, made the order. Neither party appealed against his decision. The respondents issued a writ claiming seven reliefs and supported it with a 24 paragraph statement of claim. If the appellant had any complaints about the wide-raging nature of the reliefs claimed, she did not mention them in her defence. After summons for directions had been taken she raised what she described as a preliminary objection. This was that under the recently published Intestate Succession Law, 1985 (PNDCL 111) she was entitled to letters of administration. Ansah-Twum J was of the view that the matter was not so simple and that evidence ought to be led. The appellant now appealed.

The objection is based upon the misconception that grants can be made only to the person or persons with a majority interest in the estate. No authority was cited for that view. On the contrary, where the interests of the estate or of those entitled to benefit from it require, the court may appoint a person with no share in it as an administrator, as was done in Davies v Randall [1964] GLR 671 at 679, where it is reported that the registrar of the Divisional Court was appointed co-administrator. And it goes without saying that the court has power to revoke a grant already made to a person or persons having a majority interest in the estate if they misconduct themselves.

On the pleadings, questions have been raised as to the extent of the United Kingdom properties and whether the appellant can in law or equity claim a share of the estate in Ghana. These are matters which ought to be gone into before grant, and, to this end, some evidence is required.

In our view, the learned judge was right in overruling the objection. The appeal is dismissed.

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