Gordon v. Essien [1992] 1 GLR 232 @P.233, H.C.

Ref.: Administration of Estates Act, SS.84(1) & (3)(b)
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The matter before me consists of two consolidated cases. One was commenced on 21 January 1988 by Felicia Essien in the Circuit Court, Sekondi and it is numbered CS 5/88, and the other on 28 January 1991 in the Circuit Court, Takoradi by Miriam Gordon. It is numbered TLS 1/91. From the two indorsements in the two separate cases there is one issue of a decisive nature. A determination of that issue should bring this litigation to a perpetual rest. Let me reproduce the endorsements as formulated by the parties. The one in case No. CS 5/88 reads:

“The plaintiff’s claim against the defendant is for:

(a) A declaration that she is the proper person to administer the house known as house No. 63/1, Old John Sarbah Road, Takoradi as she was appointed by the late Matthew

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Dawson Essien before his death and has been doing so since the death of the said Matthew Dawson Essien in 1983.

(b) Perpetual injunction restraining the defendant, her agents, servants, assigns, representatives, etc including the office of the Regional CDR Secretariat from interfering with the right, control, administration and collection of rents of the said house and a further order restraining the defendant from entering the said house for the purpose of collecting rents from the tenants and from having anything to do with the said house.”

The one in case No. TLS 1/91 reads:

“The plaintiff ‘s claim is for:

(a) A declaration that she is the rightful person to administer house No. 63/1, Old John Sarbah Road, Takoradi belonging to the estate of Madam Mary Mrakpore (Decd.).

(b) An order for possession of the said house No. 63/1, Old John Sarbah Road, Takoradi.

(c) An order for account on the said house since January 1988.

(d) Perpetual injunction restraining the defendant, her assigns, agents, relatives, personal representatives, etc. from interfering with the plaintiff’s administration of the said house.”

The other reliefs stand to survive or fall depending on the fate of the reliefs quoted. The issue therefore is, of the two parties, who has the legal right of overlordship concerning house No. 63/1, Old John Sarbah Road, Takoradi?

From the pleadings as well as from the evidence, there appear to be no serious issues of fact between the parties. It seems to me in fact that no evidence should have been led in this case but the matter could have been determined upon legal arguments. House No. 63/1, Old John Sarbah Road,

Takoradi was owned by the late Mary Mrakpore who died in Nigeria on 27 December 1977. During her lifetime the late Mary Mrakpore was in the very good company of the late Matthew Dawson Essien who was the father of Felicia Essien, one of the parties herein. Matthew Dawson Essien died on 25 July 1983. The late Mary Mrakpore died childless. She was a Nigerian. When she left Ghana she left all her properties in Ghana in the care of the father of Felicia Essien. Ten years after the death of Mary Mrakpore, i.e. in 1987, a grant of letters of

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administration in respect of her estate in Nigeria was made by the Bendel State High Court, Nigeria in favour of two men, namely Chief Jijala Ukpikipi Mrakpore and Ogar Emamor. An attempt has been made in these proceedings to show that these two men were unrelated to Mary Mrakpore but I would sweep aside this issue as altogether irrelevant in view of the fact that as at now the grant of letters of administration to these men, whoever they may be, is current and has not been attacked or challenged.

When Mary Mrakpore died, Felicia Essien was collecting rents from the house in question, having assumed this role apparently at the instance of her father, when the latter was ill.

On 1 September 1987 the letters of administration granted by the High Court of the Bendel State of Nigeria was sealed in the High Court, Sekondi, Ghana. To this letters of administration as sealed, was attached a declaration in which house No. 63/1, Old John Sarbah Road, Takoradi has been listed.

Meanwhile on 1 September 1987 the two personal representatives of the late Mary Mrakpore had executed a power of attorney in favour of Miriam Gordon with authority of, inter alia, collecting rents from house No. 63/1, Old John Sarbah Road, Takoradi.

Let me proceed straightaway to pronounce on the effect of sealing in Ghana of letters of administration obtained in a Commonwealth country. It has been the contention of Mr. Dawson, learned counsel for Felicia Essien, that exhibit C, i.e. the letters of administration granted in Nigeria and sealed in Ghana, cannot be an authority for dealing with house No. 63/1, Old John Sarbah Road, Takoradi because first, the Nigerian grant did not cover that building; and secondly, the sealing itself also did not, since under the relevant Ghanaian law, i.e. section 4(1) of the Administration of Estates Act, 1961 (Act 63) a sealing in Ghana in these circumstances is limited to the property in respect of which the letters of administration was obtained in the Commonwealth country in question but in the letters of administration granted in Nigeria only one landed property is described and it is not house No. 63/1, Old John Sarbah Road, Takoradi.

With great respect, I do not feel attracted by this submission. A sealing in the circumstances under review, if accorded the authority of Mr. Dawson’s argument, would be only a fanciful exercise. A sealing must have a meaning and a purpose. If the property covered by the grant in the Commonwealth country is just what a sealing in Ghana must relate to, then, as I have indicated above, the sealing under consideration would be an exercise of no real consequence. In my opinion this step is aimed at using the letters of administration as sealed in administering the

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counterpart of the estate to which it relates, situated in Ghana, without the administrators having to go through the known processes of obtaining a fresh grant in Ghana. Certainly when an application for the grant of letters of administration in a Commonwealth country is presented before that country, items of property in Ghana but forming part of the estate in that Commonwealth country cannot be exhibited there. Therefore if the process of sealing is embarked upon, there must be shown or identified the properties in Ghana to which the letters of administration as sealed in Ghana must relate. I formed this opinion before I decided to read the other subsections of section 84 of Act 63. If section 84(1) was all that section 84 stated I would have considered the interpretation given to it by Mr. Dawson as correct only in the light of the first well-known principle of interpretation of statutes, namely going strictly by the ordinary meaning of the words used, but then for the reasons given by me above I would have gone on to say that if we went by that primary principle of interpretation we would end up at a blind alley. It would therefore be necessary to go behind the words used in order to find the mischief at which the enactment is aimed. The view I hold is what section 84(2)(b) of Act 63 gives an indication to.

Let me reproduce both section 84(1) and (2)(b), the two subsections relied upon by Mr. Dawson, and to show the completeness of the position of a sealing in Ghana of letters of administration obtained in another Commonwealth country:

“84. (1) Where a Court of Probate in a Commonwealth country or in any country to which this section is applied has granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, on being produced to and a copy thereof deposited with the court, be sealed with the seal of the court, and thereupon shall be of the like force and effect, and have the same operation in Ghana as if granted by the court.

(2) The Court shall, before sealing a probate or letters of administration under this Part, be

satisfied—. . .

(b) in the case of letters of administration, that security has been given in a sum sufficient to `          cover the property, if any, in Ghana to which the letters of administration relate.”

If therefore the properties in Ghana sought to be covered by the letters of administration as sealed, should be identified, and the

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administrators filed exhibit D in the course of getting the letters of administration obtained by them in Nigeria sealed in Ghana, I would not accept the contention that exhibit D is void and should be regarded as such. I therefore hold that exhibits C and D constitute legal authority for the administration of house No. 63/1, Old John Sarbah Road, Takoradi by the holders of exhibit C. It should be assumed that the necessary security as required under section 84(2)(b) of Act 63 has been given since the sealing itself has not been attacked in these proceedings.

One patent characteristic of the action of Felicia Essien is that she, instead of showing her own locus standi and the basis of her action, points to what she considers to be the weakness of Miriam Gordon’s stand. Counsel for Felicia Essien not only refers to exhibit D as void, he also refers to the power of attorney granted to Miriam Gordon as inoperative because the power of attorney was issued on 1 June 1987 whereas the letters of administration under which the administrators of Mary Mrakpore acted was sealed in Ghana and was issued on 1 September 1987. Counsel has gone on to argue that Miriam Gordon’s power of attorney was specific in terms and not general, that the sealed letters of administration did not empower the administrators to give exhibit A, i.e. the power of attorney to Miriam Gordon, that the administrators should themselves have come to court and finally that it is Mary Mrakpore’s family who could challenge them.

Mr. Acquah, learned counsel for Miriam Gordon, raised very fundamental points which go to the very foundations of the right of Felicia Essien to act in respect of house No. 63/1, Old John Sarbah Road, Takoradi. These points were not answered by Mr. Dawson who later forwarded in writing to the court notice of the inventory of property from the Nigeria High Court, the Land Registry Act, 1962 (Act 122), s. 24(1) and the case of Abotsi (An Infant), In re; Kwao v. Nortey [1984-86] 1 G.L.R. 144, C.A. It must be borne in mind that Felicia Essien took her action first that is on 21 January 1988. Miriam Gordon counterclaimed in that action but later withdrew her counterclaim and took a fresh action on 21 January 1991, i.e. almost three years after Felicia Essien’s action. Therefore it was Felicia Essien’s burden, to have relied on her in respect of her locus standi when she commenced her action.

I must say, however, that I have not found out for what consideration Mr. Acquah decided to quote section 5 (1) (a) of the Limitation Decree, 1972 (N.R.C.D. 54). Mr. Acquah also referred to section 3 of the Courts, Act, 1971 (Act 372), First Sched, i.e. the Trustee Act, 1860 (23 & 24 Vict, c. 15), ss. 1-5 and 7-34. At the time of writing this

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judgment I had not laid hands on this colonial Act. Mr. Acquah again referred to page 456 of Cheshire and Fifoot, Law of Contract (7th ed.), and argued that Felicia Essien has no mandate or any other authority to collect rents from house No. 63/1, Old John Sarbah Road, Takoradi because Mary Mrakpore who gave authority to her (Felicia Essien’s) father died on 27 December 1977. Mr. Acquah’s argument is that with her death, Felicia Essien’s father’s agency lapsed. Felicia Essien’s supposed authority to collect rents from house No. 63/1, Old John Sarbah Road, Takoradi also lapsed when her own father whose caretaker ship right had lapsed also died on 25 July 1983. As I have indicated above, Mr. Dawson made no comment on these points.

Felicia Essien does admit that Mary Mrakpore did not give house No. 63/1, Old John Sarbah Road,  Takoradi to her father. In fact, she does not even say it in so many words that her father specifically or expressly put her in charge of the caretakership of the house. Her evidence is that the rents on the house were being collected by her uncle at first. That uncle went blind and so her father took the job over. Later her father also got ill and she undertook the job until her father died. Since then she continued to act until Miriam Gordon interfered with her caretakership and so she sued.

The law on the position of an agent whose principal dies after the establishment of the agency is very well-known. The event of death belongs to the happenings which by operation of law automatically determine the agency. It was in the old case of Watson v. King (1815) 4 Camp. 272 referred to at p. 388 of the Law of agency by Raphael Powell that Lord Ellenborough asked: “How can a valid act be done in the name of a dead man?” The statements made immediately after this question at that page of the book should be of interest. Powell states at p. 388 that:

“Logically, the conception of authority demands a continuing consent of the principal to the agent’s acts on his behalf. If, therefore, the principal dies, the consent is unable to continue because the mind from which it issued has ceased to operate.”

The facts of Felicia Essien’s stand are clear. Miriam Gordon does not herself dispute them. The legal position is that even what Felicia Essien’s father was doing in respect of this house after the death of Mary Mrakpore was unwarranted by law. Felicia Essien’s position was infinitely worse, having derived her authority from a non-existent source, and, in any case, even if she derived good authority from her father, which I have described as non-existent, that authority also did terminate

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automatically by operation of law on the death of her father.

A casual reference to laches and acquiescence appears in Essien’s pleadings. These defences have not been seriously pursued by evidence. In any case, I consider the purported authority of Felicia Essien as void and therefore laches and acquiescence are inconsequential.

Mr. Dawson has rightly challenged the submission of Mr. Acquah that a power of attorney takes effect on the date of its registration. It is not the registration of a power of attorney which gives it legal validity. It only gives it formal validity. A look at exhibit A shows when it was intended to take effect, which is “the date of its execution”, that is to say “the day, month and year first above written.” The day, month and year first written in the expression are 1 June 1987.

The next attack by Mr. Dawson on the power of attorney is that it is specific but not general in terms. I have looked at the power of attorney. Perhaps Mr. Dawson’s attack is on the basis that Miriam Gordon was given the power of attorney to collect rents but not to go to court. I hold the general view that if a person is given the right to do anything, that right should extend to any additional things necessary for the effective execution of that right. Assuming therefore that the power of attorney in this case is faultless I think going to court in order to be better enabled to collect the rents on house No 63/1, Old John Sarbah Road, Takoradi was a necessary consequential power. In exhibit A in any case, appears the following: “We, i.e. the administrators do hereby on our own behalf ratify everything that shall be done by the said attorney conformably with the purport of this power of attorney.” These observations answer the attack of Mr. Dawson.

A point touched upon by Mr. Dawson but not highlighted on its importance is that at the time the administrators gave Miriam Gordon a power of attorney, i.e. 1 June 1987, the said administrators had not got the letters of administration obtained by them in the High Court, Bendel State Nigeria, sealed in Ghana. The sealing was on 1 September 1987, i.e. three months after the power of attorney had been executed in favour of Miriam Gordon. I consider this submission of a very legalistic but not substantial value. The fact is that the administrators did in fact secure a Ghanaian seal for their Nigerian letters of administration. It is my view that when the administrators obtained the letters of administration in Nigeria they in substance acquired the right to administer house No. 63/1, Old John Sarbah Road, Takoradi and the sealing in Ghana was only a formality to satisfy the form of their right. From the wording of section

84(1) of Act 63 it seems to me that the High Court of Ghana would as a

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matter of course, lend its seal to letters of administration regularly obtained in Nigeria, if properly presented before it. The word “may” in the structure of that subsection seems to me to refer not to the sealing of the letters of administration but the production of the letters of administration.

If any person had locus standi to complain of any defects in Miriam Gordon’s power of attorney it was the administrators, not Felicia Essien, for the latter cannot complain, as she does in this case, when it was the very persons she is complaining for who executed the power of attorney and they have not been seen or heard to demonstrate any grievance or dissatisfaction in that regard. I have, save as I have stated above, found no legal justification for challenging the right of Miriam Gordon to collect rents from house No. 63/1, Old John Sarbah Road, Takoradi for and on behalf of the personal representatives of the late Mary Mrakpore.

For the reasons shown above, the action of Felicia Essien must fail and I hereby dismiss it. On the other hand, Miriam Gordon has made out a case that should earn her judgment which I hereby pronounce in her favour. Miriam Gordon’s costs in the two cases shall be fixed at ¢100,000. Possession of house No. 63/1, Old John Sarbah Road, Takoradi is hereby ordered to be given to Miriam Gordon. Felicia Essien is perpetually restrained from any dealings with house No. 63/1, Old John Sarbah Road, Takoradi. Felicia Essien is finally ordered to file on oath account of rents collected by her on house No. 63/1, Old John Sarbah Road, Takoradi from January 1988 to date, within two months of the date hereof.

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