In Re Caesar (Decd.); Caesar & Anor. v. Kwapong & Anor. [1974] 2 GLR 248, Holding 2 @P.252, H.C.

IN RE CAESAR (DECD); CAESAR & ANOR V KWAPONG [1974] 2 GLR 248, HOLDING 2 @ P.252 HIGH COURT, ACCRA SARKODEE J
Ref.: Administration of Estates Act, s.77(1)
JUDGMENT OF SARKODEE J.
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The plaintiffs are seeking an order revoking the letters of administration granted to the first defendant and the subsequent transfer of the said letters to the Administrator-General on the ground that the grant and the transfer were not valid. In the alternative they ask for distribution among the beneficiaries of the estate of Emmanuel Kwaku Caesar who died intestate on 11 June 1969.

After summons for directions had been taken, additional issue (iii) was set down for legal arguments as it was believed a decision on it would decide the whole case. That issue read, “Whether or not the grant of letters of administration to the first defendant was void ab initio.”

The plaintiffs are two of the fourteen children of the deceased. The first defendant is their sister. At a family meeting held at Big Ada on 1 September 1969, the first defendant, Mrs. Evelyn Kwapong (nee Caesar) the eldest child of the deceased was appointed by the family and authorised to apply for and take out letters of administration in respect of her father’s estate. Nine of the children of the deceased including the plaintiffs, Daniel and Joseph Caesar, were present at the said meeting. A record of the family meeting was filed with the application for the grant of letters and marked A. On 26 July 1973 following a decision of the family the first defendant transferred the administration of the estate to the

Administrator-General who has since been acting. Prior to the transfer, the first defendant had rendered accounts to the family and to the Administrator-General.

Mr. Olaga, counsel for the plaintiffs, said that at the time of the application for the grant the first defendant knew that the deceased was survived, among others, by two wives and infant beneficiaries, and that the first defendant failed to disclose that fact to the court. Learned counsel submitted therefore that that conduct by the first defendant was a misrepresentation which amounted to fraud. The result of this fraud perpetrated on the court was that the grant was not made to at least two persons as required by section 77 (1) of the Administration of Estates Act, 1961 (Act 63), hereafter referred to as the Act. Counsel continued that this made the grant invalid. Further if the grant was void the first defendant could not have transferred anything to the Administrator-General.

Mr. Reginald Bannerman, counsel for the first defendant, pointed out that when the grant was made in 1970, he knew that there were two wives with children and therefore insisted there should be two applicants. His client then told him of the family meeting and on his request a record of the meeting was produced which he filed with the application. He said that the plaintiffs were present at the meeting and knew of the authority given to the first defendant. Learned counsel went on to say that it was on that basis that the application was made and letters were granted. He concluded that a grant in circumstances such as these is not void ab initio.

Revocation of a grant of letters of administration can only be made for just cause: see Asamoah v. Ofori alias Renner [1961] G.L.R. 269 at p. 272. For example a grant obtained fraudulently and mala fide by making a false suggestion or by “concealing from the court something material to the case, which should have been disclosed” can be revoked: see Tristam and Coote’s Probate Practice (21st ed.), p. 427. The plaintiffs must

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therefore show that the first defendant knew of certain facts material to the grant and that she deliberately concealed them from the court. It is not disputed that the first defendant knew that there were infant beneficiaries. Secondly, it seems to me, for the purposes of the section disclosure was necessary; but can it properly be said that the conduct of the first defendant was fraudulent? I do not think so. The family of the deceased, consisting of the head of family (who presided), other elders and the children of the deceased including the plaintiffs, authorised her to apply for letters of administration as the sole administratrix. This is a right properly exercisable by the family of an intestate for the customary law applicable to all tribes in Ghana is that upon a person’s death intestate, male or female his or her self-acquired property becomes family property to be dealt with by the family in accordance with the provisions of the customary law: see Ollennu, The Law of Testate and Intestate Succession in Ghana, p.67 and Fynn v. Gardiner (1953) 14 W.A.C.A. 260. Quite apart from the rights of the family, her interest in her father’s self-acquired property should entitle her to a grant. In Ghana, letters of administration are usually granted to the successor appointed by the family but this does not mean that it can never be granted to other members of the family. The parties to this suit are Adangbes where succession is patrilineal and male children are preferred to females. There must be good reason for appointing the first defendant when there were grown up males who could have been authorised to take up letters of administration. It must, however, be noted that succession must not be confused with the power to administer the estate of a deceased. That apart, succession under customary law is not automatic nor is it as of right: see Okoe v. Ankrah [1961] G.L.R. 109 at p. 117. The family in their wisdom authorised the first defendant to apply for and take out letters of administration. They had their reasons for by-passing the males. The first defendant honestly believed that the authority of the family was enough. This, in my view, is not conduct calculated to deceive the court. The express provision of section 77 (1) of the Act apart, the grant to her was perfectly valid.

However, the decision of the family cannot override the express provisions of section 77 (1) of the Act. With this background the crucial question then is whether the grant to the first defendant was void? The section does not deal with the legal effect if the grant is not made as prescribed by it. However, the court’s duty is to get at the real intention of the Act. Lord Penzance said in Howard v. Bodington (1877) 2 P.D. 203 at p. 211 that:

“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

By not making the grant to at least two persons in view of the infant beneficiaries the grant was contrary to section 77 (1), but is the section

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mandatory? If it is, does the failure to comply with it make the grant null and void? In answering these questions I do not think I can go beyond the decision of the Court of Appeal in In re Agyepong (Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326, C.A. in which a similar situation seemed to have arisen. There even though the Court of Appeal held that section 77 (1) was mandatory it went on and added one of the daughters of the deceased and a joint grant was thus ordered. This, by implication, means that the Court of Appeal did not treat the letters of administration granted to the widow, Mrs. Agyepong, as null and void for not being in compliance with section 77 (1). If the Court of Appeal had treated the original grant made by the High Court as null and void the court would not have added another person. This reminds me of the famous dicta of Lord Denning in Macfoy v. United Africa Co., Ltd. [1962] A.C. 152 at p. 160, P.C. which was applied in In re Torto (Decd.); Administrator-General v. Torto [1973] 1 G.L.R. 417 at p. 420, “You cannot put something on nothing and expect it to stay there. It will collapse.” The purpose of the section, in my view, is to safeguard the interest of infant beneficiaries who because of their incapacity and tender age, must have an adult to champion their cause and to see that justice is done. This is fundamental and failure to comply with it should shake the very foundation upon which the grant was made. Perhaps the Court of Appeal in adding another person had section 77 (3) of the Act in mind. That apart, it seems to me the underlying factor upon which the court acted was the justice of the case, rather than create grounds of multiplicity of actions, for as Jenne P. in In re Goods of Loveday [1900] P. 154 at p. 156 stated, in administration suits, the “real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto.”

Since the court by adding another person in effect amended the original letters of administration and since I am bound by the decision of the Court of Appeal I have no alternative but to hold that the grant to the first defendant is not null and void.

In this case there will be no need to add another person because the administration has been transferred to the Administrator-General who can act alone. If the original grant is valid then the transfer was proper. The decision to transfer was made by the family; and though the plaintiffs objected I think it was done in the best interest of the estate and all the beneficiaries. Apart from the requirement of seeking the consent of the Administrator-General, the Act itself does not impose any condition precedent to the transfer of the grant. Also I see no reason why I should interfere with the administration of the estate by the Administrator-General.

Clearly, the beneficiaries are divided with the first plaintiff and his brothers and sisters by the same mother against the first defendant and others. There have been allegations and counter-allegations of mismanagement of the estate. The plaintiffs admit they have refused to hand over sums of money belonging to the estate. This resulted in the administratrix,

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before the transfer, refusing to pay the school fees of the infant beneficiaries, the plaintiffs’ mother’s children and rather instructed the plaintiffs to settle the fees out of the moneys held by them. The Administrator-General subsequently settled this matter. It seems to me the plaintiffs who are caretakers of cocoa farms in Brong-Ahafo which form part of the estate manage these farms as they like and are reluctant to account for proceeds from the farms. The plaintiffs on their part say that the first defendant failed to account for large sums of moneys which form part of the estate. On the other hand, the first defendant says in pursuance of the decision taken at a family meeting she gave full account of her administration to the head of family and on its transfer, submitted a full account to the Administrator-General.

I think it is the Administrator-General who can hold the scales equally between the beneficiaries. He must be given time to get in the estate and to manage it for the benefit of all interested parties. I notice that the Administrator-General has been in office since July 1973 but in view of the state of the estate and if indeed it is to safeguard the interest of the infant beneficiaries that this action was instituted (as the plaintiffs say), then the Administrator-General must remain in office to enable him to apply part of the income from the estate for their benefit or towards their maintenance. I think it is too early to talk of distribution of the assets of the estate.

Therefore the original grant of letters of administration to the first defendant is not null and void. The subsequent transfer to the Administrator-General is valid and no order as the distribution of the assets of the estate of Emmanuel Kwaku Caesar among the beneficiaries will be made at this stage.

No order as to costs.

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