On 15 October 1979, this court granted an application by the applicants and ordered joint letters of administration to issue. The applicants are all children of the deceased and the persons appointed by the family to succeed to the estate of their deceased father. The order for the grant was made subject to notices. While the notices were being posted, the third applicant filed a motion seeking an “order to strike out his name as the third applicant who sought to administer the estate . . .” He made this move because he said he had discovered that in the inventory exhibited with the application for the letters of administration his own house had been listed as forming part of his late father’s estate. This is house No. 275, West Korle Gonno Estate, Accra. He has applied to be relieved so that he can take steps against the estate to protect his interest in the house.
The motion has been resisted by the other successors on grounds firstly, that the procedure adopted to get his name struck out is wrong, and, secondly, that the motion is misconceived and brought male fide. Counsel for the two remaining successors argued that the applicant should have applied for revocation of the whole grant and that he cannot have his name merely struck out. Counsel also assailed the merits of the application. He contended that the applicant has bad faith because he could not possibly have acquired the house which he seeks to claim from the estate.
Order 60, r. 37 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), provides that where an administration is applied for by one or some of next of kin only, the court shall require proof that notice of such application be given to the other next of kin. Consequent upon this rule, when an application for letters of administration is brought, since it is made ex parte, the court grants the application subject to notices being given to the other next of kin. In other words, on receipt of such an application, when the court is satisfied that all inquiries have been answered, it shall require that notice is given to the other next of kin that the applicant has applied for letters of administration, and that if no notice to prohibit the grant is lodged in the court within 21 days from date of posting, letters of administration will be granted to the applicant. If after the expiration of 21 days, no caveat has been entered, the judge sitting in chambers shall authorise the registrar to issue the letters of administration. If on the other hand, a warning to prohibit grant (caveat) is entered, then no further steps may be taken with respect to the application. In that case the procedure laid down in Order 60, rr. 16-21 may be set in motion. I have retraced these simple procedures to emphasise that at the time when the motion for letters of administration is granted subject to notices, no letters of administration have been issued. The letters of administration is not issued until the condition for posting has been fulfilled and there has been no caveat when the judge will direct the registrar to issue the letters of administration. Until the order for the issue has been made and complied with, there can be no revocation of the letters of administration, because there is no grant to revoke. The order to grant may be set aside.
I appreciate the peculiar position of the applicant in this case. He had himself applied for joint administration with his brother and sister who are respondents in this application. At mid-stream he decided that his interest would conflict with the administration because he has interest in the estate which was personal to him and therefore incompatible with the due administration of the estate. His position therefore is not the same as the third party who seeks to prohibit the issue of the grant. He merely seeks to withdraw from the original application; he wants his name to be struck out off the case. His counsel relied on the inherent jurisdiction of the court to grant the application. Under Order 16, r. 11, the court has power to strike out any person who is not a proper party before the court. And section 74 of the Administration of Estates Act, 1961 (Act 63), gives the court the discretion to select a person among applicants of equal standing. In doing this, the court should
exclude applicants who have interest which is incompatible with the due administration of the estate. As it now appears, the applicant has a personal claim against the estate, his interest therefore conflicts with the interest of the other beneficiaries, and he cannot administer the estate jointly with them. It is my view that such a person cannot be a proper party before the court in an application for administration of this estate. Since the letters of administration have not been issued, I regard the application as still pending and the applicants are the parties in the application. As I find that the third applicant is not a proper person before the court, I shall exercise my power under Order 16, r. 11 and strike him out of the application upon the terms that he pays the costs of the first and second applicants. This I assess at ¢200.