In Re Tandoh(Decd); Dimson v. Kumah [1967] GLR 54, Holding 1 @P.56, H.C.

IN RE TANDOH: DIMSON V KUMAH [1967] GLR 54 @ P.56 HIGH COURT, ACCRA EDUSEI J
Ref.: Administration of Estates Act, S.19(1)
JUDGMENT OF EDUSEI J.
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The second caveatrix, Miss Christiana Darkua Dimson, has applied to this court under section 19 of the Administration of Estates Act, 1961 (Act 63), for the appointment of the Administrator-General to collect and take possession of the assets comprised in the estate of Albert Adusa Tandoh who died on 28 April 1966. On 22 June 1966, this court granted the application for letters of administration to one Kwame Kumah but on 11 July 1966 the first caveatrix caveated, and on 5 August 1966 the second caveatrix also put in a caveat. The first caveatrix took the side of the second caveatrix and filed an affidavit supporting the application of the second caveatrix that the Administrator-General be appointed to assume control of the assets of the deceased and to dispose of them according to the directions of the court and failing such directions, to the provisions of Act 63.

Section 19 (1) of the Administration of Estates Act, 1961 (Act 63), reads as follows:

“19. (1) Whenever

(a) any person dies leaving assets in Ghana and the court is not satisfied that there is any person immediately available who is legally entitled to succession to the assets, or that danger is to be apprehended of misappropriation, deterioration, or waste of the assets before the succession thereto can be determined, or whether the Administrator-General is entitled to a grant of probate or of letters of administration of the estate of the deceased in respect thereof; or

(b) The agent in charge of any assets in Ghana belonging to any person not residing in Ghana or belonging to a company not incorporated in Ghana dies without leaving any responsible person in charge thereof,

the court may, upon the application of the Administrator-General or any person interested in the assets or in the due administration thereof, direct the Administrator-General to collect and take possession of the assets and to hold, possess, realise, and dispose of them according to the direction of the

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court, and in default of any such directions, to the provisions of this Act so far as applicable to the assets.”

The issue in this application is a simple one: in what circumstances can the court appoint the Administrator-General to take control of the estate of a deceased person? I am of the opinion that the answer can be found in section 19 (1) (a). In that subsection (1) (a) of section 19 if one of the three conditions does exist an application such as the instant one may succeed. The first condition is that there is no person immediately available who is legally entitled to succession to the estate; the second prerequisite is that danger is to be apprehended of misappropriation, deterioration or waste of the assets before the succession thereto can be determined; and the third condition is whether the Administrator-General is entitled to a grant of probate or letters of administration of the estate of the deceased in respect thereof. For the purposes of this application section 19 (1) (b) does not come into play and the court will have to concern itself with section 19 (1) (a). There can be no doubt that there is immediately available a successor appointed by the family of the deceased to apply for a grant of letters of administration and in fact such a successor in the person of Kwame Kumah did apply on 22 June 1966.

When someone dies intestate his property becomes family property and the question of appointment of a successor to that estate is a prerogative of the family of the deceased. This is trite law and there are numerous authorities on this point so that it will simply be an affront to the legal intelligence of the bar for me to cite authorities on so well-known and so well-established a principle of law. The second prerequisite does not call for any treatment in view of my finding that a successor has been appointed by the family of the deceased. He has in fact applied for a grant of letters of administration and the application has been granted. What remains now to be done is the issue of the letters of administration which has been suspended as a result of the caveats filed by Miss Felicia Konadu and Miss Christiana Darkua Dimson. The third condition in section 19 (1) (a) is whether the Administrator-General is entitled to a grant of probate or letters of administration of the estate of the deceased. In what circumstances can it be said that the Administrator-General is entitled to a grant of letters of administration? I would answer by saying that he will be so entitled if he becomes aware of an estate that is unrepresented or of such circumstances as are envisaged in section 19 (1) (b). These examples are not exhaustive and there may be other circumstances that may warrant his appointment.

The provisions of section 23 make it demonstrably clear that an appointment of the Administrator-General may be revoked by the

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court on the application of an executor or next-of-kin when such an applicant establishes to the satisfaction of the court a claim to probate or to letters of administration in preference to the Administrator-General. With such a revocation taking place, probate or letters of administration may be granted to the executor or next-of-kin. This section 23 obliquely fortifies me in my view that the inherent right of the family in relation to the estate of a deceased member who dies intestate must not be trifled with except in clear cases.

Counsel for the applicant has also urged upon me that in default of any directions under section 19, I must try to give such directions as the provisions of Act 63 as a whole apply to such assets of the deceased. There is no doubt that the gravamen of the application is to protect the interests of the children of the deceased, and in view of the many and well-established decisions on intestate succession, I am forced to the conclusion that I cannot accede to the request of the applicant.

I must confess that it does pain me not a little that wives married under native custom and children born of such a marriage are not given such protection as is accorded to wives and children of a marriage under the Ordinance a form of marriage that is quite foreign to our social concepts and beliefs. The unwholesome status of children of customary marriage is repugnant to common sense, equity and good conscience. It makes nonsense of our political independence and strikes at the very foundation of our sovereignty. My only hope is that perhaps it may not be long when the appropriate authorities will be bold and come to the rescue of wives and children of customary marriages.

In conclusion I have no alternative but to dismiss the application. There will be no order as to costs.

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