Owusu v. Kisiwa [1972] 2 GLR 99.

OWUSU v. KISIWA [1972] 2 GLR 99

IN THE HIGH COURT, KUMASI

KORANTENG -ADDOW J.

STATUTORY REF.

Administration of Estates Act, 1961 (Act 63), s.79(1)

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Koranteng -Addow J. The wife of the deceased in this matter, married under the customary law, applied to this court for letters of administration to enable her to administer the estate of her deceased husband and particularly to enable her to obtain the gratuity or deduction made under the social security fund. According to her, her late husband died leaving nothing in the form of property or cash because he had spent all his money mainly on drinking. Because of his inebriate habits, according to the applicant, the deceased had been given up for lost by the members of his family and none of them came anywhere near him. The deceased had six children with the applicant and most of them are still at school. It was in fact to enable her to pay their fees and to maintain those children that she sought the permission to administer the estate and to be able to claim the gratuity.

The defendant brought it to the notice of the court that her husband died on 24 August 1971 and that before he was buried the plaintiff in this case had gone to the employers of her late husband and collected the salary of the deceased for the month. When he did that, according to the defendant, the plaintiff never informed her nor did he give her and the children any part of the money. He did not even stop to consider whether or not the rent for the rooms they occupied had been paid, let alone consider how she and her children would live. The defendant

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deposed in her affidavit in support of her application, inter alia, that the plaintiff is unemployed. The plaintiff disputes that fact and states in his affidavit that he is a cocoa farmer and that he reaps not less than 200 loads of cocoa per annum. I did not go into that matter as no evidence has been taken. But I doubt that a person of the plaintiff’s standing earning about £G800 or ¢1,600.00 per annum from his farm cannot afford, as will be seen presently, to bury his dead relation to whom he has succeeded without recourse to the deceased’s salary for the month in which he died.

To begin with, the plaintiff took out an originating summons. When the matter was being argued, he issued the present writ. I granted the application of the defendant and ordered letters of administration to issue in her favour. It was as a result of that order granting the defendant’s application that the plaintiff started these present proceedings calling upon the defendant to produce the letters of administration issued to her for them to be cancelled. The main ground for the summons in this suit is that, as the defendant is not a member of the deceased’s family and she has not been appointed customary successor, it was wrong for the court to grant her application for letters of administration. I pointed out to learned counsel for the plaintiff during the arguments of the originating summons that the application was misconceived and the writ disclosed no cause of action and that I was going to dismiss the plaintiff’s summons at that stage, but I adjourned the matter to enable an order I made then calling upon the plaintiff to pay into court the amount he collected from the employers of the deceased (the August salary) to be effected. It may be mentioned in passing that in the course of arguing this matter when I put this matter as to why he collected the August salary of the deceased to the plaintiff his answer was that he had in fact collected the money because he was the customary successor and that he collected the money to enable the family to provide the deceased with a shroud and other wearing apparel for the burial of the deceased.

He said when the deceased died he left not even one singlet or vest which could be put on his body.

To prevent my dismissing the claim as I said I would do, Mr. Totoe, the new solicitor for the plaintiff came to argue the matter further and to submit that the discretion in the matter of ordering the granting of letters of administration was limited. According to the submission, the persons to whom a grant should be made are limited to the members of the family of a deceased. No outsider, according to counsel, is entitled to a grant. The grant to the defendant was, therefore, unlawful. In support of his submission learned counsel referred to the cases of Anane v. Brafo (1954) 14 W.A.C.A. 8 at p. 9 and Asamoah v. Ofori alias Renner [1961] G.L.R. 269. He stressed the words of Ollennu J. (as he then was) in the Asamoah case at p. 271, namely, that in exercising the discretion the court should be guided by certain principles and rules.

The foremost 

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of these principles and rules in exercising the discretion of the court being that the court should be guided by the “interest of the estate and the will of those beneficially entitled to it.” I have no doubt at all in my mind that usually it is the customary successor who is entrusted by the court with the administration of the estate of an intestate in this country. In the Asamoah case (supra) referred to by learned counsel as in the Anane case (supra) the courts said so. But usually which means not in every case shows that sometimes the choice may fall elsewhere. The interest of the children in this case must to me be considered to be of paramount importance. They are also included in the list of interested persons enumerated by Ollennu J. in the Asamoah case (supra). I do not think their education should be entrusted to a customary successor who cannot bury his dead relation — the very man he is said to have succeeded—unless he rushes to the employers of the deceased to collect the salary for the month in which he died, not bothering himself with either the education or the maintenance of the children left by the deceased—a person who is alleged to be unemployed. In any case the Administration of Estates Act, 1961 (Act 63), which came into effect soon after the judgment in Asamoah’s case (supra) makes it abundantly clear that the choice of the court in granting letters in such a case is not limited to the customary successor or other members of the family of the deceased (see section 79 (1) of Act 63). The customary successor is the most eligible among the members of the family but section 79 (2) of Act 63 says that he is to be considered alongside others.

The subsection reads:

“In granting administration the court shall have regard to the rights of all persons interested in the estate, including the successor, if any, under customary law, and, in particular, administration with the will annexed may be granted to a devisee or legatee and the administration may be limited in any way the court thinks fit.”

I do not consider that the argument of learned counsel on this point is therefore sustainable. From my reading of section 79 of Act 63, I do not see any fetters imposed on the discretion of the court as contended by learned counsel.

When this matter was argued earlier on at the originating summons stage by Mr. Adusei, who was at that time handling this case for the plaintiff, he argued, among other things, that the grant to the defendant was a nullity because no notices were posted as required by law. I feel called upon therefore to discuss that aspect of the matter before concluding this ruling. It seems to me that there is some genuine misconception about this matter of posting of notices. The rule of procedure dealing with the matter is Order 60, r. 37 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The rule says: 

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“Where administration is applied for by one or some of the next of kin only, there being another or other next of kin equally entitled thereto, the Court shall require proof that notice of the application has been given to the other next of kin.”

What this means, as far as I can see, is that when the applicant is the next-of-kin and there are other next-of-kin equally entitled, the others should be notified about the grant for any disputes among or between them with regard to the grant to be gone into. And next-of-kin means “the nearest in blood” to the deceased. See page 1904 of Stroud’s Judicial Dictionary (3rd ed.), for the definition of “next of kin.”

If the grant is to be made to any person who is not a member of the family of the deceased I do not think it is in any doubt that there is no need for notices to be posted for 21 days before letters of administration should issue.

In conclusion my considered opinion is that the writ of the plaintiff in this case discloses no cause of action. In exercising my powers under Order 25, r. 4, of the Supreme [High] Court (Civil Procedure) Rules, 1954, therefore, I would strike out the plaintiff’s statement of claim and dismiss this action. Costs of ¢40.00 are awarded against the plaintiff.

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