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AMPOFO v. POKU


  • appeal
  • 1959-01-12
  • COURT OF APPEAL
  • GLR 6-7
  • Print

VAN LARE AG. C.J., GRANVILLE SHARP J.A. AND OLLENNU J.


Summary

Order 60, Rule 21(2)?-Proper form of Order Declaratory only?-No power to grant Letters of Administration.

Headnotes

Order 60 of the Supreme Court (Civil Procedure) Rules, 1954, regulates Probate and Administration. Rule 21(2) provides as follows: -"Failing the parties coming to such an agreement, however," (i.e. the agreement contemplated in sub-rule ((1), ?"the Court may order that the applicant do issue a writ of summons against the caveator within a specified period from the date of such order, to determine the issue as to who is entitled to a grant of probate or letters of administration, as the case may be."Kofi Ampofo (applicant) had claimed as against Kweku Poku (caveator) a declaration under sub-rule (2) that he (Ampofo) was entitled to a grant of letters of administration in the estate of Kwaku Bene, deceased. The judgment of Manyo-Plange J., had concluded as follows: "I therefore give judgment for the caveator, refuse applicant's application and order Letters for the caveator who is shown to be nephew or grand -nephew to the deceased Bene."Appeal by applicant (Civ. App. No. 28/1958).

Judgement

Van Lare Ag. C.J. delivered the judgment of the Court:.

The only substance in this appeal is that the order granting Letters of Administration to the respondent is, unfortunately, wrongly worded. We think that the Judge?'s final order should have followed the language of sub-rule 2 of Rule 21 of Order 60, as the function, of the Judge was ?"to determine the issue as to who is entitled to a grant of probate or Letters of Administration, as the case may be.?"

'This was an application for a grant of Letters of Administration, and therefore upon determination the Judge should only have declared the respondent to be the person entitled to a grant of Letters of Administration. This in effect means that the respondent

will have formally to apply to the Divisional Court for a grant of letters of Administration to him, and he well have to go through the normal formalities.

Decision

<P>Subject to this variation of the judgment appealed from the appeal is

Plaintiff / Appellant

Akufo Addo, with him Swanzy

Defendant / Respondent

Reindorf

Referals

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