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ANANE v. FRIMPONG


  • New
  • 1962-06-22
  • HIGH COURT
  • 1 GLR 479-482
  • Print

DJABANOR, J.


Summary

Administration of intestate estates?-Entitlement to letters of administration?- Principles on which rival applications considered.

Headnotes

On the death of Kwabena Appianin in 1955, the defendant was customarily appointed his successor and head of family. He acted in that capacity for about five or six years. In 1961, the plaintiff applied to the court for letters of administration of the estate of Appianin, deceased. He alleged that the defendant was mismanaging the estate, and that as a result the family met in October, 1960, and customarily deposed him as successor. In his stead he, the plaintiff, was appointed successor. Besides, contended the plaintiff, he is much older than the defendant, more responsible and more experienced in worldly matters and is better suited to manage the estate.

Judgement

CONTESTED application for grant of letter of administration.

The late Kwabena Appianin of Konongo died intestate on or about the 26th January, 1955. For five or six years after his death the defendant Kwadwo Frimpong was the acknowledged successor of the said intestate and he must have administered his estate since then. But on the 27th October, 1960 James Benson Anane, the plaintiff herein applied to this court for the grant to him of letters of administration of the estate of the said late Appianin. Preliminary application was granted and the usual notices posted. Then one Yaa Atia, purporting to be acting for the defendant herein lodged a caveat. This action is the result of that caveat. I am now to determine as between parties who is the better person entitled to the grant of letters of administration.

The plaintiff's case is that when Kwabena Appianin died some six or seven years ago, the defendant was appointed the successor to the deceased's estate. This was in compliance with the request of the deceased ?-a request that was made known to the members of his family at a meeting held for the purpose before the old man died. (Whenever hereafter I use the term "old man", I shall be referring to late Appianin.) When the old man died therefore the family agreed to the taking over by the defendant of the old man's properties, including a house No. N.U. 43 Konongo and a cocoa farm at a place called Bobiri-agya. It is, furthermore, the plaintiff's case that within a few years, the defendant proved himself quite incapable of shouldering the responsibilities of his new office to the satisfaction of the family, and that at a family meeting held in October, 1960, the defendant was customarily deposed as successor and consequently he lost the privilege of administering the estate of the deceased. At that October meeting, continued the plaintiff, when the defendant was deposed, he himself was appointed the successor to the deceased in the place of the defendant. Both he and defendant are the grandchildren of the deceased. He, the plaintiff, is the older. The plaintiff also said that he is more responsible more experienced and definitely more entitled and qualified to be granted letters of administration in this estate, than the defendant who has proved himself unfit, selfish and inexperienced.

The defendant's defence to this claim is that before the old man's death all the members of the family including the plaintiff met and the old man made a gift of all his properties, except a few personal items, to him, the defendant, and that the family had no objection and he accepted the gift and paid aseda. The defendant claims, furthermore, that at that meeting a decision was taken at the suggestion of the old man that the defendant be appointed head of family and successor to the said old man. He denied that he had been deposed as successor or head of family or that the plaintiff had been appointed in his place. He claims that he is still the successor to the old man and the person most entitled to the grant of letters of administration.

The first issue, as I see it, that I have to resolve is whether or not the defendant was customarily deposed as successor and the plaintiff appointed in his place.

For the moment I shall not concern myself directly with what transpired at the meeting before the old man's death; for whatever happened then it has been conceded by both parties that the defendant was acknowledged as the successor to the old man and that he acted as such for some five or six years. It is established that the deposition as well as the appointment of a successor should be made by all the principal elders of the family at a family meeting. It is therefore important to know who the principal [p.481] elders of this family are and whether they were present at and concurred with the proceedings and the result. It is the plaintiff's case that Kwame Anin is the present head of the family and that Kwame Adade is the occupant of the family stool. These elders gave evidence, admitting that they held their respective positions in the family at all times relevant to this case. The defendant denied that they held these offices in the family. Kyeame Atta said he was not a member of the family and did not know who held those offices. Yaw Kru, a member of the family, however, admitted that Kwame Adade was the occupant of the family stool at the relevant time, but acknowledged the defendant as head of family because he had settled a case which he took to him for settlement. Kwabena Gyekye, the son of the old man, is not a member of his father's family. But he admitted that Kwame Adade was the occupant of the family stool and that Kwame Anin was an elder of the family, though not its head. He too agreed that the defendant was family head. From the demeanour of the witness and the totality of the evidence I believe that Kwame Adade was the occupant of the family stool at the time relevant to this case, but I am not satisfied that Kwame Anin is the family head. He claimed that he became so after the death of Appianin. I do not think he has proved to my satisfaction that he was so appointed. In view of the conflict of evidence and one other important fact which I will refer to later, I am inclined to the view that the defendant was acknowledged the head of family as well as successor. What I said I will refer to is this: evidence was led that after the death of Kofi Donkor and the family met to appoint his successor, although the family appointed the defendant's brother as successor, the defendant rejected the appointment and took over the successorship himself. It seems to me that if he was not the head of the family or at least acknowledged as such, he could not have acted in that manner. The conclusion I arrive at, therefore, is that at the time of the meeting to depose and appoint a successor (if there was such a meeting), Kwame Adade was the occupant of the family stool, and the defendant was the head of family and successor to the old man. Kwame Anin I think was the principal elder. If the meeting alleged took place and Kwame Adade, and Kwame Anin were present thereat, together with other members of the family, I would hold that it was a regular meeting qualified to transact family business that could bind the family.

Was there such a meeting? In my view there was. The plaintiff and his witnesses deposed that there was such a meeting and told the court that the following were the events leading to that meeting and the charges preferred against the defendant:

(1) that the defendant persistently flouted the express wishes of the old man regarding the administration of his estate; i.e. his desire for the widow and children and John and Kofi Donkor to remain in the house. They were ejected by the defendant;

(2) the defendant flouted the suggestion of the family with regard to the succession to Kofi Donkor's estate, after he had died as a result of the defendant's unwillingness to provide for Kofi Donkor's health needs;

(3) that the defendant neglected to improve the family house. He rather used the proceeds from the deceased's estate to build his own house; and

(4) waste of funds?-he bought himself a car and did not look after the members of the family. [p.482]

The defendant has tried to deny that the old man made any request regarding the continued habitation of the house by the widows, children and John. But both Gyekye and Kru admitted that the old man did make that request and furthermore admitted that these persons have quitted the house. I do not believe the reasons assigned for their leaving. I think they were ejected. Again Gyekye confirmed the attitude shown by the defendant in the matter of the succession to late Kofi Donkor. I believe that in that too the defendant acted contrary to the wishes of the family. As far as the house is concerned, I mean the one left by the old man, the defendant admits that he had not even finished making the kitchen and the few rooms left uncompleted by the old man. I do not agree that to buy a car is necessarily wasteful. These were the grievances that according to Anin they laid before the defendant. He said that the defendant refused to answer these charges and left them, and they therefore deposed him in his absence and appointed the plaintiff in his stead. In cross-examination of the plaintiff and both his witnesses it was quite clear that the suggestion of the defendant was that a meeting should have been held but that it broke up without the deposition or appointment of the defendant and the plaintiff respectively taking place. I am myself satisfied from the witnesses for the plaintiff that the meeting took place and that the defendant was deposed and the plaintiff appointed in his place.

It was said that the plaintiff accepted his appointment and paid aseda therefor. I hold that the appointment of the plaintiff was therefore valid.

There may be some doubt as to whether a deposition of a successor or head can be made in the absence of such successor or head. There are several clear authorities on this point. I can think of only Chief Attipoe v. Shoucair and Others.1

Apart from his appointment as successor the plaintiff has, in my view, several matters that weigh the balance of suitability for and entitlement to the grant of letters of administration in his favour. He is older than defendant, and he strikes me as more experienced. He has shown proof that he is responsible and not indifferent to family matters. He, for example, litigated over the plot upon which the old man?'s house stands. The occupant of the family stool and the most senior elder agree that he takes out the grant. As against this are the grievances against the defendant, which in my view have been proved correct. The most damning of all is the fact that he was convicted and sentenced to a term of imprisonment. I think the plaintiff is better qualified to take out the grant of letters of administration.

[His lordship then considered the claim by the defendant that house No. N. U. 43 Konongo, was gifted by the old man to him before he died, and cannot form part of the estate to be administered by the grantee of the letters of administration. He rejected the claim as not proved, and concluded:]

In the result I find that the plaintiff is the person entitled to take out letters of administration relating the estate of the late Kwabena Appianin in order to administer his estate, which I find includes house No. N.U. 43, Konongo and the cocoa farm at Bobiri-agya. I give judgment accordingly, with costs to the plaintiff assessed at 40 guineas.

Decision

Judgment for the plaintiff.

Plaintiff / Appellant

N. Y. B. Adade

Defendant / Respondent

Enoch Edusei

Referals

Chief Attipoe v. Shoucair and Others, Land Court, Accra, May 4,1958, unreported.
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