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ASAMOAH v. OFORI ALIAS RENNER


  • New
  • 1961-05-25
  • HIGH COURT
  • GLR 269-273
  • Print

OLLENNU, J.


Summary

Administration of estates?-Action by customary successor to revoke letters of administration?-Persons entitled to a grant?-Effect of grant of letters?-Duties of grantee?-Whether a grant is revocable.

Headnotes

On the death of Alfred Mark Ofori, his son, the defendant herein, applied for and was granted letters of administration with will annexed. The said will disposed of only one piece of land. In respect of all other properties, movable and immovable, the deceased died intestate. Subsequent to the grant of letters of administration, the plaintiff was appointed customary successor to the deceased. After trying unsuccessfully to get the properties from the defendant, [p.270] the plaintiff instituted the present action claiming a revocation of the grant to the defendant and asking that a grant be made to him.

Judgement

ACTION for revocation of grant of letters of administration. The facts are more fully set out in the judgment.

This action was brought by the plaintiff in his capacity as successor duly appointed in accordance with customary law to the late Alfred Mark Ofori, also known as Emmanuel Etiemo, late of Aburi, Akwapim. It is for an order revoking letters of administration with will annexed, granted to the defendant, and for a further order granting fresh letters of administration in respect of the same estate to the plaintiff. The defendant is the eldest son of the deceased Alfred Mark Ofori. His said father died on or about the 12th November, 1954, and the letters in question were granted to him by this court on or about the 18th March, 1955; the letters of administration with will annexed are exhibit A.

The said Alfred Mark Ofori died leaving a will; but the only property which that will purported to dispose of is a piece or parcel of land situate at Aduasa in Western Akim; it made no disposition of any personalty either by bequest of specific chattels or of residue; and there was no devise of the residue of reality comprised in the estate. Therefore in respect of personalty, the said Alfred Mark Ofori died intestate, and it appears that the letters of administration with will annexed were granted to the [p.271] defendant upon representation made by him that he is, by customary law, the successor to his late father.

A dispute between the plaintiff and the defendant as to which of them is the lawful successor to the deceased was finally determined by a judgment of this court delivered in favour of the plaintiff on the 13th February, 1959, exhibit C in this case. The defendant is therefore estopped per rem judicatam from re-litigating that issue. It is a sequel to that judgment that the plaintiff instituted the present suit.

Granting of letters of administration with or without will annexed, is in the discretion of the court; but the exercise of that discretion is guided by certain principles and rules of practice; foremost among those principles and rules, is the interest of the estate and the will of those beneficially entitled to it. That principle is summarised in Williams on Executors and Administrators, (11th ed.), page 337, as follows:

"The Court considered it its duty to place administration in the hands of that person who was likely best to covert it to advantage of those who have claim, either in paying the creditors, or in making distribution; the primary object being the interest of the estate. But when there is no material objection on one hand, or reason for preference on the other, the Court, in its discretion, puts administration into the hands of that person, among those of the same degree of kindred to whom the majority of the parties interested are desirous of entrusting the estate.?"

Upon that principle, letters of administration with will annexed are generally granted to the residuary legatee if there be one, or the residuary devisee, and when there is no residuary legatee or devisee they are usually granted to the person beneficially entitled to the residue, or to the next-of-kin; see Williams on Executors and Administrators, (11th ed.), pages 377,380 and 381, see also Vol. 16 of Halsbury?'s Laws of England(3rd ed.), para. 431. In this country they are usually granted to the successor appointed by the family who by customary law are the beneficiaries of the estate of the intestate or of the undisposed residue of the estate of the testate.

In so far as the deceased died partly testate and partly intestate, the personalty of which he died intestate or which fell into residue, vested immediately upon his death in his family by customary law; in this case, the maternal family as shown in exhibit D, the judgment of the Akwapin Native Court "A".

By customary law the personal property of an intestate, whether of the matrilineal or the patrilineal group, vests in his family upon his death and is distributed by the head of the family or successor appointed by the family. In the distribution specific chattels are treated as realty and are not distributed. Examples of these are cattle in the Northern and Upper Regions, and gold dust or trinkets in the other regions of the country. It is also a custom common to both matrilineal and patrilineal family systems, that children of the deceased are entitled to a share in the distribution of the personalty. But apart from special chattels like a gun, or bow and arrows, which are generally given to children, the share of the personalty or the specific chattels to be given to children are in the discretion of the family. [p.272]

It follows from the principles of the customary law stated above that as between the plaintiff and the defendant, the proper person entitled to administer the personal property of the late Alfred Mark Ofori, is the plaintiff, the successor appointed by the family in whom title to the same became vested immediately upon his death, and that the defendant is one of the persons entitled to an undetermined share in the said personalty.

The claim for revocation of the administration was opposed by the defendant on the grounds that: -

(i) the plaintiff is estopped from disputing the validity of the grant since he did not enter caveat at the time when notices issued citing next-of-kin;

(ii) a judgment of the District Magistrate?'s Court, exhibit 2 given in application for an order upon the defendant to deliver up the personal property to the plaintiff, had ruled that once letters of administration had been granted to the defendant he could not be ordered to deliver up the personalty to the successor; and that

(iii) letters of administration once granted are irrevocable.

As to the estoppel, the defendant alleged that his application for grant of letters was made with the prior knowledge of the plaintiff, and that the plaintiff even lent him an amount of G3 10s to enable him to consult a solicitor for purposes of the application. The plaintiff denied those allegations. He said that he did not know that the defendant had applied for letters until he received a letter from the defendant telling him he had obtained letters and enclosing a copy of a newspaper publication of the fact, He thereupon instituted an action in the native court against the defendant to establish his status as successor, and obtained the judgment earlier referred to, exhibit C. I believe the plaintiff?'s evidence in that behalf. I am satisfied that he did not in any way acquiesce in the application of the defendant for the grant of letters of administration.

As to the order of the learned district magistrate that the defendant could not be ordered to deliver up the personal property comprised in the estate to the successor because of the grant of letters to him, it must be observed that the learned district magistrate fell into the error of thinking that the grant of letters vested the personalty in the administrator as beneficial owner. It cannot be over-emphasised that the grant of administration does not give the grantee any beneficial interest in the estate if he had none otherwise. All that the grant of probate or letters of administration does is to enable the personal representative to get in the estate, and after payment of funeral and testamentary expenses, to protect it for the benefit of persons beneficially entitled to it, whether as creditors, legatees or next-of-kin; see Vol. 16 of Halsbury?'s Laws of England, (3rd ed.) page 121, para. 176. There being no evidence of any creditors of the estate, it is incumbent upon the defendant, the administrator, to surrender the property to the successor, the lawful representative of the family in whom the property is vested.

Again the contention that administration cannot be revoked is erroneous. Administration may be revoked for good cause, e.g., when, as in [p.273] this case, it is granted to a person other than the person lawfully entitled to it; see Williams on Executors and Administrators, (11th ed.) pages 457 - 461. The learned authors at page 461 of that book said: ?"...the Court may repeal its grant of administration when made to other than the next-of-kin as if it be granted to a next-of-kin together with one not of kin?". Therefore the court can revoke the letters granted to the defendant.

But if the court were to grant the first prayer of the plaintiff, i.e. revoke the grant made to the defendant, a difficult situation will arise, because the court cannot automatically grant the second prayer of the plaintiff and order letters of administration to issue to him. The plaintiff will be bound to apply to the court for grant of letters in conformity with the rules of court in that behalf. On the other hand, to save multiplicity of suits, and from the evidence before the court this estate has already suffered too much from litigation, and since by customary law the defendant has some interest in the personalty and is entitled to a share in the distribution, though only to an undefined share, the court can treat this action as an administration suit and order the defendant to administer the personal estate, by delivering the same to the plaintiff.

In the circumstances there will be judgment for the plaintiff against the defendant for an order upon the defendant to administer the personal property of the deceased by delivering the same to the plaintiff.

The plaintiff will have his costs fixed at 20 guineas inclusive.

Decision

<P>Judgment for plaintiff.</P>

Plaintiff / Appellant

E.K.N. Olaga

Defendant / Respondent

In person.

Referals

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