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BOSUMPIM v. BUACHIE


  • appeal
  • 1959-01-26
  • COURT OF APPEAL
  • GLR 34-35
  • 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?-Successful party may not desire them.

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.?" Bosumpim (applicant) had claimed as against Buachie (caveator) a declaration under sub-rule (2) that he (applicant) was entitled to a grant of letters of Administration in the estate of Kwasi Kokor, deceased. The judgment of Murphy J. concluded as follows: ?"Judgment for the caveator for grant of Letters of Administration.?" Appeal by applicant (Civ. App. No. 62/58).

Judgement

This is a matter dealing with the administration of a personal estate, which comprised the following: one air-tight trunk, four men?'s cover cloths, one flint gun, two bundles of iron sheets, 4 cash, one gold [p.35] ring, pillow cases, blankets and a cutlass. There is evidence that the respondent had been appointed as the customary successor of the deceased, and had been handed these articles about 10 to 14 years before the institution of this action. In our opinion this action was frivolous, and a waste of money.

The Judge found in favour of the respondent, rightly in our view. In wording his judgment, however, he appeared to have made an order granting letters of administration to the respondent. This he cannot do, as in this action, arising as a result of a summons for directions, the only function of the Court is to determine which party is entitled to a grant as against the other. The successful party in the action may not be anxious, and may deem it unnecessary to apply for letters.

The proper order was as follows: "Judgment for the caveator, who is entitled to a grant of letters of administration."

Decision

<P>Save to the extent of this variation of the judgment the appeal is dis

Plaintiff / Appellant

Anin

Defendant / Respondent

Koi Larbi

Referals

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