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NIMOH v. ACHEAMPONG & ANOR


  • appeal
  • 1959-02-02
  • COURT OF APPEAL
  • GLR 49-50
  • Print

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


Summary

Order 60, Rule 21 (2) "may" treated as mandatory?-Judge bound to order writ of summons where parties do not reach agreement 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."Upon Nimoh's filing notice of an ex parte motion praying for letters of Administration, two persons caveated (Acheampong and Adiyea), and in due course he and they filed affidavits. When the applicant's motion came on for hearing, he and the two caveators were all represented by counsel. The Judge Sarkodee-Adoo J.), saying that on the affidavits it was clear that the first caveator had no locus standi, and that his intervention was "a bare-faced try-on," made the following order: ?"Let Letters of Administration of the deceased intestate be issued jointly to the applicant and the Second caveator.?"The 1st caveator appealed (Civ. App. No. 50/58).

Judgement

JUDGMENT OF VAN LARE AG. C.J.

In this administration matter, it appears that upon a motion coming on for hearing before the Divisional Court the parties failed to come to an agreement among themselves as to the person or [p.50] persons to whom a grant of Letters of Administration should be made.

The Court was therefore bound under the provision of Order 60 Rule 21(2) to order the applicant to issue a writ of summons against the caveators within a specified period. Instead of proceeding as required by the Rules the learned Judge ordered Letters of Administration to issue jointly to the applicant and the second caveator.

Mr. Henry Prempeh, for the respondents, has referred us to the case of Okata vs. Ayimadu (1926-29 F.C. 156) which appears to support the learned Judge's procedure in this matter. But we must point out that that case was decided upon some rules specially drawn up by Brandford-Griffiths C. J., as regards practice to be adopted in such matters at that time. Our own rules are now different from those special rules then applicable. The authority cited is therefore not in point.

Decision

<P>We must therefore allow the appeal. The order appealed from is set aside, including the order as to costs, any costs paid to be refunded. The matter is remitted to the Court b

Plaintiff / Appellant

Owusu Afriyie

Defendant / Respondent

Henry Prempeh

Referals

Okata v. Ayimadu (F.C. (1926-29) 156) distinguished.

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