HIGH COURT, KUMASI
Date: 22 JANUARY 1975
KORANTENG-ADDOW J
CASE REFERRED TO
Owusu v. Kisiwa [1972] 2 G.L.R. 99.
NATURE OF PROCEEDINGS
ACTION as to the proper person entitled to a grant of letters of administration in compliance with Order 60, r. 12 of L.N. 140A. The facts are sufficiently stated in the judgment.
COUNSEL
C. F. Hayfron-Benjamin for the plaintiff.
S. K. K. Sotomey for the defendants.
JUDGMENT OF KORANTENG-ADDOW J.
I gave my decision in this matter yesterday and reserved my reasons for today, and these are the reasons:
The plaintiff in this matter applied for letters of administration to enable him to administer “the personal estate of the late Samuel Banson, etc.” The late Banson hailed from Gomoa in the Central Region but resided in Kumasi. From
[p.244] of [1975] 1 GLR 243
the supporting affidavit of Opanyin Kwesi Mensah, who describes himself as the head of the family of the deceased, it appears that the late Banson belonged to the Anona family of Dogo, an Akan family.
The applicant describes himself in his oath of administrator as a “junior brother” of the deceased and said also in the affidavit in support of his application that he had been unanimously appointed by the family to succeed to the estate of the deceased. The deceased was survived by four grown-up children (three women and a man) as well as his widow. As the deceased married his wife under the customary law there seemed to be no opposition to the application. The court therefore granted the application and ordered the usual notices to be put up for 21 days.
When the notices went up, the three daughters of the deceased caveated. In their affidavit of interest they deposed in paragraph (3) among other things that their late father told them in his lifetime that “he had an only brother Kofi Nyame and an only sister Ama Antobam both of whom died before him.” They also deposed in paragraph (4) that it is not true that the applicant was their father’s brother. In paragraph (5) of the affidavit they deposed that their late father told them that he had no other known relatives who could succeed him. They contended in paragraph (6) of the affidavit that they “were advised [and that] they verily believed it to be true that in the absence of any such relatives we the children were entitled to succeed.” In paragraph (7) of the affidavit they also claimed to be creditors to their late father. The paragraph reads:
“That in any case, our late father was so heavily indebted to us that we must be given letters of administration in order to protect our interests. For instance we lent our late father the sum of 01,500.00 to buy Fiat car No. GN 6218. This amount was not repaid before his death, but the applicant has taken possession of the car and is driving it around without caring whether or not there is an insurance cover in respect of its user. He has not even declared the value of the said car in the inventory attached to his application.”
As the parties failed to come to any agreement the court ordered the applicant to take out a writ to enable it to determine which of the contestants was the proper person in whose favour letters of administration should issue in compliance with Order 60, r. 12 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The writ was taken out.
In his statement of claim the plaintiff toned down his pretentions. He now described himself not as a “junior brother” of the deceased but as “a maternal cousin of the deceased.” But he still contended that as the customary successor he was the proper person to be issued with letters of administration and that the defendants were not entitled as creditors (if that were true at all) to a grant of letters of administration on that score alone.
In their defence the defendants pleaded other matters but what is relevant to the matter is that they put the plaintiff to strict proof of his status. They also averred that they spent as much as 02,698.85 on the funeral of their late father and that their late father was indebted to them
[p.245] of [1975] 1 GLR 243
in the sum of 02,000.00 at the time of his death. That amount was a loan they made to him. They also said that the family of their late father had completely neglected their mother, the widow of the deceased, and that they had had to maintain her at the rate of 045.00 a month. They therefore counterclaimed and in it called upon the court to order that letters of administration should issue in their favour.
At the hearing of the matter counsel agreed that evidence should not be taken but that they would argue the law involved in the matter. This meant that the defendants were prepared to accept the facts pleaded by the plaintiff as the basis of the arguments.
The main plank of the argument of Mr. Hayfron-Benjamin, learned counsel for the plaintiff, was that as the customary successor so appointed by the family of the deceased, the plaintiff was the proper person to administer the estate. The defendants as children of the deceased have no leg to stand on in their contention. And also that as creditors they were not entitled to a grant of letters of administration. In his contention the proper administrator should be allowed to enter the estate first, then the defendants could present their claim to him. He supported his argument with passages from Parry, The Law of Succession (4th ed.). He submitted also that all the interest a creditor has in the estate of a deceased is to see that he is paid. Referring to p. 170 of Parry, The Law of Succession (supra) he submitted that it is only when the persons interested in the estate fail or refuse to take letters that a creditor might. The passage he referred to reads in part: “If none of the next-of-kin of an intestate will take out administration, it is the practice of the court to make a grant (after proper citations) to any creditor of the estate who applies for it..
The submission of Mr. Hayfron-Benjamin is true. When the persons interested in the estate do not take letters then the creditor might. That simply shows that creditors also come within the group of persons who are in the run for the grant of letters, i.e. the persons who have a beneficial interest in the estate. In fact after reviewing the state of the law on the subject Parry gives the list and the order of precedence in which they come at pp. 165 and 166. It will be noticed that after the surviving spouses and the blood relations both near and distant come the Crown and then the creditors. The relevant section in our own Administration of Estates Act, 1961 (Act 63), s. 79 (2) reads:
“In granting administration the court shall have regard to the rights of all persons interested in the estate, including the successor, if any, under customary law, and, in particular, administration with the will annexed may be granted to a devisee or legatee and the administration may be limited in any way the court thinks fit.”
I would hold that creditors in this country are included in the group of persons described as “all persons interested in the estate,” and that they should be considered alongside with the customary successor: see my decision of 25 May 1972 in Owusu v. Kisiwa [1972] 2 G.L.R. 99 in which I discussed this matter.
[p.246] of [1975] 1 GLR 243
In the circumstances of this matter I would prefer the defendants to the plaintiff as administratrixes. I hold, as I held in the Kisiwa case (supra), that the plaintiff is not responsible enough to be entrusted with the administration of this estate. Where was he when the deceased died? Why did he leave the financial burden of burying the deceased on the children? Why has he not made any effort since to take up the debt incurred in the funeral celebration? Why has he not assumed the responsibility of maintaining the widow? Why should he only be interested in taking the car of the deceased and converting it into a taxicab and using the takings for his own personal use? The sum total of the answers to all these questions can be spelt out in one word, “irresponsibility.”
It was for these reasons that I ordered that letters of administration should issue in favour of the defendants.
DECISION
Grant of letters of administration to issue in favour of defendants.
S. Y. B.-B.
