HIGH COURT, HO
Date: 31 JULY 1975
FRANCOIS J A
CASES REFERRED TO
(1) Loveday, In the goods of [1900] P. 154; 69 L.J.P. 48; 83 L.T. 692.
(2) Cope, In the estate of [1954] 1 W.L.R. 608; [1954] 1 All E.R. 698; 98 S.J. 253.
(3) Thompson v. Thompson (1925) D.Ct. ‘21-’25, 155.
NATURE OF PROCEEDINGS
APPLICATION for the revocation of a grant of letters of administration on the grounds, inter alia, that the administrator had failed to bring in his account. The facts are adequately stated in the judgment of Francois J.A. sitting as an additional judge of the High Court.
COUNSEL
Mawudoku for Amorin for the applicant.
Adjabeng for Dogoe for the respondent.
JUDGMENT OF FRANCOIS J.A.
In these proceedings the applicant seeks a revocation of letters of administration granted her uncle John Anku Hodienukpor on 24 May 1965 to administer the estate of her late father Oswald Kumatse. She founds her plaint on the following:
(1) The administrator’s mismanagement of the estate.
(2) His relinquishment of the authority conferred on him by the court.
(3) The applicant’s own superior capacity to administer the estate.
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The argument on the first ground rested on the improper disbursement of rents collected from the deceased’s estate and devastavit in regard to a cocoa farm. The applicant complained that she had not received her due share of rents collected and paid into the estate kitty while distant and undeserving hangers-on in the family had received bounties. As to the cocoa farm the allegation was that it had been neglected and allowed to wither thus depriving the estate of valuable revenue.
On the evidence I do not find these charges made out. It is not controverted that the applicant received a share of the rents accruing to the estate. Though it could hardly be called a lion’s share it was still nothing to be sniffed at. Other members of the family who were dependent on the deceased have had commensurate slices of the cake. Part of the available funds has also been expended in the upkeep at school of a ward of the deceased, in fulfilment of the deceased’s behest; another part in necessary renovations to the deceased’s house. The applicant, furthermore, retains one of her deceased father’s houses, rent free. And the tiresome obligation of paying rates, taxes, water bills and conservancy fees have been taken over by the respondent. There does not seem much cause for complaint. On the evidence the allegedly neglected cocoa farm was so abandoned in the lifetime of the deceased. I am satisfied that it was not only ill-health that led to the abandonment of this farm by the deceased but also and substantially its economic unviability.
On the second ground the applicant is concerned about the administrator’s abdication of his authority in favour of two members of the family, E. K. Agbesinyale and Mathew Hoediemkpor. It appears the two gentlemen were appointed by the family to help oversee the estate; the respondent bowed to the wishes of the family, and he declared in his affidavit of 29 May 1972, that he has “since then not handled any part of the estate.”
The question is whether the respondent has forfeited the trust reposed in him by the court, to require his removal from office. Before considering this aspect of the matter, it must be observed that the respondent and his solicitor fell out on the true intention of the respondent in paragraph (17) of the said affidavit—the respondent claiming he had been misunderstood. I have no doubt that the offending paragraph whereby the respondent purported to abdicate the office of administrator, mirrored the factual position. I am satisfied that the respondent made this declaration in an attempt to resist accountability. Having said this, the question still remains: does the statement with the concomitant submission of the respondent to the will of the family amount to cause, sufficient to nullify the grant? I think not. The respondent’s acts, outside his affidavit, do not show a renunciation of his surveillance or stewardship. He has not professed a desire to relinquish the office of administrator. In fact he has sought to justify his retention. On the evidence he has shown due concern for the estate, paying all just bills and supporting the incumbents of the estate. His fault lies in not publishing a true account of his stewardship; but this can be remedied.
On the third issue, the applicant seeks letters herself in place of the respondent. She claims that being the only child of the deceased she has
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the better right to the appointment. Without embarking on an excursus on the heritable rights of females in the Ewe region of Ghana, I would say at once that the merits of such a claim have been hidden from consideration for too long to have any decisive effect now. Letters of administration were granted in March 1965. No caveat was filed when notice of the application was published by order of the court. The application has since sat by till 1972 when she has attempted to assert a better title. No court will revoke a grant where there have been laches and acquiescence.
In considering this application I have constantly kept in mind the injunction that the courts must always attempt to ensure the due and proper administration of the estate and protect the interest of all parties beneficially entitled thereto: see In the Goods of Loveday [1900] P. 154 at p. 156. A grant of letters of administration cannot be lightly revoked. There must be substantial cause for the withdrawal of authority. There is no contention here that the administrator is non compos mentis, on the contrary there is rather a veiled suggestion that the applicant suffers from that disability. There is no issue of fraud. None of the recognised grounds for a recall exists in this case.
It is well established that a grant of letters cannot be recalled on the ground that the administrator has failed to bring in his account, for it is presumed that the court has taken sufficient precaution to prevent maladministration. Though an account can be ordered (and it is here that the applicant cam claim to be on a better wicket) a revocation cannot be made merely because she has substantiated her case for an order for inventory or accounts: see In the estate of Cope [1954] 1 All E.R. 698. Although the application has failed on all the three grounds raised, the applicant by virtue of her substantial interest in the estate, being numbered among the heirs of her late father, has a right to call for accounts. The passage in Tristram and Coote’s Probate Practice (20th ed.), p. 446 needs restating:
“Any person interested in an estate e.g. a person sharing in the estate, or a legatee or a creditor, may call upon the administrator or executor who has become the legal personal representative of the deceased to exhibit an inventory of the estate and render an account of his administration thereof.”
See also Thompson v. Thompson (1925) D.Ct. ‘21-’25, 155. Before I conclude, I must observe that during the course of the suit I warned repeatedly, and recorded the same in my ruling of 15 June 1972, of the impropriety of proceeding without issuing a citation calling upon the administrator to produce the grant at the registry: see Halsbury’s Laws of England (3rd ed.), Vol. 16, para. 518 at p. 275. This warning was unheeded. Nothing now turns on it as the applicant has failed. Had she succeeded the net result would have been the same, because the non-production of the original grant on the failure to issue a citation would mean there was nothing before the court to revoke and no new grant could be made since the original remained in force. On the evidence therefore I find that no just
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cause has been demonstrated for revoking the letters granted to the respondent herein.
I am however of the opinion that the affairs of the estate must be regulated in a manner above suspicion or reproach. I consequently order that the respondent do file within a month of date hereof, a full account of his stewardship, verified by affidavit, and that a copy thereof be served on the applicant within the aforesaid period. The receiver and manager is discharged. But no disbursements are to be made from the sum now disposited in court before the filing of the accounts.
I award costs of 100.00 (one hundred cedis) each to the applicant and respondent to be borne by the estate.
DECISION
Application refused. Respondent of file account.
