COURT OF APPEAL, KUMASI
Date: 5 DECEMBER 1973
SOWAH J
NATURE OF PROCEEDINGS
APPEAL from a decision of the High Court in a summons under L.N. 140A, Order 60, r. 21 (2). The facts are sufficiently stated in the judgment of the court.
COUNSEL
Okyere-Darkoh for the appellant.
Prempeh for the respondent.
JUDGMENT OF SOWAH JA
Sowah J. A. delivered the judgment of the court. The short facts of this case are that after the death of one Kwaku Gyan-Fosu also known as Nana Afriyea Ababio, Krapahene, in 1963, the royal family of the Krapa stool elected his cousin Akua Kunadu as his successor and authorised her to apply for letters of administration to administer his estate which she accordingly did.
A caveat was entered on the application by the present appellant who contended that the deceased was not a member of the royal family of Krapa and that he was the proper person entitled to letters of administration. During the course of the proceedings Akua Kunadu died and was substituted by Nana Owusu Akwatia-Pekoh. III, the Krapahene. The applicant and the caveator hail from two different geographical areas in Ghana; the applicant being an Ashanti from Krapa near Ejisu and the caveator from Abomosu in the Akim Abuakwa state. Each contestant was supported by his family and there was no question that each had been put up by his family to make the claim. In consequence of the apparently irreconcilable claims, an order was made by the court under Order 60, r. 21 (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), directing the applicant to take out a summons against
[p.146] of [1974] 1 GLR 145
the caveator for the determination of the issue as to who was entitled to a grant of letters of administration.
The summons was duly taken out, pleadings were filed and evidence led. It turned out that the real question was whether the deceased was an Ashanti from Krapa near Ejisu or an Akim Abuakwa man from Abomosu in the Eastern Region of Ghana. The evidence of the applicant indicated that the late Gyan-Fosu who was a royal of the stool was born in Abomosu, lived the greater part of his life there and acquired properties in that area but towards the evening of his life he was traced by the Krapa family and was elected and enstooled Krapahene. He was the Krapahene up to the time of his death. The caveator, of course, led evidence which showed that the deceased was from his family at Abomosu and though he admitted that the deceased was installed Krapahene, he maintained that it was an honorary title conferred upon him and not because he was a member of that royal family.
Upon the evidence, the learned judge held that the deceased hailed from the royal family of Krapa and that the Krapa claim must succeed and accordingly declared the applicant to be entitled to the grant of letters of administration.
In the application for letters of administration, there was attached the usual inventory of the deceased’s properties and included in it, is a farm at Monsah. It appears in the course of the proceedings that a receiver and manager was appointed during the pendency of the action to manage the properties. In his attempt to take over the farm at Monsah, one Kwame Boateng from the family of the caveator protested and applied to the court to exclude the said farm as that was not one of the properties of Gyan-Fosu, deceased. Arguments were heard from counsel of the parties and the learned judge ruled that the farm at Monsah was wrongly included in his order and varied his order to exclude it. However in his judgment as to which of the parties was entitled to letters of administration the learned judge held in respect of this farm as follows: “I accept the evidence of the plaintiff s first witness and the plaintiff that the Monsah farm was the self-acquired property of Gyan-Fosu and I hold that it forms part of the estate.”
It is against the grant of letters of administration and the above finding that this appeal has been brought. Counsel for the appellant conceded that there was evidence, if accepted, on which the learned judge could hold that the deceased was a member of the royal family of Krapa. In our view, there was overwhelming evidence on that issue. Counsel further argued that it was wrong for the learned judge to make a finding that the farm at Monsah was part of the estate of the deceased when that issue was not before him and was not necessary to the determination of the question of who was entitled to the grant of letters of administration. Counsel for the respondent contended that issue was joined on it and pointed to the evidence in support of the judge’s findings.
We will observe that in our view the ownership of the farm was not in issue. We think there is some substance in the argument of counsel for
[p.147] of [1974] 1 GLR 1
the appellant that the sole issue for determination was set out in Order 60, r. 21 (2) of L.N. 140A and that in so far as the learned judge purported to couple this determination with that of the ownership of the farm he went too far. All that the learned judge was invited to determine was which of the two parties had a better right to letters of administration. The issue of ownership of the farm ought to be left at large and be determined in appropriate proceedings if the parties so desire, and none of the parties be precluded from having the matters in issue ventilated.
Accordingly we will vary the judgment by deleting the finding on the ownership of the Monsah farm. Subject to this variation we would dismiss the appeal with costs fixed at 075.00 for the respondent.
DECISION
Judgment varied.
Appeal dismissed.
S. O.
