COURT OF APPEAL
DATE: 22 MAY 1967
BEFORE: AZU CRABBE, OLLENNU AND APALOO JJ.A.
CASES REFERRED TO
(1) Warwick (Earl v. Greville (1809) 1 Phill. Ecc. 123; 161 E.R. 934.
(2) Coleman v. Shang [1959] G.L.R. 390, C.A.
NATURE OF PROCEEDINGS
APPEAL against the grant of letters of administration. The facts are fully set out in the judgment.
COUNSEL
B. J. da Rocha (Enin with him) for the appellant.
Hayfron-Benjamin, Jnr., for the respondent.
JUDGMENT OF AZU CRABBE J.A.
The proceedings in this case were commenced with an application ex parte filed by the plaintiffs in the High Court, Sekondi, for conditional grant of letters of administration to them jointly in respect of the estate of Joseph Annu—Essuman, deceased, who died at Elmina on 18 June 1960. The application was granted on 22 May 1961, but on 1 June 1961, a caveat was entered by the defendant, who claimed to be the widow of the late Joseph Annu — Essuman, opposing the grant of letters of administration to the plaintiffs. On 10 November 1961, the plaintiffs filed a motion on notice praying for an order granting to them jointly letters of administration and in their affidavit accompanying the motion paper they disputed that the caveatrix, the defendant, had any interest whatsoever, either by native customary law or under English law, in the estate of the late Joseph Annu-Essuman. These proceedings were before Charles J. and were headed as follows:
“Re estate of Joseph Annu-Essuman (deceased); Anna Winifred Annu-Essuman and Kweku Essuman (applicants) Motion on notice for an order granting to them jointly letters of administration.” On 18 December 1961, Charles J. ordered the applicants to issue a writ of summons against the caveatrix for the purpose of determining the issue as to who was entitled to the grant of letters of administration.
The plaintiffs therefore issued a writ claiming against the defendant, “a declaration that the first plaintiff, who is a surviving issue of a marriage contracted by the late J. A. Essuman under the Marriage Ordinance and the second plaintiff who is a brother
[p.361] of [1967] GLR 359
and the person validly appointed under native custom to be the successor of the said J. A. Essuman deceased, are the proper persons entitled to a grant of letters of administration in respect of the estate of the said J. A, Essuman deceased in preference to the caveatrix Anna Teschmaker.”
In a statement of claim filed on behalf of the plaintiffs the following averments were made: “(2) The first plaintiff is one of the surviving issues of a marriage contracted by the said J. A. Essuman under the Marriage Ordinance in his lifetime.
(3) The second plaintiff is a brother to the deceased J. A. Essuman and the person who has been validly appointed to be the customary successor of the late J. A. Essuman.
(4) It was agreed between the head and the principal members of the family of the late J. A. Essumanacting on one hand and the surviving legitimate children of the intestate acting on the other hand, that the first and the second plaintiffs should apply to the Sekondi High Court for a joint grant of letters of administration to administer the estate of the said J. A. Essuman, deceased.”
It is clear from the pleadings of the plaintiffs that they were acting jointly on behalf of the family and one of the surviving legitimate children of the deceased. The defendant did not seek to controvert these facts as alleged, but rather averred as follows:
“(1) The defendant is the widow of Joseph Annu-Essuman late of Sekondi, deceased, having been married according to native customary law and usage . .
(3) The defendant is entitled, as the widow of the said Joseph Annu-Essuman to a share in his estate in accordance with the provision of the Statute of Distribution, 1670.
(4) The defendant therefore as the widow of the intestate aforesaid is entitled to the grant of letters of administration to administer the estate of the said Joseph Annu-Essuman of Sekondi (deceased) and to a share in the distribution thereof.” By their reply the plaintiffs joined issue with the defendant, and the issues formulated for trial were: (1) whether or not the defendant was the widow of the late Joseph Annu-Essuman, according to native customary law and usage; (2) whether or not the defendant was entitled to a share in the estate of the deceased and (3) whether or not the defendant was entitled to letters of administration.
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Before hearing actually began, the plaintiffs made an application, to the court that two women, Madam Mary Gwira and Madam Effua Aaba, who also claimed to be customary wives of the late Joseph Annu-Essuman, be joined as co-plaintiffs because the defendant did not recognise them as legitimate wives of the deceased. The plaintiffs alleged that it was expedient that these two women be joined as parties so that the court could determine whether they had any interest in the estate and make an order accordingly which would bind all parties. The application further prayed for an order allowing the first plaintiff to represent all the children of the deceased. The defendant opposed the application for joinder only and the application was refused with liberty to apply, but the court ordered that the title of the suit be amended to read:
“(1) Anna W. A. Essuman For herself and as the representative of Eric, Victoria and Sabina Essuman, the three other children of the late J. A. Essuman.
(2) Kweku Essuman As successor and representative of the family of the late J. A. Essuman versus Anna Teschmaker.”
I consider it unnecessary to state in detail the subsequent course of events, but it is sufficient to say that the hearing of the suit proceeded eventually before Bruce-Lyle J. without the other two women. After a detailed and meticulous examination of the evidence and after applying the correct principles of the law, the learned trial judge found that the first and second plaintiffs and the defendant had an interest in the property of the late Joseph Annu-Essuman.
The learned trial judge next considered who was or were better entitled to the grant of letters of administration. He did not accede to a submission that he should set out the proportion to which the defendant would be entitled, having regard to the number of children and the other two women alleged tobe lawful customary wives. His only concern was the application of the provisions of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.), which lays down that two-thirds of the estate of a deceased intestate devolves on his wife and children and the remaining one-third to the family. Applying this section to the facts of the case the learned trial judge said:
“I am satisfied that the first plaintiff and her brother and sisters and the defendant, who is the widow in this suit, are together entitled to the two-thirds share of the estate and the family
[p.363] of [1967] GLR 359
represented by the successor, the second plaintiff to the one third share . . .” The learned judge then made this crucial and decisive finding: “I therefore find that the first plaintiff and the defendant together, having a larger share of the estate, are better entitled to the grant of letters of administration and I therefore enter judgment for the first plaintiff and the defendant.” The learned judge not only gave wrong reason, which I shall examine later, for excluding the second plaintiff from the grant, but he also castigated him for his frivolous opposition to the claim of the defendant and for unnecessarily protracting the litigation. Several grounds of appeal were filed against the decision of the learned trial judge, but the only ground which I think was really argued, and which appears to be the sole point in this appeal, is ground (d) which reads: “The learned judge misdirected himself on the issue before the court. The main contention or issue before the court was who has a better right to a grant of letters of administration, the first and second plaintiffs jointly on the one side as opposed to the defendant alone on the other side. The judge erred in not answering that question in the affirmative or at all. “
For a proper determination of the only issue in the appeal, I think it is necessary to state some of the principles which ought to guide the court in granting letters of administration to applicants. It is a well-settled principle that the right to the administration of the property of an intestate follows the right to the property’; or shortly stated, the grant ought to follow the interest. In general practice a party having a direct interest is preferred to a person having only a derivative interest. Where there is no contest the court will make the grant to the first applicant, priori petenti, but may require notice to be given to the other next-of-kin. The court has a wide discretion in making the grant of letters of administration; this discretion is not exercised arbitrarily or capriciously, but it is a legal discretion governed by principle and sanctioned by practice. The function of the court when considering an application for a grant of letters of administration is to look to the benefit of the estate and to that of the beneficiaries of the estate.
“The first duty of the court then is to place it in the hands of that person who is likely best to convert it to the advantage of those who have claims, either in paying the creditors or in making distribution; the primary object is the interest of the property.”
[p.364] of [1967] GLR 359
See Earl of Warwick v. Greville (1809) 1 Phill. Ecc. 123 at p. 125. Letters of administration are usually granted to the party who is shown to have the largest interest, unless there is some ground of objection or some reason for preferring another. Where there is a community of interests and there is no objection or reason for preference, the court, in its discretion, puts the administration into the hands of the person or persons to whom those with the majority of interests are desirous of entrusting the estate. In this country, the exercise of the court’s discretion takes into account the rights of the customary successor of the intestate, or the interest of the deceased’s family.In this case there can be no doubt that both the first and second plaintiffs applied for letters of administration to be granted to them jointly and when the defendant opposed their application she was in effect counterclaiming that she must be preferred to the two plaintiffs. In Coleman v. Shang [1959] G.L.R. 390 at p. 398, C.A. it was said: “Caveat in opposition to application for letters of administration, together with an affidavit of interest filed in consequence of warning served upon the caveator, amounts to a counterclaim that, as between the applicant for letters and the caveator, the latter has a better right to the grant of letters.”
The case therefore became a contest between the plaintiffs on the one hand, and the defendant alone on the other and the real issue was which side the court should prefer for the purpose of granting the letters of administration. The learned trial judge found that the capacity in which each of the plaintiffs fought the case and their claim to be entitled to the grant of letters of administration were not challenged by the defendant. As regards the second plaintiff, the learned trial judge made the further finding that once his capacity as successor has not been challenged, his capacity as representative of the family of the late Essuman is of little importance in this case as a grant to him as successor will mean that he will have to administer the estate of the late Essuman for himself as successor and on behalf of the family of the late Essuman in respect to the share to which the family would be entitled. The next important finding by the learned trial judge was that the defendant was lawfully married’ according to native custom to the late Joseph Annu-Essuman and was so married to him at the time of his death. He therefore came to the right conclusion.
As I have said earlier in this judgment, the first and second plaintiffs and the defendant all had interest in the property of the deceased. Having arrived at this conclusion the learned trial judge [p.365] of [1967] GLR 359
directed himself thus: “It is now necessary to find out who is or are better entitled to the grant of letters of administration.” I think that the key-words in this passage are better entitled since the plaintiffs’ claim was that they should be preferred to the defendant. The learned judge of the court below decided that the first plaintiff and the defendant were better entitled to a grant, his reason being that they together had a larger share of estate.
With all due respect to the learned trial judge, I think he erred in his final conclusion for two reasons: (i) he was wrong in separating the claim of the second plaintiff from that of the first plaintiff. The plaintiffs made a joint claim against the defendant, and they must stand or fall together. Their claim must therefore be considered together and this means that the shares of the children and the family should be added and considered as one unit; (ii) he does not appear to have made an accurate calculation of the shares to which the parties were entitled.
In Coleman v. Shang (supra) on which the learned judge placed great reliance, the Court of Appeal gave some useful guidance on the application of the Marriage Ordinance and how to calculate the shares of those interested in the estate. It was there said at p. 405: “Under section 48 of the Marriage Ordinance, when the English law applies it does so only as to two-thirds of the estate; the other one-third is to be distributed in accordance with the provisions of the native customary law which would have obtained if such person had not been married under the Ordinance. The proportions to which wife and children in this country will be entitled in the whole of a deceased husband’s estate in law therefore are:
(i) wife: 1/3 of 2/3, which is 2/9
(ii) children: 2/3 of 2/3, which is 4/9.”
From the above passage it is clear that the first and second plaintiffs are each entitled to four-ninths andone-third share respectively of the estate, that is a total of seven-ninths. The wife’s share is two-ninths, and even she may have to share this with the other wives of the intestate, if the latter are able to substantiate their claim. On the general principle therefore the letters of administration are granted to the party who is shown to have the largest share in the estate of the intestate and the learned trial judge in this case should have declared the plaintiffs as the persons entitled to the letters of administration. Therefore, in my opinion, the learned trial judge wrongly exercised his discretion by declaring the first plaintiff and the defendant as persons who were “jointly better entitled to the grant of
[p.366] of [1967] GLR 359
letters of administration.” I would therefore allow the appeal, set aside his judgment together with the order as to costs and would declare that the first and second plaintiffs together have a larger share of the estate of the late Joseph Annu-Essuman and are therefore, entitled to the grant of letters of administration in preference to the defendant. Accordingly, I would enter judgment for the plaintiffs with costs to be paid out of the estate. The costs awarded in the court below, if paid, are to be refunded.
JUDGMENT OF OLLENNU J.A.
I agree.
JUDGMENT OF APALOO J.A.
I also agree.
DECISION
Appeal allowed.
L.F.A.
