IN RE KARIYAVOULAS (DECD.); DONKOR vs. GREEK CONSUL–GENERAL [1973] 2 GLR 52

CASES REFERRED TO

(1) Forster v. Baker [1910] 2 K.B. 636; 79 L.J.K.B. 664; 102 L.T. 29, sub nom. Bowles v. Baker; 26 T.L.R. 243, on appeal [1910] 2 K.B. 641, C.A.

(2) Green v. Berliner [1936] 2 K.B. 477; [1936] 1 All E.R. 199; 105 L.J.K.B. 662; 155 L.T. 486; 52 T.L.R. 221; 80 S.J. 247.

(3) Huddersfield Police Authority v. Watson [1947] K.B. 842; [1948] L.J.R. 182; 177 L.T. 114; 63 T.L.R. 415;111 J.P. 463; 91 S.J. 421; [1947] 2 All E.R. 193.

(4) Nelson (Earl) v. Bridport (1846) 8 Beav. 547; 50 E.R. 215.

(5) Dravie v. Nassar, W.A.C.A., 16 March 1953, unreported.

(6) Adjei and Dua v. Ripley (1956) 1 W.A.L.R. 62.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION to an application by the Ghanaian customary widow of a Greek national who died intestate seised of property in Ghana, to remove a caveat entered by the Greek Consul-General in Ghana against the grant of letters of administration to the applicant as next friend of her children, issues of the marriage, in respect of the deceased’s estate in Ghana.

COUNSEL

James Mercer for the applicant.

E. E. Hammond-Laing for the respondent.

JUDGMENT FOR CHARLES CRABBE J.

On 29 January 1972, a motion was filed by counsel for the applicant for letters of administration in respect of the estate of one Andreas Kariyavoulas. On 1 February 1972, Edusei J. dismissed the application on the ground that:

“In view of the averments in the affidavit, I do not think the applicant who married the deceased, a Greek national, according to customary law, is the proper person to ask for letters of administration …”

On 8 February 1972, counsel for the applicant applied for letters of administration and filed an authority issued by the applicant Adjuah Donkor also known as Adjuah Kariyavoulas as next friend of her two children, issues of the deceased Andreas Kariyavoulas. On 20 February 1972, Edusei J. refused the application.

On 20 October 1972, counsel filed another ex parte motion under paragraph (a) of rule 1 of Order 60 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), for the grant of letters of administration. On 6 November 1972, the solicitor acting on behalf of the Greek Consul-General in Ghana filed the relevant notice to prohibit

[p.55] of [1973] 2 GLR 52 the grant of letters of administration. The relevant warning was given to the caveator. On 6 December 1972, the Greek Consul-General filed his affidavit of interest.

In it he avers that the deceased died in Greece intestate. He had asked the Ministry of Foreign Affairs in Greece to find out and report as quickly as possible the names and addresses of the relatives of the deceased and the whereabouts of his children. He added:

“(6) That the late Andreas Kariyavoulas was a Greek subject and I am informed and verily believe that his capacity to enter into a contract of marriage is governed by lex domicilii that is to say the law of marriage in Greece.

(7) That according to the law of marriage in Greece if any marriage by a Greek subject is not solemnised in a church and no record thereof is made in the Register of Marriage then such a marriage is illegal and unrecognised.

(8) That to the best of my knowledge, information and belief the alleged marriage between the applicant and the late Mr. Kariyavoulas was according to native custom in Ghana and consequently it is illegal, unrecognised and not binding and contrary to the lex domicilii of the late Kariyavoulas who was not a Ghanaian.

(9) That according to the law of succession in Greece brothers succeed and since there are none of the relatives of the late Mr. Kariyavoulas in Ghana I as Consul-General claim to be the proper person entitled to the grant of letters of administration to enable me to administer the estate in Ghana for the benefit of the relatives in Greece and for the maintenance and education of the children who are also in Greece. (10) That I am prepared, if granted, to hand over the administration when called upon by his brother or any of the relatives of the late Kariyavoulas in Greece.”

To this the applicant deposed to the following facts, in an affidavit in support of the application, amongst others:

“(4) That the Greek consul has no locus standi in this matter.

(5) That the affidavit of the Greek consul does not show that the late Andreas Kariyavoulas was and died a national of Greece.

(6) That paragraphs (4) to (8) of the affidavit of the Greek Consul are misconceived, erroneous and totally irrelevant as I am not applying for letters of administration in my capacity as a widow of the late Andreas Kariyavoulas.

(7) That paragraph (9) of the Greek Consul’s affidavit is not true; that in March 1972, I instructed my solicitor to inquire from the Greek Consul-General Mr. Fotis Triantafyllopoulos, Accra, the Greek law of devolution of estate upon the death intestate of a Greek adult male.

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(8) That my solicitor did inquire by phone and was told by the said Fotis Triantafyllopoulos that on the death intestate of an adult Greek male his property devolved upon his wife or children, or in the absence of any such wife or children, his parents.

(9) That after the said telephone conversation my solicitor wrote to the Consul-General for Greece on 21 March 1972, for a confirmation of the information; that a copy of the said letter is attached hereto and marked exhibit A and that up till now the letter has remained unanswered.

(10) That the late Andreas Kariyavoulas died in 1970 and it is strange that up till now the Greek Consulate does not know of his relations if any and it is further strange that if really the consulate were interested in the matter no action should have been taken even after my solicitor’s telephone conversation and letter and until now.

(11) That the caveator cannot say at this moment whether the late Andreas Kariyavoulas left any relations and therefore his caveat was entered without foundation and is frivolous and vexatious.

(12) That the caveator has not disclosed any interest in the estate of the late Andreas Kariyavoulas and I swear to this affidavit in support of my application for the caveat to be removed and the letters of administration issued to me and for such further order as to this court may seem fit.”

The Greek Consul-General as caveator then filed his affidavit in opposition. In this affidavit he referred to the refusal of Edusei J. to grant the same application. He contended:

“(6) That neither the application before Edusei J. nor his refusal to grant the same is disclosed in the affidavit in support of this present motion.

(7) That to the best of my information, knowledge and belief there has been no appeal from the decision of Edusei J. and consequently the said decision still stands and is of full force and effect.

(8) That I am informed by counsel and verily believe that inasmuch as there has been no appeal from the decision of Edusei J. this court has no jurisdiction to entertain this present application …

(11) That as the Greek Consul of Ghana and the custodian of the Register I have interest in all the persons whose names appear in the Register and [am] the proper person entitled to the grant of letters of administration in the absence of any of the relatives of the said Andreas Kariyavoulas in Ghana.

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(12) That as regards paragraph (3) I say that all the names which appear in the Register are Greek nationals.

(13) That as regards paragraph (6) I maintain that since the applicant described herself as having been married to the late Andreas Kariyavoulas it was relevant to state that her marriage was illegal, unrecognised and not binding on the deceased.

(14) That as regards paragraphs (7), (8) and (9) I am not in a position to deny or admit the allegations therein because Mr. Fotis Triantafyllopoulos who acted for me in March 1972 during my absence from Ghana on furlough is away from Ghana on furlough at present.

(15) That as regards paragraph (10) I refer to paragraph (3) of my affidavit which I filed after the warning and which reads as follows:

‘That to the best of my information, knowledge and belief the late Kariyavoulas died in Greece in 1970 intestate and I have written to the Ministry of Foreign Affairs in Greece to find out and report to me as quickly as possible the names and addresses of his relatives and the whereabouts of the two children.’ (16) That in the circumstances I deny the allegation that the consulate has taken no action to find out the relations of the late Kariyavoulas.

(17) That as regards paragraphs (11) and (12) 1 contend that since the late Kariyavoulas’ name appears in the Consulate Register amongst the list of Greek nationals I have interest in his estate and in the absence of any of his relations in Ghana I am the proper person entitled to the grant of letters of administration to administer the estate of the deceased.

(18) That I am prepared, if granted, to hand over the administration when called upon by his brother or any of the relatives of the late Kariyavoulas in Greece.”

At the hearing, counsel for the caveator raised a preliminary objection. He referred to the affidavit of the caveator, to those paragraphs which state that previous applications for letters of administration had been refused. He then submitted that the court had no jurisdiction to entertain the application since the subject-matter of the present application is precisely the same as the subject-matter of the previous applications. In his view the ruling of Edusei J. “stands and is of full force and effect. If the applicant is aggrieved she should have appealed but there is no such appeal; and therefore the ruling stands until it is set aside.”

For the applicant, counsel argued that the horse had already bolted from the stable before an attempt is being made to harness it. The

[p.58] of [1973] 2 GLR 52 application for the letters of administration had been granted on 6 March 1973, subject to the normal notices. As to the previous refusals counsel contended that they were ex parte applications and for the plea of res judicata to be raised certain fundamental requirements were necessary: that there were the same subject-matter; the same parties; the same issues. As the caveator was not a party to the previous applications, he could not rely on res judicata or estoppel. He thought also that the caveator had no locus standi under rule 17 of Order 60 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), as the caveator as Greek Consul-General is not a body corporate.

The main contention of counsel for the caveator is one of jurisdiction. This is based on the argument that a ruling having been given by the High Court of Justice duly constituted by Edusei J., the High Court of Justice duly constituted by Charles Crabbe J. could not entertain this same matter. The legal authority of Charles Crabbe J. to deal with the matter is thus called in question. The extent of the power of Charles Crabbe J. is also in question. The jurisdiction of the High Court of Justice is dealt with by articles 112 and 113 of the 1969 Constitution, which I believe are still good law. The High Court of Justice is one court. There are divisions of the High Court of Justice. But the divisions are not separate courts. There is only one High Court of Justice, which could be duly constituted “by any one Justice thereof.” In the exercise of the jurisdiction conferred on the High Court of Justice that one justice is the High Court of Justice. And under the provisions of clause (1) of article 110 of the 1969 Constitution, a judgment, decree or order of any such justice is subject to appeal to the Court of Appeal. The justices of the High Court of Justice are, therefore, in the discharge of their judicial functions, not subject to each other. Each justice is competent to deal with any cause or matter within the jurisdiction of the High Court of Justice save as prohibited by law, such as in cases where two justices duly constitute the High Court of Justice.

The power of a justice of the High Court of Justice to entertain an action within the competence of the High Court of Justice cannot, therefore, be called in question on the ground that another justice of the same court had dealt with the cause or matter. Jurisdiction is the legal authority of a court of law to deal with an issue which includes, of course, the extent of that jurisdiction. This is borne out by the fact that under the provisions of clause (3) of article 109 of the 1969 Constitution which binds the Court of Appeal to “its own previous decisions and all Courts inferior to the Court of Appeal shall be bound to follow the decisions of the Court of Appeal on questions of law”. And until its abolition article 104 (2) of the Constitution, 1969, stated that:

“The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears right so to do; and all other Courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

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No such provision exists in respect of the High Court of Justice. A decision of one justice thereof cannot thus bind any other justice thereof. Any such decision is subject only to appeal to the Court of Appeal.

The authority and operation of the doctrine of precedent is limited. It is not absolute. Cases like Forster v. Baker [1910] 2 K.B. 636 at p. 638, Green v. Berliner [1936] 2 K.B. 477 at p. 493 and Huddersfield Police Authority v. Watson [1947] K.B. 842 at p. 848 indicate that individual judges are not bound by each other’s decisions. Let me hasten to add, though, that judicial courtesy requires that we do not lightly dissent from the considered opinions of our colleagues.

But the provisions of the 1969 Constitution which I have quoted make it clear that the High Court of Justice is not bound by its own previous decisions and for good reasons. The High Court of Justice is duly constituted for the despatch of its business by justices who are constantly shifting from one region to another, from one division to another. It lacks in its personnel that degree of stability and permanence which characterises the Court of Appeal.

In the case of the High Court of Justice, each justice thereof proceeds by his own parity of reason—vel per processum ad similia; his own use of examples—vel per usum exemplorum, licet in legem non cealuerint; and perhaps by his own appreciation of the rules of natural reason and discretion—vel per jurisdictiones quae etatuunt ex arbitrio boni viri et secundum discretionem sanam. Even though the justices of the Court of Appeal may proceed on the same basis, all of them—in practice perhaps only three of them—partake in arriving at the decision of the Court of Appeal.

It seems to me, therefore, that the issue of jurisdiction cannot help the caveator. What can help is whether the High Court of Justice having dealt with a cause or matter to a finality even on an interlocutory issue, the High Court of Justice can deal with it again. That, is to raise the legal issue of res judicata.

It is in recognition of this fact, it seems to me, that counsel for the applicant raised the issue of res judicata amounting to estoppel; and side-tracked, as it were, the question of jurisdiction. The subject-matter before me is the issue of the grant of letters of administration. Having dealt with the issue of jurisdiction I now turn to the question of the subject-matter, that is to say, whether in the circumstance of this instant case the caveat can be “cleared off” or whether the caveator should subduct “his caveat.”

Under our system of co-equal, co-ordinate, collateral and co-existing jurisdiction of the divisions of the High Court of Justice and of the justices thereof, the courts in the country have long recognised the unsavoury dangers of the repetition of litigation involving the same parties, the same subject-matter, the same issues. Thus, the principle of res judicata, that a final judgment between the same parties or their privies touching upon the same question by a court of competent jurisdiction is conclusive between the parties and their privies.

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The operation of res judicata, in such a case as the present one depends, first, upon the determination of the question whether there is in fact a judicial decision. It is not challenged that the court which first dealt with the two applications was a court of competent jurisdiction. In other words there having been a judex, has there been both a judex and a judicum, that is to say, has there been an adjudication of a question of law or of a fact; whether there has been a declaration, a command, a prohibition which is the judgment of the court.

In his ruling Edusei J. contended that:

“The fact that the deceased was a Greek national, though he was married to a Ghanaian woman under customary law, should not mean that his property would automatically be distributed in accordance with the law of Ghana.”

He continued:

“In so far as the devolution of property of a person who is not a Ghanaian and who dies the law as regards the devolution of his property is his personal law. Section 49 (1) rule 2 of the Courts Act, 1971 (Act 372), states as follows: ‘In the absence of any intention to the contrary the law applicable to any issue arising out of the devolution of a person’s property shall be the personal law of that person’.”

It is my view that there is a distinction between the devolution of property, an issue arising out of the devolution of property and the administration of that property so as to effect the appropriate devolution. Letters of administration form the authority which the courts in this country grant to the proper person. This authority clothes the grantee, that is to say, the administrator with the powers and duties of an executor to a will. It is not unusual to grant letters of administration to the next-of-kin of the deceased such as a widow, the children or, as we often have in these courts, to the abusuapanyin of the person appointed as successor to the deceased.

In all such cases the administrator becomes, like the executor, a trustee of the property, charged, among other things, with its distribution among the persons who are entitled. I do not think that if the applicant in this case had been named as an executor of the will of the husband, a Greek husband, it would be seriously challenged that because she was married to the deceased under the customary law and the deceased was a Greek national she could not be granted probate of the will. If she could be an executor, why cannot she be an administrator?

Devolution, as I understand it, is the transmission of an interest in property from one person to another by the operation of law. The rules specified in subsection (1) of section 49 of the Courts Act, 1971 (Act 372), are subject to the preceding words of that subsection. The rules cannot be interpreted in isolation or outside their proper context. And this is what section 49 (1) states:

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“Subject to the provisions of this Act and any other enactment, the Court when determining the law applicable to an issue arising out of any transaction or situation, shall be guided by the following rules in which references to the personal law of a person are references to the system of customary law to which he is subject or to the common law where he is not subject to any system of customary law.”

(The emphasis is mine.)

Under section 1 of the Administration of Estates Act, 1962 (Act 63), where a person dies intestate in Ghana, his property devolves in the first instance on the Chief Justice. So that on the death intestate of Andreas Kariyavoulas his property has in law devolved on the Chief Justice.

At this stage, therefore, rule 2 of subsection (1) of section 49 cannot operate so as to defeat the provisions of section 1 of the Administration of Estates Act, 1962. That rule 2 is “subject to the provisions of … any other enactment,” that is to say, subject to the provisions of section 1 of the Administration of Estates Act, 1962. And it cannot operate so as to oust the operation of the provision the other enactment to which it is subject.

But a more important question is this issue of personal law. For the purposes of rule 2 personal law is the customary law or the common law. The late Andreas Kariyavoulas died in 1970. At that time the common law of Ghana comprised: “the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Justice.”

The expression “common law” thus has, at least at the time of the death of the intestate, a wider meaning than hithertofore. It certainly did not mean the common law of England as distinct from the customary law of any place or area in Ghana. It certainly did include the English common law and the doctrines of equity and our own customary law.

Be that as it may, the property of the late Andreas Kariyavoulas is now vested in the Chief Justice who indeed has no interest as such in the property except what the law confers on the office not the person of the Chief Justice. And that, to me, is the basis of the court’s power to grant letters of administration as in this case: to divest the Chief Justice of that rather onerous duty of looking after property the existence of which he knows nothing about.

That property includes land and a building thereon. Land is an immovable. And under the rules of private international law, immovable property is exclusively subject to the laws of the government within whose territory it is situate. As Lord Langdale M.R. put it in Nelson

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(Earl) v. Bridport (1846) 8 Beav. 547 at p. 570, “The incidents to real estate, the right of alienating or limiting it, and the course of succession to it, depend entirely on the law of the country where the estate is situate.”

That brings me back to the fundamental issues as to who is the proper person to ask for letters of administration. The caveator states that as the Greek Consul of Ghana he is the custodian of the Register of Greek nationals whose names are in the Register. As such he is “the proper person entitled to the grant of letters of administration in the absence of any of the relatives of the said Andreas Kariyavoulas in Ghana.”

Is a widow not a relative of the deceased? And are the children of a deceased person not his relatives? And could not a mother act as a next friend to protect the interests of his children, the children who are the relatives of the deceased ? The Register, according to the caveator, recognises the children of the applicant as Greek nationals but in order to evade the effect of this admission it is deposed that since the applicant, “…described herself as having been married to the late Andreas Kariyavoulas it was relevant to state that her marriage was illegal, unrecognised and not binding on the deceased.”

With this I beg to differ. The courts in Greece may refuse to acknowledge the validity of such a marriage. But I do not see how the High Court of Justice in Ghana can, in all conscience, bow to such a preposterous suggestion as contained in the affidavit that any foreigner can come to Ghana, marry a Ghanaian lady, have issue with her, amass a fortune with the help, comfort and consortium of this poor Ghanaian lady, take the children out of the country and leave the Ghanaian, even when he dies with property in Ghana, helpless and hapless, poor and pesewaless.

Do the rules of private international law allow such a monstrous injustice? If they do not, the better. But if they do the time is now for the judiciary in Ghana to have another look at such a situation in order to protect the citizen of Ghana who may be drawn into such a trap and also may be trapped by the injustice of it all. Yet, I think, there is comfort for such a citizen of Ghana.

The English courts under the applicable rules of private international law can give a decision based upon public policy, which can be described as enuring to the benefit of an Englishman to the disadvantage of a foreigner. It seems to me that the High Court of Justice in Ghana can also give a similar decision. And an English court can disregard a foreign judgment if it considers that it offends the principles of natural justice. It seems to me that the High Court of Justice in Ghana should not be precluded from coming to a conclusion based upon natural justice.

The caveator does not deny that there may have been a marriage. He does not even challenge the capacity of the late Andreas Kariyavoulas and the applicant to enter into a marriage. But he avers that;

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“the alleged marriage … was according to native custom in Ghana and consequently it is illegal, unrecognised and not binding and contrary to the lex domicilii of the late Kariyavoulas who was not a Ghanaian.”

But the courts in Ghana do recognise the legal validity of a customary law marriage. Cases like Dravie v. Nassar, W.A.C.A., 16 March 1953, unreported and Adjei and Dua v. Ripley (1956) 1 W.A.L.R. 62, would tend to support the proposition that sex knows no nationality and that when a man transcends the barriers of race and nationality through the avenue of sex, common sense demands that the determination of his rights and liabilities should be by the same rules for man as they are for the women. And what was the domicile of the deceased at the time that he married under the customary law?

If that proposition be right, I submit, that the consequences of that union whether they relate to status, to property, or to rights should be determined by the same rules. It is preposterous, in my view, to tolerate a situation in this country where one law operates for the benefit of one man and a different law for the other, merely on a question of nationality.

Even so the applicant in this case did not apply as the widow of the Greek national. She applied for the letters of administration as the next friend of her two children who are recognised as Greek nationals by the caveator. The marriage which produced the two children is not recognised by the law of the country of the caveator. But the caveator recognises as Greek nationals the issues of the marriage he does not recognise.

The tree is useless, but its fruits are welcome. The Greek Consul-General accepts the children as Greek nationals but rejects the marriage out of which they sprang as illegal not binding on the man who, in his lifetime, recognised the woman as his wife and had issues with her.

The importance of all this is that there are justiciable issues:

(a) as to the content of the proper law, that is, of the personal law of the deceased Andreas Kariyavoulas;

(b) whether under that personal law a child has an interest in his father’s property when the father dies intestate;

(c) whether under that personal law a mother—for the status of the applicant as a mother is not challenged by the caveator, what is challenged is her status as a wife—cannot act as a next friend of her own children;

(d) whether indeed, what the caveator avers to be the personal law of the deceased is the personal law;

(e) whether the applicant as a mother has no status at all under that personal law;

(f) whether the Greek Consul-General is the proper person as against the applicant be granted letters of administration;

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(g) whether a mother cannot be under this personal law, a next-of-kin to whom letters of administration could be granted;

(h) whether the late Andreas Kariyavoulas was domiciled in Ghana, at the time of his marriage to Adjuah Donkor.

These are not all the issues. There may be more. What then happened in the two previous applications? Each was an ex parte application. An ex parte application means an application which is made by one party to a proceedings in the absence of the other. Accepting then for a moment that the Greek Consul-General is a proper person to be granted letters of administration the nature of the previous applications was such that he was not a party to those proceedings.

In the first application Adjuah Donkor applied as the widow of the late Andreas Kariyavoulas. In the second application the real applicants were the children, Adjuah Donkor acting only as a next friend. There was not the same identity as to the applicants.

Was there, then an adjudication in law in the two previous applications which could give rise to a judicial decision upon which res judicata can rest? In my view there was none. To adjudicate implies the determination of certain issues between contending parties; between a debtor and a creditor, in say bankruptcy proceedings—in which proceedings the term “adjudication” was principally used; between a landlord and a tenant as to the terms of a lease; between a buyer and a seller.

The grant of letters of administration upon the mere application therefore is more in the nature of an administrative act rather than the adjudication of the right of interests of parties. The grant clothes the grantee with duties and powers to distribute the property concerned to those who are entitled.

The grant is often made on the mere application of an applicant. It is where a caveat is lodged that there ensues an adjudication, a determination as to who is entitled to the grant.

And any judgment consequent upon the caveat amounts, in my view, to a judicial decision which can be called in aid as a res judicata. In my view, the ruling of Edusei J. was a judicial “decision” only in the sense that it is a judicial act. But as a judicial declaration consequent upon the adjudication, the determination of a question of law or of a question of fact arising out of a contest between parties to an action, it is not a judicial decision upon which to rest the plea of res judicata.

The issue of locus standi has been raised. The caveator is the Greek Consul-General. He is not the Greek Ambassador accredited to Ghana. As such he has no representative character. That is a prerogative attached solely to the status of the heads of diplomatic missions. He does not represent Greece as an Ambassador would. He belongs, I believe, to the consular corps. He is not a member of the diplomatic corps. He is a commercial representative.

He is not qualified to engage in the political relations that exist between Ghana and Greece. Indeed, he is charged with the exercise of specific functions in relation to Greek nationals resident or in transit through his consular district. And the exercise of his authority as a

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Consul-General is dependent upon the limits of his authority which the Government of Ghana permits. His authority is thus limited by what his own government specifically charges him to do in Ghana and what the Government of Ghana recognises.

That in itself needs proof, that is to say, the extent of his authority. Though I do admit that under the general character of consular functions it is within the competence of a Consul-General to safeguard the interests of his nationals in cases of succession on death, and to protect minors who are its nationals. Whether in the present case the caveator is a legal person for the purposes of rule 17 of Order 60 of L.N. 140A is a matter which has to be determined as an issue.

The caveator is before this court consequent upon the order for the grant of letters of administration to the applicant in the third application. If that order is void and of no legal effect, upon what does he come as a caveator seeking to be declared the proper person to whom the letters of administration should be granted? If the court has no jurisdiction to deal with the matter can the court grant his request to be the person to whom letters of administration should be granted? He cannot be heard to approbate and reprobate in the same breath.

In all the circumstances of this case, I disagree with counsel for the caveator that I have no jurisdiction to deal with the present application since the subject-matter of the present application is the same as the subject-matter of the two previous applications. True it is that there had been two previous applications which have been refused. In the first application the subject-matter was the building valued at ¢3,000.00, a stone quarry valued at ¢5,000.00 and two plots of undeveloped land valued at ¢800.00, a total of ¢8,800.00. In the second application personal effects valued at ¢150.00 were added to the property specified in the first application, making a total of ¢8,950.00.

But the subject-matter of the third application comprises one building valued at, ¢3,000.00, old furniture valued at ¢100.00, one refrigerator valued at ¢60.00 and cash of ¢1,100 a total of ¢4,260.

The application now before me is not an application per se for an order for the grant of letters of administration. It is not an application under rule 1 of Order 60 of L.N. 140A. It is an application for the removal of the caveat, an application under rule 20 of Order 60 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), an application which invokes the provisions of rule 21 of Order 60.

I am therefore obliged to overrule the objections raised by counsel for the caveator.

DECISION

Objections overruled.

S. E. K.