Division: IN THE COURT OF APPEAL
Date: 2ND FEBRUARY, 1959.
Before: VAN LARE AG.C.J., GRANVILEE SHARP J.A. AND OLLENNU J.
Owusu Afriyie for appellant (1st caveator) was not called upon.
The Court asked Prempeh whether he could support the Order appealed from, in view of Order 60, Rule 21(2), which requires the Judge to order an applicant to issue a writ of summons.
COUNSEL
Henry Prempeh for both respondents (applicant and 2nd caveator) drew the attention of the Court to Okata v. Ayimadu (1926-29 Full Court 156). Owusu Afriyie not called upon to reply.
JUDGMENT OF VAN LARE AG. C.J.
In this administration matter, it appears that upon a motion coming on for hearing before the Divisional Court the parties failed to come to an agreement among themselves as to the person or
[p.50] of [1959] GLR 49
persons to whom a grant of Letters of Administration should be made.
The Court was therefore bound under the provision of Order 60 Rule 21(2) to order the applicant to issue a writ of summons against the caveators within a specified period. Instead of proceeding as required by the Rules the learned Judge ordered Letters of Administration to issue jointly to the applicant and the second caveator.
Mr. Henry Prempeh, for the respondents, has referred us to the case of Okata vs. Ayimadu (1926-29 F.C. 156) which appears to support the learned Judge’s procedure in this matter. But we must point out that that case was decided upon some rules specially drawn up by Brandford-Griffiths C. J., as regards practice to be adopted in such matters at that time. Our own rules are now different from those special rules then applicable. The authority cited is therefore not in point.
We must therefore allow the appeal. The order appealed from is set aside, including the order as to costs, any costs paid to be refunded. The matter is remitted to the Court below to be dealt with de novo according to Order 60 r.21(2)
The appellant will have his costs in this Court, fixed at £23 18s. 6d. Costs of the abortive proceedings in the Court below to abide the result of the re-hearing.
DECISION
Court below to carry out.
