IN RE AGYEPONG (DECD.); DONKOR AND OTHERS vs. AGYEPONG [1973] 1 GLR 326

CASES REFERRED TO

(1) Nimoh v. Acheampong [1959] G.L.R. 49, C.A.

(2) In re Arthur (Decd.); Abakah v. Attah-Hagan [1972] 1 G.L.R. 435, C.A.

(3) Karimu v. Ghassoub, Court of Appeal, 27 July 1970, unreported; digested in (1970) C.C. 104.

(4) Sarpong v. Atta Yaw [1964] G.L.R. 419, S.C.

(5) In re Baker; Nichols v. Baker (1890) 44 Ch.D. 262; 59 L.J.Ch. 661; 62 L.T. 817; 38 W.R. 417; 6 T.L.R. 237, C.A.

(6) Julius v. Oxford (Bishop) (1880) 5 App. Cas. 214; 49 L.J.Q.B. 577; 42 L.T. 546; 44 J.P. 600; 28 W.R. 726, H.L.

NATURE OF PROCEEDINGS

APPEAL from a ruling of Koranteng-Addow J. delivered in the High Court, Kumasi, granting letters of administration to the respondent. The facts are sufficiently set out in the judgment.

COUNSEL

U. V. Campbell (Akainyah with him) for the appellants.

Dr. de Graft-Johnson (Dr. Ohene Djan with him) for the respondent.

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the judgment of the court. The late Joseph Kofi Agyepong died at Takoradi on 20 December 1971. Although he seems to have hailed from Kumasi, the evidence suggests that he lived at Takoradi, where he had considerable property. He contracted a marriage under the provisions of the Marriage Ordinance, Cap. 127 (1951 Rev.), on 6 October 1956 with the respondent. There are two issues of that marriage a girl and a boy both of whom are infants, their ages being fourteen and seven years respectively. The deceased was survived by his widow and these children. He died intestate.

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On 13 January 1972, the respondent as the widow and lawful relict of the deceased, applied to the High Court, Kumasi, for letters of administration to administer the estate of her husband. That application came before the court on 18 January, and the court made an order acceding to the application on condition that “the usual notices” be filed. These were filed and as a result two persons and a limited company all acting by the same solicitor filed caveats against the grant. They were Afua Donkor, Kwame Abosi and Broadway Cinema and Hotel Co., Ltd. The registrar, acting in accordance with Order 60, r. 18 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), warned each of these three persons to “file affidavits setting forth your interest in this matter.” In response to this, affidavits were sworn to by Afua Donkor the caveatrix, Emmanuel Victor Addo-Boamah and James Emmanuel Aggrey. These two gentlemen described themselves as “Law clerk” and “secretary to Beyin Chambers” respectively. It is plain from the affidavits that the caveatrix and caveators were merely concerned in laying claim to properties which the widow had included in the inventory as the property of the intestate. Thus the caveatrix Afua Donkor swore that:

“(2) The deceased J. K. Agyepong, Esq., was my uncle and was originally the lessee of plot 38 Mbrom, Kumasi.

(3) On or about 9 June 1970, the said J. K. Agyepong after obtaining the necessary consent assigned the said plot to me.

(4) The said assignment was duly registered.

(5) The inclusion of house number 38 in the list of properties of the deceased by the applicant is therefore wrongful and a slander of my title to the said property.”

The affidavit of interest filed on behalf of the limited liability company was sworn to by Victor Addo-Boamah who swore that he had been authorised by an entity he did not disclose. He states in paragraph (2) that “I am informed and verily believe that the undermentioned properties belong to the Broadway Cinema and Hotel Co., Ltd.” He then listed nine cinema buildings and concluded, “I therefore swear to this affidavit.” The affidavit of interest sworn to by the second of the law clerks, namely, James Emmanuel Aggrey reads as follows:

“(1) I am secretary to Beyin Chambers and I have authority to swear to this affidavit.

(2) I am informed and verily believe that the undermentioned properties belong to the family.”

He then describes three buildings at Takoradi and concluded as follows:

“(3) The said Kwame Abosi has been appointed as the successor to J. K. Aggrey (deceased). I therefore swear to this affidavit.”

When the respondent had sight of these affidavits, she by her counsel, moved the court to order the removal of the caveats and prayed

[p.330] of [1973] 1 GLR 326 that letters of administration be granted in her favour. This application was opposed by Mr. Akainyah who was acting for the caveatrix and the two caveators. The learned judge Koranteng-Addow J. recorded Mr. Akainyah’s objections as follows:

“Mr. Akainyah replies and submits that an order for letters of administration should not be granted because his clients lay claim to some properties supposed to be part of the estate. They are family properties and properties belonging to a limited liability company. And so no order should be made to enable the applicant to administer the estate of the deceased. He refers the court to Order 60, r. 21 (2) and submits that the court is bound to order a writ to issue in the matter.”

The learned judge was unimpressed by this contention and did not accept it as a true view of the matter. He considered that there was no issue between the applicant and the caveators as to who was entitled to administer the estate of the deceased. He thought therefore that it would be pointless to order the issue of the writ. Instead, he considered that as the applicant’s right to administer the estate was not questioned, the caveats should go. He ordered their removal and the grant of letters of administration to the applicant. It is this order that the caveators contest by this appeal

The grounds on which the appellants invite us to reverse the order were formulated in the notice of appeal as follows:

“(a) The learned trial judge misdirected himself on the law in refusing to order pleadings as required by the rules of court.

(b) The learned trial judge erred in removing the caveats from the file and granting letters of administration to the applicant when the parties were not in agreement.”

Before us, the complaint was not that the judge erred in failing to order pleadings but that he was in breach of a mandatory duty to order, the issue of a writ inasmuch as the parties failed to come to an agreement. The sheet anchor of that submission is the now familiar Order 60, r. 21 (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). That rule reads:

“Failing the parties coming to such an agreement, however, the Court may order that the applicant do issue a writ of summons against the caveator within a specified period from the date of such order, to determine the issue as to who is entitled to grant of probate or letters of administration, as the case may be.”

It is urged by Mr. Campbell for the applicants that the caveators have an interest in the estate of the deceased and were entitled by Order 60, r. 17 to lodge a caveat and unless the parties were able to agree as to whom letters of administration should be granted, the

[p.331] of [1973] 1 GLR 326 judge had no option but to order the issue of a writ. Mr. Campbell did not of course fail to notice that words used by the rule are that the “Court may order” and that imports some sort of judicial discretion. But counsel says, the matter is not res integra but that it has been concluded by the 1959 decision of the Court of Appeal in Nimoh v. Acheampong [1959] G.L.R. 49, C.A. Mr. Campbell says that that decision is binding on us and that we should follow it. Counsel himself properly, in our opinion, drew our attention to the recent case of In re Arthur (Decd.); Abakah v. Attah-Hagan [1972] 1 G.L.R. 435 at p. 443 C.A. where Archer J.A. expressed grave doubts as to the correctness of the decision in Nimoh v. Acheampong (supra) but counsel says, his view was not only obiter but it was not concurred in by any of the two other members of the court, namely, Azu Crabbe J.S.C. and Lassey J.A. He says that even as recently as July 1970, the Court of Appeal speaking through Archer J.A. held in Karimu v. Ghassoub, Court of Appeal, 27 July 1970, unreported; digested in (1970) C.C. 104, that a 1964 decision of the then Supreme Court in Sarpong v. Atta Yaw [1964] G.L.R. 419, S.C. was binding on the Court of Appeal.

We are then squarely faced with the question whether a pre-1960 decision of the then Court of Appeal binds any court after the Republican Constitution of 1960. We think not. Since 1960, there has been a completely new constitutional set-up with a fresh hierarchy of courts. Before the Republican Constitution of 1960, the highest court in the land was the Privy Council. Its decisions were binding on the then Court of Appeal whose decision in turn was binding on all other courts on points of law. With the promulgation of the 1960 Constitution, the Supreme Court, a completely new institution became the final Court of Appeal. Appeals to the Privy Council were stopped and the Court of Appeal which fathered Nimoh v. Acheampong (supra) was abolished. The Supreme Court was not made a successor of any of the previous courts. In so far as the 1960 Constitution took any cognisance of the cherished principle of stare decisis, article 42 (4) provides that:

“The Supreme Court shall in principle be bound to follow its own previous decisions on questions of law, and the High Court shall be bound to follow previous decisions of the Supreme Court on such questions, but neither court shall be otherwise bound to follow the previous decisions of any court on questions of law.”

Accordingly, if the contention which Mr. Campbell urges, had been urged on say 2 July 1960, there could have been no clearer authority for rejecting it than the sub-article quoted above. The 1960 Constitution was suspended by the Proclamation of 24 February 1966. Paragraph 95 of the Courts Decree, 1966 (N.L.C.D. 84), repealed the Courts Act, 1960 (C.A. 9), and abolished the courts established under that Act. Paragraph

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1 of N.L.C.D. 84 established only two superior courts, namely, the Court of Appeal and the High Court. The Court of Appeal was not made a successor to the Supreme Court established under the 1960 Constitution. But paragraph 2 (3) of N.L.C.D. 84 preceeded to confer on this new court the same judicial autonomy that article 42 (4) conferred on the pre-1966 Supreme Court. It enacts that:

“The Court of Appeal shall be bound in principle to follow its own previous decisions on questions of law and the High Court shall be bound to follow the previous decisions of the Court of Appeal, but neither shall be otherwise bound to follow the previous decisions of any Court on questions of law.”

The purport of this seems clear. Decisions given by the Supreme Court between 1 July 1960 and October 1966, were constitutionally denied any binding efficacy after the coming into operation of the Courts Decree, 1966 (N.L.C.D. 84), on 1 October 1966. It would follow from this that Karimu v. Ghassoub (supra) which was a 1964 decision of the then Supreme Court could not have been binding on any court after October 1966. The certainty of the law which is the main proffered virtue of the principle of stare decisis, was again only taken note of by the recently suspended 1969 Constitution. Article 125 (2) of that Constitution made the present Court of Appeal the successor to the Court of Appeal in existence before the coming into force of the Constitution and accordingly provided that:

“[T]he Court of Appeal as established by this Constitution shall be bound to follow the decisions of law binding on the Court of Appeal as it existed immediately before the coming into force of this Constitution.”

The only decisions binding on the post-October 1966 Court of Appeal were its own decisions. The result seems to be that the only decisions binding on the present Court of Appeal before the suspension of the 1969 Constitution, are those given between October 1966 and 22 August 1969 and those given since that date by the present Court of Appeal itself. Nimoh v. Acheampong (supra) is not one of those decisions and we must reject the contention that that decision is binding on us. In any event, the integrity of that decision as a sound judicial precedent was considerably punctured by the just and well merited observations of Archer J.A. in In re Arthur (Decd.) (supra).

That leaves us free to consider de novo whether the words “the Court may order . . . that the applicant do issue a writ of summons against the caveator,” etc. used in Order 60, r. 21 (2) impose an obligation on the court to order a writ or confers a discretion which the court may exercise for or against the issue of writ as it thought fit. If these rules had been enacted after the coming into force of the Interpretation Act, 1960 (C.A. 4), on 29 June 1960, the question could

[p.333] of [1973] 1 GLR 326 be answered simply by reference to section 27 of that Act which provides that: “In an enactment made after the passing of this Act, ‘shall’ shall be construed as imperative and ‘may’ as permissive and empowering.” But these rules were made in 1954 and the question is whether in their ordinary and natural meaning, they import an obligation. We do not think so, although we do not go the whole hog with Cotton L.J. who said in In re Baker; Nichols v. Baker (1890) 44 Ch.D. 262 at p. 270, C.A. that may “never can mean ‘must,’ so long as the English language retains its meaning.” In some limited cases, the courts have held that “may” should be interpreted as “must.” See Julius v. Oxford (Bishop) (1880) 5 App.Cas. 214, H.L. This is not one of those cases and we can conceive of no good reason why we should interpret “may” as “must” in these procedural rules. Such an interpretation lends itself to abuse of the judicial process because a caveator who had no good ground for opposing the grant of probate or letters of administration may nevertheless oblige a bona fide applicant to commence litigation. And the Nimoh interpretation has been productive of much pointless litigation in the past.

The fact that we have held that the Nimoh decision is not binding on us does not mean ipso facto that we should not follow it. But that decision has given rise to inconvenience and injustice which the framers of the rule cannot have intended. True, it has stood undisturbed for thirteen years but being mere procedural rules, no rights can have been founded on it nor could it be said that persons have ordered their affairs on the basis of its correctness. We therefore cannot apply the maxim communism error facit jus to keep it alive. In the Nimoh judgment itself, the court said at p. 50 it “was therefore bound under the provision of Order 60, Rule 21 (2) to order the applicant to issue a writ,” etc. without appearing to have given thought to the question whether the word “may” imports an obligation or discretion. Our considered view is that the words “may” imports a discretion and we think we must now respectfully give Nimoh v. Acheampong (supra) its quietus.

If Order 60, r. 21 (2) confers a discretion on the court to order or decline to order the issue of writ as it thought fit, the only question to which we must now address ourselves is whether in the instant case, the judge exercised his discretion properly against the issue of a writ. We think that he did.

We have already reproduced verbatim the affidavits sworn to by the three caveators. It is to be remembered that these affidavits were prepared with full professional assistance. It is clear that the caveatrix and the company caveator at least have said nothing which on a most charitable view of their case can be construed as taking issue with the respondent on her right to administer her husband’s estate. The caveator Abosi was equally more concerned in advancing his family’s

[p.334] of [1973] 1 GLR 326 claim to the three properties described in the affidavit than raising any issue with the respondent as to her right to administer the estate. It is only at the tail end of it that the information is proffered that he had been appointed successor to the deceased and this was apparently done to disclose a right to lay claim to these properties on behalf of the family. That it is the extent of the property of the deceased rather than the right to administer it that the caveators complained about, is supported by the recorded submissions of their counsel Mr. Akainyah. And nowhere in his submissions, did he claim, even faintly, that any of the caveators was entitled as against the respondent to letters of administration or that any of them expressed a wish to administer the estate.

But it is plain that under Order 60, r. 21 (2) the writ, if taken, had “to determine the issue as to who is entitled to a grant of probate or letters of administration, as the case may be.” Notwithstanding Mr. Campbell’s able submissions, we are entirely satisfied that there was no conflict in the court below as to who was entitled to administer the estate. In these circumstances, had the learned judge ordered the respondent to issue a writ, he would have foisted pointless litigation on the parties. The judge no less than ourselves owed it to the parties not to constrain them to purposeless litigation and we wholeheartedly support the judge’s order.

There is however one respect in which the learned judge slipped. The applicant disclosed in her affidavit that two of the beneficiaries of the estate were infants. That being the case, section 77 (1) of the Administration of Estates Act, 1961 (Act 63), provides that the grant should be made to at least two persons. The judge ordered that the grant be made to the respondent alone. We think the mandatory requirement of section 77 (1) was not brought to his notice and we propose to correct this slip by varying the judge’s order and directing that the grant be made to two persons. In the course of the argument we ascertained the wishes of the respondent in this connection. She has expressed a willingness to join in the grant with one of the other children of the deceased and she gave their names in order of preference as Comfort Agyepong aged 38 and Ebenezer Sarpong Agyepong aged 32.

We think this is a case in which we should accede to the wishes of the widow and thus ensure a smooth and harmonious administration of the estate. Accordingly, we propose to order that letters of administration in respect of the estates of the late Joseph Kofi Agyepong be granted jointly to Cecilia Agyepong and Comfort Agyepong.

DECISION

Appeal dismissed.

S. O.