IN RE AGYEPONG (DECD.); ABOSI vs. POKU [1973] 2 GLR 456

CASES REFERRED TO

(1) Punjabi Brothers v. Namih [1962] 2 G.L.R. 46, S.C.

(2) Simpson v. Fogo (1860) 1 John. & H. 18; 29 L.J.Ch. 657; 6 Jur. (N.S.) 949; 8 W.R. 407. (3) Routledge v. Hislop (1860) 2 E. & E. 549; 29 L.J.M.C. 90; 2 L.T. 53; 24 J.P. 148; 6 Jur. (N.S.)

398; 8 W.R. 363.

(4) Dankwa v. Fuller (1958) 3 W.A.L.R. 168, C.A.

(5) Greathead v. Bromley (1798) 7 Term. Rep. 455.

(6) In re May (1885) 28 Ch.D. 516; 54 L.J.Ch. 338; 52 L.T. 78; 1 T.L.R. 220; 33 W.R. 917, C.A. (7) Reichell v. Magrath (1889) 14 App.Cas. 665; 59 L.J.Q.B. 159; 54 J.P. 196, H.L. (8) Kinch v. Walcott [1929] A.C. 482; 98 L.J.P.C. 129; 141 L.T. 102, P.C.

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

(10) In re Agyepong (Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326, C.A.

(11) In re Agyepong (Decd.); Agyepong v. Donkor, High Court, Kumasi, 4 July 1972, unreported. (12) Owusu v. Kisiwa [1972] 2 G.L.R. 99.

(13) In re Eburahim (Decd.); Ansah v. Ankrah (1958) 3 W.A.L.R. 317.

(14) Hubbuck & Sons Ltd. v. Wilkinson, Heywood and Clark Ltd. [1899] 1 Q.B. 86; 68 L.J.Q.B. 34; 79 L.T. 429; 15 T.L.R. 29; 43 S.J. 41, C.A.

(15) Mmera v. Achampong [1962] 1 G.L.R. 74.

(16) Aryee v. Blankson [1972] 2 G.L.R. 247.

(17) Collins v. Gough (1785) 7 Bro. Parl. Cas. 94; 3 ER. 62, H.L.

(18) Hadley v. Green (1832) 2 Cr. & J. 374; 2 Tyr. 390; 1 L.J.Ex. 137; 149 ER. 159. (19) Hunter v. Stewart (1861) 4 De. G.F. & J. 168; 31 L.J. Ch. 346; 5 L.T. 471; 8 Jur. (N.S.) 317; 10 W.R. 176; 45 E.R. 1148.

(20) Brandlyn v. Ord. (1738) 1 Atk. 571; 26 E.R. 359.

(21) Rigge v. Burbidge (1846) 15 M. & W. 598; 4 Dow. & L. 1; 15 L.J. Ex. 309; 153 E.R. 988. (22) Moore v. Battie (1759) Amb. 371; 27 ER. 247.

(23) Payana Reena Saminathan v. Pana Lana Palaniappa [1914] A.C. 618; 83 L.J.P.C. 131; 110 L.T.

913, P.C.

(24) In re Koenigsberg; Public Trustee v. Koenigsberg [1949] Ch. 348; [1949] 1 All E.R. 804; [1949] L.J.R. 1098, C.A.

(25) Watson v. Watson [1954] P. 48; 97 S.J. 746; sub nom. W. v. W. [1953] 2 All E.R. 1013.

[p.460] of [1973] 2 GLR 456

(26) Marginson v. Blackburn Borough Council [1939] 2 K.B. 426; [1939] 1 All E.R. 273; 108 L.J.K.B.

563; 160 L.T. 234: 55 T.L.R. 389; 83 S.J. 212, C.A.

(27) Julius v. Oxford (Bishop) (1880) 5 App.Cas. 214; 49 L.J.Q.13. 577; 42 L.T. 546; 44 J.P. 600; 28 W.R. 726, H.L.

(28) Brett v. Brett (1826) 3 Add. 210.

(29) Rein v. Lane (1867) L.R. 2 Q.B. 144; 8 B. & S. 93; 36 L.J.Q.B. 81; 15 W.R. 345; 2 Mar. L.C. 448. (30) R v. Akiwumi and Bannerman; Ex parte Dako (1957) 3 W.A.L.R. 137.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION on the grounds of lack of jurisdiction to a claim by the plaintiff, as customary successor of A for revocation of grant of letters of administration in respect of the estate of A made to the defendant, the widow, by the High Court, Kumasi, and affirmed by the Court of Appeal.

COUNSEL

Akainyah for the plaintiff-respondent.

Dr. E. V. C. de Graft-Johnson (Konduah with him) for the defendant-applicant.

JUDGMENT OF CHARLES CRABBE J.

The plaintiff issued a writ, filed on 24 January 1973, claiming as head of family and customary successor of the late J. K. Agyepong, “(a) A declaration that the self-acquired and family properties of which the late J. K. Agyepong died possessed of are now vested in the plaintiff by virtue of his appointment as successor and head of family.

(b) A declaration that the marriage of the late J. K. Agyepong with the defendant was not in accordance with the Marriage Ordinance, Cap. 127 (1951 Rev.).

(c) Perpetual injunction restraining the defendant, her servants and/or agents from interfering with the properties of which the late J. K. Agyepong died possessed.

(d) An order of the court that the defendant surrender all the properties taken from the deceased’s premises and/or for an account.”

In an affidavit in verification of the endorsement on the writ, the plaintiff stated that he is the lawfully appointed successor and head of family of the late J. K. Agyepong “having been so appointed in succession to the late J. K. Agyepong; that the defendant was the second or otherwise the junior wife of the late J. K. Agyepong but they divorced and/or ceased to cohabit with each other more than seven years before the death of J. K. Agyepong.”

As a result of the divorce or cessation of cohabitation “the defendant re-married during the lifetime of the late J. K. Agyepong; and that the defendant had obtained letters of administration claiming to be a wife [p.461] of [1973] 2 GLR 456 married in accordance with the Marriage Ordinance, Cap. 127 (1951 Rev.), to the late J. K. Agyepong at the time of his death, failing to disclose these facts.”

The plaintiff claims to be a uterine brother of the late J. K. Agyepong. He says that some time in the late 1920’s, the late Agyepong, an Ashanti by birth, married one Madam Afua Num in accordance with Ashanti customary law. There were eleven issues of this marriage, eight of whom survived the late Agyepong. That marriage under Ashanti customary law subsisted until the death of the late Agyepong at Takoradi on or about October 1971.

In 1956 the late Agyepong married the defendant, she being aware of the existing customary law marriage between the late Agyepong and Madam Afua Num. There were two living issues of the marriage with the defendant. In or about the year 1957 the late Agyepong married again one Madam Awushe Esi with whom he had five issues. The marriage between the late Agyepong and Madam Esi also subsisted until the death of the late Agyepong.

The plaintiff says that the marriage between the late Agyepong and the defendant was not a happy one and the defendant in consequence either re-married or indulged in concubinage during the lifetime of the late J. K. Agyepong. The affidavit continues as follows:

“The plaintiff says that the deceased died possessed of considerable personal property, some of which were family properties.

The plaintiff further says that on the defendant hearing of the death of the deceased, the defendant during the general grief of the plaintiff’s family, came from Kumasi to Takoradi and collected the personal estate of the deceased and same have been in her possession ever since.

The deceased was also the managing director of Broadway Cinema and Hotel Company Limited of which he had a 331/3 interest.

The plaintiff says that he was appointed by the principal members of the family of the late J. K. Agyepong, to succeed the said J. K. Agyepong and to be head of family of the deceased.

The plaintiff says that the defendant applied for and obtained letters of administration in the High Court, Kumasi, in respect of the estate of the deceased.

The plaintiff says that the application by the defendant for grant of letters of administration was irregular and fraudulent.

The plaintiff says that the marriage between the late J. K. Agyepong and the defendant, though valid under the Ashanti customary law, was nevertheless null and void under the Marriage Ordinance, Cap. 127.”

The particulars of fraud are stated as follows:

“(a) The defendant described herself in the application for letters of administration as a wife married under the Marriage Ordinance, Cap. 127.

[p.462] of [1973] 2 GLR 456

(b) The fact that the deceased had wives and many children was not disclosed by the defendant.”

The defendant entered appearance under protest, and conditionally. And then sought to move this court for an order “striking out or setting aside the writ and all other papers associated with it on account of want of jurisdiction … to entertain the writ … upon the grounds particularly set out in the accompanying affidavit.” In her affidavit the defendant deposed as follows:

“That a writ filed by the plaintiff herein seeking, inter alia, the revocation of letters of administration granted to me by the Kumasi High Court and later confirmed by the Court of Appeal, Accra, has been served on me.

That following the death of my late husband, Mr. Joseph Kofi Agyepong, to whom I was married under the Marriage Ordinance, Cap. 127 since 6 October 1956 until his death on 20 December 1971, I applied for, and was granted letters of administration by the Kumasi High Court on 8 January 1972.

That thereupon, the plaintiff herein, one Afua Donkor and Broadway Cinema and Hotel Company Limited caveated against the said grant of letters of administration to me.

That in July last year, the Kumasi High Court, finding no legal basis for the said caveats, removed the caveats and finally granted the letters of administration to me.

That following the said removal of the caveats and grant of letters of administration to me by the Kumasi High Court, the plaintiff herein and the other caveators/caveatrix, appealed to the Court of Appeal, Accra, against the said decision of the Kumasi High Court.

That on 11 December 1972, the Court of Appeal dismissed the said appeal by the plaintiff herein and the other appellants aforementioned. (A copy of the judgment of their Lordships Justices F. K. Apaloo, A. N. E. Amissah and E. N. P. Sowah in that suit is attached hereto marked exhibit A.)

That both at the said proceedings before the Kumasi High Court and the Court of Appeal, the plaintiff herein and the other appellants never contested or challenged my status as the lawful widow of my said late husband and therefore my entitlement to the grant of letters of administration although they had every opportunity to do so.

That I am advised and verily believe that if the plaintiff, who was a party to the said earlier suit, is by this writ in sum seeking the setting aside or revocation of the letters of administration granted to me by the Kumasi High Court and the Court of Appeal, then the proper court to which he should go is the Kumasi High Court or to the Court of Appeal.

That I am advised and verily believe that the Kumasi High Court or the Court of Appeal, are the only courts of competent jurisdiction to hear or entertain the suit herein based on alleged circumstances

[p.463] of [1973] 2 GLR 456 which would vitiate the said grant of letters of administration if proved.

That I am advised and verily believe that the Sekondi High Court is, by the writ herein, being called upon to sit as an appellate court to revoke letters of administration granted by the Kumasi High Court and confirmed by the Court of Appeal which it cannot do it being a court of co-ordinate jurisdiction vis-a-vis the Kumasi High Court . . .”

In a supplementary affidavit she deposed as follows:

“That during my application for letters of administration before the Kumasi High Court, the plaintiff and other members of his family filed caveats.

That later the caveats were removed and the letters of administration were granted to me.

That the plaintiff and the other caveators/caveatrix appealed to the Court of Appeal, Accra, and lost.

That the plaintiff has had the same solicitor and counsel throughout the said proceedings and in this suit herein which was the subject of comment by the Court of Appeal as evidenced by exhibit A herein.

That the plaintiff by his affidavit opposing the grant of letters of administration to me at no time challenged my marital status as the lawfully married wife of the deceased and married under the Marriage Ordinance; the plaintiff must therefore be deemed to have accepted the status so stated by me.

That the plaintiff comes from Kumasi and the deceased was buried in Kumasi which was the deceased’s permanent home or residence and all the funeral ceremonies were performed in Kumasi.

That I also reside in Kumasi and I am advised and verily believe that in spite of the concurrent jurisdiction of the courts, the courts will not allow a defendant to be sued outside the jurisdiction of their residence so as to inconvenience them and in particular where both parties come from the same jurisdiction.

That the plaintiff has deliberately brought these proceedings in the Sekondi High Court and not in Kumasi in order to inconvenience and vex me as well as to throw dust into the eyes of the Sekondi High Court which is not seised of all the facts of this case and the said earlier proceedings.

That the plaintiff is in essence seeking to re-open the case by his writ and I am advised and verily believe that the Sekondi High Court is not competent to re-open a matter which has been heard to finality in the Kumasi High Court and confirmed by the Court of Appeal, Accra.

That the plaintiff and the other caveators/caveatrix are estopped from challenging my martial status because this was the basis for my application which they had admitted in those proceedings.

[p.464] of [1973] 2 GLR 456

That again, the plaintiff is estopped from challenging the validity of my marriage under the Marriage Ordinance with my late husband, seeing that the plaintiff himself attended the marriage ceremony when the plaintiff’s father and other members of his family signed the marriage certificate.

That before the said marriage ceremony banns were published before our Church giving notice to the whole world of our intention to marry on 6 October 1956.

That the plaintiff’s action herein is frivolous, vexations and not bona fide and it must be dismissed.”

To the first, affidavit the plaintiff also swore to all affidavit in reply in the following terms:

“On or about 20 December 1971, my elder brother J. K. Agyepong died at Takoradi where he lived and worked.

Some time in January 1972, i.e, less than one month after my brother’s death when we were mourning and certain important customary rites had not been performed or observed, I had information that the defendant had already applied for and been granted leave to obtain letters of administration in Kumasi in respect of my brother’s alleged estate.

As is well known, the defendant’s application for letters of administration was made ex parte and so no notices were given to any member of the family.

However, I was informed that all our family properties and the properties of the Broadway Cinema and Hotel Company Limited were being claimed by the defendant.

As I could not leave Takoradi at the time I gave instructions that caveat be entered for me and for the Broadway Cinema and Hotel Company Limited.

In due course, the warnings were obeyed and affidavits of interest filed.

A copy of the affidavit of interest filed on my behalf is annexed and marked A.

In due course, the defendants solicitor moved the High Court, Kumasi, for the grant of letters of administration. Since the defendant and I failed to agree I assumed on advice that the court would order a writ to be issued by the defendant against those who had caveated.

The court, however, in the exercise of its discretion removed the caveats and granted letters of administration to the defendant. A copy of the court’s ruling is attached and marked B.

The exercise of the court’s discretion in granting letters of administration to the defendant was affirmed by the Court of Appeal; a copy of the judgment of the Court of Appeal is annexed to the defendant’s affidavit.”

To the supplementary affidavit the plaintiff deposed as follows:

[p.465] of [1973] 2 GLR 456

“The Broadway Cinema and Hotel Company Limited mentioned in paragraph (13) of my statement of claim has its registered office in Takoradi and the company has most of its properties in the Western Region, the Sekondi-Takoradi area.

The deceased had 331/3 of the shares in the said company.

The bulk of our family properties being interfered with by the defendant are in the Sekondi-Takoradi area.

They were in the possession of the deceased as head of family prior to his death.

The deceased lived, worked and died in Takoradi, although he was buried in Kumasi, his hometown.

Apart from one building which the deceased had in Kumasi and assigned to his niece during his lifetime, the deceased had no property in Kumasi prior to his death.”

In arguing his motion counsel for the defendant stated that the defendant applied for letters of administration to the High Court at Kumasi in January 1972, and the application was granted. The plaintiff-respondent and two others filed caveats. On 4 July 1972, the High Court, Kumasi, finding no legal basis removed the caveats and granted letters of administration to the defendant.

The plaintiff never questioned the inventory of the application for letters of administration on the ground that it included family property. Neither did he ever question the marital status of the defendant. But there was appeal to the Court of Appeal at the instance of the caveator which was dismissed.

The plaintiff has now brought this present suit seeking the revocation of the grant by the High Court at Kumasi, confirmed by the Court of Appeal, on ground of alleged fraud and also seeking a declaration that the marriage between the defendant and the deceased was a nullity. Counsel contended that what the plaintiff is seeking to do is to set aside the letters of administration. A judgment obtained by fraud can be set aside. But if the writ of the plaintiff has any merit at all in it, it must go before the Kumasi High Court which made the grant. Counsel referred to Punjabi Brothers v. Namih [1962] 2 G.L.R. 46, S.C.

It was contended that the defendant resides in Kumasi, the permanent abode of the late Agyepong was in Kumasi, the earlier proceeding’s were in Kumasi precisely because of this fact and any attempt to challenge these proceedings or to have the earlier case retried must be to the same court. The practice of suing the defendant where he resides is still valid and it is in fact the rule rather than the exception. The facts sought to be challenged in this court are facts which the other court was seised of or ought to have been seised of and it is the proper forum to have the case re-opened.

Counsel then raised the question of estoppel. He contended that the status of the defendant was never challenged. It was not controverted in any way and the plaintiff who was one of the caveators is clearly estopped from raising the issue now. He further contended that the estoppel can only be set aside if the plaintiffs can show that these matters were not

[p.466] of [1973] 2 GLR 456 known to them at the time. They have given particulars of fraud. The particulars of fraud are contained in the statement of claim. If it was fraud it was up to them to have raised it at that time. These matters must have been within their competence at the time.

In the supplementary affidavit of the defendant she has alleged that the plaintiff, among others, was a signatory to the marriage certificate, “therefore they cannot challenge the status of the marriage. It was because they know very well that the defendant was properly married that they never raised that issue in the original case.

It is also very significant that the plaintiff in trying this particular forum should try to avoid the High Court, Kumasi. The plaintiff in his statement of claim did not make this clear. Nothing was said about the appeal and the judgment of the Court of Appeal. What is even worse is that what the deceased had was irrelevant to the application. He had every opportunity to put in a caveat. This is not one of those cases where the sins of counsel should not be visited upon the parties.

It is the first thing which should have occurred to the plaintiff to challenge the entitlement of the defendant to the application for the grant of letters of administration. The particulars of fraud are inadequate to ground any fraud at all.”

Counsel referred to Simpson v. Fogo (1860) 29 L.J.Ch. 657; Routledge v. Hislop (1860) 29 L.J.M.C. 90. Counsel also sought to rely on Dankwa v. Fuller (1958) 3 W.A.L.R. 168, C.A.; Greathead v. Bromley (1798) 7 Term. Rep. 455; In re May (1885) 28 Ch.D. 516, C.A.; Reichell v. Magrath (1889) 14 App.Cas. 665 at p. 668, H.L.; Kinch v. Walcott [1929] A.C. 482 P.C. and Estoppel by Everest and Strode (2nd ed.), pp. 91-94.

Counsel for the plaintiff in reply stated that the application of the defendant is misconceived. The claims of the plaintiff are four in number as specified on the writ. All the reliefs which the plaintiff claims are within the jurisdiction of the High Court. The application does not fall within the exceptions of section 14 of the Courts Act, 1971 (Act 372). There are no divisions of the court. The plaintiff in taking action considers the forum which is convenient to him.

Counsel for the plaintiff said that the plaintiff comes from Takoradi, the Broadway Cinema and Hotel Co., Ltd. have their properties mostly in Takoradi. The deceased had 331/3 shares in that company and most of the family properties are in the Western Region. He then referred to Order 74 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).

According to counsel, “our rules do not provide the procedure for calling in letters of administration so we fall on the English Rules.” He referred to appendix J Part IV No. 7 of the White Book (1962 ed.) at p. 2356 and appendix A Part IV at p. 2212. The grounds for the revocation of a grant are stated in Tristram and Coote’s Probate Practice (21st ed.) at p. 587. Counsel contended that this is a citation proceeding and the

[p.467] of [1973] 2 GLR 456 substance of the action is not the same as the previous action regarding the grant of the letters of administration.

Counsel said that on 2 February 1973, the defendant entered appearance conditionally and therefore rule 24 of Order 12 of L.N. 140A will apply. This rule is in pari materia with Order 12, r. 30 of the English Rules where the principle is that when conditional appearance is entered the defendant is limited only to setting aside the writ on the grounds of irregularity and nothing more. He therefore submitted that the defendant had not shown any irregularity or that she had been irregularly served. All that she is saying is that she lives in Kumasi and it is not convenient to her to be sued in Sekondi.

Counsel contended that res judicata is a valid defence but it is not a ground for setting aside a writ on the ground of irregularity. Res judicata should be raised not as a preliminary objection but as a defence when the substantive case is called for trial or at the trial. The judgment referred to was mainly on the question of interpretation, namely, whether a judge should be bound to order pleadings or not where the parties do not agree: Nimoh v. Acheampong [1959] G.L.R. 49, C.A. says that the court is bound.

The Court of Appeal in the previous letters of administration case, i.e. In re Agyepong (Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326 said that the judge had a discretion. Counsel referred to the ruling of Koranteng-Addow J. in In re Agyepong (Decd.); Agyepong v. Donkor, High Court, Kumasi, 4 July 1972, unreported. Counsel submitted that no pleadings were ordered in that application; therefore whether or not the deceased died having any property and if so which property was not gone into by the court. Whether or not any properties in the hands of the deceased were family property was not gone into by the court.

Whether or not the defendant was lawfully married to the deceased was not gone into because no pleadings were ordered. The court merely exercised its discretion. In Owusu v. Kisiwa [1972] 2 G.L.R. 99, Koranteng-Addow J. granted letters to a woman who came to court and said she was married under custom. There was caveat by the customary successor but the judge refused on the ground that he was exercising his discretion. Counsel said that on all the arguments no case has been made on the issue of irregularity. Counsel referred to In re Eburahim (Decd.); Ansah v. Ankrah (1958) 3 W.A.L.R. 317. He also referred to Order 25, rr. 2 and 4 of L.N. 140A and said that the procedure is laid down in Hubbuck & Sons Ltd. v. Wilkinson, Heywood and Clark Ltd. [1899] 1 Q.B. 86 at p. 91, C.A. and the defendant had not come by the procedure laid down. He also referred to Mmera v. Achampong [1962] 1 G.L.R. 74. “But in this case,” he said:

“the defendant is denying some of the averments in the statement of claim if not all therefore the defendant cannot come under Order 25, rr. 2 and 4. And if the application is made under Order 25 the court should confine itself to only the matters disclosed by the pleadings. The defendant just put down ‘motion on notice’.

Aryee

[p.468] of [1973] 2 GLR 456 v. Blankson [1962] 2 G.L.R. 247. No pleadings have been filed. The only statement before the court is the statement of claim.”

On the question of res judicata counsel submitted that it is the law that no estoppel per rem judicatam arises in respect of an issue which was not directly in issue at the trial. He referred to Halsbury’s Laws of England (3rd ed.), Vol. 15, p. 207, para. 387 and p. 185 para. 358; Collins v. Gough (1785) 7 Bro. Parl. Cas 94; Hadley v. Green (1832) 2 Cr. & J. 374; Hunter v. Stewart (1861) 4 De G.F. & J. 168; Brandlyn v. Ord. (1738) 1 Atk. 571; Rigg v. Burbidge (1846) 15 M. & W. 598; Moore v. Battie (1759) Amb. 371; Payana Reena Saminathan v. Pana Lana Palaniappa [1914] A.C. 618, P.C.; In re Koenigsberg; Public Trustee v. Koenigsberg [1949] 1 All E.R. 804 at pp. 809-810, C.A; Watson v. Watson [1954] P. 48 and Marginson v. Blackburn Borough Council [1939] 1 All E.R. 273, C.A.

In view of the very substantial legal arguments raised by counsel for the plaintiff which needed a reply, counsel for the defendant was given the opportunity, upon an adjourned date, to have his say. He said that “at this stage we are not interested in the form in which the action is brought.” He had only entered conditional appearance. “We are saying that we are relying solely on the question of jurisdiction.” When asked by the court whether if the case had been set down at Kumasi he would allow the case to go on, counsel for the defendant said “Yes,” though he might raise some other legal issues. He asked that the case be struck out.

I do not agree with counsel for the plaintiff that under the English Rules of the Supreme Court when a party to an action enters appearance conditionally, he is limited to setting aside that writ on ground of irregularity only. It seems to me that the correct view is that when the defendant in this case entered appearance with protest she sought to prevent a default judgment being obtained against her while at the same time preserving the right to object to any irregularity regarding the issue or service of the writ. But this is not all. Entering an appearance in qualified terms means that the jurisdiction of the court could be attacked. It is a procedure, even under the old Order 12, r. 30 provisions of the English rules, to enter appearance “with protest” to preserve one’s right and to raise the question of jurisdiction. The defendant does not, in my view, have to rely solely on any irregularity as regards the issue or the service of the writ. She is entitled to raise the question of jurisdiction.

Order 74 of our Rules of the High Court of Justice, i.e. L.N. 10A of 1954 does permit reference to the “procedure, practice and forms in force for the time being in the High Court of Justice in England … so far as they can be conveniently applied …” These are to be in force in the High Court where no provision is made by our own Rules.

The first question which arises is whether letters of administration having been granted can be called in. These can be little doubt that the answer to this question is in the affirmative as the authorities cited by counsel for the plaintiff amply demonstrate. If anything the Interpretation Act, 1960 (C.A. 4), in section 10 to 12 allows such a power of revocation

[p.469] of [1973] 2 GLR 456 since the power to grant implies the power to revoke. And sections 67 and 80 of the Administration of Estates Act, 1962 (Act 63), clearly show that a grant of letters of administration can be recalled or revoked.

The second question which then arises is, if letters of administration can be recalled or revoked who has the power to revoke or recall. This raises the question of jurisdiction which is, indeed, as counsel for the defendant stated, the basis of the whole application now before the court.

This is tied up with the issue of res judicata, the basic principle of which is that once a cause or matter has been finally disposed of by a court of competent jurisdiction over the parties thereto or their privies and for all matters relative thereto, the same parties or their privies cannot relitigate on the same issues.

On the available facts, the defendant applied for letters of administration. There was a caveat, by one Afua Donkor, the Broadway Cinema and Hotel Company Ltd., and one Kwame Abosi, the last of which is the plaintiff in this case. The matter came before the High Court of Justice, Kumasi. The record of proceedings before that Court is as follows:

“Dr. Ohene-Djan for the applicant.

Mr. Akainyah for the caveatrix and caveators.

Dr. Ohene-Djan moves and submits that when the widow, the applicant sought leave to administer the estate of her late husband and notices were posted three persons caveated. Those included Madam Afua Donkor whose only claim is that she has an assignment of a house which should [not] have been part of the estate.

Then there is Kwame Abosi whose claim is as to a part of the estate (two houses and a plot of land all at Takoradi). He is saying that he has been appointed customary successor to the deceased. The third caveator is a limited liability company. They are claiming to be the owners of certain properties listed in their affidavit. Mr. Akainyah replies and submits that an order for letters of administration should not be granted because his clients Jay 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.

By Court: My understanding of Order 60, r. 21 (2) is that when there is a dispute as to which of two or more applicants is entitled to administer the estate of a deceased person each of them having an interest in the estate, then the court should order a writ to issue if the parties do not agree, and to try the issue and to determine who is the proper person to administer the estate. There are no such conflicting claims in this case.

I will therefore uphold the application to order that the caveats be removed and letters of administration issue to the applicant. Costs of ¢40.00 each against the three caveators in favour of the applicant.”

[p.470] of [1973] 2 GLR 456

This record clearly shows that counsel for the defendant cannot be right when he stated from the Bar that the plaintiff never questioned the inventory attached to the application for letters of administration on the ground that it included family property. However, the order of the court raises some questions of interpretation as to the meaning of sub-rule (2) of rule 21 of Order 60 of the Supreme [High] Court (Civil Procedure) Rules, 1954.

It is my view that sub-rule (2) of rule 21 cannot be interpreted without regard to the provisions of sub-rule (1) of the same rule. The first sub-rule has the operative words “if the parties can come to an agreement among themselves . . .” (The emphasis is mine). This means that sub-rule (2) does not become operative unless the provisions of sub-rule (1) are complied with.

On the record of the proceedings as reproduced above, there is nothing to show that the parties agreed “among themselves, as to the person or persons to whom a grant of … letters of administration . . . should be made.” Since the parties did not agree among themselves, it was up to the court to order the issue of a writ of summons so that the court could be in a position “to determine the issue as to who is entitled to grant of . . . letters of administration.”

This is a case in which more than the mere question of interest arose. There was the claim that some of the properties involved were family property. There was the claim that some of the properties involved were properties belonging to a limited liability company. There was the claim that one of the caveators had been appointed a customary successor. That means that an issue under paragraph (a) of subsection (2) of section I of the Administration of Estates Act, 1962 (Act 63), arises for consideration having regard to the provisions of subsection (2) of section 79 of that Act.

But the court held that there were “no conflicting claims.” In my view there were. Could letters of administration be granted to the widow of a shareholder of a limited liability company to administer the property of the company? I think not. A company is a legal person, having directors who administer the property of the company and in whom such properties are “vested” as trustees for the company. Could letters of administration be granted to a widow to administer, some, at least, of the family properties of the husband as against the customary successor in whom such properties are vested by operation of law? I think not.

Be that as it may, the case went on appeal. The issue on the appeal centred upon the interpretation of the word “may” as used in sub-rule (2) of rule 21 of Order 60. The Court of Appeal in In re Agyepong (Decd.): Donkor v. Agyepong [1973] 1 G.L.R. 326, came to the conclusion at p. 333 that “the word ‘may’ imports a discretion” and that as “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 court thinks “the judge exercised his discretion properly against the issue of a writ.” It is my respectful submission that this decision was arrived at per incuriam.

[p.471] of [1973] 2 GLR 456

It may well be that Nimoh v. Acheampong [1959] G.L.R. 49, C.A. should now be given “its quietus.” I respectfully agree with the Court of Appeal that the judge had a discretion to exercise. But it seems to me that the Court of Appeal did not distinguish between the power of the judge, that is, his discretion and the duty of the judge, that is to say whether in the circumstances of the particular case before him there was no obligation upon the judge to exercise the power to order the issue of a writ of summons.

The Court of Appeal made a passing reference to Julius v. Oxford (Bishop) (1880) 5 App.Cas. 214, H.L. and said at p. 333:

“This is not one of those cases [in which ‘may’ should be interpreted as ‘must’] and we can conceive of no good reason why we should interprete ‘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.”

Now, what about the bona fide caveator who has a good ground for opposing the grant of letters of administration to a bona fide applicant? Why should his interests be shut out, cut off, because there could be the possibility that a caveator who has no good ground could oblige a bona fide applicant to commence litigation. Courts of law exist to administer justice. And cases are to be decided on the merits of each particular case. And should a person with a good case be precluded from obtaining justice just because a person with a bad case could use the same procedure? And yet that, it seems, is what the Court of Appeal is saying. And the courts in this country have ample powers to deal with frivolous and vexatious litigation.

In Brett v. Brett (1826) 3 Add, 210 at p. 216 Sir John Nicholl said that, “The key to the opening of every law is the reason and spirit of the law; it is the ‘animus imponentis’ the intention of the law maker, expressed in the law itself, taken as a whole.”

In Rein v. Lane (1867) L.R. 2 Q.B. 144 at p. 151, Blackburn J. said, “It is, I apprehend, in accordance with the general rule of construction in every case, that you are not only to look at the words, but you are to look at the context, the collocation, and the object of such words relating to such matter, and interprete the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under the circumstances.”

It is because of such considerations that “may” has been interpreted in some cases to mean “must.” Rule 14 of Order 60 allows a person to enter a caveat. There must be some reasons why the rule allows such an action, such a procedure. Why should the rules oblige an applicant to file a warning? Why does rule 21 lay down the procedure for the hearing of the motion? There is a meaning, there is a purpose. The whole purpose

[p.472] of [1973] 2 GLR 456 is to determine to which person or persons the grant should be made. And the rule exists for the mala fides applicant as well as the bona fides applicant.

The circumstances of the case before the court at Kumasi are that a claim was made regarding family property: a claim was made regarding the property of a limited liability company. In my view the court cannot say that there were no conflicting claims and refuse to order the issue of a writ to determine to whom letters of administration should issue.

Under paragraph (a) of subsection (2) of section 1 of the Administration of Estates Act, 1962 (Act 63), if the entire estate devolves under customary law the estate should vest in the successor. There was a claim regarding family property, the distribution of which would be by customary law. A successor has been appointed or alleged to have been appointed in whom the property was vested by operation of law. What right had the widow in the circumstances of this case better than the successor to administer the family property? Where does she come in at all as far as the family property is concerned?

Then under the provisions of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.), the widow as administratrix would be entitled, as trustee, to sell the property concerned and divide the proceeds “in the manner therein provided.” Can a widow sell the family property of her deceased husband? I think not. Since there are “other children” their interests had to be protected; which raises in itself substantial legal questions. And the “willingness [of the defendant-applicant] to join in the grant with one of the other children of the deceased” as stated by the Court of Appeal in In re Agyepong (Decd.); Donkor v. Agyepong (supra) at p. 334 supports this view.

Then the question of the property belonging to a limited liability company. Can the widow administer the property of the company of which she is not a director? Would the law allow the widow as a trustee to sell the property of the company, a going concern, and divide the proceeds of sale? I would say not. There were, therefore, in the circumstances of that particular case certain issues which required adjudication and which therefore required the court to order the issue of a writ of summons for the issue to be properly determined. This the judge did not do.

And the Court of Appeal, itself, admits that the judge slipped in not appointing two individuals to whom the letters of administration should be granted as required in the circumstances of the case by the provisions of subsection (1) of section 77 of the Administration of Estates Act, 1962. It is submitted that if the judge had ordered the writ of summons to be issued then all the facts would have come to his knowledge. It is not unreasonable to suppose that in those circumstances the mandatory provisions of that subsection would have been brought to his notice. The judge precluded himself from the benefit of the mandatory provisions of this subsection being brought to his notice.

[p.473] of [1973] 2 GLR 456

This admission by the Court of Appeal is sufficient to demonstrate that in the circumstances of that particular case the proper interpretation would be that the judge should be obliged to order the writ of summons. The Court of Appeal also found it necessary to ascertain the wishes of the defendant who was the respondent before that court. But it did not consider it necessary to ascertain the wishes of the caveators who were the appellants before the court. The Court of Appeal thus completely ignored the position of the customary successor in such matters which position in view of the combined effect of the provisions of paragraph (a) of subsection (2) of section 1, and subsection (4) of section 79 of the Administration of Estates Act, 1962, and in view of the fact that there was a claim that some, at least, of the property to be administered was family property, was entitled to consideration.

The Court of Appeal did not consider that under the principles to which form and substance were given by Julius v. Oxford (Bishop) (1880) 5 App.Cas. 214, H.L. in which Lord Blackburn at p. 241 held in effect that enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right; and if the object of the power is to enable the donee to effectuate a legal right then it is the duty of the donee of the power to exercise the power when those who have the right call upon him to do so.

The whole purpose of entering a caveat is a challenge to the applicant that some other person or persons is or are entitled to what he claims by the application. Those who challenge him have a legal right to be granted the letters of administration which he is asking for. As much right as the applicant claims to have. As far as the caveators were concerned the judge failed to exercise the power when he was called upon to do so, the power which would have led to the determination of the issue as to whether the applicant or the caveators is or are the proper persons to whom the letters of administration should be made. They had a legal right. But the merits of that legal right were not gone into.

Finally the Court of Appeal said at p. 334: “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.” (The emphasis is mine.) Would there really be a harmonious administration of the estate, which, it is claimed, includes family property and property belonging to a limited liability company if the successor to the family property is left out? Could the directors of the company sit down unconcerned to see a stranger administering property belonging to the company? I doubt it. And very much so.

Under the provisions of clause (3) of article 109 of the suspended 1969 Constitution, which are still operative by virtue of the provisions of section 4 of the National Redemption Council (Establishment) Proclamation, 1972, the High Court of Justice is “bound to follow the decisions of the Court of Appeal on questions of law.” The issues before the Court of Appeal in the case before it were a misdirection in law and an error in the exercise of a discretionary power. This involved the determination of questions of law.

[p.474] of [1973] 2 GLR 456

But said the Court of Appeal at p. 330, “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 writ in as much as the parties failed to come to an agreement.” The court then went into the issue of whether it was bound by Nimoh v. Acheampong (supra). It came to the conclusion that it was not bound. It thus held broadly that it saw “no good reason why [it] should interprete ‘may’ as ‘must’.” It then considered the issue whether the judge properly exercised his discretion. The court said at p. 333, “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 claim to the three properties described in the affidavit than raising any issue with the respondent as to her right to administer the estate.”

The estate in that case, as the affidavits showed was alleged to include family property which were vested by operation of law in the customary successor and property belonging to a limited liability company. The purpose of the caveat, if anything at all, was to challenge the right of the widow to administer those properties. That is why the provisions of rule 21 of order 60 of L.N. 140A of 1954 allow the determination of “the issue as to who is entitled to a grant … of letters of administration.”

The mere fact that there was a caveat meant that the right of the applicant to administer the estate was being challenged. Otherwise what could be the raison d’etre for the existence in the provisions of rules relating to the lodging of a caveat and the procedure to be followed thereon? On the facts of the case then before the Court of Appeal there was a conflict as to who should administer what property. But the court held there was no conflict.

And so the court did not go into the very fundamental issue whether, in the circumstances of that particular case the judge was obliged to order the issue of a writ. That the judge had a discretionary power was never in question. The issue was not whether “the judge exercised his discretion properly against the issue of writ” but whether in the circumstances of that particular case it was his duty to order the issue of the writ. Once there was no question of arbitrariness, caprice, resentment, prejudice or bias the exercise of the power was proper. There was no evidence of mala fides.

Again under the provisions of clause (3) of article 110 of the 1969 Constitution, the Court of Appeal in dealing with the appeal in that case became possessed with “all the powers, authority and jurisdiction vested in the Court from which the appeal is brought.” It was consequent upon that that the court sought to exercise the power of the High Court of Justice and appointed two, instead of one, administrators.

But the Court of Appeal ascertained the wishes of the respondent—that is the defendant before this court. It did not ascertain the wishes of

[p.475] of [1973] 2 GLR 456 the caveators. This is not in consonance with the provisions of subsection (2) of section 79 of the Administration of Estates Act, 1962, which is as follows:

“In granting administration the court shall have regard to the rights of all persons interested in the estate, including the successor, if any, under customary law . . .”

All the three caveators were claiming an interest in the estate as including certain properties which ought not to have been included in the estate to be administered by the widow. But their wishes were not ascertained.

In all the circumstances of this case, as demonstrated there is no question of law decided by the Court of Appeal which binds this court. But even if I am wrong in this regard, the issue before this court centres on whether if a grant of letters of administration had been made the letters can be recalled or revoked. The Court of Appeal did not make any decision on that in the case then before it. There is thus no such decision which binds this court.

The issue before the High Court of Justice in the Kumasi case was one of the determination of the proper person to administer the estate of the late Agyepong. By the writ in this instant case the plaintiff is seeking, amongst others, a declaration as to the vesting of family property in him, he being the successor of the late Agyepong. That clearly is not the same thing as who has the right to administer the self-acquired property of the late Agyepong.

The distinction is this. In the one the issue was who was the proper person; in the other the issue is what property should be administered by whom. The one involved the determination of the proper person to administer the estate, the other will involve the determination of what property should be administered. The instant case will undoubtedly involve the determination of what property, forming part of the estate of the late Agyepong, is family property and whether the self-acquired property of the late Agyepong is vested in the plaintiff by virtue of his appointment as successor and head of family.

The capacity of the defendant to administer the estate is also to be attacked in the instant case. The basis of her legal right to have been granted letters of administration is being challenged. Since the judge in the Kumasi case did not order the issue of the writ there were no pleadings before that court which would have led to a determination of the matters now being canvassed in the present writ. The matters which fall for determination in the present action are far more substantial than the mere issue in the Kumasi case as to which of two persons a grant of letters of administration should be made.

Then serious allegations of fraud are raised. Allegations of fraud which go to the root of the action in the Kumasi case. If fraud is established in the instant case, true it is that that would clearly affect the basis of the Kumasi case and the decision thereon. The fundamental issue, then, is that if letters of administration can be revoked or recalled

[p.476] of [1973] 2 GLR 456 can res judicata be set up against the action to have the revocation or recall, however framed? It is my view that res judicata cannot be so raised.

It is clearly a matter for determination, since fraud has been charged, whether the defendant misrepresented or concealed material facts in the Kumasi case and how far she was bound to disclose those material facts; whether the misrepresentation or the concealment was intentional and whether, indeed, the plaintiff himself concealed certain facts within his knowledge in the Kumasi case. There is not, in my view, the same subject-matter as supports the plea of res judicata.

But counsel for the defendant stressed that he was relying solely on the question of jurisdiction. The provisions of article 113 of the 1969 Constitution give jurisdiction to the High Court of Justice “in civil and criminal matters including jurisdiction in “industrial and labour disputes and administrative complaints,” as well as appellate jurisdiction. Paragraph (a) of subsection (1) of section 14 of the Courts Act, 1971 (Act 372), gave the High Court of Justice “original jurisdiction in all matters.”

Paragraph (a) of rule 1 of Order 60 of our rules, i.e. L.N. 140A of 1954 states that, “Where any person dies within or without the jurisdiction of the Supreme Court having his fixed place of abode within the jurisdiction, the Divisional Court of the Judicial Division where the deceased had at the time of his death his fixed place of abode shall have jurisdiction for the purpose of granting probate of the will or administration of the estate of the deceased wheresoever situate within the jurisdiction of the court.”

And rule 2 of the same order has the expressions “particular jurisdiction” and “the Divisional Court having jurisdiction.” At the time the Rules were issued there were Divisional Courts with particular territorial jurisdiction. The Supreme Court (Civil Procedure) (Amendment) Rules, 1958, defined the High Court as “the High Court of Justice as constituted under the Courts Ordinance.” The court before which the Kumasi case was dealt with is not a court constituted under the Courts Ordinance.

It is a court established not even under the Courts Act, 1971 (Act 372). It is a court established under the 1969 Constitution. Clause (3) of the High Court of article 112 of that Constitution created divisions of the High Court of Justice that the Constitution established. But it did not give specific jurisdiction to any such division on a territorial basis. It did not create “Judicial Divisions” nor did it establish “Divisional Courts.” Indeed by clause (2) of the said article 112, the High Court of Justice is duly constituted by one, two or three justices thereof in accordance with certain provisions.

The constitution of the High Court of Justice is never on a territorial basis. There is one indivisible High Court of Justice. There are not no Judicial Divisions and Divisional Courts in Ghana, with separate or distinct territorial jurisdictions. The High Court of Justice can be duly

[p.477] of [1973] 2 GLR 456 constituted “by any one Justice thereof.” In the exercise of the jurisdiction conferred upon the High Court of Justice that one justice is the High Court of Justice. Each justice is competent to exercise any jurisdiction conferred on the High Court of Justice in any cause or matter save as prohibited by law as in a case where two or three justices duly constitute the High Court of Justice.

In view of the provisions of the 1969 Constitution relative to the constitution of the High Court of Justice above referred to, it is my view that the divisions referred to in clause (3) of article 112 thereof are subject-matter divisions and not territorial divisions of the High Court of Justice. There is a similar provision in clause (4) of article 109 of the 1969 Constitution in respect of the Court of Appeal. The recent experience of the Court of Appeal sitting in the Regions explains the point I have tried to make.

It has never been suggested that each duly constituted sitting of the Court of Appeal at each of the regional centres creates divisions of the Court of Appeal on a territorial basis. It has been made abundantly clear, if only administratively, that whatever divisions of the Court of Appeal there are, are divisions on a subject-matter basis and not on a territorial basis. The same, in my view, applies to the High Court of Justice.

Since the High Court of Justice duly constituted by one justice thereof can deal with any cause or matter failing within the jurisdictional competence of the High Court of Justice, this court, duly constituted by one justice of the High Court of Justice can deal with any such cause or matter.

Counsel for the defendant concedes that letters of administration can be recalled or revoked. It has not been challenged that the High Court of Justice has jurisdiction to recall or revoke the grant of letters of administration. This court can, therefore, deal with the matter. But on what basis?

It has not been challenged that some of the properties which formed the subject-matter of the application for the grant of letters of administration in the Kumasi case are in the Western Region. It is alleged that only one house, which has itself been assigned to one Afua Donkor is situate in Kumasi. This also has not been challenged. On that basis alone, that is, the situs of the properties involved, the question of convenience of the defendant cannot be used as an argument for the instant case being heard in Kumasi. The affidavit of interest in the Kumasi case clearly stated the family properties which are situated in the Western Region.

It is also alleged that the late Agyepong lived, worked and died in Takoradi, but was only buried in Kumasi, his hometown. This also has not been challenged. And counsel for the defendant can never be right when he asserted that “what the deceased had was irrelevant to the application.” The grant was made for the administration of “what the deceased had.” The properties to be administered therefore have a bearing on the grant of the letters. But a more important question is the issue of fraud.

[p.478] of [1973] 2 GLR 456

Counsel for the defendant concedes that “a judgment obtained by fraud can be set aside.” There is then an issue to be dealt with on the writ of the plaintiff. He further contends that the plaintiff, one of the caveators in the Kumasi case, did not question the marital status of the defendant, that he never questioned the inventory on the ground that it contained family property; and that the marriage of the late Agyepong to the defendant was never also questioned.

The record of the proceedings before the court at Kumasi, reproduced above, clearly shows that the inventory was questioned—it was submitted that letters of administration should not be granted to the applicant because there was a “claim to some properties supposed to be part of the estate— They are family properties and properties belonging to a limited liability company.”

The record of the proceedings also show that it was urged upon the court in the Kumasi case to issue an order for a writ of summons to issue. If that had been done, then the question as to whether the defendant herein should be granted letters of administration would have been gone into. It is not unreasonable to suppose that in that wise the caveators would have to produce evidence to support their contention that the defendant should not be granted the letters. That may have involved adducing evidence about the marital status of the defendant; that may have involved producing evidence to show that the marriage of the late Agyepong to the defendant was a nullity.

But the caveators were precluded from producing that evidence. Whether or not any such evidence was forthcoming is quite a different matter. From the mere fact that the caveators were prevented from adducing the required evidence, I do not think that it is open to counsel for the defendant to say before this court that the plaintiff one of the caveators, did not challenge the marital status of the defendant nor that he did not assert, then that the marriage was a nullity.

He was not given the opportunity to raise the issue of fraud. All that the warning required of a caveator is that he should show his “interest in this matter.” And the plaintiff herein as one of the caveators in the Kumasi case did show his interest as a customary successor by specifying which properties are family property.

Equally, if the particulars of fraud on the writ are not sufficient, it is for the defendant to call for further and better particulars. And whether the plaintiff was a signatory to the marriage certificate, or not, is a matter that would be gone into when the substantive writ is being dealt with at the trial. And so also would the court have to go into the question whether the defendant failed to disclose certain facts regarding her status as the wife of the late Agyepong.

It seems to me that there is a distinction between one court of coequal jurisdiction declaring an order of another court as being invalid and the question of recall or revocation of the grant of letters of administration. Such cases as Dankwa v. Fuller (1958) 3 W.A.L.R. 168, C.A. must clearly be distinguished from the matters raised on the writ in the

[p.479] of [1973] 2 GLR 456 instant case. The facts of this case are quite different from the facts in that case. In that case the Court of Appeal relied, inter alia, on R. v. Akiwumi and Bannerman; Ex parte Dako (1957) 3 W.A.L.R. 137 which had held that an order of the High Court enlarging time is “a binding order which is not even appealable.”

Here the court will be asked to revoke or recall the grant of letters of administration made, on the ground, among others, that the court which made the order had been misled, as all the facts were not before it. All the cases cited by counsel for the defendant would in my view avail him, and very much so, if in the Kumasi case pleadings had been ordered and the issues gone into. All that the judge did in the Kumasi case was to exercise his discretion. He did not order pleadings and so the substantial issues to be gone into were not dealt with.

The issue here is not so much that a valid judgment is to be declared invalid so as to invoke Punjabi Brothers v. Namih (supra) as that a different power is to be invoked, that is to say, the power to recall or revoke the grant of letters of administration. And counsel concedes that a judgment obtained by fraud can be set aside. It can, therefore, never be an argument against the setting aside of a judgment obtained by fraud to say that that judgment being of full force and effect cannot be declared invalid by a court of co-equal jurisdiction. If it was obtained by fraud then it can be set aside, by the High Court of Justice and not the Court of Appeal which merely “affirmed” the grant upon an appeal. And arguments of res judicata would also not help. The fraud alleged in the writ in the present case raises substantial issues for determination. The defendant applied for the grant in the Kumasi case on the basis that she was a widow. Marriage is a matter of status. Was she or was she not married under the Marriage Ordinance? Was that marriage valid in law or not valid in law. The fact that the late Agyepong had other children became obvious at the Court of Appeal, one of whom aged about 38 years was joined in the grant.

If this child was 38 years in 1972, she must have been born in 1934. So when the late Agyepong married the defendant in 1956 or thereabouts, was there a valid marriage subsisting under customary law which could affect the validity of this 1956 marriage? Was the plaintiff a signatory to the marriage? If yes, how far is he precluded from denying his own act as a witness? How far, if at all, can he be allowed to rely on a fraudulent act to which he was a party. Or was he?

In all the circumstances of this case, I hold that the court has jurisdiction to deal with the writ, that there are triable issues of substance and I will therefore dismiss the application. I award costs of one hundred cedis against the defendant.

DECISION

Application dismissed.

S. Y. B.-B.