Nimoh v. Acheampong (GLR 49, CA) [1959] GHACA 1 (02 February 1959);

ADMINISTRATION OF ESTATES - Letters of administration - Contested application - Failure of parties to come to agreement - Duty of court to order applicant to issue writ of summons - Supreme [High] Court (Civil Procedure) Rules, 1954 (LN 140A), Order 60, 21 (2)   Nimoh v. Acheampong   [1959] GLR 49, CA

NIMOH v. ACHEAMPONG & ANOR [1959] GLR 49-50

IN THE COURT OF APPEAL

2ND FEBRUARY, 1959.

 

 

VAN LARE AG.C.J., GRANVILEE SHARP J.A. AND OLLENNU J.

Order 60, Rule 21 (2) "may" treated as mandatory—Judge bound to order writ of summons where parties do not reach agreement  no power to grant Letters of Administration.

HEADNOTES

Order 60 of the Supreme Court (Civil Procedure) Rules, 1954, regulates Probate and Administration. Rule 21(2) provides as follows:—

"Failing the parties coming to such an agreement, however, "(i.e. the agreement contemplated in sub-rule (1)," 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 a grant of probate or letters of administration, as the case may be."

Upon Nimoh's filing notice of an ex parte motion praying for letters of Administration, two persons caveated (Acheampong and Adiyea), and in due course he and they filed affidavits. When the applicant's motion came on for hearing, he and the two caveators were all represented by counsel. The Judge Sarkodee-Adoo J.), saying that on the affidavits it was clear that the first caveator had no locus standi, and that his intervention was "a bare-faced try-on," made the following order:

“Let Letters of Administration of the deceased intestate be issued jointly to the applicant  and the Second caveator.”

 The 1st caveator appealed (Civ. App. No. 50/58).

Held that (by implication treating the word "may" in the Rule as mandatory) on the failure of the parties to come to an agreement, the Judge was bound by Order 60, Rule 21(2) to order the applicant to issue a writ of summons against the caveators within a specified period; the Judge had no power to grant Letters then and there to the applicant and 2nd caveator.

CASES REFERRED TO

Okata v. Ayimadu (F.C. (1926-29) 156) distinguished.

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] 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.