OWUSU vs. KISIWA [1972]DLHC2404

Date	1972-05-25
Suit No.
Citation No.	[1972]DLHC2404

KORANTENG -ADDOW J.

T. A. TOTOE FOR THE PLAINTIFF.

OSEI KWAKU FOR THE DEFENDANT.

[1972]DLHC2404
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >OWUSU <o:p></o:p>vs. <o:p></o:p>KISIWA <o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972]
2 GLR 99<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
25 MAY 1972.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

T. A. TOTOE FOR THE PLAINTIFF.<o:p></o:p>

OSEI KWAKU FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KORANTENG -ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORANTENG-ADDOW J.<o:p></o:p>The wife
of the deceased in this matter, married under the customary law, applied to
this court for letters of administration to enable her to administer the estate
of her deceased husband and particularly to enable her to obtain the gratuity
or deduction made under the social security fund. According to her, her late
husband died leaving nothing in the form of property or cash because he had
spent all his money mainly on drinking. Because of his inebriate habits,
according to the applicant, the deceased had been given up for lost by the
members of his family and none of them came anywhere near him. The deceased had
six children with the applicant and most of them are still at school. It was in
fact to enable her to pay their fees and to maintain those children that she
sought the permission to administer the estate and to be able to claim the
gratuity.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant brought it to the notice of the court that her husband died on 24
August 1971 and that before he was buried the plaintiff in this case had gone
to the employers of her late husband and collected the salary of the deceased
for the month. When he did that, according to the defendant, the plaintiff
never informed her nor did he give her and the children any part of the money.
He did not even stop to consider whether or not the rent for the rooms they
occupied had been paid, let alone consider how she and her children would live.
The defendant deposed in her affidavit in support of her application, inter
alia, that the plaintiff is unemployed. The plaintiff disputes that fact and
states in his affidavit that he is a cocoa farmer and that he reaps not less
than 200 loads of cocoa per annum. I did not go into that matter as no evidence
has been taken. But I doubt that a person of the plaintiff’s standing earning
about £G800 or ¢1,600.00 per annum from his farm cannot afford, as will be seen
presently, to bury his dead relation to whom he has succeeded without recourse
to the deceased’s salary for the month in which he died.<o:p></o:p><o:p>&nbsp;</o:p>To begin
with, the plaintiff took out an originating summons. When the matter was being
argued, he issued the present writ. I granted the application of the defendant
and ordered letters of administration to issue in her favour. It was as a
result of that order granting the defendant’s application that the plaintiff
started these present proceedings calling upon the defendant to produce the
letters of administration issued to her for them to be cancelled. The main
ground for the summons in this suit is that, as the defendant is not a member
of the deceased’s family and she has not been appointed customary successor, it
was wrong for the court to grant her application for letters of administration.
I pointed out to learned counsel for the plaintiff during the arguments of the
originating summons that the application was misconceived and the writ
disclosed no cause of action and that I was going to dismiss the plaintiff’s
summons at that stage, but I adjourned the matter to enable an order I made
then calling upon the plaintiff to pay into court the amount he collected from
the employers of the deceased (the August salary) to be effected. It may be
mentioned in passing that in the course of arguing this matter when I put this
matter as to why he collected the August salary of the deceased to the
plaintiff his answer was that he had in fact collected the money because he was
the customary successor and that he collected the money to enable the family to
provide the deceased with a shroud and other wearing apparel for the burial of
the deceased. He said when the deceased died he left not even one singlet or
vest which could be put on his body.<o:p></o:p><o:p>&nbsp;</o:p>To
prevent my dismissing the claim as I said I would do, Mr. Totoe, the new
solicitor for the plaintiff came to argue the matter further and to submit that
the discretion in the matter of ordering the granting of letters of
administration was limited. According to the submission, the persons to whom a
grant should be made are limited to the members of the family of a deceased. No
outsider, according to counsel, is entitled to a grant. The grant to the
defendant was, therefore, unlawful. In support of his submission learned
counsel referred to the cases of Anane v. Brafo (1954) 14 W.A.C.A. 8 at p. 9
and Asamoah v. Ofori alias Renner [1961] G.L.R. 269. He stressed the words of
Ollennu J. (as he then was) in the Asamoah case at p. 271, namely, that</main>