IN RE CAESAR (DECD.); CAESAR AND ANOTHER vs. KWAPONG AND ANOTHER [1974]DLHC2286

Date	1974-07-25
Suit No.
Citation No.	[1974]DLHC2286

SARKODEE J.

E. K. N. OLAGA FOR THE PLAINTIFFS.

REGINALD BANNERMAN FOR THE DEFENDANTS.

[1974]DLHC2286
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">IN RE CAESAR (DECD.); CAESAR AND ANOTHER<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">KWAPONG AND ANOTHER<o:p></o:p>&nbsp;[HIGH COURT, ACCRA]<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;[1974] 2 GLR 248<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
25 JULY 1974.<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">

E. K. N.
OLAGA FOR THE PLAINTIFFS.<o:p></o:p>

REGINALD
BANNERMAN FOR THE DEFENDANTS.<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">

SARKODEE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>The
plaintiffs are seeking an order revoking the letters of administration granted
to the first defendant and the subsequent transfer of the said letters to the Administrator-General
on the ground that the grant and the transfer were not valid. In the
alternative they ask for distribution among the beneficiaries of the estate of
Emmanuel Kwaku Caesar who died intestate on 11 June 1969.<o:p></o:p><o:p>&nbsp;</o:p>After
summons for directions had been taken, additional issue (iii) was set down for
legal arguments as it was believed a decision on it would decide the whole
case. That issue read, “Whether or not the grant of letters of administration
to the first defendant was void ab initio.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs are two of the fourteen children of the deceased. The first
defendant is their sister. At a family meeting held at Big Ada on 1 September
1969, the first defendant, Mrs. Evelyn Kwapong (nee Caesar) the eldest child of
the deceased was appointed by the family and authorised to apply for and take
out letters of administration in respect of her father’s estate. Nine of the
children of the deceased including the plaintiffs, Daniel and Joseph Caesar,
were present at the said meeting. A record of the family meeting was filed with
the application for the grant of letters and marked A. On 26 July 1973
following a decision of the family the first defendant transferred the
administration of the estate to the Administrator-General who has since been
acting. Prior to the transfer, the first defendant had rendered accounts to the
family and to the Administrator-General.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Olaga, counsel for the plaintiffs, said that at the time of the application for
the grant the first defendant knew that the deceased was survived, among
others, by two wives and infant beneficiaries, and that the first defendant
failed to disclose that fact to the court. Learned counsel submitted therefore
that that conduct by the first defendant was a misrepresentation which amounted
to fraud. The result of this fraud perpetrated on the court was that the grant
was not made to at least two persons as required by section 77 (1) of the
Administration of Estates Act, 1961 (Act 63), hereafter referred to as the Act.
Counsel continued that this made the grant invalid. Further if the grant was
void the first defendant could not have transferred anything to the
Administrator-General.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Reginald Bannerman, counsel for the first defendant, pointed out that when the
grant was made in 1970, he knew that there were two wives with children and
therefore insisted there should be two applicants. His client then told him of
the family meeting and on his request a record of the meeting was produced
which he filed with the application. He said that the plaintiffs were present
at the meeting and knew of the authority given to the first defendant. Learned
counsel went on to say that it was on that basis that the application was made
and letters were granted. He concluded that a grant in circumstances such as
these is not void ab initio.<o:p></o:p><o:p>&nbsp;</o:p>