PLANGE vs. PLANGE [1977]DLCA1388

Date	1977-07-21
Suit No.
Citation No.	[1977]DLCA1388

SOWAH JA

ANIN JA

FRANCOIS J.A.

J. K. AGYEMANG FOR THE APPELLANT.

LOKKO FOR THE RESPONDENTS.

[1977]DLCA1388
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													<main id="main" class="content" style="min-height: 60rem" >PLANGE<o:p></o:p>&nbsp;vs. <o:p></o:p>PLANGE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]1 GLR 312<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:
21 JULY 1976<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">

J. K. AGYEMANG FOR THE APPELLANT.<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">

SOWAH, ANIN AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT BY ANIN J. A.<o:p></o:p>Bart Kojo
Plange died intestate on 16 May 1964 at Accra, leaving behind a widow (the
plaintiff-appellant herein) whom he married firstly under customary law in 1949
and subsequently under the Marriage Ordinance, Cap. 127 (1951 Rev.), on 4
December 1954. Upon his death, the plaintiff applied to the court below for
letters of administration to administer his estate. The defendant, a brother of
the whole blood to the deceased, entered a caveat to the plaintiff’s
application and filed his affidavit of interest. As the parties could not agree
on the proper person to whom letters of administration should be granted, the
plaintiff, pursuant to the court’s order made under Order 60, r. 21 (2) of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A), instituted this action.
The co-defendant (a full sister of the deceased) was later joined upon her own
application.<o:p></o:p><o:p>&nbsp;</o:p>In her
statement of claim, the plaintiff disclosed that prior to their wedding in 1954
she and her husband adopted a girl called Alice and the deceased treated her in
all official documents as his daughter. She further pleaded that “by virtue of
the said adoption and other declaration of the deceased, the defendant together
with other members of the family are estopped from denying that the said Alice
was the adopted and lawful daughter of the deceased.” The plaintiff’s case was
simply that since there was a valid adoption under the customary law of Alice,
she and Alice have the major interest in her late husband’s estate; and she is
the proper person to be granted letters of administration to administer the
estate.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant denied the allegation of adoption and maintained that Alice is the
niece of the plaintiff and remained in her care and control; that she was
neither adopted by Bart Kojo Plange (deceased) nor treated by him as his
daughter in official documents.<o:p></o:p><o:p>&nbsp;</o:p>There was
also a disagreement between the parties in their pleadings about the various
properties which Bart Kojo Plange died possessed of; but the question what
properties belonged to the deceased and the plaintiff separately or jointly was
expressly excluded by the trial judge from trial on the ground that it raised
title and possession of land, which had not been claimed.<o:p></o:p><o:p>&nbsp;</o:p>The only
issues for trial were therefore (a) whether or not Alice was adopted by the
deceased and the plaintiff as their daughter; and (b) who was the proper person
entitled to the grant of letters of administration? Consequently, whether a
portion of the estate of the deceased was ancestral family property or not, was
not an issue before either the trial court or this court.<o:p></o:p><o:p>&nbsp;</o:p>In
evidence, the plaintiff disclosed that as her marriage with the late Bart Kojo
Plange was not blessed with any issue, she and her husband decided to adopt her
infant niece, a girl of four, called Mary Anthonell Robinson. They duly
obtained the girl’s natural father’s consent to the proposed adoption and
collected the girl from her mother at Keta. The ceremony of adoption was
performed in Accra. Those present included the girl’s natural father, a Mr.
Robinson, Mrs. Akrobetu (the plaintiff’s aunt), her late husband and herself.
After the pouring of libation, the child was renamed Alice Aku Plange; and her
natural father handed her to the plaintiff’s husband, who in turn handed her to
the plaintiff. After being adopted, Alice stayed with the couple until the
husband sent her to the Ola Convent at Asikuma. He was solely responsible for
paying her school fees throughout her stay at the convent. The plaintiff
further stated that the defendants knew all along that Alice had been adopted
by her and her husband; but they raised no protest. They were therefore now
estopped by their conduct from challenging Alice’s adoption. To illustrate her
point, she gave a graphic description of an incident in 1963 when the
co-defendant paid them a visit. On seeing a box bearing the inscription “Alice
Bart Plange,” the co-defe</main>