IN RE ENNIN ALIAS BODOM (DECD.); NTI vs. SERWAAH [1979]DLHC1071

Date	1979-12-18
Suit No.
Citation No.	[1979]DLHC1071

ROGER KORSAH J.

HAYFRON-BENJAMIN FOR THE APPLICANT.

ASIEDU-BASUA FOR THE CAVEATRIX.

[1979]DLHC1071
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													<main id="main" class="content" style="min-height: 60rem" >IN RE ENNIN ALIAS BODOM (DECD.); NTI <o:p></o:p>vs. <o:p></o:p>SERWAAH<o:p></o:p>[HIGH COURT, KUMASI] <o:p></o:p>[1978] GLR 809<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:
18 DECEMBER 1979<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">

HAYFRON-BENJAMIN FOR THE APPLICANT.<o:p></o:p>

ASIEDU-BASUA FOR THE CAVEATRIX.<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 1.0pt 0in">

ROGER KORSAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ROGER KORSAH J.<o:p></o:p>The applicant’s
father died about fifteen years ago. By his will dated 12 April 1947 he
appointed one Emmanuel Kofi Agyepong of Abuakwa Kumasi, as his sole executor,
and devised the whole of his estate to the applicant. The executor entered upon
the estate and managed it without taking out probate. With his neglect of the
farms comprising part of the estate, the said farms reverted to fallow land.
Emmanuel Kofi Agyepong, the executor, died in or around 1976, and on 19 August
1977 the applicant filed an ex parte application for the grant of letters of
administration with the will of Paul Ennin annexed. Notices pending the grant
were duly filed in compliance with the orders of this court.<o:p></o:p><o:p>&nbsp;</o:p>On 20
June 1979, before any grant could be made by the court, two persons: Opanin
Kwabena Mmire and Madam Amma Serwaah both of Abuakwa, Kumasi, jointly caveated
the grant of letters to the applicant. The caveator and caveatrix filed their
separate affidavits of interest in response to the warning issued by the
applicant.<o:p></o:p><o:p>&nbsp;</o:p>The caveator
claims that he is the head of family and the present successor to late Paul
Ennin and that the applicant should at least have joined him in the application
for the grant of letters of administration. But his claim was not pressed to
conclusion when it was pointed out that, unlike the case of a death intestate,
a grant of letters of administration with will annexed may be made to a devisee
of the whole estate without the concurrence or the joinder of the head of
family, particularly as he has no interest whatsoever in the estate.<o:p></o:p><o:p>&nbsp;</o:p>The claim
of the caveatrix was another matter. Her claim was that a building which was
devised by the late Paul Ennin and the plot of land around it were the
ancestral properties of her family and that Paul Ennin had no legal estate in
them to clothe anyone with.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant moved the court to grant letters of administration with will annexed
to him. He, the applicant, and the caveatrix failed to come to an agreement as
to the person or persons to whom a grant should be made. The High Court (Civil
Procedure) Rules, 1954 (L.N. 140A), Order 60, r. 21 (2) provides: “(2) Failing
the parties coming to such an agreement, however 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.”<o:p></o:p>(The
emphasis is mine.) This rule received interpretation in Nimoh v. Acheampong
[1959] G.L.R. 49, S.C. In that case, two caveators failed to come to agreement
with the appellant for letters of administration as to the person or persons to
whom a grant should be made. When the applicant’s motion came on, the judge,
pronouncing 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,” ordered that
joint letters of administration should issue to the applicant and the second
caveator. On appeal by the first caveator, them Supreme Court per van Lare
Ag.C.J. said at p. 50:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
Court was therefore bound under the provision of Order 60, Rule 21 (2) of L.N.
140A 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.”<o:p></o:p><s</main>