IN RE QUINTIN-COFIE (DECD.); QUINTIN-COFIE vs. QUINTIN-COFIEAND ANOTHER [1980]DLHC1073

Date	1980-02-19
Suit No.
Citation No.	[1980]DLHC1073

CECILIA KORANTENG-ADDOW J.

AHIABOR FOR THE APPLICANT.

GBEHO FOR THE RESPONDENTS.

[1980]DLHC1073
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													<main id="main" class="content" style="min-height: 60rem" >IN RE QUINTIN-COFIE (DECD.); QUINTIN-COFIE <o:p></o:p>vs. <o:p></o:p>QUINTIN-COFIEAND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1978] GLR 918<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:
19 FEBRUARY 1980<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">

AHIABOR FOR THE APPLICANT.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG-ADDOW J.<o:p></o:p>On 15
October 1979, this court granted an application by the applicants and ordered
joint letters of administration to issue. The applicants are all children of
the deceased and the persons appointed by the family to succeed to the estate
of their deceased father. The order for the grant was made subject to notices.
While the notices were being posted, the third applicant filed a motion seeking
an “order to strike out his name as the third applicant who sought to
administer the estate . . .” He made this move because he said he had
discovered that in the inventory exhibited with the application for the letters
of administration his own house had been listed as forming part of his late
father’s estate. This is house No. 275, West Korle Gonno Estate, Accra. He has
applied to be relieved so that he can take steps against the estate to protect
his interest in the house.<o:p></o:p><o:p>&nbsp;</o:p>The
motion has been resisted by the other successors on grounds firstly, that the
procedure adopted to get his name struck out is wrong, and, secondly, that the
motion is misconceived and brought male fide. Counsel for the two remaining
successors argued that the applicant should have applied for revocation of the
whole grant and that he cannot have his name merely struck out. Counsel also
assailed the merits of the application. He contended that the applicant has bad
faith because he could not possibly have acquired <o:p></o:p><o:p>&nbsp;</o:p>Order 60,
r. 37 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), provides
that where an administration is applied for by one or some of next of kin only,
the court shall require proof that notice of such application be given to the
other next of kin. Consequent upon this rule, when an application for letters
of administration is brought, since it is made ex parte, the court grants the
application subject to notices being given to the other next of kin. In other
words, on receipt of such an application, when the court is satisfied that all
inquiries have been answered, it shall require that notice is given to the
other next of kin that the applicant has applied for letters of administration,
and that if no notice to prohibit the grant is lodged in the court within 21
days from date of posting, letters of administration will be granted to the
applicant. If after the expiration of 21 days, no caveat has been entered, the
judge sitting in chambers shall authorise the registrar to issue the letters of
administration. If on the other hand, a warning to prohibit grant (caveat) is
entered, then no further steps may be taken with respect to the application. In
that case the procedure laid down in Order 60, rr. 16-21 may be set in motion.
I have retraced these simple procedures to emphasise that at the time when the
motion for letters of administration is granted subject to notices, no letters
of administration have been issued. The letters of administration is not issued
until the condition for posting has been fulfilled and there has been no caveat
when the judge will direct the registrar to issue the letters of
administration. Until the order for the issue has been made and complied with,
there can be no revocation of the letters of administration, because there is
no grant to revoke. The order to grant may be set aside.<o:p></o:p><o:p>&nbsp;</o:p>I
appreciate the peculiar position of the applicant in this case. He had himself
applied for joint administration with his brother and sister who are
respondents in this application. At mid-stream he decided that his interest
would conflict with the administration because he has interest in the estate
which was personal to him and therefore incompatible with the due
administration of the estate. His position therefore is not the same as the
third party who seeks to prohibit the issue of the grant. He merely seeks to
withdraw from the original application; he wants his name to be struck out off
the case. His counsel relied on the inherent jurisdiction of the court to grant
the application. Under Order 16, r. 11, the court has power to strike out any
person who is not a proper party before the court. And section 74 of the
Administration of Estates Act, 1961 (Act 63), gives the court the discretion to
select a person among applicants of equal standing. In doing this, the court
shouldexclude applicants who have interest which is incompatible with the due
administration of the estate. As it now appears, the applicant has a personal
claim against the estate, his interest therefore conflicts with the interest of
the other beneficiaries, and he cannot administer the estate jointly with them.
It is my view that such a person cannot be a proper party before the court in
an application for administration of this estate. Since the letters of administration
have not been issued, I regard the application as still pending and the
appli</main>