IN RE ARYEETEY (DECD); ARYEETEY vs. OKWAB [1988]DLCA759

Date	1988-08-04
Suit No.
Citation No.	[1988]DLCA759

ABBAN J.S.C

OSEI HWERE JA

LAMPTEY J.A

AIDOO FOR THE APPELLANT.

ENOCH D. KOM (WITH HIM MRS CUDJOE) FOR THE RESPONDENT.

[1988]DLCA759
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													<main id="main" class="content" style="min-height: 60rem" >IN RE ARYEETEY (DECD); ARYEETEY <o:p></o:p>vs. <o:p></o:p>OKWAB <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 444<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
4 AUGUST 1988<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">

AIDOO 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">

ABBAN J.S.C, OSEI HWERE AND LAMPTEY
JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>This
appeal is a paradox. It was brought, essentially, by the respondent-appellant
(hereinafter designated simply as the respondent) against whom an application
brought by the applicant respondent (also hereinafter described as the
applicant) to delete her name as the administratrix of the estate of the late
James Aryee Aryeetey was dismissed. The application brought at the court below
was transparently conceived in mischief because the applicant did not herself
seek specifically for an order that she was entitled in her own right to be
appointed an administratrix of the same estate.<o:p></o:p><o:p>&nbsp;</o:p>The
foundation of her application was that the respondent was not the wife of a
monogamous marriage to the late James Aryee Aryeetey and that the purported
celebration of her marriage with the deceased on 20 July 1963 at the
Metropolitan Borough of Hampstead in London was bigamous according to both
United Kingdom and Ghanaian laws and hence the said marriage was null and void
by our Marriage Ordinance, Cap. 127 (1951 Rev). The applicant made bold to pass
this harsh verdict because, as she claimed in her supporting affidavit, at the
time of the said marriage there was a pre-existing customary marriage between
her and the late James Aryee Aryeetey. She further deposed in her said
affidavit that as the respondent’s said marriage, is a nullity she cannot be a
personal administratrix of the estate of the deceased.<o:p></o:p>It was
not in controversy that the late Aryeetey married the respondent according to
custom in 1949 and also that he had five children by her. Before the said
customary marriage to the respondent he had had eight children by the applicant
and four children by another woman. According to the applicant her first child
(who died in infancy) was born in 1932 and her last child in 1948. The
respondent’s affidavit denied that her late husband was married to any other
woman during her coverture. James Aryee Aryeetey died on 24 June 1977 and on 26
May 1982 the respondent and two other persons, namely Emmanuel Aryee Hyde and
Adebu Osah Mills were grant letters of administration in respect of his estate.<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">‘When the
applicant’s motion came before the trial court the learned judge chose to hear
evidence which he justified as follows:<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">“It is
not clear whether the court was influenced in granting the letters of
administration to the respondent and the others on the description of the
respondent as a ‘Mrs’ but since in her application the respondent has insisted
on her being the only lawful wife of the deceased, I think for the purpose of
administering the estate of the deceased it may be necessary to resolve this
issue to help whoever are the administrators of the estate to exactly know who
the beneficiaries of the estate of late James Aryeetey are. The administrators
of the estate may not necessarily be the beneficiaries. The grant of letters of
administration imposed a duty on the administrators to administer the estate
according to law, that is to share out the estate to persons who are entitled
to them by law. In the circumstances it be came necessary to adduce further
evidence viva voce.”<o:p></o:p><o:p>&nbsp;</o:p>That task
of finding out who are the beneficiaries of the estate was, in my respectful
opinion, wholly uncalled for. This is because the parties did not consign this
matter before him for his determination and as the learned judge rightly
stated, the claim of the applicant was not that she was entitled to any
specific share of the deceased’s estate; her only claim being that the
respondent’s name should be deleted from the letters of administration as she
is not a proper personal representative. Be that as it may, the learned judge
after hearing evidence said:<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">“On the
evidence before me, I find that at the time the late James Aryee Aryeetey
purported to enter into a monogamous marriage with the respondent in England,
he was already lawfully married to the applicant under customary law.<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">I also
find that at the time of the death of James Aryee Aryeetey his marriage with
the applicant was still subsisting under customary law. I am sa</main>