IN RE HERVIE (DECD.); ADDO vs. BOYE AND ANOTHER [1989]DLHC597

Date	1989-03-22
Suit No.
Citation No.	[1989]DLHC597

ABAKAH J.

ACKAM FOR THE APPLICANT.

ADU AMPONSAH FOR THE RESPONDENTS.

[1989]DLHC597
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													<main id="main" class="content" style="min-height: 60rem" >IN RE HERVIE (DECD.); ADDO <o:p></o:p>vs. <o:p></o:p>BOYE AND ANOTHER <o:p></o:p>[HIGH COURT, KOFORIDUA]<o:p></o:p>[1989-90] 2 GLR 174<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:
22
MARCH 1989<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">

ACKAM 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 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABAKAH J.<o:p></o:p>This is
an application for an order to recall and revoke letters of administration
granted in respect of the estate of the late Mary Afi Teiko Hervie. The grant
was made to Kofi Boye and Bishop Dawutey, the respondents.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of this application as deposed to in the affidavit in support of and in
opposition thereto are, in the main, undisputed. On 10 November 1986 a caveat
was entered against an application by one Samuel Addo for letters of
administration in the High Court, Accra in respect of the estate in question.
In that application, the second respondent described himself as head of family.
Whilst the caveat lasted, Samuel Addo died on 28 January 1987. On 5 February
1987 a writ was issued in the High Court, Accra against the first respondent
because the first respondent was allegedly interfering with the estate. The
first respondent’s application to be substituted for the deceased applicant was
refused on 6 April 1987 whilst an application by the applicant to strike out
the deceased applicant’s application was filed on 21 March 1987. In
anticipation of a fresh application by the first respondent for letters of
administration, the applicant on 27 April 1987 filed a caveat under Order 60,
r.14 of the High Court (Civil Procedure) Rules 1954 (L.N. 140A) in the High
Court, Accra. Whilst the caveat remained filed in the registry of the High
Court, Accra, the respondents came, this time, to the High Court, Koforidua and
moved for and obtained a grant of letters of administration to administer the
estate.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>One point
of disagreement between the parties is that the notices ordered to be posted by
the High Court, Koforidua for the grant were not conspicuously posted. The
second is that the respondents came secretly to Koforidua and managed to obtain
the grant.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant brings this application on grounds of fraud and irregularity in
obtaining the grant of letters of administration from the High Court,
Koforidua. The fraud alleged are: (a) that the head of family kept changing.
For instance, the person who posed as head of family in the application in the
High Court, Accra for substitution is different from the one who claimed to be
head of family in the application before the High Court, Koforidua; and (b) in
the application in Accra the value of the estate was given as ¢80,000 whereas in
the application in Koforidua the value of the estate was given as ¢200,000.<o:p></o:p><o:p>&nbsp;</o:p>In the
affidavit opposing this application, the respondents contend that the head of
family in this estate matter is one Tei Hervie alias Tei Ngwua. This surprises
me because in their application to this court for letters of administration one
Asafoatse Kwame Debrah held himself out in an affidavit filed on 2 June 1987 as
the head of family. The respondents further admit that they are not members of
the Hervie family to which the deceased belonged. I am dismayed also by this
admission because the respondents in spite of this proceeded to apply for
letters of administration to administer the estate of the deceased. I make this
statement not mindful of the fact that in matrilineal societies a person not
counted as a member of the family of a deceased person may apply for letters of
administration. I have children in mind in this context. I need not however go
further into this area than I have done. The affidavit in support castigates
the respondents for coming secretly to the High Court, Koforidua aware of the
caveat in the High Court, Accra to apply for letters of administration. The
respondent’s reply is that they were not aware of any caveat and in any case
their coming to Koforidua for the letters of administration was dictated by
consideration of their proximity to Koforidua and the convenience in applying
for the letters of administration in Koforidua.<o:p></o:p><o:p>&nbsp;</o:p>I think
the conduct of the respondents</main>