RE ASANTE, ASANTE vs. OWUSU [1992]DLCA4891

Date	1992-04-02
Suit No.	[1992-93] 2 G B R 452 – 461
Citation No.	[1992]DLCA4891

ESSIEM JA

ADJABENG JA

FORSTER JA

SAM OKUDZETO WITH HIM N A O AMEGATCHER FOR THE APPELLANT.

D O LAMPTEY FOR THE RESPONDENT.

[1992]DLCA4891
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													<main id="main" class="content" style="min-height: 60rem" >RE ASANTE, ASANTE<o:p></o:p>vs.<o:p></o:p>OWUSU<o:p></o:p>[COURT
OF APPEAL]<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">

[1992-93] 2 G B R 452 – 461&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 2ND APRIL 1992<o:p></o:p>

D
O LAMPTEY FOR THE RESPONDENT.<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">

ESSIEM
JA, ADJABENG JA, FORSTER JA<o:p></o:p>

</div>ESSIEM JA. <o:p></o:p>The
late Major Kwame Asante (retired) died leaving a widow whom he had married
under the Marriage Ordinance 1884 (Cap 127). As it is well known, the said
Ordinance governs monogamous marriages.<o:p></o:p>It
appears from the evidence that the late Major Asante did not observe strictly
the monogamous nature of his marriage because he had issues with other women.
One of such women is the respondent in this appeal.<o:p></o:p>After
the death of the late Major Kwame Asante, his wife Mrs Letitia Asante and his
son, Yaw Asante, an adult, applied for the grant of letters of administration.
The application was granted by the High Court, coram Kyemenu-Caiquo (Miss). The
court took notice of the fact that the late Major Kwame Asante was survived by
six children who were minors. On 5/2/91 Mr D O Lamptey, a solicitor, filed a
“Notice to Prohibit Grant of Probate or Administration” on behalf of Miss Mary
Owusu of House No 14 Tesano, Accra. Notice of this caveat was served on the
said Mrs Letitia Asante and Yaw Asante.<o:p></o:p>In
her affidavit disclosing her interest in the estate of the deceased, Miss Mary
Owusu disclosed that the deceased had, during his lifetime, two children by her
who were minors. In paragraphs 3, 4&nbsp; and
5 of her affidavit, Miss Mary Owusu deposed:<o:p></o:p>“3. That the names and ages of the
children do not appear in the affidavit in support of the applicants’
application for letters of administration.<o:p></o:p><o:p>&nbsp;</o:p>4. That since the two children the
deceased had by me prior to his death are minors it will be just and convenient
and serve the ends of justice that I, their natural mother, be joined as an
administratrix to the applicants for letters of administration to enable the
interests of the children to be adequately and justly protected.<o:p></o:p>5. That Mrs Letitia Asante lives in
the United Kingdom; the bulk of the deceased’s estate is in Ghana. It is hard
to imagine how Mrs Letitia Asante can effectively and conveniently manage the
estate of late Major (rtd) Kwame Asante from the United Kingdom where Mrs
Letitia Asante lives and works.”<o:p></o:p>She
continued in the subsequent paragraphs to disclose other properties that the
original applicants for letters of administration did not disclose to the
court.<o:p></o:p>By
paragraph 8 of her supporting affidavit, the two children of the caveatrix,
Miss Mary Owusu, were aged 10 and 8 years as at 12 February 1991. The affidavit
of Mrs Letitia Asante shows that the two children of the caveatrix were
included as the deceased’s children when the original application for the grant
of letters of administration was made.<o:p></o:p>Before
the court could decide on the application of the caveatrix, one Philip Asante,
who claimed to be a brother of the deceased and the customary successor to the
deceased, also applied to the court to join the wife of the deceased for
letters of administration.<o:p></o:p>The
court ruled on 14 June 1991 that letters of administration be granted to Mrs
Letitia Asante, Yaw Asante, Mary Owusu and Philip Asante. It is against the
decision of the court that this appeal has been lodged.<o:p></o:p>The
main objection is to the inclusion of Mary Owusu among the persons to whom
letters of administration has been granted.<o:p></o:p>LI
1515, Or 2 r 7 deals with the order of priority of grant where the deceased was
married under the Ordinance, Cap 127. The said rule 7 is as follows:<o:p></o:p>“Where the deceased died intestate on
or after 14th June, 1985 then the order of priority for grant of letters of
administration shall be as follows—<o:p></o:p>(a) where the deceased was
married under the Marriage Ordinance (Cap 127) or was the issue of such
marriage —<o:p></o:p>(i) the surviving spouse;<o:p></o:p>(ii) surviving children;<o:p></o:p>(iii) a surviving mother
or father;<o:p></o:p>(iv) the customary
successor of the deceased…”<o:p></o:p>Rule
8 of LI 1515 states that:<o:p></o:p>“(1) The number of persons to whom a
gra</main>