REPUBLIC vs. HIGH COURT, ACCRA EX PARTE ABBAN [1992]DLSC4895

Date	1992-12-08
Suit No.	[1992-93] 2 G B R 702 – 709
Citation No.	[1992]DLSC4895

FRANCOIS JSC

WUAKU JSC

AIKINS JSC

WIREDU JSC

BAMFORD-ADDO JSC

PHILIP ADDISON FOR THE APPLICANTS.

EWUSIE WILSON FOR THE RESPONDENT.

[1992]DLSC4895
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH COURT, ACCRA EX
PARTE ABBAN<o:p></o:p>[SUPREME
COURT, ACCRA]<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 702 – 709&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: 8TH DECEMBER 1992<o:p></o:p>

EWUSIE
WILSON 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">

FRANCOIS
JSC, WUAKU JSC, AIKINS JSC, WIREDU JSC, BAMFORD-ADDO JSC<o:p></o:p>

</div>AIKINS JSC. <o:p></o:p>The
applicants invoke the supervisory jurisdiction of this court by way of
certiorari to quash the order of the High Court, Accra presided over by Sampson
J, dated 2 June 1992 and “the resultant proceedings in the cause instituted, In
the Matter of the Estate of John Kwegyir Abban (Deceased) (Suit No 2695/91
PD)”.<o:p></o:p>The
events leading to this application are as follows: On 9 October 1991 one John
Kwegyir Abban, an engineer by profession, died and was buried at Saltpond on 30
November 1991. He died intestate and was survived by four children, namely
Charles Abban, Paulina Abban, Janet Abban aged 26, 22, and 18 years
respectively, and an infant, Apeatse Abban, aged 3 years.<o:p></o:p>The
estate of the deceased included two cars, one of which was Mercedes Benz car No
ACR 2761.<o:p></o:p>On
3 December 1991 the High Court, Accra, coram Aryeetey J, granted letters of
administration to the applicants to administer the estate of the deceased, and
on 3 February 1992 an elder brother of the deceased, Frank Abban, who had
hitherto been appointed customary successor to the deceased by the family
together with the head of family applied to the High Court, Accra to be joined as
co-administrators. This request was granted by the High Court, coram Sampson J
on 13 February 1992.<o:p></o:p>In
course of time the applicants requested Frank Abban to surrender the said
Mercedes Benz car which had been in his possession, and which they considered as
belonging to the estate of the deceased but Frank Abban turned a deaf ear to
their incessant requests.<o:p></o:p>In
the result the applicants obtained an order from the High Court, coram Sampson
J on 12 February 1992 for the return of the car to the applicants.<o:p></o:p>Instead
of obeying the order of the court, Frank Abban filed a motion on 4 March 1992
praying for an order to set aside the order for release of the car. When later
he realised that the car had been impounded by the police at the instance of
the applicants, he decided to withdraw his motion filed on 4 March 1992. At the
hearing of the motion before Sampson J, Frank Abban withdrew the said motion.
This was accepted by the court. It is the consequential orders made by the
court that have been assailed before this court.<o:p></o:p>The
applicants have urged that the High Court, Accra had no jurisdiction to revoke
suo motu, the grant of letters of administration to the applicants by the High
Court, coram Aryeetey J, which is a court of co-ordinate and competent
jurisdiction, when no allegation had been before the court that the said grant
was either fraudulent or irregular, especially when the only motion before the
court was to set aside the order of the court for the release of the vehicle.<o:p></o:p>The
ruling of the High Court is as follows:<o:p></o:p>“By Court: Application to set aside
the court’s order of 12/2/92 is hereby struck out as withdrawn. I make no order
as to costs. I further order that vehicle No ACR 2761 should be surrendered by
the police to the Chief Registrar of the court. I further order that the
letters of administration issued to the respondent on 3/12/91 and the order for
joinder made on 13/2/92 joining the applicant as a co-administrator are hereby
revoked. The grant of the letters of administration dated 3/12/91, as amended,
be brought to the court on Monday 8 June, for cancellation. I hereby now
appoint the Administrator-General as administrator to administer the estate of
the late John Kwegyir Abban; also the order of 12/2/92 to return vehicle No
2761 to the respondent is hereby revoked.”<o:p></o:p>No
reason for the consequential orders have been given in this ruling, nor has
Frank Abban in his affidavit in opposition contended that there was any
allegation before the court that the grant of letters of administration to the
applicants by the High Court, coram Aryeetey J, was fraudulent or irregular.<o:p></o:p>It
must be pointed out that the court can only revoke the grant of letters of
administration upon just cause, e.g. where a grant has been obtained
fraudulently or mala fide by false representation or by concealing from the
court something material to the case, which should have been disclosed.<o:p></o:p>In
this respect I agree with the ratio decidendi of Ollennu J in the case of
Asamoah v Ofori alias Renner [1961] GLR 269 at p 272. See also Tristam and
Coote’s Probate Practice, 21st ed pages 457 - 461.<o:p></o:p>It
is contended in opposition to this application that Frank Abban, the
co-administator, was not consulted by the applicants before they applied for
the grant, and that they did not disclose to the court that Eric Solomon was
not a member of the deceased’s family, and that if this disclosure had been
made Aryeetey J would not have made the grant.<o:p></o:p>I
think the Administration of Estates Act 1961 (Act 63) makes it quite clear in
section 79(1) that the choice of the court in granting letters of
administration is not limited to the customary successor or other members of
the family of the deceased. Though the customary successor is the most eligible
among the members of the family, section 79(2) of the Act says that he is to be
considered alongside others. The section reads:<o:p></o:p>“(2) In granting administration the
Court shall</main>