SAMUEL AYIKWEI QUAYE vs. DANIEL AYIQUAYE & ANOR. [2005]DLCA6955

Date	2005-02-25
Suit No.	CIVIL APPEAL NO.: HI/229/04
Citation No.	[2005]DLCA6955

FARKYE JA [PRESIDING]

MRS. ABBAN JA

MARFUL SAU J

MRS. DOE TSIKATA FOR THE CAVEATOR/APPLICANT PRESENT.

[2005]DLCA6955
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													<main id="main" class="content" style="min-height: 60rem" >SAMUEL AYIKWEI QUAYE<o:p></o:p>(CAVEATOR/APPELLANT)<o:p></o:p>vs.<o:p></o:p>DANIEL AYIQUAYE &amp; ANOR.<o:p></o:p>(APPLICANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: HI/229/04&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 25TH FEBRUARY, 2005<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;border:none;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;border:none;
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CAVEATOR/APPLICANT PRESENT.<o:p></o:p>

</div>CORAM:&nbsp;
<o:p></o:p>FARKYE
JA [PRESIDING], MRS. ABBAN JA, MARFUL SAU J<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div><o:p>&nbsp;</o:p>MARFUL SAU, J:<o:p></o:p>&nbsp;On the 22nd July 2002, the High Court Accra,
granted an ex-parte application for Letters of Administration jointly to one
Daniel Ayi Quaye and Rejoice Deedei Quaye. Before the Letters of Administration
could be issued however, two caveats were filed by Samuel Quaye eldest son of
the intestate Madam Favour Amorkor Quaye on the 8th August, 2002 and Emmanuel
Okoe Hammond who claimed to be the head of family to which the intestate
belonged. The second caveat was filed on the 28th August 2002.<o:p></o:p>&nbsp;On the 3rd December 2002 the applicants filed
a motion ex parte for the removal of the caveat filed by Samuel Ayikwei Quaye.
The applicants then followed the ex parte motion with a warning to the
caveators which was filed on the 17th December, 2002. The caveators filed their
affidavit of interest on the 30th January 2003 and the applicants responded
with another affidavit on the 26th February 2003. <o:p></o:p>The record of proceedings
showed that after the affidavits narrated above no process was filed in the
proceedings. However on the 7th of July 2003 the following ruling which appears
at page 4 of the record of proceedings was recorded by Abada J. <o:p></o:p>"BY COURT: RULING—Upon hearing
the Counsel for the applicant and the respondent, I am of the firm view that
the caveator by his act of laying adverse claim to the mother's only landed
property is not a fit and a proper person to administer the estate. I shall
accordingly remove the caveat and make a joint grant to the applicants. The
applicants are to distribute the estate in strict compliance with PNDC Law 111
as variously amended." <o:p></o:p>It is against this ruling
that the Caveators {hereinafter called Appellants} have appealed to this Court.
On examination of the record of proceedings, I observe that the entire
controversy in this appeal is about the right procedure for the grant of
Letters of Administration particularly when a caveat is entered. <o:p></o:p>Counsel for the Appellants
in her statement of case contend that the Court below erred in removing the
caveat and also it erred in appointing the Appellant daughter and the 1st
Respondent as the Administrators of his mother's estate. Counsel for appellant
formulated eight grounds of appeal in the notice of appeal and argued all the
grounds in her statement of case filed on the 9th July, 2004. <o:p></o:p>As observed earlier, the
issue in this appeal relates to the proper procedure for the grant of Letters
of Administration when a caveat is entered. The legal position is well defined
by Order 2 of the {Probate and Administration Rules} 1991, LI 1515. Order 2
rule 12, 13 and 14 of LI 1515 provides as follows:—<o:p></o:p>&nbsp;(12) The applicant shall then move the Court
to grant probate or Letters of Administration as the case may be in the form
prescribed in the schedule hereto. The motion shall be on notice to the
caveator who shall at the expense of the applicant, be served with copies of
any affidavits on which the applicant intend to rely. <o:p></o:p>(13) When the motion comes
on for hearing, if the parties agree among themselves as to the person or
persons to whom a grant of probate or Letters of Administration shall be made,
the Court may order that the caveat be removed from the file and a grant be
made.<o:p></o:p>&nbsp;(14) Failing such agreement between the
parties, the Court shall determine who is entitled to grant of probate either
summarily or may order that the applicant issue a writ of summons against the
caveator within 14 days from the date of such order, to determine who is
entitled to grant of probate or Letters of Administration, if in the opinion of
the Court it is necessary to do so. <o:p></o:p>The above rules enjoins an
applicant in proceedings for Letters of Administration after being served with
the affidavit of interest of the caveator, to move the Court on notice to the
caveator. The Court will then have the jurisdiction to determine the
application by either ordering a writ to be issued or make a grant where the
parties have agreed among themselves.<o:p></o:p>&nbsp;In the proceedings before this Court it does
not seem that the applicants then (now the Respondent) complied with the clear
provisions of Order 2 Rules 12, 13 and 14 of LI 1515. There was no motion on
notice filed subsequent to the filing of the caveat and the other process as
referred. The only motion for the grant of Letters of Administration was the
one filed ex parte which was filed on the 3rd July 2002 and same granted on the
22nd July 2002 by Asare Korang J. (as he then was). The ex parte motion for
Letters of Administration having been granted before the caveat was filed, it
ceased to have any effect. The said ex parte motion had been determined and put
to rest.<o:p></o:p>&nbsp;It is thus clear that the proceedings at th</main>