IN THE MATTER OF THE ESTATE OF ALBIN KOREM [DECEASED] AND APPLICATION FOR L/A BY ZUZANA SPIZAKA (APPLICANT/APPELLANT) AND CHARLOTE AMA OFORI (CAVEATRIX/RESPONDENT) [2008]DLCA6724

IN THE MATTER OF THE ESTATE OF ALBIN KOREM [DECEASED] AND APPLICATION FOR L/A BY... [2008]DLCA6724

Date	2008-07-10
Suit No.	CIVIL APPEAL H1/40/2008
Citation No.	[2008]DLCA6724

PIESARE J.A.[PRESIDING]

APALOO J.A.

MARIAMA OWUSU J.A.

EMMANUEL AMISSAH FOR THE APPELLANT/APPLICANT.

ASAMOAH-AMOAKO FOR THE CAVEATRIX/RESPONDENT

[2008]DLCA6724
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													<main id="main" class="content" style="min-height: 60rem" >IN THE MATTER OF THE
ESTATE OF ALBIN KOREM [DECEASED]<o:p></o:p>AND<o:p></o:p>APPLICATION FOR L/A BY
ZUZANA SPIZAKA (APPLICANT/APPELLANT)<o:p></o:p>AND<o:p></o:p>CHARLOTE AMA OFORI (CAVEATRIX/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL 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">

CIVIL APPEAL H1/40/2008&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 10TH JULY, 2008<o:p></o:p>

ASAMOAH-AMOAKO
FOR THE CAVEATRIX/RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>APALOO, J.A. <o:p></o:p>On
24th April, 2007 the High Court Accra delivered a ruling in which it granted
Letters of Administration to both the Appellant/Applicant and the
Respondent/Caveatrix on the basis that the Respondent had established her claim
as an adopted child of the deceased and therefore an interested party in the
estate of the deceased. <o:p></o:p>For
easy reference, I shall adopt the title of the parties as used in the
proceedings in the Court below. <o:p></o:p>The
deceased Albin Korem whose estate is the subject matter of the appeal was a
citizen of Slovakia.&nbsp; He came to live in
Ghana in 1971 and worked as an agriculturist, writer and a journalist.&nbsp; He died on 1st May 2006 at Kosice-Zepad in
Slovakia after a short illness. <o:p></o:p>Having
died without any surviving spouse or issues in Ghana or in his native Slovakia,
his only surviving sister Maria Kurimska executed a power of attorney in favour
of her daughter Zuzana Spizaka who is a niece of the deceased to obtain Letters
of Administration to administer the estate of the deceased since Albin Korem
died without making a will. <o:p></o:p>Upon
filing an ex-parte application for grant of the L/A, the same was granted
subject to 21 days notice. The caveatrix subsequently filed her caveat and upon
receipt of the warning from the Registrar of the Court to disclose her interest
in the estate an affidavit of interest was filed.&nbsp; When the applicant moved Court to discharge
the caveat, the ruling of the Court for the removal of the caveat formed the
basis for this appeal.&nbsp; <o:p></o:p>The
Applicant as Appellant filed three grounds of appeal namely:— <o:p></o:p>“1. That the learned judge erred in
law when she ruled that an alien resident in Ghana could undertake customary
adoption when there was no evidence that the deceased alien identified himself
with any custom pertaining to any particular ethnic group in Ghana. <o:p></o:p>2. That the learned judge erred when
she ruled purely on the basis of affidavit evidence that the caveatrix has
established her claim as an adopted child under customary law. <o:p></o:p>3.&nbsp;
That the learned judge erred when she ordered that the caveatrix should
be made a co-administratrix.” <o:p></o:p>In
my view the resolution of the third ground of appeal hinges entirely on the
outcome of grounds 1 and 2 because if indeed the caveatrix is proved to have an
interest in the estate then Rule 13 of Order 66 [C.I. 47] the High Court Civil
Procedure Rules will apply. In respect of the first ground of appeal the
learned trial judge held the view that:— <o:p></o:p>“the caveatrix applies only to be
joined in the grant as a child; she must prove that she is a child of the
deceased.&nbsp; She claims to be an adopted
child of the deceased by customary law.&nbsp;
This the applicant refutes.” <o:p></o:p>There
is no doubt that the judge properly identified the issue at stake in the
caveat.&nbsp; Having done so it was obligatory
on her part to assess the evidence at her disposal in conformity with the
Evidence Decree. See section 11[4] of the Evidence Decree on the burden of
producing evidence.&nbsp; See also section
12[1] of the same Decree on proof by a preponderance of probabilities. <o:p></o:p>The
nature of evidence proferred by the caveatrix to the Court was contained in,
her affidavit of interest consequent to the filing of the caveat.&nbsp; She swore that; <o:p></o:p>“2. That I was adopted by the late
Albin Korem in 1989 by way of customary adoption. <o:p></o:p>3. That I have lived with my late
father Albin Korem since I was adopted by him as his only daughter until his
death. <o:p></o:p>