Quaye And Another Vrs Ayiquaye And Another (HI/229/04) [2005] GHACA 18 (25 February 2005);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL,
ACCRA - GHANA
HI/229/04
25TH FEBRUARY, 2005.
CORAM - FARKYE, JA [PRESIDING]
MRS. ABBAN, JA
MARFUL SAU, J
ESTATE OF MAD. FAVOUR AMORKOR QUAYE
SAMUEL AYIKWEI QUAYE … CAVEATOR/APPELLANT
V E R S U S
(1) DANIEL AYIQUAYE
… APPLICANTS/RESPONDENTS
(2) REJOICE DEDEI QUAYE
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J U D G M E N T
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MARFUL SAU, J - 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.
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 203 and the applicants responded with another affidavit on the 26th February 2003.
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.
“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.”
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.
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.
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, L1 1515. Order 2 rule 12, 13 and 14 of L1 1515 provides as follows:-
(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.
(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.
(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.
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.
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 L1 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.
It is thus clear that the proceedings at the Court below after the entry of the caveat which culminated in the ruling under appeal, did not comply with the statutory requirement of L1 1515 particularly Order 2.
It has been held that where a statutory condition must be complied with before a Court could have jurisdiction to make an order, failure to comply with such condition would leave the Court with no discretion to make any order or orders in the matter. See
(1) HEWARD MILLS V. HEWARD MILLS (1992) 1 GLR 153 C.A.; (2) REPUBLIC V. DISTRICT MAGISTRATE ACCRA, EX PARTE ADIO (1972) 2 GLR 125 C.A. Order 2 rule 12 of the probate and Administration Rules 1991 L1 1515 made it clear that after the entry of a caveat, the applicant in proceedings for Letters of Administration shall move the Court on notice to the caveator. The applicants at the Court below (the Respondents herein) were mandatorily required to move the court on notice to the appellants herein. The failure by the respondents to comply with these mandatory provisions of L1 1515 was therefore fatal to their action.
For the reasons I have assigned above alone, I will allow this appeal and set aside the ruling of the Court below dated the 7th July 2003. The said ruling and all the orders contained therein are hereby set aside.
This suit involves the administration of a deceased estate. Since 7th July 2003, the Respondent have been administering the estate based on the ruling that has been set aside. With the ruling now set aside there is a vacuum. To dill the vacuum this Court will exercise its powers under Section 80(1) of the Administration of Estate Act (Act 63) and appoint the Administrator General to administer the estate of the intestate until administrators are appointed in accordance with the Probate and Administration rules.
By this order the Respondents are hereby ordered to hand over their administratorship to the Administrator General and file accounts within a3 months to the Administrator General accordingly. The Registrar of this Court is to inform the Administrator-General of this order. The appeal succeeds accordingly.
MARFUL SAU
JUSTICE OF THE HIGH COURT
I agree. S. T. FARKYE
JUSTICE OF APPEAL
I also agree. HENRIETTA ABBAN {MRS}
JUSTICE OF APPEAL
COUNSEL - MRS. DOE TSIKATA FOR THE CAVEATOR/APPLICANT
PRESENT.
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