Republic Vrs High Court Accra And Another (GLR 442-451) [1992] GHASC 1 (08 December 1992);
REPUBLIC v. HIGH COURT, ACCRA; EX PARTE ABBAN AND ANOTHER [1992] 1 GLR 442-451
SUPREME COURT, ACCRA
8 DECEMBER 1992
FRANCOIS, WUAKU, AIKINS, EDWARD WIREDU AND BAMFORD-ADDO JJ.S.C.
Administration of estates—Letters of administration—Revocation of grant—Grounds for—Court vested with discretion in choice of administrators in granting letters—Whether grant revocable on ground that one of the administrators not member of deceased's family—Probate and Administration Rules, 1991 (L.I. 1515).
Administration of estates—Letters of administration—Notice of grant—Order 2, r. 3(1) of L.I. 1515 specifying period for notice of grant—Whether court has discretion to dispense with notice to beneficiaries—Probate and Administration Rules, 1991 [p.443] (L.I. 1515), Order 2, r. 3(1) and (2).
Administration of estates Letters of Administration—Administrator-General, appointment of—Circumstances in which court can appoint Administrator-General to administer estate of deceased—Whether court can suo motu appoint Administrator-General—Administration of Estates Act, 1961 (Act 63), ss. 16, 19 and 22.
Practice and procedure—Judge—Improper jurisdiction—Withdrawal of application— Administrators obtaining order for co-administrator to surrender car—Motion by co-administrator for order to be set aside struck out as withdrawn—Whether court with jurisdiction to suo motu order revocation of letters of administration and appoint Administrator-General to administer estate.
HEADNOTES
One J K A died intestate. Included in his estate was a Mercedes Benz car. On the application of his son, C A and one E S, the applicants, the court granted them letters of administration in respect of the estate. Subsequently, the customary successor, F A, and the head of the family of the deceased also applied and were joined as co-administrators of the estate. Following the refusal of FA to surrender the car, which was in his possession, to the administrators, the applicants obtained an order against F A for the return of the car. F A in response filed a motion before the court to set aside the order for the release of the car. The car was subsequently impounded by the police at the instance of the applicants. At the hearing of F A's motion he withdrew it and the court struck it out as withdrawn. The judge then went on suo motu to order that the police should surrender the car to the chief registrar of the court; and that both the letters of administration and the order for joinder were revoked and should be brought for cancellation. Furthermore, the judge appointed the Administrator-General to administer the estate of J K A. The applicants then applied to the Supreme Court for an order of certiorari to quash the orders of the judge on the ground that he had no jurisdiction to suo motu revoke the grant of letters of administration when (a) it had not been impeached on any ground; and (b) the only motion before the court was the one for the release of the car. F A however opposed the application, and contended in support of the orders that if during the application for the letters of administration the court had been informed that E S was not a member of their family the grant to him and C A would not have been made, and further no notices of the grant were posted for the statutory period before the grant was made.
Held, allowing the application:
(1) the High Court could only revoke the grant of letters of administration upon just cause in cases where a grant had been obtained fraudulently and made mala fide by the making of a false representation or concealing from the court something material to the case which should have been disclosed. Section 79(1) and (2) of the Administration of Estates Act, 1961 (Act 63) and Order 2, r. 8 of the Probate and Administration Rules, 1991 (L.I.1515) however made it quite clear that the choice and discretion of the court in granting letters of administration was not limited to the customary successor or other members of the family [p.444] of the deceased. Accordingly, where the interest of the estate of the deceased or the beneficiaries required, the court might even appoint a person with no share in it as the administrator. Accordingly, the revocation of the letters of administration could not be justified on the ground that a non-member of the family had been appointed as one of the administrators. Dictum of Ollennu J. (as he then was) in Asamoah v. Ofori alias Renner [1961] G.L.R. 269 at 272 approved. Asafu-Adjei v. Okrah [1984-86] 1 G.L.R. 440, C.A. applied.
(2) Although under Order 2, r. 3(1) of L.I. 1515 the court was required to give notice for a period of 21 days (or such other period as the court might order) after the grant, rule 3(2) gave a discretion to the court to dispense with such notice to beneficiaries entitled to a share of the estate of the deceased under the Intestate Succession Law, 1985 (P.N.D.C.L. 111).
(3) Under the provisions of Act 63, the court could appoint the Administrator-General to administer an estate only where (a) he had petitioned the court under section 16 for the grant of letters of administration in respect of an estate which it had come to his knowledge was unrepresented; (b) he had applied to the court under section 19 where a person had died leaving assets in Ghana and the court was not satisfied that there was any person immediately available who was legally entitled to succeed to the assets and there was the danger of appropriation, deterioration or waste of the assets before succession could be determined, or whether the Administrator-General was entitled to the grant of letters to administer the estate; and (c) a private administrator with the prior consent of the Administrator-General transferred the assets vested in him by the letters of administration to the Administrator-General under section 22. Accordingly, the High Court had no jurisdiction on its own motion to appoint the Administrator-General to administer the estate of the deceased.
(4) The motion that was before the High Court was for an order to set aside the order of the court for the release of a vehicle and since that motion was withdrawn, the court having struck out the motion as withdrawn was functus officio and therefore had no business or jurisdiction to make the consequential orders it made. Dictum of Jeune P. in In re Goods of Loveday [1900] P. 154 at 156 approved.
CASES REFERRED TO
(1) Asamoah v. Ofori alias Renner [1961] G.L.R. 269.
(2) Asafu-Adjei v. Okrah [1984-86] 1 G.L.R. 440, C.A.
(3) Loveday, In re Goods of [1900] P. 154; 83 L.T. 692.
(4) Kumatse (Decd.), In re; Kumatse v. Hodienukpor [1975] 2 G.L.R. 344.
(5) Calvin v. Carr [1980] A.C. 574; [1979] 2 W.L.R. 755; [1979] 2 All E.R. 440, P.C.
(6) United Australia Ltd. v. Barclays Bank Ltd. [1941] A.C. 1; [1940] [p.445] 4 All E.R. 20, H.L.
(7) China National Foreign Trade Transportation Corporation v. Evlogia Shipping Co. S.A. of Panama [1978] 1 W.L.R. 1257; [1979] 1 All E.R. 657, C.A.
(8) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
(9) Penkro v. Kumnipah II [1987-88] 1 G.L.R. 558, S.C.
NATURE OF PROCEEDINGS
APPLICATION for certiorari to quash the order of the High Court suo motu revoking the grant of letters of administration to the applicants and transferring administration of the estate to the Administrator-General. The facts are sufficiently set out in the judgment of Aikins J.S.C.
COUNSEL
Philip Addison for the applicants.
Ewusie Wilson for the respondent.
JUDGMENT OF AIKINS J.S.C.
The applicants are invoking 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 intituled In re John Kwegyir Abban (Decd.) (Suit No. 2695/91 PD)."
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 three years.
The estate of the deceased included two cars one of which was a Mercedes Benz car No. ACR 2761. 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.
In the 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. In the result the applicants obtained an order from the High Court, coram Sampson J., [p.446] on 12 February 1992 for the return of the car to the applicants. 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 the 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.
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 made before the court that the said grant was either fraudulent or irregular, especially when the only motion before the court was a request for an order to set aside the order of the court for the release of the vehicle.
The ruling of the High Court is as follows:
"By court: Application to set aside the court's order of 12 February 1992 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 made to the respondent on 3 December 1991 and the order for joinder made on 13 February 1992 joining the applicant as co-administrator are hereby revoked. The grant of the letters of administration dated 3 December 1991 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 February 1992 to return vehicle No. 2761 to the respondent is hereby revoked."
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.
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 and made mala fide by the making of a false [p.447] representation or concealing from the court something material to the case which should have been disclosed. In this respect I agree with the ratio decidendi of Ollennu J. (as he then was) in the case of Asamoah v. Ofori alias Renner [1961] G.L.R. 269 at 272. See also Tristram and Coote's Probate Practice (21 st ed.), pp. 427- 439.
It is contended in opposition to this application that Frank Abban, the co-administrator, 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. 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 Act 63 says that he is to be considered alongside with others. The section reads: "(2) In granting administration the court shall have regard to the rights of all persons interested in the estate,. . ." Furthermore, under Order 2, r. 6 of the Probate and Administration Rules, 1991 (L.I. 1515), on the death of the deceased on or after 14 June 1985 (i.e., the date the Intestate Succession Law, 1985 (P.N.D.C.L.111) was enacted) persons having beneficial interest in the estate of the deceased are entitled to the grant of letters of administration in the following order of priority:
"(a) the surviving spouse;
(b) surviving children;
(c) surviving parents; and
(d) customary successor of the deceased."
And under Order 2, r. 8(2) of L.I. 1515 it is stipulated that where there is a dispute between persons entitled to a grant in the same degree the court is entitled to make a grant to anyone of them as it considers fit.
In the case of Asafu-Adjei v. Okrah [1984-86] 1 G.L.R. 440, C.A., the Court of Appeal (coram: Adade J.S.C., Amua-Sekyi and Ampiah JJ.A.) held, and quite rightly, that where the interests of the estate of the deceased or of those entitled to benefit from it required, the court might appoint a person with no share in it as administrator. I do not consider, therefore, that the argument proffered on behalf of Frank Abban on these issues are sustainable. From my reading of section 79 of Act 63 and Order 2, r. 8 of L.I. 1515 I do not see any fetters imposed on the discretion of the court.
[p.448]
It is also argued in opposition that the grant was a nullity because no notices of the grant were posted for the statutory period before the grant matured. It is my view that though under Order 2, r. 3(1) of L.I. 1515 the court is required to give notice for a period of 21 days (or such other period as the court may order) after the grant in the manner specified in the subrule, rule 3(2) gives a discretion to the court to dispense with such notice to beneficiaries entitled to a share of the estate of the deceased under P.N.D.C.L.111.
In my judgment the High Court has no jurisdiction on its own motion to appoint the Administrator-General as administrator to administer the estate of the deceased. What the court was concerned with was to see to the proper administration of the estate and the interests of the beneficiaries. In this context I quote with approval what Jeune P. said in the case of In re Goods of Loveday [1900] P. 154 at 156, namely in administration suits, ". . . the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto.. . ."
In my view it is rather the private administrator, vis-a-vis the court, who can of his own volition transfer the assets of the estate vested in him by virtue of the letters of administration to the Administrator-General. But even in this situation the transfer must be done with the express consent of the Administrator-General by instrument in writing under his hand, notified in the Gazette—see section 22 of Act 63. It is only where the Administrator-General petitions the court under section 16 of Act 63 praying for a grant of letters of administration of the estate when it comes to his notice that the estate is unrepresented, that the court may make an order. So also in situations where a person dies leaving assets in Ghana and the court is not satisfied that there is any person immediately available who is legally entitled to succession to the assets and that there is a danger of appropriation, deterioration or waste of the assets before the succession can be determined, or whether the Administrator-General is entitled to a grant of letters to administer the estate, that the court may direct the Administrator-General to collect and take possession of the assets. Even under such circumstances the Administrator-General must apply to the court in the first instance—see section 19 of Act 63.
It must be emphasised that the motion that was before the High Court, Accra, coram Sampson J. on 2 June 1992 in suit No. 2695/91 PD was for an order to set aside the order of the court for the release of the vehicle, and since that motion was withdrawn, the court having struck [p.449] out the motion as withdrawn was functus officio and with respect had no business or jurisdiction to make the consequential orders it did make. Since Frank Abban did not make any claim that the subsistent grant was null and void and that the Administrator-General should be appointed to administer the estate, the issue whether the subsistent grant was valid or not and whether the Administrator-General should be appointed to administer the estate did not arise. Accordingly, the learned judge's orders with respect to the revocation of the grant and appointment of the Administrator-General were wholly uncalled for.
Moreover, the proceedings before Sampson J. in suit No.2695/91PD did not entitle him to revoke the earlier grant because the procedure for ensuring that no grant of letters of administration issued without notice as provided by Order 2, r. 4 of L.I. 1515 requires an aggrieved person to file (if he so wishes) a caveat. This does not entitle the applicant to assail the genuineness of the subsistent grant by the side wind, and in the completely unrelated motion before the court.
In the premises, I would allow the application.
JUDGMENT OF FRANCOIS J.S.C.
I shall not repeat the facts which have been copiously set out in the majority opinion just delivered by my brother Aikins J.S.C. I do not disagree with the general conclusion either, that Sampson J. erred in making orders after the application before him had been withdrawn. I also concede that proper procedures must precede the successful revocation of a grant. I said this some seventeen years ago in In re Kumatse (Decd.); Kumatse v. Hodienukpor [1975] 2 G.L.R. 344. My difficulty stems from the fact that the applicants failed to take immediate steps to correct the errors committed by Sampson J. Errors they now strenuously denounce. Then, they adopted the strategy of applying for a fresh grant. They failed also to supply the presiding judge with the current history and antecedents of the litigation. On the face of it there was a deviousness and concealment that can scarcely be described as honourable. Having paid such regard for proprieties, can the applicants scurvily proceed to seek relief from this court, as of right? A suitor for relief in this court, must be worthy and deserving of it.
I ask myself this question: were the applicants guilty of unpurged contempt, could this application in its present form succeed before us, even if an issue of jurisdiction existed? It is trite to say that a nullity may still have some effect at law and is not regarded as legally non-existent until it is so declared: see Calvin v. Carr [1979] 2 All E.R. 440, P.C. Consequently, an application ex debito justitiae to have a matter declared [p.450] a nullity must be made by unsullied applicants who can demand audience before us. Otherwise, vexatious, contemptuous and irresponsible proceedings may be embarked upon in the hallowed and pretentious pretext of pursuing an existing right. This serves only to reduce the jurisdiction of this court to a farce. Indeed, the frontiers of absolute and discretionary rights are sometimes blurred and ill-defined. But where they cut across competing principles, the courts must not shy away from insisting on absolute good faith as a sine qua non for dispensing relief.
Finally, since the applicants exercised a choice by opting for a fresh grant rather than challenging Sampson J's ruling and indeed made the present belated application to escape contempt charges, it seems to me they have exhausted any rights they may have possessed. They should not be permitted to perform the magical feat of eating their cake and having it with the ignominious result of over-reaching the lower court! The principle of election between inconsistent courses was stated in United Australia Ltd. v. Barclays Bank Ltd. [1940] 4 All E.R. 20 at 37, H.L. by Lord Atkin as follows:
“. . .if a man is entitled to one of two inconsistent rights, it is fitting that, when, with full knowledge, he has done an unequivocal act showing that he has chosen the one, he cannot afterwards pursue the other, which, after the first choice, is by reason of the inconsistency, no longer his to choose."
See also China National Foreign Trade Transportation Corporation v. Evlogia Shipping Co. S A of Panama [1979] 1 All E.R. 657 at 665, C.A.
It is for these reasons that I find it difficult to accept that the applicants retain a right to relief after so cavalierly bruising and debasing it. Having however expressed my reservation, I do not wish to press it to a division.
JUDGMENT OF WUAKU J.S.C.
I agree that the orders made by Sampson J. subsequent to his orders dated 2 June 1992 striking out his previous order dated 12 February 1992 were made without jurisdiction and as such should be brought up to be quashed. I do not intend to go any further, bearing in mind that any motion nowadays can be heard by any other judge to whom the motion is assigned, be he the judge who first began to hear the motion or not.
JUDGMENT OF EDWARD WIREDU J.S.C.
I have examined the complaint of the [p.451] applicants. I have also examined the orders of the High Court which have provoked the present application and the request by the applicants that an order for certiorari be issued from this court under the supervisory power of the court to bring to be quashed these orders dated 2 June 1992 by Sampson J. I firmly indorse the propriety of the applicants' complaint and concur in the conclusion of my brother Aikins J.S.C. that the application be granted.
The orders made by Sampson J. subsequent to the striking out of the application then before him were void ab initio. They were made in excess of his jurisdiction as rightly urged by the applicants. It was incompetent for the court suo motu to have made the orders. Sampson J. had no jurisdiction and the orders he made cannot be justified under any rule of law or procedure. The complaint of the applicants is amply justified. It has the support of cases like Mosi v. Bagyina [1963] 1 G.L.R. 337 at 342, S.C. and Penkro v. Kumnipah II [1987-88] 1 G.L.R. 558, S.C. A void order has no legal consequences and when brought to the attention of the court in whatever form, the court can suo motu so declare it. There need not be a formal application before the court. Lapse of time is not a bar to such a grant, per Adade J.S.C. in the Kumnipah II case (supra).
Under a situation like this no discretion arises in the issuing out of an order to quash the void orders. The court is bound as a matter of course to issue the order.
The applicants' case is made out and is well founded. There can be no legal answer to it. I therefore indorse its success and grant the order sought accordingly.
JUDGMENT OF BAMFORD-ADDO J.S.C.
I also agree that the application should be allowed.
DECISION
Application allowed.
M.C.N.-N.
