Administration of estates  – Grant of representation – Principles of, -Grant discretionary – Wrongful exercise of discretion to appoint concubine with children by deceased to administer estate jointly with widow married under Marriage Ordinance – Marriage Ordinance 1884 Cap 127 s 44 – Probate and Administration Rules 1991 (LI 1515) Or 2 r 7.

Succession – Intestate succession – Children born out of wedlock – Whether illegitimate – Whether entitled to succeed father  – Intestate Succession Law 1985 (PNDCL 111) s 18.

Statutes – Interpretation – “Child” – Meaning of, – Intestate Succession Law 1985 (PNDCL 111) s 18.

Administration of estates – Grant of representation – Order of priority  – Intestate survived by widow, issues of widow and issues of concubines – Grant to widow and eldest issue to represent issues of concubines  – Whether proper to join concubine as administratrix – Probate and Administration Rules 1991 (LI 1515) Or 2 rr 7 and 8(2).

Courts  – Supreme Court – Statement of case  – Ground of appeal not argued in statement of case deemed to be abandoned – Court may nevertheless pronounce on ground raising serious social and moral issues.

The deceased died intestate survived by a widow, married under the Marriage Ordinance, and nine children, eight of whom were minors. Three of the children were by the respondent and the rest by the appellant and other women. The widow and YA, the eldest son of the deceased, and the customary successor obtained joint letters of administration in the High Court to administer the estate. In making the grant the High Court judge found that it was convenient that YA be appointed to protect the interests of his siblings (other than the widow’s issues) in the administration and enjoined the grantees to administer the estate in accordance with law. The appellant, a concubine who had two children by the deceased, caveated, alleging that the interests of her infant children would be better protected if she were joined as an administratrix. The court joined her as a co-administratrix. On appeal by YA and the widow, the Court of Appeal, by a unanimous decision, reversed the joinder of the appellant. On her appeal to the Supreme Court,

Held, Adade JSC dissenting, (1) Order 2 rule 8(2) was intended to avoid the situation where all those entitled to a grant in the same degree in the order of priority would be given a joint grant. The court was required to select one person in a degree to cater for the interests of all the persons in that degree. When the appellant entered her caveat and applied to be joined, the High Court had already selected YA who was in the same degree as the appellant. There was nothing to show that YA could not protect the interests of his half-brothers and half-sisters. The learned High Court judge held rightly that it was convenient that those children be represented by one person of their number. Having selected YA as competent to protect the interests of those children, she ought not to have gone back on her word to join the appellant thus making a grant to two persons in the same category of priority contrary to the provisions of Order 2 rule 8(2).

Per Adade JSC dissenting: Under Order 2 rule 8(2) of LI 1515 the court is merely not obliged to join more than one out of several persons in the same degree. The court is not prevented from doing so. Joining two or three persons in the same degree is not illegal, so long as the statutory maximum of 4 is not exceeded (see section 77(1) of Act 63). It is all a matter of discretion, given the facts and circumstances of each particular case.

Per Bamford-Addo JSC Under Order 2 rule 7(a) of LI 1515 the parent of a minor beneficiary child is not listed. However Order 8 rule 3 which deals with limited and special grants permits a guardian e.g. the mother of a minor to take the grant for benefit of such a minor until he attains full age. Where of necessity, a grant ought to be made to none but a minor, then his guardian or parent can take the grant on his behalf under Order 8 rule 3. In this case, the appellant’s issues were not the only persons to whom a grant could be made; there were other persons including an adult first son, YA, to whom a grant had already been made. Therefore Order 8 was not even applicable and it was therefore wrong for the High Court to have made a grant to her on the ground that she was best suited to protect the interest of her children.

(2) LI 1515, Or 2 rr 7 and 8 conferred discretion on the court to make a grant in accordance with the dictates of PNDCL 111 and well established principles. Rules 8(2) and (3) vested discretion in the court to make a grant to a person selected from persons entitled to a grant in the same degree. In exercising the discretion, several factors ought to be taken into account, and these included the suitability of the person selected and his ability to administer the estate expeditiously and economically. The court ought to exercise its discretion against an applicant who intended merely to act as a watchdog over sectional interests in the estate. The inclusion of a concubine, like the appellant, would only retard the administration, her only objective being to safeguard the interests of her children and not to assist in the proper and efficient administration of the estate. The trial judge’s decision to join the appellant was a wrongful exercise of judicial discretion and the Court of Appeal was right in reversing her decision. Osenton (Charles) & Co v Johnson [1942] AC 130, HL and Khoury v Khoury [1962] 1 GLR 98 followed.

(3) The appellant was a concubine of the deceased and had her two children with him while his marriage to the respondent widow was subsisting. She could not pretend to have any interest in the estate except, as she alleged, to oversee the interests of her said two infant children. Concubines were not entitled to grant of letters of administration in their own right or to represent their children by intestates married under the Marriage Ordinance 1884 (Cap 127). As such the appellant did not fall within any of the categories in the order of priority for grants set out in Order 2 rule 7 of LI 1515. She therefore had no locus standi.

Per Abban, Bamford-Addo JJSC Joining a concubine as an administratrix has the potential of creating inconvenience and confusion, which could delay the administration of the estate. Nothing prevents the mothers of the other minors from also applying to the court to be joined in order to protect the interests of their children; and there could be no good reason for the court to refuse such an application. If care is not taken, sooner or later the courts will be inundated with applications for letters of administration in respect of estates of deceased persons by their concubines who had children with these deceased persons, under the pretext that they want to protect the interests of their infant children in the estates of their putative fathers. This could not augur well for public morality and decency.

Per Adade JSC dissenting: By directing too much attention to the status of the appellant as a “concubine” or “girlfriend” we disable ourselves from properly appreciating that her action is on behalf of persons who have a right to apply - a right which vested on the death of their father - and that the step that their mother took could indeed have been taken, not necessarily by her, but by any other next-friend of the two minors. The question here is not whether there is an issue between the caveatrix and the applicants as is the traditional approach, nor worse still, whether a man’s concubine can apply for letters of administration to administer his estate, thus raising the spectre of an unholy assault on the sanctity of marriage. No, these are wrong questions to ask in this case. The substantive issue is whether those issues, as “surviving children” (male or female, adult or infant), could apply for letters of administration. If they could, could it be done on their behalf? I am yet to be persuaded that the proper answer to these questions is “No”.

Per Adade JSC dissenting: Surely, the appellant’s presence cannot but be beneficial to all the beneficiaries, especially the minors, for if she should succeed to maximise the interests of her two minors, the share of every other child will also be maximised. After all, all the children, adults and minors, take equally. There is therefore no basis for charging the learned High Court judge with a wrong exercise of discretion on this score.

(4) By section 18 of PNDCL 111, a child was defined to include a “natural child”. The two infant children of the appellant were “children” within the language of PNDCL 111 and LI 1515 and were therefore entitled to share with others the assets of the estate of their deceased father. Once paternity was accepted that settled the entitlement of the children to their father’s estate. The main concern of the appellant was the distribution of the assets of the deceased, but in an application for letters of administration, the court was not required to specify the shares of the beneficiaries. In administration proceedings, the appellant, as the natural guardian, could apply to join to ensure that her issues got their due share of the estate. A caveat when the court was dealing with an application for the grant of letters of administration was totally uncalled for and the High Court ought to have ordered its removal. Coleman v Shang [1961] GLR 145, PC cited.

Per Amua-Sekyi, Hayfron-Benjamin JJSC contra: Repeatedly, concubines have been made joint administratrices with customary wives in order that they may protect the interests of their offspring. What makes the presence of the appellant unacceptable is not that she is a concubine but that the law does not recognise her children as having been lawfully begotten. The rule of interpretation is that words are to be construed in bonam partem, that is, they must be taken in their lawful and rightful sense. In conformity with this rule, the words “spouse” and “child” in PNDCL 111 must be construed as lawful spouse and lawful child. All children procreated in adultery by the deceased after he entered into the monogamous marriage, including the two children of the appellant, are illegitimate and not his children within the meaning of PNDCL 111. As always, the unsoundness of the contention that under PNDCL 111 illegitimate children are entitled to share, with the legitimate, the children’s portion of an intestate’s estate can best be seen by taking the argument to its logical and absurd conclusion. If the proponents of that view are right, the issue of an incestuous relationship between a father and his daughter would, on an intestacy, be entitled to an equal share in their grandfather’s estate with their mother, her brothers and sisters. Nothing

 would be more subversive of the institution of marriage or of the peace and harmony of society. Certainly if the institution of marriage is to be protected, then, for the good of society, we ought to call a spade a spade and be prepared to declare the status of children however so born. Neither the appellant nor her children have any interest in the estate.

Per Wiredu JSC. The word “illegitimate” or “bastard” as understood in English law strictly is unknown to customary law.

Per Hayfron-Benjamin JSC. Parties and counsel must know that the statement of the party’s case represents his brief and any or all the grounds stated in their notice of appeal must be fully argued therein or be deemed to have been abandoned. For this reason, alone I think I am entitled to dismiss this appeal. However, I will not do so because the appeal raises serious social and moral issues which ought to be addressed by this court.

Cases referred to:

Agyepong  Re,  Abosi v Poku [1982-83] GLR 254, CA.

Blankson-Hemans Re, Blankson-Hemans v Monney [1973] 1 GLR 464.

Bruyeres v Halcomb [1835] 3 A & E 381, 111 ER 484.

Coleman v Shang [1959] GLR 390 CA, affirmed, [1961] GLR 145, PC.

Essuman Re, Essuman v Teschmaker [1967] GLR 359, CA.

Gaskell v King (1809) 11 East 165, 103 ER 967, 12 Digest (Reissue) 359.

Holdbrook v Atta (1882) SFCL (1894) 184.

Akote, John Re, Afi v Ayisi DC dated April 5 1943.

Khoury  v Tamakloe  DC dated January 4 1950.

Khoury v Khoury  [1962] 1 GLR 98, SC.

Osenton (Charles) & Co v Johnson [1942] AC 130, [1941] 2 All ER 245, 110 LJKB 420, 165 LT 235, 57 TLR 515, HL.

Plange v Plange [1977] 1 GLR 312, CA.

Poh v Konamba (1957) 3 WALR 74.

Santeng v Darkwa (1940) 6 WACA 52.

Tanor v Koko [1974] 1 GLR 451, CA.

APPEAL to the Supreme Court from the decision of the Court of Appeal.

D O Lamptey for the appellant.

Amegatcher, with him, Kpatsa, Boafo (Miss) and Aryee for the respondent.

ADADE JSC. Major (rtd) Kwame Asante died on 3/4/90. A few months afterwards the surviving spouse, Letitia Asante, and the eldest son, Yaw Asante, applied to the High Court, Accra for letters to administer the estate of the deceased. Madam Mary Owusu, described as a concubine or a girlfriend of the deceased, applied to be joined as a co-grantee in the interest of her two children with the deceased, both of whom are minors. The customary successor, Philip Asante, also applied to be joined in his capacity as the successor. The latter’s application was not opposed but that of Mary Owusu was fiercely contested especially by Letitia Asante, the spouse. On 14/6/91, the High Court granted the letters of administration to all four applicants jointly.

Yaw Asante and Letitia Asante appealed to the Court of Appeal against the order of the High Court claiming principally that Mary Owusu had no locus standi in the proceedings and ought not to have been joined to the grant. Philip Asante did not appeal. Yaw Asante is said to have withdrawn his appeal on 15/2/92, nine days prior to the hearing of the appeal on 24/2/92, so that only Letitia Asante remained as the appellant in the Court of Appeal. In its judgment on 2/4/92, the Court of Appeal allowed the appeal and removed Mary Owusu from the grant. The present appeal is by Mary Owusu against the decision of the Court of Appeal. The respondent to this appeal is Letitia Asante, the spouse.

The case presents an interesting mix of facts, all of which are common ground. These may be briefly stated as follows:

(1) The deceased, Major Kwame Asante, died intestate on 3/4/90.

(2) The deceased is survived by: (a) a spouse, Mrs Letitia Asante, (b) nine children, (c) a parent, the deceased’s own mother, Madam Akua Asantewa and of course, (d) members of his extended family.

(3) The deceased left properties both inside and outside Ghana.

For the sake of the record and for a proper appreciation of this opinion, I hereunder reproduce the names of the nine children, together with their ages as at the date of death of their father, in so far as these are indicated in the record before us, as follows:

(i) Yaw Asante

(ii) Jacqueline Asante (22)

(iii) William A Asante

(iv) Nana Agyeiwaa Asante

(v) Julian Asante

(vi) Madeline Asante (15)

(vii) Gerald Asante (12)

(viii) Kobby Asante (10)

(ix) Amanda Asante (8)

Of these, Letitia has three, two, or may be all three, of whom are minors. Their identities are not known, but it seems that Gerald Asante (12) is one of them. Madeline Asante (15) has a different mother; Kobby Asante (10), and Amanda Asante (8) are children of Mary Owusu, the caveatrix. The remaining three children, including Yaw Asante, may belong to one mother. Yaw Asante is the eldest of all the children of the deceased.

Of the members of the deceased’s extended family two were identified in these proceedings are Philip Asante, described as the brother and the customary successor to the deceased, and Nana Owusu Sampa who is the head of the deceased’s family.

Before embarking on the merits of the appeal, I would like to take this opportunity to comment on a matter of some concern. The impression has been created that whoever gets a grant of letters of administration becomes entitled beneficially to the estate of the intestate. This appears to have accounted for the eagerness with which persons vie with one another for letters of administration, leading to interminable disputes and litigation. I am afraid the courts, by their pronouncements and general attitude to administration actions, have contributed in no small measure to creating this impression. There is nothing farther from the truth. A grant of letters of administration only entitles the grantee to administer the estate; it does not give him any beneficial interest whatever in the estate, which he does not otherwise have.

A grant in fact imposes on the grantee, not privileges, but legal obligations of a serious character, failure to discharge which may lead to grave consequences.

I wish that the courts emphasize these obligations in their rulings, rather than couch rulings and decisions in such form as to create the impression that the grant suddenly thrusts the grantee into a fortune. Moreover, it has not been unknown for grantees, after discovering that the estate, after all, is not a gold mine, to refuse to act or, at best, adopt a lackadaisical approach to their assignment.

Madam Mary Owusu is fighting to join the grant, because she believes that without her presence the children will have no protection, and will lose everything. Mrs Letitia Asante is fighting tooth and nail to keep her out for fear that the concubine may gain a foothold in the estate for herself over and above what the children may be entitled to, and she does not see why the concubine should seek to profit from the husband’s property. This is only an impression. I may be mistaken. However, reading the record and the arguments, this impression cannot escape me.

It has been noticed that courts do not seem to take much, if any, interest in the extent of the estate as declared by applicants, as well as the value attached to the items therein. We seem to adopt anything declared, well knowing that applicants would usually under-declare both the extent as well as the values. We assume that the list will be revised later for purposes of duties. Order 2 Rule 2(3) of LI 1515 enjoins the court to “as correctly as the circumstances allow ascertain the value of the moveable and immovable property of the deceased to be covered by the grant”.

Rarely is this exercise performed by the courts. In the instant case, it is interesting to note that the initial declaration of assets by the applicants made no mention of any bank accounts, whether in Ghana or elsewhere; that no inquiry was directed to finding out the status of No 8 Obetsebi Avenue, Airport, Accra, where the deceased had his final place of abode. Was it rented premises or is it part of the estate? There is nothing on record to verify the value of the company shares declared; and is it not strange that the wife had no knowledge either, of a single car owned by the husband?

As for the house in London, it is possible that the husband succeeded in concealing it from the wife, if she was not living in that house. But as soon as information about the house was revealed, be it by the concubine, some effort should have been made to ascertain its identity and status; so also ought some enquiry to have been made of the registration numbers and the whereabouts of the vehicles disclosed, since all these may form part of the residuary estate to be administered by the parties.

Without such inquiry preceding the final grant, where is the guarantee that any of the cars, if they do really exist, will be brought into account; or that any of the beneficiaries, especially the minors, will ever benefit from the London building, if it is in fact part of the estate?

It was not enough for the High Court to regret this “lack of full information”. The learned judge could have instituted some preliminary investigation before granting the letters of administration.

It has been said that a grant of letters of administration follows interest in the intestate. Accordingly, it will not be out of place to proceed from interest as a means of arriving at the grant.

This is an estate of an intestate. Accordingly, the estate falls to be divided, no matter who divides it, in accordance with the dictates of PNDCL 111. Section 1(1) of the Law states:

 “On the commencement of this Law, the devolution of the estate of any person who dies intestate on or after such commencement shall be determined in accordance with the provisions of this Law subject to subsection (2) of this section and the rules of private international law.”

Sections 3, 4 and 5 tell us how the estate is to be split up, in a situation such as the one with which we are here concerned. The term “child” (or its plural “children”) appearing in all three sections presented no problem to the High Court nor Court of Appeal, nor indeed to the parties and their counsel. All of them accepted the definition of “child” in section 18 of PNDCL 111 as:

“… includes a natural child, a person adopted under any enactment for the time being in force or under customary law relating to adoption and any person recognised by the person in question as his child or recognised by law to be the child of such person.”

In both the written and oral submission of counsel in this court, no issue was made of this definition. However, I cannot gloss over the fact that opinions have been expressed in some quarters that since the deceased died married under the Ordinance, “child” and “children” must be limited to “children” only who were born within wedlock; children born out of wedlock do not qualify to benefit under PNDCL 111. They fall within the customary law whereby a successor is liable to provide for the needs of “inherited” children. This interpretation implies that Letitia’s three children pass the test; the other 6 children do not.

This contention is based on an interpretation of rules 6 and 7 of Order 2 of the Probate and Administration Rules 1991 (LI 1515). Rule 6 says:

“Where the deceased died intestate on or after 14th June, 1985 the persons having a beneficial interest in the estate of the deceased shall be entitled to grant of letters of administration in the following order of priority —

(a) the surviving spouse;

(b) surviving children;

(c) surviving parents;

(d) customary successor of the deceased.”

Rule 7 states:

“Where the deceased died intestate on or after 14th June, 1985 then the order of priority for grant of letters of administration shall be as follows—

(a) where the deceased was married under the Marriage Ordinance (Cap 127) or was the issue of such marriage—

(i) the surviving spouse;

(ii) surviving children;

(iii) a surviving mother or father;

(iv) the customary successor of the deceased; or

(b) where the estate of the deceased devolved wholly under customary law—

(i) the customary successor of the deceased;

(ii) the surviving father or mother;

(iii) surviving children.” (Not applicable.)

The side notes to rule 6 read:

“Order of priority of grant where deceased died intestate after enactment of PNDCL 111.”

The side notes to rule 7 also state:

“Order of priority of grant where deceased was married under Cap. 127 or estate governed by customary law.”

The argument then runs that as rule 7(a) expressly mentions Ordinance marriages, rule 6 applies to marriages other than Ordinance marriages. Therefore, “surviving children” in rule 7(a) must have a different connotation from the same term as used in rule 6. The protagonists say that “surviving spouse” in rule 7(a) clearly means “surviving spouse of the Ordinance marriage”. Therefore “surviving children” in that rule must be understood to be limited to surviving children of the surviving spouse only, which in the case before us will be Letitia’s children only.

This argument looks attractive, but only superficially. My first attack on it is that both rules 6 and 7 deal with priority of grants only, not with the beneficial interest in the intestate estate. This latter is governed by PNDCL 111 which covers the estate of “any person” (whether married under the Ordinance or not, or whether he ever married at all in his life) who dies intestate on or after the commencement of PNDCL 111. The devolution of such an estate shall be determined as stated in Law 111.

Such a clear and unambiguous statement in a substantive enactment cannot be supplanted by a rule of procedure in a legislative instrument.

Secondly, that interpretation will seem to disinherit the surviving children of other Ordinance marriages of the same person, if any, if only because their mothers would not be “surviving spouses”, having died or been divorced, before the Ordinance marriage to the current “surviving spouse”. In the instant case, this means that if the deceased contracted an earlier Ordinance marriage, got a divorce (or the wife died) before the marriage to Letitia, the children of that earlier Ordinance marriage do not qualify as “surviving children” since their mother would not be a “surviving spouse”. This, to me, is the height of absurdity. We construe statutes to avoid absurdity, not to achieve absurdity.

Thirdly, by that interpretation, all children born out of customary associations, even those born prior to the marriage to Letitia, are automatically disinherited because they will not be the children of Letitia, the Ordinance “surviving spouse”. Notice that the argument has nothing to do with legitimacy or illegitimacy, as that even though under our general law, the customary children are legitimate, they will still not qualify under rule 7(1); and as for those customary children born out of wedlock, during the marriage to Letitia, their fate is beyond reprieve.

Fourthly, the interpretation becomes self-defeating as soon as it is linked to consideration of legitimacy, with a view to roping in children born before the Ordinance marriage, either customarily or to a previous Ordinance spouse, for it then becomes apparent that although “surviving spouse” in rule 7(a) may be limited to the current Ordinance spouse, “surviving children” in the same rule must have a wider meaning and must mean the same as in rule 6, viz all children, for the reason that all customary children as well as children born to a previous Ordinance spouse are legitimate.

Fifthly, it will be noticed that both rule 6 and rule 7(a) stipulate the same order of priority of grant in the same words, save that while rule 6(c) talks of “surviving parents”, rule 7(a)(iii) uses the phrase “surviving mother or father” as if to say that under rule 6 the grant must be to both parents together but that in rule 7 it must be to one or the other. But this is indeed not so, for under rule 8(2) it is provided: 

“2. Where two or more persons are entitled to a grant in the same degree the court may make a grant to any one of them without joining the others.”

Therefore, the effect of rule 6(c) and rule 7(a)(iii) is the same. It would seem to me that the distinction drawn by the makers of LI 1515 between rule 6 and rule 7 by introducing Cap 127 in one, and not the other, is a distinction without a difference. I concede that the distinction has created a confusion, which the Judicial Council, by its Rules Committee, may wish to look at and rectify.

Lastly, it is interesting to note that LI 1515 does not define “child” or “children”. For the definition we must fall on the parent enactment which, for our purposes is PNDCL 111, the definition which must control the use of that term in the relative procedural rules unless the contrary is expressly stated in the rules.

It follows from the little I have said so far, that I reject the argument that children must be limited to the children only of the current Ordinance “surviving spouse” or even to the expanded “legitimate children” only. As far as I am concerned “children” means what it says in Law 111 i.e. all the children, whether born before, during, or after wedlock, or acquired out of any form of marriage or association whatsoever.

In case anyone may be tempted to seek solace in the English Statutes of Distribution, it is enough to caution that that statute has no application to Ghana by virtue, inter alia, of the provision in section 20(1) of PNDCL 111 that:

“20(1) The Statutes of England relating to intestate succession applicable in Ghana immediately before the coming into force of this Law shall cease to apply.”

Therefore, the definitions of “wife”, “child”, etc in that English statute are useless to us here in Ghana. Both rules 6 and 7(a) of Order 2 of LI 1515 list the possible grantees in the same order of priority as follows:

(a) the surviving spouse,

(b) surviving children,

(c) surviving parent(s),

(d) customary successor.

As I understand this arrangement, it implies that in considering the person(s) to whom to grant letters of administration, the court must first look at the persons in each group in turn. If in the opinion of the court, all the circumstances considered, a competent and suitable grantee can be found in group (a) (the surviving spouse) the court need not go further. Indeed, if the surviving spouse is considered suitable, the court may grant administration to him/her alone, without joining anyone. If a suitable person cannot be found in group (a), then the court should proceed to consider the persons in group (b) (surviving children). If that group throws up a favourable candidate(s), the search may stop there. There is no obligation on the court to ensure that each group is, as it were, represented formally in the team to administer the estate. This is my understanding of observing an order of priority.

Further, “where two or more persons are entitled to a grant in the same degree the court may make a grant to anyone of them without joining the others”, (Order 2 rule 8(2), LI 1515).

A situation under this rule may arise not only with regard to group (b) (surviving children) or group (c) (surviving parents), but also to group (a) (surviving spouse), where, e.g. the deceased may have died married to, say 4 or 5 women under customary law.

The application of these principles is of course subject, inter alia, to the discretion conferred by section 79(2) of the Administration of Estates Act 1961 (Act 63) that “in granting administration the court shall have regard to the rights of all persons interested in the estate” and to section 77(1) of Act 63 that where minority interests are involved in the estate the grant cannot be made to less than two persons.

The High Court judge proceeded as though she was obliged, in addition to the spouse, to have a representative from each of the other groups, thus exposing herself to a lot of criticism from the respondents. However given the discretion mentioned above it cannot be said that she acted unlawfully in making the grant she did. Notice that under rule 8(2) supra, the court is merely not obliged to join more than one out of several persons in the same degree. However, the court is not prevented from doing so. Joining 2 or 3 persons in the same degree is not illegal, so long as the statutory maximum of 4 is not exceeded (section 77(1) of Act 63). It is all a matter of discretion, given the facts and circumstances of each particular case.

Given the interpretation of “children” I have advocated, Kobby and Amanda, among others, fall into the group of “surviving children” whether we are looking at rule 6 or rule 7. Any of these children in that 2nd priority group is entitled to apply for, and be granted, letters of administration, as indeed Yaw Asante has done.

If that person should happen to be a minor, then on general principles of law relating to actions by, or against minors, the application cannot be made by him directly, but by a guardian or next friend. Whether the court grants the application or not depends on the circumstances, bearing in mind that the final number of grantees should not exceed 4.

Supposing in this case the deceased had been survived by only Kobby and Amanda (in the 2nd priority group), and there was no “surviving spouse” (lst group), or the surviving spouse had refused to apply (see Order 2 rule 9, LI 1515), could it be seriously contended that no action could be taken by or on behalf of Kobby and Amanda? I view Mary Owusu’s action in that light. The fact that Yaw Asante has applied cannot prevent any other member within his group from applying, particularly as in the situation facing us, each cluster of children from one mother, strictly speaking, constitutes a sub-group within the larger group of “surviving children”.

By directing too much attention to the status of Mary Owusu as a “concubine” or “girlfriend” we disable ourselves from properly appreciating that her action is on behalf of persons who have a right to apply, a right which vested on the death of their father, and that the step their mother took could indeed have been taken, not necessarily by her, but by any other next-friend of the two minors. The question here is not whether there is an issue between the caveatrix and the applicants as is the traditional approach, nor worse still, whether a man’s concubine can apply for letters of administration to administer his estate, raising the spectre of an unholy assault on the sanctity of marriage. No, these are wrong questions to ask in this case. The substantive issue is whether Kobby and Amanda, as “surviving children” (male or female, adult or infant), could apply for letters of administration. If they could, could it be done on their behalf? I am yet to be persuaded that the proper answer to these questions is “No”.

For good reasons, I have not laid this argument under Order 8 of LI 1515 where different considerations apply.

As stated earlier, this issue of grant may also be approached from the angle of interest. The question of interest is dictated and fixed for us by PNDCL 111.

Under section 3, the surviving spouse, that is Letitia Asante, and all the children are “entitled absolutely to the household chattels of the intestate”. These chattels have been defined in section 18 as follows:

“…’household chattels’ include jewellery, clothes, furniture and furnishing, refrigerator, television, radiogram, other electrical and electronic appliances, kitchen and laundry equipment, simple agricultural equipment, hunting equipment, books, motor vehicles other than vehicles used wholly for commercial purposes, and household livestock”.

If the deceased has only one house, there would be no difficulty as to what this means. However, if the deceased had more than one house then what does “household chattels” mean? Will these include all the chattels in all the houses, or only the chattels in the house the beneficiaries may select under section 4? This is a matter that may be of interest on a future occasion since the final size of the shares of the spouse and children may depend on whether they take all the chattels or some fall into the residue to be shared with others. For the purpose of this case, I will limit the chattels to only those in the house which the wife and children may choose.

Where the house chosen is not a dwelling house (see below) then “household chattels” may be related to the matrimonial home or the deceased’s last known place of abode or both. These chattels belong to the beneficiaries in equal shares. Therefore each of the now known ten beneficiaries (Letitia and the nine children) is entitled to a 1/10 share of the chattels. Under section 4, the ten beneficiaries, Letitia and the nine children, are entitled to one house, selected by them or, as the case may be, selected for them by the High Court. The said section reads as follows:

“4. Notwithstanding the provisions of this Law:

(a) where the estate includes only one house the surviving spouse or child or both of them, as the case may be, shall be entitled to that house and where it devolves to both spouse and child, they shall hold it as tenants-in-common;

(b) where the estate includes more than one house, the surviving spouse or child or both of them, as the case may be shall determine which of those houses shall devolve to such spouse or child or both of them and where it devolves to both spouse and child they shall hold such house as tenants-in-common:

Provided that where there is disagreement as to which of the houses shall devolve to the surviving spouse or child or to both of them, as the case may be, the surviving spouse or child or both of them shall have the exclusive right to choose any one of those houses; except that if for any reason the surviving spouse or child or both of them are unwilling or unable to make such choice the High Court shall, upon application made to it by the administrator of the estate, determine which of those houses shall devolve to the surviving spouse or child or both of them.”

If all the children belonged to Letitia, this exercise would be a simple one. The selection, in all probability, would be done by the mother. In this case, at least four mothers are involved, and all the children did not live under the same roof with Letitia during the life of their father. Remember that apart from Yaw Asante, Letitia says she learnt of all the other children only after the husband’s death, when they were revealed to her by the deceased’s head of family, Nana Owusu Sampa. Therefore, there is no likelihood that these and other children will move to the household of Letitia and her children.

From section 4 it appears that the intention of the law makers is to enable the surviving spouse and children to have a habitable dwelling house, especially when this section is construed along with the provisions of the Intestate Succession (Amendment) Law 1991 (PNDCL 264), which deals with the improper ejectment of spouses and children from the matrimonial home. However, in a situation where all the indications are that the spouse and the children cannot live together, it is unreasonable to limit the definition of “house” in section 4 of Law 111 to a dwelling house. In such circumstances I will be quite prepared to give “house” an expansive meaning to include “commercial and other houses” for the simple reason that the beneficiaries will be interested more in the size of their share in the house, than in the amenities in a dwelling house.

Section 5 of PNDCL 111 reads as follows:

“Where the intestate is survived by a spouse and child the residue of the estate shall devolve in the following manner:

(a) three-sixteenth to the surviving spouse;

(b) nine-sixteenth to the surviving child;

(c) one-eighth to the surviving parent;

(d) one-eighth in accordance with customary law.

Provided that where there is no surviving parent one-fourth of the residue of the estate shall devolve in accordance with customary law.”

Therefore by section 5 of PNDCL 111, the remainder of the estate, including all the other buildings, the 100 plots, the company shares the bank accounts etc, will, subject to the payment of debts and other liabilities, be divided into sixteen equal parts. The spouse will have 3 out of these 16 parts; the 9 children will take 9 parts; the deceased’s mother will take 2 parts; and the deceased’s successor 2 parts. As the children are 9, this means that each child will take 1/16 of the total residuary estate.

Surely, barring agreements, compositions, concessions, etc, the only way in which the residuary estate can be divided in the manner described above is to convert it into money to be divided equally, as stated. In all this, it is necessary that all beneficiaries are duly consulted, and that they participate. This is why, where minors are involved, there is the need for some adult person to stand in for them to oversee their interests.

For instance, if it comes to which of the houses to choose for the spouse and the children, under section 4 of PNDCL 111, considerations of value are bound to predominate over considerations of comfort and convenience, since as far as a number of the beneficiaries are concerned they are not going to live in the house anyway. Their concern therefore (as obviously will be the concern of the “minor” children of Mary Owusu) will be to maximise their share of the property, in money terms. Some adult persons will have to see to this, to ensure that the choice falls on the house with the highest money value. The figure or proceeds will then be divided into 10 equal parts for Letitia and the 9 children, each of whom becomes entitled to one part. By some form of agreement, it may be possible to divide some of the items physically, instead of converting them into money, for instance, the 100 undeveloped plots on the Nsawam road. These form part of the residue to be divided into 16 portions. If so divided, each portion will contain at least 6 plots.

Under section 5 of PNDCL 111 therefore Letitia will be entitled to 18 of the plots (3 x 6); each child, 6 of the plots; the mother 12 plots, and the successor 12 plots; there will still remain 4 plots (that is 100 ¸ 16 = 6, remainder 4), which the beneficiaries may sell along with the other properties and divide up according to the formula in section 5.

From the discussion above on the respective interests of the parties, we know that the three extra-marital minors are entitled to:

(a) 3/10 share of the value of the household chattels, under section 3 of PNDCL 111;

(b) 3/10 share of the value of whichever house will be selected, under section 4 of PNDCL 111;

(c) 3/16 share of the value of the residue of the estate, which will include at least 18 out of the 100 plots on the Nsawam Road.

Thus from what has been disclosed so far of the estate, it is plain that the totality of these interests must, in money terms, be colossal. The sum total of these interests exceeds the interests of the surviving parent and successor combined. The High Court judge described the estate as “this large estate”. Mary Owusu has two out of the three minors, and her two minors are the juniors in that group. If the interests of these three minors are to be protected and maximised there is the need to ensure that the full extent of the estate is brought into account and at the correct values. Surely, a court looking at a situation like this will feel the need to have someone to shepherd the interests of these minors.

The learned judge chose, in her discretion, to add Mary Owusu. I will not say that this is a wrong exercise of discretion especially going by the arguments and the reasons she gave. She was reluctant, in the beginning, but in the end found it necessary to do so. The Court of Appeal has said it was not necessary to bring in Mary Owusu for the purpose of protecting the interests of her children. But that is far from saying that it was illegal to do so. It may be that another judge might rather look less favourably on the inclusion of the successor, seeing that his share is a mere 1/8 (i.e. 2/16) of the residue, far less than the share of even the two minors of Mary Owusu alone. Even so, the fact that another judge might have done it differently does not mean that the learned High Court judge exercised her discretion unlawfully.

Further, it would appear from the record that the spouse is normally resident “in the United Kingdom”, where she “lives and works”, and that the other one, Yaw Asante, is also normally resident outside Ghana - facts which might have prompted the High Court judge to order: “The applicants to stay in the country until the distribution is completed”.

This order was made on 16/1/91, long before Mary Owusu entered the proceedings. It shows the extent of the concern of the learned High Court judge. I am aware that the grantees are entitled to appoint resident attorneys, but surely, no one wants to create a situation where virtually every decision about the estate may have to be referred to London or elsewhere for instructions. Such a situation will be inconvenient for all beneficiaries, particularly, the “resident” minors whose maintenance and educational needs will definitely suffer.

When Mary Owusu entered, more facts came out, including facts about the estate, all of which the learned judge considered in her final ruling of 14/6/91, granting administration to the four, including Mary Owusu. The Court of Appeal modified the grant made by the High Court, by removing Mary Owusu as a co-grantee. I have studied the ruling of the Court of Appeal but, I am afraid, I cannot find one single legal reason for the course it took. The court, with the greatest respect, proceeded largely on sentimental grounds.

The lady had sought to join the grant, not in her own right, as a beneficiary, but as deposed in paragraph 4 of her affidavit of 12/2/91, “to enable the interests of the children [i.e. her 2 minors] to be adequately and justly protected”. The Court of Appeal appreciated this, but then proceeded to disturb the order of the High Court on grounds that:

(a) the mothers of other minors too should have been considered for joinder;

(b) there will be difficulty in administering the estate if the “girlfriend” were to be a co-grantee;

(c) the High Court judge was wrong to change her order of the 16/1/91, by which she had already made a grant to Letitia and Yaw Asante.

On ground (a) it must be noted that apart from the minors of the spouse and Mary Owusu, there is only one other minor, Madeline, aged 15. The mother did not apply. Maybe she was satisfied with the arrangements in respect of Madeline or maybe she even had not the slightest knowledge of the proceedings or maybe she is not alive. The record does not say which. But the fact that one mother did not apply cannot be a legal ground for refusing Mary Owusu’s application. On this, the leading opinion in the Court of Appeal had this to say:

“It is not an easy task for an appellate court to disturb the exercise of discretion by a trial court. In this case however as the deceased had other children whose interests ought to be taken into account, the inclusion of the caveatrix for the sole purpose of protecting the interest of her children is in my view a wrong exercise of discretion for it did not take into account the interest of the other children.”

This was the learned judge’s only reason for upsetting the High Court’s order; he gave no other reason. The supporting opinion in the Court of Appeal expressed similar sentiments as follows:

“The question is: What about the other children whose mothers were not brought in? Apart from Yaw Asante, there should be two or more other mothers. Why did the judge not consider that their interest needs to be protected? Or, is it only the respondent’s two children whose interest should be protected? Indeed the trial judge found that:

“It is convenient therefore that all the children are represented by one person out of their number.”

And the judge found also that:

“The eldest child fortunately has other siblings and as such is obliged to protect their interest. In view of these findings made by the judge, why did she single out the respondent’s children for special treatment? I do not think that this is fair to the other children. If the judge was minded to exercise her discretion judicially, then the logical thing was to order that each child with a different mother than the widow should be represented in the administration by either his or her mother or by a guardian.”

I am afraid I do not, with respect, regard the reasons advanced by the Court of Appeal as legal reasons for removing the caveatrix from the grant. Surely, Mary Owusu’s presence cannot but be beneficial to all the beneficiaries, especially the minors, for if she should succeed to maximise the interests of her 2 minors, the share of every other child will also be maximised. After all, all the children, adults and minors, take equally. There is therefore no basis for charging the learned High Court judge with a wrong exercise of discretion on this score.

As regards ground (b) the Court of Appeal took the view that the spouse, as it were, cannot “co-exist” with the “girlfriends”. The learned justices purported to rely on Re Blankson-Hemans, Blankson-Hemans v Monney  [1973] 1 GLR 464 at 469, which, in my view is of little, if any, help anyway. The court ignored the fact, conceded by the respondents in their answer filed on 29/3/93, that:

“… when the beneficiaries are neglected or their interest not catered for as required by law…they would be entitled to institute an action against the administrators to enforce their rights.”

As things stand, if an action is to be instituted in respect of the interest of the two minors, it will be by the caveatrix as their mother and next friend; so that keeping her out now amounts to no more than postponing the evil day. Does prudence not dictate that it is better to keep her in now, counsel harmony and co-operation on all sides, in the hope that being a party to the distribution, she will be less likely to light fires later, rather than keep her out, raise the level of suspicion, lay the foundations for a confrontation, and dispose her to go to court? At that stage, the spouse cannot avoid the “co-existence” - the two will have to meet to talk about the estate.

On ground (c), the Court of Appeal, with respect, mistakenly regarded the ruling of 16/1/91 as a final ruling in the matter. It was not. That ruling was in the nature of an order nisi. The full order reads as follows:

“By Court: Application granted. 14 days notice. Of the 6 minors, three belong to the widow. The other three belong to other women. These three are aged 15 years (Madeline), 10 years (Kobby) and 8 years (Amanda). The applicants are hereby charged to administer this large estate according to law. The applicants to stay in the country until due distribution is completed.”

The High Court was merely asking the applicants (at that stage only the spouse and Yaw Asante) to file the requisite notices for fourteen days, as required in Order 2 rule 3, LI 1515, and if no new matters cropped up thereafter the application for letters of administration would stand granted in terms of the order made. In other words, the learned judge was saying to the applicants: “This is my order, unless…” i.e. unless any new matters should come up as a result of the notices. It is clearly an order nisi; so that when, following the notices, Mary Owusu and Philip Asante, the successor, intruded, the judge was bound to consider the new circumstances and make what seemed to her to be appropriate orders.

The Court of Appeal, with respect, completely misappreciated the position. For instance the supporting opinion, after referring to the order of 16/1/91 granting the administration to the spouse and Yaw Asante, commented as follows:

“Note that Kobby and Amanda are the 2 children of the caveatrix whose interest she wants to protect. The judge did not seem here to see anything wrong with the administration of their portion of the estate being entrusted to their stepmother and elder brother. The trial judge, however, seems later to have forgotten about this state of affairs, for, in her ruling [of 14/6/91] joining the caveatrix as an administratrix, she made the following remarks…”

and he proceeded to quote the judge’s remarks concerning Mary Owusu’s application for joinder.

The learned justices of Appeal regarded the order of 16/1/91 as a final order, and held the view that it was not open to her to later seek to change her view. This surely is, respectfully, a wrong interpretation of the order of 16/1/91. For if that order were final, terminating the proceedings, there would be no point in the order to file notices for 14 days; to what purpose?

If I seem to have spoken at some length on a matter which others may deem trivial, it is because I have a feeling that far too much time, energy and other resources are literally wasted on administration actions in these courts. After PNDCL 111 administration has reduced itself into an exercise in mathematics; personal representatives and customary successors no longer enjoy that pride of place which belonged to them in the past. Notwithstanding section 1(1) of the Administration of Estates Act 1961 (Act 63), the property of a deceased person no longer devolves on his personal representative or successor; it devolves according to PNDCL 111 and here too the shares of beneficiaries are so defined with such mathematical precision that it is pointless for anyone to fight over a grant of letters of administration just to be saddled with the responsibility of supervising the distribution.

For the purpose of reducing litigation, if for no other purpose, I wish that some changes were made in the law to the effect e.g. that on the death of any person intestate, anyone at all, especially any beneficiary, may apply to the court to appoint any competent person(s) to do the distribution to the beneficiaries. With regard to small estates in our villages and small communities, the choice may fall on any person within the village - an elder, the linguist, the village schoolmaster, the catechist or any respectable person. With large and complicated estates, such as the one in this case, the court may appoint a firm of accountants, or of management consultants, to do the winding up of the estate - after all this is what administering an intestate estate comes to. In the long run it may be cheaper to entrust this work to professionals, than to encourage beneficiaries to squabble it out among themselves.

In the instant case, issues affecting the bank accounts, company affairs and company shares, valuation of real property, etc are bound to be handled by experts. Why can’t they be formally brought in at the very inception and be paid a fee fixed by the court? It is obvious, for all the above reasons that I will allow the appeal but send the case back to the High Court with directions:

(a) that a proper and revised inventory be filed, every person, especially the beneficiaries, being entitled to file also in the court particulars of all assets known to him to be part of the intestacy;

(b) that seeing that a number of the grantees are resident outside Ghana, the successor, rather than the caveatrix, be dropped and, in his place,

(c) the Registrar of the High Court be appointed a co-grantee, with sufficient powers, including powers to sign or countersign cheques, as the judge may in the circumstances deem fit.

This arrangement will ensure, inter alia:

(a) that as far as possible the full extent of “this large estate” is disclosed;

(b) that the maintenance and educational concerns of the children, particularly the “resident” minors, are not unduly prejudiced, and

(c) that the estate is more efficiently and quickly wound up.

I allow the appeal; the costs, if any, to be paid out of the estate.

ABBAN JSC. It is with regret that I am not in agreement with the decision arrived at by my brother Adade JSC in this matter. The proceedings which have culminated in this appeal commenced in the High Court, Accra with an application for a grant of letters of administration in respect of the estate of the late Kwame Asante who died intestate on 3 April 1990. He was survived by his wife, Mrs Letitia Asante and about seven children, six of whom, at the relevant time the application was made, were minors. The widow, Mrs Letitia Asante, and the eldest son of the deceased, Yaw Asante, originally applied to the High Court under Order 60 rule 1 of the High Court (Civil Procedure) Rules 1954 (LN 140A) for a joint grant of letters to administer the estate of the deceased.

In their supporting affidavit, they swore that “we shall faithfully administer his estate and distribute it according to law”. (My emphasis.)

On 16 January 1991, the High Court granted the application and ordered that the usual notices should be posted for fourteen days. The order was in the following terms:

“By Court: Application granted. 14 days notice. Of the six minors, three belong to the widow. The other three belong to other women. These three are aged 15 years (Madeline), 10 years (Kobby) and 8 years (Amanda). The applicants are hereby charged to administer this large estate according to law....”

Before the fourteen days expired, one Miss Mary Owusu entered a caveat. It is to be noted that Mrs Letitia Asante, the widow, is not the mother of Yaw Asante. He is a step-son to Mrs Letitia Asante.

However a warning was served on Miss Mary Owusu, who later filed an affidavit of interest. Paragraphs 2, 3 and 7 of that affidavit stated as follows:

“2. That the deceased Major (rtd) Kwame Asante had, during his lifetime, two children by me, both minors.

3. That the names and ages of the children do not appear in the affidavits in support of the applicant’s application for letters of administration.

7. That I am advised and hereby believe the same to be true that the interests of the 6 children would either be jeopardised or suffer severe disadvantage if there is no one to protect their interest in the administration of their late father’s estate.” (My emphasis.)

In a subsequent supplementary affidavit, paragraph 8, Miss Mary Owusu deposed:

“That I am advised and verily believe same to be true that since under PNDCL 111 my children have an interest in the estate

of their father, that interest can only be better protected by me and no one else.” (My emphasis.)

The widow and Yaw Asante moved the court to remove the caveat from the file. That motion was fully argued and adjourned for ruling. But before the court could give its ruling, one Philip Asante, a brother and the customary successor of the deceased, applied to be joined. In his affidavit supporting the application, the customary successor disclosed that the deceased had two other children born to the deceased by other women; thus bringing the total number of the children to nine, including Yaw Asante.

On 14 June 1991 the court finally gave its ruling joining the customary successor and Miss Mary Owusu to the widow and the eldest son, Yaw Asante, as administrators and administratrices of the estate. The son, Yaw Asante, and the widow, Mrs Letitia Asante, being dissatisfied with the decision joining Miss Owusu, appealed to the Court of Appeal. On 2 April 1992, the Court of Appeal, in a unanimous judgment, allowed the appeal and excluded Miss Mary Owusu from the administration of the estate of the deceased.

Miss Mary Owusu appealed against the judgment of the Court of Appeal to this court. So in this court, Miss Mary Owusu is the appellant while Mrs Letitia Asante, the lawful surviving wife of the deceased, is the respondent.

It is significant also to observe that the two minors of the appellant, Kobby, aged 10 years and Amanda, aged 8 years, whose interest the appellant was so anxious to protect, were specifically mentioned as beneficiaries of the estate in the High Court order of 16 January 1991; and this was long before the caveat was entered. In that order the High Court enjoined Mrs Letitia Asante and the eldest son, Yaw Asante to “administer the estate according to law”.

The Probate and Administration Rules 1991 (LI 1515) has laid down rules as to the order of priority of grant of letters of administration where the deceased died intestate. It is interesting to note that provisions have been made in Order 2 rule 7 of LI 1515 for the situation where the intestate was married under the Marriage Ordinance (Cap 127). Apparently Order 2 rule 6 of LI 1515 deals with priority of grant in other cases.

In the present case, it was never disputed that the late Kwame Asante was married under the Marriage Ordinance and so Order 2 rule 7 should govern the order of priority of grant in respect of his estate. It provides as follows:

“Where the intestate died on or after 14th June, 1985 then the order of priority for grant of letters of administration shall be as follows—

(a) Where the deceased was married under the Marriage Ordinance, (Cap. 127) or was an issue of such marriage—

(i) the surviving spouse;

(ii) surviving children;

(iii) a surviving mother or father;

(iv) the customary successor…”

Mrs Letitia Asante is the lawful surviving spouse of the deceased and she therefore falls within the first priority. The customary successor, Philip Asante, comes within the fourth priority.

The appellant admittedly was a concubine of the deceased, and had the two children with the deceased while the marriage of the deceased with the surviving spouse, Mrs Letitia Asante, was subsisting. Indeed, the appellant could not pretend to have any interest in the estate except, as she alleged, to join the respondent to oversee the interest of her said two children who are still minors.

In the statement of case, the appellant made several criticisms of the judgment of the Court of Appeal for excluding her from the administration of the estate. It was argued that the Court of Appeal removed the appellant without considering how the interest of her two minors could be protected by Yaw Asante who has a different mother. It was further submitted that the Court of Appeal did not give due consideration to Order 2 rule 8(3) of LI 1515. Because the appellant, representing two minors falls within the same degree with Yaw Asante, and the caveat which the appellant entered raised a dispute as envisaged by Order 2 rule 8(3) of LI 1515 and so the High Court having summarily dealt with the matter, had exercised its discretion in joining the appellant as an administratrix and the Court of Appeal should not have interfered with that discretion.

Pausing here for a moment, I think on the contrary, the learned High Court judge did not follow what Order 2 rule 8(2) and (3) of LI 1515 required of her when she added the appellant. If the argument of the appellant that she, the appellant, and Yaw Asante were in the second category in the order of priority is accepted, then the High Court rather erred in joining the appellant when the provisions in Order 2 rule 8(2) of LI 1515 clearly required that in such cases it would be sufficient to make a grant to only one of them “without joining the others”. By joining the appellant whose children were in the same degree with Yaw Asante, the High Court made a grant to two persons in the priority two, contrary to the provisions of Order 2 rule 8(2).

Order 2 rule 8(2) of LI 1515 provides that:

“Where two or more persons are entitled to a grant in the same degree the court may make a grant to any one of them without joining the others.” (My emphasis.)

The learned High Court judge did not seem to appreciate the mischief which Order 2 rule 8 (2) intended to avoid. The rule was intended to avoid the situation where all those entitled to grants in the same degree would be given a joint grant. The court was required to select one person from that class to whom a grant should be made to cater for the interests of all the persons who fall within that class.

At the time the appellant entered her caveat, and later asked to be joined, the High Court had already selected Yaw Asante who is in the same degree with the appellant’s children, and, for reasons which will be given later on, the learned judge wrongly exercised her discretion in adding the appellant.

The further contention of the appellant is that the caveat entered by the appellant on behalf of the two minors, was against Yaw Asante alone and so a dispute arose between Yaw Asante and the appellant. It was therefore “a dispute between persons entitled to a grant in the same degree” as envisaged by Order 2 rule 8(3) and the High Court, had summarily dealt with that dispute and exercised its discretion in favour of the appellant and so the Court of Appeal again erred in interfering with the exercise of the discretion.

The affidavit of interest, which the appellant filed after she had been served with the warning to disclose her interest in the estate, exposed the fallacy of this argument. In paragraph 5 of that affidavit the appellant disputed the competency of the widow, Mrs Letitia Asante, to administer the estate and went on in that paragraph to state that “it is hard to imagine how Mrs Letitia Asante can effectively and conveniently manage the estate of late Major Kwame Asante from the United Kingdom where Mrs Letitia Asante lives and works”.

On the face of this paragraph, how could it be argued that the appellant disputed only the grant made to Yaw Asante and so the dispute was only between Yaw Asante and the appellant? Order 2 rule 8(3) provides that:

“Where there is a dispute between persons entitled to a grant in the same degree the court shall summarily determine such dispute and may make a grant to such of them as it considers fit.” (My emphasis.)

The appellant never raised any issue or dispute between herself, as the representative of her two children on one hand, and the eldest adult son, Yaw Asante, on the other, so as to become “a dispute between persons entitled to a grant in the same degree” as contemplated under Order 2 rule 8(3) of LI 1515. The whole tenor of the appellant’s affidavit of interest which she filed in the High Court rather raised a dispute between the appellant and Mrs Letitia Asante, who incidentally is not in the same degree with the appellant’s children. So how could there be “a dispute between persons entitled to a grant in the same degree”?

The High Court was therefore not obliged or required, in the circumstances, to resolve any dispute summarily in terms of Order 2 rule 8(3) of LI 1515. Indeed it would have been a grave and unpardonable error on the part of the High Court if its decision to join the appellant was as a result of a determination made in pursuance of Order 2 rule 8(3) of LI 1515.

I have to observe that it is true that under Order 2 rule 8(2) and (3) discretion is given to the court and so the court can exercise its discretion as to which of those persons “entitled to a grant in the same degree” should be selected and given the grant. But I am of the view that in matters of this nature, where large estates are involved, when exercising the discretion several factors must be taken into account; and these should include the suitability of the person to be selected and also his ability to administer the estate expeditiously and economically.

It is therefore important that when dealing with an application for the grant of letters of administration, if rival claimants are involved, the court should lean favourably towards the one who is most suitable and who is also likely to achieve the objectives just stated above; and must frown on the claimant, whose sole purpose for seeking to be joined, is his or her desire to act as a watch-dog over the interest of a section of the beneficiaries.

The inclusion of a concubine, like the appellant, would rather retard the speedy administration of the estate. Her only objective in seeking to be involved in the administration is to safeguard the interest of only two of the beneficiaries and not to assist in the proper and efficient administration of the estate as a whole.

As already stated, the only basis upon which the learned High Court judge joined the appellant to the surviving widow, Mrs Letitia Asante, the eldest son Yaw Asante and the customary successor, Philip Asante, was to offer the appellant the opportunity to protect the interests of her two infant children, Amanda and Kobby.

The reason for the joinder is not sound for several reasons. The appellant was a concubine of the deceased and she had no locus standi in the matter. She had no right whatsoever to ask for a grant of letters of administration to administer the estate of the deceased. The appellant does not fall within any of the categories with regard to order of priority of grant as set out in Order 2 rule 7 of LI 1515.

However, the appellant claimed that she was representing her two minor children, and the two minors come within category two of the order of priority, namely “surviving children”.

Yaw Asante whose mother is not the surviving spouse, is an adult and before the caveat was entered, the High Court had already joined him to the surviving spouse to “administer the estate according to law”. See the order of the High Court, which I fully quoted earlier on in this judgment. To all intents and purposes therefore, Yaw Asante had been selected to represent the “surviving children” who “are entitled to a grant in the same degree”.

There was nothing on the record to show that he could not protect the interests of his half-brothers and half-sisters. The learned High Court judge, rightly in my view, held that it “is convenient therefore that all the children are represented by one person out of their number”; and having already selected Yaw Asante, the learned judge should not have gone back on her word to add the appellant; and especially where the learned judge herself had also found that Yaw Asante the “eldest child fortunately has other siblings and as such is obliged to protect their interest”.

In other words, there was no necessity and no compelling reasons to join the appellant when Yaw Asante had been found capable of overseeing and protecting the interests of all the minors including the two children of the appellant.

As already stated elsewhere in this judgment, even the joinder of a concubine as an administratrix has the potential of creating inconvenience and confusion, which could delay the administration of the estate. Because nothing prevents the mothers of the other minors also from applying to the court to be joined “in order to protect the interests of their children”; and there could be no good reasons for the court to refuse such an application. I agree with Essiem JA when in the course of his judgment in this case in the Court of Appeal, he said:

“In this case however as the deceased had other children whose interest ought to be taken into account, the inclusion of the caveatrix for the sole purpose of protecting the interest of her children is in my view a wrong exercise of discretion for it did not take into account the interest of the other children.”

If the learned High Court judge did not find anything wrong with entrusting the protection of the interests of the other minors to their half-brother, Yaw Asante, why must the learned judge give different consideration when it came to the children of the appellant? There were no peculiar circumstances to compel the learned judge to single out the appellant’s children for special treatment. Indeed, I could not find any valid reasons for distinguishing between the infant children of the appellant and the other infant children belonging to the other women.

In the circumstances, it was wrong in principle for the learned High Court judge to discriminate or to bend unduly in favour of the children of the appellant and, in the result, accede to the appellant’s request. This is more so as the learned judge gave unnecessary weight to irrelevant matters upon which she founded her decision. There could therefore be no legal justification for that decision. A judge’s discretion is not exercised simplicter, but in conformity with well-established principles. See the instructive dictum of Viscount Simon in Osenton (Charles) & Co v Johnson [1942] AC 130, HL at page 138 which was approved by the Supreme Court in Khoury v Khoury [1962] 1 GLR 98.

In my view therefore, the learned judge’s decision to join the appellant in the grant was a wrongful exercise of judicial discretion and the Court of Appeal was right in reversing it. Since there was no dispute that the deceased in his lifetime recognised each of Miss Mary Owusu’s children as his, each of the two minors comes within the definition of “child” as provided in section 18 of Intestate Succession Law 1985 (PNDCL 111). Thus when it comes to the distribution of the assets, the portion due to all the surviving children, including the appellant’s children, will be shared equally among them and “in accordance with law”.

A careful study of the appellant’s affidavit of interest will not fail to reveal that her main concern is in respect of the distribution of the assets of the deceased. But in an application for letters of administration, the court does not embark on specifying the shares of the beneficiaries. That is, it is not at all necessary in considering an application for letters of administration to spell out in detail the shares of those entitled under distribution. It is more appropriate to do this in administration proceedings. Similar views were expressed by the Privy Council in Coleman v Shang [1961] GLR 145, PC. At page 151 it was stated:

“... [T]he Court of Appeal appear to have gone rather further than was necessary for the decision of the application for a grant of letters of administration in setting out in some detail the shares of those who will be entitled in the distribution. Such matters are more appropriate to administration proceedings…”

Thus, it is when the court is engaged in the administration proceedings that the appellant may come in, if necessary, as the natural guardian to see that her minors get their due share of the estate. But her intervention by way of caveat at the stage when the court was dealing with an application for the grant of letters of administration, was totally uncalled for, and the High Court should have ordered the caveat to be removed from the file without much ado.

I must at this stage emphasize two important matters. Firstly, the fact that the appellant is the mother of the two minors should not be the sole criterion for adjudging her the only suitable person to protect the minors’ interest. Secondly, the courts must adopt a very cautious attitude in dealing with matters like this one. Because if care is not taken sooner or later the courts would be inundated with applications for letters of administration in respect of estates of deceased persons by their concubines who had children with these deceased persons, under the pretext that they want to protect the interests of their infant children in the estates of their putative fathers. I think this would not augur well for public morality and decency.

It was finally submitted that the dispute in this matter was between the appellant, as the representative of her two minors, and Yaw Asante; and so as soon as Yaw Asante withdrew his appeal while it was pending in the Court of Appeal, there was no Appeal for determination and the Court of Appeal wrongly entertained the appeal.

I have already demonstrated that the appellant in her affidavit of interest disputed the ability of the respondent, Mrs Letitia Asante, to administer the estate without her, the appellant. As a matter of fact the appellant’s said affidavit went on to allege that the appellant was the only person who could protect the interest of her two children in the estate. It was therefore clear that the appellant raised an issue as to the competency of Mrs Letitia Asante to manage the estate fairly so that her two minors would not suffer any prejudices; and the ruling of the High Court on the matter reflected unfavourably on both Mrs Letitia Asante and Yaw Asante.

So both of them, being aggrieved parties, could appeal to the Court of Appeal; and the fact that in the Court of Appeal one of the two aggrieved parties withdrew his appeal, should not prevent the other party from pursuing hers.

I find no substance in all the grounds of appeal. I would therefore dismiss it with costs to the respondent.

AMUA-SEKYI JSC. The mischief or defect in the law which the Intestate Succession Law 1985 (PNDCL 111) sought to suppress was the hardship caused to widows and children when men whose estates were governed by the matrilineal law of inheritance died. By that law, children of a deceased male belong to their mother’s family and were not entitled to a share in their father’s estate. The remedy was found in section 48 of the Marriage Ordinance (Cap 127) which had made provision for widows and children of deceased persons whom during their lifetime contracted marriages under the Ordinance or were the issues of such marriages. It was not the intention to blur the distinction between monogamous and polygamous marriages, between wives and concubines, or between legitimate and illegitimate children; on these matters the law remains the same.

A marriage contracted under the provisions of the Ordinance is monogamous. In other words, the parties are not permitted, during the continuance of the marriage, to marry any other person under the Ordinance or under any other system of law. Any such marriage is bigamous and may be punished under Part IV Chapter 6 of the Criminal Code 1960 (Act 29). However, if the Ordinance marriage comes to an end through divorce or death, the partners, or the survivor of them, as the case may be, may enter into a marriage under the Ordinance or customary law with any other person. A person who is married under customary law may contract a

 marriage under the Ordinance with his wife. If he has more than one wife, he may marry one of them under the Ordinance after divorcing the others. If he desires to marry another person he may do so only after he has divorced all his customary law wives: section 44 of Cap 127. A child procreated in adultery by a person married under the Ordinance is illegitimate: section 49(1) of Cap 127; see also Coleman v Shang [1959] GLR 390 CA, affirmed, [1961] GLR 145, PC.

Marriages contracted under customary law are potentially polygamous. Although a woman may have only one husband, a man may have more than one wife. Concubinage is also recognised even though the parties have no rights against, or duties towards, each other. As Sarbah put it at page 51 of his Fanti Customary Laws; “women are frail, though the desire to have issue is keen in them, and men are deceivers ever”. Therefore, a child born to an unmarried man, or to a man married under customary law, and his concubine is legitimate: Yaotey v Quaye [1961] GLR 573.

Both by custom and by the statutory provisions the following are illegitimate: a child born to a man and another man’s wife; a child born to a man and any woman in consequence of a crime, such as rape, committed upon her; a child born to a man and his daughter or sister or other person within the prohibited degrees of affinity and consanguinity.

In the first and second cases, the child may be legitimated by the subsequent marriage of its parents. In the third, public policy permits of no such compromise and the child cannot under any circumstance be regarded as the legitimate offspring of the offender. It would, in this day and age, be unthinkable for the issue of an incestuous relationship between a man and his daughter, or between a man and his sister, to be recognised as lawful.

Section 48 of the Ordinance did for spouses and children of monogamous marriages and their offspring what Law 111 now seeks to do for all spouses and their offspring. The law offers no definition of the word “spouse” which may be taken in its ordinary meaning of husband or wife. A person who is not the husband or wife of the deceased according to the law of the marriage the deceased entered into in his lifetime is not entitled to claim the whole or any part of the portion allotted to the spouse or spouses of the deceased. Thus, a person who was married under the provisions of the Ordinance cannot leave behind more than one spouse, although one who was married under customary law may. By the same token, a person who by the law of the marriage of his reputed father was not his lawful child cannot claim any part of the portion allotted to the children of the deceased.

It was because the learned judge of the High Court failed to appreciate this that she found herself in difficulties when faced with the application of Mary Owusu, a concubine of a man married under the Ordinance, and by whom she bore two illegitimate children, to be made an administratrix of the estate of her paramour along with his lawful widow. She said:

“My first reaction was to refuse this application outright on the strength of the pain it would cause a widow to sit at a table with the other woman to discuss property or estate of her departed husband. The sanctity of the marriage institution ought to be protected. Our laws cater adequately for children and wives but leaves out concubines and intermeddlers not for nothing. On a more mature consideration however, I find that the children’s interest ought to be protected. After the widow’s portion, that of the children as a whole has to be shared equally among all the children. The customary successor will look after the interest of the deceased person’s family and surviving parent or parents.”

Now, if, although they were procreated in adultery, and, therefore under the law applicable to monogamous marriages, illegitimate, the two children of Mary Owusu are entitled to share equally with his lawful children the portion of the estate allotted to them under PNDCL 111, then the learned judge need have had no qualms about making their mother an administratrix to look after their interest. After all no such doubts have been expressed in the case of customary marriages. Time and again, concubines have been made joint administratrices with customary wives in order that they may protect the interests of their offspring. What makes the presence of Mary Owusu unacceptable is not that she is a concubine but that the law does not recognise her children as having been lawfully begotten.

In the Court of Appeal, Adjabeng JA laid bare the source of the error when he said:

“It is trite learning that in this country, a child had by a man with whichever woman, be she a concubine or girlfriend or mistress, once accepted by the man as his child is recognised by our laws as his child and this child is entitled to a portion of his estate. See the definition of “child” in section 18 of PNDCL 111.”

This statement may be generally true of those who never got married or who entered into polygamous marriages only; it is entirely erroneous when applied to persons who entered into monogamous marriages under the Ordinance or analogous legislation.

In section 18 of Law 111, the word “child” is said to include “a natural child, a person adopted under any enactment for the time being in force or under customary law relating to adoption and any person recognised by the person in question as his child or recognised by law to be the child of such person”. Thus, like the word “spouse” in the same enactment, the word “child” has not been defined. All that the draftsman has done is to give examples of the persons coming within the meaning of the word.

Paraphrased, section 18 means natural child, an adopted child or a person who being neither a natural child nor an adopted child is recognised by him as such or is recognised by law to be his child. The term “natural child” is used in contradistinction to an adopted child: see Tanor v Koko [1974] 1 GLR 451.

A further distinction is made between a natural and an adopted child on the one hand and a child who being neither a natural nor an adopted child is recognised by a person as his or her child. A fourth category is represented by a child recognised by law to be a person’s child. A natural child is one procreated by a man and a woman; an adopted child is one taken under protection in accordance with customary law rules or the Adoption Act 1962 (Act 104). A child is said to be recognised by a person as his child if, without going through the formalities of an adoption he gives it a name and treats it as his own; see Plange v Plange [1977] 1 GLR 312. An example of a child recognised by law to be the child of a person would, in the olden days, be a slave: Santeng v Darkwa (1940) 6 WACA 52 and now, a foundling: Poh v Konamba (1957) 3 WALR 74.

What, then, is the meaning of the word “child” in PNDCL 111? The rule of interpretation is that words are to be construed in bonam partem, that is, they must be taken in their lawful and rightful sense. Thus, an obligation to pay rates is one to pay only those that are lawfully levied: Bruyeres v Halcomb (1835) 3 A & E 381, 111 ER 458; and a covenant by a tenant to pay all parliamentary taxes is construed to include only such as he may lawfully pay: Gaskell v King (1809) 11 East 165.  In conformity with this rule, the words “spouse” and “child” in PNDCL 111 must be construed as lawful spouse and lawful child.

As always, the unsoundness of the contention that under PNDCL 111 illegitimate children are entitled to share with the legitimate children the children’s portion of an intestate’s estate can best be seen by taking the argument to its logical and absurd conclusion. If the proponents of that view are right, the issue of an incestuous relationship between a father and his daughter would, on an intestacy, be entitled to an equal share in their grand-father’s estate with their mother, her brothers and sisters. Nothing would be more subversive of the institution of marriage or of the peace and harmony of society.

Order 2 rule 7 of the Probate and Administration Rules 1991 (LI 1515) gives the order of priority for the grant of letters of administration where the deceased was married under the Ordinance or was the issue of such a marriage as follows:

(i) the surviving spouse;

(ii) surviving children;

(iii) a surviving mother or father;

(iv) the customary successor of the deceased.

In this case, the surviving spouse is Letitia Asante, the respondent to this appeal and his only lawful wife. The surviving children are the lawful children of the deceased, namely, the child he had before he married Letitia under the provisions of the Marriage Ordinance, and his three children by her. All children procreated in adultery by Kwame Asante after he entered into the monogamous marriage, including the two children of Mary Owusu, are illegitimate and not his children within the meaning of PNDCL 111.

Concubines are not entitled to a grant of letters of administration, either in their own right or as representing illegitimate children of a deceased intestate who was married under the Ordinance. The grant to Mary Owusu was therefore, erroneous and the Court of Appeal was right in setting it aside.

I would dismiss the appeal.

WIREDU JSC. I am also of the considered view that the appeal in this case ought to be dismissed. In arriving at this conclusion I have endeavoured to limit myself to the main issue raised for determination in this appeal, which has nothing to do with distribution of the assets of the estate. I have therefore refrained from embarking on that exercise and dealt solely with the relevant provisions of the law, as I understand them, on the facts of this case.

In the instant appeal the objection is to the inclusion of the appellant-caveatrix who shall hereafter be referred to simply as “the appellant”.

LI 1515, Or 2 rule 7 provides the order of priority by which grants are to be made where the deceased was married under the Marriage Ordinance (Cap 127). The said rule reads:

“Where the deceased died intestate on or after 14 June, 1985 then the order of priority for grant of letters of administration shall be as follows -

(a) where the deceased was married under the Marriage Ordinance (Cap 127) or was the issue of such marriage -

(i) the surviving spouse;

(ii) surviving children;

(iii) a surviving mother or father;

(iv) the customary successor of the deceased ....”

Or 2 rule 8 (1) of LI 1515 states that “the number of persons to whom a grant may be made shall not exceed four persons as specified in section 77(1) of the Administration of Estates Act 1961 (Act 63)”.

Order 2 rr 8(2) and (3) of LI 1515 state:

“(2) Where two or more persons are entitled to a grant in the same degree the court may make a grant to anyone of them without joining the others.

(3) Where there is a dispute between persons entitled to a grant in the same degree the court shall summarily determine such dispute and may make a grant to such of them as it considers fit.”

The above provisions, in my respectful view, confer discretion on the court to make a grant to any of those entitled within the limits of the law i.e. in accordance with the dictates of PNDCL 111.

The appellant, on the facts of this case, did not show herself to be one of those entitled to a share in the estate in her own right, neither did she bring herself within those legally recognised for a grant under the relevant provision of LI 1515.

The evidence shows that she lodged a caveat against a grant already made to a person legitimately entitled. Her sole reason for lodging the caveat was that she wanted to protect the interest of her two minor children born to her by the deceased. She herself had no personal interest in the overall administration of the estate. She showed no concern for the other beneficiaries of the estate. In her affidavit of interest she attacked the grant outside her children’s degree by alleging the inability of Mrs Letitia Asante who is in the first degree of priority, which is an entirely different category from the degree to which her said children would be entitled to compete. She claimed that she was more capable than the widow.

It is significant to note that the names of the appellant’s two minor children are among the names supplied to the court in the application by Mrs Letitia Asante for the grant.

It is my respectful view, on the facts of this case, that the appellant failed to show her capacity within the recognised categories as circumscribed by LI 1515.

By lodging a caveat against the grant and on the affidavit showing her interest she joined issue with Mrs Letitia Asante and invited the court to determine her claim that she is better entitled to the grant. The caveat lodged by her in this regard was misconceived. See re Agyepong (Dec’d); Poku v Abosi  [1982-83] GLR 254.

The appellant’s caveat ought not to be treated in this case simply as an application for joinder and since the parties failed to agree the trial court was enjoined to embark on an enquiry to determine the competence of the caveat summarily.

It is clear from the facts available that the appellant was unable to show her capacity within the law to sustain her caveat. The learned High Court judge erred in law, in my respectful view, by not striking out or removing the caveat when so requested to do by learned counsel for the respondent.

The Court of Appeal rejected her claim for want of capacity and rightly, in my view, held that the learned trial judge, by including the appellant in the grant, exercised her discretion wrongly.

As stated above the appellant had no locus  standi under LI 1515. See Order 2 rules 7 and 8 of LI 1515 supra.

It is also clear from the reasoning of the learned trial judge that she woefully failed to appreciate the law and allowed her emotions and sympathies for the appellant’s case to cloud her mind, thereby falling into the error of elevating her judicial sympathy into a principle of law. Judicial sympathy, however plausible, cannot be elevated into a principle of law. In this regard I think the Court of Appeal was right in indicting her with wrongful exercise of her discretion.

The appellant, if it is found that her two minor children are the children of the deceased within the language of PNDCL 111 and LI 1515, is not without a remedy. I think in that event she would be clothed with capacity, as the natural mother of the two minors, to bring an action, as an agent of necessity, on behalf of her children for distribution of the estate.

I will now deal with the issue as to whether the two minors of the appellant are beneficiaries of the estate of the late Major Kwame Asante i.e. in other words whether they are children within the provisions of PNDCL 111. No issue was joined on this in this case and I think rightly so. It is clear from the case law and text book writers that there is not a common area of agreement on the issue as to whether illegitimacy is foreign or alien to the customary law.

Mr Justice Ollenu of blessed memory in his invaluable book, The Law of Testate and Intestate Succession in Ghana has this to say at page 210:

“The customary law on that point is summarised in Carboo v. Carboo  above, as follows: ‘In Ghana, except for the purpose of succession to two-thirds of a person’s estate under the Marriage Ordinance, every child of a man, however born, is his child unless the child’s paternity was not proved, or unless during his life time he did not recognise the child as his child.’ See cases like Holdbrook v. Atta (1882) SFCL (1894) 184, Estate of John Akote (deceased); Afi & ors. v. Ayisi & ors. Div. Ct. Judgment, April 5, 1943 unreported, Khoury & ors. v. Tamakloe Land Ct. Judgment, January 4, 1950 unreported.”

The general view of the law, as accepted at the present, is that once paternity is accepted or proved, the rights of the child to succeed or to the enjoyment of interest is attached to the estate of his natural or biological father i.e. the progenitor. See Ollenu, supra and section 18 of PNDCL 111.

The word “illegitimate” or “bastard” as understood in the English law strictly is unknown to customary law and I will venture to add that where a Ghanaian during his lifetime chooses to contract a marriage under the Ordinance that act does not make him cease to be a Ghanaian in respect of whom the customary law ceases to apply to his estate on his death intestate. If a child was born to him outside wedlock the child’s interest in his estate was preserved in 1/3 of his estate that went to the family, under the old law.

 Be that as it may, by section 18 of PNDCL 111, which is the current law, a child is defined to include a “natural child”. This definition accords with Ollenu’s view of the customary law as enunciated above.

It is my considered view that the two minor children born to the appellant by the late Major Kwame Asante, on the facts, are “children” within the language of PNDCL 111 and LI 1515 and are therefore entitled to share, with others, the assets of the estate of their deceased father. The issue here is not one of legitimacy or otherwise, but whether the minors are the natural children of the deceased. Once paternity is accepted, as it is in this case, that settles the matter.

For the above observations I will affirm the Court of Appeal decision and dismiss the present appeal.

BAMFORD-ADDO JSC. This appeal is from the unanimous decision of the Court of Appeal dated 2 April 1992 which removed the appellant as a co-administratrix for and on behalf of her two minor beneficiaries, Amanda and Kobby aged 8 and 10 years respectively of the estate of their late father Major (retired) Kwame Asante.

On the death intestate of Major Kwame Asante on 3 April 1990, his wife Mrs Letitia Asante and Yaw Asante applied for letters of administration from the High Court Accra on 10 January 1991, supported by an affidavit, paragraph 6 of which stated as follows:

“That the deceased died leaving behind seven (7) children six (6) of whom are minors.”

On 16 January 1991, the High Court granted the application for letters of administration.

“By Court:

Application granted. 14 days notice. Of the six minors, three belong to the widow… These three are aged 15 years (Madeline), 10 years (Kobby) and 8 years (Amanda). The applicants are hereby charged to administer this large estate according to law. The applicants to stay in the country until due distribution is completed.”

After the requisite notices were posted as required by law and ordered by the court, one Miss Mary Owusu, the appellant herein, entered a caveat. In her affidavit filed on 12 February 1991, she stated that she had Kobby and Amanda by the deceased before his death and, as the natural mother, she would be in a better position to adequately and justly protect their interest.

Before determining the caveat, one Philip Asante, a brother of the deceased and customary successor, applied to be joined to the respondent to administer the estate. This application was not

 objected to. In her ruling on the caveat, dated 14 June 1991, the High Court judge, apart from joining the customary successor, joined also the caveatrix. The respondents thereupon appealed to the Court of Appeal against the decision of the High Court joining Miss Owusu to administer the estate of the deceased and the appeal was allowed in April 1992. It is against the Court of Appeal judgment that the appellant has now appealed to this court.

The appellant filed a number of grounds of appeal, the most important of which is that the Court of Appeal erred in removing, from the administration of the estate, the appellant whose only role was for the benefit and the protection of the interest of her two minor children, beneficiaries of the estate. According to the appellant the decision of the Court of Appeal wrongfully interfered with the due exercise of the High Court’s discretion in joining the appellant to the other administrators; in so doing the court failed to appreciate the peculiar facts of the case, which impelled the High Court to make the decision to join the appellant as co-administratrix. Those facts are the lack of candour on the part of Mrs Letitia Asante and Yaw Asante, the age of the minors, and the human element involved in the case, namely that Mrs Asante is bound to protect her children’s interest and Yaw Asante is equally bound to protect his interest and that of his siblings to the detriment of Amanda, 8 years and Kobby, 10 years.

Administrators are appointed to administer and distribute deceased persons’ estates strictly according to law and cannot enjoy the estate to the detriment of the other beneficiaries; so that the order made on 16 January 1991 by the High Court, appointing Mrs Asante and Yaw Asante, the respondents, as administrators and charging them to administer and distribute the estate according to law having regard to the interest of Kobby and Amanda and others, was in all respects proper according to law. When however the beneficiaries are neglected or their interest is not catered for as required by law, then they would be entitled to institute an action against the administrator to enforce their rights. Until then apprehension or suspicion is not a legitimate ground to support the application by Mary Owusu.

At the time of joining the appellant as co-administratrix, the estate had not even been administered and there were no grounds for suspecting that the interest of appellant’s children would not be protected; nor was their natural mother the only person capable of protecting their interest. As in this case, there were other children with different mothers, to make a grant to the appellant alone on the above stated ground would be unfair to the other children and their mothers. Yaw Asante, the eldest adult child, having been appointed, was the proper person to represent all the nine children of the deceased.

The order of priority in granting letters of administration under the Probate and Administration Rules 1991 (LI 1515), Order 2 rule 7(a) is as follows:

“7. Where the deceased died intestate on or after 14 June, 1985 then the order of priority for grant of letters of administration shall be as follows—

(a) where the deceased was married under the Marriage Ordinance (Cap 127) or was the issue of such marriage-

(i) the surviving spouse;

(ii) surviving children;

(iii) a surviving mother or father;

(iv) the customary successor of the deceased…”

Rule 8 also states that:

“8(1) The number of persons to whom a grant may be made shall not exceed four persons as specified in section 77(1) of the Administration of Estates Act, 1961 (Act 63).

(2) Where two or more persons are entitled to a grant in the same degree the court may make a grant to any one of them without joining the others.

(3) Where there is a dispute between persons entitled to a grant in the same degree the court shall summarily determine such dispute and may make a grant to such of them as it considers fit.”

The order of priority shows the category of persons to whom priority would be given in the appointment of administrators.

The High Court on 16 January 1991 had already appointed Yaw Asante from the children’s category to join the wife as co-administrator in accordance with Or 2 r 8(1) and (2) of LI 1515. When the caveat from Mary Owusu was filed later, the court had to consider which of the two persons, Yaw Asante or Mary Owusu, was the proper person to whom the grant should be made on behalf of all the children under Or 2 r 8(3) and make a grant to such of them, i.e. Yaw Asante or Mary Owusu, as it considered fit.

Yaw Asante was the eldest and adult son of the nine children of the deceased and appellant was only one of the various mothers of the minor children. It seems to me that Yaw Asante was the best suited person to represent his brothers and sisters and not Mary Owusu, a concubine of the deceased and one of the mothers of two of the children, whose only concern was for her own two children. The Ordinance marriage wife was, in the order of priority under Or 2 r 7, the first to be granted letters of administration with Yaw Asante, the other most suited co-administrator in view of the existence of other minor children beneficiaries.

Under Order 2 rule 7(a) the parent of a minor beneficiary child was not listed. However Order 8 rule 3 which deals with limited and special grants permits a guardian, e.g. the mother of a minor, to take the grant for the use and benefit of such a minor until he attains full age.

My understanding of Order 8 rule 3, as it applied to this case is that where as of necessity the grant should be made to none but a minor, then his guardian or parent can take the grant on his behalf. In this case, however, Kobby and Amanda are not the only persons to whom a grant could rightly be made, as there were other persons, including an adult first son, Yaw Asante, to whom the grant had already been made on 16 January 1991. Therefore Order 8 is not even applicable to this case and consequently in my opinion Mary Owusu has no locus standi. It was therefore wrong for the High Court to have made a grant to her on the ground that she was best suited to protect the interest of her children.

The trial judge having correctly stated in her ruling of 14 June 1991 that “it is convenient therefore that all the children are represented by one person out of their number”, completely misunderstood the implication of LI 1515 Order 2 rule 8 when she turned round and in the same breath said:

“The mother of these two minors therefore is considered as best suited to protect the interest of minors Kobby and Amanda as the children’s only parent and guardian. It is with these special circumstances in mind that I make this order granting these letters to Mrs Letitia Asante, Yaw Asante, Mary Owusu and Philip Asante to administer the estate of Major (rtd) Kwame Asante, deceased.”

Even if, which I do not accept, the appellant had locus standi, since under Or 2 r 8(3) the court could only make a choice between the two it was wrong to have made a grant to both in the same degree. I agree with Adjabeng JA when he said:

“I do not think this is fair to the other children. If the judge was minded to exercise her discretion judicially, then the logical thing was to order that each child with a different mother than the widow should be represented in the administration by either his or her mother or by a guardian. That, no doubt, would go against Order 2 r 8(1) of LI 1515 quoted earlier, as the administrators would be more than four. It would also set the dangerous precedent that once a woman has a child with a man that woman is entitled to join in the administration of his estate when he dies to protect the interest of the child even though she was only a girlfriend.”

In Re Blankson-Hemans, Blankson-Hemans v Monney [1973] 1 GLR 464, Koranteng-Addow J, sitting at the Kumasi High Court, refused to join the mother of a child of the deceased to the widow to administer the estate because of the difficulties that might arise. He said at page 468:

“Again there would seem to be no lost love between her and the plaintiff. The first caveatrix herself confesses to that. She said in her evidence that she is not on speaking terms with her. It would be simply impossible for the two of them to agree on anything.”

If not a mother how more an intermeddler such as a concubine! On the above authority, appointing a girlfriend or concubine to join a widow of a monogamous marriage as co-administratrix is definitely wrong as this could create confusion and hinder smooth and proper administration. It is not for nothing that LI 1515 differentiated between the grant in respect of a monogamous marriage and other marriages. See Order 2 rules 6 and 7; so that if there is a surviving lawful wife under Cap 127 then, according to the order of priority, she is the first person to be given a grant. In this case, since there were infant beneficiaries, it was necessary to appoint another administrator under Or 2 r 8(1) to join the widow. Having properly complied with LI 1515 and appointed Letitia Asante and Yaw Asante and later Philip Asante, the customary successor, there was no lawful reason for joining Mary Owusu.

For the above reasons, I would dismiss the appeal.

HAYFRON-BENJAMIN JSC. The facts of this appeal are representative of the social malaise which now afflicts our society. The citizens, aided and in some cases, even abetted, by the Christian religious denominations, subscribe to marriage vows to live as man and wife to the exclusion of all others “till death do us part”. This serious undertaking is firmly supported by the Marriage Ordinance Cap 127, section 36 of which the parties to the marriage ceremony are warned of certain dire consequences to which they respond by giving their assent by pledging their troth. This warning reads:

“Know ye that by the public taking of each other as man and wife in my presence and in the presence of the persons now here, and by the subsequent attestation thereof by signing your names to that effect, you become legally married to each other, although no other rite of a civil or religious nature shall take place, and that this marriage cannot be dissolved during your lifetime, except by valid judgment of divorce, and if either of you before the death of the other, shall contract another marriage while this remains undissolved, you will be thereby guilty of bigamy, and liable to the punishment inflicted for that offence.”

Yet in spite of the fact that countless numbers of our citizens marry under the Marriage Ordinance (Cap 127) they readily succumb to the primeval instinct by compromising their vows and contract further marriages under our customary marriage laws which are potentially polygamous or form unrecognised liaisons commonly called concubinage.

It was in this latter category that the late Major (rtd) Kwame Asante was. He was married under the Marriage Ordinance. Yet he carried on liaisons with other women in breach of his vows and produced with these women other children on whose behalf, or at least two of them, Kobby and Amanda, a claim is being made that

 they are entitled to administer or take part in the administration of their late father’s estate. The mother of these two children does not deny that she was a concubine. She does not claim any interest in the estate of the late Major Kwame Asante. She contends however, that her two children have an interest in their late father’s estate and that because of their minority she, as their mother, is a proper person to join in the administration in order to protect the interest of her children. That was the reason why she, Miss Mary Owusu, for that is her name, caveated for the purposes aforesaid.

The learned High Court judge acceded to her objections and joined her as co-administratrix. Their Lordships in the Court of Appeal had no difficulty reversing Her Lordship in the High Court and I am in full agreement with the Court of Appeal that she could not be joined as co-administratrix of the estate of the late Major Kwame Asante.

Miss Mary Owusu, aggrieved and dissatisfied by the decision of Their Lordships in the Court of Appeal, has appealed to this court and by her statement of case states no fewer than six grounds of appeal none of which, in my view, has been elaborated or argued. Parties and counsel must know that the statement of the party’s case represents his brief and any or all the grounds stated in their notice of appeal must be fully argued therein or be deemed to have been abandoned. For this reason alone I think I am entitled to dismiss this appeal. However, I will not do so because the appeal raises, serious social and moral issues which ought to be addressed, albeit briefly, by this court.

In their statement of case, the respondents stated that “the only issue for determination in this appeal in our view is whether the learned High Court judge exercised her discretion properly according to law in joining Miss Mary Owusu, a concubine, to administer the estate of the deceased with the widow, the eldest child and customary successor.

Counsel is nearly right. The real issue in this appeal is whether two children of the appellant, Miss Mary Owusu, have any interest in the estate of the late Major Kwame Asante as would entitle them to a grant or to join in the grant of letters of administration of that estate. In Re Essuman, Essuman v Teschmaker [1967] GLR 359 at 363, Azu Crabbe JA stated one of the principles which ought to guide our courts in determining who is entitled to the grant of letters of administration thus:

“It is a well-settled principle that the right to administration of the property of an intestate follows the right to the property; or shortly stated, the grant ought to follow the interest.”

Upon this principle it is necessary to determine the marital status of the late Major Kwame Asante and consider the relationship of the deceased to these children and whether, in accordance with law, they are entitled to any property of the deceased.

Apart from customary law marriages, which also recognise concubinage as the lowest and perhaps the loosest form of marriage, the citizens of this country are also entitled to choose to marry under the Ordinance (Cap 127) or the Marriage Of Mohammedans Ordinance (Cap 129). Of these three available forms of marriage, customary marriage, as I have said, is potentially polygamous and so is a marriage under the Marriage Ordinance (Cap 127) strictly monogamous. The deceased having been married under the Ordinance was therefore incapable of contracting another marriage during the subsistence of his marriage nor was he permitted by law to break his vows or undertaking by forming liaisons with other women. Consequently any child born to the late Major Kwame Asante by any woman during the subsistence of his marriage would be a child born out of wedlock and will be illegitimate. If therefore the two children, Kobby and Amanda, were born out of wedlock, then in accordance with the law governing the marital status of the late Major Kwame Asante, they had no interest in his property.

I am not unmindful of the fact that within our municipality there is a popular though erroneous notion that there is no status as illegitimacy. In the present appeal the learned High Court judge in her judgment said, and I wholly agree with her, “that the sanctity of the marriage institution ought to be protected, that our laws cater adequately for children and wives but leaves out concubines and intermeddlers not for nothing”. Certainty if the institution of marriage is to be protected then for the good of society we ought to call a spade a spade and be prepared to declare the status of children howsoever so born.

The matter of the status of children came up for determination in Re Blankson-Hemans, Blankson-Hemans v Monney [1973] 1 GLR 464. The facts in that case were similar to the matters concerned in this case save that in the Blankson-Hemans case supra, the concubine contended that she had, prior to the marriage of the plaintiff under the Marriage Ordinance, been married under customary law to the deceased husband of the plaintiff. The learned judge rejected the concubine’s claims to have been so married. But the learned judge in the Blankson-Hemans case supra, had to consider the status of the child born to the deceased and the concubine, the second caveatrix in the case. Said the learned judge at page 468:

“I cannot but hold also that the child born to the second caveatrix and the deceased cannot be legitimate in the eyes of the law.”

The case of Coleman v Shang [1959] GLR 390 at page 406 was cited in support of this proposition where the Court of Appeal noted that under the statute of distribution “wife” meant a “lawful wife” and a “child” meant a “lawful child”. His Lordship concluded in the Blankson-Hemans  case supra that “the son of the second caveatrix therefore fails to qualify for a portion in the share of the widow and children”. (Emphasis mine)

My learned and respected brother Amua-Sekyi JSC in his opinion has expatiated on the legal connotations of “spouse” and “children” under our law and I am in full agreement with him on his views.

Section 20 of PNDCL 111 repealed, inter alia, the English Statute of Distribution. By section 19 of the same Law, section 48 of the Marriage Ordinance (Cap 127) which deals with the distribution of the estate of an intestate and the type of marriage contracted by him or her is repealed. In the memorandum accompanying the Intestate Succession Law (PNDCL 111), the drafters stated that the rationale behind the systematisation of the rules of distribution of the intestate estate in relation to the Marriage Ordinance was that “apportioning fractions of his [deceased’s] estate ... creates a source of insecurity by not identifying any specific items of the estate as definitely going to one group or the other”.

The memorandum recognises the growing importance of the nuclear family and contends that it “brings with it is own logic of moral justice”.

The concept of the “nuclear family” as propagated by PNDCL 111 requires that the membership of each such family is identified by reference to the system of marriage under which the man and woman, the parents, have contracted. Thus in a union under the Marriage Ordinance only such children as were born in wedlock would qualify for membership of such family; so also in a union under customary law only such children whose mothers were married under that law will qualify. It is not open for such a nuclear family to have, so to speak, “extra warheads” of children procreated outside the pale of valid marriage to  stake any claims to property of their deceased father. In the Blankson-Hemans  case, supra, the learned judge decided that such a child might be entitled to a share in the portion of the estate going to the family. Attempts have been made in the of the 1979 Constitution, the PNDC (Establishment) Proclamation 1981 and the 1992 Constitution to make parliament pass a law which will make provision from the estate of intestate fathers for their children not born in wedlock. Parliament is still to pass that law.

Article 28(1) of the 1992 Constitution, which is in similar terms as article 32 of the 1979 Constitution states, inter alia:

28(1) Parliament shall enact such laws as are necessary to ensure that:

(b) every child, whether or not born in wedlock, shall be entitled to reasonable provisions out of the estate of its parents.” (Emphasis mine).

The constitutional definition of “child” is therefore clear: either a child is born in wedlock - that is, it is legitimate or the child is not born in wedlock - that is, it is illegitimate. The expression “wedlock” here used means the state of being married. No distinction is made between monogamous or polygamous marriages. Both systems are valid. Indeed in order to make customary marriages valid and more certain within the intendment of PNDCL 111, the Customary Marriage And Divorce (Registration) Law 1985 (PNDCL 112) stipulates that all customary marriages be registered on pain of a fine. Consequently, in my respectful view the customary law position remains as stated in Blankson-Hemans, supra.

Being entitled to a portion of an estate is quite different from being entitled to a provision from the same estate. The former is a legal right to be enforced, the latter is a constitutional right which parliament is yet to grant and will be subject to the discretion of the courts. A provision in this context is a temporary measure to alleviate a particular situation not warranted by the social condition of the two vulnerable groups. The concept of the “nuclear family” as enunciated in PNDCL 111 does not detract from the principles and decision in Coleman v Shang, supra, which in my respectful opinion mainly affect distribution and not administration. The matter before us is whether these illegitimate children have any interest to entitle them to administer their late father’s estate.

It may also well be asked whether it is morally defensible for a man to vow solemnly to take to himself only one wife for his lifetime excluding all other women and to proceed thereafter to procreate children with other women who would rank with his other children born in wedlock in the division of his estate on his death intestate. In my respectful opinion such a situation will be very subversive of public morality.

The whole distinction between the classes of intestates is provided for by Order 2 rule 7 of the Probate and Administration Rules 1991 (LI 1515) which makes a clear difference between application under the Marriage Ordinance and applications under customary law. The former must exclude a child born out of wedlock while a child under the latter must include a child whose mother was married under the customary law.

I need to remind myself that we are not dealing with the distribution of intestate estates. But if the principle is that the right to administration is dependent on the interest in the property then, when a child lays claims to administer the estate of a deceased father who dies intestate, the determination of the status of such child is a necessary prerequisite to the decision whether that child is entitled to the grant of letters of administration.

In the instant appeal neither the appellant nor her children have any interest in the estate of the late Major Kwame Asante and the appeal fails.

I will dismiss the appeal.