|
Administration of estates –
Probate – Testament – Informal
paper writing purporting to be
last will of the deceased
admissible to probate.
State proceedings – Certiorari –
Record – Court will not quash
ruling dismissing motion.
Courts – Supreme Court –
Supervisory jurisdiction – Court
will exercise jurisdiction to
remove the substratum of
litigation.
Upon the death of the deceased
the respondents proposed to take
out a limited grant of letters
of administration to enable them
trace certain wills believed to
have been made and deposited by
the deceased abroad. In the
meantime, the applicant’s
counsel notified the
respondents’ counsel that a
testamentary paper purporting to
be the will of the deceased had
been found and therefore
proposed an application for
probate instead. The respondents
nevertheless proceeded with
their application. The applicant
caveated but applied to withdraw
the caveat as well as his
pending application to review a
previous default order made
against him. The trial judge
therefore removed the caveat,
dismissed the application for
review and ordered that letters
be granted to the respondents.
After several unsuccessful
attempts to revoke the letters
of administration, the applicant
applied to the Supreme Court for
an order of certiorari to quash
the removal of the caveat,
dismissal of the motion for
review and the grant of letters
of administration. At the
hearing of the application in
the Supreme Court counsel for
the respondents disclosed that
his clients had deposited the
wills of the deceased in court
and were preparing to deposit
for revocation the letters of
administration granted to them.
Held:
(1) If the paper writing were
genuine and purported to be the
last will of the deceased, then
however informal or irregular it
was in form, it would be
admitted to probate. Re Yena,
Deceased [1960] GLR 195
referred to.
(2) It seemed that by the
application the applicant was
requesting the court to bring up
the order dismissing the motion
for review to be quashed, a
request to which this court
could clearly not accede.
(3) The affidavits and exhibits
presented by both parties
established that counsel dealing
with the estate seriously
misconceived the law, practice
and procedure with respect to
the administration of estates.
In the circumstances to accede
to the application for
certiorari would leave the
letters of administration intact
and of full effect, which
neither party desired. The court
ought therefore, in the exercise
of its supervisory jurisdiction
to remove the substratum of the
present litigation, the letters
of administration in order to
pave way for proper
administration of the estate.
The application would therefore
succeed.
Case referred to:
Mosi v Bagyina
[1963] 1 GLR 337, SC.
Yena, Deceased,
re [1960] GLR 195.
APPLICATION to the Supreme Court
for certiorari to quash the
orders of the High Court.
Adumua-Bossman
for the applicant.
S H Annancy
for the 2nd respondent.
Kojo Erskine
for the 3rd respondent.
HAYFRON-BENJAMIN JSC.
Dr John Blay-Miezah otherwise
called John Kolorah Blay or Nana
Ackah Nyanzu II or Lina Disca
died on 30 June 1992 at Accra.
The problem that arose after his
death was that it was known that
in his lifetime he had made a
will or wills and that the same
were deposited in some banks in
Switzerland, specifically the
Union Bank of Switzerland. On 15
January 1993 one Nana Asenda VI,
claiming to be the head of
family of the testator and his
widow, Mrs Joyce Blay-Miezah,
also known as Joyce Adje
Kolorah, were granted letters of
administration by the High
Court, Accra, to enable the
administrator and administratrix
trace and get hold of a copy of
the deceased’s will prepared in
England by his solicitors, Dr E
Ako Adjei of Ghana and Mr Tom
Beasely of London, and which
they believed was deposited in
the Union Bank of Switzerland,
Basel, Switzerland. These
letters of administration have
been referred to as “a limited
grant.” It is unnecessary in
this application to consider the
quality or indeed the validity
of such a grant, but it is clear
from the documents exhibited
with the present application
that learned counsel for the
applicant and the widow knew
even before the application for
the letters of administration
was made that the deceased had
left behind paper writings
purporting to be the wills and
codicils executed by the late Dr
John Blay-Miezah. On 27 November
1992, by a letter under the hand
of learned counsel for the
applicant and addressed to
Stephen H Annancy, Esquire,
Barrister and Solicitor, acting
for the widow, counsel for
applicant wrote:
“27 November 1992
Stephen H Annancy, Esq
Barrister & Solicitor
Naoferg Chambers
Korle Workon
Accra
Dear Steve,
RE ESTATE OF BLAY-MIEZAH
Many thanks for your valiant
efforts to contact me in spite
of all my goings and comings in
the course of an impossible busy
inter-regional practice.
I hasten to inform you that the
papers I had prepared for the
taking of a joint grant of
letters of administration of the
above estate of Nana Asemda
(Head of Family), Mrs Joyce
Blay-Miezah (widow) and Nana
Korkor Rezanna Blay-Miezah
(eldest child) have been
overtaken by a dramatic event.
The new development is that a
solicitor called John R Kells
has sent to me from London a
copy of a home-made will of Nana
dated Sunday 29 January 1989 and
attested by Dr Ayeh-Kumi (since
deceased) and a lady called Mrs
Pennington.
I believe that it is a genuine
document, though disappointingly
short in its text because, in
reality it was setting up a
large secret trust contained in
the original Oman Ghana Trust
Deed and Power of Attorney
executed in 1959 in Ghana
(probably as amended later by
other secret instruments.)
In any event now that this will
has turned up I think the
original plan to take out
letters of administration first
until a will was subsequently
discovered could no longer
apply.
I propose now to apply for
probate of this will together
with firstly the codicil now
deposited in the High Court,
Accra; secondly, the 2nd codicil
now dated 16 August 1990 (made
here in Accra) and thirdly the
controversial 3rd codicil dated
9 June 1992 in Accra, witnessed
by four persons including Mr
Barron and Dr Muller, the German
heart specialist.
There is evidence now, I regret
to say, which gives me the
impression that Nana's marriage
to Joyce is of questionable
validity. That, however, will
not affect the application for
probate.
Yours truly,
(sgd)
SOLICITOR FOR NANA ASEMDA VI
cc:
1. Nana Asemda VI,
2. Nana Korkor Blay-Miezah.”
The letter was copied to Nana
Asemda VI, the 3rd respondent
herein and another person who
was not concerned with this
application.
Thus as at 27 November 1992,
learned counsel for the
applicant was in possession of a
paper writing which he believed
to be a genuine document
representing the last will and
testament of Dr John
Blay-Miezah. In learned
counsel’s opinion, “now that
this will has turned up I think
the original plan to take out
letters of administration first
until a will was subsequently
discovered could no longer
apply.” Yet the contrary was
exactly what learned counsel did
and was granted letters of
administration on 15 January
1993. If the paper writing was
genuine and purported to be the
last will and testament of Dr
John Blay-Miezah, then however
informal or irregular its form,
it was entitled to probate.
In re Yena, Deceased
[1960] GLR 195 at page 198,
Adumua-Bossman J, considering
whether an instrument or paper
writing was a testamentary one
at all, cited a passage from
Mortimer's learned treatise on
The Law and Practice of the
Probate Division of the High
Court of Justice, 2nd ed at
page 117 thus:
“Any document duly executed in
accordance with the requirements
of the statute [Wills Act 1837]
however irregular in form or
inartificial in expression, is
entitled to operate as a will
and to be admitted to probate,
provided the person executing it
intended that it should not take
effect until after his death,
and it is dependent on his death
for its vigour and effect.”
The learned judge in the Yena
case, supra, explained
further that:
“¼the
crucial or decisive character or
feature about a document or
instrument which gives it its
testamentary character or
nature, is the characteristic or
feature that the provisions in
the document or instrument
affecting transfer of property
by way of gift, are intended and
expressed to come into force and
operation only by and after the
death of the owner of the
property making the document or
instrument¼”
It is the several unsuccessful
attempts to revoke these letters
of administration granted by the
High Court on 15 January 1993 in
the face of the existence of the
several wills and codicils
disclosed in learned counsel for
the applicant's letter of 27
November 1992 referred to above
in this ruling which have
culminated in the presentation
to this court of the present
application.
The applicant invokes the
supervisory jurisdiction of this
court and seeks an order of
certiorari “to bring up and
quash the ruling and all
consequential orders thereon
dated 7 May 1993 by the
respondent High Court (Coram: Mr
Justice W K Andah) on the 2nd
respondent’s unserved motion on
notice filed on 6 June 1993 for
the removal of a caveat which
was heard and granted on 7 June
1993 in suit No 84/93 namely
In re: Estate of Dr John
Blay-Miezah (deceased).”
The applicant is a Dr John
Robert Kells of London, who it
appears, has given a power of
attorney to a woman by name
Sophia Ofori-Atta with
authority, inter alia, to pray
in aid “the supervisory
jurisdiction of the Superior
Court of Judicature for the
purpose of obtaining a judgment
or order revoking the grant of
letters of administration of the
estate of the late Dr John Ackah
Blay-Miezah (deceased) made on
the 15 January, 1993 in Suit No.
84/93.”
This power of attorney as it
appears was prepared by Mr
Adumua-Bossman, learned counsel
for the applicant in this
country and sent to London for
execution by the present
applicant, Dr John Robert Kells.
The present applicant is no
other person than the donor of a
previous power of attorney to
Nana Asemda VI the 3rd
respondent to the present
application. The applicant is
therefore not new to this
litigation.
In the present application the
applicant prays that this court
should order the ruling of the
High Court made in the matter of
the estate of Dr John
Blay-Miezah on 7 May 1993 be
brought up to be quashed. The
ruling of 7 May 1993 was upon a
motion on notice for an order of
the court to remove a caveat
filed against the letters of
administration granted on 15
January 1993. The caveator
having failed to heed the
warning, rather filed a
statement “withdrawing the
caveat and also a notice
discontinuing the application
for review brought at the
instance of the 2nd applicant,
Nana Asemda VI.” In the
circumstances the learned High
Court had no alternative but
remove the caveat, which would
have lapsed in any case, and
dismiss the application for
review. In my view, the order
that letters of administration
be issued was an unnecessary
consequential order, as in due
course it would have been issued
to the applicants.
It seemed therefore that by this
application the applicant was
requesting this court to bring
up an order dismissing the
motion on notice to be quashed.
This was a request to which this
court could clearly not accede.
As it turned out the real reason
for counsel’s application was
that in the event of our
acceding to his prayer the
original letters of
administration granted on 15
January 1993 would impliedly be
revoked and the docks cleared
for his client to proceed with
an application for probate.
Learned counsel for the
applicant was wrong. The removal
or withdrawal of the caveat
meant that the way was clear for
the issuance of the letters of
administration. Again the
discontinuance of the review, if
it was indeed warranted by law,
removed any objections to the
issuance of the letters of
administration.
In fact on 23 February 1993 in
his ruling on an application for
probate on a motion by the
present applicant, Dr John
Robert Kells and Nana Asemda VI
described as the maternal half
brother of the deceased and the
head of the deceased’s maternal
family and a co-applicant in
this motion for probate, His
Lordship Andah, dismissing the
application was at pains to
point out that in terms of
section 67 of the Administration
of Estates Act 1961 (Act 63) no
application for probate or
letters of administration could
be entertained until the grant
of 15 January 1993 had been
revoked. That was a correct
statement of the law.
Before us both counsel stated
that the wills of Dr John
Blay-Miezah which were in their
possession had been deposited in
the registry of the High Court,
Accra. In fact, one of the wills
had been read though no
application had been presented
for probate. It was also
disclosed that the extant
letters of administration were
in the process of being
deposited in court to enable
same to be revoked.
After much argument, counsel for
the applicant conceded that he
had intended by this application
to have the letters of
administration granted on 15
January 1993 revoked. Learned
counsel for the widow Mrs
Blay-Miezah, Mr S H Annancy,
even though he had an affidavit
in opposition filed in which the
factual situation in the
application had been correctly
set out, nevertheless on a
consideration of the state of
the law, also agreed that the
letters of administration be
revoked.
This court adjourned the
application for consideration. A
careful examination of the
affidavits and exhibits
presented by both the applicant,
Dr John Robert Kells and the
respondent, Mrs Blay-Miezah show
that counsel dealing with the
estate seriously misconceived
the law, practice and procedure
with respect to the
administration of estates.
In the circumstances to accede
to the prayer of the applicant
would leave the letters of
administration dated 15 January
1993 intact and of full effect,
a result which the parties now
do not desire. This court
therefore, in the exercise of
its supervisory jurisdiction
ought to remove the substratum
of the present litigation the
letters of administration dated
15 January 1993 in order to pave
way for proper administration of
the estate.
In my opinion the application
should succeed.
ADADE JSC.
I agree.
ABBAN JSC.
I am in agreement with the
conclusion reached by my brother
Hayfron-Benjamin JSC and I
therefore concur that the
letters of administration
granted on 15 January 1993 be
brought up to be quashed.
AMUA-SEKYI JSC.
I agree with the opinion read by
my brother Hayfron-Benjamin JSC.
WIREDU JSC.
To me the issue raised before
this court provoked by the
present application is a simple
one. In my respectful view the
application ought to succeed.
The circumstances surrounding
the grant of the letters of
administration which is being
sought to be revoked as
disclosed by the facts of this
case offends the law and rules
of procedure, and by the
principle enunciated in the
celebrated case of Mosi v
Bagyina [1963] 1 GLR 337,
this court is competent suo motu
to vacate same.
In addition, the continued
subsistence of the letters of
administration is a hindrance to
either party obtaining a grant
of probate of the will each
claims to possess, and which
each intends to prove in court.
As such it will be in the
interest of both parties to have
same vacated in order to open
the gate for the parties to have
access to the court to prove
whatever wills are in their
possession.
BAMFORD-ADDO
JSC. I also agree.
AMPIAH JSC.
I also agree.
Application granted.
S Kwami Tetteh, Legal
Practitioner |
