Administration of estates – Letters of administration – Revocation - Circumstances in which court may revoke letters of administration.

Administration of estates – Administrator – Customary successor – Customary successor most eligible but to be considered alongside other members of family for appointment as administrator - Administration of Estates Act 1961 (Act 63) s79(1) & (2).

Administration of estates - Administrator - Administrator-General – High Court has no jurisdiction to appoint Administrator-General suo motu.

Practice and procedure – Judgment or order – Setting aside – Procedure for vacating void orders – No time limit for application to vacate.

Abban died intestate survived by his children. His estate included two cars one of which was a Mercedes Benz. The High Court, Accra granted letters of administration to the applicants to administer the estate of the deceased. Subsequently Frank Abban, an elder brother of the deceased and the customary successor applied together with the head of family and were joined as co-administrators. The applicants then requested Frank Abban to surrender the said Mercedes Benz car that had been in his possession, but he refused. The applicants therefore applied for, and obtained, an order from the High Court, for its return. Frank Abban then filed a motion to set aside the order for the release of the car but withdrew the application when the car was impounded by the police at the instance of the applicants. The court granted him leave to withdraw the motion but proceeded, suo motu, to revoke the letters of administration granted to the applicants. The applicants therefore applied to the Supreme Court for certiorari  to quash the order of the High Court revoking the grant of the letters of administration. It was contended in opposition to the application for certiorari that Frank Abban was not consulted by the applicants before they applied for letters of administration and also that if they had disclosed to the court that one of the applicants was not a member of the deceased’s family, the court would not have made the grant.

Held: (1) The court could revoke a grant of letters of administration only upon just cause, e.g. where a grant had been obtained fraudulently or mala fide  by false representation or concealment from the court of a material matter that ought to have been disclosed. Asamoah v Ofori alias Renner  [1961] GLR 269 approved.

(2) The Administration of Estates Act 1961 (Act 63) provides in section 79(1) that the choice of an administrator was not limited to the customary successor or members of the family of the deceased. Though the customary successor was the most eligible among the members of the family, section 79(2) of the Act provided that he be considered alongside others. Asafu-Adjei v Okrah  [1984-86] 1 GLR 440, CA, cited.

(3) The High Court had no jurisdiction on its own motion to appoint the Administrator-General to administer the estate of the deceased. What the court was concerned to see was the proper administration of the estate and the interest of the beneficiaries. Re Goods of Loveday [1900] P 154 approved.

(4) Since the motion to set aside the order for the release of the vehicle was withdrawn, and the court had struck it out as withdrawn, the court was functus officio and had no jurisdiction to make the consequential orders. Besides since the applicants did not claim that the grant of the letters of administration was null and void nor that the Administrator-General be appointed to administer the estate, the validity of the grant or the appointment of the Administrator-General did not arise. Accordingly, the learned judge’s orders with respect to the revocation of the grant and appointment of the Administrator-General were wholly uncalled for and the application for certiorari would be granted.

Per Wiredu JSC: The orders made by the judge were in excess of jurisdiction and void ab initio. A void order has no legal consequence and when brought to the attention of the court in whatever form, the court can suo motu so declare it. There need not be a formal application before the court. Lapse of time is not a bar. No discretion arises in the grant of an order to quash void orders. The court is bound as a matter of course to issue the order

(5) The proceedings before the court did not entitle the judge to revoke the letters of administration. The procedure for ensuring that no grant of letters of administration was made without notice was provided by Order 2 rule 4 of LI 1515 which required an aggrieved person to file a caveat. The rule did not entitle the applicants to assail the grant by the sidewind, in the completely unrelated motion before the court.

Cases referred to:

Asafu-Adjei v Okrah [1984-86] 1 GLR 440, CA.

Asamoah v Ofori alias Renner [1961] GLR 269.

Calvin v Carr [1979] 2 All ER 440, [1980] AC 574, [1979] 2 WLR 755, 123 Sol Jo 112, PC.

China National Foreign Trade Transportation Corp v Evlogia Shipping Co SA of Panama, Mihalios Xilas [1979] 2 All ER 1044, [1979] 1 WLR 1018, 123 Sol Jo 521, [1979] 2 Lloyd’s Rep 303, HL, Digest Cont Vol E549.

Goods of Loveday, Re  [1900] P 154, 69 LJP 48, 83 LT 692.

Kumatse Re, Kumatse v Hodienukpor [1975] 2 GLR 344.

Mosi v Bagyina  [1963] 1 GLR 337, SC.

Penkro v Kumnipah II  [1987-88] 1 GLR 558, SC.

United Australia Ltd v Barclays Bank Ltd [1940] 4 All ER 20, [1941] AC 1, 57 TLR 13, HL.

APPLICATION for certiorari to quash the decision of the High Court.

Philip Addison  for the applicants.

Ewusie Wilson  for the respondent.

AIKINS JSC. The applicants invoke the supervisory jurisdiction of this court by way of certiorari to quash the order of the High Court, Accra presided over by Sampson J, dated 2 June 1992 and “the resultant proceedings in the cause instituted, In the Matter of the Estate of John Kwegyir Abban (Deceased) (Suit No 2695/91 PD)”.

The events leading to this application are as follows: On 9 October 1991 one John Kwegyir Abban, an engineer by profession, died and was buried at Saltpond on 30 November 1991. He died intestate and was survived by four children, namely Charles Abban, Paulina Abban, Janet Abban aged 26, 22, and 18 years respectively, and an infant, Apeatse Abban, aged 3 years.

The estate of the deceased included two cars, one of which was Mercedes Benz car No ACR 2761.

On 3 December 1991 the High Court, Accra, coram Aryeetey J, granted letters of administration to the applicants to administer the estate of the deceased, and on 3 February 1992 an elder brother of the deceased, Frank Abban, who had hitherto been appointed customary successor to the deceased by the family together with the head of family applied to the High Court, Accra to be joined as co-administrators. This request was granted by the High Court, coram Sampson J on 13 February 1992.

In course of time the applicants requested Frank Abban to surrender the said Mercedes Benz car which had been in his possession, and which they considered as belonging to the estate of the deceased but Frank Abban turned a deaf ear to their incessant requests.

In the result the applicants obtained an order from the High Court, coram Sampson J on 12 February 1992 for the return of the car to the applicants.

Instead of obeying the order of the court, Frank Abban filed a motion on 4 March 1992 praying for an order to set aside the order for release of the car. When later he realised that the car had been impounded by the police at the instance of the applicants, he decided to withdraw his motion filed on 4 March 1992. At the

hearing of the motion before Sampson J, Frank Abban withdrew the said motion. This was accepted by the court. It is the consequential orders made by the court that have been assailed before this court.

The applicants have urged that the High Court, Accra had no jurisdiction to revoke suo motu, the grant of letters of administration to the applicants by the High Court, coram Aryeetey J, which is a court of co-ordinate and competent jurisdiction, when no allegation had been before the court that the said grant was either fraudulent or irregular, especially when the only motion before the court was to set aside the order of the court for the release of the vehicle.

The ruling of the High Court is as follows:

 “By Court: Application to set aside the court’s order of 12/2/92 is hereby struck out as withdrawn. I make no order as to costs. I further order that vehicle No ACR 2761 should be surrendered by the police to the Chief Registrar of the court. I further order that the letters of administration issued to the respondent on 3/12/91 and the order for joinder made on 13/2/92 joining the applicant as a co-administrator are hereby revoked. The grant of the letters of administration dated 3/12/91, as amended, be brought to the court on Monday 8 June, for cancellation. I hereby now appoint the Administrator-General as administrator to administer the estate of the late John Kwegyir Abban; also the order of 12/2/92 to return vehicle No 2761 to the respondent is hereby revoked.”

No reason for the consequential orders have been given in this ruling, nor has Frank Abban in his affidavit in opposition contended that there was any allegation before the court that the grant of letters of administration to the applicants by the High Court, coram Aryeetey J, was fraudulent or irregular.

It must be pointed out that the court can only revoke the grant of letters of administration upon just cause, e.g. where a grant has been obtained fraudulently or mala fide by false representation or by concealing from the court something material to the case, which should have been disclosed.

In this respect I agree with the ratio decidendi of Ollennu J in the case of Asamoah v Ofori alias Renner [1961] GLR 269 at p 272. See also Tristam and Coote’s Probate Practice, 21st ed pages 457 - 461.

It is contended in opposition to this application that Frank Abban, the co-administator, was not consulted by the applicants before they applied for the grant, and that they did not disclose to the court that Eric Solomon was not a member of the deceased’s family, and that if this disclosure had been made Aryeetey J would not have made the grant.

I think the Administration of Estates Act 1961 (Act 63) makes it quite clear in section 79(1) that the choice of the court in granting letters of administration is not limited to the customary successor or other members of the family of the deceased. Though the customary successor is the most eligible among the members of the family, section 79(2) of the Act says that he is to be considered alongside others. The section reads:

“(2) In granting administration the Court shall have regard to the rights of all persons interested in the estate…”

Furthermore, under Order 2 rule 6 of the Probate and Administration Rules 1991 (LI 1515), on the death of the deceased on or after 14 June 1985, i.e. the date PNDCL 111 was enacted, persons having beneficial interest of the deceased are 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.

And under rule 8 of the same Order, it is stipulated that where there is a dispute between persons entitled to a grant in the same degree the court is entitled to make a grant to such of them as it considers fit.

In the case of Asafu-Adjei v Okrah [1984-86] 1 GLR 440 the Court of Appeal (coram: Adade JSC, Amua-Sekyi and Ampiah JJA), held, and quite rightly, that where the interests of the estate of the deceased or of those entitled to benefit from it required, the court might appoint a person with no share in it as administrator.

I do not consider, therefore, that the argument proffered on behalf of Frank Abban on these issues are sustainable. From my reading of section 79 of Act 63 and Order 2 rule 8 I do not see any fetters imposed on the discretion of the court.

It is also argued in opposition that the grant was a nullity because no notices of the grant were posted for the statutory period before the grant matured. It is my view that though under Order 2 r 3(1) of LI 1515, the court is required to give notice for a period of 21 days (or such other period as the court may order) after the grant in a manner specified in the sub-rule, sub-rule (2) of rule 3 gives a discretion to the court to dispense with such notice to beneficiaries entitled to a share of the estate of the deceased under the Intestate Succession Law 1985 (PNDCL 111).

In my judgment the High Court has no jurisdiction on its own motion to appoint the Administrator-General as administrator to administer the estate of the deceased. What the court was concerned with was to see to the proper administration of the estate and the interests of the beneficiaries.

In this context I quote with approval what Jeunne P said in Re Goods of Loveday [1900] P 154 at p 156, that in administration suits, “the real object which the court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto”.

In my view it is rather the private administrator, vis-à-vis  the court, who can of his own volition transfer the assets of the estate vested in him by virtue of the letters of administration to the Administrator-General. But even in such a situation the transfer must be done with the express consent of the Administrator-General by instrument in writing under his hand, notified in the Gazette; see section 22 of Act 63.

It is only where the Administrator-General petitions the court under section 16 of the Act praying for a grant of letters of administration of the estate, when it comes to his notice that the estate is unrepresented, that the court may make an order; so also in situations where a person dies leaving assets in Ghana and the court is not satisfied that there is any person immediately available who is legally entitled to succession to the assets and that there is a danger of appropriation, deterioration or waste of the assets before the succession can be determined, or where the Administrator-General is entitled to a grant of letters to administer the estate, that the court may direct the Administrator-General to collect and take possession of the assets.

Even under such circumstances the Administrator-General must apply to the court in the first instance; see section 19 of Act 63.

It must be emphasised that the motion that was before the High Court, Accra, coram Sampson J, on 2 June 1992 in suit No 2695/91 PD was for an order to set aside the order of the court for release of the vehicle. Since that motion was withdrawn, the court, having struck out the motion as withdrawn, was functus officio and, with respect, had no business or jurisdiction to make the consequential orders it did make.

Since Frank Abban did not make any claim that the subsisting grant was null and void, and that the Administrator-General should be appointed to administer the estate, the issue whether the subsisting grant was valid or not, and whether the Administrator-General should be appointed to administer the estate did not arise. Accordingly, the learned judge’s orders with respect to the revocation of the grant and appointment of the Administrator-General were wholly uncalled for.

Moreover, the proceedings before Sampson J in suit No 2695/91 PD did not entitle him to revoke the earlier grant because the procedure for ensuring that no grant of letters of administration issue without notice is provided by Order 2 rule 4 of LI 1515 which requires an aggrieved person to file (if he wishes) a caveat. This does not entitle the applicant to assail the genuineness of the subsisting grant by the sidewind, and in the completely unrelated motion before the court.

In the premises I would allow the application.

FRANCOIS JSC.  I shall not repeat the facts which have been copiously set out in the majority opinion just delivered by my brother Aikins JSC.

I do not disagree with the general conclusion either, that Sampson J erred in making orders after the application before him had been withdrawn. I also concede that proper procedures must precede the successful revocation of a grant. I said this some 17 years ago in Re Kumatse Deceased, Kumatse v Hodienukpor [1975] 2 GLR 344.

My difficulty stems from the fact that the applicants failed to take steps immediately to correct the errors committed by Sampson J, errors they now strenuously denounce. Then, they adopted the strategy of applying for a fresh grant. They failed also to supply the presiding judge with the current history and antecedents of the litigation.

On the face of it there was deviousness and concealment that can scarcely be described as honourable. Having paid such regard for proprieties, can the applicants scurrily proceed to seek relief from this court, as of right? A suitor for relief in this court must be worthy and deserving of it.

I ask myself this question: were the applicants guilty of unpurged contempt could this application in its present form succeed before us, even if an issue of jurisdiction existed? It is trite, to say that a nullity may still have some effect at law and is not regarded as legally non-existent until it is so declared. See Calvin v Carr [1979] 2 All ER 440.

Consequently, an application ex debito justitiae to have a matter declared a nullity, must be made by unsullied applicants who can demand audience before us. Otherwise, vexatious, contemptuous and irresponsible proceedings may be embarked upon in the hallowed and pretentious pretext of pursuing an existing right. This serves only to reduce the jurisdiction of this court to a farce.

Indeed the frontiers of absolute and discretionary rights are sometimes blurred and ill-defined. But where they cut across competing principles, the court must not shy from insisting on absolute good faith as a sine qua non for dispensing relief.

Finally, since the applicants exercised a choice by opting for a fresh grant rather than challenge Sampson J’s ruling (and indeed made the present belated application to escape contempt charges), it seems to me they have exhausted any rights they may have possessed. They should not be permitted to perform the magical feat of eating their cake and having it with the ignominious result of over-reaching the lower court.

The principle of election between inconsistent courses, was stated in United Australia Ltd v Barclays Bank Ltd  [1940] 4 All ER 20 at p 37 by Lord Atkin as follows:

 “[I]f a man is entitled to one of two inconsistent rights, it is fitting that, when, with full knowledge, he has done an unequivocal act showing that he has chosen the one, he cannot afterwards pursue the other, which, after the first choice, is by reason of the inconsistency, no longer his to choose.”

See also China National Foreign Trade Transportation Corp v Evlogia Shipping Co SA of Panama, Mihalios Xilas [1979] 2 All ER 1044.

It is for these reasons that I find it difficult to accept that the applicants retain a right to relief after so cavalierly bruising and