SUPREME COURT

State proceedings – Certiorari – Error of law – High Court entertaining application for leave to attach for contempt of court – High Court having jurisdiction to commit for contempt – Whether certiorari available – High Court (Civil Procedure) Rules 1954 LN 140A, Or 59 rr 2(1), 4(1) and 21.

State proceedings – Prohibition – High Court entertaining application for leave to apply for contempt of court – High Court empowered to commit for contempt – Whether prohibition available – High Court (Civil Procedure) Rules 1954 LN 140A, Or 59 rr 2(1), 4(1) and 21.

Judges – Bias – Test – Real likelihood required to ground application for bias.

State proceedings – Supervisory jurisdiction – Nature of – High Court and Supreme Court vested with supervisory jurisdiction in matters not necessarily involving issuance of prerogative writs – Jurisdiction includes power to issue directives without determining merits of case – 1992 Constitution articles 132, 141, and 161 – Courts Act 1993 (Act 459) s 5.

Administration – Personal representative – Duties – Personal representative to gather in and distribute estate within one year of grant of representation – Personal representative not to run businesses comprising estate except with beneficiaries’ consent – Administration of Estates (Amendment) Law 1985 (PNDCL 113) s 9.

Practice and procedure – Courts – Reconciliation – Court promoting reconciliation of matter pending before it – Whether competent to determine matter upon failure of reconciliation.

The deceased, a naturalized Ghanaian died intestate survived by his widow Emma, his mother and his issues. Letters of administration were granted to Emma, Asmah, Ekpah and Dr Uboh a brother of the deceased, to administer the estate which comprised a house in Nigeria and assets in Ghana including a hotel.

In a suit between Emma and some of the administrators the Court of Appeal issued directions for the effective management of the hotel business. Dr Uboh and Ekpah applied to the High Court to commit Emma, claiming that she had disobeyed those directions. The High Court committed her to five days imprisonment. On her release she
applied to the court for an order that she or her nominee and one of the defendants or their nominee should manage the hotel. The court granted the application and directed that the managers were to file monthly accounts with the court and pay into a bank all income received. In compliance with the order Emma nominated Mensah while Dr Uboh and Ekpah nominated Messrs James Taylor & Co.

Disagreements between the nominees led to another application by Dr Uboh and Ekpah in the High Court for leave to attach Emma and two others for alleged disobedience of the direction of the Court of Appeal. Upon the High Court granting the ex parte application for leave the respondents applied to the Supreme Court to quash the grant of leave, and for prohibition to stop the High Court from hearing the application. The applicants complained that in view of his previous committal of Emma, the High Court judge was likely to be biased in the second application.

The Supreme Court sought to promote reconciliation and exhorted the parties to settle their differences amicably pursuant to which terms of settlement were filed in the Supreme Court. Those terms had in effect transferred control over the management of the estate to the solicitors of the parties. Emma declined to sign the settlement and filed a motion in the Supreme Court for directions regarding the administration of the hotel and for such other orders as the court deemed fit.

At the hearing of the application the respondents contended that the court had no jurisdiction to entertain the application. The original application for certiorari, they argued, had abated upon the settlement but if the applicants claimed that settlement was not successful, they could revive the application. The directions sought must therefore be referred to the High Court where all other matters were pending.

Held: (1) Adade, Wiredu JJSC dissenting in part: There was nothing in the ruling of the High Court granting leave to apply for contempt to warrant the application for certiorari. The order granting leave was supported by Order 59 rules 2(1), 4(1) and 21 of the High Court Civil Procedure Rules 1954 LN 140A. The respondents to that application were entitled to raise any argument before the High Court at the hearing of the pursuant application. The Supreme Court could not grant the application for certiorari and prohibition in order to pre-empt the pursuant notice of motion as the court had jurisdiction to entertain the application.

(2) Similarly the application for prohibition must fail. Prohibition lay to curb excess of jurisdiction in a court or any adjudicating authority by whatever name so called. The High Court had jurisdiction to deal with the application before it, and it ought to be allowed to hear and decide it. St Magnus-the-Martyr, Parochial Church Council v Chancellor of London Diocese [1923] P 38, DC referred to.

(3) Sheer likelihood of bias did not suffice to sustain the applicants’ fears of bias in the High Court. They ought to have demonstrated real likelihood of bias, which they failed to do.

(4) Articles 132, 141 and 161 of the 1992 Constitution enabled the Supreme Court and the High Court firstly to supervise and control all other courts in matters not necessarily involving the issuance of prerogative writs and secondly to issue such orders and directions as would ensure fairness and expeditious disposal of cases in those courts. In this regard section 5 of the Courts Act 1993 (Act 459) which appeared to override the clear provisions in articles 132 and 161 of the 1992 Constitution must be construed as amplification, not circumscription of the supervisory jurisdiction of the High Court and the Supreme Court. Republic v High Court Registrar, Kumasi, ex parte Yiadom I [1984-86] 2 GLR 606 referred to.

(5) There were no guiding principles for the exercise of the general supervisory powers but each case ought to be considered on its merits. The supervising court must however not enter into the merits of the case. In lieu of dismissing the application for certiorari and prohibition, the court would in the circumstances of the case grant the application for directions and issue directions to the court below.

(6) Where a court sought to promote reconciliation or settlement of a matter pending before it, only that court would be seised with jurisdiction over the matter until it was resolved. In the event of failure to achieve reconciliation or settlement, the court would determine the matter. The Supreme Court had jurisdiction to determine the application for directions as the settlement filed left the administration of the estate in the hands of the solicitors rather than the High Court, a situation not warranted by law.

(7) The parties had taken to the wrong impression that it was in order that they continued to operate the hotel business without identifying the beneficiaries or their shares in the estate, resulting in violent disagreements and quarrels. The real function of administration was thus relegated to the background, and virtually forgotten. Given the fact that the administrators had defaulted in discharging their duties within the statutory period of one year, and in order to protect the interests of minors in the estate, the court would grant the omnibus prayer in the motion for “further orders” for the administration of the estate. The court below should ensure in the interest of all beneficiaries, that the administration was completed within three months. To this end the spouse and children or, if need be, the High Court, must make a choice of a house under section 4 of the Intestate Succession Law 1985 (PNDCL 111) if this had not already been done. The running of the hotel as a business ought to stop in the meantime.

(8) The duties of administrators did not include the right to possess and run an estate, whether the estate comprised a business or not. The administrator’s duties, upon receipt of the letters of administration, were to gather in the estate and distribute it to persons who were beneficially entitled. Those persons might include some or all of the administrators but it did not detract from the primary function of the administrators. Section 9 of PNDCL 113 required that the estate be shared out as quickly as possible, and in any case within one year of the grant of letters of administration or probate. The law did not specify the sanction to be applied in case of default to complete the administration within one year. It would seem that the court might, on becoming aware of such default, either on its own motion or on the application of any interested party, revoke the grant and make a fresh grant or appoint any competent person to administer the estate. Unless the beneficiaries so agreed, it was not the function of the administrators to run a business forming part of the intestate as a going concern for all time as though the intestate were alive. Failing such agreement such business must be wound up and the proceeds shared out to the beneficiaries according to their entitlements. Re Asante, Owusu v Asante [1992-93] GBR 462 SC referred to.

Per Hayfron-Benjamin JSC: Where a judge sensed that one or all parties to the litigation had lost confidence in the judge’s impartiality the proper course for such a judge was to decline jurisdiction. Hopefully the trial judge would advise himself.

Cases referred to:

Asante Re, Owusu v Asante [1992-93] GBR 462, SC.

Republic v High Court Registrar, Kumasi, ex parte Yiadom I [1984-86] 2 GLR 606, SC.

St Magnus-the-Martyr, Parochial Church Council v Chancellor of London Diocese [1923] P 38, DC.

RULING on applications invoking the supervisory jurisdiction of the Supreme Court for orders of certiorari, prohibition and directions for the administration of the estate of a deceased.

Bodza Lumor for Carson for the 1st applicant.

F Ntrakwa for the 2nd and 3rd applicants.

E Quashie for the respondents.

ADADE JSC. CM 18/93 is an application for certiorari, to bring up and quash a decision of the High Court, Sekondi (Bennin J) dated 12 May 1993 and for prohibition, to stop the said High Court from proceeding further with the process which resulted in the decision complained of. The decision of 12 May 1993 flowed from an ex parte application by Dr Cornelius Uboh and James Ekpah for leave to apply for attachment for contempt against Mrs Emma Uboh and 2 others. The minutes of the High Court on that day read:

“Parties present.

Nana Conduah (led by Quarshie) for applicants present. Counsel for applicants moves application ex parte for leave to issue notice for contempt against respondents.

By Court: Application granted. Applicants allowed 10 days within which to issue pursuant notice.”

That was on 12 May 1993. Six days later, on the 18 May 1993, the applicants filed the pursuant motion on notice, to be heard on 31 May 1993. The record does not show when the motion on notice was served on Mrs Emma Uboh, but the present application was filed on 27 May 1993, with the obvious intention of stopping the High Court from proceeding with the motion on the 31 May 1993. In paragraph 3 of the statement accompanying the application, Mrs Emma Uboh states the grounds on which the reliefs for certiorari and prohibition are sought as:

“The learned judge had no jurisdiction and therefore it was not competent for him to commit the applicants for contempt for

failing to do something which has not been ordered by any court of competent jurisdiction.”

The application is fiercely resisted by the respondents, Dr Cornelius Uboh and James Ekpoh. The High Court, Sekondi, is only a nominal respondent; it has filed no papers agreeing with or opposing the application. Under normal circumstances this application could be disposed of in a matter of seconds. Unfortunately, the circumstances are far from normal.

When the matter came before this court on 6 July 1993, it was discovered that the charges and counter-charges are all the result of differences connected with the administration of the estate of the late Peter Uboh, especially the management of the Western Palace Hotel, and that the parties, as administrators, should be encouraged to reconcile and settle these differences in the interest of the estate, especially of the minor beneficiaries. We counselled settlement. The parties appeared receptive, and asked to be given one week to explore possibilities of a settlement. The matter was accordingly adjourned to 13 July 1993. The parties announced that they had been able to settle, and asked for a week to file the “terms.” We adjourned sine die. The terms were filed on 23 July 1993.

It would seem that notwithstanding the alleged settlement, differences between the parties persisted, particularly as regards alleged dismissals of workers, and ejection of Mrs Uboh from the hotel premises. For on 28 February 1994, Mrs Emma Uboh filed another application for directions. The application was registered as Civil Motion No 5/94. This latter motion and the earlier one No 18/93 were listed before the court on 22 March 1994.

On that date Mr Ntrakwa appeared for Mrs Emma Uboh. Mr Quarshie, who was on record as representing Dr Cornelius Uboh and James Ekpah, failed to appear even in respect of Civil Motion 18/93. Mr Ntrakwa raised some issues touching the “settlement” filed on 23 July 1993. The court felt that in the interest of justice Mr Quarshie should be given an opportunity to react to Mr Ntrakwa’s position, and to comment, if necessary, on the terms of settlement, and their implementation. Accordingly, we adjourned the two civil motions, 18/93 and 5/94, to be taken together on 19 April 1994. The court ordered that the parties and or their counsel be formally notified.

The record shows that even though hearing notices were duly served on all the parties and their counsel, including Mr Quarshie, he again failed to appear. In the circumstances, the court proceeded to hear the two applications together, as previously ordered. Mr Ntrakwa appeared for Mrs Uboh and Mr Slippi Mensah; Mr Carson appeared for Mr Taylor, the chartered accountant who happens also to be a member of the Interim Management Team for the hotel. Mr Ntrakwa says the settlement falls short of what they expected. And Mr Ebow Quarshie counsel for Cornelius Uboh and James Ekpah confirmed this from the bar on 17 May 1994 when he said that although counsel for both parties had signed the settlement, the lady, meaning Mrs Emma Uboh, had refused to sign it.

It was plain therefore that it was unsafe to accept the settlement filed on 23 July 1993 and make it an order of the court. It was safer to proceed on the basis that the parties had failed to settle, as advised by the court on 14 July 1993. The course open to the court therefore was to hear the applications together as originally ordered. Accordingly the applications before the court, No 18/93 and No 5/94 were considered together and dealt with on their merits.

As stated earlier application No 18/93, for certiorari and prohibition, is in respect of the ruling of the High Court dated 12 May 1993, quoted above. I do not see anything about this ruling which warrants interference from this court. The High Court merely ordered that the application ex parte should be served on the respondents and be heard on notice. There is nothing wrong with this order; indeed, it is the proper order to make in the circumstances, short of dismissing the application ex parte for want of substance.

Order 59 rule 21 of the High Court (Civil Procedure) Rules 1954 (LN 140A) has it that:

“21 The procedure in applications for attachment for contempt of court in the cases to which this rule applies shall be the same as in applications for an order of mandamus, and rules 2, 4, 5 and 6 of this Order [ie Order 59] shall apply accordingly to applications for attachment, so far as they are applicable.”

The rule 2(1) mentioned above says in part:

“No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted.”

And by rule 4(1):

“When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made by notice of motion, except in vacation when it may be made by summons to a judge in chambers …” (My Emphasis.)

It follows then that when on 12 May 1993 the learned High Court judge granted the applicants leave to apply for attachment, it was obvious that the follow-up application could not be otherwise than on notice, whether the judge ordered it or not. The rules do not specify the time limits within which the pursuant notice should be filed. The judge was therefore within his rights, as a matter of discretion, to limit the applicants to 10 days. I see nothing wrong with this. The present applicants, being respondents to the application for attachment in the lower court are perfectly entitled to raise any matters, objections or arguments before the learned High Court judge on the hearing on notice of that application. I refuse to interfere with that interim order. The application for certiorari must fail. On the face of the record, I will not grant the application for prohibition either. The Sekondi High Court has jurisdiction to deal with the application before it, and it must be allowed to hear and decide it.

I have had occasion to observe before that every care should be taken lest parties are encouraged to abuse the general supervisory jurisdiction of this court. Here the applicants’ objective is that this court should “stop Bennin J from proceeding to hear the application for contempt on the merits.” (Emphasis supplied.) Clearly therefore, the applicants and their counsel are aware that the High Court has not heard the contempt application on the merits, let alone made any pronouncement therein. I think the High Court must be given the opportunity to exercise its jurisdiction. I will not prohibit it.

In the second application, Civil Motion 5/94, the applicants Slippi Mensah, Emma Uboh and Alex Sagoe are asking for “directions relating to the terms of settlement [filed on 23 July 1993] of the interim management of Western Palace Hotel” and “such orders pertaining to the interim administration of Western Palace Hotel and the estate of Peter Asuquo Uboh as the court may think fit.” Specifically, they ask for orders:

“(a)   That the salary of Mrs Emma Uboh as an employee of Western Palace Hotel be paid by the receivers and managers.

(b)      That the receivers and managers pay allowance to Mrs Emma Uboh and her daughter out of the proceeds from the operation of Western Palace Hotel just as allowances are paid to the children the late Peter Uboh had outside wedlock.

 (c)    That Dr Cornelius Uboh, Mr James Ekpah and Mr James Taylor give Mrs Emma Uboh access to her office at the Western Palace Hotel and her hairdressing salon on the hotel premise.

(d)    That Dr Cornelius Uboh, Mr James Taylor and Mr James Ekpah do recall the workers who were replaced in January 1994.

(e)    And for such other or further orders pertaining to the interim administration of Western Palace Hotel and the Estate of Peter Asuquo Uboh as this honourable court may seem fit.”

The affidavit in support of the motion was sworn by the 2nd applicant Mrs Emma Uboh. In paragraph 2 of the said affidavit she states:

“That I am also the widow of the late Peter Asuquo Uboh (deceased) and the plaintiff in suit No 62/91 pending before the High Court, Sekondi, and concerning the ownership of Western Palace Hotel.”

The defendants in the said suit No 62/91 are James Ekpah and Dr Cornelius Uboh, with the two Addisons as co-defendants. The writ of summons in suit No 62/91 claims:

(i)        A declaration that the plaintiff is the lawful owner and sole proprietress of Western Palace Hotel.

(ii)       An order for an account of all monies of Western Palace Hotel which have come into the hands of the defendants.

(iii)     Payment to the plaintiff of all monies found due to plaintiff upon taking of account.

(iv)     Perpetual injunction to restrain the defendants and all persons acting by the defendants from interfering, intermeddling or in any way dealing with the plaintiff’s hotel business in whatever capacity.”

It seems to me plain that as suit No 62/91 is still pending before the Sekondi High Court, that court is the proper court to deal with all applications relative to that suit, especially those in the nature of “directions and orders” sought by the applicants in Civil Motion 5/94. Attention may here be specifically drawn to Order 7 of the Probate and Administration Rules 1991 (LI 1515).

I am aware that this court has general supervisory powers over all courts, but it is not advisable that the court should permit itself to be manoeuvred into a position where it can legitimately be accused of usurping the role and functions of any lower court under the pretext of supervising it.

Article 132 of the constitution which gives us supervisory powers says:

“The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.” (Emphasis supplied.)

Article 161 defines “supervisory jurisdiction” as including:

“Jurisdiction to issue writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto.”

I will consider it an act of supervision if some orders or rulings of a lower court are brought to us, on review. But I will not regard myself as supervising a lower court where a party, instead of giving the lower court a chance to consider and decide a matter within its competence and jurisdiction, applies directly to this court to take over that matter and deal with it as if this court is a court of first instance, which it is not. To me such conduct on our part will amount to usurping the functions of the lower court. The “orders and directions” which the court is empowered to issue under article 132 are for the specific purpose of “enforcing or securing the enforcement of its supervisory power.” I do not consider that article 132 gives this court the power to decide cases for the lower court or to, as it were, instruct a lower court how to handle a case properly before it.

The settlement we advised on the 6 July 1993 having on counsel’s own showing failed, the application for “directions and orders” in respect of the failed settlement is, in my view, misconceived. The failure of the settlement throws us back to the status quo, ie the original application for certiorari and prohibition, to hear it and rule upon it, which as far as I am concerned, I have done earlier, by dismissing it. The parties may now go back to the Sekondi High Court to pursue whatever matter is pending there, and, in the process, seek such “directions and orders” as they may consider appropriate (see Order 7, LI 1515). Any party dissatisfied with an order of that court may take it further on appeal. It follows that in my view the application to this court for “directions and orders” cannot succeed. I will dismiss it.

This would seem to conclude the matter. However, in view of our experiences of late in these courts regarding administration actions, it may not be out of place to make a few comments, in the hope that they may be helpful in bringing the differences between the parties to a speedy end.

The affidavits and sheaf of documents filed in connection with these applications indicate that one Peter Asuquo Uboh, husband of Emma Uboh, died intestate on 2 December 1989. Emma Uboh is the only surviving spouse. Peter left behind one child by Emma Uboh, and 3 other children, all allegedly minors, by two other women, Margaret Yankah and Patricia Essien. It is also said that he is survived by an aged mother, as well as an only brother Dr Cornelius Uboh, who appears to be resident in the USA but who visits Ghana fairly regularly, especially since the brother’s death.

As to properties, Peter died possessed of: (a) a house at Sekondi, in which he ran a hotel business, the Western Palace Hotel; and (b) a house in Lagos, Nigeria. As to the house at Sekondi, the ruling of the High Court Sekondi ( Farkye J) dated 3 April 1992 has this to say:

“From the pleadings and affidavits in support of the motion for the appointment of manager and receiver, and the affidavit in opposition it is abundantly clear that all the parties agree on the following issues or facts:

(3) That Peter Uboh was a partner in a hotel business called Western Palace Hotel and that hotel business was being carried out at house No 3B/12, Axim Road, Takoradi, and that house was self-acquired property of the deceased.” (Emphasis supplied.)

The hotel business was run in association with two other persons, Messrs Carlis Addison and Justice Addison. Peter Uboh owned 60% of the capital; the other two partners had 40%. The documentary evidence shows that after Peter’s death the other partners withdrew all their capital contribution in the business. They therefore ceased to be part owners in the hotel with effect from the date of the payment to them of their shares.

Emma Uboh was, in the lifetime of her husband, an employee, a manageress, of the hotel. She also ran a hairdressing salon in a section of the hotel premises. Initially, letters to administer the estate of the deceased Peter Uboh, were granted to Emma Uboh and one John Asmah, described as a friend of the late Peter Uboh. On their application, Dr Cornelius Uboh and one James Ekpah were joined as co-administrators.

Difficulties have arisen as a result of this joinder; the parties would seem to have misconceived their functions as administrators, and have rather concentrated on running the hotel. In this misconception, they have not been much assisted by some rulings of the High Court, Sekondi, which seem to have deflected attention from administration to running the hotel.

Let it be stated that the duties of administrators are not to take possession of an estate and run it for themselves, whether the estate comprises a business or not. The administrator’s duties, upon receipt of the letters of administration, are to gather in the estate and distribute it to persons who are beneficially entitled to it. These persons may, and often do include some or all of the administrators themselves. But this makes no difference to the fact that the primary function of administrators is to take in the estate and share it out. The law requires that this sharing out be done as quickly as possible, and in any case within one year of the grant of letters of administration of or probate, as the case may be. Section 9 of Administration of Estates (Amendment) Law 1985 (PNDCL 113) reads as follows:

“There is hereby substituted for section 104 of the principal enactment [Act 63] the following:

Subject to the provisions of this Act or any other enactment a personal representative shall distribute the estate of a deceased person within one year after he has been granted probate or letters of administration.” (Emphasis supplied.)

The law does not specify the sanction to be applied in case of failure to complete the administration within one year, but it would seem that in such a situation the court would be entitled, on becoming aware of this failure, either on its own motion, or on the application of any interested party, to revoke the grant, and make a fresh grant or appoint any competent person to administer the estate. Let me repeat, it is not the function of the administrators to run the business of the intestate as a going concern for all time, as though the intestate were alive. At best that would be a matter for the beneficiaries, if they could agree. If not, then the business must be wound up, and the proceeds shared out to the beneficiaries according to their entitlements.

The problem in the instant case has been that the parties have been given the impression that it is in order for them to operate the hotel business without even determining in the first place who the beneficiaries are, and in what shares they are entitled to the estate. The result has been violent disagreements and quarrels. The real function of administration has been relegated to the background, and virtually forgotten. In Re Asante, Owusu v Asante [1992-93] GBR 462, SC, I had occasion to observe:

“For the purpose of reducing litigation, if for no other purpose, I wished that some changes were made in the law to the effect eg that on the death of any person intestate anyone at all, especially any beneficiary, may apply to the court to appoint any competent persons(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 persons within the village – an elder, the linguist, the village school master, 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 administrating 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 it out among themselves.”

I wished it had been possible in this case to have taken the course suggested above; all the bickering and the near chaos into which this estate seems to be plunged might have been avoided.

As stated earlier, the deceased left in Ghana the building housing the hotel, and another building in Lagos. By the Intestate Succession Law 1985 (PNDCL 111) it is for the surviving spouse and the children to select one of these buildings for themselves (section 4(b) of PNDCL 111). The administrators, as administrators, have nothing to do with this, beyond vesting the title of the selected building in the beneficiaries. If they are unable or unwilling to so this, the court may order the registrar of the court to discharge that duty.

If, for any reason, the selected house must be sold and converted into money, the right of first refusal goes to the surviving spouse, since the overriding objective of Law 111, as amended by the Intestate Succession (Amendment) Law 1991 (PNDCL 264) is to ensure that as far as possible the surviving spouse is not deprived of a “matrimonial” home on the death of her spouse. There are economic as well as sentimental reasons for this objective.

These considerations need not apply to the distribution of the residuary estate, as defined in section 18 of PNDCL 111. The most reasonable thing to do in this case is for the business to be valued by experts, and shared among the beneficiaries in accordance with section 5 of PNDCL 111. Any of the beneficiaries may buy out the others, if they so desire, the option going first to those beneficiaries with the largest share in the business.

The problems with this estate will be compounded, unless steps are taken immediately by the High Court to bring the administration of the whole estate to a conclusion as quickly as possible.

Given the fact that the administrators have defaulted in discharging their duties within the statutory one year, (indeed it is now 4 years since they took out letters of administration), and more especially that there are minority interests (ie interests of minors) involved in the estate, the High Court should ensure in the interest of all beneficiaries, that the administration is completed within the next three months.

To facilitate this end, the spouse and children or, if need be, the High Court, must be invited immediately to make a choice of house under section 4 of Law 111 (if this has not been done already), and appropriate directions given in respect of the selected house eg as to vesting of title, occupation, or sale, if necessary. The running of the hotel ought to stop in the meantime, so as not in any way to interfere with any decision or action in connection with the house, especially as to occupation or sale, and in order also to facilitate the valuation of the business, and the sharing out of the money value among the beneficiaries. Beyond this I do not find it advisable or necessary in the circumstances of this case, to give any orders or directions to the High Court.

As far as the present applications before this court are concerned, viz Nos 18/93 and 5/94, I find no merit in them, and I will dismiss them.

WIREDU JSC. I have had the privilege of reading beforehand the able and reasoned ruling of my learned and respected brother Adade JSC. Whilst I appreciate the learning in his beautiful and analytical review of the general overview of the facts and the law in this case, I have deemed it expedient to express my own views and approach this case from another angle.

I am of the respectful view that his concluding remarks do not go far into assisting in resolving the issues raised positively but rather seem to leave the matters in issue at large to the discretion of the High Court which court in my respectful view, equally shares the blame for the delay, mishandling and wasting of the assets of the estate. The matter came to us originally as an application for certiorari and prohibition under the supervisory jurisdiction of this court.

The subject matter in respect of which the application has been brought emanated from the High Court, Sekondi and it is in respect of the estate of one Uboh, a Nigerian who died intestate a naturalized Ghanaian. Facts revealed to us in the affidavits filed on behalf of the parties as well as elicited from the parties and their counsel in court show a complete lack of appreciation of the issues at stake and complete mishandling of the case from its inception, the blame for which can be levelled against the High Court and blunders by the counsel appearing in the case, that it has become apparent that some individuals who are not beneficiaries of the estate have taken advantage and are benefiting at the expense of persons entitled under the law to benefit from the estate.

Letters of administration of the estate in this case were granted almost about four years ago and the administrators do not seem to be anywhere near winding up the estate. Apart from resort to litigation involving the estate which was wasting the assets, the administrators have relinquished their duties and on the advice of counsel have handed over management of part of the assets of the estate to agents appointed by them because they were unable to agree. This state of affairs has resulted in one of the beneficiaries, ie widow of the deceased and a co-administratrix having been convicted of contempt and sentenced to five days imprisonment by the High Court.

Another attempt to convict her of contempt provoked the present application before us for orders of certiorari and prohibition against the High Court, Sekondi and the judge of the High Court handling the case. When the matter came before us, we advised settlement out of court after listening to the facts. We took this stand in the hope that counsel would assist the parties to appreciate the main issues involved and settle the case once and for all under the law of intestacy. Events at date have proved our hope wrong. Our hope did not materialize and success did not appear to have been achieved. A supposed settlement  which has rather entrusted the overall administration in the hands of solicitors was filed for adoption by the court. Subsequent events showed that the terms were not detailed enough to cover all the areas envisaged for a final settlement by the parties and it therefore became unworkable especially so when the widow (co-administratrix) refused to endorse it. She therefore joined in submitting an application for directions regarding the terms of the settlement.

When the application for direction came for hearing, even thought there was proof of service on counsel for Dr. Uboh the respondent, counsel returned the papers on the ground that he had no

instructions. The court then directed that counsel and all parties be served again as the court records showed that counsel had been appearing for the respondent in the case. The court indicated that the two applications for respondent in the case. The court indicated that the two applications for certiorari, prohibition and the one for the directions were to be taken together.

On the adjourned date, Mr Carson appeared for one Mr Taylor who was described as an interested person. Mr Taylor in fact is agent of Dr Taylor resulted in rather un-commendable revelation in the administration of the estate. Mr Carson stated in open court that he had been appearing for some infant beneficiaries in the case in the High Court yet did nothing beyond appearing for Mr Taylor. He attacked the jurisdiction of this court to entertain the application. It appeared to me satrange how he could justifiably appear for an agent of one of the administrator as well as some of the beneficiaries of the estate This to me amount to conflict of interest in the performance of his duty as a lawyer because Mr Taylor is required by law to impartially manage the affairs of the estate without favouring any of the beneficiaries. His duty in respect of the estate must not be based in either direction. One may ask how an independent person may judge that Mr Taylor is impartial when he is represented by the same counsel who is also protecting the interest of some beneficiaries of the same estate.

The facts at the hearing of the two applications revealed as follows:

(a)    The deceased had a building in Ghana (Sekondi) which he was running a hotel.

(b)    The hotel is housed in this building as a partnership business and yet not paying rent.

(c)     The deceased owned 60% shares in the hotel business.

(d)    The deceased owned another house in Nigeria.

(e)    The deceased died a naturalised Ghanaian

(f)     The beneficiaries of the estate are the widow, her children, the aged mother of the deceased and two other infant children by another woman.

(g)    In suit No 62/91, which has been settle, the widow accepted that 60% shares of the hotel was owned by her husband and 40% by the Addisions and therefore abandoned her claim to a share in the hotel.

The facts elicited from Mr Taylor appointed by Mr Uboh, a co-administrator show that he, Taylor, is in full control of the hotel business and that he had engaged new employees and had refused to provide for the widow and children who undisputedly are beneficiaries of the estate. The other employees are out of job and the widow had been denied access to her shop at the hotel. Such was state of affairs of the estate when the applications were being heard in this court.

With the above disclosure this court as the final and the highest court of the land and exercising a supervisory role over all the other courts in the country, the attainment of justice must be its main goal in this supervision exercise. With the above objective in mind, to throw out the present matter before us on strict technical considerations that the applications for certiorari, prohibition and directions are misconceived we will be adding our voice to the unjust situation so far unearthed, which have become apparent in the chequered history of this case. The supervisory power over all the courts is wide enough and independent of the court’s powers to issue a prerogative order. I am of the respectful view that this matter should not be dismissed on technical grounds as it would be unfair and unjust to the beneficiaries who are the interested persons before the court but ought to be considered within the wider context of supervision under article 132 of the 1992 Constitution. See Republic v High Court Registrar, Kumasi, ex parte Yiadom I [1984-86] 2 GLR 606, SC.

Under the supervisory jurisdiction of this court. I am of the view that where on the face of available facts grave injustice would be caused by refusing an application on the basis that the wrong reliefs have been sought and there appears to be a way which would justify our intervention to do justice, we should take the latter course especially in estate matters where the facts as revealed by this case result in unreasonable delay in bringing the administration to an early end and causing great hardship to the beneficiaries and resulting in the wasting of the assets of the estate. This court must intervene in such circumstances.

Guided by the above objective to achieving justice in this case, I have reached a conclusion diametrically different from that of my brother Adade JSC and I will proceed to endorse and give directions with the sole aim of aiding the High Court into doing justice in this case and to arrest further waste and direct attention to Order 7 rule 3 of Probate and Administrator Rules 1991 (LI 1515

An administrator is not entitled to hold on to any property forming part of the estate he is administering. His duty is to distribute in accordance with law to those entitled within the statutory period of one year and then apply to be discharged

I will therefore join in endorsing the views of my brothers Ampiah, Hayfron-Benjamin and my sister Bamford-Addo JJSC in making the understand directions.

BAMFORD-ADDO JSC. I also agree that the original application to this court for certiorari and prohibition should be refused as there is no merit in that application. At the hearing of the application it appeared to the court that this was basically an administration matter which needed to be handled expeditiously. It was to aid expeditious administration that this court attempted to promote reconciliation between all parties hence “terms of settlement” were prepared and filed in the court. The settlement appears to have failed when Mr Taylor, a nominee of some of the co-administrators appointed to manage the Western Palace Hotel with others, unilaterally assumed management and dismissed workers of the hotel replacing the with new ones, ejecting Mrs. Emma Uboh, one of the administrators and widow of deceased Peter Asuquo Uboh from the office and shop in the premises where the hotel was being operated and cutting off her monthly allowance which was being paid to her from the hotel business.. This promoted the filing of a

motion for directions by the applicants – no doubt an issue flowing from this court’s former advise for settlement in an effort to promote reconciliation.

Under article 132 of the 1992 Constitution the Supreme Court has supervisory jurisdiction over all courts including the High Court and can issue orders and directions, to all courts in the exercise of the jurisdiction. Therefore the motion for directions is properly before us and this court can issue any direction as may be necessary for the property handling of any matter before the High Court dealing with this case. The supervisory jurisdiction has been amply and correctly discussed in the ruling of my able brother Hayfron-Benjamin JSC which I have been privileged to read beforehand.

This case is simple and can be solved by prompt administration of estate of Peter Uboh (deceased) in accordance with PNDC 111 and 113 the latter of which mandates that administration should completed within one year of obtaining letters of administration by administrators.

In this case letters of administration were obtained in 1990 and up to now the administrators have neglected their duty under PNDCL 113 and rather concentrated all their attention on litigating on the management of the Western Palace Hotel, a business in which deceased Peter Uboh owned 60% share, to the detriment of the detriment of the whole estate to be administered. This court cannot in the interest of justice allow this state of affairs to continue any longer in complete disregard of PNDCL 111 and 113 and would issue direction necessary for the proper handling of this matter under our general supervisory powers. The directions set out in full and contained in the orders to be made are endorsed and adopted by me

HAYFRON-BENJAMIN JSC. Mr Peter Asuquo Uboh, a Nigerian who became a naturalized Ghanaian in 1972 died intestate on 2 December 1989. At the time of his death he was lawfully married to the 2nd applicant in these applications Mrs Emma Uboh. It is not denied that the late Peter Uboh had an issue with the 2nd applicant. It is however contended that he had other issues with other Ghanaian women one of such issues having subsequently died leaving an issue – a grandchild. It was further contended that the deceased left behind an “aged mother” thought her name is not disclosed in the affidavits. It is common ground that in 1990, letters of administration were duly granted by the High Court, Sekondi to the 2nd applicant and a friend of the family by name Mr John Asmah. Later in time a Dr Cornelious Uboh, a brother of the deceased normally resident abroad and one <r James Ekpah applied to the High Court Sekondi and were joined as co-administrators of the said estate. The properties included in the estate comprised a house in Nigeria and house No 38/12 Axim Road, Takoradi I which was carried on a hotel business known and called the Western Palce Hotel. It is admitted by all that the deceased owned a 60% share in the hotel business.

From the uncontroverted evidence contained in the affidavits the 2nd applicant was originally carrying on the hotel business on the premises. However, in 1984, the deceased decided to enter into the business and invited Mr Carlis Cato Addison and Mr Justice Kwamena Addison to form a partnership to run the hotel. It was a limited partnership; for in the first instance the partnership was to last for five years. When the first agreement expired it was renewed for two more years. But before the second agreement could expire in October 1991 Mr Peter Uboh died, thus effectively bringing the partnership to an end. It is clear that on the expiration of the second partnership agreement the two Addisons took out their “inputs” for on 28 July 1992, upon hearing an application for stay of execution pending appeal in suit No 62/91 entitled Emma Uboh v James Ekpa & Ors and Justice Kwamena Addison & Another the Court of Appeal noted:

“As regards the co-defendant (that is the Addisons) we make no order to join them in managing the business, having by themselves taken away their original inputs brought into the business. The matter is already pending to determine their financial entitlements in another court.” (Emphasis mine)

On the day that their Lordships in the Court of Appeal made the observations, noted above 28 July 1992, their Lordships made certain orders for the effective management of the hotel business. However, due to some misunderstanding as to how the court’s order were to be carried out, two of the administrators, Dr Cornelius Uboh and Mr James Ekpah sued out an application for contempt of the orders of the Court of Appeal praying the High Court to attach the 2nd applicant, Mrs Emma Uboh for disobedience to these orders. On 21 January 1993, Bennin J sitting in the High Court, Sekondi duly acceded to the prayer of the applicant and found the respondents guilty of contempt of the court’s orders and sentenced Mrs Uboh to five days imprisonment. On her discharge from prison she was to take immediate steps to work with the applicant’s nominee or advice herself appropriately.

Mrs Emma Uboh, the 2nd applicant herein served the sentence of 5 days imprisonment. On her release she filed in the Court of Appeal an application to vary the orders made by their Lordships on 28 July 1992. Their Lordships acceded to her prayer and stated thus:

“By Court: We grant the application and vary the earlier order under (1) by deleting (1) and substituting therefore the following:

(1) The applicant or her nominee and one of the defendants or their nominee are to manage the said hotel.”

In compliance with the varied order of the Court of Appeal the 2nd applicant nominated a Mr Slippi Mensah, now 1st applicant to these applications and Mr Alex Sagoe the 3rd applicant was appointed Manager of the hotel business. The respondents by a letter dated 15 March 1993, informed the 2nd applicant of their continued appointment of Messrs James Taylor & Co as their nominee.

By the terms of the orders made by the Court of Appeal on 28 July 1992 as amended, the parties were inter alia:

(2)     To file monthly accounts with the court.

(3)     Pay into court all monies which should have been paid into bank.”