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Review -Judicial
review – Certiorari - Letters of
administration – Order of
revocation - Wills –Probate –
Caveat – Whether or not there
was a breach of the right to be
heard before a determination is
made against a person - -
HEADNOTES
Following the death of one Robert
Habib Hitti (hereinafter
conveniently described as “the
testator”) who was thought to
have died intestate, joint
letters of administration to
administer his estate was
granted by the High Court, Accra
to the widow, Theresa Nahum
Rouhana (Deceased), and the 3rd
interested party herein on June
20, 2001. According to the
applicant, in the exercise of
the said authority the
administrators took several
steps in the discharge of their
functions as such and had the
estate wound up in or about
2002. Subsequently, a document
purporting to be the last will
of the testator was discovered
resulting in an application
being filed by the first and
second interested parties herein
for probate before an Accra High
Court in a suit numbered as
PA1603/2017. The pendency of the
said application for probate
having come to the attention of
the applicant herein, she filed
a caveat in the matter which was
then proceeded with in its
normal course and is currently
pending before the court for
determination. In the course of
the pendency of the
determination of the pending
probate application, the
applicant herein was served with
an affidavit by the 1st
and 2nd interested
parties in which it was deposed
among others that in a
different suit numbered as PA
543/2018, the High Court Accra
had on June 06, 2018 made an
order revoking the prior letters
of administration granted in
respect of the estate of the
testator on the ground that
the deceased died having left
behind a testamentary document.
Having had notice of the order
of revocation of the letters of
administration granted
previously in respect of the
estate of the testator, the
applicant took out the
application herein praying that
the judgment, the subject matter
of these proceedings be brought
up before us
HELD
(1) we note that the applicant who is
neither a person who is entitled
to nor claims to be entitled to
administer the estate of the
testator under or by virtue of
an unrevoked grant of probate of
his will or under his intestacy
cannot be a competent party to
an action to revoke probate or
letters of administration. Going
further, as the applicant is a
beneficiary under the will of
his deceased father, she does
not come within the
contemplation of the words “a
person not already a party to
the action who has an interest
adverse to the applicant”
within the intendment of rule 35
(1) of CI 47 such as to be
notified of the pendency of the
action to revoke the grant of
administration. Having come to
this conclusion we observe that
the argument pressed on us at
the hearing by learned counsel
for the applicant under the said
rule, which seemed to have
engaged our attention pales into
insignificance and is rejected
accordingly.
(2) A very close and careful
consideration of the application
herein reveals that the
invitation to us based on breach
of the right to be heard seeks
to impute to the learned trial
judge whose order is the subject
matter of these proceedings
knowledge of the issues raised
in the pending probate action
numbered as Suit Number PA
1603/2017 which is pending
before another judge. Since
there is not the slightest
indication from the processes
filed in the application herein
that she was aware of those
issues, it would be unreasonable
to fix her with knowledge of
them. In our opinion, having
regard to the circumstances of
this case, ground (1) of the
application also fails.
For these reasons, we are unable to
accede to the application before
us for certiorari and proceed to
dismiss same.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure) Rules, 2004, CI 47,
CASES REFERRED TO IN JUDGMENT
Carolus v Lynch
161 ER
Baker v Russel
161 ER 62;
In the Estate of
Musgrove,
Davis v Mayhew [1927] P
264
Asamoah v Ofori alias
Renner, [1961] 1 GLR 269,
Ollennu J
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE, JSC:-
COUNSEL
VICTORIA BARTH WITH
HER ERNESTINA OTU FOR THE
APPLICANT.
CLARENCE TAGOE FOR
THE 1ST AND 2ND
INTERESTED PARTIES.
ACE ANKOMAH FOR THE 3RD
INTERESTED PARTY
GBADEGBE, JSC:-
We have before us in the
exercise of our supervisory
jurisdiction under article 132
of the Constitution an
application for judicial review
in the nature of certiorari
directed at the judgment of the
High Court, Accra dated 05 June
2018. By the said judgment, a
prior order of letters of
administration granted in
respect of the Estate of Robert
Habib Hitti (Deceased) was
revoked at the instance of the
interested parties herein in a
case entitled: George Jamil
Mougainie and Another v Alwan
Robert Hitti. The grounds on
which the applicant relies in
support of the application are
as follows:
1.
The High Court, Accra presided
over by Mrs. Justice Jennifer
Akua Tagoe on 5th
June 2018 breached the rules of
natural justice and occasioned a
grave miscarriage of justice
when it revoked Letters of
Administration granted by the
High Court differently
constituted on 20th
June 2001 for the movable and
immovable property of the late
Robert Habib Hitti (Deceased);
when Applicant who is a
beneficiary of the Deceased’s
Estate was neither made a party
to the proceedings nor given any
hearing in the matter.
2.
The Interested Parties breached
the rules of natural justice and
misled the High Court, Accra
into doing same when they
purported to sue for the
Revocation of the movable and
immovable property of the late
Robert Habib Hitti (Deceased)
without notice to the Applicant,
when they knew or ought to have
known that the Deceased’s estate
had been distributed pursuant to
the Letters of Administration
and wound up over twelve years
ago.
The background to this
application is stated shortly as
follows. Following the death of
one Robert Habib Hitti
(hereinafter conveniently
described as “the testator”) who
was thought to have died
intestate, joint letters of
administration to administer his
estate was granted by the High
Court, Accra to the widow,
Theresa Nahum Rouhana
(Deceased), and the 3rd
interested party herein on June
20, 2001. According to the
applicant, in the exercise of
the said authority the
administrators took several
steps in the discharge of their
functions as such and had the
estate wound up in or about
2002. Subsequently, a document
purporting to be the last will
of the testator was discovered
resulting in an application
being filed by the first and
second interested parties herein
for probate before an Accra High
Court in a suit numbered as
PA1603/2017. The pendency of the
said application for probate
having come to the attention of
the applicant herein, she filed
a caveat in the matter which was
then proceeded with in its
normal course and is currently
pending before the court for
determination.
In the course of the pendency of
the determination of the
pending probate application,
the applicant herein was served
with an affidavit by the 1st
and 2nd interested
parties in which it was deposed
among others that in a
different suit numbered as PA
543/2018, the High Court Accra
had on June 06, 2018 made an
order revoking the prior letters
of administration granted in
respect of the estate of the
testator on the ground that
the deceased died having left
behind a testamentary document.
Having had notice of the order
of revocation of the letters of
administration granted
previously in respect of the
estate of the testator, the
applicant took out the
application herein praying that
the judgment, the subject matter
of these proceedings be brought
up before us for the purpose of
being quashed on the grounds
stated in the opening paragraph
of this delivery.
Before we turn our attention to
the merits of the instant
application, we desire to
comment on two matters of
procedure of some importance
which though not raised by
either party to the proceedings
herein require to be dealt with
for future guidance only. It
relates to the formulation of
the grounds of the application
by the applicant. In our view,
in stating the grounds on which
an application for judicial
review is brought, an applicant
should not engage in
argumentation but concisely
express same without any
narrative. A consideration of
the grounds urged before us,
however reveals that the
applicant has engaged in
argumentation; an aspect of the
matter which properly belongs to
the statement of case that
parties are required by the
appropriate rules of procedure
to file in support of an
application for judicial review
with the narration of the
grounds being deposed to in the
supporting affidavit.
The second point concerns the
nature of jurisdiction that is
available to us in an
application for judicial review
in the nature of certiorari.
Such an application confers on
the court a jurisdiction that is
exercisable only in relation to
matters which transpired in the
court whose judgment and or
order is the subject matter of
the application and does not
extend to matters which were not
part of the proceedings leading
to the judgment or order on
which the application is
grounded. Relating this to the
application herein, we wish to
say that the processes filed in
respect of the pending probate
action before the High Court
numbered as Suit Number
1603/2017 are extraneous to the
matter herein although it has a
bearing on the right to
administer the estate of the
testator. Accordingly, the
applicant should have avoided
reference to the processes filed
in the said matter. We have
taken time to make these
observations as our jurisdiction
in the matter herein is
strictly circumscribed by what
was before the court which made
the judgment or order which it
is sought to have quashed and in
the event of us going beyond the
allowable limits, we leave
ourselves open for complaints in
the nature of having exceeded
our jurisdiction in the matter.
It is for this reason that in
applications for certiorari, the
applicant is limited to raising
matters which may properly be
described as belonging to the
“record”.
Although the applicant does not
rely on “Error of law on the
face of the record’, and for
that matter is not constrained
in the making of the application
by notions of what constitutes
the “record’, we are of the
opinion that the admission of
affidavit evidence to prove
breach of the right to be heard
does not extend to the
introduction of matters relating
to a case other than that in
which the judgment the subject
matter of these proceedings was
rendered. Since matters relating
to the suit numbered as
1603/2017 were not introduced
for the purpose of showing that
in case number PA 543/2018 the
applicant was denied the right
to be heard such as to establish
jurisdictional error arising
from the failure of the trial
court to meet the minimum
requirements of fairness
inherent in the right to be
heard, the processes filed in
respect of Suit Number 1603/2017
are not matters to be taken into
account for the purpose of
showing that indeed, the
applicant suffered a denial of
justice when she was neither
made a party nor heard before
the decision of the court on
the application for judgment on
admissions was made. We are of
the view that to succeed in her
application, the applicant must
rely only on processes that were
filed in Suit number PA 543/2018
for the purpose of satisfying us
that breach of the rules of
natural justice on which the
application is grounded has the
attribute of invalidating the
decision rendered in the matter.
Proof of the denial of the right
to be heard in such cases
renders the judgment based
thereon one subject to
jurisdictional error for which
reason in seeking to confine the
trial court to its
jurisdictional limits, the
exercise of the supervisory
jurisdiction must to be good
relate to matters which arose in
the said matter only. The
jurisdiction conferred on us in
the exercise of judicial review
is thus narrow and limited in
terms of the processes that can
form the legitimate basis for
the invocation of our
jurisdiction. We add that it is
important to bear in mind that
should we veer outside the
narrow limits of our
jurisdiction, we would be
embarking on a journey beyond
the parameters of the
supervisory jurisdiction
conferred on us under article
132 of the Constitution.
We now turn our attention to
the substantive application. The
two grounds urged by the
applicant raise for our
consideration a case of an
alleged breach of the right to
be heard before a determination
is made against a person. While
the first ground is raised
against the trial court, the
second ground is essentially
urged against the interested
parties who are neither
exercising a judicial nor a
quasi-judicial function such as
to be amenable to the
supervisory jurisdiction. In our
opinion, the second ground on
which the application is planked
does not strictly speaking come
within the scope of the
jurisdiction conferred on us
under article 132 of the
Constitution. We have taken note
of the related matter contained
in ground 2 which speaks of the
estate having been wound up long
before the application was filed
to revoke the grant and add that
as the letters of administration
was obtained contrary to the
statutory provisions that
authorise the grant of letters
of administration, the order was
from its inception a nullity
and the feeble point concerning
the statute of limitation does
not arise for our consideration;
for such a point cannot override
the fact that where a deceased
died leaving a will, the estate
falls to be distributed by rules
of testacy but not intestacy.
With particular reference to the
issue raised before us in
ground(2) of the application
concerning the estate having
been wound up before the action
was taken to revoke the grant of
administration, we emphasise
our previous observation
regarding the limits of the
supervisory jurisdiction and say
further that since the point
was not raised before the
learned trial judge in the
course of the proceedings
preceding her judgment, or
raised to supplement the ‘record
of proceedings’ for the purpose
of showing absence of
jurisdiction or identifying
jurisdictional error we are
disabled from having regard to
it in the application before
us; to do so would mean that we
are exercising a jurisdiction
other than the supervisory
jurisdiction.
We are of the opinion that there
is ample jurisdiction in the
court to intervene to get rid of
the grant on which this case
turns and make reference to
previously decided cases in
which the court revoked letters
of administration after the
discovery of a will by the
deceased. Reference is made to
the following cases of
persuasive authority; (1)
Carolus v Lynch 161 ER 6;
(2) Baker v Russel 161 ER
62; (3) In the Estate of
Musgrove, Davis v Mayhew
[1927] P 264. Indeed, in the
Estate of Musgrove, the
revocation was made twenty years
after the death of the testator.
In any event assuming for the
purposes of argument that the
failure of the trial court to
uphold the plea of limitation of
statute was wrongly dismissed,
it is an error made within
jurisdiction and cannot be a
basis for the invocation of
certiorari; the proper means of
seeking redress is to appeal and
not engage in a collateral
attack as the applicant has
employed in these proceedings.
In our view as a will was
discovered subsequent to the
grant of letters of
administration to the wife of
the testator and the 3rd
interested party herein, the
said grant was made on the basis
of a fact which did not exist
and made the grant contrary to
the provisions of the
Administration of Estates Act,
Act 63. In our opinion where a
grant is made to a person other
than the one lawfully entitled,
there is authority in a court to
revoke the grant. In the course
of his judgment in the case of
Asamoah v Ofori alias
Renner, [1961] 1 GLR 269,
Ollennu J observed of the
position at page 273 as follows:
“Again, the
contention that administration
cannot be revoked is erroneous.
Administration may be revoked
for good cause, e.g., when, as
in this case, it is granted to a
person other than the person
lawfully entitled to it.”
In the case before us, we have
no doubt that “good cause”
includes the mandatory provision
of section 67 of the
Administration of Estates Act,
1961, Act 63 which provides as
follows:
“Where administration is
granted in respect of an estate
of a deceased person, a person
shall not bring an action or
otherwise act as an executor of
the deceased person in respect
of the estate comprised in or
affected by the grant until the
grant is recalled or revoked.”
Having regard to the above
statutory provision, we are of
the opinion that as the 1st
interested party derived his
authority from the will, indeed
from the moment that the
testator died, he was obliged to
take the required step in the
matter to enable him exercise
the office of an executor by
seeking an order revoking the
grant of letters of
administration. In seeking an
order revoking the prior letters
of administration granted on the
basis of intestacy, the
necessary and proper party to
sue in law is the person or
persons to whom letters of
administration were granted. We
think that an action by which a
revocation of the letters of
administration is sought is
intended to remove any obstacle
in the path of the executor who
by law succeeds to the estate of
the testator and perfects same
by taking out probate to enable
him distribute the estate of the
testator. For this reason, we do
not see any substance in the
objection touching and
concerning the applicant herein
not having been made a party to
the proceedings. The executor
took the proper steps in the
matter by pursuing only the
surviving administrator of the
estate of the testator. In
coming to this opinion, we do
not disregard that in taking out
the action to revoke the letters
of administration, the executor
joined one of the beneficiaries
of the last will of the testator
as 2nd plaintiff but
in our view, this was an
instance of misjoinder and it
would equally have been so if
the applicant herein were also
joined to the said action.
However, the misjoinder of the 2nd
interested party herein to the
action to revoke the grant of
administration has no
consequence on the determination
of the matter before the trial
court in view of Order 4 rule
5(1) of the High Court (Civil
Procedure) Rules, 2004, CI 47,
which is expressed in the
following words:
“No proceedings shall be
defeated by reason of misjoinder
or non-joinder of any party, and
the Court may in any proceeding
determine the issues in question
in dispute so far as they affect
the rights and interests of the
persons to the proceedings.”
Further in our opinion, the
provisions of rule 35 of Order
66 of CI 47 are inapplicable to
actions for the revocation of a
grant of probate or letters of
administration. In coming to
this view of the matter we have
read the entirety of the Order
as one in order that all the
various rules thereunder can be
heard singing in a harmonious
tone. Proceeding thus, we note
that the applicant who is
neither a person who is entitled
to nor claims to be entitled to
administer the estate of the
testator under or by virtue of
an unrevoked grant of probate of
his will or under his intestacy
cannot be a competent party to
an action to revoke probate or
letters of administration. Going
further, as the applicant is a
beneficiary under the will of
his deceased father, she does
not come within the
contemplation of the words “a
person not already a party to
the action who has an interest
adverse to the applicant”
within the intendment of rule 35
(1) of CI 47 such as to be
notified of the pendency of the
action to revoke the grant of
administration. Having come to
this conclusion we observe that
the argument pressed on us at
the hearing by learned counsel
for the applicant under the said
rule, which seemed to have
engaged our attention pales into
insignificance and is rejected
accordingly.
A very close and careful
consideration of the application
herein reveals that the
invitation to us based on breach
of the right to be heard seeks
to impute to the learned trial
judge whose order is the subject
matter of these proceedings
knowledge of the issues raised
in the pending probate action
numbered as Suit Number PA
1603/2017 which is pending
before another judge. Since
there is not the slightest
indication from the processes
filed in the application herein
that she was aware of those
issues, it would be unreasonable
to fix her with knowledge of
them. In our opinion, having
regard to the circumstances of
this case, ground (1) of the
application also fails.
For these reasons, we are unable
to accede to the application
before us for certiorari and
proceed to dismiss same.
N. S GBADEGBE
(JUSTICE OF THE SUPREME COURT)
ADINYIRA, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
KOTEY, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
PROF. N A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
VICTORIA BARTH WITH
HER ERNESTINA OTU FOR THE
APPLICANT.
CLARENCE TAGOE FOR
THE 1ST AND 2ND
INTERESTED PARTIES.
ACE ANKOMAH FOR THE 3RD
INTERESTED PARTY.
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