HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

ESSILFIE-BONDZIE, J.A.:

On the 1st December, 1998 the appellant Winifred Iddrissu and Amin Abdul Iddrissu applied to the High Court presided over by Mr. Justice W.K. Andah for the grant of Letters of Administration to enable them to administer the estate of Sulemana Ibun Iddrissu deceased, who died intestate on 27th April, 1994 in Accra.  The application was brought pursuant to Order 2 rule 6 of the Probate and Administration Rules, 1991, LI.1515 which prescribes the order of priority for the grant of Letters of Administration in respect of the estates of a person who died intestate after the enactment of the Intestate Succession Law, 1985, PNDC LAW 111 on 14th June, 1985. The rule is as follows:—

"Where the deceased died intestate on or after 14th June, 1985. The persons having a beneficial interest in the estate of the deceased shall be entitled to grant of Letters of Administration in the following order of priority" (The emphasis is mine)

(a) The surviving spouse

(b) Surviving children

(c) Surviving parents

(d) Customary Successor of the deceased.

It is noted that the late Sulemana Ibun Iddrissu, for administration of whose estate the application was made, died as stated above on 27th April, 1994, that is after 14th June, 1985, so the application had to be governed by the rule quoted above. The two who sought the grant of letters of administration were the appellant who was the surviving Spouse of the deceased and Amin Abdul Iddrissu, who was one of fourteen children of the deceased who survived him. The deceased was not, however, survived by any parent nor was any customary successor appointed.

The record shows that when the application came before the Court on the 1st December, 1998 it was adjourned to the 8th December, 1998. The record of proceedings does not indicate whether or not on the 8th December, 1998 the application did come before the Court. The record however indicates that on the 17th December, 1998 a caveat was filed on behalf of Hajia Adamu Iddrissu, Iddrissu Sulemana and Luckman Iddrissu against the application for the grant of Letters of Administration. On the 4th January, 1999 an affidavit of interest was filed. The said affidavit of interest was sworn by only one of the Caveators, Luckman Iddrissu, supposedly on his own behalf as well as on behalf of the two others Hajia Adamu Iddrissu and Iddrissu Sulemana alleged caveators.

In his affidavit Luckman Iddrissu stated that he is the second eldest child of the deceased with Iddrissu Sulemana as the eldest child. The affidavit declared that Hajia Adamu Iddrissu, the first caveatrix is the senior wife of the deceased. The affidavit went on to say that when he was alive the deceased married five women and that the appellant was one of them. That the deceased had 14 children with the five wives, all of whom were alive, except Hajia Aferuwa Iddrissu. In the said affidavit it was contended that the applicants for the grant of Letters of Administration are just one of the five spouses and her child so it would not be in the interest of all the 14 children that a grant of Letters of Administration be made to only one spouse and her child. In the affidavit, Luckman denied that the appellant Winifred Iddrissu was the only surviving spouse of the deceased as she alleged in the affidavit in support for the application for the grant of the Letters of Administration.

Following the affidavit of interest, a motion on notice was filed on 3rd February, 1999 asking for the grant of Letters of Administration to the two who had made the earlier application for the grant. The notice also asked for the removal of the CAVEAT. In the affidavit in support sworn by the appellant, the appellant contended that she was the sole surviving spouse of the deceased and that the deceased died survived by her, the Sole Spouse, and 14 children, all adults and that he had no surviving parents. As proof of her status as the sole surviving spouse, was attached to the affidavit a CERTIFICATE OF REGISTRATION of her customary marriage with the deceased at the Accra Metropolitan Authority Marriage Registry on 12th August, 1992. In the said Certificate the deceased declared that at the time of the registration he had no other existing marriages.

The motion on notice came on for hearing on 1st March, 1999 and the record of proceedings discloses that the appellants counsel contended that the claim that the deceased had five wives was false and that he had only one wife who was the appellant. Counsel then said that the "applicant had no objection to the children of the other women being joined for the grant of the Letters of Administration.”

On the 27th of April, 1999 as it is mirrored by the facts on record the learned trial judge, gave a Ruling making a joint grant to the appellant whom he described as one of the Surviving Spouses of the deceased Iddrissu Sulemana, Luckman and one Alhaji Iddrissu Grunshie as customary successor.

It is against this ruling that the appellant appealed on the following grounds:—

(a) The learned judge erred when he declared in the order granting the joint Letters of Administration that the appellant is one of the surviving spouses of the deceased when the evidence before them was clear that at the time of his death the deceased had no other wife apart from the appellant.

(b) That the appellant was the only spouse of SULEMANA IBUN IDDRISSU (deceased intestate) at the time of his death.

(c) The learned judge erred when he failed to include any of the appellant's six children (all adults) in the joint grant of Letters of Administration.

It appears that ground (a) and (b) are almost the same and I will therefore combine the two and treat them together. As earlier pointed out, in his ruling the learned judge referred to Winifred Iddrissu the appellant “as one of the surviving spouses of the deceased". In other words, the learned judge accepted the assertion that the deceased died survived by other spouses apart from the appellant Winifred Iddrissu. This statement was made in his ruling in the face of the declaration made by the deceased himself in 1992 when he applied for the registration of his customary marriage with the appellant that he had no other marriage existing at that time.  It is worthy to note that as proof of her claim that she was the sole surviving spouse, the appellant attached to her affidavit in support of her application, a CERTIFICATE OF REGISTRATION of her marriage with the deceased at the Accra Metropolitan Authority Marriage Registry on 12 August, 1992.

A look at the Certificate of Registration (attached) discloses that the deceased SULEMANA IBUN IDDRISSU declared in the certificate that at the time of the registration he had no other existing marriages. He made this declaration in compliance with the Customary Marriage and Divorce Registration Law 1985 (PNDCL 112) which requires that any application for the registration of a marriage contracted before the commencement of this Law should state the full names of the parties, of residence whether the husband has another wife and whether the wife is a spinster or divorced, (the emphasis is mine)

The Law went on to provide that the application should be signed or thumbprinted by the parties and their witnesses. See Section 2(3) to the First Schedule to the customary Marriage and Divorce Registration Law 1985. This is also highlighted in the book entitled Family Law in Ghana by William E. Offei at page 35.

Section 4(1) and (2) of the PNDCL 112 (Supra) also provide.

(1) The Registrar, shall upon the receipt of an application for the registration of a marriage, register the marriage and shall by notice in the form set out in the second schedule to this Law notify by publication of the registration of the law (The emphasis is mine)

(2) The NOTICE shall be on a public notice board in the office of the Registrar within twenty eight days of the application for registration.

Section 5(1) of the law which deals with objections to registration of customary marriages also provides "Any person who knows of any cause why the register should not have registered the marriage or objects to the validity of the marriage under the applicable marriage law, may at any time after the publication of the notice by the Registrar under Section 4 of the Law file the grounds of his objection in the District Court in the District in which the marriage was registered.”

In this case there is nothing on record to show that any of the caveators raised any objection when the deceased's marriage with the appellant was publicly published by the Registrar in accordance with the law. There is nothing to indicate that after the registration of the said marriage in 1992 any of the alleged wives of the deceased raised any objection to the deceased's assertion in the CERTIFICATE that at the time of the registration of his marriage with the appellant there was no other existing marriage. Why have they waited from 1992 throughout the deceased's marriage with the appellant until the deceased death. If it is true that the deceased had other wives at the time of the registration of his marriage with the appellant in 1992 as claimed by the CAVEATORS, the said wives would not have gone to sleep at the time of the deceased marriage with the appellant and waited until the death of the deceased to suddenly surface with the caveat.

I must confess that I do not find anything on record which contradicts what the deceased himself knew or said about his marital status at the time he registered his 1960 marriage with the appellant. Moreover there was no rebuttal evidence that after 1992 when the deceased applied for registration of his customary marriage with the appellant he contracted other marriages with any of the alleged other spouses or registered any of the other alleged marriages. It is my judgment that the facts in the Registration Certificate (an official record) of the deceased's marriage to the appellant is conclusively presumed to be true.

I agree with learned counsel for the appellant that having regard to what was on record, the implied finding by the judge that the appellant was one of the surviving spouses was erroneous. This is true because there was no proof of that beyond the bare statement of the caveator in an affidavit. I hold that the appellant was the sole and only spouse of SULEMANA IBUN IDDRISSU (deceased) at the time of his death as declared in the Certificate of Registration

The next ground of appeal is that the learned judge erred when he failed to include any of the appellant's six children (all adults) in the joint grant of Letters of Administration".

In his Ruling the learned judge failed to include any of the appellant's six children who make up about half of the 14 children of the deceased. This included the co-applicant who had applied for the grant of the Letters of Administration representing the interests of the appellant's six children with the deceased. In paragraph 6 of her affidavit in support of the application for grant of Letters of Administration, she said.

"There is no objection to any two of the children being added to the present applicant for the application to be granted".  In other words since the appellant's children were six out of the 14 children of the deceased, she expressed the wish that any two of the other children of the deceased could be added to her and her son, the co-applicant for the application of the letters. This would have brought the number of the administrators, to four. Now contrary to this request, the learned judge added the customary successor to two other children of the deceased and dropped the appellant's son who had applied for the grant. He brought the customary successor although he had never applied for the grant of Letters of Administration. This was clearly an error on the record.

Since this appeal is a rehearing of the original application for the grant of Letters of Administration, by virtue of Rule 32(1) of the Court of Appeal Rules CI.19 this Court has power to examine the facts and to make its own findings and so give such judgment or ruling on the case as is warranted by the record and as the trial court could have given. It is trite, that a grant cannot be given to more than four, so the addition of two other children of the deceased to the appellant and her co-applicant, AMIN ABDUL IDDRISSU, representing six children of the appellant would bring the number of administrators to Four. In the circumstances it is my judgment that the appeal be allowed and I hereby make an order granting the Letters of Administration jointly to the appellant, WINIFRED IDDRISSU, as the sole spouse, the co-applicant AMIN ABDUL IDDRISSU, and IDDRISSU SULEMANA, the second caveator and LUCKMAN IDDRISSU, the third caveator. There will be no order as to cost.

A. ESSILFIE-BONDZIE

JUSTICE OF APPEAL

ANSAH, J.A.:

I agree.

J. ANSAH

JUSTICE OF APPEAL

OWUSU-ANSAH, J.A.:

I also agree.

P.K. OWUSU-ANSAH

JUSTICE OF APPEAL.