This is an appeal by the Applicants/Appellants who will be referred to hereafter as Appellants against the judgment of the High Court, Sekondi dated 5^th day of July 2018 in favour of the Respondents/Respondents who will be referred to as the Respondents.

This is an estate matter involving the estate of Andrew Ackah Blay (deceased) who passed into eternity on the 26^th of October 2017. After his burial on 17^th February 2018, the Appellants applied for letters of administration to administer his estate. The first Appellant claimed to be the customary and lawful surviving wife of the deceased, with the second Appellant as the customary successor. The

Appellants’ application was on notice to the Respondents. The 1^st Respondent filed a stiff affidavit in opposition to the application, and claimed some of the properties of the deceased listed in the inventory as her personal possessions.

Upon hearing the arguments of the parties, the court in its judgment on the 5^th of July 2018 granted letters of administration jointly to the 1^st Respondent Hannah Ackah Blay, the 2^nd Respondent and eldest son of the deceased Emmanuel Ackah Blay, and Joseph K. A. Mochia the customary successor and the 2^nd Appellant herein. The court refused to grant the administration to the 1^st Appellant who claimed to be the customary wife aforesaid on the ground that she was not a surviving spouse.

The court in its judgment also declared, albeit with a caveat, that the 1^st Respondent was the joint owner of some properties listed in the inventory as those of the deceased and annexed to the application a number of documents on both the matrimonial house and some vehicles. Aggrieved by the said judgment, the Appellants appealed to this court.

GROUNDS OF APPEAL:

The grounds of Appeal found at pages 111-112 of the record of appeal are:

1. The 1^st Respondent/Respondent having made adverse claims to title of properties listed in the inventory as belonging to the deceased, cannot take Letters of Administration to administer the estate of the deceased.

2. The learned trial judge erred in excluding certain properties listed in the inventory, in the grant of the Letters of Administration.

3. The trial court erred in holding that the 1^st Applicant/Appellant was not a spouse of the deceased and therefore not entitled to a grant of Letters of Administration.

4. The trial court further erred in declaring the 1^st Respondent/Respondent as the surviving spouse of the deceased.

5. Additional grounds may be filed upon receipt of the record.

No further grounds were however filed by the Appellants.

ARGUMENTS:

In presentation of the appeal, the learned Appellants’ counsel argued the first two grounds of the appeal as aforementioned together: These are

1. The 1^st Respondent/Respondent having made adverse claims to title of properties listed in the inventory as belonging to the deceased, cannot take Letters of Administration to administer the estate of the deceased.

2. The learned trial judge erred in excluding certain properties listed in the inventory, in the grant of Letters of Administration.

The substance of the argument of the Appellants’ counsel on these two grounds of the appeal is that the learned trial judge made a determination of the ownership of some of the properties listed in the inventory. In doing this, the trial judge made a determination that the 1^st Respondent had made out a prima facie claim of title to some of the properties. Counsel contended that the caveat of the trial court that “anyone who believes strongly that any of the properties removed forms part of the estate of the deceased must issue a writ and have the matter determined by a court of competent jurisdiction”, found at page 107-108 of the record of appeal, does not make the position clearer. This is because 1^st Respondent as an administratrix of the deceased’s estate must act together with the other administrators. However, given the nature of the order made by the trial court in making the 1^st Respondent as owner of some of the properties, in the event of an action in respect of protecting the properties of the estate, there will be a problem and thereby exposing the oddity of the decision of the trial court. Counsel confirmed his argument with the case of In re Gyan-Fosu (Deceased); Boafo vs. Akwatia-Pekoh III (1974) 1 GLR 145 C.A. And finally that having made adverse claims to title to the assets of the estate, 1^st Respondent disentitled herself from a grant of letters of administration to administer the estate of the deceased.

In his reaction to the above arguments, counsel for Respondents raised a preliminary point of law, the substance of which is that the 2^nd Respondent, Emmanuel Ackah Blay as a son of the deceased, is by law entitled as an administrator to his father’s estate. That the 2^nd Respondent was joined as an unnecessary party to this appeal, and the Court ought to strike his name out as he was wrongly and incompetently joined. This is because there is no reasonable cause of action against him.

Coming to the merit of the appeal in which the Appellants contended that the 1^st Respondent Hannah Ackah Blay made adverse claims of title to the properties of the deceased, and cannot therefore take letters of administration to administer the estate of the deceased, Respondents’ counsel submitted that the contention of the Appellants has no legal foundation. Counsel contended that the 1^st Respondent cannot be labelled with the tag of having adverse claim to her claim of one half of the value of the matrimonial home which is House No. 3 Debris Lane, Effia. This is because the 1^st Respondent proved that she is a joint owner of the disputed house. If she lawfully and factually claims what belongs to her and same is confirmed by the trial judge, she cannot be labelled as having adverse claims to the property which would disentitle her from administering the properties jointly with the 2^nd and 3^rd administrators. This is because she has exhibited the relevant documents to prove her co-ownership of the house and her exclusive ownership of the vehicles.

Counsel contended that the argument that goes with 1^st Respondent’s ownership of the matrimonial home also goes with the vehicles. The vehicles are the Toyota Highlander 4 x 4, the Toyota Hiace Bus and the Nissan X-tera. The 1^st Respondent’s counsel contended that the ownership of all the vehicles were backed by the necessary documents by the 1^st Respondent to prove her factual and legal ownership of same.

It is the further contention of Respondent’s counsel that just as the Appellants have mounted this appeal against the Respondents, as co-administrators, in the same way, they can mount an action against the 1^st Respondent if they wish to challenge a declaration of title in the properties. Therefore Appellants’ contention that the administrators must act together as Plaintiffs or Defendants in case of a suit as regards ownership of the properties, as contended by Appellants’ counsel is untenable.

We have considered the spirited arguments of counsel on both sides, having scrutinized the annexures found in the record of appeal, the ruling, and the affidavits traded between the parties.

The preliminary issue which we want to dispose of is the argument of the Respondents’ counsel that the 2^nd Respondent Emmanuel Ackah Blay, the son of the deceased was joined in this appeal as an unnecessary party. This is because he is by law and in fact qualified to be made an administrator of the estate of his father. There is therefore no need for him to be a second Respondent in this appeal.

We entirely agree with this argument of Respondents’ counsel that the 2^nd Respondent son of the deceased is qualified as of right to be joined as an administrator of his father’s estate. Indeed although we labelled this issue as a preliminary issue, same assumes an important consideration in this appeal.

In the first place, the Appellants’ application without the 2^nd Respondent, who is the surviving son among five other children of the deceased, makes the process somewhat defective. This is because rule 13 of Order 66 of the High Court (Civil Procedure) Rules 2004 (C.I. 47) which deals with Probate and Administration has this provision:

Where a person dies intestate on or after 14^th June 1985, the persons who have beneficial interest in the estate of the deceased shall be entitled to a grant of letters of administration in the following order of priority:

(a) any surviving spouse

(b) any surviving children

(c) any surviving parents

(d) the customary successor of the deceased.

From the order of priority of grant in this instant case, the 2^nd Appellant customary successor is a distant fourth. It is strange why the Appellants omitted to bring in any of the children of the deceased. It was only during the hearing of the motion for the judge to consider who would be qualified to be granted the letters of administration that the Appellants counsel said they were not opposed to the 2^nd Respondent being included. And this informed the judge to make him a joint co-administrator.

Touching on the argument that the 2^nd Respondent is an unnecessary party to this appeal, we think that there is no need to have his name struck out as this is not a substantive action. In any case, the 2^nd Respondent has not suffered any embarrassment or any hardship to warrant his name being taken out of the fray.

Now coming to the meat of the appeal, the gravamen of the Appellants’ appeal as aforementioned , is that having made adverse claims against the deceased’s estate, the 1^st Appellant cannot take letters of administration to administer the estate of Andrew Ackah Blay. We wish to respectfully disagree with the learned counsel for the Appellants on this argument. We say this because it is the duty of the court in granting the application to exercise its discretion. This is provided under section 79(1) of the Administration of Estates Act, 1961 (Act 63) which provides:

Subject to the provisions of this section the selection of a personal representative is within the discretion of the court.

And sub-section 2 of section 79 also provides:

In granting administration the court shall have regard to the rights of all persons interested in the estate, including the successor if any, under customary law, and in particular, administration with the will may be granted to a devisee or legatee and the administration may be limited in any way the court thinks fit.

See the case of In re Asante (Decd); Owusu v. Asante (1993-94) 2GLR 271 hh. 2 & 3 and In re Armah (Decd); Armah v. Armah(1991) 2 GLR 53 h. 2 SC.

In the instant case, the 1^st Respondent has, from the affidavit evidence and annexures, appears to have substantial interest in the estate of the deceased. This shows in her tendering of documents that she is a co-owner of the matrimonial house and the vehicles. The discretion exercised by the learned trial judge was not arbitrary or capricious. Indeed, under section 77(2) of the Administration of Estates Act, it is provided that

The court in granting administration may act on such prima facie evidence furnished by the Applicant or any other person, as to whether or not there is a minority or life interest as the court thinks sufficient.

What the above means is that a court before which an application is made for grant of letters of administration “may act on such prima facie evidence furnished by the applicant or any other person”. We think in this instant appeal, this was what the learned trial judge did by factoring the documents on the House No. 3 Debris Lane, Effia, and those on the vehicles all listed in the inventory found at page 4 of the record of appeal. The trial judge did not therefore overreach the Appellants in giving due consideration to the documents of the 1^st Respondent. We believe that the 1^st Respondent used those documents to strengthen her application as contended by the Respondents in their written submission.

We have also looked at the case of In re Gyan-Fosu (Deceased); Boafo vs. Akwatia-Pekoh III (supra). In that case, the Court of Appeal, per Sowah JA (as he then was) cautioned judges entertaining applications for grant of letters of administration to not couple that determination with the ownership of properties listed in the inventory. The issue of ownership of disputed properties should be left at large and determined in appropriate proceedings if the parties so desired.

We entirely agree with our learned former colleagues of the Court of Appeal sitting in Kumasi, that the issue of ownership of disputed properties that show up in the inventory in an application for grant of letters of administration should not be coupled with determining ownership of these properties. The forum for title to the properties should be determined later at a court of competent jurisdiction. This will prevent confusion so as to allow the administrators the harmony and peace that should prevail between them to administer the estate of the deceased.

In the instant case, we don’t think the learned trial judge had made a definite and formal declaration of title in favour of the 1^st Respondent as if it were after a fully-pledged trial of two or more parties over the properties of Andrew Ackah-Blay. This is because, title, ownership and possession of the house in the inventory cannot be determined in a snap judgment in an application for grant of letters of administration. Indeed, we think the 1^st Respondent, would, with respect, be living in a fool’s paradise to hold the part of the decision as conferring absolute title of the disputed house and the vehicles in her.

And the learned trial judge put the matter beyond doubt in the judgment at page 107 of the record of appeal as follows:-

The law is that letters of administration is to be granted in respect of the self-acquired properties of a deceased and so I hereby remove the properties listed (supra) from the inventory attached to the application. By doing this, it must not be construed that I am declaring title to those removed properties in the 1^st Respondent herein since title to property can only be determined by evidence after a complete trial.

From the above, the trial judge found that the 1^st Respondent deserves to be included in the grant of letters of administration only because of the prima facie evidence led by her, both as the widow of the deceased, and as the owner and co-owner of some of the properties.

In the case of Beng and Another v. Poku (1965) GLR 167 SC, the court held as follows in holding 5:

The principle governing the grant of letters of administration where no appointment has been made by the family is that the court should lean in favour of the person shown to have the greater beneficial interest in the estate.

In the instant case, the fact that the trial judge removed some of the properties in the inventory as aforementioned, does not mean that the door is forever shut against the Appellants in contesting the ownership of those properties. Finally an Applicant who contests for ownership can be made an administrator. Exhibit “C” which the Appellants hold in high esteem cannot vindicate Appellants’ cause because same was withdrawn by 1^st Respondent. Its contents alone cannot change the fortune in favour of Appellants as Exhibits HAB 2 HAB 8 replace Exhibit “C” as found by the trial judge.

We have not found any merit in these two grounds of the appeal and same are hereby dismissed.

The next and final two grounds which were coupled and dealt together by the Appellants’ counsel are grounds 3 and 4. These are:

3. The trial court erred in holding that the 1^st Applicant/Appellant was not a spouse of the deceased and therefore not entitled to a grant of letters of administration.

4. The trial court further erred in declaring the 1^st Respondent/Respondent as the surviving spouse of the deceased.

Arguing these grounds together as aforementioned, the learned Appellants’ counsel submitted that “the 1^st Appellant joined in the application for letters of administration in her capacity as wife. There was no denying the fact that the 1^st Appellant was married customarily to the deceased and had two children with him. The case of the first Appellant was that her customary marriage to the deceased was not dissolved, but subsisted up until the time of the death of the deceased. Whether what she (1^st Appellant) says is true or not is a matter to be determined by way of trial, and not by affidavit evidence”.

Counsel contended that if evidence is led at a full trial in a court of law and it is proved that the 1^st Appellant was really married to the deceased, then the marriage which took place between the deceased and 1st Respondent with photographs Exhibit HAB 1 to prove that the marriage was celebrated, then that marriage cannot be clothed with any legality. Finally, counsel lamented that “it was unfair and an aberration of justice for the trial court to have declared the 1^st Respondent as the surviving spouse and then asked 1^st Appellant to take action to determine her status”.

In his answer to the above submission mixed with lamentation, the learned Respondents’ counsel submitted that there was available evidence before the trial judge on which he decided in favour of the 1^st Respondent. The evidence, counsel argued, is Exhibit “A” which the Appellants attached to their application for the letters of administration. That in Exhibit “A” announcing the death, burial and funeral arrangement of the deceased, the 1^st Respondent Hannah Ackah Blay was listed as a widow. This is found at pages 8 and 82 of the record of appeal.

Counsel contended that since the 2^nd Appellant customary successor to the deceased Joseph K. A. Mochia is mentioned as one of the Elders of the family of the deceased, and also his name appeared as a chief mourner in the funeral arrangements as “Osofo Mochia” of Half-Assini, his later denial that the 1^st Respondent is the widow of the deceased is conclusively presumed against him in terms of sections 25(1) and 26 of the Evidence Act, 1975 (NRCD 323).

Counsel supported his submission with the case of Gregory Tandoh IV vs Hanson (2010) SCGLR 971 h. 5. Counsel also contended that given the conflicting oral evidence about the status of the 1^st Appellant and 1^st Respondent, the document Exhibit “A” which was tendered by the Appellants must prevail over the competing oral evidence of the parties.

Counsel submitted that other documents which speak in favour of the 1^st Respondent are Exhibit HAB, the Marriage Certificate and Exhibit HAB 1 the photographs which show some aspects of the celebration of the marriage ceremony between the deceased and the 1^st Respondent.

We have no difficulty in agreeing with the arguments of the Respondents which were hurled at the Appellants that there was overwhelming evidence on which the learned trial judge depended to rule that 1^st Respondent Hannah Ackah Blay is the widow of the deceased Andrew Ackah Blay as against the 1^st Appellant Cecilia Asafo Adjei. We said so because the 1^st Appellant has not professed even the most basic affidavit evidence that she was customarily married to the deceased with whom she had two children till the time of the deceased passing on. The learned Appellants’ counsel ironically corroborated the ruling of the trial judge that from the available evidence for the grant of letters of administration, placed before the trial judge, the scale weighs heavily against the rival claim of 1^st Appellant which is devoid of any material evidence. That is why her counsel accepted the hard-hitting reality that the only avenue opened to the 1^st Appellant is

Whether what she (1^st Appellant) says is true or not is a matter to be determined by way of trial, and not by affidavit evidence (my emphasis).

The counsel’s admission of the trial judge’s saying at page 105 of the record of appeal that “1 think that the 1^st Applicant (1^st Appellant) cannot be made an administrator of the estate, and she is at liberty to commence an action against the estate to have her status determined/declared by a court of law (my emphasis) is the reality of the situation. This is the truth, and the only way forward in one of the most contentious of applications for letters of administration. As an elder and a chief mourner of the Alouwomba (Oyoko) family of Twinen from which the deceased hailed, the 2^nd Appellant was privy to the decision to recognize the 1^st Respondent as the legitimate surviving widow of the deceased. Since he 2^nd Appellant has denied this, same is conclusively presumed against him in terms of sections 25(1) and 26 of the Evidence Act as rightly contended by the Respondents’ counsel.

Further, we also agree with the Respondents’ counsel that since the documents Exhibits HAB through HAB 8 tendered by the 1^st Respondent have not been impugned, their probative value should be preferred to the conflicting oral affidavit evidence of the parties. This is confirmed in the case of Fosua & Adu-Poku vs. Dufie (Deceased) & Adu-Poku Mensah (2009) SCGLR 310 h.1 and Atadi v. Ladzekpo (1981) GLR 218.

Also the learned counsel for Respondents raised two important questions which the 1^st Appellant might not have an answer to. The first one is: if the 1^st Appellant had a subsisting marriage with the deceased before his death, why did she not challenge the marriage between the 1^st Respondent and her supposed husband in court? Secondly, why did not the family include her name as a widow in Exhibit “A”, the obituary notice to the whole world? The 1^st Appellant cannot say that she was not aware that the 1^st Respondent was married to the deceased in a public place to the knowledge of the whole world.

One other factor which makes the judgment appealed against unassailable is the fact that quite apart from the several documentary evidence which backed her affidavit evidence, the 1^st Respondent is a mother of three minor children begotten by the deceased with her. This reality is confirmed by the 1^st Appellant in paragraph 6 of the affidavit in support of the Appellants’ application for the administration found at page 2 of the record of appeal that “there was another woman by name Hannah Ackah Blay, in the life of the deceased, with whom he had children with”. Incidentally, while calling the 1^st Respondent Hannah Ackah Blay, that is her husband’s name and thereby confirming that the deceased was regularly married to 1^st Respondent, the 1^st Appellant maintains her maiden name. The supplementary affidavit sworn to and filed by the 2^nd Appellant found at page 76 of the record of appeal is devoid of any substance as Exhibit “A” has completely blotted out any truth in that supplementary affidavit which seems more like an after-thought than a sincere deposition made in good faith.

Besides, as aforementioned earlier in this judgment, section 77(1), (2) and (3) root for the 1^st Respondent who has three minor children with the deceased. It is surprising that the respected and experienced counsel for the Appellants failed to state the age of each of the six children of the deceased. If this is not the demand of the law, it is simply to help the court to know the age of the children to make the trial judge make informed opinion on the application.

We have painstakingly examined the appeal with all the annexures in the record of appeal, the statutes and subsidiary legislation governing grant of letters of administration, coupled with the potent speaking of decided cases. All these statutes and decided cases speak with one choral voice and vindicated the position of the Respondents. This is because given the available materials both parties placed before the trial judge, he could not have decided the case in favour of the Appellants, whose evidence is too weak to stand on its feet to match the solid and confident materials marshalled by the Respondents.

What this means is that this appeal should suffer dismissal and same is hereby dismissed and the decision of the trial High Court hereby affirmed.

L. L. MENSAH

JUSTICE OF APPEAL

IRENE C. LARBI (MRS), J.A.           I agree.      IRENE C. LARBI (MRS)

            JUSTICE OF APPEAL

ANGELINA M. DOMAKYAAREH (MRS),  J.A.      I also agree.

ANGELINA M. DOMAKYAAREH (MRS)

JUSTICE OF APPEAL