IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
APPRO GHANA LTD - (Plaintiff)
ERIC YAW SARPONG BERKU AND ANOR AND MAVIS FOSUAH AND ISAAC ANKOBEA SARPONG -(Defendant)
DATE: 8 TH MAY, 2018
SUIT NO: RPC 72/2015
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
OSEI KUFFOUR FOR THE PLAINTIFF/RESPONDENT
ATTA POKU FOR THE APPLICANT
This is an application for substitution pursuant to Order 4 rule 6 of the High Court (Civil Procedure) rule 2004, CI 47. The applicant, Mavis Fosuah is praying the court to substitute her for the 2nd defendant herein who is now deceased.
According to the applicant, she has filed this application in her capacity as the customary successor of the 2nd defendant and she is doing so in her desire to protect the interest of the family of the deceased. The plaintiff is opposed to the application, likewise an interested party, one Isaac Ankobea Sarpong.
The plaintiff/respondent’s beef is that the applicant is not the right person to substitute the 2nd defendant. Counsel for the respondent contends that the interested party who happens to be the biological son of the 2nd defendant herein is the one appointed as the administrator of the estate of the 2nd defendant per the letters of administration exhibited in this court. Counsel submits that where there is conflict as to who should be substituted the capacity of the parties making the application is the determining factor. Thus, in the instant case it is the interested party who is clothed with the capacity to substitute the 2nd defendant, as an administrator of the latter’s estate.
Counsel for the interested party submitted to the court that every letters of administration includes an oath to settle all just debts of the dead person whose estate is the subject of the letters of administration. He submitted that the reason why the applicant wants to be substituted is the duty of the interested party. He concluded that having come to court with evidence that the letters of administration has been granted to the interested party, it is a matter of law that the applicant has been incapacitated. He cited the case of In re Appau (deceased) v Ocansey (1993/94) 1GLR 146 CA and invited the court to dismiss the application of the applicant and substitute the interested party instead of the applicant.
Order 4 rule 6 provides that:
6. (1) Where a party dies or become, bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.
(2) Where at any stage of the proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, for the effective and complete determination of matters in dispute, order that other person to be substituted for the first-named party...
In the instant case, there is no doubt that the cause of action has survived the 2nd defendant herein who is now deceased. The question is: between the applicant and the interested party who is the rightful person to be substituted?
Order 66 rule 13 of CI 47 provides:
“Where a person dies intestate on or after 14th June, 1985, the person 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 deceased.”
It is clear that the interested party as a surviving child is better placed to be granted letters of administration (LA) than the applicant who describes herself as a customary successor. No wonder the court granted the interested party the letters of administration.
The LA as issued by a court of probate appoints a manager of the assets and liabilities of the estate of the deceased. Since the validity of the letters of administration (exhibit IA1) has not been impeached, the interested party herein is the sole administrator of the deceased’s estate and he is the one ordained by the court to manage the estate of the deceased including the defence of any civil action relating to her estate. The intentions of the applicant in filing this application may be noble. She is, however, a stranger to the LA and cannot usurp the duty of the interested party under the LA.
Her application cannot be entertained so long as Isaac Ankobea Sarpong remains an interested party who has mounted a rival bid to substitute the 2nd defendant. The result is that the applicant’s application fails. I, however, grant the prayer of the interested party to be substituted in place of the 2nd defendant herein. Let the order of substitution be served on Isaac Ankobea Sarpong.
There will be no order as to costs.