ANSAH AND OTHERS VRS. ANSAH [2023] GHAHC 522 (3 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE PROBATE AND ADMINISTRATION DIVISION I HELD IN ACCRA ON 3RD DAY OF NOVEMBER, 2023 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, JUSTICE OF THE HIGH COURT ---------------------------------------------------------------------------------------------------------------- SUIT NO. PA/0176/2023 1. JAMES KOFI ANSAH 2. VERONICA ESI NYANKOM ALL OF H/NO. Q167 } } } AGBELZAA MANET RD } PLAINTIFFS GPS-GZ-130-6662 3. MR JAMES OBENG H/NO. GB, ASHONGMAN ESTATE GPS-GE-155-8865 VS JANET ANSAH } } } } } H/NO. 2, GARNET STREET, } DEFENDANT SAKUMONO, ACCRA } --------------------------------------------------------------------------------------------------------------------- PARTIES: 1ST AND 3RD PLAINTIFFS PRESENT DEFENDANT ABSENT COUNSEL: FESTUS ADAMS HOLDING BRIEF FOR G. S. K. BABANAWO FOR THE PLAINTIFFS PRESENT SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT ALEX DODOO BEING LED BY PAULINA AKOSUA DANSO HOLDING BRIEF FOR NANA YAW NTRAKWAH FOR THE DEFENDANT PRESENT -------------------------------------------------------------------------------------------------------------------- JUDGMENT --------------------------------------------------------------------------------------------------------------------- [1] Introduction The Plaintiffs issued a Writ of Summons with an accompanying Statement of Claim on 21st November 2022 for the following reliefs: a) “Declaration that the Defendant cannot apply for the letters of administration without the knowledge of the customary successor and the head of the deceased family. b) An order directed at the Defendant to return the said letters of administration and deposit same at the Court. c) Plaintiffs pray that the next of kin should be joined to take the letters of administration.” The Defendant entered conditional appearance to the Writ of Summons and accompanying Statement of Claim on 8th March 2023. The Defendant filed her Statement of Defence and Counterclaim on 31st May 2023. The Defendant counterclaimed as follows: a. “Perpetual injunction restraining the Plaintiffs, their agents, servants, privies and whomsoever from entering upon or in any interfering with the Defendant’s quiet enjoyment of the property described as “Land with building thereon located at Sakumono, Accra and known as No. 2 Garnett Street. b. Costs” [2] The issues for determination SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT At the close of pleadings, the Plaintiffs’ Counsel formulated two issues for determination by the Court. The Defendant’s Counsel formulated two additional issues. All the issues were set down and they are as follows: a) “Whether or not the deceased’s surviving mother is entitled to at least a portion of the son’s Estate even if that portion is of no value. b) Any other issues arising out of the pleadings. Additional Issues c) Whether or not the Defendant required the consent of the customary successor and the family head of her late husband’s family before applying for Letters of Administration? d) Whether or not the next of kin can be joined as an Administrator of the Estate of the late Francis Kwame Ansah?” [3] The Plaintiffs’ case It is the case of the Plaintiffs’ that they are the brother, mother and family head of the late Francis Kwame Ansah who died on 8th November 2021. The Defendant is the surviving spouse of the late Francis Kwame Ansah and there were no children to their marriage. It is the further case of the Plaintiffs that after the death of the husband of the Defendant, she applied to the High Court, Accra for the grant of Letters of Administration without the knowledge of the surviving mother, siblings and the family head of the deceased. The Plaintiffs instructed their lawyer to write to the Defendant to have the Letters of Administration deposited at the Court which she has refused to do up to the time the Plaintiffs are issuing this writ. [4] The Defendant’s case It is the case of the Defendant that after the death of her husband she applied for the grant of letters of administration on 23rd February 2022 and notice of the Letters of SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT Administration was duly given as required by law. Amongst the inventory was the following: - Property described as Land with building thereon located at Sakumono, Accra - - Household chattels Cash of GHC500.00 The Defendant states further that it is not a requirement of the law to have the Letters of Administration signed by the head of family of a deceased. According to the Defendant the property located at Sakumono, Accra and known as No. 2 Garnett Street was the only house owned partly by the Defendant’s late husband and that the property was jointly owned by herself and the late husband and by law it devolves unto her alone. [5] The Court’s evaluation and analysis of the evidence After setting down the above issues, the Court ordered the parties to file their respective witness statements and attach all documents they intended to rely on in the trial. The parties duly complied and after Case Management Conference the matter was set down for trial. The 1st and 3rd Plaintiffs testified and called no witness. The Defendant’s evidence was proffered by the Defendant herself and called no witness. After completion of hearing the Plaintiffs’ Counsel filed his address on 26th October 2023 and Defendant’s Counsel filed her address on 12th October 2023. [5.1] Standard of Proof and resolving the issue Now, in resolving the dispute among the parties, I believe the issues to be determined are both legal and factual. The factual issues are to be determined by credible evidence adduced before the Court. However, in the determination of the factual issues, the Court SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT applies tests based on legal principles to arrive at a conclusion as to whether any of the parties has proved his case to the standard required by law. This is because the law is trite and same supported by statute that for a Court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the Court to the standard prescribed by law. The above legal position is supported by various provisions of the Evidence Act, 1975 (NRCD 323). Section 14 of the Act for instance provides: “(14). Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. The burden of producing evidence by both sides in the suit as well as the burden of persuasion is one to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act, 1975 (NRCD 323). The Defendant, having endorsed her pleadings with a counterclaim, also carry the burden of proving the facts alleged in her Defence and Counterclaim to the same degree as the burden the Plaintiffs carries in proving their claim against her. It is also trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; See Sections 10 – 17 of the Evidence Act, 1975 (NRCD 323). I note that there is no paucity of case law interpreting the provisions of NRCD 323. In Ababio vs Akwasi 111 [1994-95] Ghana Bar Report, Part 11, 74 the Court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. I shall now proceed to examine the evidence adduced in SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT support of the Plaintiffs’ case and will relate same in the context of the standard of proof I have already set out in this judgment. It is trite learning, the Plaintiffs bears the evidential burden to adduce sufficient evidence if they are to secure a ruling on the existence or non-existence of the fact that the Defendant did not inform the family of the deceased namely the surviving mother, siblings and the family head of the deceased of her bid to obtain letters of administration in respect of the estate of the late Francis Kwame Ansah. In the case of Ackah v Pergah Transport Ltd [2010] SCGLR 728 at page 736 Adinyira JSC (as she then was) held as follows: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…” The Plaintiffs’ came to Court and dragged the Defendant along in respect of this issue it is the Plaintiffs’ who will lose first, and therefore has the duty or obligation to lead evidence to forestall a ruling being made against them. Have the Plaintiffs’ adduced sufficient evidence on this issue to forestall a ruling being made against them? It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. Date-Bah JSC as he then was held in the case of T. K. Serbeh & Co Ltd v Mensah [2005- 2006] SCGLR 341 at 360-361 that for, however credible a witness may be her bare affirmation on oath or the repetition of her averments in the witness box cannot constitute proof. SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT The Court shall determine the main issues as set out above based on the facts and evidence adduced at the trial. Indeed, it is the policy of the law that only those issues that are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See the case of Domfe vs Adu (1984-86) 1 GLR 653. [5.2] I propose to deal with additional issue 1 first: 1)whether or not the Defendant required the consent of the customary successor and the family head of her late husband’s family before applying for Letters of Administration? How did the Plaintiffs prove this? The 1st Plaintiff testifying per his adopted witness statement stated as follows: “That the Defendant is the surviving spouse of the Late Francis Kwame Ansah who is my brother from the same mother and same father…That my brother died on 8th day of November 2021 at the Ridge Hospital in Accra. That the Defendant and my brother the late Francis Owusu Ansah had no children and they lived at Sakumono Estate…That forty days after my brother the deceased was buried the family called and later wrote through the Court to the deceased’s wife that she should come so that we apply for Letters of Administration. That the Defendant replied through her lawyer that she had already applied to the High Court, Accra for the grant of Letters of Administration which she did without the knowledge of the surviving mother, siblings and the family head of the deceased and it has been granted to her on the 28th day of February 2022.” It is the further case of the 1st Plaintiff that the deceased Francis Kwame Ansah should have notified deceased family before applying for letters of administration, and the Head of the deceased family should have signed an affidavit confirming that the person who is applying for the letters of administration. The 1st Plaintiff reiterates the point that the Defendant could not have applied for the letters of administration without the SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT knowledge of the surviving mother, customary successor and the head of the deceased family. The 3rd Plaintiff who is the head of family basically repeated the 1st Plaintiff evidence on the Defendant obtaining letters of administration without reference to the head of family. The Defendant testifying per her adopted witness statement stated that she is the surviving spouse of the deceased Francis Kwame Ansah and on 23rd February 2023 she applied for letters of administration and that no caveat was filed before or after her application for letters of administration. The Defendant states as follows: “My lawyers further advised me that there is no law that required me to seek the consent of the family head of my late husband’s family before I apply for letters of administration.” The cross-examination of 1st Plaintiff by Counsel for the Defendant on 25th July 2023 is relevant: Below is an extract from the cross-examination: “Q: During the life-time of the deceased, how many houses did he own? A: Q: A: Q: One. So apart from the property known as H/No. 2 Garnet Street Sakumono, do you know of any house owned by the deceased? No, My Lady. I am putting it to you that the Defendant was not required to inform the head of family of the deceased before applying for letters of administration. A: No, My Lady. The Defendant should have informed the head of family before applying for the letters of administration. Q: On what basis are you saying this? SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT A: On the basis that the head of family’s affidavit was required so he should have been informed. Q: I am putting it to you that it is not true that the head of family should have signed an affidavit confirming the person applying for letters of administration. It is true that the head of family should have signed an affidavit. On what authority do you say this? From the basis of the principles of the court. I am putting it to you that the Defendant was entitled by law to apply for letters of A: Q: A: Q: administration in her own right. A: No, My Lady she is not entitled. Q: What is your authority for saying that? A: On the basis that here in this Court it has been proven that the Defendant alone cannot do the letters of administration. Q: You are aware that the letters of administration was granted to the Defendant by this Court A: Q: A: Q: differently constituted. It was granted to the Defendant without the knowledge of the head of family. In paragraph 8 of your witness statement, per Exhibit A you state that you wrote through the Court that the Defendant should come so that you and the Defendant apply for letters of administration is that not correct? Yes, My Lady. Take a look at Exhibit A and read to the Court where it is stated that the Defendant should come so that you and her apply for letters of administration. A: Paragraph 2 “take notice” (read out) this shows that I wrote to the Defendant to come for us to do the letters of administration. Q: I am further putting it to you that what you have said is not what is stated in your own Exhibit A, it is rather your warped interpretation of what is stated in Exhibit A. SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT A: Q: A: Q: It is not so. Are you aware that even if this court made you a co-administrator to the estate of the deceased, neither you the 2nd Plaintiff nor the 3rd Plaintiff and for that matter anybody at all but the Defendant is entitled to H/No. 2 Garnet Street, Sakumono and the household chattels contained in that property It is not so. I am putting it to you that you have only filed this suit because you are interested in the property known as H/No. 2 Garnet Street, Sakumono. A: It is not so.” The Plaintiffs have testified that the Defendant is the surviving spouse of the deceased. Order 66 rule 13 of High Court (Civil Procedure) Rules CI 47 provides as follows: “13. Order of priority of grant where a person dies intestate after enactment of the Intestate Succession Law, 1985 (P. N. D. C. L. 111) Where a person dies intestate on or after the 14th 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; and (d) the customary successor of the deceased”. The Defendant within the scope of Order 66 rule 13 (a) of CI 47 fell within the scope of persons entitled to the grant of letters of administration of her deceased husband, and in SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT fact she is the first in the order of priority at the time she applied for and was granted same on 28th February 2022. The Court has a wide discretion under Sections 79(1) and (2) of the Administration of Estates Act, 1961, Act 63 in the selection of personal representatives. Section 79 of the Administration of Estate Act, 1961, Act 63 reads as follows: “Discretion as to grant of administration (1) Subject to this section, the selection of a personal representative is within the discretion of the Court. (2) In granting administration the Court shall consider the rights of the persons interested in the estate, and, in particular, administration with the will annexed may be granted to a devisee or legatee and the administration may be limited in the way that the Court thinks fit. (3) The Court may, (a) where the deceased person died wholly intestate, grant administration to one or more persons interested in the residuary estate of the deceased person, if they make an application for the purpose; and (b) if by reason of the insolvency of the estate of the deceased person, or of any other special circumstances, it appears to the Court that it is necessary or expedient to appoint as administrator a person other than the person who, but for this provision, would by law have been entitled to the grant of administration, despite anything in this Act, appoint as administrator the person who the Court thinks expedient, and an administration granted under this provision may be limited in the way that the Court thinks fit. SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT (4) Where it appears to the Court that an estate vested in the successor of the deceased person under customary law is being duly dealt with, the Court may refuse to grant an application for administration not made by or with the concurrence of the successor”. The Court had jurisdiction under Section 79 of Act 63 and Order 66 rule 13 (a) of CI 47 to make a grant of Letters of Administration to the Defendant. Letters of administration of the Estate of a deceased person are granted where the deceased died wholly intestate or partially intestate. The grant is usually required to enable the estate of the deceased to be realized and administered, but a grant may also be made where the deceased left no estate1. I find that the Defendant is qualified under Section 79 of Act 63 and Order 66 rule 13 (a) of CI 47 to be granted letters of administration in respect of the estate of the Late Francis Kwame Ansah. The next question is whether failure by the Defendant to notify the deceased family particularly the Head of Family/Plaintiff of the application for grant of letters of administrations renders the grant a nullity or makes it void? The wide discretion given to the Court under section 79(1) of the Administration of Estates Act, Act 63 in my view does not nullify the grant of Letters of Administration or makes it illegal if the head of family does not depose to an affidavit in support of grant of letters of administration. This provision was given a judicial meaning in the case of Progressive Modern Company Ltd vs Esther Bonsu & 2 Ors [2008] MLRG 65 CA, where per K. Tweneboa Kodua, JA (as he then was) said: 1 Tristam and Coote’s Probate Practice,23rd Edition, J. E. N Russell, W. J Pickering & G. F Dawe, page 179 SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT “The law leaves the discretion of the court the person or persons to whom administration is to be granted. Section 79(1) of Act 63 provides that “Subject to this section, the selection of a personal representative is within the discretion of the Court.” What this means is that the court can grant an application with or without the head of family vouching for it and unless and until they are revoked the letters of administration so granted by the court on the basis of affidavit evidence before the court shall be valid for all purposes. They cannot be said to be illegal.” In the case of Republic v. High Court, Accra; Ex Parte Abban and Another [1992] 1 GLR 442-451 the Supreme Court stated some of the circumstances under which a grant of letters of administration can be revoked. The Court speaking through Aikins JSC (as he then was) as follows: “The High Court could only revoke the grant of letters of administration upon just cause in cases where a grant had been obtained fraudulently and made mala fide by the making of a false representation or concealing from the court something material to the case which should have been disclosed. Section 79(1) and (2) of the Administration of Estates Act, 1961 (Act 63) and Order 2, r. 8 of the Probate and Administration Rules, 1991 (L. I.1515) however made it quite clear that the choice and discretion of the court in granting letters of administration was not limited to the customary successor or other members of the family of the deceased. Accordingly, where the interest of the estate of the deceased or the beneficiaries required, the court might even appoint a person with no share in it as the administrator. Accordingly, the revocation of the letters of administration could not be justified on the ground that a non-member of the family had been appointed as one of the administrators. Dictum of Ollennu J. (as he then was) in Asamoah v. Ofori alias Renner [1961] G. L. R. 269 at 272 approved. Asafu-Adjei v. Okrah [1984-86] 1 G. L. R. 440, C. A. applied. SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT Although under Order 2, r. 3(1) of L. I. 1515 the court was required to give notice for a period of 21 days (or such other period as the court might order) after the grant, rule 3(2) gave a discretion to the court to dispense with such notice to beneficiaries entitled to a share of the estate of the deceased under the Intestate Succession Law, 1985 (P. N. D. C. L. 111)”. Order 2 rule 3(1) of LI 1515 is in pari materia to Order 66 rule 10 (2) of CI 47. Order 66 rule 10 (2) of CI 47 provides as follows: “Where the grant is in respect of the estate of a person who died intestate, notice must be given whenever practicable to all persons entitled to a share of the estate of the deceased under the Intestate succession Law, 1985 (PNDCL 111); the Court may, however, dispense with such notice to beneficiaries if it considers it expedient to do so.” The family of the deceased can neither give nor withhold consent to the grant of Letters of Administration to the Defendant, in respect of which the law sets out clearly the priority of those entitled thereto. See the case of Leslie Nartey Marbell and Dudley Nartey Marbell vs Salamatu Marbell Civil Appeal N. H1/151/2018 dated 24th July 2018, the Court of Appeal held as follows: “In his judgment, the trial judge stated with regard to the letters of administration granted to the defendant as follows at page 412: “In the instant case, I have considered whether or not to vacate the letters of administration (a copy this Court has not seen). As aforementioned, what purpose will it serve if I cancel the letters of administration already granted to the defendant? what is left to be administered? And distributed.” Further on at page 413 the trial judge stated: SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT “Ordinarily the defendant could not take letters of administration without recourse to the plaintiffs and head of the Marbell family, however given the unique and peculiar circumstances of this case, it would not be necessary to have the members joined. But the notice ought to have been given to the family”. This statement by the trial judge is not true in the light of the provisions of the Intestate Succession Law 1985 (PNDC Law 111) and Order 66 rule 13 of C. I.47 which has provided the order of priority with regard to the grant of Letters of Administration.” Therefore, if in the wisdom of the Court that made the grant of Letters of Administration it did not deem it necessary to make the grant without notice to the Head of Family it has the discretion to act accordingly and that does not necessarily make the grant a nullity. I find that the grant made on 23rd February 2023 is not a nullity and the consent of the Head of Family was not required. [5.3] Grounds on which a grant of letters of administration maybe revoked? Relief b of the endorsement on the Plaintiffs’ Writ of Summons is for the revocation of letters of administration granted on 23rd February 2023. What are the grounds on which a grant maybe revoked? In the book, Williams and Mortimer on Executors, Administrators and Probate, 15th Edition pages 352 to 353 the Authors writes thus: - “The principal grounds for revoking a grant are - - (i) that it was obtained by a false or incorrect statement, e.g., where a grant is made to a person falsely claiming to be the widow of the deceased or his next-of-kin (ii) that there is a supervening defect in the grant, e.g., where a grantee becomes incapable or where the grantee disappears or where a grantee is no longer interested in the estate SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT - (iii) That the grant was in effect a nullity, e.g., where a grantee has died before the grant has passed the seal or name of the deceased wrongly stated in the grant.” Similarly in the invaluable book, Tristram and Coote’s, Probate Practice, 23rd Edition at page 452 the following grounds were outlined for the revocation and impounding of grants as follows: “The main grounds for revocation of a grant are as follows: - False statement -where a grant has been made to a person who was not entitled thereto either where he acted in ignorance of the true facts or where he has acted fraudulently - Supervening defects in grant – where a grant has been properly made, but has subsequently become ineffective and useless or which if allowed to subsist would prevent the proper administration of the estate - Other cases – where a grant should not have been made e.g., because of the entry of caveat, or because it was made before the effluxion of the necessary time or where the grantee had died before its issue.” From the above textbook writings and the principles espoused therein, it is very apparent that a grant of letters of administration or probate can be revoked for three main grounds, i.e. that the grant was obtained by fraud or mala fide, there was supervening defect or the grant was a nullity. The following cases discuss some of the grounds on which grant of letters of administration can be revoked. In the case of Re Agyepong (Decd) Poku v Abosi [1982-83] GLR 254 CA the Court of Appeal decided that fraud is a ground for the revocation of grant of probate or letters of administration. The Court held that: SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT “A grant obtained by fraud, mala fide, or by concealing information which should have been disclosed to the court might also be revoked…The circumstances surrounding the fraud must be inconsistent with any other view but that of the fraud”. In the case of In re Caesar (Decd); Ceasar and another v Kwapong and Another [1974] 2 GLR 248 the court held that revocation could only be for just cause, e.g., where a grant had been obtained fraudulently and mala fide by making a false suggestion or by concealing from the court something material to the case, which should have been disclosed. On the facts the conduct of K was not fraudulent. See also the case of Ennin v Ampah & Others [1982-83] GLR 952 where the grounds of revocation of grant was stated as: (a) where a defect was disclosed in the grant such as the grant having been obtained by fraud or surprise; and (b) where there was a ceaser of the interest of the grantee. From the evidence adduced was the Plaintiff able to establish that the grant made to the Defendant on 23rd February 2023 was obtained by fraud, mala fide, there was a supervening defect or the grant itself was a nullity? The general position of the law is that he who alleges must prove same. In the case of Ababio v Akwasi III [1994-95] GBR 774 at 777 Aikins JSC (as he then was) expounded the position as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case, i.e., he must prove what he alleges. In order words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the plaintiff SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not, he loses on that particular size.” Kpegah JA (as he then was) in the case of Zabrama v Segbedzi [1991]2 GLR 221 at page 246 stated as follows: “ a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averments or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” The Plaintiffs have not been able to prove this assertion that the grant is a nullity and same should be revoked apart from merely stating what same in their Statement of Claim and adopted witness statements. Having regard to the view I have taken that the Defendant is entitled to the grant of Letters of Administration in respect of the estate of her late husband and the position that failure to notify the Plaintiffs of the application for grant of letters of administration is not fatal to the grant, I find that the Plaintiff failed to establish any basis for the revocation of the grant of Letters of Administration made on 23rd February 2023. I find that the Ltters of Administration granted on 23rd February 2023 is valid. I resolve additional issue 1 in favour of the Defendant. Based on the foregoing, I find that the Letters of Administration granted on 23rd February 2023 shall not be revoked. I now turn my attention to additional issue 2 [5.4] Additional issue 2: Whether or not the next of kin can be joined as an Administrator of SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT the estate of the Late Francis Kwame Ansah Counsel for Defendant on this issue submits as follows: “Under Order 66 rule 13 of C. I. 47, in the list of persons entitled to a grant of letters of administration, there is no mention of the next of kin as a person to whom letters of administration could be granted. Consequently, the alleged next of kin cannot be added as a co-administrator of the estate of the Deceased. In the unreported Supreme Court case of Patrick Ankomahyi and Anor v. Hannah Buckman and 2 Others; Civil Appeal No: J4/43/2013, dated 26th February 2014, the Supreme Court speaking through Her Ladyship Justice Akoto-Bamfo, JSC stated: “Rules of Court are not ornamental pieces. They are meant to be complied with.” Blacks Law Dictionary 8th Edition defines Next of kin as “the person or persons most closely related to the decedent by blood or affinity. An intestate heirs – that is the person or persons entitled to inherit the personal property from a decedent who has not left a will.” Order 66 rule 13 (a) to (d) of CI 47 (supra) sets out the order of priority of grant where a person dies intestate after the enactment of PNDCL 111. Any surviving spouse Any surviving children Any surviving parents The customary successor of the deceased. Admittedly Order 66 rule 13 of CI 47 does not make mention of the term “next of kin” however in terms of the order of priority the deceased parents and customary successor are equally entitled to the grant of letters of administration in respect of the estate of the deceased. SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT Order 66 rule 14 of CI 47 is on the grant where two or more persons are entitled in the same degree and it provides as follows: “Grant where two or more persons are entitled in the same degree (1) Unless otherwise provided by any enactment, the number of persons to whom a grant of letters of administration may be made shall not exceed four. (2) Where two or more persons are entitled to a grant in the same degree, the Court may make a grant to any one of them without joining the others. (3) Where there is a dispute between persons entitled to a grant in the same degree, the Court shall summarily determine the dispute and may make a grant to such of them as it considers fit.” There is room for an additional applicant as the Defendant does not dispute that the mother of her late husband is alive. Both the Defendant and the mother of the deceased are within the four (4) constituents in the list of priority of grant under Order 66 rule 13 of CI 47. In considering an application for the grant of Letters of Administration, a Court’s primary duty was to have regard to the interest of all the various claimants and not only the beneficiaries. Accordingly, a Court should refrain from making orders that would fan the flames of litigation. In re Armah(decd) Armah v Armah [1991] 2 GLR 53 CA, the Court of Appeal per Adjabeng JA (as he then was) held as follows: “Has the judge then, in these circumstances, power to refuse, to intake the grant to either of the parties, and to make it to a neutral person, the Administrator-General, as she did? I think the trial judge has wide discretionary powers under section 79 of the SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT Administration of Estates Act, 1961 (Act 63) to do what she did. Subsection (1) of this section provides that: “Subject to the provisions of this section the selection of a personal representative is within the discretion of the court.” Section 79(2) as amended by section 5 of the Administration of Estates (Amendment) Law, 1985 (PNDCL 113), also provides that: “(2) In granting administration the Court shall have regard to the right of all persons interested in the estate, and in particular, administration with the will annexed may be granted to a devisee or legatee and the administration may be limited in any way the Court thinks fit.” In the case of Asafu-Adjei v Okrah, Court of Appeal, 3 December 1985; digested in [1984- 86] GLRD 52, the appellant raised a preliminary objection in an administration suit in the High Court. Her Objection was that under PNDCL 111, she was entitled to the letters of administration because grants could only be made to a person or persons with a majority interest in the estate. The High Court overruled the objection. On appeal, it was held, dismissing the appeal (per Adade JSC, Amua-Sekyi and Ampiah JJ (as they then were)): “ . . . where the interests of the estate of the deceased or of those entitled to benefit from it required, the court might appoint a person with no share in it as an administrator. The court even had power to revoke a grant already made to a person or persons who,) had a majority interest in the estate if they misconducted themselves. Davies v Randall [1964] GLR 671 cited.” SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT I think that in the present case before us the trial judge was justified in the interests of the estate and the beneficiaries to appoint the administrator-General to administer the estate.” As I have already stated supra the mother of the deceased and customary successor if there is one are entitled to the grant of Letters of Administration however considering the Defendant’s witness statement that there attempts to eject her from the property at Sakumono, appointing the deceased’s mother or customary successor would not lead to quick and expeditious administration of the estate and I shall accordingly refrain from making those orders. I find that the next of kin cannot be joined as Administrator of the Estate of the late Francis Kwame Ansah. I resolve issue 2 in favour of the Defendant. The Defendant should ensure that in the administration of the estate the portion of the estate due the parents of the deceased and that due in accordance with customary law is distributed appropriately. I shall now turn my attention to Plaintiffs’ issue a). [5.5] Issue a) “Whether or not the deceased’s surviving mother is entitled to at least a portion of the son’s Estate even if that portion is of no value. From the cross-examination of 1st Plaintiff by Counsel for the Defendant on 25th July 2023 the Plaintiffs acknowledge that the deceased left behind one house. Below is the extract from the cross-examination: “Q: During the life-time of the deceased, how many houses did he own? A: Q: One. So apart from the property known as H/No. 2 Garnet Street Sakumono, do you know of any house owned by the deceased? SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT A: No my lady. From the Defendant’s evidence which was not challenged though this Court did not have the benefit of Form 22, declaration of the deceased properties, the deceased also died possessed of household chattels and an amount of GHC500.00. Section 3 of PNDCL 111 is on the distribution of household chattels and which provide that the surviving spouse and children if any are entitled to the house-hold chattels. Section 4 of PNDCL 111 provides that if it is one house it devolves unto the surviving spouse and child. It is the residue of the estate which is shared from Sections 5 to 9 of PNDCL 111 as follows: Section 5 - Intestate survived by Spouse and Child “(1) Where the intestate is survived by a spouse and by a child the residue of the estate shall devolve in the following manner: (a) three-sixteenth to the surviving spouse; (b) nine-sixteenth to the surviving child; (c) one-eighth to the surviving parent; (d) one-eighth in accordance with customary law. (2) Where there is no surviving parent one-fourth of the residue of the estate shall devolve in accordance with customary law. Section 6 Intestate survived by Spouse only (1) Where the intestate is survived by a spouse and not by a child the residue of the estate shall devolve in the following manner: (a) one-half to the surviving spouse; (b) one-fourth to the surviving parent; SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT (c) one-fourth in accordance with customary law. (2) Where there is no surviving parent one-half of the residue of the estate shall devolve in accordance with customary law. …” Residue has been defined in Section 18 of PNDCL 111 as follows: “That part of the estate which does not devolve under sections 3 or section 4 of PNDL 111.” The evidence provided this Court is that the deceased left behind one house and household chattels. Clearly per section 3 and 4 of PNDCL11 shall not avail the mother of the deceased, however since monies standing to the credit of the deceased constitute part of the residue then yes, the deceased mother is entitled to ¼ of the balances standing to the credit of the deceased and ¼ in accordance with customary law. Section 6 of PNDCL111 applied. I find that the mother of the deceased is entitled to ¼ of the residue of the estate of the deceased if the estate of the deceased has residue in terms of Section 18 of PNDCL 111. I therefore resolve issue a) in favour of the Plaintiffs. [6] Conclusion From the totality of the evidence led, I hold that the Plaintiff’s claim fails entirely specifically reliefs a) to c) and same is accordingly dismissed. Defendant’s Counterclaim The Defendant counterclaimed is made out and I therefore order as follows: The Plaintiffs, their agents, servants, privies and whomsoever are restrained from entering upon or in any manner interfering with the Defendant’s quiet enjoyment of the property described as Land with building thereon located at Sakumono, Accra and known as No. 2 Garnett Street. No order as to costs. SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT (SGD.) H/L EUDORA CHRISTINA DADSON (MRS.) JUSTICE OF THE HIGH COURT SUIT NO: PA/0176/2023 -JAMES KOFI ANSAH & 2 ORS vs JANET ANSAH – JUDGMENT 25