IN RE WIREDU (DECD.); OSEI v. ADDAI

JUDGMENT OF OWUSU-ADDO J.

The brief introductory facts of this case are that after the death of one Francis Wiredu at Mamponteng in 1965 the plaintiff, his maternal first cousin, was appointed his customary successor. He [p.503] applied for letters of administration in 1978 to administer the deceased's estate. Attached to the application was the usual inventory of the deceased's properties including an estate house No. K.39, South Suntreso.

A caveat was entered by the defendant who contended that the estate house was not one of the deceased's properties but his (defendant's) property. His reasons being that he approached the deceased to use his influence to obtain an estate house for him but it was agreed between him and the deceased that the deceased's name would appear in the State Housing Corporation's books as tenant. The deceased was therefore his nominee whilst he was the real owner of the estate house.

On 8 May 1978 the defendant's application for letters of administration, No. 169/78, was placed before this court. In that application, the defendant described himself in his supporting affidavit as the customary successor of the deceased. Having been examined viva voce by the court the defendant admitted that he had not been appointed the deceased's customary successor and apologised to the court for committing perjury. At that stage the court dismissed his application for letters of administration upon his own admission. The contents of the defendant's false affidavit will be referred to at a later stage of this judgment.

On 14 November 1978 the plaintiff's motion brought under Order 60, r. 20 (2) of the High Court (Civil Procedure) Rules, 1954 (LN 140A), applying for letters of administration was granted and the court ordered a writ of summons to issue for the determination of ownership of the estate house.

The controversy between the parties is about the ownership of the estate house No. K.39, South Suntreso, Kumasi. The plaintiff's claim is that as customary successor to the late Francis Wiredu, who died intestate, he is entitled to ownership of the deceased's estate house. Paragraphs 4, 5 and 6 of his statement of claim read:

"4. The plaintiff says that in his lifetime Francis Wiredu applied for and was allocated estate house No. K.39, South Suntreso, Kumasi, on rental basis, he lived there from 1953 until his death.

5. (a) The plaintiff says that as customary successor, he took over the control of the said house; he however permitted