IN THE MATTER OF PATIENCE OWUSU-BANIE (DECEASED)
April 26, 2013
COURT OF APPEAL
GHANA
CORAM
- AYEBI, J.A. (PRESIDING)
- IRENE DANQUAH, J.A.
- TANKO AMADU, J.A
Areas of Law
- Probate and Succession
- Civil Procedure
- Family Law
- Property and Real Estate Law
April 26, 2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Ayebi J.A., dismissed an appeal from the Kumasi High Courts grant of letters of administration over the estate of Patience Owusu-Banie to Gabriel Gambrah Sampaney (father of the deceaseds four minor children) and the Registrar. The deceaseds father opposed Sampaneys capacity and, along with the deceaseds sister Harriet, asserted adverse claims over two properties listed in the inventory. Applying Order 66 rule 13 of C.I. 47, s.79(2) of Act 63, and the Intestate Succession Law (PNDCL 111), the court held the priority list guides discretion and that a natural parent and guardian is an interested person eligible to administer, especially given Article 28 and the Childrens Act. The High Court properly cured a procedural irregularity by amending the applicants title, and adverse property claims belong in separate actions.
AYEBI J.A.
This is an appeal against the ruling of a Kumasi High Court in which the trial judge granted the applicant/respondent and the Registrar of the Court, letters of administration in respect of the estate of Patience Owusu-Banie who died on 1st day of October, 2007 as a result of gas explosion.
In the life time of the deceased, she co-habited with the applicant/ respondent as the husband. They had four children aged between 7 and 13 years at the time of her death. In s.77(1) of the Administration of Estates Act, 1961 (Act 63) it is provided that if there are infant beneficiaries of an estate or if a life interest arises under a will or intestacy, probate or letters of administration shall be granted to not less than two individuals.
In view of this provision of the law, applicant/respondent wrote to the biological parents of the deceased to join him apply for the grant of letters of administration. He received no response from them. Meanwhile the members of family of the deceased were intermeddling with the estate. So the applicant/respondent applied for the grant of letters of administration to himself as father of the children with the Registrar of the Court.
At the hearing of the application which was ex parte, the court ordered him to file the application on notice to the biological parents of the deceased. When he did, the respondent/appellant as father of the deceased, challenged the capacity of the applicant/respondent in an affidavit in opposition. At the same time Harriet Owusu-Banie filed a caveat. In the affidavit of interest, the caveatrix who described herself as the sister and customary successor of the deceased claimed “Land situate at No. 5, Nana Poku Mensah, Dr. Ahenema Kokoben, Ashanti” as her personal property. The respondent/appellant also claimed House Number Plot I, Block “J”, Kwanwoma as a gift to him and his wife by deceased on her lifetime. In the inventory declared, the applicant/respondent listed the two properties as forming part of the estate of the deceased.
The trial judge in his ruling, amended the capacity of the applicant/respondent, removed the caveat and granted the letters of administration to the applicant/respondent and the Registrar of the Court. As regards the claim of ownership of the two immovable properties by the respondent/appellant and the caveatrix, the trial judge held that the issue should be determined in a separate action.
Dissatisfied with these holdings of the court, the respondent appealed