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JUDGEMENT
JUDGMENT OF VAN LARE AG. C.J.
In this administration matter, it appears that upon a motion coming on for hearing before the Divisional Court the parties failed to come to an agreement among themselves as to the person or [p.50] persons to whom a grant of Letters of Administration should be made.
The Court was therefore bound under the provision of Order 60 Rule 21(2) to order the applicant to issue a writ of summons against the caveators within a specified period. Instead of proceeding as required by the Rules the learned Judge ordered Letters of Administration to issue jointly to the applicant and the second caveator.
Mr. Henry Prempeh, for the respondents, has referred us to the case of Okata vs. Ayimadu (1926-29 F.C. 156) which appears to support the learned Judge's procedure in this matter. But we must point out that that case was decided upon some rules specially drawn up by Brandford-Griffiths C. J., as regards practice to be adopted in such matters at that time. Our own rules are now different from those special rules then applicable. The authority cited is therefore not in point.
We must therefore allow the appeal. The order appealed from is set aside, including the order as to costs, any costs paid to be refunded. The matter is remitted to the Court below to be dealt with de novo according to Order 60 r.21(2)
The appellant will have his costs in this Court, fixed at £23 18s. 6d. Costs of the abortive proceedings in the Court below to abide the result of the re-hearing.
DECISION
Court below to carry out.