NMAI ALLOTEY v. EMMANUEL ALLOTEY
2022
COURT OF APPEAL
GHANA
CORAM
- B. F. ACKAH-YENSU, JA (PRESIDING)
- AMMA GAISIE, JA
- ERIC KYEI BAFFUOR, JA
Areas of Law
- Probate and Succession
- Civil Procedure
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal involves a dispute over the administration of the estate of the deceased, Emmanuel Allotey Kpakpo. The Applicants, Stephen Moila Allotey and Alfred Nmai Allotey, obtained an ex parte grant of Letters of Administration from the Circuit Court, Amasaman, subject to a statutory 21-day notice period. During this period, the Appellant, Emmanuel Nii Moi Allotey, filed a Caveat. The Circuit Court struck out the Caveat, reasoning that the grant had already been made, rendering the Caveat invalid. The Court of Appeal overturned this decision, holding that a "grant" under Order 66 Rule 11 of C.I. 47 is not absolute until the Letters of Administration are sealed and issued by the Registrar. Consequently, a Caveat filed within the notice period is valid and must be addressed before any instrument is issued. The appeal was allowed.
B. ACKAH-YENSU, JA
BACKGROUND FACTS
On 21st September, 2020 Stephen Moila Allotey and Alfred Nmai Allotey (the Applicants/Respondents) filed an application ex parte to the Circuit Court, Amasaman, praying for an Order granting Letters of Administration for them to administer the estate of their deceased father, Emmanuel Allotey Kpakpo. The application was granted on 25th September, 2020, subject to a period of twenty-one (21) days notice.
On 6th October, 2020 and within 21 days of the grant, Emmanuel Nii Moi Allotey (the Caveator/Appellant) filed a Caveat claiming to have interest in the subject matter. On 20th November, 2020, the Circuit Court struck out the Caveat on the grounds that the grant had already been made before the Caveat was filed. Dissatisfied with the order of the court, the Caveator filed a motion on 10th December, 2020 for the relistment of the Caveat which application was heard on 16th December, 2020, and was dismissed by the Circuit Court.
The Caveator/Appellant herein, aggrieved by the Ruling of the Circuit Court aforesaid, has appealed to this Court by Notice filed on 19th January, 2021 in which three (3) grounds of appeal have been set out as follows:
“i. The honourable court erred in ruling that the caveat was not properly before the court.
ii. The honourable court erred in ruling that a caveat cannot be filed after the grant within the notice time.
iii. The honourable court erred in holding that a grant of an application for letters of administration subject to notice is absolute”.
The Caveator/Appellant is complaining about the Ruling of the Circuit Court, striking out the Caveat and is seeking a reversal of the decision of the said court.
THE APPEAL
Before we proceed with the determination of this appeal, we take note of the fact that the Applicants/Respondents herein have not contested the appeal by way of filing a written submission in answer to the Caveator/Appellant’s submission. The settled principle is that the issue as to whether an appeal will succeed or not is a question of law. Therefore the failure of a respondent to submit a written brief does not derogate from the Court’s primary function of deciding the appeal on the basis of the record of appeal. This appeal will therefore be determined on the merits, by the application of the relevant law to the facts.
On examination of the record of proceedings, we observe that the entire controversy in this appeal is about the procedure for the grant of Letters of Adm