PLANGE v. PLANGE

The plaintiff was married to the late Kojo Plange, deceased, under the provisions of the Marriage Ordinance, Cap. 127 (1951 Rev.); her husband died on 16 May 1964 - intestate, whereupon she applied to the court for letters of administration to administer his estate.

The first defendant, a brother of the whole blood to the deceased, entered a caveat to the plaintiff's application and filed affidavit of his interest. As the parties could not agree on the person to whom letters of administration should be granted, the plaintiff, in conformity with an order of the court made pursuant to Order 60, r. 21 (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), instituted this action.

The co-defendant, a sister to the deceased, was joined upon her own application. In paragraphs (3) and (4) of her statement of claim the plaintiff pleaded as follows:

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"(3) Prior to the said marriage the plaintiff and the defendant's brother had adopted a girl called Alice and the deceased in all official documents treated the said Alice as his daughter.

(4) By virtue of the said adoption and other declarations of the deceased; the defendant together with other members of the family are estopped from denying that the said Alice was the adopted and lawful daughter of the deceased."

The plaintiff's case therefore is, that the said Alice must be deemed to be an issue of the marriage, and that by virtue of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.), as judicially interpreted, (see Coleman v. Shang [1959] G.L.R. 390, C.A. affirmed by the Privy Council in [1961] G.L.R. 145) she and the said Alice have the major interest in the estate of her deceased husband, and she is therefore the proper person to be granted letters of administration to administer the estate.

The plaintiff further pleaded that the only real property left by the deceased is house No. D539/3, Derby Avenue, Accra. She did not however ask for a declaration that that house was the only property in the estate.

The defendant denied that allegation of adoption and pleaded in paragraphs (2) and (3) of his statement of defence that:

"(2) The defendant denies the allegation contained in paragraph (3) of the statement of claim and in further answer thereto avers that the said Alice, who was a niece of the plaintiff and in her care and control, was neither adopted by Bart Kojo Plange deceased nor did the said Bart Kojo Plange treat her as a daughter in official documents.

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