PLANGE v. PLANGE

Bart Kojo Plange died intestate on 16 May 1964 at Accra, leaving behind a widow (the plaintiff-appellant herein) whom he married firstly under customary law in 1949 and subsequently under the Marriage Ordinance, Cap. 127 (1951 Rev.), on 4 December 1954. Upon his death, the plaintiff applied to the court below for letters of administration to administer his estate. The defendant, a brother of the whole blood to the deceased, entered a caveat to the plaintiff's application and filed his affidavit of interest. As the parties could not agree on the proper person to whom letters of administration should be granted, the plaintiff, pursuant to the court's order made under Order 60, r. 21 (2) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), instituted this action. The co-defendant (a full sister of the deceased) was later joined upon her own application.

In her statement of claim, the plaintiff disclosed that prior to their wedding in 1954 she and her husband adopted a girl called Alice and the [p.314] deceased treated her in all official documents as his daughter. She further pleaded that "by virtue of the said adoption and other declaration 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 was simply that since there was a valid adoption under the customary law of Alice, she and Alice have the major interest in her late husband's estate; and she is the proper person to be granted letters of administration to administer the estate.

The defendant denied the allegation of adoption and maintained that Alice is the niece of the plaintiff and remained in her care and control; that she was neither adopted by Bart Kojo Plange (deceased) nor treated by him as his daughter in official documents.

There was also a disagreement between the parties in their pleadings about the various properties which Bart Kojo Plange died possessed of; but the question what properties belonged to the deceased and the plaintiff separately or jointly was expressly excluded by the trial judge from trial on the ground that it raised title and possession of land, which had not been claimed.

The only issues for trial were therefore (a) whether or not Alice was adopted by the deceased and the plaintiff as their daughter; and (b) who was the proper person entitled to the grant of letters of administration? Consequently, whether a portion of