ESTATE OF OPANIN KWABENA ODURO AND YEBOAH AND ANOTHER (GJ6/34/2025) [2024] GHAHC 514 (16 December 2024)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD AT KUMASI ON MONDAY, 16TH DAY OF DECEMBER, 2024 BEFORE HIS LORDSHIP, JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE ------------------------------------------------------------------------------------------------------------- SUIT NO. GJ6/34/2025 IN THE MATTER OF THE ESTATE OF OPANIN KWABENA ODURO aka “WOFA ODURO” (DECEASED) AND AND IN THE MATTER OF AN APPLICATION FOR THE GRANT OF LETTERS OF ADMINISTRATION BY 1. MR HUBERT YEBOAH 2. MS JOSEPHINE AMA APPIAH aka JOSEPHINE FOSU (GRANDUNCLE AND MOTHER OF CHRISTIL ODURO AND STEPHANY ODURO aka AKUA MINORS) ------------------------------------------------------------------------------------------------ TIME: 09:46AM. JUDGMENT: Opanin Kwabena Oduro also known as “Wofa Oduro” has gone to be with the Lord as Christians are heard to say. In plain language, he is deceased. He died on 5th July, 2023, at his residence in Vicenza, Italy. In his life time, he had a wife known as Comfort Tawiah who survived him. The deceased was survived by an adult child, Helena Appiah and two minor children namely, Kwabena Oduro born on 15th May, 2009 and Stephanie Dufie Oduro born on 7th March, 2012. The two minor children were born to the deceased and one Miss Josephine Ama Appiah also known as Josephine Fosu. Josephine Ama Appiah herein has a brother, one Mr Hubert Yeboah. The suit was instituted as an originating Motion on Notice by the mother of the minor children of the deceased and the brother of the said children’s mother. They are before this Court praying it for the grant of Letters of Administration of the Estate of Opanin Kwabena Oduro a.k.a. Wofa Oduro to them. They applied on Notice to the deceased surviving spouse and Elder child rather than the usual ex-parte application for the grant of Letters of Administration. They, the surviving spouse and the elder child of the deceased have opposed the grant of Letters of Administration to the mother of the deceased minor children and her brother. The Application has therefore generated contentious issues of fact and law. The Court proceeds to examine these Issues. Who can apply for Letters of Administration of the Estate of a person who dies without leaving behind a Will, in legal parlance death intestate? The answer is provided for by the provisions of Order 66 r 13 of the High Court (Civil Procedure) Rules, 2004, C. I. 47. The Rule provides for the Order of priority of grant where a person dies intestate after enactment of PNDC Law 111. This civil procedure rule provides that, where a person dies intestate on or after 14th June, 1985, the person 2 who have beneficial interest in the estate of the deceased shall be entitled to a grant of Letters of Administration in the order of priority. Those entitled are as follows: a) any surviving spouse. b) any surviving children. c) any surviving parents. d) the customary successor of the deceased. So, the question is of the deceased surviving spouse, children, the mother of the minor children and the brother of the minor children's mother who is entitled to apply to this Court for the grant of Letters of Administration in respect of the estate of Opanin Kwabena Oduro a.k.a. Wofa Oduro. According to rule 13 supra, it is the surviving spouse and the children of the deceased in the order of priority listed in the rule. It means that, it is Madam Comfort Tawiah of can apply in her capacity as the deceased surviving spouse, The children are also contemplated under the said rule 13. The mother of the two minor children and her brother are not cognisable under the said rule 13. So, if the law does not recognise these two persons known as Josephine Ama Appiah a.k.a Josephine Fosu and Hubert Yeboah, what is their reason in this Court praying for Letters of Administration in respect of the deceased Estate. At paragraphs 8, 9, 10 and 11 of their Affidavit in Support, they answer the question posed as follows: “8) That I caused my Lawyer to write to the surviving spouse, the elderly children, the Head of family and the customary successor inviting them to join me in applying for the Letters of Administration following their attempt to distribute the deceased’s estate without the grant of 3 Letter of Administration which we strongly object to, as it was not lawful. (Annexed and marked as Exhibit “HJ 3” is a copy of my Lawyer’s letter). 9) That there has been no co-operation between the spouse, elderly children and family on one part with me in relation to the estate of the deceased on account of which this application is brought on notice. 10) That we are advised and verily believe same to be true that we can apply to this Honourable Court for an order to assign us as guardians to the minors till they attain the age of maturity. 11) That we are also advised by Counsel and verily believe same to be true that we as Guardians can apply for the grant of Letters of Administration to administer the deceased’s estate in the event of failure on the part of the spouse and the elderly children to apply.” These paragraphs especially 8, 9 and 10 supra were denied by the surviving spouse and elder child who are Respondents herein at paragraph 10 of their joint Affidavit in Opposition. The Applicants in the face of denial did not through the Affidavit Evidence provide evidence that, the Respondents attempted to distribute the deceased estate without the grant of Letter of Administration. Had the Applicants provided evidence to support their claim, the Court would have found such a conduct of attempting to distribute an estate of a deceased person without a prior grant, a step by them towards intermeddling the said estate. Under such circumstance, the Court has the power to decide who best to grant Letters of Administration to, for the lawful administration of the estate that has minor children as beneficiaries. The Applicants failed to do that. 4 The Court in that circumstance and on the face of the Applicants not cognisable under Rule 13 of Order 66 of C. I. 47 finds the Applicants incompetent to apply for the grant of Letters of Administration in respect of the estate the deceased herein. The Applicants other claim for applying for Letters of Administration is to seek for the interest of the minor children as their guardian. What is the Law where an Application for Letter of Administration is to be made for and on behalf of beneficiaries of an intestate property who are minors? Order 5 r 1 provides amongst others that, for the purposes of judicial proceedings undertake the Rules, a person with disability, means a person under the age of eighteen years. The two children of the 2nd Applicant, Josephine Ama Appiah aka Josephine Fosu are under the age of eighteen years. This means that, the law looks upon these children as persons with disability. In that situation, where as in this case, the two children of the 2nd Applicant are looked upon by law as being disability, sub-rule (3) of rule 1, subject to the rules provides that, anything which in the ordinary conduct of any proceedings is required or authorised by the rules to be done by a party to the proceedings shall be done by his or her next friend or guardian ad litem. A next friend or guardian ad litem shall act by a lawyer. Rule 2(2) provides as follows: “except where a friend or guardian ad litem has been appointed by the Court, the name of a person shall not be used and the person shall not be entitled to act in any cause or matter as next friend or guardian ad litem of 5 a person with disability unless the lawyer of the person with disability has filed in the registry a) “a writing consent of the person proposing to be next friend or guardian ad litem to act in that capacity; and b) a certificate made by the lawyer for the person with disability certifying that, the lawyer knows or believes the person to whom the certificate relates is a person with disability, and that, the person named in the certificate as next friend or guardian ad litem is a proper person to act as such and has no interest in the cause of matter adverse to that of a person with disability.” The Applicants did not institute the instant action in a representative capacity by endorsing same on the originating process. They are in Court in their own right as Applicants not as next friend of the minors. Had they instituted the action not in their personal right, the title of the suit should have reflected the names of the minors as suing per their next friend and names of the Applicants follows. This is a violent breach of the Rules of Court. Not just that, there is no writing consent of the two Applicants proposing to be next friend of the two minors. Again, there is no certificate made for the two minors herein certifying that, the lawyer knows or believes that, they are persons with disability within the meaning of Order 5 r 1(1) of C. I. 47. This is also a violent breach of the Rules of Court. Having regard to the totality of the Affidavit Evidence before the Court this suit, the Application for Letters of Administration by the two Applicants are dismissed. (SGD.) H/L JUSTICE CHARLES KWESI BENTUM 6 (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Georgina Opoku Amankwah for the Applicants. Kwame Baah holding the brief of Humphrey Omaboe for the Respondents. 7