Authors:  Joseph Bondzie Afrifa & Vanessa S. Zormelo

Abstract

In this Article, the authors seek to discuss the position of the law concerning the issue of whether or not a person needs to obtain Letters of Administration before he can have the capacity to sue or be sued in respect of the estate of a deceased person. We will discuss the different positions on the issue and show the current position of the Law on the matter.

Introduction

It is trite learning that Capacity is a fundamental issue in respect of legal proceedings and a person who seeks to commence a legal action must ensure that he possesses the requisite competence in law.

Over the years, the apex court of the land, i.e. the Supreme Court has rendered decisions in respect of the capacity of a person to sue or be sued in respect of the estate of a deceased person.

It has been contended in some circles that there is no longer the need to obtain Letters of Administration before one can sue or be sued in respect of the estate of a deceased. Others hold the view that, one would only not need Letters of Administration to sue or be sued if the action is in respect of the protection of the estate from dissipation.

In this article, the writers examine the legal concepts involved in the capacity to maintain an action in respect of the estate of a deceased and how case law has progressively settled on a position as to whether or not obtaining Letters of Administration is a precondition.

Letters of Administration

Administration is defined as the management and settlement of the estate of an intestate decedent, or of a testator who has no executor, by a person legally appointed and supervised by the court. [1]

This can be done either by application for the grant of Probate or Letters of Administration. Probate is defined as the judicial procedure by which a testamentary document is established to be a valid will, the proving of a will to the satisfaction of the court.[2] Letters of Administration on the other hand, is defined as a formal document issued by a probate court to appoint the administrator of an estate.[3] For the purpose of this discussion, focus will be on Letters of Administration.

Where a person dies intestate after 14^th June, 1985 (after the enactment of the Intestate Succession Act, PNDC Law 111), the High Court (Civil Procedure) rules, 2004 (CI 47) lays out the order of priority of the persons who shall be entitled to a grant of Letters of Administration as follows:[4]

“Where a person dies intestate on or after 14^th June 1985, the persons who have beneficial interest in the estate of the deceased shall be entitled to a grant of letters of administration in the following order of priority:

1. Any surviving spouse;
2. Any surviving children;
3. Any surviving parents;
4. The customary successor of the deceased.”

In Re Asante (Decd.) Owusu v Asante[5] where the mother of the infant children of the deceased was a concubine, she was joined as an administrator of the estate to protect the interest of her children who were beneficiaries of the estate.

Generally, the number of persons to whom a grant of letters of administration shall not exceed four. However where an enactment states otherwise, that number may be exceeded. For example under section 77 of the Administration of Estates Act, 1961 (Act 63), if there is any beneficiary under an estate who is an infant or if a life interest arises under a Will or intestacy, then there must be at least two individuals or trust corporation with or without an individual as the administrator.[6] Also, where two or more persons are entitled to a grant in the same degree, the Court may make a grant to any of them without joining the others.[7] Where a person who has a prior right to a grant of probate or administration delays or refuses to take it and does not agree to renounce the person’s right, a person who has an inferior right may serve a notice on the person with prior right calling on the person with prior right to take a grant or renounce the right.[8]  If upon being served with the notice, the person with the prior right does not apply for a grant or renounce the right within fourteen days, the person serving the notice may apply for a grant and the Court shall make a grant to the applicant if it is of opinion that it is desirable to do so.[9]

A Probate action is an action for the grant of probate of the will or letters of administration of the estate of a deceased person, or for the revocation of such grant, or for a judgment or order pronouncing for or against the validity of an alleged will, being an action which is contentious or not common form probate business.[10]

Capacity

Legal capacity is defined as the capability and power under law of a person to occupy a particular status or relationship with another or to engage in a particular undertaking or transaction.[11]

The issue of capacity has been variously dealt with by the courts and it has been held on a number of occasions that capacity goes to the root of the matter and whenever it is raised, it has the potential of curtailing the action even before trial. It is usually good practice that when the capacity of a plaintiff to sue is raised, it has to be dealt with before the action can proceed. Cases such as Fosua and Adu-Poku v. Dufie[12], Asante-Appiah v. Amponsah alias Mansah[13]and Kowus Motors v. Checkpoint[14] are in point. The courts have also held that capacity can be raised at any time.

Regarding the issue of capacity, a person may act for himself or for another person. The latter is known as representative capacity and it is defined as the position of one standing or acting for another, especially through delegated authority.[15]

The issue of representative capacity featured prominently in Akrong v Bulley[16], which would be discussed subsequently.

Is there a need to have letters of administration to sue or be sued in respect of a deceased’s estate?

In Ghana, there seems to be two schools of thought on this matter. The first school of thought is that one needs Letters of Administration to sue or be sued in respect of the estate of a deceased. This is the position that was espoused in Akrong v Bulley[17]. In this case, the Plaintiff was the mother of a man who was negligently killed by a truck owned by the 2^ndDefendant and driven by the 1^st Defendant. The Plaintiff brought an action under the Fatal Accidents Acts, 1846-1864. In her writ which was issued in March 1962, she stated that she was a “successor and next-of-kin” of the deceased however in November 1962, the Plaintiff was granted leave to amend the title of her suit by prefixing to the words “successors and next-of-kin”, the words “personal representative” – the Plaintiff did not take out Letters of Administration until December 1962. The Defendants argued that at the time the action was commenced, she had not taken Letters of Administration hence she did not disclose any legal capacity to sue. The Supreme Court upheld the argument of the Defendants and held that since at the time the Plaintiff issued her writ she had not taken out Letters of Administration, she lacked capacity to sue under the Fatal Accidents Act even though she subsequently took Letters of Administration. Apaloo JSC stated as follows:

“At the date when the Plaintiff issued her writ, she was neither an executrix nor administratrix. No cause of action was therefore vested in her and she could not and did not commence a competent action… I am therefore constrained to hold that the writ was a nullity and so are the proceedings and judgment founded on it”.

On a brighter note, it seems the Supreme Court has realized that the position in Akrong v Bulley has been misapplied and has made efforts to clarify the position concerning the capacity of persons who can sue or be sued in respect of a deceased person’s estate. The contrary position of the law as stated in some cases is to the effect that one need not obtain Letters of Administration before one can sue or be sued in respect of the estate of a deceased especially if the estate needs to be protected from dissipation.

In Adisa Boya v Zenabu[18] where parties claimed a declaration of title to the land, the plaintiff contended that he obtained his grant in the 1990s and perfected it with a leasehold document from the stool. The defendants who claimed through their deceased father, one Mohammed Suley alleged that their father took his grant on 15 January 1970 and followed it with entry upon the land and the erection of a residential dwelling thereon.

A question was raised as to the capacity of the Defendants to have mounted a counterclaim in the action. It was contended that in the absence of proof that following the demise of their father to whom the prior grant was made, they had obtained letters of administration from the court and subsequently had the disputed property vested in them they were without capacity.

In resolving this question, the Supreme Court took a view that, by virtue of the rules on intestacy contained in section 4(1) (a) of the Intestate Succession Law, PNDC Law 112 , following the death of the father of the defendants and their mother – the original 1st defendant, the property devolved upon the children and as such they had an immediate legal interest in the property that they are competent to defend and or sue in respect of and in any such case either the children acting together or any of them acting on behalf of the others may seek and or have an order of declaration of title made in their favor.

Similarly, in Susan Bandoh v Apeagyei Gyamfi & Anor.,[19] the appellant’s mother, one Dr. Evelyn Vanderpuye acquired the land in dispute in the 1970’s from the Nungua Stool. After the said acquisition, the mother went into possession and erected corner pillars on the land and in 1979, a lease was executed for the mother which was registered at the Land Registry as No. 1411/1992. According to the Appellant, they constructed a boys-quarters on the land and put caretakers on it. The respondents however entered the land, destroyed the corner pillars, covered their reservoir and started developing the land hurriedly.

At the Supreme Court, the Respondent raised a legal issue as to the capacity of the Appellant. The argument of the Respondent’s counsel was that being a beneficiary, the appellant could have sued only if she had Letters of Administration or Probate.

Marful-Sau JSC resolved this issue by reference to the Adisa Boya case that, the court speaking through Gbadegbe JSC, held that the defendants who were the children of the estate had immediate interest in the property and for that reason, they were competent to defend or even sue for declaration of title, notwithstanding the fact that they had not obtained any letters of administration.

 In the words of His Lordship Marful-Sau JSC:

“I wish to add that the above proposition of law is only fair and equitable in view of the interest created in estate for beneficiary children, under the Intestate Succession Act, PNDC Law 111. I therefore, entirely agree with the legal proposition enunciated by Gbadegbe JSC, and hold that even in this appeal the appellant, being a beneficiary child, was a competent party, notwithstanding the fact that she had no letters of Administration.”

Essentially, both cases enunciate that you need not obtain Letters of administration before you can sue or be sued in respect of the estate of a deceased once you can demonstrate a legal interest in the property and particularly, if the estate needs to be protected from dissipation.

This position was made clearer recently in the Supreme Court case of Florini Luca & Anor. v Mr. Samir & Ors.[20]The plaintiffs, Italian nationals , sued in the High Court, Sekondi through their lawful attorney to recover House No. 15, Whin Layout, Beach Road, Takoradi which was in the possession of the defendants. The plaintiffs’ case was that the house was acquired by their Italian mother who died intestate on 24th March, 2010 in Genova, Italy but used to live in Ghana where she was into timber business. They stated that their mother was compelled by circumstances to flee back to Italy in 1982 when her business was confiscated at the height of the revolution. The defendants took possession of the house believing it was part of the confiscated assets of Subin Timber Company Limited/Central Logging and Sawmills Ltd but the plaintiffs contended that it was not, and that all along it remained the personal property of their mother.

However, the plaintiffs were met with some legal defences as the defendants challenged their capacity to mount the action on the basis that, they had no letters of administration over the estate of their mother. The court therefore had to determine the issue of whether the plaintiffs are deficient of capacity to bring the action.

Pwamang JSC delivering the decision of the court corrected the position of the law espoused in Akrong v Bulley that Defendant counsel sought to misapply. His Lordship affirmed that, the Supreme Court in Akrong v Bulley never laid down a general requirement for letters of administration before a party can sue in respect of property that belonged to a deceased person. The plaintiff in that case was suing in a representative capacity and the trite learning is that such party must state so in the endorsement on the writ of summons and must prove that capacity. Secondly, in Akrong v Bulley the persons with locus standi to sue was provided for in the statutes under which the action was brought, the Fatal Accidents Acts.

The court went ahead to distinguish between capacity and locus standi as follows:

“ It is pertinent to recognize that though capacity and locus standi are closely related and in many instances arise together in cases in court, they are separate legal concepts. Capacity properly so called relates to the juristic persona and competence to sue in a court of law and it becomes an issue where an individual sues not in her own personal right, but states a certain capacity on account of which she is proceeding in court. But locus stand[i] relates to the legal interest that a party claims in the subject matter of a suit in court. This may be dependent on the provisions of the statute that confers the right to sue, …. Otherwise, generally locus stand[i] depends on whether the party has a legal or equitable right that she seeks to enforce or protect by suing in court.”

In the Florini case, aside the 1^st Plaintiff who sued in the representative capacity as a lawful attorney, the two others sued personally on the basis that the estate of their deceased mother has devolved on the by operation of Italian law. Under this circumstance, they had the locus standi to sue in their own right.

The substance of the challenge of the Defendants was therefore more as to the locus standi of the plaintiffs than capacity since they did not plead a representative capacity and were not claiming the property on behalf of the estate of their mother. The court rejected the challenge of the Defendants to the capacity of the Plaintiffs for not obtaining Letters of administration before proceeding to sue.

Therefore, in instances where one can demonstrate that they have a legal interest in the estate of a deceased, such a person can sue and be sued in respect of the estate whether or not the person has applied for and obtained Letters of Administration.

However, upon a careful consideration of the cases discussed, this position is tenable in instances where the person who is suing or has been sued in respect of the estate of a deceased without Letters of Administration is doing so to protect the estate property from dissipation or threat of same.

In furtherance of our opinion, the earlier case of Okyere (decd) (substituted by Peprah) v Appenteng & Adomaa,[21] is discussed. In this case, the Supreme Court speaking through Date-Bah JSC held that, a devisee cannot sue or be sued in relation to the devised property before a vesting assent is executed in his favour.

The apex court  adopted the common law position that,  beneficiaries of an estate or a trust property cannot sue or be sued in respect of the property except where the property is in danger, in which case they may sue to protect it.

In arriving at these conclusions, the court considered the exigencies of the protection in estate administration as was seen in Brobbey JSC’s dictum;

“It is common knowledge that in this country some estates are dissipated by the inaction of the executors or personal representatives. Others go to waste or are lost as a result of the active misuse or abuse of the estate left by the deceased person when executors or personal representatives refuse or fail to attend to duties entrusted to them under estates or selfishly make use of the estate to their benefit of undeserving others. If the law is that the beneficiary or a devisee has no title to sue or be sued until the grant to him of a vesting assent, what does he do in any of the situations postulated above? At equity, such a person should be able to mount an action to protect the estate, or to save it from being dissipated or wasted….”

The authors therefore subscribe to this position and further state that, the lack of letters of administration by persons with interest in the estate of a deceased may be used only as a shield to sue and be sued in protection of the estate from dissipation. The courts would not permit an action by such a person in instances where despite the lack of letters of administration, he draws up the sword to commence an action in respect of the estate of the deceased.

In the Adisa Boya case, the Defendants who claimed title through their deceased father counterclaimed for a declaration of title to the land and the Supreme Court granted same though they had not obtained Letters of administration in respect of the land. This is because the Defendants successfully proved the title of their deceased father and the resulting legal interest they had acquired.

Furthermore, the Plaintiffs sought a declaration of title to the land possessed by the Defendants. The Plaintiffs laid adverse claims of title to the land on the basis of a grant from Hia-Topre Stool of Ayigya and a subsequent lesehold agreement. The burden was therefore on the Defendants who were in possession of the land for years to defend their legitimate title to it. The court allowed and consequently granted their counterclaim for a declaration for title to the land notwithstanding the fact that they had not obtained letters of administration for their deceased father’s estate which the land was part.

This confirms the position that, the court would allow a party maintain an action in respect of the estate of a deceased though letters of administration have not been obtained once the person demonstrates his legal interest and the fact that the action is to aid him protect the estate from dissipation.

This position is highly equitable and fair in the sense that if such persons are mandatorily required to obtain letters of administration before they can maintain an action in defence of the estate, they would lose the properties which would occasion grave injustice on them. Default and Summary judgements are likely to be taken against most of such persons.

Conclusion

From the foregoing discussions, it is our considered view that, a person need not obtain Letters of Administration before that person can sue or be sued in respect of the estate of a deceased where the action is to facilitate the protection of the estate from dissipation. It is our humble opinion that, this legal principle is only tenable when used as a shield and not an attacking sword.

However, where a person intends to commence an action to claim personal entitlement in respect of an estate, that person must demonstrate that the estate has devolved unto that person by operation of law or by the consummation of a Vesting Assent.

[1] Black’s Law Dictionary, 8^th edition

[2] Black’s Law Dictionary, 8^th edition

[3] Black’s Law Dictionary, 8^th edition

[4] Order 66 Rule 13 of CI 47

[5] [1993-94] 2 GLR 271

[6] Marful-Sau JSC, “A Practical Guide to Civil Procedure in Ghana” page 185

[7] Order 66 Rule 14(2) of CI 47

[8] Order 66 Rule15(1) of CI 47

[9] Order 66 Rule 15(2) of CI 47

[10] Order 32 of CI 47

[11]https://www.merriam-webster.com/dictionary/legal%20capacity

[12] [2009]  SCGLR 310

[13] [2009] SCGLR 90

[14] [2009] SCGLR 230

[15] Black’s Law Dictionary, 8^th edition

[16] [1965] GLR 469

[17] supra

[18] (CIVIL APPEALNO.J4/44/2017)

[19] CIVILAPPEALNO.J4/44/2017

[20] (J4 49 of 2020) [2021] GHASC 4 (21 April 2021).

[21] (Civil Appeal No. J4/17/2008)