ESSIEN VRS ESSIEN & ANOTHER (E5/12/18) [2023] GHAHC 427 (31 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD IN SEKONDI ON TUESDAY, THE 31ST DAY OF OCTOBER, 2023 CORAM: G. K GYAN-KONTOH ‘J’ JUSTICE OF THE HIGH COURT BETWEEN: JOHN ESSIEN ::: PLAINTIFF SUIT NO: E5/12/18 vs 1. JOSEPH ESSIEN 2. GIFTY ESSIEN JUDGMENT: ::: DEFENDANTS By a writ of summons issued out of the registry of this court on 29/3/2018, the Plaintiff claimed against the Defendants, as Administrators of the Estate of John K. Y Essien for the following: a) An order setting aside the grant of the letters of Administration of the estate of John Kwamina Yalle Essien; b) A declaration that the processes leading up to the grant of the letters of Administration was wrongful ad thus null and void; c) Perpetual injunction restraining the Defendants, their workmen, agents etc from interfering with the Estate of J. K Y Essien (deceased); d) Any other reliefs the court may deem fit. The Plaintiff attached to his writ of summons with a ten paragraphed statement of claim. On the same day at 10.20, the Plaintiff through his Counsel filed NOTICE TO BRING IN GRANT OF LETTERS OF ADMINISTRATION under Order 666 r 37(1) of which the High Court (Civil Procedure) Rule, 2004, C. I 47 which require the Defendants (as Administrators), upon the service of the said process on them to bring and leave it at the registry of the High Court, Sekondi, the Letters of Administration issued to the Defendants on 6/2/2019. Upon the service of the process on the Defendants, they entered appearance on 10/4/2018 and filed a 7 paragraphed defence on 24/5/2018. From the records, there is a copy of the L/A on the Docket and the court cannot tell when same was brought to the court and left same at the registry of the curt as required under the rules and as demanded by the Plaintiff under a rule aforesaid (Order 60 r 37(1)). On 8/6/2018, the Defendants field application for Directions. On 25/6/2018, the issues were set down for determination as follows: a) Whether or not eh processes leading to the grant of the L/A was wrong. b) Whether or not he application and the grant of the L/A was made without the consent of the other interested parties; c) Whether or not prior to the grant the Plaintiff was dealing with the estate of the deceased; d) Whether or not the Plaintiff is entitled to his claim. Parties were directed to file their respective witness statement together with all documents they intend to rely on as Exhibits of the trial. At the Case Management Conference, efforts were made to settle the matter but due to the acrimonious relationship between the parties, the trial commenced. Indeed, I must state here that I am the fourth Judge to handle the case. PLAINTIFF’S CASE: The Plaintiff’s case is that he is the eldest child of the late J. K. Y Essien (hereafter called the Deceased), a beneficiary of the estate and a caveator. The Plaintiff’s case is that the Defendant applied for L/A of the said ester (per Exhibit “A”) and notices to that effect were posted on H/No. 10A/4, Kwesimintsim, where the Plaintiff lived and which also is the deceased’s home (See Exhibit “C”). According to the Plaintiff, Exhibit “A” was filed on1/2/2018, and notices posted for 21 days. Caveat was field on 16/2/2021. On 16/2/2018, which was less than 21 days notice by the court, the Defendants were issued with the L/A by the Registrar of the court. There was no warning as required by the rules of court nor called upon to file any affidavit of interest. And no other processes which were ever served on the Plaintiff after the caveat. Doubting the grant of the L/A on 6/2/2018, and with the caveat on record and which had not been determined, an L/A was issued. According to the Plaintiff, Judicial form 21 issued and posted on the house were to last for 21 days after 6/2/2018 as 6/2/2018 was the return date for the motion exparte for the L/A. According to the Plaintiff, strangely 6/2/2018 was the very same day that the L/A was issued by the registry to the Defendant and same amounted to breach of the rules of court and so was an error. According to the Plaintiff, the deceased’s children were 7 with the Plaintiff being the 1st, with the 1st Defendant being 2nd and the 2nd Defendant being the 6th; and none of the children was informed about the L/A nor seek their consent. The children of the deceased did not appoint the Defendants and the executors of the deceased’s estate are still alive and did not renounce probate. The Plaintiff states that they never travelled outside the jurisdiction and has lived in the house (No. 10/4, Kwesimintsim.) the Defendant to the Exhibit “A” as the head of family is the head of family as the head of family is uncle Andoh and still alive in Agona Nkwanta. The Defendant are not entitled to the grant of L/A. DEFENDANT’S CASE: For himself and on behalf of the other Defendant, the Defendant admitting that the Plaintiff is a signatory, the Defendants maintained that without recourse to them, the Plaintiff dealt with the properties by ejecting sitting tenants and rented portions thereof. They stated that the family sued the Plaintiff but it was settled. They stated that the deceased made a will and the executors refused to obtain probate and so the Defendants obtained L/A with will annexed. The Defendant maintained that the Plaintiff refused to cooperate and that this action by the Plaintiff is only calculated to frustrate the distribution of the estate of their father and the Plaintiff is enjoying the rents from the tenant alone and to the exclusion of the other beneficiaries. The Defendant exhibited the following to their case. a) Exhibit 1 b) Exhibit 2 - - Will of John Kwamina Yalle Essien Letter dated 23/1/2018 from Nicholas Essien to Kesse Law Firm on the estate. ANALYSIS: I have to state that upon the closure of the case of the parties, Counsel were directed to file their respective written addresses by timelines set for them. Unfortunately, only Counsel for the Plaintiff did file albeit belatedly. Counsel for the Defendant failed to comply with the court’s orders. Counsel’s said address has been embodied in this judgment though. In this judgment, I wish to rely on: a) The Administrators of Estates Act, 1961 (Act 63) b) The Courts Act, 1993 (Act 459) as amended c) The High (Civil Procedure) Rules, 2004, (C. I. 47) d) The Intestate Succession law (PNDCL 111). Per the Administration of Estates Act, (Act 63), S. 61 thereof, it provides as follows: “A grant of probate is necessary to entitle an executor to administer the property, whether movable or immovable of the Testator”. It is the law that upon the death of a Testator, the Testator’s estate instantly devolves on his executors who become entitled to deal with the estate even before the will is probated. See S. 1 of Act 63. See also: In re Okyere (D’d) v. Appenteng & Adoma [2012] 1 SCGLR 63 @ 75. Honestly, with time, the above position has been changing and presently the Supreme Court has stated definitively the position that beneficiaries of the estate of a deceased intestate may have the capacity to deal with the estate even before the grant of Letters of Administration, and in case of a Testator, the position is equally applicable to the beneficiaries. See: (1) Adisa Boya v. Zenabu Mohammed (Substituted by Adama Mohammed & Mujeeb, (unreported) JA/44/2017 dated 31st January, 2018. In this case of Adisa Boye (supra), the Supreme Court stated as follows: “Proceeding further, we are of the view that by virtue of the rules on intestacy, contained in S. 4(1) of the Intestate Succession Law, (PNDCL 111) following the death of the father of the Defendants and their mother, the original 1st Defendant, the property devolved upon the children and since they have legal interest in the property they are competent to defend and/or have an order of declaration of title in their favour”. The above position has been applied in subsequent cases including Susan Bandoh v. Dr. Mrs Maxwell Appiagyei Gyamfi & anor (unreported) No. J4/14/2016 dated 6th June, 2019. Thus the position of the law currently is that upon the death of a person either testate or interstate, his estate devolves immediately upon the beneficiaries (without having been granted Letters of Administration or Probate as the case may be and such beneficiaries can issue a writ in their own right as beneficiary even before Letters of Administration is granted). In the Bandoh case (supra), the Supreme Court stated amongst others thus: “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 Interstate Succession Law (PNDCL 111). I therefore, entirely agree with the legal proposition enunciated by Gbadegbe JSC and hold that even this appeal the Appellant, being a beneficiary child was a competent party, notwithstanding the fact that she had no Letters of Administration.” Upon the above therefore, I think that the Plaintiff was right when he mounted the instant action. It is not in dispute at all that the Plaintiff is a beneficiary under the Estate of his father. It is not in dispute that the Plaintiff is the 1st child of the deceased and even the Defendants allege that he has been taking undue advantage over the other beneficiaries and enjoying the estate to the exclusion of the other siblings. (See the Defendants’ defence and their cross- examination). It is in evidence that the deceased in his lifetime made a Will. (See Exhibit ‘1’). This explains why the Defendants applied for Letters of Administration with Will annexed as per Exhibit “A” and “B”. Having made a Will, then it behoved on both the beneficiaries and the Executors to have taken steps to apply for the Grant of Probate under Act 61 (The Administration of Estate (Act 61) and Order 66 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47). Under 66 r 7 of C. I 47, it provides that the court on its own motion or on an application by a person with interest in the Will may, order an executor to come to court to prove the Will or renounce probate. This, from the records, was not done. According to the Defendants, they had a letter from Nicholas Essien to the effect that he could not undertake the exercise and as such delegated his duties to some other person. Pursuant to the above, when the Defendants applied for Letters of Administration with Will annexed, they attached the said letter to their application. This in my view is wrong in law and procedure. There is a procedure for the application for the Grant of Probate. The Defendants chose not to go by the said procedure under Order 66 of C. I 47. In the course of the trial, upon an application and specifically a subpoena Duces Tecum, the Registrar of the court complied and tendered the said records in evidence and admitted as Exhibit “D”. As part of the records in Exhibit “D” tendered in evidence was a letter from Asempa Legal Consult dated 14/2/2018 on the estate under consideration, on a caveat by Counsel J. K. M Asempah to Registrar of this court. In the said letter, paragraph 2 thereof provides as follows: “Though our client herein (Mr Nicholas Essien) is the sole surviving executor it has been noted that one Joseph Essien and Gifty Essien of Takoradi have applied to the court for letter of Administration (with will annexed) which in our view is illegal and wrongful. Under the circumstance we shall be grateful to have copies of all the processes so far in that application to our payment of fees”. From the said document which was addressed to the Registrar, it was indeed received and there seemed to have been a note to draw the attention of Her Ladyship then on 15/2/2018. This was prior to the grant of the Letters of Administration by the same Registrar on 5/3/2018 after the lapse of the usual 21 day notice. This too, in my candid view is wrong. And the least said about this the better. A caveat could be filed even before an application has been made to the court; it could also be filed after an application has been made for the grant of probate or Letters of Administration is issued out by the court. For instance, where a person, on probate matters, claims to have an interest in the estate and which seeks to ensure that the grant of probate or Letters of Administration is not made without notice to him may file a caveat. The law is that on the filing of a caveat, a court is precluded from taking any steps until the matter of the merit or otherwise of the caveat has been determined by the court. (See In re Hervie (D’d). Addo v. Boye & anor [1989 – 1990] 1 GLR 174. The law is also that when a caveat is filed, it is in force for a period of three (3) months and may be renewed periodically. In the instant case, the caveat by the Plaintiff was filed on 18/2/2018. And by 5/3/2018, the Letters of Administration was issued. The above in my view shows clearly that the caveat was in full force when the Letters of Administration with will annexed was issued by the court. The above also shows that another procedure was breached by not only the Defendants but also the court officials in so far as the above estate is concerned. Also, the law is that when the caveat is filed and is in full force and as the records in this case clearly show, it is the duty of the Registrar to notify the Applicants. There is no record to that effect from the evidence. But one clear thing is that the Defendants, then as Applicants, refiled the application and this time on notice. The procedure though is that the caveator ought to have been warned to show his interest in the estate by filing affidavit of interest. This procedure too was breached not only by the Defendants, but also the court officials. Per the authorities, the rule is that the warning of the Registrar must be personally served on the caveator. (See Order 31 r 11 of C. I 47). See also: In the Kwayie (D’d); Boadiwaa v. Kobi Practice Note [1968] GLR 646. Again, the practice is that where the caveator has been served with the warning and after six days, the caveator has not reacted, the Applicant will then be entitled to move the court by an application for the removal of the caveat. The above too was not done by the Defendants, then as Applicants. ISSUE A: WHETHER OR NOT THE PROCESSES LEADING TO THE GRANT OF LETTERS OF ADMINISTRATION WAS WRONG. Exhibit ‘A” is the application for Letters of Administration made by exparte and filed on 01/02/2018. In paragraph 5, 6 & 7 thereof, the Applicants averred thus: “5. That the other beneficiaries have appointed as to apply to this court for the grant of probate.” “6. That the Executors of the Will of the deceased (Nicholas Essien and John Ocran) are not in the position to administer the estate of the deceased here.” “7. That while john Essien has travelled out of the country. Nicholas Essien has declined to apply for the probate. Please, find attached and marked Exhibit “C”. As stated earlier in this judgment, the proper procedure, by the rules, was for the executors to have renounced probate and not to decline to apply for the probate. Also, from the evidence, it is clear that the beneficiaries never appointed the Defendants to apply for the grant of probate. The fact that the instant action ensued, by the eldest of the children of the deceased provides the clearest indication for the economy of words of the Defendants. Regarding the claim that the Plaintiff had travelled out of the country, the fact that the Plaintiff caveated and fought the instant action up to the present proves the Defendants wrongfulness in the circumstances. Indeed, in the cross-examination of the Plaintiff, Counsel for the Defendants sought to condemn the Plaintiff that he alone was enjoying the estate with his wife to the exclusion of the other siblings by ejecting the tenants in the house. Also, both parties reside in their father’s house which is the subject/part of the estate. Therefore, the evidence is that the Plaintiff never travelled out of the jurisdiction. Sadly also, from Exhibit “C” on the oath of the Administrators, the Defendants excluded the name of the Plaintiff from the list of all of the children of the deceased whilst at the same time, the Plaintiff’s name was captured in paragraph 3 of the will of the deceased as a beneficiary. I have found that there were various procedures inherent in an application like the instant one which were all never followed. And I find that each default in procedure is fatal to the processes filed as one breach just skips to the other to arrive at an end. ON WHETHER OR NOT THE APPLICATION AND THE GRANT OF LETTERS OF ADMINISTRATION WAS MADE WITHOUT THE CONSENT OF THE OTHER INTERESTED PARTIES, the evidence is that the actual head of family was not consulted on the application by the Defendants. (See the cross-examination of the Defendants thus even the consultation of the other siblings: Q: Your evidence that you sought permission of your other siblings is palpable false? A: That is not true. We had a family meeting among all the siblings led by our late father’s customary successor by name Mr. Godson Arthur. Under the Administrators of Estates Act, the concept of the customary successor is a necessity. Under Order 66 r 10 (2), there is no express provision for consent to be obtained. In my view, instead of consent, Letters of Administration must be made with notice to other interested parties. I therefore, find that the Application leading to the grant of Letters of Administration with will annexed was made without the consent or even the knowledge of other interested parties. ON WHETHER OR NOT PRIOR TO THE GRANT THE PLAINTIFF WAS DEALING WITH THE ESTATE, paragraphs 3, 4, 5 and 6 of the Defendants witness statement provided as follows: “3. Upon the death of our father, John K. Y. Essien, the Plaintiff without recourse to any of the children of the deceased herein begun dealing with the properties of our deceased father and allocated the properties to himself and the family. “4. In the course of the exercise, in his own right he ejected the sibling, tenants and rented portions thereof. “5. As a result of those acts referred to above the family mounted an action against him at the High Court praying the court to declare his acts as unlawful and therefore null and void. “6. When he was served with the process, he filed appearance and later to that there were some interventions by the family who advised that we came together as one family and sibling’s rather than to litigate among ourselves.” Indeed, I must state that the above paragraphs were not borne out of the pleadings. That is, the evidence shows quite clearly that the Defendants did not plead the above evidence. Therefore, they ought not to have been allowed in. But Counsel for the Plaintiff did not find same uncomfortable and so did not object to same being tendered and adopted by the court. The Plaintiff denied the above in his cross-examination thus: Q: The family met on the 17th of March 2018 with the intent to distribute the property but you resisted same? That is not correct. But you recall an intermeddling application was filed against you on 27th March 2018? That is correct. In the application at paragraph 7, you forcefully drove the Defendants out? That is not correct. We all live in the same house. How would I drive the Defendants out? There is only a verandah separating us. A: Q: A: Q: A: The above having been denied by the Plaintiff ought to have been handled further by proving the guilt of the Plaintiff. This could not be done. It has been the law that when an averment is made and the party denies same, then the party who made the assertion has the duty not just to mount the witness box and repeat the averment; but to go further and provide further and better particulars. (See: Majolagbi v. Larbi [1959] GLR 190. Failing to provide further and better details to prove the above point, I will therefore decide on this issue in favour of the Plaintiff as against the Defendants. ISSUE D: WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIM. In my humble opinion, this court being a High Court is bound to follow the decision of the apex court on their Lordships position on the above issue being singled out as a separate issue for determination as a result of laziness. This is the decision held in Dalex Finance & Leasing Co. v. Ebenezer Denzel Amanor & ors [2021] DLSL 10163, per Pwamang JSC where his Lordship admonished lawyers to desist from raising an issue like the instant one distinctly and separately to be determined as such is the reason why the parties are in court. IN CONCLUSION therefore, in consideration of the processes before the court and the evidence, some breaches of the rules of court under Order 66 of C. I 47 were occasioned on the application for the Letters of Administration (with will annexed) which cannot just be ignored as they were quite fundamental, as in my view same bothered on the rules of natural justice in the form of WARNING which was in the circumstances mandatory in such estates matters but was ignored before the grant of the Letters of Administration with will annexed. I therefore grant relief (b) accordingly as I do hereby declare that the process leading up to the grant of the Letters of Administration (with will annexed) were wrongful and thus void. Thus, I grant relief (a) of the Plaintiff’s claim and hereby set aside the grant of Letters of Administration (with will annexed) to Administrator of the estate of John Kwamina Yalle Essien (D’d). I am unable to injunct the Defendants from interfering with the Estate of J. K. Y Essien (D’d) as this court finds that all the parties are siblings and children from J. K. Y Essien (D’d) and thus beneficiaries of the will of the testator. Rather, from the evidence, one of the executors is available, steps ought to be taken to have the sole executor take probate in respect of the estate per the will of the testator, or renounce probate to enable all beneficiaries decide on the best way forward. This matter being an estate matter, I will not award any costs. SGD G. K GYAN-KOTOH (JUSTICE OF THE HIGH COURT) COUNSEL: 1. E. K. N ARTHUR FOR THE PLAINTIFF. 2. S. K KESSE FOR THE DEFENDANTS. 15