In the Estate of Baaba Doug4an (BPD 1488/2015) [2023] GHAHC 387 (4 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE PROBATE AND ADMINISTRATION DIVISION I HELD IN ACCRA ON 14TH DAY OF DECEMBER, 2023 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, JUSTICE OF THE HIGH COURT ---------------------------------------------------------------------------------------------------------------- SUIT NO. BPD 1488/2015 IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (DECEASED) AND IN THE MATTER OF AN APPLICATION BY 1. DAVID KWEKU AMOAKO DOUGAN 123 GIFFFARD ROAD EAST CANTONMENTS ACCRA 2. KOJO NTSAFUL DOUGAN 123 GIFFFARD ROAD APPLICANTS EAST CANTONMENTS ACCRA 3. DAVID KWAKU AKRASI SARPONG 41 KAKRAMADU ROAD EAST CANTONMENTS ACCRA …. (BENEFICIARIES UNDER THE WILL OF AUGUSTINA BAABA DOUGAN (MRS) (DECEASED) AND 1. RAYMOND CUDJOE 2. AUGUSTINA ESI DOUGAN …. RESPONDENTS 3. JEMINA MOGRABI (MRS) ---------------------------------------------------------------------------------------------------------------- PARTIES: 1ST & 3RD APPLICANT PRESENT 1ST APPLICANT REPRESENTING 2ND APPLICANT Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING 1ST & 3RD RESPONDENT PRESENT AND 1ST RESPONDENT REPRESENTING 2ND RESPONDENT COUNSEL: BENEDICTA MAWUSI FIANOO WITH MARC ASAMOAH BOAKYE FOR SAMUEL OKYERE FOR THE APPLICANT RAYMOND CODJOE FOR 1ST AND 2ND RESPONDENT 1ST RESPONDENT APPEARING IN PERSON =================================================================== RULING =================================================================== [1] Introduction and Applicants’ case The Respondents on 8th July 2015 filed an application for grant of probate which was granted on 15th July 2015. The Applicants filed an application for an order for the removal of the executors under the Will of Augustina Baaba Dougan (Mrs) (Deceased) and for the appointment of the Administrator-General to distribute the Estate of the Estate of Augustina Baaba (deceased) and for a further order for the Executors to account for their stewardship. The reliefs are as follows: 1. “An order for the Respondents to be removed as Executors under the Last Will & Testament of Augustina Baaba Dougan dated 31st May 2012 and for the appointment of Administrator-General to distribute the estate in accordance with the said Will. 2. An order directed at the Respondents to render Accounts to the beneficiaries under the Will of all monies the Respondents have collected on behalf of the estate to date in their capacity as Executors under the Will of the deceased of their stewardship. 3. Costs 4. Any other reliefs that the Honourable Court may deem fit.” The Applicants deposed that the Applicants and the Respondents are siblings and among the biological children of Augustina Baaba Dougan (Mrs). The Respondents are among the beneficiaries named in the Last Will and Testament of the deceased dated the 31st December 2012. Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING It is the case of the Applicants that the deceased died testate on 12th December 2014 and on the 15th day of July 2015 the High Court, Accra granted probate to the Defendants herein to administer the estate of the deceased. The 1st and 2nd Respondents have assumed stewardship of the estate much to the exclusion of the 3rd Respondent. It is the further case of the Applicants that since the grant of probate eight years ago the Respondents have failed, refused and or neglected to assent to the vesting in the respective beneficiaries the various assets devised to them in the Will despite persistent calls on them to do so by the Applicants. Paragraphs 11 to 16 of the affidavit in support inter alia outlines the various ways the Respondents have failed to perform their obligations as Executors despite the Applicants call on them to do so. The Applicants deposed that the statutory period within which the Executors are required by law to gather in the estate and distribute same to persons beneficially entitled have long elapsed. The Applicant relied on Exhibits A to C. [2] Affidavit in opposition The 1st and 2nd Respondents filed a 59-paragraph affidavit in opposition deposed to by the 1st Respondent on 28th November 2023. The 1st Respondent contends that the application brought by the Applicants is essentially brought in bad faith and calculated to distort the facts, short change other tenants in common and efforts underway by the Executors to bring an application to the Court to pronounce on the approach suggested by the 1st Respondent given the efforts of the 1st and 2nd Applicants to frustrate every efforts to have the boundaries wall and matching boundary pillars posts marked on the ground ahead of the preparation of the site plan of the various property gifts arising from the Will in respect of the various properties on the Cantonment land. The 1st Respondent deposed that he has made it clear that winding an Estate must ensure the vesting assent demarcation of each of the separate property gifts and what boundaries constitute the common area to which all would be entitled to pass through for the purposes of entry and exit of their respective properties failing which given the Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING complete breakdown in relation between some of the parties would result in tension and potential attacks, one of which the 2nd Applicant visited on Ato Dougan and which Ato Dougan brought to the attention of 1st Respondent and 1st Respondent forwarded to both Joe Dougan and the 2nd Respondent herein. The 1st and 2nd Respondents relied on Exhibits EAD 1A to 13B. The 1st Respondent in paragraphs 8 to 59 reiterates the depositions above and deposes inter alia steps taken to administer the estate of the deceased and those who have frustrated the executors in their work. The 1st and 2nd Respondents also prayed for the following reliefs: i. The dismissal of the application and ii. For the Court to order the Executors to appoint surveyors to capture the point on the land identified by the parties as the boundary wall in Exhibit marked as Exhibit EAD 1 B. iii. The order that the 1st and 2nd Applicants grant access to the Executor within 7 days of the Order to enter the shops occupied by them to measure the floor space and complete the pro-rata rental due assessment and for the payment of the assessed rent within 21 days unless disputed by Court Action brought within such time period. iv. To order Applicants to join the Executors as co-plaintiff against the father of the sibling for a determination of the capacity or otherwise of the Testator to make the deposition contained in the Will in respect of Dansoman. v. To order 2nd Applicant to demolish all structures and remove such debris arising from the demolition on the property which were not constructed with the prior consent or thereafter written waiver of right to complain of all existing tenants-in-common of that property at the winding of the Estate to have their names in the vesting Assent. vi. To order 1st Applicant to commence action against the Estate for a challenging the validity of the gift in residential property occupied by the 1st Applicant within 14 days of the Order of the Court failing which to submit to the valuation of rental of the premise or vacate same for independent tenants to pay rent for the property and provide funds for the Estate. Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING vii. To order 2nd Applicant to submit to the valuation of rental of the residential premise or vacate same for independent tenants to pay rent for the property and provide funds for the Estate. viii. To take the Executors to the Bank where 2nd Applicant claims that he accompanied the Testator who carried and lodged a lot of money into within 7 days of the order of the Court. [3] Submissions of Counsel [3.1] Counsel for Applicant We have before you a motion on notice for the removal of the executors under the Will of the deceased and a further order for the executors to account for their stewardship and for the appointment of the Administrator General to distribute the Estate of the deceased. The motion was filed on 7th November 2023. I beg to move in terms of the motion paper, the supporting affidavit and the Exhibit attached. We have been served with an affidavit in opposition dated 28th November 2023 by the 1st and the 2nd Respondents. We rely on the deposition in our affidavit in support. We refer to Section 104 of the Administration of the Estate Act 1961, Act 63 which proposes that within a year the Estate of a deceased person should be distributed. Republic vs. Mensah [1994-94] GBR. [3.2] Counsel for Respondent We are vehemently opposed to the application and we rely on affidavit in opposition field on 28th November 2023 and all the Exhibit attached. We pray upon a review on a content of our affidavit in opposition that the Court grants our prayer in paragraph 59 of our affidavit in opposition. The Court will observe that by law the duty of the administrator is to collect all money due the Estate and to make all payment which the estate is obligated to pay before winding and distributing the Estate. The law is clear that any Administrator who winds up an Estate prematurely without ensuring that debts due the Estate are collected and all payment which the Estate is obligated to pay are made stand the risk of being personally liable. The Court will observe that as early as 2016 the Administrators sought to take steps to prepare vesting assent for winding up the Estate which is attached as Exhibit EAD 5. The Court will further observe that Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING by State Housing Company (SHC) letter EAD2 dated 3rd May 2017, the SHC, brought to the attention of the Executors that ground rent is outstanding. In the affidavit in opposition and attachment the Respondents have deposed to and attached Exhibits which shows the debt which was owed by the Estate and efforts made by the Executor in order to raise money to wind up the estate in timely manner by the collection of commercial rental at ongoing market prices in order to enable the Estate to be wound up in timely manner. We pray that the Court grants the prayer of the 1st & 2nd Respondent in paragraph 59 of the affidavit in opposition. [3.3] The 3rd Respondent though served did not an affidavit in opposition and was present in Court on 14th December 2023 when the application was moved. The Court granted leave to serve the motion on the 2nd Respondent outside the jurisdiction and adjourned for consideration of the motion on 10th January 2024. On 11th December 2023 the Applicants’ Counsel caused a letter for hearing notice to be served on the Respondents. The 1st and 3rd Respondents were in Court on 14th December 2023. The 1st Respondent stated that he was representing the 2nd Respondent and deposed to same in the affidavit in opposition. [4] Court’s Analysis and Opinion The main question for determination is whether the Application should be granted? I shall proceed to examine the applicable rules. “Order 66 rule 29, 32 and 33 provides as follows: 29. Action to revoke grant of probate or letters of administration (1) Where grant of probate or letters of administration has been issued, any person who seeks to have the grant revoked by the Court may issue a writ to seek the relief. (2) In any action brought under rules 25 to 29 of this Order, rules 32 to 43 shall apply. 32. Interpretation For the purpose of contentious probate matters as provided for under this Order, “probate action” means 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. 33. Commencement of probate action Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING (1) A probate action shall be commenced by writ. (2) The writ must be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased. (3) Before a writ for the revocation of the grant of probate of a will or letters of administration of the estate of a deceased person is issued out, notice shall be given under rule 37, unless the probate or letters of administration has or have been lodged in the registry of the Court.” Order 29 of CI 47 provides as follows: ORDER 29 “Accounts 1. Summary order for account “(1) Where a writ indorsed with a claim includes a claim for an account or a claim which necessarily involves taking an account, the plaintiff may, at any time after the defendant has filed appearance or after the time limited for filing appearance, apply for an order for account under this rule. (2) An application under this rule shall be supported by affidavit or other evidence if the Court so directs. (3) On the hearing of the application the Court may, unless satisfied by the defendant by affidavit or otherwise, that there is some preliminary question to be tried, order that an account be taken, and may also order that any amount certified on taking the account to be due to either party be paid to that party within a time specified in the order. 2. Court may direct taking of account (1) The Court may, on an application made at any stage in the cause or matter, direct any necessary accounts to be taken. (2) Every direction for the taking of an account shall be numbered in the judgment or order so that each distinct account may be designated by a number. 3. Directions as to manner of taking account (1) Where the Court orders an account to be taken it may by the same or a subsequent order give directions with regard to the manner in which the account is to be taken or verified. Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING (2) Notwithstanding subrule (1), the Court may direct that in taking an account the relevant books of account shall be evidence of the matters contained in them with liberty to the parties interested in them to take such objections as they think fit. 4. Accounts to be verified (1) Where an account has been ordered to be taken, the accounting party shall make out an account and, unless the Court otherwise directs, verify it by an affidavit to which the account shall be exhibited. (2) The items on each side of the account shall be numbered consecutively. (3) Unless the order for the taking of the account otherwise directs, the accounting party shall file the account with the Court with notice to the other parties.” In the case of GLADYS ANANE ADDO & 9 VS. KUMASI METROPOLITAN ASSEMBLY, KEJETIA TRADERS ASSOCIATION, [SUPREME COURT] Civil Appeal No. J4/19/2006 DATE: 28th November, 2007 the Supreme Court delivered itself thus on the issue of accounts: “Consequently, on the Plaintiffs’ claim against the Appellants for accounts, the court invoked Order 33 Rule 3 of the erstwhile High Court (Civil Procedure) Rules, 1954 (LN 140A) (hereinafter referred to as the High Court Rules) and ordered that:- The executives of the Association account for all monies collected or paid to them and The accounts should be audited by the Serious Fraud Office. In sum, therefore, the Appellant’s case appears to be that, before arriving at his judgment, the learned High Court judge ought to have ordered the taking and verification of the accounts. Thus, whilst the Appellant appreciates, and acknowledges, the need for accounts to be taken and verified, its complaint seems to be that the learned Judge ought to have made the appropriate orders much earlier in the trial of the matter. Hence the core issue in this matter is of a very narrow compass and is, simply, whether or not the learned High Court Judge did misapply Order 33 Rule 3 and, if so, whether or not such misapplication has indeed resulted in ‘a substantial miscarriage of justice’ to the Appellant. Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING Order 33.3 of the erstwhile High Court Rules, provided as follows:- “The Court or a Judge may either by the judgment or order directing an account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised.” …It is noteworthy that, whilst the provisions of Rules 1 and 2 of Order 33 of the said High Court Rules were substantially amended by the High Court (Civil Procedure) (Amendment) (No.2) Rules 1977 (L. I. 1129), those amendments left rule 3 and the remaining Rules of the Order, intact. Although amended Rule 1 gave a Plaintiff the power to apply to the court for a summary order for accounts at any time after the Defendant has entered an appearance, we do not read this provision to mean that, should such a Plaintiff fail to make such an application at all, (as happened in this case) the court has no power to include such an order for accounting in the judgment. In any event, the Plaintiffs herein, having, in their Writ of Summons, specifically claimed an order for accounts, given the state of the law as at the time, the learned High Court judge would have failed in his duty in the matter had he failed to make some specific dispositions on that claim. Hence, in view of the evidence on hand, the Court could do no wise than grant the claim for accounting and order the modalities for taking and verifying the same accordingly. Consequently, when the learned High Court judge, in the light of the evidence, particularly that of DW2 (the Appellant’s treasurer) ordered, as part of the judgment in the matter, that the Executives of the Appellants render an account to the Plaintiffs and that those accounts be audited by the Serious Fraud Office, he was acting within his statutory powers.” Order 66 rule 29, 32 and 33 of CI 47 clearly prescribes how a contentious probate matter should be commenced. Order 29 of CI 47 also outlines the procedure for accounts to be rendered. The rules state that it must be commenced by way of Writ of Summons. This application is in the nature of a contentious probate matter commenced by originating motion on notice, one of the modes of instituting an action. Considering that there are a lot of factual depositions in the application is the process adopted the best mode for instituting this action? The Applicants are essentially asking for Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING revocation of grant of probate to the Executors and the appointment of the Administrator-General as the Administrator of the estate of the deceased. Has the condition precedent been complied with? The 1st and 2nd Respondents have raised issues about testamentary capacity in respect of one of the properties and seek other major reliefs. The duties of an Executor/Executrix are well stated in the Law of Wills in Ghana (1998) authored by Samuel Azu Crabbe at page 274 thus: a) “To bury the deceased at their own expense, unless the spouse, or the children, or the family or the deceased express the wish to undertake financial responsibilities for the burial b) To collect the estate, which belonged to the deceased at the time of death, and to sell and convert it into money required for the purpose of administration in accordance with the provisions of Section 93(1) and (2) of the Administration of Estates Act, 1961 (Act 63) as amended by Section 6 of the Administration of Estate (Amendment) Law, 1985 (PNDCL 113) c) To clear the estate of liabilities by the payment of funeral expenses and debts, for as it is provided by Subsection 3 of Section 93 of Act 63 (as amended by Section 6 of PNDCL 113) d) To distribute the residue of the estate among the beneficiaries in accordance with the directions in the will or the rules of intestacy; but it is now provided by Subsection 4 of section 93) (as amended by Section 6 of PNDCL 113). e) To exhibit on oath in court a true and perfect inventory and account of the estate of the deceased, when lawfully required to do so. f) To distribute the estate of the deceased person within the year after the grant of probate or letters of administration as provided by Section 9 of the Administration of Estate (Amendment) Law, 1985 (PNDCL 113). g) To execute a vesting assent in favour of the beneficiary of any real estate under the will in accordance with Section 96(1) of the Administration of Estates Act, 1961 (Act 63). Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING The obligation to pay outstanding debts is just two of the obligations of the Executors out of eight obligations of an Executor as stated supra by the learned Author. There have been many factual allegations in the affidavit in support, affidavit in opposition and supplementary affidavit in support which affidavit evidence cannot particularly be used to resolve same. Under the Administration of Estate Act, 1961, Act 63 the circumstances under which the Administrator-General can be appointed as an Executor/Administrator by the Court have been clearly spelt out in the Act 63 and they are as follows: 1. The Administrator-General maybe appointed as an Executor of the estate.1 2. The Administrator-General may, whenever he becomes aware of any estate which he considers unrepresented, present a petition to the court in the form set out in the First Schedule to this Act, praying for the grant of probate or of letters of administration of the estate and the court may, upon being satisfied that the estate is unrepresented, make an order accordingly2. 3. Uncertainty as to succession3. The Administrator-General can apply or any person interested in the assets or in the due administration thereof can apply. 4. Transfer by Private Executor or Administrator to Administrator-General 4 . Any private executor or administrator may, with the previous consent of the Administrator-General by instrument in writing under his hand, notified in the Gazette, transfer the assets of the estate vested in him by virtue of the probate or letters to the Administrator-General by that name. The Applicants have not subsumed their application under any of the instances under Act 63 when the Administrator-General can be appointed by the Court’s to administer the Estate of the deceased. It is the considered view of the Court that, the Applicant has not demonstrated that appointing the Administrator-General would lead to a speedy winding up of the estate. 1 Section 12 of Act 63 2 Section 16 (1) of Act 63 3 Section 19 of Act 63 4 Section 22 of Act 63 Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING In view of the foregoing, the present application filed on 1st November 2023 is refused and same is accordingly dismissed. The prayer of the 1st and 2nd Respondents which is listed below is also dismissed: i. “The dismissal of the application and ii. For the Court to order the Executors to appoint surveyors to capture the point on the land identified by the parties as the boundary wall in Exhibit marked as Exhibit EAD 1 B. iii. The order that the 1st and 2nd Applicants grant access to the Executor within 7 days of the Order to enter the shops occupied by them to measure the floor space and complete the pro-rata rental due assessment and for the payment of the assessed rent within 21 days unless disputed by Court Action brought within such time period. iv. To order Applicants to join the Executors as co-plaintiff against the father of the sibling for a determination of the capacity or otherwise of the Testator to make the deposition contained in the Will in respect of Dansoman. v. To order 2nd Applicant to demolish all structures and remove such debris arising from the demolition on the property which were not constructed with the prior consent or thereafter vi. Written waiver of right to complain of all existing tenants-in-common of that property at the winding of the Estate to have their names in the vesting Assent. vii. To order 1st Applicant to commence action against the Estate for a challenging the validity of the gift in residential property occupied by the 1st Applicant within 14 days of the Order of the Court failing which to submit to the valuation of rental of the premise or vacate same for independent tenants to pay rent for the property and provide funds for the Estate. viii. To order 2nd Applicant to submit to the valuation of rental of the residential premise or vacate same for independent tenants to pay rent for the property and provide funds for the Estate. ix. To take the Executors to the Bank where 2nd Applicant claims that he accompanied the Testator who carried and lodged a lot of money into within 7 days of the order of the Court.” (SGD.) Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING H/L EUDORA CHRISTINA DADSON (MRS.) (JUSTICE OF THE HIGH COURT) Suit No: BPD/1488/2015 – IN THE MATTER OF THE ESTATE OF AUGUSTINA BAABA DOUGAN (MRS) - RULING