SALIA VRS. SALIA AND OTHERS (PA/0160/2023) [2024] GHAHC 108 (13 February 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, PROBATE AND LETTERS OF ADMINISTRATION DIVISION ‘COURT 3’ HELD IN ACCRA ON THURSDAY THE 7TH MARCH, 2024 BEFORE HER LADYSHIP JUSTICE SARAH ARYEE (MRS.), J. JOSCELYN AFUAH ADOLEY BARNOR PLAINTIFF SUIT NO. PA/0224/2024 VRS. MARGUERITA NAA ADOKOR ACCAD DEFENDANT =========================================================== PARTIES: DEFENDANT PRESENT, PLAINTIFF ABSENT COUNSEL: SELORM DEY HOLDING BRIEF OF NII APATU-PLANGE FOR THE PLAINTIFF PRESENT SAMUEL KOJO OKINE FOR THE DEFENDANT PRESENT R U L I N G …………………………………………………………………………………………… The writ was issued on the 14th of December 2024 accompanied with a Statement of Claim for the following reliefs; 1 a) A declaration that defendant by her actions of going against the dictates of the Will is not fit to continue to hold the position as trustee and executrix of the estate of the deceased b) An order to remove the defendant as trustee and executrix of the estate of the deceased c) A perpetual injunction restraining the defendant from acting as trustee and executrix of the deceased’s estate d) An order appointing the registrar to act as trustee of the estate e) An order director at defendant to account to the court for her stewardship as trustee and executrix f) Cost and g) Any other relief that this honourable court deems fit. The defendant’s address is stated as House Number 3, West Loop, CFC Estate, Tesano in Accra. She entered conditional appearance on the 28th of December, 2023 and filed a Statement of Defence and Counterclaim on the 4th of January, 2024, counterclaiming the following reliefs; a. An order for interlocutory injunction restraining the plaintiff her agents, her representatives, her affiliates, assigns, successors and any other person or persons acting through her from interfering with and disrupting the defendants continuous management and administration of the Azu Crabbe Estate until the final determination of the this suit. b. An order dismissing plaintiff’s suit as unmeritorious, scandalous, frivolous and vexatious c. An order for perpetual injunction restraining the plaintiff, her agents, her representatives, her affiliates, assigns, successors and any other person or persons acting through her from ever interfering with and disrupting the defendant’s continuous management and administration of the Azu Crabbe Estate. d. An order disinheriting the plaintiff as a beneficiary of the last Will and testament of the late Former Chief Justice Samuel Azu Crabbe in accordance with the testator’s directives contained in clause 3 of this Will and testament 2 e. Pursuant to an order for disinheritance an order for plaintiff to reimburse with interest all monies received from her inheritance including her share of the proceeds that accrued from the sale of the Airport House. f. Declaration confirming the defendant as the sole executrix and trustee of the Azu Crabbe Estate to continue to perform her fiduciary duties and execute the directives of the testator with the support of the other beneficiaries (siblings) g. Declaration that the leasing of the Hillcrest property is proper and should proceed as directed by the testator in accordance with clause 3 of his last Will and testament and so decided by the Koforidua High Court on the 7th November, 2019 h. Cost including Solicitors fees, and i. Any other relief/s that this honourable court deems fit The instant application was filed by the defendant/applicant on the 14th of February 2024 for a declaration that the Court lacks jurisdiction to try this case and an order dismissing the action for lack of jurisdiction. In an affidavit in support, the plaintiff deposes among others, that 5. that I am advised by my counsel and verily believe same to be true that this action by the plaintiff should have been filed in Koforidua in the Eastern Region of the Republic of Ghana and not the Greater Accra Region. 6. That the Will the subject matter of this action was probated in the Eastern Region, while the property which the Will devised to the beneficiaries is also located in the Eastern Region, the jurisdiction of the last place of abode of the testator. 7. That I have been advised and verily believe same to be true that this Honourable Court lacks jurisdiction to hear this case because the subject matter of the said Will being immovable property is located at Mile 19, Aburi road, Aburi, in the Eastern Region of the Republic of Ghana and the action must commence in the region in which the immovable property is situated. 3 In an affidavit in opposition, the plaintiff/respondent deposes, that the party who seeks to object to the jurisdiction in terms of venue of a cause or matter waives that right to object after a Statement of Defence has been filed by that party. WRITTEN SUBMISSION BY COUNSEL FOR THE PLAINTIFF The defendant submits that there is ample evidence that the court lacks the jurisdiction to hear the matter and same ought to be dismissed. He submits with the case of COCKER VRS. TEMPEST (1841) 7 M & W 502 where the court held that the power of each court over its own processes is unlimited. He adds that this power does not preclude the power for a court to decline jurisdiction to entertain a suit brought before it. Counsel argues as stated in the affidavit in support that the Will was probated in the Eastern Region, the property is located in the Eastern Region and that the testator had his fixed place of abode in the Eastern Region. Counsel submits further with Order 3 r 1 of CI 47 which reads as follows; “3. Every cause or matter that relates to immovable property or any interest in it or for any damage to it shall be commenced in the region in which the immovable property or any of it is situated.” Based on the above order, counsel submits that the court should decline jurisdiction to try this instant case because the cause or matter relates to a Will probated in the Eastern Region. COUNSEL FOR THE PLAIINTIFF SUBMITS It is improper to couch an objection to venue in jurisdictional terms as the High Court has jurisdiction in all matters. Article140 (1) of the 1992 Constitution of Ghana. Article 140 (1) of the Constitution reads “140(1) The High court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.” Counsel submits and rightly so, that the Supreme Court held in the case of WIREDU VRS, MIM TIMBER CO. LTD. (1963) GLR 167 at 172, that the High Court was just one High court; 4 exercising jurisdiction throughout the country. It was divided into judicial divisions merely for the convenient administration of justice but not for the purposes of limiting the jurisdiction of each judicial division to only matters arising within its division. Counsel argues that the objection required is not jurisdictional and therefore the applicant’s complaint of the court lacking jurisdiction to hear the matter is completely misplaced. The Defendant/applicant has not properly invoked the jurisdiction of the court on the face of her motion paper and therefore her application ought to fail. Counsel argues further that having filed a Statement of Defence and Counterclaim to the action, the counterclaim is a distinct action altogether and so the defendant has accepted the venue as being proper whilst counterclaiming. ANALYSIS AND CONCLUSION The plaintiff’s plaint before the court is among others, for a declaration that Defendant by her actions of going against the dictates of the Will is not fit to continue to hold the position as trustee and executrix of the estate of the deceased. The defendant entered conditional appearance and proceeded to file a defence and counterclaim. Under Order 12 rule 1(1) of CI 47, it is stated as follows: “1(1) A defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in an action in respect of any matter, whenever and however arising, may, instead of bringing a separate action, make a counterclaim in respect of that matter. (2) The defendant shall add the counterclaim to the defence. 2(1) A plaintiff on whom a defendant serves a counterclaim shall, if the plaintiff intends to defend it, file a defence to the counterclaim. From the above rule, the plaintiff in this suit is a defendant to the defendant’s counterclaim. The defendant entered a conditional appearance to the plaintiff’s claim on the 28th of December 2023, and went ahead to file a Statement of Defence and counterclaim on the 4th of January, 2023. 5 The defendant counterclaims among others for; e. Pursuant to an order for disinheritance and Order for Plaintiff to reimburse with interest all monies received from her inheritance including her share of the proceeds that accrued from the sale of the Airport House. Order 3 rule 2 (1) states that; “Where a cause or matter is commenced in a Region other than that in which it ought to have been commenced under rule 1, it may continue in the Region in which it was commenced unless; (a) The defendant raises an objection to the jurisdiction before or at the time the defendant is required to file a defence in the proceedings; or In the present case, the defendant filed a defence and counterclaim before raising any objection to the venue. The defendant’s counterclaim constitutes an action against the plaintiff who is a defendant in the said claim in this same action. CONCLUSION The court finds that the defendant has waived the right to raise in objection to the venue of the action by filing a defence and counterclaim to the plaintiff’s action. As held in the case of OILS & FATS COMPANY LIMITED AND OTHERS VRS. HOOPER AND ANOTHER (1992)) 1 GLR 326 “An unconditional appearance puts an end to the right to object to the jurisdiction of the court….it follows therefore that perhaps a conditional appearance might not, but certainly, the filing of a defense would. And in the face of the rules, to wait till the time for filing defense, before objecting to jurisdiction will be tantamount to objecting too late and after having taken a fresh step. In such a situation the appellants can only be described as parties who have abandoned their right to object.” 6 Having taken a fresh step after receiving the Writ and Statement of Claim, the defendant waived her right and the application is accordingly dismissed. (SGD) SARAH ARYEE (MRS.) J, JUSTICE OF THE HIGH COURT 7