NARTEY & ORS VS KOPOE & ORS (PA1567/2021) [2023] GHAHC 527 (7 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX, PROBATE AND L/A DIVISION, COURT ‘1’ HELD IN ACCRA ON 7TH DECEMBER 2023, BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, J. --------------------------------------------------------------------------------------------------------------------- SUIT NO. PA 1567/2021 1. JOSEPH NARTEY House No. C197/8 Caprice, Kpehe Accra 2. PHILIP TETTEH NARTEY JNR 3. DR NATASHA TEIKI NARTEY } } } } } } Both of 25 Ballsmoor Ride, Waltham Cross Hertfordshire, EN88, UK }…Plaintiffs }/Respondents (Suing as the Customary Successor and Children, Respectively, of the late Philip Tetteh Nartey, deceased And as beneficiaries of the Estate of Philip Tetteh Nartey Deceased) vs 1. MARY KOPPOE 2. PHILIPPA-MARY TEIKI NARTEY 3. ESTHER TEIKI NARTEY House No. C197/8 Caprice, Kpehe, Accra (Acting as the Administrators of the Estate of the late Philip Tetteh Nartey, Deceased) } } } } } } } }…Defendants }/Applicants } } --------------------------------------------------------------------------------------------------------------------- PARTIES: 1ST AND 3RD PLAINTIFFS PRESENT 2ND PLAINTIFF ABSENT 1ST AND 3RD DEFENDANTS PRESENT 2ND DEFENDANT ABSENT COUNSEL: KOFI BOSOMPEM FOR THE PLAINTIFFS PRESENT PIUS ESSIFIE-NTENAH WITH KENNETH DAWSON HOLDING BRIEF FOR NARTEY TETTEH FOR DEFENDANTS PRESENT --------------------------------------------------------------------------------------------------------------------- RULING --------------------------------------------------------------------------------------------------------------------- [1] Introduction The Plaintiff issued a writ against the Defendants on 14th September 2021 for the following reliefs: 1. “An order revoking the Letters of Administration granted to the Defendants by the High Court, Accra dated 16th August 2018. 2. A declaration that Philip Tetteh Nartey Jnr, Natasha Teiki Nartey, Esther Teiki Nartey and Philippa-Mary Teiki Nartey are the four surviving children of the late Philip Tetteh Nartey. 3. An order directed at the defendants to account for the use and or sale of all the assets and properties that constitute a part of the estate of the late Philip Tetteh Nartey. 4. An order directed at the defendants to refund all monies they obtained from the use and or sale of any properties that constitute a part of the estate of the late Philip Tetteh Nartey. 5. Interest on the monies in relief 4 above at the prevailing commercial bank interest rate from the date of the respective sale of the property to date of final payment”. [2] Motion for Security for costs The Defendants/Applicants filed a motion on 23rd November 2023 for an order directed at the Plaintiffs/Respondents to provide security for costs of the Proceedings. The 1st Defendant/Applicant in a 14-paragraph affidavit in support deposed that the Respondents did not provide their residential and occupational addresses. The 1st Applicant contends that the 1st Respondent is a retiree resident in Ghana the 2nd and 3rd Respondents are of unknown professions and residents outside the jurisdiction. It is the case of the Applicants that 2nd Respondent did not come to Court to testify and the 3rd Respondent is in Ghana primarily to testify and that she would return to her base in UK shortly. The gravamen of the Applicants’ case can be found in paragraphs 5 to 14 of the affidavit in support. The Plaintiffs’ Counsel informed the court that they are not opposed to the instant application. [3] Courts Analysis and Opinion Order 24 of High Court (Civil Procedure) Rules, 2004, CI 47 provides as follows: “1. Security for costs of proceedings (1) Where, on the application of a defendant, it appears to the Court that (a) The Plaintiff is ordinarily resident outside Ghana; (b) The plaintiff, not being a Plaintiff who is suing in a representative capacity, is a nominal Plaintiff who is suing for the benefit of some other person and that there is reason to believe that the Plaintiff will not be able to pay the costs of the Defendant if ordered to do so; (c) Subject to subrule (2), the Plaintiff’s address is not stated in the originating process or is incorrectly stated in it; or (d) The Plaintiff’s address has been changed during the course of the proceedings with a view to evading the consequences of the litigation, the Court may, having regard to all the circumstances of the case, order the Plaintiff to give such security for the defendant’s costs of the proceedings as it thinks just”. This principle of security for cost and the circumstances under which security for costs maybe ordered has discussed in the case of AMALGAMATED PRESSS LTD v INDEPENDENT PRESS LTD AND ANOTHER [1960] GLR 113 at 115 per Ollennu J as follows: “Insolvency or poverty of a Plaintiff is not by itself a ground for requiring him to give security for costs: see Cowell v. Taylor (31 Ch. D. 34). Consequently non-payment of costs awarded against a Plaintiff in a previous suit, standing alone, will also not be a ground for requiring the Plaintiff to give security for costs in a fresh suit but an habitual non-payment of costs awarded against a party in suits instituted by him, and particularly where that party is a limited liability company, not engaged in any active business, could be evidence of insolvency of the limited liability company, and would be a good ground for an order for security for costs”. In the case of GATCO CHEMPHARM v PHARMADEX (GH) LTD [1999-2000] 2 GLR 262 at 271-272 the Court of Appeal held per Brobbey JA as he then was as follows: “The learned trial judge did not exercise his discretion under Order 65, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) judicially when he ordered the Plaintiff to provide security for costs in the sum of ¢180,000,000 which was the defendant’s counterclaim because first, he mistook the application for security for costs in the action to mean an application for security against judgment which might be given at the end of the trial. That was however wrong for the reason that throughout the whole of Order 65 of LN 140A, there was no reference to the Writ of Summons, substantive suit, Counterclaim or any such-like expression for the trial judge to misapprehend the meaning of “costs” in Order 65. In terms of Order 65, the only matters for the trial judge’s consideration were the costs the Defendant would possibly incur in having to litigate over his counterclaim. Secondly, the law did not require the trial judge in granting security for costs to weigh or delve into the merits of the defendant’s case or that of the plaintiff. Thus, the learned trial judge again erred when he allowed the amount of ¢180 million stated in the counterclaim to weigh heavily on his mind when considering the security for costs. The fact that he used the figure in the counterclaim as the basis for the security which he ordered emphasized that he was largely influenced by the counterclaim and that he took into account matter which were not only irrelevant but illegitimate. In the circumstance the trial court’s order awarding ¢180 million security for costs was incompetent and could not stand. There were a number of exceptions to the general rule that the Plaintiff outside the jurisdiction of the court had to provide security for costs. One of the exceptions was that at common law, security for costs was not ordered to be provided where the party to provide the security had its money in the hands of the party applying for the security. Another exception was that an application for security for costs could be properly refused upon an admission of the debt owed to the Plaintiff by the defendant. These exceptions, inter alia, acknowledge the reality that in such circumstances the applicant might offset the money in his hand against the cost to be paid by the one who owned the money and that there would be no need in such circumstances for any other security for costs”. The essence of the application for security for cost is to provide for the cost the Defendants might incur in defending the suit brought against them. The gravamen of the Defendant’s/Applicant application is that the 2nd and 3rd Plaintiffs reside outside the jurisdiction of the Court and hence applying for the Court to exercise its discretion to make an order for security for cost of GHC 100,000.00. [5] Conclusion The Application filed on 23rd November 2023 is granted in the following terms. The 2nd and 3rd Plaintiffs shall provide security for costs in respect of this case. The 2nd and 3rd Plaintiff shall provide security for costs in the sum of GHC 30,000.00 and deposit same in the registry of this Court within one month from today. H/L EUDORA CHRISTINA DADSON (MRS) JUSTICE OF THE HIGH COURT