MENSAH vs. MENSAH [1992]DLHC2039

Date	1992-07-06
Suit No.
Citation No.	[1992]DLHC2039

OMARI-SASU J.

ADU DARKO MANTE FOR THE APPLICANT-RESPONDENT

S. K. KABUTEY FOR THE RESPONDENT-APPLICANT.

[1992]DLHC2039
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MENSAH<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MENSAH<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 71<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>ADU DARKO MANTE FOR THE APPLICANT-RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

S. K. KABUTEY FOR THE RESPONDENT-APPLICANT. <o:p></o:p>

</div>JUDGMENT OF OMARI-SASU J.<o:p></o:p>On 26 November 1990 this court appointed the deputy chief
registrar as receiver and manager to manage house No. F.197/1 Lokko Road, Osu,
Accra pursuant to an ex parte application filed on 20 August 1990 by the
applicant-respondent (hereinafter referred to as the respondent), Madam Grace
Akle Mensah, daughter of Madam Rebecca Onnidin Barnor (Decd.) who built and
owned the said house prior to her death.<o:p></o:p>The affidavit in support of the said application averred, inter
alia, that the respondent was the sole beneficiary of the will of the said
Rebecca Onnidin Barnor (Decd.) and that after the will of the deceased was read
to the family and prior to the filing of an application for grant of probate
the respondent-applicant (hereinafter referred to as the applicant) filed a
caveat at the registry of the court and since then he had been interfering with
the property by collecting rents from the tenants in the premises in question.<o:p></o:p>In the present application the applicant, Mr. Samuel Okai Mensah,
seeks the vacation of the order of the court appointing a receiver and manager
because the order is said to be irregular as according to the applicant no
probate action was pending at the time the order was made and therefore it is
said that the court lacked jurisdiction to appoint the receiver and manager.
The cases of Salter v. Salter [1896] P.291, C.A. and In re Torto (Decd.);
Administrator-General v. Torto [1973] 1 G.L.R. 417 have been cited in support
of the respondent’s contention.<o:p></o:p>I have examined the above cited authorities which both deal with
the case of administration pendente lite under section 80(1) of the
Administration of Estates Act, 1961 (Act 63) which provides that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;“80. (1) Where any legal
proceedings touching the validity of the will of a deceased person, or for
obtaining, recalling or revoking any grant, are pending, the court may grant
administration of the estate of the deceased to an administrator, who shall
have all the rights and powers of a general administrator, other than the right
of distributing the residue of the estate, and the administrator shall be
subject to the immediate control of the court and act under its direction.”<o:p></o:p>(The emphasis is mine.)<o:p></o:p>It should be observed that under section 80(1) of Act 63 it is
envisaged that there is a legal proceeding already pending touching the
validity of the will of a deceased person and further the grant is made to an
administrator whose activities are controlled by the court during the pendency
of the suit.<o:p></o:p>The above situation is entirely different from the circumstances
surrounding the property of Madam Rebecca Onnidin Barnor (Decd.) and the order
made by this court which the present respondent is attacking. In the case of
Rebecca Onnidin Barnor (Decd.) there was no administration suit pending as envisaged
by section 80(1) of Act 63 but from the affidavit of the present applicant, a
caveat had been filed against any grant of probate by the caveators including
the present applicant, Mr. S.O. Mensah, even though it was averred that the
caveators were interfering with the house in question by collecting rents from
the tenants.<o:p></o:p>In that situation it became evident and necessary for this court
to take steps to protect and preserve that property by appointing an officer of
this court as receiver and manager of this property under Order 60, r.2 of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A) which provides that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“2. Any Court within whose particular jurisdiction a deceased
person may have left property shall, when the circumstances of the case appear
so to require, . . . forthwith on the death of such deceased person, or as soon
after as may be, appoint and authorise an officer of Court, or some other fit
person, to take possession of his property . . .”<o:p></o:p>