APPAU vs. OCANSEY AND ANOTHER [1993]DLCA4320

Date	1993-05-17
Suit No.
Citation No.	[1993]DLCA4320

LAMPTEY JA

BROBBEY JA

FORSTER JJA

AGYEMANG GYESI (MISS) FOR TOTOE FOR THE APPELLANT.

PAAPA DADSON FOR THE RESPONDENT.

[1993]DLCA4320
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													<main id="main" class="content" style="min-height: 60rem" >APPAU<o:p></o:p>vs.<o:p></o:p>OCANSEY AND ANOTHER<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

[1992-93]
2 G B R&nbsp; 850 – 861&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 17 MAY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AGYEMANG GYESI (MISS), FOR TOTOE, FOR THE APPELLANT.<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">

PAAPA DADSON FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:<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">

LAMPTEY JA, BROBBEY JA,
FORSTER JJA<o:p></o:p>

</div>BROBBEY JA. One Isaac
Nkansah Appau died intestate on 6 January 1988. He left behind a widow with
whom he had three children and a fourth child by another woman. All the
children were minors when he died.<o:p></o:p>Not long after he had
died, his brother sold two cars belonging to the deceased. On 7 June 1988 his
widow applied for letters of administration to administer the estate of the
late Appau. On the same day, she filed an application in the Kumasi High Court
for the brother to be punished for intermeddling in the estate.<o:p></o:p>Exactly two days after
those applications had been filed, the brother too filed an application for the
grant of letters of administration in respect of the same estate. Eventually
the High Court granted letters of administration jointly to the widow, the
brother and one Kojo Agyemang.<o:p></o:p>The widow however pursued
the application for intermeddling in the estate against the brother by name
Eric Ocansey alias Kwame Boakye. The High Court dismissed the application. It
was against that dismissal that the appellant appealed to this court. In this
judgment I shall refer to the widow as ‘the appellant’ and the brother as ‘the
respondent’.<o:p></o:p>Two main reasons were
assigned by the trial judge for dismissing the application. Firstly, he stated
that he had already granted letters of administration to the appellant, the
respondent and another person “and they can conveniently resolve the issue”.
That reason, to say the least, begged the question. At the time the appellant
decided to pursue the application she knew that joint letters of administration
had already been granted to her and two others and yet she pressed on with it.
If the parties could resolve the issue, why were they appearing before him? In
any case that first reason took the wrong view of the law as will be apparent
shortly below.<o:p></o:p>His second reason was that
since there was no known administrator the allegation for intermeddling with
the estate failed. The application was brought under the Supreme [High] Court
(Civil Procedure) Rules 1954 (LN 140A), Order 60 rule 3 which reads as follows:<o:p></o:p>“If any person other than the person
named executor or administrator, or an officer of the Court or person
authorised by the Court, takes possession of and administers or otherwise deals
with the property of a deceased person, he shall, besides the other liabilities
he may incur, be liable to such fine not exceeding £100 as the Divisional
Court, within whose jurisdiction the property so taken possession of or dealt
with is situated, having regard to the condition of the person so interfering
with the property, and the other circumstances of the case, may think fit to
impose.”<o:p></o:p>The facts on which the
allegation of intermeddling was grounded were quite straightforward: The
deceased died intestate and the respondent sold two cars belonging to the
deceased before letters of administration were granted. These facts came out in
the affidavit of the respondent filed on 24 June 1988, from paragraphs 10 to
16, especially paragraph 16. Further, the respondent deposed that the vehicles
were sold even before the 40th day funeral rites of the late Appau.<o:p></o:p>Having regard to the time
when the vehicles were sold, the allegation that there was unreasonable delay
in applying for letters of administration cannot be sustained. The respondent
rather acted in haste in disposing of those cars.<o:p></o:p>The trial judge erred in
this case. He failed to discern that there were two separate estates involved
in the case. According to the respondent’s affidavit already referred to, the
respondent stated that:<o:p></o:p>“10.&nbsp;&nbsp;
It is not true that I have unlawfully sold the cars mentioned in
paragraph 6 of the applicant’s affidavit.<o:p></o:p>11.&nbsp;&nbsp;&nbsp;
At the time of my late brother’s death he was operating the petrol
station which had come down to us from our late father.<o:p></o:p>12.&nbsp;&nbsp;&nbsp;
On the death of my late brother Goil (Ghana) Limited who were the owners
of the station stopped supplies until letters of administration could be
obtained.<o:p></o:p>13.&nbsp;&nbsp;&nbsp;
Goil (Ghana) Limited were however willing to re-open the petrol station
if I could deposit ¢2 million against the supply of products.”<o:p></o:p>It is significant to point
out that on the respondent’s own showing in that affidavit, the petrol station
did not form part of the estate of the deceased Appau. The petrol station was
part of the estate of the father of Appau and it devolved unto Appau and his
brothers on the death of their father.<o:p></o:p>It may very well be that
the late Appau had interest in that petrol station. But whatever interest he
had in it was held jointly with his brothers. The petrol station belonged to
Goil (Ghana) Limited. If the petrol station was held on a tenancy basis, it may
properly be taken that the estate or representatives of the late Appau had no
interest in it. This viewpoint is well supported by the Administration of
Estates Act, 1961 (Act 63) s 3(3) of which provides that:<o:p></o:p>“The interest of a deceased in a joint
tenancy where another tenant survives the deceased is not property of the
deceased.”<o:p></o:p>That law apart, both the
respondent and the appellant in their lists of inventories attached to their
respective applications for letters of administration before the same trial
judge did not include the petrol station as part of the assets or properties of
the late Appau. There can therefore be no shadow of doubt that the parties in
this c</main>