IN RE APPAU (DECD); APPAU vs. OCANSEY [1993]DLCA751

Date	1993-05-17
Suit No.
Citation No.	[1993]DLCA751

LAMPTEY JA

BROBBEY JA

FORSTER JA

MARIAN AGYEMAN GYASI FOR TOTOE FOR THE APPELLANT.

PAAPA DADSON FOR THE RESPONDENT.

[1993]DLCA751
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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">IN RE APPAU (DECD); APPAU<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">OCANSEY<o:p></o:p>[COURT OF APPEAL ACCRA]<o:p></o:p>[1993-94] 1 GLR 146<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>MARIAN AGYEMAN GYASI 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>

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

</div>JUDGMENT OF BROBBEY JA.<o:p></o:p>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. Not long after he had died,
his brother sold two cars belonging to the deceased.<o:p></o:p>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 High Court, Kumasi for the brother to be punished for
intermeddling in the estate. 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.<o:p></o:p>Eventually the High Court granted letters of administration
jointly to the widow, the brother and one Kojo Agyemang. 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. First, 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. His second reason was
that since there was no known administrator the allegation for intermeddling
with the estate failed.<o:p></o:p>The application was brought under the High Court (Civil Procedure)
Rules, 1954 (LN 140A), Order 60, r 3 which reads:<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">3. “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, beside 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 were grounded
were quite straightforward: The deceased died intestate. That the respondent
sold the two cars belonging to the deceased before letters of administration
were granted came out in the affidavit of the respondent filed on 24 June 1988,
from paragraphs (10)-(16) especially paragraph (16). Further, the respondent
deposed that the vehicles were sold even before the 40-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. It appeared that one of the
grounds which misled him to the error was that his approach was beclouded by
his failure 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><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">“(10) It is not true that I have unlawfully sold the cars
mentioned in paragraph (6) of the applicant’s affidavit. <o:p></o:p>