OSEI KWAKU & ANOR. vs. GEORGINA KONADU KUSI [2005]DLCA6562

Date	2005-04-22
Suit No.	CIVIL APPEAL NO. H1/11/2005
Citation No.	[2005]DLCA6562

GBADEGBE J.A. [PRESIDING]

ADDO J.A.

HENRIETTA ABBAN J.A

MR. KWASI AFRIFA FOR APPELLANTS

MR. ATTA AKYIA FOR RESPONDENT

[2005]DLCA6562
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													<main id="main" class="content" style="min-height: 60rem" >OSEI KWAKU &amp; ANOR.<o:p></o:p>(APPLICANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>GEORGINA KONADU KUSI<o:p></o:p>(RESPONDENT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. H1/11/2005.&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 22ND APRIL, 2005<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL:<o:p></o:p>

&nbsp;MR. KWASI AFRIFA FOR APPELLANTS <o:p></o:p>

MR.
ATTA AKYIA FOR RESPONDENT.<o:p></o:p>

</div>CORAM:
&nbsp;&nbsp;&nbsp;&nbsp;<o:p></o:p>GBADEGBE J.A. [PRESIDING],
ADDO J.A., HENRIETTA ABBAN J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>GBADEGBE, J.A.<o:p></o:p>Following
the death of Kofi Nsiah, the appellant herein claiming to have been appointed
by the deceased Judgments of the Superior Courts 11142 Copyright © DataCenta
Ltd. in his last will as executors took out an originating process by way of
notice of motion under the provisions of PNDC Law 111, the Intestate Succession
Law for an order punishing the respondent herein for intermeddling with the
estate of the deceased and also for an order compelling her to surrender
certain specified properties of the deceased which were alleged to be in her
custody to the applicants. In response to the application before the court
below, the Respondent denied having taken custody of the properties as alleged
by the appellants. Further the respondent challenged the right of the executors
as such to take out the processes that were served on her having regard to the
reliefs prayed for and additionally raised the point that since the capacity of
the appellants was in issue in a pending action issued against them in the High
Court Kumasi, they were not competent to initiate the proceedings against her. <o:p></o:p>In
the proceedings in the court below, there was no dispute that there was pending
for trial in the High Court, Kumasi a "probate action" entitled Nana
Ofori Botwe and 5 Others v Osei Kwaku and Dr. Atobrah numbered as E5/11/04. The
said action that was taken out against the appellants herein claimed against
them that the will from which they purported to derive their authority as
executors was a forgery and consequently an order was sought from the court
pronouncing against the validity of the said will. The processes by which the
said action was initiated were exhibited to the affidavit of the respondent
herein as exhibit GKG1. Also urged against the competency of the application by
the respondent was the point that the section of the applicable legislation
under which the appellants issued the processes before the lower court created
a criminal offence and therefore since the appellants were neither the Attorney
General nor claimed to have initiated the proceedings with his authority they
could not initiate as it were a criminal case against her. Thus, whiles one
objection was substantive in form the other was purely technical.<o:p></o:p>&nbsp;The application before the court below
proceeded to a hearing at the end of which the learned trial judge dismissed
it. The instant appeal arises from the said dismissal. It appears from the
ruling on which this appeal is based that the learned trial judge based his
decision solely on the ground that there was pending in the High Court for
determination an action in which the claim of the appellants as executors was
under challenge. In dismissing the application the learned trial judge was of
the view that having regard to the said action the appellants lacked capacity
to bring the application before the court. In the grounds of appeal filed the
appellants substantially complained about the correctness of the ruling of the
court below. In my view the question that comes up for our decision in these
proceedings is whether the conclusion that the learned trial judge came to
regarding the capacity of the appellants was right in all the circumstances of
the case.<o:p></o:p>&nbsp;In arguing of the grounds of appeal, it was
contended on behalf of the appellants that since they derived their authority
from the will of the deceased they had the requisite capacity to mount the
action. Several cases were accordingly cited before us in support of the
contention that as executors they did not derive their authority from the grant
of probate and consequently the objections taken against the application were
bad. In this court, the respondent like the appellant takes before us
substantially the same points that were taken in the court below. The first
point is that having regard to the fact that the proceedings before the lower
court were in their nature criminal, the appellants lacked the requisite
capacity to initiate same and that the only person who has the competence so to
do is the Attorney General and also that since the application invoked the
court's criminal jurisdiction the proceedings not having taken that form were
improperly constituted. The second point is this. That following the
commencement of an administration action against the appellants in which their
appointment as executors was under challenge they lacked the capacity to mount
the proceedings on which this appeal turns. So sated[sic], the points for our
decision are relatively simple and devoid from any complexity.<o:p></o:p>&nbsp;I would like to say that although in their
challenge to the application in the court below the respondents raised two
points, the learned trial judge based his decision solely on that which
concerned the capacity of the appellants. The learned trial judge does not
appear from the ruling with which we are concerned in these proceedings to have
directed his attention to that arising under section 17 of PNDC Law 111. I
shall for the moment pause with the consideration of this latter point and
proceed to examine that on which the decision under attack before us is based,
namely the want of capacity in the appellants arising only from the pendency of
the "probate action" action. I have patiently read the record of proceedings
and examined the respective statements of case submitted to us by the parties
and I am of the opinion that the correct view of the matter is that the court
below ought in the face of the challenge to the executorship of the appellants
in that pending action to have stayed the application pending the production of
probate by the executors—the appellants herein. I think that in dismissing the
application the learned trial judge fell into error. See—Tarn and Another v The
Commercial Banking Company of Sydney (1884) 12 QBD 294.<o:p></o:p>&nbsp;I think that once the will on which the
appellants' right to the exercise of the office of executor was derived from
was under challenge in a competent proceeding, the only reasonable and proper
course open to the court below was to stay </main>