THE REPUBLIC vs. SYLVESTER OPOKU EX-PARTE: JOHN BEDIAKO OPOKU [2005]DLCA6622

Date	2005-12-09
Suit No.	CIVIL APPEAL NO. H1/153/2005.
Citation No.	[2005]DLCA6622

AKOTO BAMFO [MRS.] J.A. [PRESIDING]

ASARE KORANG J.A.

ASAMOAH J.

MARTIN AMIDU FOR APPELLANTS.

CHARLES MBEAH FOR AGBAMU FOR RESPONDENT

[2005]DLCA6622
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>SYLVESTER
OPOKU<o:p></o:p>(RESPONDENTS/APPLICANTS)<o:p></o:p>EX-PARTE: JOHN
BEDIAKO OPOKU<o:p></o:p>(APPELLANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL NO. H1/153/2005. &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;DATE: 9TH DECEMBER, 2005<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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FOR RESPONDENT. <o:p></o:p>

AKOTO BAMFO [MRS.] J.A. [PRESIDING],
ASARE KORANG J.A., ASAMOAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>ASARE
KORANG,J.A. <o:p></o:p>The
Applicant/Appellant [Applicant for short] sought in the High Court, Bolgatanga,
the following reliefs:— <o:p></o:p>[a]
"an order appointing the High Court Registrar, Bolgatanga or such other
persons as a receiver for the property of the late Anthony Kwaku Poku, late
deceased who died intestate on 31/1/2004 and leaving property within the
jurisdiction of this court pending an application for, and the grant of,
letters of administration to administer his estate by this court. <o:p></o:p>[b]
An order directing the 1st and 2nd respondents to render account to the
receiver and to this court for the period they took possession of, and
administered or otherwise dealt with the property of the said Anthony Kwaku
Poku since his death intestate on 30/1/2004 to the date of relinquishing their
possession and the control of, and dealing with, the said property to the
receiver appointed by this court. <o:p></o:p>[c]
Such further or other directions or orders as this court may consider necessary
and appropriate to preserve the said property of Anthony Kwaku Poku late
deceased within the jurisdiction of this court.” <o:p></o:p>The
basis of the application for the appointment of a Receiver was that the
deceased, Anthony Kwaku Poku, died intestate in Bolgatanga leaving behind
wives, children and other family members who, under customary law, are
beneficially entitled to the enjoyment of an interest in his properties but the
respondents who respectively are the son, the wife and the brother-in-law of
the decedent, had alone and by themselves, taken possession of the property of
the deceased and were unlawfully administering or otherwise dealing with the
intestate property without first seeking an order for the preservation of the
said property or notifying the court to make such order under order 1 Rules 2
and 3 and order 7 Rule 2 of the Probate and Administration Rules, 1991 [L.I.
1515]. <o:p></o:p>The
applicant insisted that the Respondents conduct in taking possession of or
otherwise dealing with the property of the deceased intestate was unlawful and
therefore prayed the court to appoint a Receiver, to order the Respondent to
render verified accounts and to preserve the property of the deceased before
the grant of letters of Administration and the distribution of the property of
the deceased. <o:p></o:p>The
following facts admit of no dispute in this appeal and they include what I have
already stated herein about the relationship between the Respondents and the
deceased. The Applicant is the elder brother and the head of family of the
deceased. No Administrator or at least nobody in whatever capacity has been
appointed by law to administer the estate of the deceased who died on 10th
January 2004, but without any order of a court, the 1st and 2nd Respondents
were administering the estate of the deceased. <o:p></o:p>It
was the finding of the trial court that after the death of Anthony Kwaku Poku,
a dispute still rages between his nuclear and extended families over his
properties and even the cause of his death such that no member of his family
has taken any step to obtain an order from the court to administer his
properties. <o:p></o:p>It
was also found that the Applicant and others dispute a claim by the 2nd
respondent that properties left behind by the deceased belong to herself and
the deceased jointly and that the Applicant as the elder brother, head of family
and customary successor of the deceased was clothed with the capacity to prompt
the court to take steps to preserve the properties of the deceased. <o:p></o:p>Having
made these unexceptionable findings, the trial court then proceeded under order
1 Rules 2[2] and 3 of L.I. 1515 as follows:— <o:p></o:p</main>