IBRAHIM TAWIAH vs. YAA BENEWAA AND OTHERS [2012]DLHC8503

Date	2012-05-09
Suit No.	SUIT NO. C11/01/12
Citation No.	[2012]DLHC8503

HIS LORDSHIP JUSTICE JACOB B. BOON

APPIAH NKYI FOR THE PLAINTIFF

YAW BOAFO FOR THE DEFENDANTS

[2012]DLHC8503
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >IBRAHIM TAWIAH<o:p></o:p>vs.<o:p></o:p>YAA BENEWAA AND OTHERS<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C11/01/12&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; &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 MAY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>APPIAH
NKYI FOR THE PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

YAW
BOAFO FOR THE DEFENDANTS <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:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>The plaintiff/respondent, to be referred to as the
plaintiff, acting on behalf of three other personal representatives of one Yaw
Bannor, who is said to have died intestate on 10th June, 1998, at
Kenkensu, Ashanti, issued this writ from the Registry of the Community Tribunal,
Kumasi. The writ was filed on 3rd September, 2002. After the
dissolution of the Community Tribunal the case was heard before the Kumasi
District Court presided over by His Honour Judge F. O. Afriyie, sitting as an
Additional Magistrate. The particulars of the claim of plaintiff were for the
recovery and possession of House No. Plot 10 Block 8 North Zongo, Kumasi for
renovation so as to make it habitable. At that level, pleadings were filed and,
according to the statement of claim, the plaintiff, two of his brothers, and a
widow of late Yaw Bannor were authorized and they applied and were granted
letters of administration to administer the estate of the said Yaw Bannor. In
representing the other administrators, the plaintiff averred that he instituted
the action to recover the disputed building in order to have it renovated
presumably, because, it is in a state of disrepair. <o:p></o:p><o:p>&nbsp;</o:p>Although it does not appear in the particulars and the
statement of claim, it became obvious at the hearing that the plaintiff’s case
is that the disputed house was self acquired by late Yaw Bannor who was the
father and husband of plaintiff and the others who were granted letters of
administration in respect of his property. What also emerged at the trial was
that the person described as a widow, who joined the others for the grant of
letters of administration was a divorcee of Yaw Bannor, yet her name was
included and alleged to be a representive of six other widows of Yaw Bannor. It
is relevant to state that, she was the mother of the plaintiff. She has since
passed away. That a divorcee of Yaw Bannor was preferred to his widows, who are
the proper persons, in addition to his children, to have applied for authority
to administer his estate raises questions about the grant of the letters
administration, particularly when it was said, on oath, by the son of the
divorcee, the plaintiff herein, that his divorced mother was included as a
representative of the widows of his father. I agree with counsel for the
defendants that the court that granted the letters of administration was misled
when&nbsp; &nbsp;a divorcee was described as a wife of the
deceased. If the truth was revealed to that court, it would not have granted
the letters of administration with the divorced mother of plaintiff as an
applicant. Again, I agree with defendants’ lawyer that this matter, having come
to the knowledge of this court ought to set aside the grant of the letters of
administration as obviously, the process of obtaining it was tainted by fraud,
which is a serious sin in the administration of justice. No court of justice
will entertain a decision or order obtained by fraud. This is too basic to
require the citation of authorities. The purported grant of the letters of
administration to the plaintiff was a nullity.&nbsp;
The effect is that the supposed administrators of Yaw Bannor, having
instituted the writ at the trial court qua administrators, had no locus standi
to do so. The trial court was therefore not clothed with the requisite
jurisdiction to hear that case. The jurisdiction of a court to hear a matter
before it would be discussed when the ground that challenged the jurisdiction
of the trial court because of the value of the disputed property is dealt with.
<o:p></o:p><o:p>&nbsp;</o:p>Be that as it may, the other facts of the case are that,
the defendants, some of who are relatives of late Yaw Bannor, whilst others are
tenants in the disputed house, denied the assertion of plaintiffs that the
disputed house is the self acquired property of Yaw Bannor. They contended it
is a family property which was built with proceeds of family cocoa farms. Their
case is that some female family members, who were in possession of these cocoa
farms handed them over to Yaw Bannor and one Yaw Tua, said to be siblings; that
Yaw Tua started the building of the disputed house but did not complete it
before his death. Yaw Bannor succeeded him and completed it. The defendants
further asserted that Yaw Bannor did not die intestate; that he left a will
dated 27th July, 1976, probate of which was allegedly granted to
Opanin Kwadwo Tabi and Opanin Kwabena Ahyiah both of Nkenkensu as the named
executors. Neither the will nor the probate was tendered at the trial. Defendants
also raised a fundamental issue which related to the jurisdiction of the
district court to entertain the matter in that the value of the building was
estimated to be worth more than GH¢30,000.00 (¢300,000,000) clearly beyond the
jurisdiction of the court. Indeed, at the trial, the jurisdiction of the court
was raised by counsel for the defendants. This was promptly dismissed. The
reason assigned by the trial court is quite interesting and is hereby
reproduced: <o:p></o:p><o:p>&nbsp;</o:p>“the
application is dismissed as no valuation report has been judged to corroborated
(sic) the assertion that the property is over ¢300,000.00 and in any case the
suit is not about the value of the subject matter, it is about recovery of
possession of the house in dispute.”<o:p></o:p><o:p>&nbsp;</o:p>