UNI INVESTMENT LIMITED vs. HIBIBULAI MOHMOUD & ORS. ANDINNUSAH MAMUDU [2013]DLHC3904

Date	2013-08-21
Suit No.	SUIT NO.INTS/5/13
Citation No.	[2013]DLHC3904

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

MRS. ADDISON FOR THE PLAINTIFF.

MR. KWAME ANTWI AFRIYIE FOR THE DEFENDANT.

[2013]DLHC3904
																																						<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" >UNI INVESTMENT LIMITED<o:p></o:p>vs.<o:p></o:p>HIBIBULAI MOHMOUD &amp;
ORS. ANDINNUSAH MAMUDU<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), 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">

SUIT NO.INTS/5/13&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: 21ST AUGUST, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MRS. ADDISON FOR THE
PLAINTIFF.<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">

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE
OF THE HIGH COURT<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;
padding:0in 0in 1.0pt 0in">

</div>The Execution creditor who is the
Defendant in this interpleader suit obtained judgment from this court on 17/04/2011
against one<o:p></o:p>Habibulai Mohmoud. Pursuant to this
judgment, the property described as house number plot 11 block “C”, Pankrono
–Kumasi was attached by a writ of Fi. Fa. <o:p></o:p><o:p>&nbsp;</o:p>On 25/10/2012, counsel for the
Defendant/Judgment Debtor, filed a notice of claim on behalf of the Claimant
(now Plaintiff in this interpleader suit). By this notice, the Plaintiff herein
claimed ownership of the property described above. Upon service of this process
on the Defendant, he failed to file any notice to dispute or admit the claim
under order 44 rule 12(2) of C.I. 47. Consequently, the registrar of this court
obtained an order, ex- parte, under order 44 rule 12 (4) of C.I. 47, for the
parties to appear before this court so as to determine the&nbsp; issue of title to the disputed property. <o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff’s capacity to commence
this action will be raised and determined first. It is my considered view that
although the Plaintiff is not an absolute owner of the property in issue, he
has a beneficial interest which entitles him to come to court. His lawyer ought
to have guided him to disclose his actual interest in the notice of claim. <o:p></o:p><o:p>&nbsp;</o:p>The evidence of the Plaintiff that
he succeeded his late father as the eldest son was not challenged by the
Defendant either in examination-in-chief or under cross-examination. The
Defendant is therefore presumed to have admitted this fact. See GPHA v Nova
Complex Ltd (2007-2008) SCGLR 806 at 810.<o:p></o:p>By section 1 (2) (a) of the
Administration of Estates Act, 1961, Act 63, the estate of a deceased person
shall vest in the customary successor until a personal representative is
appointed. This law applies when the entire estate devolves under customary law.
<o:p></o:p><o:p>&nbsp;</o:p>From the evidence adduced by the
Plaintiff, he has been unable to state in clear terms that he has been
appointed as the personal representative of his late father who purchased the
land on which the disputed building is situate but he led evidence to show that
he is the customary successor. In that capacity, he is the proper person to
protect the estate of his deceased father, irrespective of the fact that he has
not obtained letters of administration.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;Apart from the above, the Plaintiff also has a
beneficial interest in this property by virtue of the Intestate Succession law,
1985, PNDC law 111. Ideally, he ought to have filed the notice of claim for
himself and on behalf of the other beneficiaries of the estate. As a customary
successor and a beneficiary under the estate of Mamudu Payidi (decd),
substantial justice will not be done if the Plaintiff were to be thrown out
just because he has not obtained letters of administration. Moreover, if he is
thrown out on this ground alone, he will come back to court in the ‘appropriate
garment’ to re-litigate this matter which will be a sheer waste of the court’s
time. I think there is sufficient evidence on record to determine the suit on
its merits.<o:p></o:p><o:p>&nbsp;</o:p>The question of capacity to
institute an action in court arose in the case of Appau v Ocansey&amp; Another
(1992-93) GBR 850. This was an application for committal for intermeddling but
I think the reasoning is applicable to the circumstances of the instant
proceedings. The Court of Appeal per Lamptey, Brobbey and Forster JJA held at
page 851 that:<o:p></o:p>“It was not the law that a
beneficiary could act in respect of an estate only upon the grant of a vesting
assent. Any person with an interest in an estate, such as a beneficiary, could
take action to protect the property. The appellant’s application was to save
the estate; it could not be faulted on the mere ground that she did not obtain
a vesting assent under section 96 of Act 63.” Kwan v Nyeini (1959) GLR and
Catherine v Akuffo Addo (1984-86) 1 GLR 57, CA cited.<o:p></o:p>On the totality of the evidence
before me, I think the driving force of the Plaintiff’s action is to protect
the interest </main>