AKUA KONADU AND KWAKU KONADU (PLAINTIFFS) vs. EMMANUEL DOTSE BOATENG, AGATHA DUFFUOR YIADOM AND AGATHA DUFFUOR YIADOM (DEFENDANTS) [2013]DLHC7383

AKUA KONADU AND KWAKU KONADU (PLAINTIFFS) vs. EMMANUEL DOTSE BOATENG, AGATHA DUF... [2013]DLHC7383

Date	2013-02-27
Suit No.	BMISC 124/2011
Citation No.	[2013]DLHC7383

HIS LORDSHIP JUSTICE GODWIN GABOR

[2013]DLHC7383
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													<main id="main" class="content" style="min-height: 60rem" >AKUA KONADU AND KWAKU KONADU<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>EMMANUEL DOTSE BOATENG, AGATHA DUFFUOR YIADOM AND AGATHA DUFFUOR
YIADOM<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, 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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124/2011 &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: 27TH FEBRUARY,
2013<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;
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HIS LORDSHIP JUSTICE GODWIN GABOR <o:p></o:p>

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</div>The
Plaintiffs are children of Kwadjo Gyesaw Mensah Yiadom deceased. The Defendants
are administrators/administratrix of the estate of the Kwadjo Gyesaw Mensah
Yiadom deceased. 1st Defendant is described as a representative of the family
while 2nd Defendant and 3rd Defendant are the widow and son respectively of the
deceased. <o:p></o:p>The
Plaintiffs as per their amended Writ filed on 18-5-11 claim jointly and
severally against the Defendants. <o:p></o:p>(1)
An order that the Defendants supply each Plaintiff with a comprehensive
inventory of all the movable and immovable properties of the Plaintiffs' late
father's estate. <o:p></o:p>(2)
An order to render detailed Account of Defendants' dealings with all the
properties of the late Kwadjo Gyesaw Mensah Yiadom from date Defendants
obtained Letters of Administration to date. <o:p></o:p>(3)
An order that the Defendants Account for all the income and rents from the
buildings and other assets and properties of the Estate of the late Kwadjo
Gyesaw Mensah Viadom. <o:p></o:p>(4)
Costs. <o:p></o:p>(5)
And any other order(s) that this Honourble Court shall deem fit. <o:p></o:p>The
2nd — 3rd Defendants duly entered appearance to the action through their
lawyer. The Plaintiffs on the 8-3-12 filed a motion on notice for an order for
account under Order 29 of C.I. 47 seeking the following orders: <o:p></o:p>"a. An order for account on all
movable and immovable properties in the Estate of the late Kwadjo Gyesaw Mensah
Yiadom upon a comprehensive inventory having been made of all the assets. <o:p></o:p>b. An order to render detailed account
of Defendants' dealings with all properties of the late Kwadjo Gyesaw Mensah
Yiadom from the date of grant of Letters of Administration to date. <o:p></o:p>c. An order for account of all income,
revenue, rents etc. from buildings and other assets and properties
(movable/immovable) of the Estate of the late Kwadjo Gyesew Mensah Yiadom. <o:p></o:p>d. An order directed at the Defendants
to pay to the Plaintiffs any certified sums on amounts due them out of the
estate on the taking of accounts. <o:p></o:p>e. Such other orders that this
Honourbale Court may deem fit to make." <o:p></o:p>On
the 20-3-12 when this application was fixed for hearing the
Plaintiff/Applicants' lawyer was not in Court to move the motion but Counsel
for the Defendants/ Respondents graciously informed the Court that Defendants
were not opposed to the application. I duly granted the application and gave
the Respondents 21 days within which to comply. <o:p></o:p>Defendants
complied with the order and filed a comprehensive inventory and account for the
estate of Mr. Kwadjo Gyesaw Mensah Yiadom (deceased) on 5-7-12 and subsequently
filed an affidavit verifying the account on 29-5-12 which were all served on
the Plaintiffs. <o:p></o:p>The
Plaintiffs thereafter on 20-7-2012 filed a motion on notice for interlocutory
judgment in default of appearance against the 1st Defendant/Respondent and
judgment in default of defence against the 2nd and 3rd Defendants for the
reliefs endorsed in the Writ of Summons and accompanying Statement of Claim. <o:p></o:p>I
shall deal first with the application for interlocutory judgment in default of
appearance against the 1st Defendant. The motion is supposed to be on notice
but it was never served on the 1st Defendant but since the application is for
judgment in default of appearance the application should by motion ex parte and
I shall treat the application in respect of 1st Defendant as an application ex
parte. In an application for judgment in default of appearance the Plaintiff
must satisfy the Court that the Defendant has been duly served with the writ of
summons and has defaulted in entering appearance. See Order 10 rule 7(2) of
C.I. 47. In this case the writ of summons and statement of claim were not
served personally on the 1st Defendant because according to the bailiff's
affidavit of non service "all efforts to serve the 1st Defendant
failed." The Plaintiffs applied for and an order of substituted service
was granted them to serve 1st Defendant by substitution by posting copies of
the writ of summons and statement of claim. <o:p></o:p>