JOSEPH EMMANUEL ANTW vs. AKUAA ATAA AND STEPHEN NTIAMOAH MENSAH [2013]DLHC8508

Date	2013-02-11
Suit No.	SUIT NO. C7/14/13
Citation No.	[2013]DLHC8508

HIS LORDSHIP JUSTICE JACOB B. BOON

J K KODUA FOR PLAINTIFF / APPLICANT

KWAME ARHIN FOR DEFENDANT/ RESPONDENTS

[2013]DLHC8508
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH
EMMANUEL ANTW<o:p></o:p>vs.<o:p></o:p>AKUAA ATAA AND
STEPHEN NTIAMOAH MENSAH<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. C7/14/13&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 11TH FEBRUARY, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J K
KODUA FOR PLAINTIFF / APPLICANT <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" style="margin-bottom:0cm;margin-bottom:.0001pt;text-indent:
0cm;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">KWAME
ARHIN FOR DEFENDANT/ RESPONDENTS <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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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-indent:
0cm;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">HIS
LORDSHIP JUSTICE JACOB B. BOON<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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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>The plaintiff/applicant issued a writ of summons against the defendant/
respondents who are the personal representatives in respect of the estate of late
Nana Enoch Ntiamoah Mensah. The plaintiff / applicant, to be called plaintiff
hereafter, is a nephew to the deceased, whilst the two defendants are widow and
son respectively of the deceased and hold letters of administration regarding
the estate of the deceased. Plaintiff asserts that some properties, which were
included in the inventory of both movable and immovable properties for the grant
of letters of administration, were gifted by the deceased to him, and he took
possession of them for a period of ten years before the death of the deceased.
Plaintiff also indicated that when it came to his attention that the affected
properties were inventoried when defendants applied for the letters of
administrative he caveated but it was not pursued; instead the instant writ was
mounted praying for a declaration that the items listed in the endorsement to
the writ were validly gifted to him, recovery of possession of them and injunction
against the defendants. &nbsp;<o:p></o:p>Defendants admitted that the disputed properties were put in possession
of the plaintiff by the deceased, but asserted that he did so in his old age
when he could no longer personally take care of them; that he then appointed
plaintiff as a caretaker of the properties for which plaintiff offered aseda to
the deceased in that capacity and not in respect of a gift made to him by the
deceased. &nbsp;They asserted that plaintiff
accounted for his management of the properties till the death of Nana Enoch
Ntiamoah Mensah when he attempted to claim the properties with a fabricated
story that they were gifted to him. In other words, their case is that the
properties were never gifted to the plaintiff by the deceased and were properly
included in the inventory of the self-acquired proprieties of the deceased. The
plaintiff has applied for an interlocutory injunction to restrain the defendants
in respect of the properties, and a manager and receiver appointed to superintend
over and receive proceeds of the immovable disputed properties pending the
outcome of this action.<o:p></o:p>The application was opposed by the defendants. In paragraph 11 of their
affidavit they rightly deposed as follows:<o:p></o:p>“I am reliably advised and verily believe same to
be true that until the grant&nbsp; of the
letters of administration is revoked, nothing can be done by anybody or&nbsp; authority to stop &nbsp;us (administrators) from performing our duties
as required by law”.<o:p></o:p>As indicated, the letters of administration of the estate of the
deceased have been granted to the defendants.&nbsp;
&nbsp;The grant has not been revoked or
at theleast, recalled pending the determination of the issues in this case.
That being the case the grant still subsists with full force. The grant was
made by a court of competent jurisdiction after the plaintiff did not pursue a caveat
he filed at the time defendants applied for the letters of administration. As
the grant was not revoked or recalled by the plaintiff, it will be improper for
this court to restrain the defendants from carrying out their lawful duties as
personal representatives of the deceased. Ultimately if the reliefs of
plaintiff are granted, it would amount to a revocation of the letters of
administration granted to the &nbsp;defendants
though it&nbsp; was not &nbsp;a relief specifically asked for. The&nbsp; procedure was for plaintiff to have taken the
appropriate steps to have the grant&nbsp;
revoked or recalled. It is provided under section 67 of the
Administration of Estates Act 1961(Act 63) that:<o:p></o:p>“Where administration is granted in respect of an
estate of a deceased person, a person shall not bring an action…in respect of
the estate comprised in or affected by the grant until the grant has been
recalled or revoked”<o:p></o:p>No evidence is before this court that the grant of letters of
administration to the defendants was revoked or annulled or recalled. A big
question mark, therefore, hangs over the writ instituted by the plaintiff as</main>