ERIC AKWETEY SIAW & 2 OTHERS vs. TETTEH SIAW-SAPPORE & 2 OTHERS [2016]DLCA4722

Date	2016-06-16
Suit No.	CIVIL APPEAL NO.H1/197/2014
Citation No.	[2016]DLCA4722

F. KUSI-APPIAH JA (PRESIDING)

A. M. DORDZIE JA

S. DZAMEFE JA

ISAAC OFOSU-BOATENG FOR 2ND & 3RD PLAINTIFFS / APPELLANTS

GEORGE ABORGAH FOR DEFENDANTS / RESPONDENTS

[2016]DLCA4722
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													<main id="main" class="content" style="min-height: 60rem" >ERIC AKWETEY SIAW &amp; 2 OTHERS&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>TETTEH SIAW-SAPPORE
&amp; 2 OTHERS&nbsp;&nbsp; <o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p><o:p>&nbsp;</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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO.H1/197/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 16TH JUNE, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ISAAC OFOSU-BOATENG FOR 2ND
&amp; 3RD PLAINTIFFS / APPELLANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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GEORGE
ABORGAH FOR DEFENDANTS / 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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F.
KUSI-APPIAH JA (PRESIDING), A. M. DORDZIE JA, S. DZAMEFE JA<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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JUDGMENT<o:p></o:p>

</div>AGNES A. M. DORDZIE, JA:<o:p></o:p>The
appellants herein filed a motion under Order 66 Rule 3 of the High Court (Civil
Procedure) Rules 2004 C. I. 47, in the High Court Tema, praying the court to
punish the respondents for intermeddling with the estate of one Angelina Mamle
Siaw-Sappore, deceased.<o:p></o:p>The
facts upon which the application was brought was set out in the supporting
affidavit and it is that, the respondents fraudulently obtained Letters of
Administration from the court to administer the estate of their deceased
relative, Angelina Mamle Siaw-Sappore. The appellants sued them for wrong
doing, judgment was given in favour of the appellants and the Letters of Administration
obtained by the respondents was set aside. The appellants subsequently applied
for Letters of Administration which was granted them. The appellants therefore
became the lawful administrators of the estate of Angelina Mamle Siaw-Sappore.<o:p></o:p>The
respondents however have refused to hand over the estate to the appellants to manage.
They still hold onto properties that form part of the estate despite demands by
the appellants to hand over same.<o:p></o:p>The
appellants as a result brought the application, the subject matter of this
appeal for the respondents to be punished for intermeddling. At the hearing of
the application the respondents took a preliminary legal objection and
challenged the competency of the application before the High Court.<o:p></o:p>It
is the contention of the respondents that the application was incompetent, in
that, intermeddling is a criminal offence which ought to be tried under the
Criminal Code. It is a further argument of the respondents that Section 1 of
Act 30 provides the procedure to follow in all criminal actions, furthermore,
Article 88 of the 1992 Constitution gives the Attorney General power to
prosecute all criminal offences, as such the conduct of the respondents should
be reported to the Attorney General who will enquire into the matter and
institute a criminal action against the respondents. Counsel for the
respondents supported this argument with the unreported decision of the Court
of Appeal in the case of Osei Kwaku &amp; Another v Georgina Konadu Kusi &amp;
Another Civil Appeal N0 H1/112/2005.<o:p></o:p>The
second ground of the preliminary legal objection was that the substantive suit
before the court had been disposed of, there was no pending proceeding before
the court, therefore the applicant could not come to court by a motion;
reference was made to Order 2 of C. I 47 which requires all actions to be
commenced by a writ.<o:p></o:p>The
appellants conceded this second point in the arguments in reply to the
submissions on the legal objection taken but pointed out that subsequent to the
final judgment in the case, the respondents have brought various applications
for stay of execution and injunction, the same suit number was used, the
present application is also consequential to the judgment and the same suit
number had been used for the application. It was further argued on behalf of
the appellants that the Rules of Court do not make any express provision for
the mode by which an application for intermeddling should be brought; but the
practice at the bar which is endorsed by decided cases is that where a rule
provides a relief or remedy but the mode of application for the remedy is not
provided one can come to court by motion on notice and that is what the
applicant had done. &nbsp;This argument we
find to be in place.<o:p></o:p>In
respect of the argument that the matter is a criminal matter and should be
initiated by the Attorney General, it was submitted on behalf of the appellants
that intermeddling is a civil offence, quasi-criminal in nature in line with
other civil offences such as contempt of court. The application h</main>