ACCRA - A.D 2016
ERIC AKWETEY SIAW & 2 OTHERS - (Plaintiffs/Appellants)
TETTEH SIAW-SAPPORE & 2 OTHERS - (Defendants/Respondents)

DATE:  16TH JUNE, 2016
CIVIL APPEAL NO:  H1/197/2014


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.


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.


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.


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.


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 & Another v Georgina Konadu Kusi & Another Civil Appeal N0 H1/112/2005.


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.


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. This argument we find to be in place.


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 having been brought under Order 66 Rule 3 of C. I. 47, the civil court has jurisdiction to entertain the application, counsel for the appellants supported this argument with the Court of Appeal decision in the case of In Re Appau (deceased) Appau v Ocansey [1993-1994]1GLR 146.


The court below upheld the preliminary legal objection relying on the decision in Osei Kwaku v Georgina Konadu-Kusi case cited by the respondents. The court took the position as canvassed by the respondents and held that Order 66 Rule 3 of C. I. 47 created a criminal offence punishable by conviction and therefore by Article 88 Clause (3) of the 1992 Constitution of the Republic of Ghana, it fell in the domain of the Attorney General to initiate a criminal proceeding against the respondents. The court dismissed the application as incompetent, null and void.


It is this decision upholding the preliminary legal objection to the application on intermeddling that has brought the appellant to this court.



The appellants per their notice of appeal canvassed two grounds of appeal and indicated they will file further grounds but the record has not disclosed that any further ground was filed. The two grounds of appeal are:


The learned High Court judge erred when it held that the offence of intermeddling as provided under Order 66 of the High Court (civil Procedure) Rules 2004 C. I. 47 was a criminal matter which must be prosecuted by the Attorney –General.


The cost awarded against the appellant was excessive


The appellants are praying this court to reverse the ruling of the High Court and convict the respondents for intermeddling, the respondents should be made to account for and pay damages for the waste and loss caused to the estate.


Counsel for the appellants did not argue the second ground of appeal at all in his written submission, this court cannot decide a ground of appeal that had not been argued at the hearing of the appeal; it is deemed that counsel has abandoned the said ground ‘2’ it is hereby struck out as abandoned.


It is the submission of counsel for the appellants in respect of ground 1, that the High Court (Civil Procedure Rules) 2004 C. I. 47 made provision for certain civil wrongs to be punished summarily by the civil court, and the civil court is vested with the power to punish such wrongs without a formal trial under the Criminal Procedure Code, 1960 (Act 30). Examples of such wrongs he gave, as contempt in facia curie, fraud, perjury and intermeddling.


Counsel further submitted that these civil wrongs are quasi-criminal offences and they are dispensed with by the court already handling the case from which the wrong emanates, this saves judicial time and resources. He buttresses this point by referring to the Evidence Act 1975 (NRCD 323) which equates the standard of proof in such civil wrong trials by the civil court to the standard of proof in criminal matters which is proof beyond reasonable doubt.


Counsel further argued that Order 66 Rule 3 under which the application was brought empowers the court to fix the intermeddler with the obligations and liabilities of an executor in addition to the imposition of civil penalties for intermeddling. It is only a civil court that can fulfill the requirement of Order 66 Rule 3 and not a criminal court. Counsel supported this submission with the decision of the Court of Appeal in the case of In Re Appau (Deceased); Appau v Ocansey [1993-94]1GLR 146.


Counsel further argued that the Court of Appeal decision in Osei Kwaku & another v Georgina Konadu –Kusi dated 22nd April 2005, Civil Appeal N0. H1/11/2005 (Unreported) which the trial judge followed in deciding the application was decided in error; she therefore erred in upholding the preliminary objection.


In reply to the above submissions counsel for the respondents argued that Order 66 Rule 3 created the offence of intermeddling subject to Article 19 Clause (11) of the 1992 Constitution and sections 1 of Acts 29 and 30 respectively; therefore in accordance with Article 88 Clauses (3) & (4) of the 1992 Constitution, it is only the Attorney General who can prosecute the offence of intermeddling by charging the offender and arraigning him before the criminal court.


Counsel made reference to a number of English cases and came to the conclusion that where a civil Act creates a criminal offence only the Attorney General can enforce it or it must be enforced with the consent of the Attorney General.


In analyzing the Constitutional provisions counsel referred to, in conjunction with the sections of the Criminal Code and the Criminal Procedure Code as well as Order 66 Rule 3 of C. I. 47 I find counsel for the respondent’s arguments fallacious.


Article 19 Clause (11) of the 1992 Constitution of the Republic of Ghana provides “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law


Order 66 is the written law that defines the offence of intermeddling.


C. I. 47 sets aside Order 66 to deal strictly with Probate and Administration matters and Rules 1- 3 set out the procedure for applying for probate or letters of administration.


Order 66 Rule 2 gives the court before which an application for the grant of probate or administration lies, discretionary power to take steps in the interim to preserve the property or the estate, the subject matter of the application before it; the said Rule 2 reads:


“Preservation of property

2. (1) The Court to which an application is made under rule 1 of this Order may, for the preservation of the property of the deceased within its jurisdiction or for the discovery or preservation of the will of the deceased, take such interim measures as it considers necessary.

(2) The Court within whose jurisdiction the property is situated shall, where the circumstances so require, on the death of the person or as soon as may be practicable after that, appoint an officer of the Court or such other person as it considers fit, to take possession of the property within its jurisdiction or put it under seal until it is dealt with in accordance with law.”


Order 66 Rule 3 is meant to achieve the purpose of preserving the estate.


It reads:


“Intermeddling with property

Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.”


The Rule 3 charges anyone other than an executor or an administrator who takes possession of properties of a deceased person with the responsibilities and obligations of an executor or administrator and in addition be punished if he or she breaches any of the obligations.


Section 1 of the Criminal Procedure Code, 1960 Act 30 which counsel for respondents quoted and relied on in developing his argument is no longer the applicable law. The quote as contained in his written submission reads as follows


“All offences under the Criminal Act and, subject to the provisions of any other enactment, all other offences shall be enquired into, tried and otherwise dealt with according to this Act.”


Counsel filed his written submission on 24th October 2014; the applicable law then and now is the Criminal and Other Offences (Procedure) Act, 1960 Act 30


Section 1 of the Criminal and Other Offences (Procedure) Act reads:


“1. Procedure for criminal and other offences

(1) A criminal offence under the Criminal Offences Act, (Act 29) 1960 shall be enquired into, tried and dealt with in accordance with this Act.

(2) An offence under any other enactment shall, subject to that enactment, be enquired into, tried and dealt with in accordance with this Act.”


I am sure it is in avoidance of errors, the like counsel for the respondents fell into that Section 1 of the Criminal and Other Offences (Procedure) Act was split into subsections to make its wordings clearer.


S1(1) clearly specifies that offences created by the Criminal and other Offences Act (Act 29) 1960 shall be enquired into and dealt with in accordance with the procedure provided under Act 30.


Subsection 2 as can be seen from the quote above takes care of ‘other offences’ and says the enquiring into and trial under Act 30 shall be subject to the enactment that created that offence.


Order 66 Rule 3 is the enactment that created the offence of intermeddling, as I have earlier said the main purpose is to preserve the estate which is the subject matter of probate and Letters of Administration applications before the court. In that vein Rule 3 imposes the obligations and liabilities of an executor or administrator on the intermeddler, which is civil; in addition to this is the punishment prescribed by the rule in the event of being convicted summarily of the offence. This makes the offence of intermeddling a quasi-criminal offence similar to other civil offences such as contempt of court which is tried summarily by the civil court


Counsel for the respondents would have had a better understanding of Section 1 of the Criminal and other offences Act if he had looked at the applicable law now and would not have generalized the application of that law as he did in his argument.


Distinction must be drawn between offences created by the Criminal and Other Offences Act and offences created by enactments other than the Criminal and Other Offences Act.


In offences created by the Criminal Act the court exercises its penal jurisdiction in the public interest therefore the state and for that matter the Attorney General steps in, to investigate a particular complaint and prosecutes in appropriate cases.


In dealing with offences that arise from civil litigation such as contempt and intermeddling as in this case, the court’s concern is punishing for breaches of court orders or undertakings for the benefit of parties.


In modern development of the law, other common law jurisdictions have shifted from describing breaches in civil litigation which we may refer to in this jurisdiction as quasi-criminal as offences or crime.


In the text book Arlidge, Eady & Smith On Contempt 2nd Edition, the learned authors commented at page 138 paragraph 3-67 thus “Although civil contempt has been referred to in general terms in some of the older cases as an “offence” this language would not really be regarded as appropriate nowadays.”


Lord Atkinson illustrated the point on the distinction that needs to be drawn between offences created in civil litigation as against crimes committed against public interest in the case of Scott v

Scott [1913] AC 417, at 456 he commented “…if a person be expressly enjoined by injunction, a most solemn and authoritative form of order, from doing a particular thing, and he deliberately, in breach of that injunction, does that thing, he is not guilty of any crime whatsoever, but only of a civil contempt of Court”


One of the recent English cases that illustrates the exercise of the summary procedure adopted by the courts in deciding offences arising out of civil action is the case of In Re Griffin (1989) 88

Criminal Appeal Report 63 where Mustil LJ at page 67 held “In proceedings for criminal contempt there is no prosecutor, or even a requirement that a representative of the crown or of the injured party should initiate the proceedings. The judge is entitled to proceed of his own motion. There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor. There is no preliminary enquiry or filtering procedure, such as a committal. Depositions are not taken. There is no jury. Nor is the system adversarial in character. The judge himself enquires into the circumstances, so far as they are not within his personal knowledge. He identifies the grounds of complaint, selects the witnesses and investigates what they have to say (Subject to a right of cross-examination) decides on guilt and pronounces sentence. This summary procedure, which by its nature is to be used quickly if it is used at all, omits many of the safeguards to which an accused is ordinarily entitled, and for this reason it has been repeatedly stated that the judge should choose to adopt it only in cases of real need”


It will be sad in this day and time when in this jurisdiction statutes have been passed to involve the judge in case management to expedite action in the court, and in the face of clear provisions of Order 66 Rule 3, the court would ignore the summary procedure so provided and refer civil offences arising out of a case before it to be investigated by the Attorney General and charges preferred as if the offence is created under the Criminal and Other Offence Act 1960 Act 29.


This court in the case of In Re Appau (deceased); Appau v Ocansey [1993-94 GLR 146 followed the procedure as provided in Order 66 Rule 3 and summarily decided an application for intermeddling. The In Re Appau was decided on application under Order 60 Rule 3 of the old High Court (Civil Procedure) Rules, 1954 (LN 140 A) but the import of the said Rule is not any different from the new Rule, Order 66 Rule 3 of C.I. 47 which I have quoted earlier.


The facts of the In Re Appau case are that at the death of Appau, his brother took possession of 2 cars belonging to his estate and sold same. The widow of the late Appau subsequently applied to the High Court Kumasi for Letters of Administration to administer the estate of her late husband. She further brought an application under Order 60 Rule 3 for the court to punish her brother-in-law for intermeddling. The brother-in-law also brought an application to be granted Letters of Administration in respect of the same estate.


The court granted them a joint Letters of Administration and dismissed the application for intermeddling. The widow appealed against the dismissal of her application for intermeddling. The Court of Appeal assumed jurisdiction and decided the issue of intermeddling summarily based on the affidavit evidence put before it.


Brobbey JA as he then was in delivering the judgment of the court said “Order 60 Rule 3 of LN 140 A is couched in terms similar to the concept executor de son tort under English law.” He went ahead to explain what this concept means by quoting Williams on Executors and Administrators, (1960 ed) Vol. 1 page 28 which says Anyone “who is neither executor nor administrator, [and who] intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, (he) thereby makes himself what is called in law an executor of his own wrong, or more usually, an executor de son tort.”


The court found the respondent liable for intermeddling, allowed the appeal and set aside the judgment of the trial court.


This case sets the precedence that the civil court is enjoined by the provisions of (now) Order 66 Rule 3 to summarily determine applications for the offence of intermeddling brought before it.


The Court of Appeal, constitutionally, is bound by its previous decisions on questions of law.


Article 136 Clause 5 of the 1992 Constitution reads: “(5) Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law.


In my view the case of Osei Kwaku & Another v Georgina Konadu Kusi the trial court relied on in her decision was decided per in curium.


The decision in the In Re Appau case I consider to be the correct statement of the law on applications for intermeddling under Order 66 Rule 3 of C. I. 47.


We will therefore allow the appeal and set aside the trial court’s decision on the preliminary legal objection.


Since the respondents took a preliminary legal objection to the competency of the application, they did not file any affidavit in opposition in the trial court. The record therefore does not provide the full affidavit evidence to enable the consideration of the issue of intermeddling on the merits.


In the circumstances the case is remitted to the High Court, the respondents to file an affidavit in opposition if they so please and the application be decided on the merits.


No order as to cost.