IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2019
CHARLOTE ANUM & ORS - (Plaintiffs/Appellants)
THE HIGH COURT REGISTRAR & ORS - (Defendants/Respondents)
DATE: 24TH JANUARY, 2019
CIVIL APPEAL NO: H1/25/18
JUDGES: C. J. HONYENUGA J.A. (PRESIDING), AVRIL LOVELAVE-JOHNSON J.A., N. C. A. AGBEVOR J.A.
PETRINA DEFIA FOR THE PLAINTIFFS/APPELLANTS
NICHOLAS LENIN ANANE AGYEI LED BY FREDERICK BOAMAH FOR THE DEFENDANTS/ RESPONDENTS
The instant appeal is against the judgment of the High Court, Land Division, Accra dated 22nd day of December, 2016. The grounds of appeal are:-
The learned trial judge erred in holding that the non-issue of a vesting assent in favour of plaintiffs by the executors precluded them from commencing this instant action and this occasioned a substantial miscarriage of justice.
Judgment is against the weight of affidavit evidence.
Additional grounds of appeal would be filed on receipt of record.
No additional grounds were filed.
FACTS OF CASE
The plaintiffs/appellants case was that No. 24/3 East Nukwe Djourne, Nungua was the bona fide property of JONATHAN ODAI QUAYE (now deceased). In his last Will and testament dated 30th September, 1987 the testator devised the said house to his wife and children as beneficiaries of the said estate.
Probate was granted by the High Court, Accra on the 19th December, 1991 to the EXECUTORS but no vesting assent issued to the beneficiaries at all material times.
Other children of the testator that is the 6th, 7th, 8th and 9th defendants/respondents who are also beneficiaries of the estate, in an agreement with the 4th defendant represented by the 5th defendant used the said No. 24/3 East Nukwe Djourne, Nungua as collateral for a loan facility from the 3rd defendant/respondent by the 4th defendant.
The appellants claim that the said agreement was without their consent neither did they ratify same. The 4th defendant/respondent defaulted in the repayment of the loan leading to legal proceedings against 4th defendant/respondent by 3rd defendant/respondent.
Judgment was decreed in favour of 3rd defendant/respondent leading to the attachment and sale of the property used as collateral by 1st defendant/respondent in satisfaction of the judgment debt. Since the grant of probate to the executors in respect of the last Will of Jonathan Odai Quaye on 19th December 1991, no vesting assent had been executed to the named beneficiaries of the property.
The Writ of Summons was served on the defendants/respondents who all entered their notices of appearance.
The 3rd defendant/respondent then filed a motion to dismiss the action on the grounds that since no vesting assent has been executed in favour of the plaintiffs/appellants they had no capacity to institute the instant action. The court granted the motion dismissing the appellants action on the 22nd December 2016. Dissatisfied with this verdict the plaintiffs/appellants have filed the instant appeal.
In her ruling, the trial judge relied on the decision of the Supreme Court in Okyere (Deceased) Substituted by Peprah vrs Appenteng and Adoma (2012) 1 SCGLR 65 per Date Bah JSC at page 75 that “A devisee cannot sue or be sued in relation to the devised property before a vesting assent has been executed in his or her favour”.(Emphasis mine)
The trial judge then held that:-
“The plaintiffs obviously have no locus standi to bring the present action, no vesting assent having been executed in their favour. The writ of summons together with the statement of claim is therefore dismissed as against all the defendants, plaintiffs lacking the requisite capacity”. It is this ruling by the trial judge that the plaintiffs/appellants seek to overturn in this appeal.
In this appeal, the plaintiffs/appellants would be simply referred to as the appellants and the defendants/respondents as the respondents.
PRELIMINARY POINT OF LAW
Learned Counsel for the appellant raised a preliminary point of law that the 3rd respondent entered appearance to the writ by a notice of appearance on 7th September, 2017 per Dennis Owusu Appiah Ofosu Apea Esq on behalf of 2nd and 3rd defendants. On the 23rd September 2016 a CONDITIONAL APPEARANCE was entered through Messrs Akufo Addo Prempeh and Co. and a motion on notice filed to dismiss the action based on the conditional appearance. It is counsel’s contention that with an earlier appearance having been filed, the subsequent conditional appearance becomes a nullity. The proper process by Messrs Akufo Addo Prempeh and Co. should have been a change of solicitor and in failing to apply for that, the representation by Akufo Addo Prempeh and Co. and the motion to dismiss the action became a nullity and the trial judge ought to have struck out the conditional appearance and the motion to dismiss the action.
In his response to the preliminary legal objection counsel for the 3rd respondents submitted: -
“……..at no point in the course of this case did it instruct the said lawyer or become aware of an entry of appearance filed on its behalf by Denise Owusu-Appiah Ofosu of Koi, Larbi & Co. Therefore, Messrs Akufo Addo Prempeh & Co. could not have filed a change of solicitor as is being urged on this court by appellants….”
The crux of the preliminary legal objection raised was that Messers Akuffo-Addo, Prempeh & Co. did not comply with the requirement relating to change of Solicitor. This argument is neither here nor there. The short answer is that Order 81 rule 1 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended no longer makes such non-compliance with the rules fatal or amount to an irregularity. See Republic v High Court, Accra, Ex parte Allgate Co. Ltd (2007-2008) SCGLR 1041. The preliminary legal objection therefore fails and it is dismissed.
We will now deal with ground (a) of the grounds of appeal.
Appellants averred that probate was granted by the High Court on 19th December 1991 to the executors but no vesting assent was granted to the beneficiaries. The 6th, 7th, 8th and 9th respondents and beneficiaries of the estate had entered into an agreement with 4th respondent represented by 5th respondent in the use of the property as collateral in the loan facility obtained by the 4th respondent from 3rd respondent.
The 4th respondent defaulted in the repayment of the loan leading to legal proceedings against 4th respondent by 3rd respondent. Judgment was decreed in favour of the 3rd defendant/respondent leading to attachment and sale of the property used as collateral by the 1st respondent 2nd respondents who were the purchasers of the property.
Appellants conceded that no vesting assent was executed in favour of the beneficiaries of the estate.
It is the case of the 3rd respondent in a motion to dismiss the action that since there was no vesting assent issued to appellants they had no capacity to institute this action. Lawyer for appellants submitted that an appeal is by way of rehearing and therefore the appellate court is placed exactly in the same position as the trial court and ought to review the whole record of proceedings before making a determination of the matter citing in support-
EFFISAH VRS ANSAH (2005-2006) SCGLR 943
FOFIE VRS ZANYO (1992) 2 GLR 475
BARCLAYS BANK GHANA LTD VRS SAKAN (1996-97) SCGLR 639
Lawyer for appellants asserts that having examined the decision of the Supreme Court upon which the trial judge based her decision he is unable to agree with the reasoning in the ruling.
Appellants’ case is that the appellants in their statement of claim are not claiming the said property for themselves as owners. Rather, that the 2nd defendant was refurbishing the property and that the property was used as collateral for a loan obtained by 4th defendant from the 3rd defendant. Since the property was devised to the appellants and 6th to 9th respondents as tenants in common, counsel submits that the action by the appellants is sanctioned by law. The appellants by their writ of summons sought to protect the intermeddling of the said estate by the 6th to 9th defendants without the consent of the appellants and without a vesting assent executed in their favour.
Counsel is of the opinion that the Supreme Court decision in Okyere (Deceased) Substituted by Peprah vrs Appenteng & Adoma upon which the trial judge in the instant case based her ruling can be distinguished.
In the OKYERE case the appellants were claiming the property as owners. Also that meant title to the said properties was in issue between the parties. In the instant case, there is no dispute on ownership nor is there an action for the declaration of title of the property. Appellants are only claiming herein that their co-beneficiaries, 6th to 9th respondents have dealt with the property in such a manner that the estate has wrongly lost the property. In absence of an action by the executors of the last Will of JONATHAN ODAI QUAYE (DECEACED) should appellants be precluded from bringing an action whose main purpose is to protect the estate because they have no vesting assent?
Counsel referred to Brobbey JSC in the Okyere case to rights in equity of a devise under a will without a vesting assent. The learned judge stated: -
“In the light of the peculiar circumstances that sometimes bedevil the administration of estates in this country, it is felt that some clarification is necessary on the interpretation of the law as given in this judgment so that we may not be taken as interpreting the law to result in absurdity. It is common knowledge that in this country some estates are dissipated by the in action of the executors or personal representatives ……….”.
What therefore does a beneficiary do when a vesting assent has not been granted him.
In the case Appau vrs Ocansey & Another (1992-93) GBR 850 CA it was held at holding 4-
“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 estate”.
Counsel for appellants submits that in reading the two cases of Okyere and Appau supra “leaves him in no doubt that the appellants had the necessary locus standi to commence this instant action. The appellants are not claiming as title holders neither is there any dispute to ownership of the estate. They are questioning the legality of the agreement executed between the 6th to 9th defendants and 5th defendant which led to the property being sold pursuant to a judgment for the debt. The ratio decidendi in the Okyere case cannot apply to actions brought by devisees or beneficiaries seeking to protect the estate from reckless dissipation in manner attributed to the 6th to 9th defendants the absence of a vesting assent notwithstanding.
Counsel says the case of Conney vrs Bentum Williams (1984-86) 2 GLR 301 at 316 can be distinguished from the instant case and prays the appeal be allowed.
In his written submission in answer to the submission of plaintiffs/appellants, counsel for respondents submits that ownership of the property was not a relevant consideration of the trial irrespective of whether ownership was in dispute or not. The respondents in the action raised the issue of capacity of the appellants in a motion to dismiss the action because no vesting assent had been executed in their favour. The trial judge upheld the respondent’s application and dismissed appellants case on grounds of lack of capacity in absence of a vesting assent in their favour.
Counsel then submitted that a devisee without a vesting assent can only mount an action on the property upon demonstrating that the executors or personal representatives are unable to act or failed, refused and or neglected to act and their inaction is causing a dissipating of the property which the devisee has interest in.
It would therefore be illogical and contrary to good reason that a devisee can side step an executor in whose name a will has been admitted to probate to mount an action on the property and receive judicial blessings without sufficiently demonstrating why the executor, in whom ownership of the property is vested statutorily is relegated to the background. Appellants nowhere in this case made any averment about the inability or inaction of the executors to mount an action. Appellants having failed to satisfy the court on why the power of executors should be suspended were not entitled as of right to mount the instant action merely because they are devisees and seek to protect the property.
Counsel submitted also that the case of APPAU vrs OCANSEY relied on by the respondent is inapplicable to this matter since in that case the deceased died intestate and therefore no one was vested with legal duty of protecting the estate and the beneficiary had capacity to protect same.
Thus counsel concluded that the submissions of appellants aimed at distinguishing the cases of OKYERE and CONNEY by demonstrating that title was in issue in those cases is of no consequence in this appeal. The learned trial judge correctly applied the ratio decidendi in the cases cited.
Before a vesting assent is executed in favour of a beneficiary of an estate, the estate devolves on the executor who obtained probate as the personal representative or administrator who obtained the letters of administration. Until then, the beneficiaries or devisees have no title or locus standi over the estate. Whether the cause of action raises title to the estate or not, a beneficiary realizing the property is in any danger cannot initiate a suit to defend it.
The Supreme Court in Okyere (Deceased) Substituted by Peprah vrs Appenteng and Adoma (2012) 1 SCGLR 65 decided that vesting assent was a necessary precondition before beneficiaries could exercise control over their property.
The Supreme Court in OKYERE case stated: -
“the correct legal position was that a devisee could not sue or be sued in relation to the devised property before a vesting assent had been executed in his or her favour”.
This decision affirmed CONNEY VRS BENTUM WILLIAMS (1984-86) 2 GLR 301 at 314-316 CA and overruled ELIOT VRS KING (1966) GLR 654.
This ground of appeal fails as lacking merit.
Regarding ground (b) of the ground of appeal, Counsel for the appellant did not argue any submissions in the ground, and it is hereby deemed to have been abandoned.
In conclusion, this appeal fails in its entirety and it is hereby dismissed.