IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ABDUL RASHID MOHAMMED DANIEL ABDALLAH - (Defendants/Appellants)
HAJIA MENUNA SHADOW -(Plaintiff/Respondent)
DATE: 6 TH DECEMBER, 2018
SUIT NO: H1/108/2018
JUDGES: K. A. ACQUAYE J.A. (PRESIDING), ACKAH YENSU (MISS) J.A., I. O. TANKO AMADU J.A.
LAWYERS: KWADWO ADDEAH SAFO FOR THE DEFENDANTS/APPELLANTS BELINDA PWAMANG FOR THE PLAINTIFF/RESPONDENT
ACQUAYE, J. A.
This is the judgment in respect of an appeal filed on 27th February 2017 against the decision of a High
Court in Accra delivered on 17th February 2017 which revoked the letters of administration granted to the defendants/appellants in respect of the estate of the late Mohammed Abubakari.
On 21st August 2013 the plaintiff/respondent issued a writ of summons in the High Court, Accra claiming against the defendants/appellants: -
An order for revocation of the letters of Administration in respect of the estate of Mohammed Abubakari
An order for defendants to return any moveable and immoveable assets of the estate they have dealt with
Perpetual injunction restraining defendants from having anything to do with the estate of the deceased
The plaintiff’s case was that she is the only surviving widow of Mohammed Abubakari by virtue of a traditional moslem marriage in 1994 and under the Marriage Ordinance Cap 127 in October 2008.
Mohammed Abubakari died intestate on 18th March 2013 after they had one issue, a minor called Baisha Mohammed. The plaintiff stated that the 1st defendant is the eldest son of the late Mohammed Abubakari with his first divorced wife Ramatu Shaibu whilst the 2nd defendant is his brother.
According to the plaintiff on 23rd May 2013 the two defendants filed an application at the High Court for the grant to them of letters of administration to administer the estate of her deceased husband without her knowledge, in which application, they falsely stated that the deceased was survived by two widows when they knew that the first wife Ramatu Shaibu took the late Mohammed Abubakari to court in Paris for divorce which was granted on 19th March 1998. The plaintiff complained that nor did the defendants add her as an applicant neither did they post any notices of the application for letters of administration on the last known place of abode of the deceased where the plaintiff also lived as required by law. The plaintiff stated that she and her only daughter with the deceased have the largest interest in the estate and as such have the first priority in the application for letters of administration. The plaintiff testified that the 1st defendant is at odds with her and with his mother regularly came to her matrimonial home to insult her and her husband so he cannot be expected to faithfully administer the estate of the deceased hence her claims.
The defendants denied the claims of the plaintiff and the 1st defendant contended that the divorce of his parents was a divorce of convenience arranged so that the government of France will financially support his mother and seven children when the father lost his job in France. The defendants contented that the parents remarried in accordance with Mohammedan Law in 2010 in Ghana thus rendering the divorce granted in Paris a nullity. The 1st defendant testified that his parents never broke up their relationship and that they maintained joint bank accounts in Accra and Lome and jointly acquired three houses in Accra during the period they were divorced. The 1st defendant admitted that his mother Rahmatu Shaibu has joined the administrators in suing the plaintiff to claim title to the matrimonial home at Madina in another High Court. The defendants contended that the plaintiff, without any toil wants to appropriate to herself properties acquired during fifty years of marriage with his mother against her eighteen years of marriage to his father. The defendants stated that in Islam when a family meets to consider matters relating to the estate of a deceased Moslem man, women are not invited to the meeting and that they will have no objection if the two widows are added to the two administrators to jointly administer the estate of the late Mohammed Abubakari.
After hearing the parties, the trial judge found that Ramatu Shaibu and the deceased having divorced in March 1998 the deceased could marry the plaintiff under the ordinance in October 2008 but could not remarry Ramatu Shaibu in 2010. The trial judge also found that Ramatu Shaibu not being a wife when the husband died in 2013 could not join in the administration of the deceased’s estate. The trial judge further found that the 2nd defendant was not a brother of the deceased and that no notices of the grant of letters of administration was posted on the deceased’s last place of abode. These two findings together with the fact that the plaintiff is the only surviving spouse of the deceased who had priority over the defendants but was not joined to the application made the grant of letters to the defendants not conformable to law. The trial judge therefore granted the order revoking the letters of administration granted to the defendants and ordered perpetual injunction restraining the defendants from having anything to do with the estate until letters of administration is properly granted to a suitable party.
Dissatisfied with the judgment the defendants filed a notice of appeal setting forth the following grounds: -
The trial High Court Judge erred in fact and in law when she relied on non-existent evidence to arrive at her conclusions; particularly her finding that the 1st defendant would not be the best to administer the estate of the deceased.
By not allowing the Registrar of the High Court, Accra adequate time to search and tender an official Court document (i.e affidavit of posting of the grant of letters of administration) the learned trial judge denied the defendants the right to be fully heard contrary to the rules of natural justice.
The learned trial judge misdirected herself on the law when she held that though judgments from foreign countries are not directly applicable to Ghana, same cannot be said of decrees from foreign courts, hence a Divorce Decree in France is applicable to Ghana without registration 1993 (Act 459)
Particular of Misdirection
The learned Trial judge’s interpretation and application of the divorce proceedings held in France (which in any case was not before the court) was contrary to the relevant mandatory provisions of the Court’s Act.
The trial High Court judge erred in law when she perpetually restrained the defendants, who are beneficiaries from having anything to do with the estate of the late Mohammed Abubakari, until letters of administration is properly procured.
Judgment is against the weight of evidence
Further grounds of appeal shall be filed upon receipt of the record of appeal.
The defendants/appellants therefore prayed that the orders of the High Court be dismissed together with the plaintiff’s action.
Counsel for the defendants/appellants first argued ground 5 of the grounds of appeal that the judgment is against the weight of evidence. Counsel submitted that from the onset and even before the trial court could evaluate the respective cases of the parties in accordance with the appropriate standard of proof based on the respective evidence on record, the trial court took the position that the case of the plaintiff was undisputed. In addition, the trial judge proceeded to hold that the 2nd defendant is not a blood brother of the deceased without an evaluation of the evidence on record on the basis of which the trial court held that the 2nd defendant cannot be an administrator of the deceased’s estate. Counsel stated that the plaintiff admitted when the defendants stated in their statement of defence that the 2nd defendant was a brother of the deceased yet changed it in their statement of case to say that he was not a blood relation of the deceased. Counsel submitted that the findings of a court must be supported by evidence on record and urged us to reject the trial judge’s finding and hold that the 2nd defendant is a family member or blood relation of the deceased entitled to a grant of letters of administration. Counsel for the defendants/appellants submitted that the trial judge used the standard of proof in civil cases to evaluate the complaint of assault in criminal cases in deciding the effect of the medical form Exhibit C and wrongly concluded that the 1st defendant would not be fair and work smoothly with the plaintiff in administering the estate hence her injunction on the defendants not to have anything to do with the estate until administrators are properly appointed. Counsel also urged us to reject the admission of the medical report Exhibit C because it was not tendered by the medical officer who authorised it nor the police officer in whose custody it should be. Counsel for the defendants/appellants further challenged the trial judge’s observation of the bias and resentment that the 1st defendant had towards the plaintiff because the observations were not based on the pleadings, oral or documentary evidence. Counsel submitted that the trial judge’s observations were based on speculations and conjecture and amounts to manufacturing non-existent evidence to shore-up the case of the plaintiff.
Counsel for the defendants/appellants next argued ground 2 of the grounds of appeal that by not allowing the Registrar of the High Court, Accra, adequate time to search and tender an official document (i.e. affidavit of posting of the grant of letters of administration) the learned trial judge denied the defendants the right to be fully heard contrary to the rules of natural justice. Counsel submitted that even though the Registrar of the court was subpoenaed and he came to court twice to ask for more time to trace the docket, by shutting the door of justice in his face, the court prevented the defendants from leading such evidence as would establish their case. Counsel therefore urged us to admit the said document which appears at page 131 of the record of appeal and look at it to establish that there was indeed posting of notices on the deceased’s last known place of abode.
On the third ground of appeal that the trial judge misdirected herself on the law when she held that although judgments from foreign countries are not directly applicable to Ghana, same cannot be said of decrees from foreign courts, hence a divorce decree in France is applicable to Ghana without registration. Counsel for the defendants/appellants submitted that even though the question of divorce was admitted by the defendants, the said judgment was not tendered in evidence and there is no evidence of the registration of the said judgment in Ghana so her judgment confirming the existence of a divorce and declaring Hajia Shaibu as an ex-wife was given per incuriam. Counsel also submitted that the trial judge failed to appreciate the mandatory provisions of Sections 81 to 97 of the Courts Act 1993(Act 459) which states that foreign judgments are only recognized in Ghana after same has been registered.
Counsel for the defendants/appellants therefore urged us not to revoke the letters of administration granted to his clients but to add the plaintiff/respondent to the administrators so that the estate of the late Mohammed Abubakari would properly be administered with the aid of the Registrar of this Honourable Court.
We must state from the onset that the allegation that the trial judge took the position that the case of the plaintiff was undisputed without going into the evidence is unfounded because the trial judge was merely stating the bare and undisputed fact that the plaintiff is a widow and the 1st defendant is a son of Mohammed Abubakari. This fact was not contested by either the pleadings or the evidence. For the trial judge to state that these facts are undisputed is simply restating the obvious especially when considered in the trial judge proceeding later to scrutinize the conflicting evidence of the parties and arriving at a decision one way or the other.
The submissions of Counsel for the defendants/appellants against the trial judge’s finding that the 2nd defendant is not a blood relation of the late Mohammed Abubakari is of no consequence when the detailed evidence of the plaintiff explaining the relationship between the two is viewed against the marked failure of the 2nd defendant to give any evidence whatsoever to challenge the plaintiffs evidence and establish his relationship with the deceased. The evidence on record clearly supports the trial judge’s finding that the 2nd defendant is not a blood relation of Mohammed Abubakari. Section 17 of the Evidence Act 1973 (NRCD 323) provides that “Except as otherwise provided by law, the burden of producing evidence on a particular fact is on the party against whom a finding of that fact would be required in the absence of further evidence”. The defendants not having led any evidence to establish the relationship between the 2nd defendant and the deceased, the trial judge was right in accepting the plaintiffs evidence that there was no blood relationship between the 2nd defendant and the deceased.
It means therefore that the 2nd defendant could not bring himself within the persons entitled to a grant of letter of administration mandated by Order 66 rule 13 of High Court (Civil Procedure) Rules 2004 (C.I. 47) which list them in the following order (1) Surviving spouse (2) surviving children (3) surviving parents and (4) customary successor of the deceased. The injunction placed on the defendants from administering the estate was based not only on the fact that the 2nd defendant is incompetent to join in the administration of the estate, but by the fact that the plaintiff who has the first priority was not joined as an administrator. On the trial judge’s acceptance of the medical report Exhibit C it is to be noted that the defendants did not object to same when it was tendered. In the case of Aryeh and Akapo Vrs Ayaa Iddrisu (2010) SCGLR 891 the Supreme Court held that “as provided under Section 6(1) of the Evidence Act 1975 (NRCD 323) in every action, and at every state thereof, any objection to the admissibility of evidence by a party affected thereby should be made at the time the evidence was offered. If a party looked on and allowed an otherwise inadmissible evidence to pass without objecting, it would form part of the court record and the trial court would be entitled to consider it in evaluating the evidence on record for what it was worth”. Apart from not objecting to the tendering of the document there is contained in the evidence of the plaintiff and her witness other evidence of the assault carried out by the 1st defendant on the plaintiff which was not challenged during cross-examination. The trial judge was therefore right when she held that “in the circumstances, they are deemed to have admitted the unchallenged evidence”.
Counsel for the defendants/appellants also challenged the trial judge’s finding that the 1st defendant would not be fair to the plaintiff in administering the deceased’s estate. A trial judge is entitled to observe a party’s demeanour and conduct during proceedings and to comment on same in her judgment. This together with the defendant’s pleadings that the deceased was survived by two widows when the evidence on record clearly shows that the first wife was divorced and could not legally have been remarried to the deceased during the pendency of a monogamous marriage under the Marriage Ordinance clearly supports the trial judge’s finding that the 1st defendant is biased towards the plaintiff and would not be fair to her in the administration of the estate in her absence. The effusions of Counsel for the defendants/appellants on the matter is not supported by the evidence on record and the law and the arguments made in support of the fifth ground of appeal are hereby dismissed.
On ground 2 that the trial judge did not give his clients the opportunity to prove their case by shutting out the Registrar of the court thus denying them the right to be heard contrary to the rules of natural justice, we note from the record of proceedings that the application for leave for the Registrar to tender the documents was made after the defendants had closed their case and the suit had been adjourned for judgment. The application was granted and the Registrar was given the opportunity twice to tender the affidavit of posting yet he could not do so. The affidavit of posting was in the possession of the defendants as they exhibited it in their application so why did they not attach it to their statement of case when they were filing same but sought to tender it later through viva voca evidence when the rules in giving evidence had changed by the High Court (Civil Procedure) (Amendment) Rules 2014 C.I. 87. Even though the defendants were granted leave to adduce fresh evidence that did not take away the trial judges power to control the mode and order of interrogation allowed under Section 69 of the Evidence Act 1975 (NRCD 323) or close a party’s case when that party is delaying the progress of the trial.
Having granted the defendants leave to adduce fresh evidence and tender documents which the defendants failed to take advantage of, the trial judge cannot be accused of not giving the defendants the opportunity to put across their defence. We do not dispute the trial judge’s finding that “On the date the defendants lawyers were to take the evidence of the Registrar from the Bailiffs Section ie the 20th of January, neither they nor their witness was present and the case which had been re-opened was considered closed”. The plaintiff testified that she was indoors at the time the notice was supposed to have been posted but they were not posted because had the notice been posted, the other occupants of the house would have seen it and drawn her attention to it. We do not intend to disturb the finding of the trial judge on this fact. An appellate court cannot admit a document in evidence when no attempt was made in the trial court to tender it in evidence. We are not impressed by the arguments made in support of this ground of appeal and we reject them. This ground of appeal fails and it is dismissed.
Counsel for the defendants/appellants next argued ground 3 of the grounds of appeal that the trial judge misdirected herself on the law when she held that though judgments of foreign countries are not directly applicable in Ghana same cannot be said of decrees from foreign courts, hence a divorce decrees in France is applicable to Ghana without registration. Counsel went on to argue that the divorce decree was neither registered in Ghana nor were the proceedings available for the court to verify its contents. The general rule regarding foreign judgments is that it is those foreign judgments which require enforcement in Ghana especially those regarding payment of judgment debts which require registration in Ghana. The 1st defendant admitted that his parents divorced each other in France so there was no need for registration of the divorce decree.
The gravamen of the suit before the court was which of the parties before the court was entitled to a grant of letters of administration to the estate of Mohammed Bukari and Counsel for the defendants/appellants discourse on the registration of a divorce decree does not affect the substance of the enquiry before the court. Nowhere in this case did the trial judge enforce the divorce granted by the French Court as neither party to that marriage or divorce was a party to the suit. Section 36 of our Matrimonial Cause Act 1971 (Act 267) on recognition of foreign decrees states that “The court shall recognize as valid a decree of divorce, nullity or presumption of death and dissolution of marriage obtained by judicial process or otherwise, which is not contrary to natural justice, and which (b) is in accordance with the law of the place where both parties to the marriage were ordinarily resident at the time of the action dissolving or annulling the marriage”. Recognizing a foreign decree of divorce is different from enforcing a foreign decree of divorce. This ground of appeal too does not find favour with us and we dismiss it.
We have examined the arguments made in support of the grounds set out in this appeal and not having found any of them maintainable we dismiss the appeal.
We however make the following orders: -
The 1st defendant/appellant and the plaintiff/respondent are appointed as administrators of this estate.
In addition, the two administrators shall jointly appoint one member of the late Mohammed Abubakari’s family to join them in administering the estate.
The three administrators shall swear to an affidavit of appointment as joint administrators in the court below for the court below to issue them with the letters of administration to the estate. For the avoidance of doubt, the 2nd defendant/appellant’s appointment as an administrator is hereby revoked.
K. A. ACQUAYE
(JUSTICE OF APPEAL)
B. ACKAH YENSU (MISS), J.A. I AGREE B. ACKAH YENSU (MISS)
(JUSTICE OF APPEAL)
I. O. TANKO AMADU, J.A. I ALSO AGREE I. O. TANKO AMADU
(JUSTICE OF APPEAL)