IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
JOSEPH EMMANUEL ANTWI - (Plaintiff/Appellant)
AKUA ATAA AND STEPHEN NTIAMOAH MENSAH - (Defendants/Respondents)
DATE: 23RD JULY, 2018
CIVIL APPEAL SUIT NO: H1/03/2018
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
JOHN KWAME KODUA FOR PLAINTIFF/APPELLANT
JOHN BREFO FOR DEFENDANTS/RESPONDENTS
The plaintiff Joseph Emmanuel Antwi (deceased) averred sometime in 1994 at the funeral of one late Abena Manu, and at a family gathering of their matrilineal family at Adangwomase, his uncle Nana Enoch Ntiamoah Mensah, alias, Nana Yaw Bete, made a public declaration of inter vivos gifts of all his self-acquired properties to him absolutely. The plaintiff listed the properties so gifted him as follows: -
H/No. O.I. Extension Block 4 Plot 1, Kumasi.
Cocoa farm at Nsutam/Asuwamu/Biem bounded on all sides by the farms of Nana Antwi, Nana Sarkodie, OpaninAdubofo, Nana Sampeney, Asuwamu river and Biem river.
Cocoa farm at Nyameadom (Nsutam) bounded on all sides by the farms of OpaninKwakye, AgyaWereko, OpaninKwakuNsiah, Agya Atta and Nana AbenaAmpong.
Cocoa farm at Siwaso (Nsutam) and bounded on all sides by the farms of AgyaAtta, OpaninKyere, AgyaSarfo, Opanin Kwame Amoah and Nana Ampenfi.
Cocoa farm at Abrosanase(Sereso) and bounded on all sides by the farms of KwakuAborah, Mr. Gyamfi, KwadwoObeng, James Kwamuah and a farm land to be shared between AkuaAttaa and myself.
Cocoa farm at Sefwi Sui and bounded on all sides by the farms of Nana Attoh, Nana Gyebi, OpaninAbokyi and Asukro stream.
All the personality of the said late Nana Enoch Ntiamoah Mensah (a.k.a Nana Yaw Bete).
The plaintiff said all the members of their said matrilineal family agreed to the said inter vivos gift made by the late uncle to him. He immediately paid two bottles of schnapps and cash the sum of ¢20,000 to the elders and the principal members (Abadwafo)who acted as witnesses to the said gift of the properties to him.
The plaintiff averred he took possession of all the said properties and possessed them for a period of ten years from the date of the gift when the uncle was still alive. He said during that period nobody raised any objection whatsoever to the said gift.
The plaintiff said surprisingly a few months ago the defendants, the widow and son of the plaintiff’s late uncle, started disputing his title to the said properties gifted to him, claiming the properties were for their late father as at the time of his death and not for him.
The plaintiff’s claim is that the late uncle gifted those properties to him 10 years before the uncle’s death 8 years ago. That is 2 years before his death and so the said properties do not and cannot form part of the estates of the said late uncle.
Plaintiff said further that the 1st and 2nd defendants however applied for Letter of Administration (LA) in respect of the estate of the deceased uncle and included the said properties in the inventory accompanying their application. The plaintiff averred he filed a caveat to the said application for LA declaring the fact that the said properties are his.
The plaintiff therefore issued this writ to assert his title to the said properties as per his claims.
The defendants, a widow and son in their defence and counterclaim allege the properties listed by the plaintiff in his statement of claim are the self-acquired properties of the late Nana Enoch Ntiamoah Mensah @ Yaw Bete. That at no point in time did he make any immediate inter vivos gift of those properties to the plaintiff.
The defendants allege that when the late Nana was advanced in age and was incapable of visiting his farms personally and keeping watch over his properties he formally put the plaintiff in charge of all his properties and this was an honour done him and it was essentially because of that honour done him that he offered “Aseda”. The defendants say the “Aseda” was in respect of the caretakership position the plaintiff had been appointed to and did not relate in any way to any gift to him of the properties of the late Nana E. N. Mensah.
The defendants averredfurther that throughout the lifetime of the deceased uncle, the plaintiff was rendering accounts of allthe properties to the him and he exercisedcontrol and ownership of the properties. The defendants allege the plaintiff continued to make provisionfor their upkeep and education till about 2008 when he decided that he would no longer assume responsibility fortheir upkeep. The defendants say the plaintiffis not entitled to his reliefs. Thedefendantscounterclaimed for a declaration that allthe properties listed bythe plaintiff in the writ are self-acquiredproperties of the late Nana E. N. Mensah and not gifted to the plaintiff as alleged. Also damages for trespass and an order for perpetual injunction torestrain the plaintiff, his agents, servants, labourers and all who claim through him from interfering with the said properties.
ISSUES FOR TRIAL
Whether or not the said late Nana Enoch Ntiamoah Mensah (a.k.a. Nana Yaw Bete) made inter vivos gifts to his said self-acquired properties to the plaintiff herein in 1994.
Whether or not the said late Nana Enoch Ntiamoah Mensah (a.k.a. Nana Yaw Bete) only made the plaintiff a caretaker of the said properties.
Whether or not the defendants are conclusively estopped from now or ever denying that the said late Nana Enoch Ntiamoah Mensah (a.K.a. Nana Yaw Bete) made inter vivosgifts of the saidproperties of the plaintiff.
Whether or not the plaintiff is entitled to his claims herein.
Whether or not the defendants are entitled to their counterclaim.
Any other issues raised on the pleadings.
The trial court ordered all the parties to submit their statement of case for the motion for an order of interlocutory injunction prayed by the plaintiff to restrain the defendants their agents, servants etc. from interfering with the said properties.
The trial High Court delivered itself thus: -
“As indicated, the letters of administration of the estate of the deceased have been granted to the defendants. The grant has not been revoked or at the least, recalled pendingthe determination of the issues in this case. That being the case the grant still subsists with full force. The grant was made bya 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 theplaintiff, it will be improper forthis court to restrain the defendants from carrying outtheir lawful duties as personal representatives of the deceased. Ultimately if the reliefs of plaintiffare granted, it would amount to a revocation of the letters of administrationgrantedto the defendants though it wasnot a relief especially asked for. The procedure was for plaintiff to have taken the appropriate steps to have the grant revoked or recalled. It is provided under Section 67 of the Administration of Estates Act 1961 (Act 63) that:
“Where the 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 a grant until the grant has been recalled or revoked””.
The trial court said its provided under section 67 of the Administration of Estates Act 1961 (Act 63) that “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 bythe grant until the grant has been recalled or revoked”.
The court said there was no evidence before it that the grant of the Letters of Administration to the defendants was revoked or annulled or recalled. The court held that this application is a proper case for an interlocutory application for injunction to be used to dismiss the claim of the plaintiff because he failed to satisfy the mandatory statutory provisions of Section 67 of the Administration of Estates Act, 1961 (Act 63). The claim of the plaintiff was accordingly dismissed and the defendants called upon to prove their counterclaim.
The plaintiff dissatisfied with this ruling of the High Court filed this appeal on the following grounds:
The trial judge erred in law when he held that before the plaintiff/appellant can or could sue for a declaration of title to the properties which he claims to belong to him he must first of all or in the first instance take steps to seek the recall or revocation of the Letters of Administrationgranted to the Defendants/Respondents herein.
The trial judge erred in law when he refused the plaintiff/appellant’s application for interlocutory injunction on the basis of his said erroneous view of the law stated in ground (a) supra).
Additional grounds of appeal will be filed when the said ruling is received.
The aforesaid ruling or decision of the High Court be set aside and the plaintiff/appellant’s substantive action herein be restored to the list for hearing and determination.
The plaintiff/appellant’s said application for interlocutory injunction be granted.
The costs of Gh¢1,000.00 awarded against the plaintiff/appellant be set aside.
Counsel for the appellant referred this court to Section 67 of the Administration of Estates Act (act 63) on which the trial court based its decision. It states: -
“where administration has been granted in respect of any estate of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in, or affected by the grant until the grant has been recalled or revoked”.
Counsel for the appellant defines the section as meaning once letters of administration has been granted to a person, then no other person, purporting or claiming to act as an administrator of the said same estate can bring an action inthatcapacity in respectof the same estate.
He submits, the action brought by theplaintiff/appellant herein was for a declarationof title to some propertiescomprised in the grant of letters of administration tothe defendants/respondents. He said it is clear that the plaintiff/appellant did not bring his action herein in the capacity of an administrator of the estate of the said deceased person. He rather sued the defendant/respondent in their capacity as the holders of the letters of administration or as the legal personal representatives of the said deceasedperson. The plaintiff, counsel argues, never usurped the capacity of the defendants as administrators of the estate of the deceased but rather sued them as persons in whom the properties comprised in the letters of administration were vested.
It is his submission that the trial judge clearly misunderstood the import or meaning of section 67 of the Administration of Estate Act (Act 63).
Counsel referred this court to Rule 13(1) of C.I.47 which reads: -
“Trustees, Executors, or Administrators may sue or be sued in their capacity as such without joining any of the person who have beneficial interested in the trust or estate”.
Counsel submits the trial High Court Judge erred when he misinterpreted the said Section 67 of the Administration of Estates Act (Act 63) and dismissed the plaintiff/appellant’s suit or action on that score.
In response, counsel for the respondent submit that the high court relied on the cases of Anyinanvrs Mensah [1989-90] 2 GLR 96; AwoYaa Mensah vrs Mary Asantewaa  36 GMJ 42 to conclude that the proper procedure was for the appellant to have taken the appropriate steps to have the grant revoked or recalled before the commencement of his action.
Counsel submits further that this instant appeal involves the interpretation placed on section 67 of the Administration of Estates Act 1961 (Act 63) (supra). As suggested the trialcourt’s reasoning that since there was no evidence before the court that the grant of letters of administration to the defendant was revoked or annulled or recalled the appellant instituted his action without satisfying the mandatory statutory condition precedent to the commencement of the action.
We cannot but agree with both counsel in the instant appeal that the whole issue is about the interpretation of Section 67 of the Administration of Estates Act (Act 63). (Supra)
The “Golden Rule” in English law is one of the rules of statutory construction traditionally applied by English courts. The rule can be used to avoid the consequences of literal interpretation of the wording of a statute when such an interpretation would lead to a manifest absurdity or to a result that in obnoxious to principles of public policy.
The trial High Court ruled; -“As the grant was not revoked or recalled by theplaintiff, it will be improper for this court to restrain the defendants from carrying out their lawful duties as personal representatives of the deceased”.
Looking carefully at Section 67 of the Act, the impression I gather is that it is forbidding any person from bringing any action with intent to act as an administrator of the estate of a deceased person aside those granted the Letters of Administration unless that person has taken steps to recall or revoke that grant.In other words, before anyone else can act as the administrator of the deceased person’s estate after Letters of Administration had already been granted by a court of competent jurisdiction that person shall first have to bring an action to recall or revoke that earlier grant.
In the instant appeal, the plaintiff/appellant never intended acting as the administrator of the deceased person’s estate. I do not get the impression he is challenging the grant.The records said he earlier filed a caveat but later abandoned it and issued the instant writ.
In the writ, the plaintiff claimed against the 1st and 2nd defendants jointly and severally and in their capacities as the legal personal representatives or holders of Letters of Administration in respect of the estate of Nana E. N. Mensah @ Yaw Bete. He described the defendants as the legal personal representatives or holders of the Letters of Administration.
His claim is for a declaration to the effect that some of the properties listed in the inventory attached to the application for the Letters of Administration were properties gifted to him by the deceased in his lifetime. He listed the properties and prayed for recovery of same.He further prayed for an order of perpetual injunction restraining the defendants, etc. from interfering with his exclusive and absolute title and possession of same.
I do not think the appellant in his writ intend challenging the administrators about the grant of the Letters of Administration to them. He was just protecting properties he claimed to be his.
I do not think he falls under Section 67 of the Act. I hold that the trial Judge erred when he placed the appellant under those who fall under Section 67 of the Act. It is clear the plaintiff/appellant never brought his action in the capacity of an administrator of the estate of the deceased person.
That ground of appeal succeeds.
That the trial Judge erred in law when he refused the plaintiff/appellants application for interim injunction on the basis of the said erroneous view of the law stated in Ground I.
Interim injunctions are interlocutory orders made by the court to obviate, before a case is finally determined, any waste, damage or alienation of the property which is in dispute. The purpose of an interim injunction is to preserve the status quo ante. The effect of an interim injunction order is to preserve the subject matter of the litigation in an appropriate case.
The governing principle applicable to such applications is whether on the face of the affidavits there is the need to preserve the status quo in order to avoid irreparable damage to the applicant, provided his case is not frivolous or vexatious. See;
i. Vanderpuyevrs. Nartey  1 GLR 428 C.A.
ii. Trokosivrs. Abbas  1 GLR 257
In an application for interlocutory injunction the applicant must show a fair prima facie case in support of the right claimed. We must however note that in such applications the court does not attempt to determine the rights of the parties, but merely seeks to keep the property in its existing condition until the legal rights can be established.
In the recent case of Larry Blackman vrs. Bernard Klutsey  118 GMJ pg. 72 this court held that the grant and or refusal of interlocutory injunction is discretionary. This discretion must however be guided by the following principles:
i. The court must consider whether the case of an applicant was not frivolous and he had demonstrated that he had legal or equitable right which a court should protect
ii. To ensure that the status quo was maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter.
iii. The court must consider the balance of convenience and should refuse the application if its grant would cause serious hardship to the other party.
In the instant appeal, the plaintiff in his writ alleged the deceased gifted those properties to him inter vivos and in the presence of the family and he performed ‘aseda’. That he had been in possession for so many years before this writ was issued. He mentioned the time and even some people who were present at the ceremony.
The defendants in their defence denied this and said the plaintiff was only given the power for “caretakership” and not gifted. This has therefore become a contentious issue for the court to decide. The court in its ruling delivered itself thus: -
“This is a proper case for the interlocutory application for injunction to be used to dismiss the claim of the plaintiff because he failed to satisfy the mandatory statutory provision of Section 67 of the Administration of Estates Act 1961 (Act 63) the claim of the plaintiff is accordingly dismissed whilst the defendants are called to prove their counterclaim.”
With the greatest respect to the trial High Court Judge, I think he got it wrong. The plaintiff went in for declaration of title and recovery of possession. He then prayed for an order for interim injunction to restrain the defendants from interfering or dealing with those properties. The defendants were opposed to the claim and the application for interim injunction altogether.
Issues were set down for trial. Assuming the plaintiff failed in his application for an order of interim injunction why will the court dismiss his writ as a whole and call upon the defendants to establish their counter-claim? It was the duty of the trial court to go for a full trial and go into the merits of the case.
The plaintiff’s case is not simply an application for injunction but for declaration of title and recovery of possession. In the former, since it is a legal issue, the Judge had the discretion to ask for written submissions to determine the issue. For the writ, the Judge erred in relying on the submissions made for the interim application to dismiss the plaintiff’s case. He should have taken evidence from both parties, based on the issues agreed for trial to determine the case once and for all.
I am of the opinion that the trial Judge fell into this grievous error based on the wrong interpretation he put on Section 67 of the Administration of Estates Act (Act 63).
I think the plaintiff has satisfied the conditions to enable the court grant him the order for interim injunction. He has demonstrated his case was not frivolous and that he had a legal or at least equitable interest in the properties he listed which the court ought to protect till the determination of the case. He deserved the order for the status quo to be maintained.Also since there is no controversy that he had been in possession and control of those properties even before the death of the deceased uncle up to the issuance of this writ to the exclusion of all others, he will suffer more inconvenience and hardship than the defendants.
I hold that the trial Judge wrongly exercised his discretion and thereby erred in dismissing the plaintiff’s application for the interlocutory order as well as his writ of summons. This appeal succeeds in its entirety and I set aside all orders of the trialHigh Court. The case shall be tried de novo by a different High Court.