IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
STEPHEN BORQUAE AND MERCY ADAKU MENSAH - (Plaintiff/Appellant)
SETH METTLE-NUNOO AND 4 OTHERS - (Defendants/ Respondents)
DATE: 15TH FEBRUARY, 2018
CIVIL APPEAL NO: HI/13/2018
JUDGES: F.G. KORBIEH J.A (PRESIDING), B.F. ACKAH-YENSU (MRS) J.A, I.O.TANKO AMADU J.A
TANKO AMADU J.A
(1) This appeal emanates from the judgment of the High Court Accra dated the 28th day of October 2015.
(2) In the High Court, Plaintiffs/Appellants (hereinafter referred to as “the Appellants) claimed against the Defendants/Respondents) (hereinafter referred to us “the Respondents) the following reliefs:-
“(i) A Declaration that the estate of the late Joseph Edward Mettle crystallize into the sole property of Christina Ayeselah Nupka Mettle upon the death of the penultimate devisee Saul Annan Mettle in 1991 and thus ceased to be family property.
(ii)A Declaration the Stephen Borquaye and Mercy Adaku Mensahacting per their Lawful Attorneys Maud Georgina Borquaye and Victor Mensah are the lawful Applicants for the grant of Letters of Administration to administer the estate.
(iii)An order of perpetual injunction restraining Defendants and all other members of the Annan Mettle family save Stephen Borquaye and Mercy Adaku Mensah from meddling with the estate formerly belonging to Joseph Edward Mettle and now the sole property of Christiana Ayeslah Numpa Mettle.
(iv) Costs including legal fees.
(3) It must be place on record that the said Stephen Borquaye cited in relief (ii) for injunction has been substituted by Victor Mensah as the 1st Appellant herein.
(4) SUMMARY OF APPELLANTS CASE IN THE COURT BELOW:
(i) At the Trial Court the salient paragraphs of the Appellants pleadings the statement of calm (pages 3-6) of the record are as follows:-
“4 Plaintiff’s state that their grandfather the late Joseph Edward Mettle died in Adeiso on the 9th March 1917, leaving a Will to be executed by his eldest child, Isaac Annan Mettle………………”
“7 Plaintiff’s state that the estate of the late Joseph Edward Mettle was administered by the sole executor named in the Will, Isaac Annan Mettle, and by all subsequent heads of family of the Annan Mettle family relating to the surviving devisees as joint tenants.
11. Plaintiffs state that up to 1956 (when the surviving deviseesnumbered 15) proceeds from the estate of the late Joseph Edward Mettle were distributed exclusively to the surviving devisees, to the absolute abandon of the Defendants of the deceased devisees, as and when they died, in the manner of a joint tenancy agreement.
13. Plaintiffs state, that on the death of the penultimate devisee in 1991, the only surviving child, Christiana Ayelesah Nupka Mettle, in the manner of the joint tenancy arrangement, assumed, ownership of her late father’s estate as her personal property.
17. Plaintiffs state that, Christiana Ayelesah Nukpa Mettle, as owner of the estate of her father, has since 1991 when the joint tenancy arrangement crystalized in her favour, run and maintained her estate with support from her Attorney, Gabriel Codjoe Mettle, and her son and their apparent; Stephen Borquaye (1st Appellant herein who is substituted by Victor Mensah).
18. Plaintiffs aver that further to their application for Letters of Administration to administer the estate of their late mother, which included the property previously known as “Full Swing Factory” and now known as H/No.D/726/3 Kadiri Zongo Lane Accra, they wish to aver that the said property was procured in its entirety with funds exclusively accruing to the estate of the late Joseph Edward Mettle and that the property qualifies as the private property of Christiana Ayelesah Nukpa Mettle.
20. Plaintiffs aver again that from the foregoing everything points to the fact that the estate of the late Joseph Edward Mettle crystallized for the sole benefit of Christiana Ayelesah Mettle who died intestate in 2001.
21. Plaintiffs state that in the light of the above, the Applicants may lawfully apply for Letters of Administration as children of Christiana Ayeselah Nukpa Mettle to administer the estate of the late Joseph Edward Mettle which became her sole property on the death of the penultimate devisee”.
The above reproduction of crucial averments in the Appellant’s statement of claims against the Respondents in the Court below.
(5) SUMMARY OF RESPONDENTS’ CASE IN THE COURT BELOW: the Respondents denied substantially all the crucial averments made by the Appellants in statement of defence and pleaded inter alia as follows:
“4. In further answer to paragraph 2, Defendants say that Victor Mensah (1st Appellant herein
had until 9th June, 2012 administered the properties of Joseph Edward Mettle (aka Annan Mettle) as family property in a capacity as Secretary, Treasurer, Records keeper, Attorney Claimant on compensation, custodian of family lands etc. of the Annan Mettle Family.
5. In further answer to paragraph 2 the Defendants say that Victor Mensah the 2nd Plaintiff is estopped from denying the ownership of the Kutunse land as Annan Mettle family property by virtue of his letter dated 11th February, 2008 to the Land Valuation Board stating that the Kutunse land belonged to the Annan Mettle family and compensation due to the family from the government acquisition of part of the land be paid to him on behalf of the family.
6. In answer to paragraph 2, Defendants say that Stephen Borquaye the 1st Plaintiff and Victor Mensah are both estopped from denying ownership of the Annan Mettle properties as family property by virtue of their resolution dated 2nd February 2008 announcing to the whole world that the Estate of Joseph Edward Mettle is being held in common for the benefit of the sub-families constituting the Annan Mettle family.
7. In further answer to paragraph 2 “Victor Mensah the 2nd Plaintiff acknowledged the severance of the joint tenancy if it ever existed, in a memorandum to the family stating that in 2009 proceeds from the Annan Mettle property was shared to segments of the whole family, mining all the children of the devisees under the Will of Joseph Mettle
10. In answer to paragraph 7 the Defendants say that in 1956 Christiana Ayelesah Nukpa Mettle was one of the children of Testator Joseph Edward Mettle who signed on agreement to expressly agree to distribute the property of their late father father J.E. Mettle as tenants in common.
11. In answer to paragraph 7 the Defendants say that in line with the Agreement to distribute proceeds of the Annan Mettle family as tenants in common, the devisees and later their children have over the years been given their share of proceeds accruing from the properties of the late Joseph Edward Mettle including rents from the Full Swing Factory.
18. In further answer to paragraph 13 Defendants say that on the death in 1991 of the penultimate devisee Saul Annan Mettle his sister Christiana Ayelesah Nukpa Mettle assumed the man as head of the Annan Mettle family to administer and distribute the proceeds of the property as tenants in common to herself and to the children of all her dead siblings in line with the 1956 agreement.
29. In further answer to paragraph 20, the Defendants say that Christiana Ayelesah Nukpa Mettle died intestate in 2001. Therefore by law the Annan Mettle family to which she belonged is entitled to a portion of her personal property. Christiana Ayelesah Nukpa Mettle by law is not entitled to claim Annan Mettle family property as her personal property.
30. In further answer to paragraph 21 the Defendants say that as recent as in 2010, Victor Mensah the 2nd Plaintiff together with Stephen Borquaye the 1st Plaintiff arranged for the services of a surveyor and the p……… land near Adeiso on the way to Asemankese was distributed to all the descendants of the children of the Testator J.E. Mettle as tenants in common in line with the 1956 agreement”.
(6) This being the state of the pleadings before the Court below, in the absence of a reply to the Respondents’ averments the following issues were set down for trial by the Court below.
“(i) Whether or not the estate of the late Joseph Edward Mettle crystallize into the sole property of Christiana Ayelesah Nukpa Mettle upon the death of the penultimate devisee Saul Annan Mettle in 1991 and this ceased to be family property.
(ii) Whether or not Stephen Borquaye and Mercy Adeku Mensah acting per their lawful Attorneys Maud Georgina Borquaye and Victor Mensah are the lawful Applicants for the grant of Letters of Administration to administer the estate.
(iii) Whether or not House No.D736/3 Kadiri Zongo Lane Accra otherwise known as the full showing factory was acquired from proceeds from the lease of New Haven property of Joseph Edward Mettle.
(7) Any other issues arising out of the pleadings”