IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
WILLIAM BENJAMIN HAGAN BROWN JNR - (Defendant/ Applicant/Appellant)
MICHAEL HAGAN BROWN - (Plaintiff/Respondent/Respondent)
DATE: 31ST OCT. 2018
SUIT NO: H1/37/2018
JUDGES: MARIAMA OWUSU J.A (PRESIDING), HENRY A. KWOFIE J.A, AMMA GAISIE J.A
WILLIAM ASAMOAH SARPONG FOR THE PLAINTIFF/RESPONDENT
FELIX AMOAH FOR THE DEFENDANT/APPELLANT
HENRY KWOFIE J.A:
This is an appeal against the ruling of the High Court Kumasi given on the 23rd of March 2017. The ruling the subject of the appeal followed an application by the defendant/applicant/appellant for the plaintiff’s suit to be dismissed for want of capacity. The said suit was brought by the plaintiff Michael Hagan Brown for himself and on behalf of his mother and siblings on 16th September 2016 claiming the following reliefs:
i. An order of the Court to compel the defendant to distribute the estate of Nana Dr. William Benjamin Hagan Brown in accordance with his Last Will and Testament.
ii. A further order restraining the defendant from interfering with the plaintiff’s enjoyment of the portion of the estate till the determination of the suit.
iii. An order for the defendant to account to the plaintiff and all the beneficiaries on how he has administered the estate.
The trial judge dismissed the defendant’s application on 23rd of March 2017. Dissatisfied with the ruling, the defendant/applicant/appellant mounted this appeal by a Notice of Interlocutory appeal dated 13/07/2017 on the following grounds:
i. The ruling is against the weight of evidence on record
ii. Additional grounds of appeal would be filed on receipt of the record of appeal.
It is noted for the record that no additional grounds of appeal were filed by the appellant. The relief sought from the Court of Appeal is a reversal of the ruling of the High Court and an order dismissing the action of the plaintiff/respondent for want of capacity.
The case of the plaintiff Michael Hagan Brown is that he is one of the children of the late Dr. William Benjamin Hagan Brown by his mother Mary Donkor. He initiated the action for himself and on behalf of his mother Mary Donkor and his three siblings namely Cynthia Hagan Brown, Salina Evon Hagan Brown and William Benjamin Hagan Brown Jnr. It is his case that his late father died on 23rd July 2000.
After his death a dispute arose over the validity of his last will which became the subject of litigation at the High Court Kumasi which lasted about fifteen years before judgment was delivered. The defendant was appointed the Administrator of the estate by the Court since the named executor died before judgment was delivered in the case. It is his case that the defendant after the grant of letters of administration has refused to distribute the estate and has resorted to selling some of the properties. The defendant has also started making demands on tenants as well as some of the beneficiaries to give vacant possession of certain properties to him which conduct is illegal and unlawful. It is the further case of the plaintiff that unless restrained by the Court, the defendant will waste the estate.
The defendant denied the plaintiff’s claim and averred that he did not apply for Letters of Administration with Will annexed but was rather granted probate of the Last Will and testament of the deceased by the Court after the judgment. The defendant says that after the grant of probate, he proceeded to execute a vesting Assent and wrote to the plaintiff to inform him to collect his copy and pay the necessary expenses if any. The plaintiff had started dealing with one of the houses specified in the Will by renting the ground floor to tenants. The defendant says he wrote to the tenants to inform them of his ownership of the ground floor and also of the Vesting Assent. The plaintiff upon receipt of the letter approached the defendant to plead with him to live in some of the rooms on the ground floor then vested in the defendant but he did not agree.
The plaintiff then came with a tenant and pleaded with the defendant that he (the plaintiff) had taken huge sums of money from the tenant to rent the store room on the ground floor of the building vested in the defendant and pleaded with the defendant to “bail him out”. The defendant says he reluctantly paid GH¢30,000 to the plaintiff to be given to the said tenant in order to secure vacant possession of the storerooms. Immediately after collecting the GH¢30,000 from the defendant, the plaintiff then secured the storerooms and deposited his own materials and possession in them to deny the defendant access to the rooms. The defendant says he wrote a final notice to quit to the tenants and reported the conduct of the plaintiff to the police for fraudulently collecting the GH¢30,000 from him and the plaintiff was invited by the police for interrogation. A day after the police invitation the plaintiff instituted this action. The defendant avers that the plaintiff’s action is frivolous, vexatious and an abuse of the Court process and is not maintainable in law.
Arguing the sole ground of appeal, counsel for the defendant/appellant submitted that the gravamen of the appellant’s application to dismiss the plaintiff’s action at the High Court was that the plaintiff was not a beneficiary under the Will of the deceased testator and does not also possess a vesting Assent as a beneficiary to clothe him with capacity to maintain the action. Relying on the case of In Re Okyere deceased; Peprah Vrs. Appenteng and Adomaa (2012) SCGLR 65 counsel submitted that not having a Vesting assent, the plaintiff could not mount the instant action.
Responding to the submissions of counsel for the defendant, counsel for the plaintiff submitted that the reliefs sought by the plaintiff in this case is not for a declaration of title to any of the properties but rather to compel the defendant as the executor of the Last Will of the testator to distribute the estates and submitted that In Re Okyere was therefore not applicable. He submitted further that under paragraph 5(b)of the Last Will of the testator, he mentions the name of Nana and all his brothers and sisters. He asserted that the Nana referred to in paragraph 5(b) happens to be a brother of the plaintiff and the plaintiff was therefore a beneficiary. He argued that to determine whether or not the plaintiff is a brother of Nana requires that evidence should be led in the case. He further asserted that in the Vesting Assent prepared by the defendant, the name Nana contained in paragraph 5(b) of the Will has been spelt as “Naana” which is different from Nana and this alone entitles the plaintiff to institute this action.
Referring to cases like Ampomah Vrs. VRA (1989-90) 2 GLR 28, Boateng Vrs Boateng and Brown Vs Quarshigah (2003-2004) SCGLR 930 counsel for the Respondent further argued that having given notice that he intended to rely solely on the omnibus ground that the judgment was against the weight of evidence, the appellant should not be permitted to argue points of law. But it is worth referring to the case of Owusu-Domena Vrs. Amoah (2015-2016) 1 SCGLR 790 holding 2 where the Supreme Court relying on the earlier decision of Attorney General Vrs Faroe Atlantic (2005-2006) SCGLR 271 at 306 held in holding 2 thereof as follows:
“(2) Where the appeal is based on the omnibus ground that the judgment was against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of factual matters.
The sole ground of appeal that the judgment is against the weight of evidence, throws up the case for a fresh consideration of all the facts and law by the appellate Court ………… The decision in Tuakwa Vrs. Bosom (2001-2002) SCGLR 61 has erroneously been cited as laying down the law that where an appeal is based on the ground that the judgment is against the weight of evidence, then only matters of fact may be addressed upon. Sometimes a decision on facts depends on what the law is on the point in issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law”
In this instant case, no oral evidence was led at the trial Court so this Court will restrict itself to the pleadings, motion paper and Exhibits and the written submissions of counsel for the parties.
The appeal itself falls within a very narrow compass, that is basically whether the plaintiff’s action should be dismissed for want of capacity.
The defendant has contended that the plaintiff Michael Hagan Brown is not a beneficiary under the Will of the testator and even if he is, he has no vesting assent and relies on the case of Okyere (Decd) (substituted by) Peprah Vrs Appenteng and Adomaa (2012) 1 SCGLR 63 which discussed Section 96 of the Administration of Estates Act 1961 (Act 63) wherein it was held in holding 2 thereof that:
“2…………The law in Ghana after the enactment of the Administration of Estates Act 1961(Act 63) was different. 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. Accordingly, in the absence of a vesting assent executed in favour of the second defendant, she could neither sue or be sued in relation to her devises, not having been a beneficiary of a vesting assent. The Court of Appeal had therefore, on that specific point of law, rightly dismissed the plaintiff’s action against the second defendant. It also meant that the second defendant (as justifiably contended by the plaintiff) had no locus standi on her counterclaim against the plaintiff.
The appeal would thus be allowed on that specific ground that the second defendant had no locus standi to sue on the counterclaim”.
It is important to note that the Okyere case dealt with the case where the 2nd defendant the devisee of several landed properties who had been sued in respect of the devised properties, had counterclaimed for a declaration that the devised properties were the self-acquired properties of the testatrix. Not being the beneficiary of a vesting, the Supreme Court held that she had no locus standi to sue on the counterclaim and neither could she be sued in respect of her devises. In this instant case, the plaintiff is not suing for a declaration of title to a devised property but for an order that the executor of the Will of the testator, that is the defendant herein, distributes the estate of the deceased. In my view the Okyere Case as rightly contended by counsel for the plaintiff is not applicable to this instant case.
Another issue that arises in this appeal is whether the plaintiff not having been given a power of Attorney by the other plaintiffs could institute this action on their behalf. It should be noted that the title of the case reads
“Michael Hagan Brown Suing for himself and on behalf of his mother and siblings
William Benjamin Hagan Brown Jnr.”
In Paragraph 2 of his statement of claim at page 3 of the record of appeal, the plaintiff states as follows:
“2 The plaintiff initiates this claim for himself and on behalf of his mother Mary Donkor and all his siblings namely:
a. Cynthia Hagan Brown
b. Selina Evon Hagan Brown
c. William Benjamin Hagan Brown Jnr.
The plaintiff clearly sued in a representative capacity. Order 4 rule 11 (1) of the High Court Civil Procedure Rules 2004 (C.I.47) provides:
“11(1) Where numerous persons have the same interest in any proceedings, other than proceedings mentioned in rule 13 of this Order, the proceedings may be commenced, and unless the Court otherwise orders, continued by or against any one or more of them as representing all or as representing some of them”
On this point see the case of Ghana Muslim Representative Council Vs. Salifu (1975) 2 GLR 246 decided under Order 16 rule 1 of the old High Court (Civil Procedure) Rules (1954 LN140A) now Order 4 rule 11 of the High Court (Civil Procedure) Rules (2004) C.I.47
Thus, where there is a common grievance and a common interest a representative suit such as this one was permitted under the rules.
In this instant case the plaintiff having a common grievance or interest with the other 4 persons could represent them in a representative capacity. This disposes off the appeal.
But I cannot end this judgment without commenting on the action instituted by the plaintiff and his siblings.
The record of appeal shows that the deceased testator Dr William Benjamin Hagan Brown died on 23rd July 2000. Soon after his death the present plaintiff Michael Hagan Brown and the surviving wife of the deceased Mary Brown alias Mary Donkor and seven other children of the testator challenged the validity of the 1996 Will made by the testator on the ground that the purported Will was not the act and deed of the deceased. One Dr. G.O Prempeh a dentist and named executor of the Last Will instituted an action on 31/10/2001 at the High Court, Kumasi for amongst other reliefs, a declaration that the Will of the deceased was valid and that the deceased had a sound mind and testamentary capacity to execute his Last Will. The plaintiff/Respondent and his siblings and mother Mary Donkor who were challenging the Will also counterclaimed for a declaration that the deceased Last Will dated
8th November 1996 is not the act and deed of Nana Dr. William Benjamin Hagan Brown (deceased).
That litigation dragged on at the High Court for about fifteen (15) years until judgement was on 21st November 2014 delivered in favour of the defendant William Benjamin Hagan Brown Jnr. who had been substituted for the named executor Dr. G.O. Prempeh who had died before the conclusion of the trial. The counterclaim of the plaintiff and others as defendants therein was dismissed. I would have thought that after fighting over the estate in court for over 15 years, the plaintiff and his mother and 3 siblings will let sleeping dogs lie and allow the defendant/appellant to administer the estate peacefully. The defendant as administrator of the estate of the deceased had in March 2016 executed a vesting assent (see page 40 of the ROA) for the beneficiaries. The plaintiff Michael Hagan Brown with the support of the deceased surviving wife Mary Hagan alias Mary Donkor and his three siblings have again mounted the present action in connection with the same estate claiming the reliefs endorsed on the writ. This is inspite of the fact that the defendant has executed a vesting assent for the beneficiaries. What is baffling is that the plaintiff Michael Hagan Brown, Salina Hagan Brown and William Benjamin Brown Jnr were not direct beneficiaries under the Will. Under the Will of the testator, the greater portion of the testator’s estate was bequeathed to the defendant/appellant William Benjamin Hagan Brown Jnr. alias Papa Essuon. Indeed, as rightly observed by counsel for the defendant/appellant, the plaintiff Michael Hagan Brown was not mentioned as a direct beneficiary in the last Will of the testator. The plaintiff claims that he is a beneficiary under clause 5(b) of the Will where the testator devised 2 building plots at Duasi near Kumasi to Nana and his brothers and sisters. The plaintiff claims that he is a brother of Nana and therefore a beneficiary under clause 5(b) of the Will. Salina Evon Hagan Brown alias Awura Ama was also given a building plot at Duasi. William Hagan Brown Jnr the son of Mary Donkor was also given a building plot by the testator. As already stated the bulk of the properties of the testator were devised to the defendant/appellant William Benjamin Hagan Brown Jnr. In his judgement in the earlier action challenging the Will delivered on 21st November 2014, His Lordship Justice Amissah-Koomson stated as follows at page 29 of the Record of Appeal thus:
“It would appear from Exhibit C (the Will) that with the exception of the 1st defendant, all the defendants and co-defendants were not specifically provided for in Exhibit C as direct beneficiaries. Could that be the basis of their challenge”?
That question posed by His Lordship needs to be answered by the plaintiffs/Respondent who though not a direct beneficiary is holding the estate to ransom. The plaintiff Michael Hagan Brown who was the 2nd defendant in the earlier suit and who gave evidence in that suit for all the defendants and co-defendants is not a direct beneficiary. In relief b) of their writ (at page 2 of the ROA) they ask for an order restraining the defendant from interfering with the plaintiff’s enjoyment of the portion of the estate till the determination of the suit.
Having been given only plots of land at Duasi near Kumasi, which properties should the plaintiffs be allowed to enjoy out of the estate pending the determination of this case, The plaintiff Michael Hagan Brown has in the pleadings been accused by the defendant of giving out storerooms to tenants and collected huge sums of money even though he is not a direct beneficiary under the Will. No wonder he is the one leading this unnecessary litigation in respect of the estate!
Save for these sentiments, I will dismiss the appeal.
HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)
I Agree SGD
(JUSTICE OF THE COURT OF APPEAL)
I Also Agree SGD
(JUSTICE OF THE COURT OF APPEAL)