IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
GEORGE LUTTERODT & 2 ORS. - (Plaintiff)
JACOB DEVEER LUTTERODT & ANOR - (Defendant)
DATE: 22ND DECEMBER, 2016
SUIT NO: TOCC/193/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS: PATRICK NNURO FOR THE PLAINTIFF-(Plaintiff) ASANTE KROBEA FOR THE DEFENDANTS-(Defendants)
This action was initially commenced at the High Court (General Jurisdiction) on 02/08/2012. It was however transferred to this court by a transfer order under the hand of the Honourable Chief Justice dated 06/05/2015. Prior to the transfer of the suit, the parties amended their pleadings on 28/03/2014 and 16/05/2014 respectively.
The reliefs sought by the Plaintiffs as per the endorsement on their writ of summons are:
A declaration that the Plaintiffs as children and acting head of family respectively and the main beneficiaries of the estate of Joseph Emmanuel Conduah Lutterodt (deceased) are the proper persons entitled to administer his estate in terms of his last Will.
An order revoking the Letters of Administration with will Annexed in respect of the estate of
Emmanuel Conduah Lutterodt granted by the High Court, Kumasi to the Defendants on 12th August, 2009
A further declaration that the Defendants have no right or power to undertake any constructional work in House Number 27, Mbrom, Kumasi.
An order of injunction to restrain the Defendants, their Workmen, servants, agents, assigns and all/or those claiming through them from undertaking further development of the said Mbrom property.
Such further Orders as the Honourable Court may deem fit.
THE PLAINTIFFS' CASE
The Plaintiffs' described themselves as children and nephew/head of family respectively of the late Joseph Emmanuel Conduah Lutterodt who died on 02/10/1984. The Defendants have also been described as the Administrators of the estate of the deceased. It is the Plaintiffs' case that the Will and Codicil of the Testator were proved in solemn form in a probate action instituted by Nelly Yacoba Agyeman, a daughter of the Testator, and their validity affirmed by the High Court. Two of the executors died and the rest renounced probate so the Defendants herein obtained Letters of Administration with will Annexed from the Kumasi High Court on 12/08/2009.The plaintiffs contend that the 2nd Defendant is just a nominal beneficiary under the Will and that the Letters of Administration with Will Annexed was made without the prior knowledge and consultation with the children and head of family of the Testator who are the main beneficiaries of the estate and that the 2nd Defendant acted fraudulently. They further alleged that the Defendants have refused to administer the estate and have also not vested the immovable properties in the respective beneficiaries. Again, the Plaintiffs asserted that the devises made in respect of the outhouse of the Mbrom 27 house was subject to payment of ground rent by the beneficiaries but the said beneficiaries failed to fulfill that condition. After obtaining the L/A with Will annexed, it is the case of the Plaintiffs that the Defendants have started developing a vacant portion of the Mbrom house which does not form part of the outhouse devised to Anthony Mensah and Margaret Mensah. Notwithstanding letters allegedly written by the Plaintiffs solicitors to the Defendants to bring in the L/A with Will Annexed and leave same at the Registry of the High Court and stop the construction, the Defendants have refused to stop their unlawful development.
THE DEFENDANTS CASE
Apart from denying that the 3rd plaintiff is the head of family of the late Joseph Emmanuel Conduah, the defendants admitted the Plaintiff's averments relative to the events leading to the proving of the Will and Codicil in solemn form up to the grant of the L/A with Will Annexed they denied that the 2nd Defendant acted fraudulently. They also contended that twenty-five (25) years after the death of J.E.C. Lutterodt, the executors named in the Will were not interested in applying for probate and the last surviving Executor, Roland Vroom renounced probate; the 1st and 2nd Plaintiffs who are senior children of the deceased testator also took no steps to apply for L/A with Will Annexed. Desirous of accessing the devices and bequests made to him and his mother in the Will, the 1st Defendant alleged that as a son and grandnephew of the deceased Testator, he applied for L/A with Will Annexed.
The Defendants further contended that at the time the L/A with will Annexed was granted, most of the provisions in the Will pertaining to movables had been rendered irrelevant and the beneficiaries of the immovables had also taken possession and appropriated to themselves the devises that had been made to them; but did not co-operate with the administrators to vest the same in them. They contended that the Elmina plot mentioned in the Will cannot be identified. In response to the Plaintiff's assertions on the Mbrom 27 property, the defendants averred that the Margaret Mensah mentioned therein was their mother and they are her personal representatives. They also admitted their obligation to pay ground rent which they have been paying, but alleged that the beneficiaries of both the main house and the outhouse were to contribute to pay the ground rent and property rate. They denied that the construction which the plaintiffs complained of is illegal and that the land does not form part of the land surrounding the main house devised to the Plaintiffs. The Defendants admitted receipt of only one letter from the Plaintiff's solicitor in which he requested them to stop work on the Mbrom property. They denied receipt of another letter directing them to leave the L/A with Annexed at the registry of the High Court.
Counsel for the Plaintiffs filed a reply on 12/06/2014 subsequent to the initial reply filed on 10/04/2013. It is obvious that this Reply amended the one which the Plaintiffs had earlier filed. Here again, the Plaintiffs denied paragraphs 3,4,8,10,12,13 and 14 of the statement of defence which is the crux of the Defendants case, they reiterated the 2nd Defendant's alleged fraudulent act in applying for the L/A with Will Annexed without prior knowledge and consultation with the head of family and children of the late Joseph Emmanuel Conduah Lutterodt.
The issues for determination are as follows:
Whether or not the Defendants have the right to undertake development of the vacant plot in House Number 27, Mbrom, Kumasi without the knowledge and consent of the Plaintiffs?
Whether or not the Defendants have failed to administer the estate since obtaining grant of Letters of Administration?
Whether or not the Defendants obtained the Letters of Administration with Will Annexed Fraudulently? (an issue arising from the pleadings)
Whether or not the Plaintiff's are entitled to the reliefs sought?
SUBMISSIONS OF COUNSEL FOR THE PLAINTIFFS.
In respect of issue (1), counsel submitted that by the 1st Defendant's admissions during cross-examination, the Defendants were not named in J.E.C. Lutterodt's Will or Codicil as beneficiaries of the Mbrom 27 property. He argued that in the Testator's Will and Codicil, the out- house at Mbrom 27 was devised to Margaret Mensah (1st Defendant's mother) and Anthony Mensah upon certain conditions which the said beneficiaries failed to fulfill; and, more importantly, the Defendants who trace their interest in the said property to the devise made to their mother have not obtained L/A; neither has the out-house been vested in them. Counsel drew the court's attention to the legal position that a beneficiary under a Will cannot deal with the devised property without a registered vesting assent (Conney v Bentum-Williams relied on). To that extent, he argued that the defendants cannot have any right or claim to undertake any personal developmental work on House Number 27, Mbrom-Kumasi.
In respect of issue (2), it was the submission of counsel that since the Defendants conceded on oath that they have failed to administer the estate after obtaining the L/A with Will Annexed in the year 2009, this issue became a non-contested one. He cited and relied on Opoku & Ors (No.2) v Axes Co. Ltd. (No. 2) (2012) 2 SCGLR 1214. Commenting on the Defendants' explanation that the estate has not been administered because of lack of co-operation from the Plaintiffs, counsel argued that since the Defendants are enjoined to administer the entire estate, the alleged lack of co-operation from the Plaintiffs should not be a bar to administering the rest of the estate. He argued further that the Defendants obtained the L/A with Will Annexed with the sole purpose of undertaking the building project they started on the Mbrom 27 property.
His last set of arguments relate to whether or not the Plaintiffs are entitled to their claims. Here, counsel referred to In Re Asante (decd); Asante & Anor v Owusu (1992) 1 GLR 119 where the Supreme Court explained the hierarchy of priority in applying for the grant of L/A towards the Administration of a deceased person's estate, namely: " (i) the surviving spouse; (ii) surviving children; (iii) a surviving mother or father; (iv) the customary successor of the deceased."
Continuing, counsel submitted that even though both Order 66 rule 13 of the High Court (Civil Procedure) Rules, 2004 CI 47 and Order 2 rule 7 of the Probate and Administration Rules, 1991 ( L.I. 1515) deal with priority of grant in terms of death occurring after 1985, notwithstanding that the testator in the instant case died in 1984, the purpose of the rule is equally applicable to the instant case; that is, not to leave out the nuclear members of a testator's family whose stakes are alwayshigher in the administration of his estate. Re Essuman (decd) Essuman & Anor v Teschmaker (1967) GLR 359 was cited to support his argument that a person with a bigger interest in an estate ought to be considered higher in terms of priority in the grant of Letters of Administration. Further, counsel argued that the Defendants have failed to prove by any cogent evidence that the Plaintiffs who are the children of the testator were not interested in applying for L/A to administer their father's estate. The principles of proof stated in Mensah v Fosuhene (2013) 55 GMJ 153; and Majolagbe v Larbi & Ors (1959) GLR 190 & 192 were relied on by counsel to buttress his arguments. And, to show that the Plaintiffs are still interested in being part of the administrators of their late father's estate, counsel submitted that they have prayed this court to revoke the present L/A and to grant same to them as being the major beneficiaries of the estate of the Testator and head of family respectively.
Concluding, counsel commented on the 1st Defendant's claim that he is also a son of the deceased Testator. Counsel made references to a judgment in the probate action commenced in the year 1988 in respect of the Testator's Will and Codicil where Rose Owusu J ( as she then was), expressed an opinion on the 1st defendant's alleged status as a son of the testator. From there, counsel made some remarks on how the Testator, an astute lawyer, described each of the beneficiaries under his Will and Codicil. He argued that whereas the 1st and 2nd Defendants were constantly referred to as his children, the 1st Defendant was described as the Testator's grand-nephew, being the grandson of his late cousin Mina Adwoa Atta Panyin. Counsel stressed that it is highly insincere and disingenuous for the 1st Defendant to accept the bequest made to him in the Will and Codicil, but deny the description given him in the same Will. He invited this court to reject the 1st Defendant's claim that the Testator, J.E.C. Lutterodt, was his father.
SUBMISSIONS OF COUNSEL FOR DEFENDANTS
For the Defendants, counsel elected to address the court starting from the last issue for determination, that is, whether or not the Plaintiffs are entitled to the reliefs sought. To begin with, counsel recounted the evidence on record relating to the probate action by Nelly Yacoba in which the Will and Probate were pronounced valid; the death of two of the executors and the renunciation of probate by the third executor which paved the way for an application for L/A with Will Annexed to be filed. He relied on Order 66 rule 7(3) of CI 47 and then introduced Order 66 rule 12 of CI 47 which deals with order of priority for grant where a deceased leaves a Will. He argued that from the intendment of Order 66 rule 12, where the Executor appointed in a Will refuses to take or renounce probate, any specific legatee or devisee can apply for L/A with Will Annexed. Likewise, any personal representative of a specific legatee or devisee can apply for L/A.
Applying these provisions to the facts of the instant case, it was his submission that the 1st Defendant was specifically mentioned in the Will of the late J.E.C. Lutterodt and that some devises and bequests were made in his favour as can be seen in paragraph 8 (3) (c) and (d) of exhibit "A". In addition, counsel noted that the Testator devised his property numbered plot 6 block (3), Asokwa Residential Area to four persons including the 1st Defendant. With these devises, it is the argument of counsel that the Defendants qualified to apply for L/A with Will Annexed in terms of Order 66 rule 7 (2) of CI 47.
Turning to the particulars of fraud made against the 2nd Defendant, counsel pointed out that from the evidence, particularly, the cross-examination of the 1st Plaintiff, it cannot be true that the head of family as at the year 2009 was not informed about the Defendants intention to apply for L/A with Will Annexed. This is because the 1st Plaintiff clearly demonstrated during cross-examination that he did not even know the head of family as at the year 2009. Hence, it does not lie in the Plaintiffs mouth to say that the head of family was not consulted.
Counsel also rubbished the submission made on behalf of the Plaintiffs that they have a bigger interest in the estate and are therefore the rightful persons to apply for the L/A with will Annexed. His argument on this point is that no evidence whatsoever was led to establish the size of interest of the respective devisees; and, by adding the devises made to the 1st Defendant and that of Anthony Mensah, it cannot be said that a bigger share of the estate of J.E.C. Lutterodt was given to the Plaintiffs.
On the basis of the foregoing, counsel submitted that the Plaintiffs are not entitled to their reliefs (a) and (b) endorsed on their amended writ of summons.
Next, Counsel made closing submissions in respect of "whether or not the defendants have the right to undertake the development of the vacant plot in House. No. 27, Mbrom, Kumasi without the knowledge of the plaintiffs." He pointed out that from the evidence, there is no doubt that there are two structures on the said plot, namely: (i) the two storey building devised to four children of the Testator including 1st and 2nd Plaintiffs; and (ii) the out-house devised to Margaret Mensah alias Esi Mensiwa and Anthony Mensah, subject to some conditions. From the evidence of the 1st Defendant, counsel pointed out that there is an undeveloped land lying behind the outhouse and a stretch of land lying between the two structures. He submitted that on a proper interpretation of the Will and the Codicil, the land lying between the two structures are to be shared between the beneficiaries of the main building and the outhouse on some agreed proportions. Counsel further submitted that where the 1st Defendant was developing and which triggered the instant action does not even from part of the stretch of land between the two existing structures. Rather, it is behind the outhouse which for all intents and purposes should form part of the outhouse devised to the mother and uncle of the 1st defendant respectively , i.e. Margaret Mensah and Anthony Mensah. Thus, the Plaintiffs contention that the said undeveloped portion of the land not specifically mentioned in the Will and Codicil automatically becomes the property of the 1st and 2nd Plaintiffs and two other children of the deceased is a misreading of the Will.
In such a situation, counsel intimated to the court that those undeveloped portions of the land could be said to have fallen into intestacy and per the law on succession existing as at 1984 when J.E.C. Lutterodt died, that intestate property devolved on his customary family of which those given the two storey building are not part. Section2(2) of the Intestate Succession law, 1985 (PNDCL 111) relied on. However, in the interest of justice, counsel submitted that those who were given the two storey building should be given the undeveloped land around it whilst those who were given the outhouse should be made to take the undeveloped land around it.
In respect of the conditions attached to the devise of the outhouse made to the mother and uncle of the 1st Defendant, counsel stressed that the 1st Defendant has led evidence to show that he had been paying the Ground Rent and Property Rates in respect of the Mbrom property as in exhibits 2 series and 3. As for the payment of the amount outstanding to the First Ghana Building Society, counsel's submission was that a car bequeathed to Nelly Yacoba Agyeman and Anthony Mensah in paragraph 8(a) of the Will was sold and the proceeds used to settle that debt upon a suggestion from the 1st Plaintiff. Counsel's position is that the conditions attached to the devise made to Esi Mensiwa (Margaret Mensah) and Anthony Mensah were fulfilled. Granted that the conditions were not fulfilled, counsel re-emphasized that that devise would have lapsed and fallen into intestacy which under the law existing as at 1984 would not have become the property of the Plaintiffs.
Counsel again submitted that even though the 1st Defendant has not obtained L/A in respect of the estate of his deceased mother, by virtue of section 1 of the Administration of Estates Act, 1961 (Act 63), the outhouse Devolved on him as the personal representative of his mother.
Responding to the submissions on the absence of a vesting assent executed in favour of the Defendants, counsel argued that a vesting assent is required if the beneficiaries want to mount an action in court or sell a property, but does not apply to situations where the beneficiaries seek to Develop the property devised to them like the instant case. Conney- Bentum Williams (supra) and Okyere (Deceased) (substituted by) Peprah v Appenteng & Adomaa ( 2012) 1 SCGLR 65 relied on.
Next, counsel made several references to the Will and Codicil (exhibit A) as well as the judgment of Rose Owusu J (as she then was) in the probate action mounted by Nelly Yacoba Agyeman (exhibit 1) and re-echoed the fact that the 1st Defendant is indeed the biological son of the Testator, but the Testator described him the way he did to cover up the embarrassing fact that he had had a child with his own niece.
It is important to reproduce paragraphs 5, 1 and 2 of the testator's last Will and Codicil respectively (exhibit A) as same have become reference points by all the parties to this action and their lawyers. It states:
Paragraph 5 of the Will:
MY HOUSE No. 27 MBROM, KUMASI
I GIVE AND BEQUEATH my said House absolutely to the following persons:
(a) MRS. YACOBA NELLY AGYEMAN, my eldest daughter;
(b) KATE LOVE LUTTERODT, my daughter;
(c) GEORGE AUGUSTUS GERHARDT, my son;
(d) HETTY AUGUSTINA LUTTERODT, my daughter and
(e) My cousin NANA OHEMAA ABENA KUFUA II of Akotobinsin, Elmina, who shall be a mother to my said children mentioned above in addition to her service to my whole maternal family, under the following provisions:
i. The house on the said plot shall not be sold or mortgaged or in any manner alienated but must be kept in good repair and appearance always in remembrance of me.
ii. J.E. MENSAH may be allowed to occupy one (1) room provided that he contributes to the payment of bills and debts affecting the said house;
iii. One room at the basement (preferably the one being occupied by my son George at present) shall be given to my Niece MARGARET MENSAH commonly known as Auntie Esi to enable her to come to the house to keep the grounds clean and tidy as she has been doing hitherto; she must give accommodation to Adwoa Badu and her TWINS in this room to assist her in the general cleaning of the grounds;
iv. One (1) room at the basement may also be given to my grandson Yaw Addai to enable him to assist in keeping watch the House at all times;
v. The rent accruing from the smaller House on the same plot shall be used exclusively for five (5) years after my death in paying the bills and debts on the premises; after that period part of the rent shall be used in developing Nana De Veer's Land at Akotobinsin, Elmina and my proposed " LUTTERODT HALL" on my land as ' ABENA SARIMU', Elmina."
I have already made my LAST WILL AND TESTAMENT dated 14th day of December, 1981 and this is additional to that. That is to say that anything mentioned in this CODICIL should be carried out, if not mentioned in my LAST WILL AND TESTAMENT.
1. I give my 2-storey building situated at Mbrom No. 27 to my four (4)children namely:-YACOBA NELLY LUTTERODT ( alias Mrs. Yacoba Agyeman), KATE LUTTERODT, GEORGE LUTTERODT and HETTY LUTTERODT (Alias Ewura Esi).
The house shall not be sold or mortgaged and shall be kept as residence for all my children and in remembrance of me and my late wife.
2. I have an out-house (small house) on the said plot No. 27 Mbrom which was previously used as my Law Chambers. I give and Bequeath the said house to my nephew ANTHONY MENSAH of Mangoase Night Club/Tema and my niece MARGARET MENSAH ( Alias Esi Mensiwah) on the following conditions:
(a) They must pay the balance of installment to the First Ghana Building Society, Accra.
(b) They must pay the annual ground rents and rates on the said house No. 27 Mbrom.
(c) The rents from the said house shall be paid to my niece MARGARET MENASH (Alias Esi Mensiwah) already mentioned above, who has for several years rendered her devoted and selfless services to me at Mbrom, Kumasi and those sacrifices, with God working through her, lengthened my life.
(d) I hereby order my four (4) children to co-operate with my nephew ANTHONY MENSAH and niece MARGARET MENSAH (alias Esi Mensiwah) respectively in the said bequest.
ISSUE OF WHETHER THE DEFENDANTS OBTAINED THE LETTERS OF ADMINISTRATION WITH WILL ANNEXED FRAUDULENTLY ( an issue arising from the pleadings).
In law, fraud vitiates all and so whenever it is raised, the court must be swift in determining the same. As has been defined in the Dictionary of Law by L.B. Curzon (1998) at page 162, fraud at common law is an:
Intentional deceit. A false representation by the defendant of an existing fact, made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false, with the intention that the plaintiff should act on it, and which results in damage to the plaintiff."
Also, in the case of SA Turqui & Bros v Dahabieh (1987/88) 2 GLR 486, CA, the court made the following statement on what constitutes fraud in law:
"A charge of fraud in law could be taken to be properly made against a party who knowingly or recklessly whether by conduct or words used unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party".
When fraud is alleged in a civil suit, the standard or degree of proof moves from proof on the balance of probabilities to a higher level. And, by section 13(1) of the Evidence Act, 1975 NRCD 323:
"In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt."
Therefore, the Plaintiffs before me who alleged in paragraphs 8 and 9 of their amended statement of claim that the 2nd Defendant acted fraudulently in applying for L/A in respect of the estate of the Testator without informing the children and head of family of the Testator must prove that allegation beyond all reasonable doubt. Any doubts created in the mind of the court on this point will be resolved in favour of the defendants
When the 1st Plaintiff mounted the witness box to give evidence for himself and on behalf of the other Plaintiffs and also under cross-examination, he repeated the assertions made in their amended statement of claim that the 2nd Defendant applied for the L/A "necodemously" without notice to the children and head of family of the Testator. When Confronted that the head of family as at 2009 was informed after the remaining executor had renounced probate, the 1st Plaintiff said he was not aware and could not recollect who the head of family was in the year 2009. The question is, if he did not know who the head of family was as at the year 2009, how can he positively say that the head of family was not informed. In other words, what is his source of information? When the 1st Defendant mounted the witness box, he gave the name of the head of family of the Testator in the year 2009 whom they notified as Uncle Kweku Esibua. Yet, the 1st Plaintiff could not introduce any cogent evidence to contradict this fact. It is not in dispute that the Defendants applied for and obtained the L/A with Will Annexed in the year 2009. If the 1st Plaintiff cannot even recollect who the head of family was in the year 2009, then there is a real doubt in the Plaintiffs evidence that the head of family in the year 2009 had no knowledge of the defendants actions in issue.
On the question of notice to the children or other beneficiaries, I will resort to Order 66 rule 10 of CI 47 which provides thus:
Notice of grant
10. (1) The Court shall not allow any grant of letters of administration to issue unless after the grant, notice of it is given for a period of not less than twenty one days, or such other period as the Court may order in the following manner
(a) in the Court where the application for grant was made;
(b) in any public place within the jurisdiction of the Court where it is likely that the notice will be seen by those who may have an interest in the estate; and
(c) at the last known place of abode of the deceased in respect of whose estate the grant has been made.
(3) The Court shall not allow any grant of probate or letters of administration to issue until all inquiries which it sees fit to make have been answered to its satisfaction.
(4) The Court shall afford as great a facility, as possible for obtaining probate or letters of administration as is consistent with due regard to the prevention of error and fraud."
The 1st Defendant said due process was followed in obtaining the L/A. From this piece of evidence, a reasonable inference can be made that the requisite notices were put up, else the Honourable court would not have granted it. Whilst the 1st Plaintiff was being cross-examined, the following discourse took place between him and counsel for the Defendants on 19/04/2016:
Q. There was nothing fraudulent about the Defendants beneficiaries of the estate, applying for L/A with will Annexed?
A. We say it is because it was necodemously done or arranged. He ought to have informed the children and head of family at Akotobinsin, Elmina.
Q. After the court had granted the L/A, an order w