Abu and Another Vrs Hadiza And Others (H1/204/2004) [2004] GHACA 33 (10 December 2004);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE,

IN THE COURT OF APPEAL SITTING AT ACCRA

ON THE 10TH DAY OF DECEMBER 2004.

 

H1/204/2004

 

CORAM  -  S.T. FARKYE, JA [PRESIDING]

                    J.B. AKAMBA, JA

                    R. APALOO, JA

 

ZAINABU ALI @ ABU & 1 OR.       …        PLTS/APPLTS

              V E R S U S

HAJIA HADIZA & 4 ORS.           …        DFTS/RESPTS

                      =======================================

                                                J  U  D  G  M  E  N  T

                      =======================================

J.B. AKAMBA, J.A. -  This is an interlocutory appeal from the ruling of Gyaesayor J,  delivered on 5th November 2003 at the High Court Ho.  The appellant assails the court’s ruling on five grounds namely:

  1. The learned judge’s refusal to order a full inventory of the deceased’s estate

contrary to law and the rules of procedure.

  1. The learned judge erred in ruling that an order for inventory of all property in

dispute had been made when in fact no such order had been made.

  1. The learned judge failed to exercise his discretion judiciously by refusing to

restrain the defendants from dealing with the property in dispute during the pendency of the suit.

  1. The learned trial judge erred in law by failing to order the defendants as

Administrators to render accounts to the plaintiffs.

  1. The learned trial judge’s refusal to order the defendants to produce all documents

Of title on the six (6) houses and the four (4)  vehicles of the deceased was contrary to the rules of procedure.

The background facts to this case will certainly highlight and help understand the competing claims.  The deceased Alhaji Ali Gariba, until his demise sometime in early 2000 at Ho was a Fulani cattle magnate in the Volta Region of Ghana.  He owned kraals in a number of villages in the Volta Region.  He was also acclaimed to own cattle at Nkawkaw in the Eastern Region which is one of the points of contention between the parties in this suit.  The late Alhaji Ali Gariba  who originally hailed from Northern Nigeria resettled in the Volta Region over six decades ago where he acquired the properties making his estate.  Upon his death, the distribution of his estate became the subject of grave confusion and controversy amongst members of his family and other interest groups.  In the main the controversy engulfed the wives, children, in-laws and friends of the late Alhaji Ali Gariba not only as to the extent of the estate and the applicable law for the distribution but also as to who was entitled to what.  Thus, part of the present controversy is whether being  a Muslim and originating from Northern Nigeria, the distribution of his estate ought to be governed by ‘sharia’ rather than Ghanaian law.  Certainly that is one of the issues to be resolved by the trial High Court and not for this court for the moment.  The issue for determination by this court arose in the course of hearing the substantive case when the plaintiff/applicant [appellant herein] moved a motion seeking certain interlocutory orders.  The said motion was filed on 7th March 2003.  The appellant herein sought per the motion an order directing the defendants [respondent herein] to deposit the letters of administration dated 14th December 2001 at the Registry.  They also sought an order for the appointment of the Registrar or any other person as the court considers fit to take FULL INVENTORY of the deceased’s estate including any property in dispute.  The applicant’s last prayer was for an order to restrain the defendants from dealing with any property of the deceased including the property in dispute by sale or otherwise pending the final determination of the suit.

       The  High Court had no difficulty in ordering that the certificate issued to the Defendants [respondents herein] be deposited with the Registrar of the court since it was a ‘legitimate demand.’  As regards the prayer for the inventory, the court said it was not in a position at that stage of the proceedings to grant such an order especially in view of the court’s notes filed on4th November 2002 following an earlier such order.  The Registrar’s report had stated that the appellants had made it impossible for a full inventory of the cattle to be taken.  Besides, the evidence before the court showed that the appellants [plaintiffs] and the respondents [defendants] benefited from the sharing of the cows and the appellants still had theirs in their possession.  The court reasoned that it would not be fair to allow the appellants to sell theirs while the respondents are restrained from selling what they had.  The court ordered that the vehicles should not be sold or disposed of in any way.  The documents on the vehicles should also be deposited with the Registrar of the court.  In addition it was ordered that the houses should not be sold or disposed of.

        The appellant is dissatisfied with the aforementioned orders of the court contained in its ruling of 5/11/2003, not least, the portion that refused to order a full inventory of the estate.  Grounds (i), (ii) and (iv)  of appeal are closely linked hence I will take them together.  Undoubtedly the suit before the court is a probate action since probate is defined to include an action for the grant or revocation of letters of administration.  Order 6 of LI 1515 is quite apposite on this point wherein it provides as follows:  “Order 6, 1.  In this Order “probate action” means an action for the grant of probate of the will or letters of administration of the estate of a deceased person or for the revocation of such grant of for judgment pronouncing for or against the validity of an alleged will, being a proceeding which is contentious or common form probate business.”  It is important to note that the second relief claimed in the writ of summons is for an order for the revocation of the grant of the letters of administration dated 14th December 2001 to the 1st, 2nd and 3rd Defendants on grounds of fraud.  The appellants’ third relief on the writ of summons is for an order for the administration of the estate of the deceased under the direction of the court.  The definition of administration action under Order 7 of the LI 1515 brings this matter properly under administrative action.  The order enacts:  “1.  In this Order “administration action” means and action for the administration under the direction of the court of the estate of a deceased person or for the execution under the direction of a trust.”

It is therefore quite in place to describe the action before the court below as both probate and administrative action.  Consequently a party may move the court for an order directing the personal representative, which expression includes the administrator of the deceased person, to exhibit on oath in the court a true and perfect inventory and account of the estate of the deceased, and the court shall have power to grant same under S. 70 of Act 63.  It is thus obvious that counsel for the appellant failed to appreciate the distinctive import of S. 70 of Act 63 when he relied on same to demand that the court should ‘appoint the Registrar of the court or any other person as the court considers fit to take full inventory of the deceased’s estate including any property in dispute.’  The personal representative has onerous duties, rights and obligations under the law which demands that he should act honestly, sincerely and in accordance with the law at all times.  It is in line with this that S. 70 demands of him an exhibition on oath a true and perfect inventory and account of the estate of the deceased in court.  Since the appellants relied on S. 70 of Act 63 to ground their application, the court could only order the respondents to exhibit on oath a true and perfect inventory of the deceased’s estate.  If the judge had given due consideration to the application vis a vis S. 70, he would have had no difficulty in ordering the respondent to exhibit a true and perfect inventory and account on oath of the estate of the deceased.  The inventory should include all that was said to have been gifted to 2nd Defendant since the same is part of the present dispute and any other items elsewhere and subject of the present controversy.  It is equally important to observe that what appears to be a failure on the part of the court to order a full inventory by the registrar did not lie at the doorsteps of the court as much as the parties to the present dispute.  An inventory as envisaged at least by the appellant and no doubt the respondents as well is founded upon disclosure and cooperation failing which nothing meaningful can be achieved. It is not enough to give an estimate without leading the court to the items and furnishing proof that they are indeed part of the estate.  It is equally trite to remind ourselves that whoever alleges a fact has the burden of persuasion.  See S. 14 of NRCD 323 which enacts:  “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.”   Reliance on S. 70 of Act 63 has shifted the burden to the respondents.  The implications should be obvious to the parties especially the respondents.  It is my candid view that evidence before the trial court warranted the grant of an order pursuant to S. 70 of Act 63 for the respondents to exhibit in the court, a full, true and perfect inventory and account of the estate of the late Alhaji Ali Gariba.  We therefore allow the appeal on this combined ground and order accordingly.  The full inventory and accounts should be filed in the court below within ten days from today.

         The next ground to be resolved is that which sates that the “learned judge failed to exercise his discretion judiciously by refusing to restrain the defendants from dealing with the property in dispute during the pendency of the suit.”  This ground of appeal does not provide much help for its resolution because there is no indication which property is in issue.  Does the complaint refer to the whole estate or part of it, and if part, which part?  From the evidence so far adduced in court the estate is comprised of houses (whose number is disputed), cars and cattle (whose number is also disputed).  The trial judge made the following orders:

In respect of the houses it is obvious that they cannot be sold before the determination of the case.  None of the parties has the power to dispose of any of the houses by way of sale, gift, pledge, etc.  the evidence also shows that the plaintiff and the defendants benefited from the sharing of the cows and the plaintiffs still have theirs in their possession.  It would not therefore be fair to allow the plaintiffs to sell theirs while defendants are retrained from selling what they had.  Indeed it has come before this court that the plaintiffs have sold some of their cows and have taken the rest to Akatsi.  The vehicles also not to be sold or disposed off in any other way.  I however, direct that the documents in respect of the vehicles be deposited with the Registrar of the court.”

        It appears to me that the trial judge adequately considered the main items comprised in the estate and dealt with them within the limited evidence before him.  From the foregoing ruling of the court, it is obvious that the court did indeed restrain the respondents from dealing as they pleased with the property in dispute.  The appellants are not suggesting that the trial judge’s dealing on the issue fell short of their expectations or else they would have said so by plain clear words.  They have not adduced any cogent reasons before this court for us to disturb the trial court’s exercise of its discretion which we find properly exercised.  This ground of appeal accordingly fails.

        The last ground of appeal impugns the trial judge’s refusal to order the defendants to produce all documents of title on the six houses and the four vehicle

Of the deceased as being contrary to the rules of procedure.  The appellant’s counsel in his written submission claims that the trial judge made a partial grant of their application when he ordered that documents on the vehicles be deposited at the Registry.  Counsel also stated that the court failed to consider the application in respect of the immovable properties.  Counsel’s criticism that the trial court failed to consider their application about the immovable properties is not borne out by the ruling.  Quoted below is the relevant portion of the ruling for emphasis.  This is what it states:-  “None of the parties has the power to dispose of any of the houses by way of sale, gift, pledge etc.”  If this order of the court amounts to a failure to consider the application, then one wonders what would.  The other important segment of the court’s ruling dealing specifically with the vehicles (which are movables and not immovable) reads:  “The vehicles also not to be sold or disposed off in any other way.  I however direct that the documents in respect of the vehicles be deposited with the Registrar of the court.”  Certainly the orders concerning the vehicles are proper and cannot be faulted.

In any case we think that the documents of title of the houses should also be deposited with the Registrar pending the outcome of the suit.  We accordingly so order.  Save this addition, the orders of the court pertaining to both movables and immovables were adequate and we find no merit in this ground of appeal. We make no order as to costs.

 

 

                                                                                    J.B. AKAMBA

                                                                                COURT OF APPEAL

 

 

 

I agree.                                                                                      S.T. FARKYE

                                                                                             COURT OF APPEAL

 

 

 

I  also agree.                                                                            R. APALOO

                                                                                           COURT OF APPEAL

 

  

COUNSEL  -  MOHAMMED SAHNOON FOR APPELLANTS.

                        ERNEST GAEWU FOR THE RESPONDENT.

 

 

~eb~