ADOM VRS. MENSAH (GJ/0013/2020) [2025] GHAHC 31 (6 February 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COMMERCIAL DIVISION (COURT 1) OF THE HIGH COURT OF JUSTICE ACCRA, HELD ON THURSDAY THE 6TH DAY OF FEBRUARY, 2025 BEFORE HER LADYSHIP JUSTICE SHEILA MINTA SUIT NO. GJ/0013/2020 FRANCIS ADOM - PLAINTIFF VRS. FELIX KYEI MENSAH - DEFENDANT ------------------------------------------------------------------------------------------------ JUDGMENT The Plaintiff who is ordinarily resident in London, on 2nd October 2019 issued a Writ of Summons and a Statement of Claim against his step son for the following reliefs:- i. Declaration of ownership of four-bedroom house situates at Oduponkpehe plot No. 63 Kasoa. ii. Recovery of possession of the said house from the Defendant. iii. Perpetual injunction on the Defendant, agent and assigns from having anything to do with the said property. iv. An order directed to the Defendant to render account for the rent received from the tenants for the past number of years of years. The Defendant also filed a Statement of Defence and Counterclaimed against the Plaintiff as follows:- P age 1 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH 1. An order directed at the Plaintiff to declare and to render accounts of all properties howsoever found acquired by the Plaintiff either alone or together with Defendant’s late mother Margaret Donkor during the subsistence of their marriage. 2. An order directed at the Plaintiff that fifty percent of any such properties referred to in Relief 1 above including house numbered 63, Odupongkpehe-Kasoa should form part of the estate of the late Margaret Donkor to be shared according to the Intestate Succession Law, PNDC Law 111. 3. An order directed at the Plaintiff that of his share in the proceeds in respect of the Glory Senior High School at Kasoa should form part of the estate of the late Margaret Donkor to be shared according to the intestate Succession Law, PNDC Law 111 and further order for Plaintiff to render accounts of the said fifty percent. 4. An order directed at the Plaintiff that any pension, bank balances, investments of the late Margaret Donkor taken or about to be taken by the Plaintiff should be disclosed by the Plaintiff for same to be shared according to the Intestate Succession Law, PNDC Law 111. 5. Any other orders that this Court would deem fit. 6. Cost and legal Expenses in favour of Defendant. SUMMARY OF THE PARTIES CASES The Plaintiff is the widower of the Defendant’s late mother who were married for some 22 years. The Defendant’s mother died intestate on 27th July 2010. During the course of the marriage between the Plaintiff and Defendant’s late mother, the property situated at Odupongkpehe-Kasoa was jointly acquired and registered in their joint names which has not been disputed by the Defendant Counter-claiming Plaintiff. The Defendant has been in occupation of the said property since acquisition by the couple as the Plaintiff and his mother were all ordinarily resident in the UK until her death. The Defendant per his Counterclaim admitted that 50% of the said property is part of the assets of his mother P age 2 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH that has fallen under intestacy and ought to be distributed in accordance with the Intestate Succession Law PNDC Law 111. PLAINTIFF’S CASE The Plaintiff’s case is that upon his return to Ghana after the death of his wife his stepson the Defendant herein, refused to allow him access to his home being the jointly-acquired Oduponkpehe-Kasoa property, with Defendant alleging that he had obtained Letters of Administration to administer his mother’s estate. The Plaintiff stated that he reported the matter to the police which yielded no results hence he had to spend his holidays in a hotel in Accra. Plaintiff further alleged that the Defendant had rented portions of the said house without proper account of proceeds of rent to him as a co-owner of the Odupongkpehe- Kasoa property hence his claim as endorsed on the Writ of Summons. DEFENDANT’S CASE The Defendant’s case is that as the only son of her mother he was entitled to a share of his mother’s properties in accordance with the law on intestate succession. According to the Defendant, apart from the Kasoa house his mother had interest in a school, Glory Senior High School which had been sold and the proceeds kept by only the Plaintiff without giving his wife’s share to the family members as required by law. Again, Defendant alleged that the Plaintiff has not accounted for the portion of his mother’s assets in the United Kingdom including her entitlements. That after the funeral of his mother, his family members asked the Plaintiff to apply for Letters of Administration to administer the estate of his mother but he refused and tendered a hand-written letter Exhibit “1” which is unsigned and undated, in support of this claim. There is no evidence of receipt of the said Exhibit “1” by the Plaintiff. Defendant averred that it was rather the Plaintiff who sneaked into the Kasoa house and broke into same and tendered Exhibit “2 Series” being pictures of gates with padlocks. The Defendant admitted that he had obtained Letters of Administration to administer the estate of his mother and also counterclaimed against the Plaintiff the reliefs stated above. P age 3 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH ISSUES SET DOWN FOR TRIAL 1. Whether or not the Plaintiff constructed the house complained of. 2. Whether or not the building on Plot No. 63 was put up by both Plaintiff and the late Margaret Donkor. 3. Whether or not the Defendant, the step son has a legal right to sack the Plaintiff from the house. 4. Whether or not the Defendant has taken full control of the building on Plot No. 63 and other properties and claiming ownership of same. 5. Whether or not the Plaintiff has appropriated the interest of the late Margaret Donkor in a house in London, interest in Glory Senior High School sold and proceeds kept by the Plaintiff to the exclusion of the Defendant and other beneficiaries of the Estate of the late Margaret Donkor. 6. Whether or not the purported letters of administration is valid without the consent of the Plaintiff. Both parties filed their respective Witness Statements but the Plaintiff failed to prosecute his claim despite several adjournments to enable him do so and his Counsel informed the Court that he is out of the jurisdiction. The Defendant therefore prosecuted his Counterclaim. ANALYSIS Litigation in court of law is a conventional warfare, comprising substance and procedure. Enforcement of substantive rights may be defeated by reason of the employment or wrong procedure or failure to follow the appropriate procedure. From the pleadings and evidence before the Court, it is not in doubt that Plot No. 63 was jointly acquired by both Plaintiff and Margaret Donkor and therefore there is no need to discuss issues 1 and 2. See Hammond vrs Amuah [1991]1 GLR 89, where the court stated thus:- “The law is quite settled that where a party makes an averment and that averment is not denied no issue P age 4 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH is joined and no evidence need to be led on that averment.” Plaintiff in his paragraph 6 and 8 of the Statement of Claim states as follows:- “6. The Plaintiff together with the wife, acquired, a piece of land from Nii Odupong Awushie Tetteh II, Chief of Odupong-kpehe Ofaakoor and registered same in their joint names, with Land Registration no. LVB/CR/1771A/2003 at the Lands Commission Cape Coast. 8. The Plaintiff says that, after acquiring the land in the 1999, but registered it in the joint names of the Plaintiff and his deceased wife, Margaret Donkor and putting up the four-bedroom house on the land, they allowed the Defendants to live in the house, since he was part of the family.” These averments were all admitted by the Defendant in his Statement of Defence and indeed averred in paragraph 5 of his Witness Statement as follows:- “5. My mother and the Plaintiff through their joint efforts built the house on Plot No. 63 the subject matter among others of this suit subsequent to which I was asked by them to live in the said house which at the time was uncompleted. I say that I was also allowed to rent part of the house and that the Plaintiff anytime he came to Ghana slept outside this house.” Clearly issues 1 and 2 are non-issues and the Court hereby makes a finding that the four- bedroom house situate at Oduponkpehing Plot No. 63 Kasoa is the joint property of the Plaintiff and the deceased wife. A further finding is made that the Plaintiff and the Defendant are beneficiaries in the 50% share of the late wife in the said property. As co- beneficiaries, until the property is properly partitioned for one beneficiary to buy the others out, one party cannot deny the other access to the property. Under PNDC Law 111 the spouse and children inherit the majority of the estate of the deceased. Order 66 rule 13 of CI 47, High Court Civil Procedure Rules of 2004 states:- P age 5 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH “Where a person dies intestate on or after 14th June, 1985, the persons who have beneficial interest in the estate of the deceased shall be entitled to a grant of letters of administration in the following order of priority a) Any surviving spouse; b) Any surviving children; c) Any surviving parents; d) The customary successor of the deceased.” The Plaintiff being a spouse is in the category of those prioritized by law for the grant of letters of administration but the testimony of the Defendant is that Plaintiff failed to apply for same. The Plaintiff has the right to apply to the court to have him joined as a co- Administrator of the Estate of Margaret Donkor if he thinks his interest would not be adequately protected. I will proceed to discuss issues 3 to 6 together being guided by the decision in Fidelity Investment Advisors vrs. Aboagye Atta [2003-2004]2 GLR 188, where the Court held that what issues are relevant and essential was a matter of law entirely for the judge to determine the case. See also the case of Fatal vrs. Wolley [2013-14]2 SCGLR 1070, where Georgina Wood JSC (as she then was) stated thus; “Thus, if in the course of the hearing, an agreed issue is found to be irrelevant, or moot or even not germane to the action under trial, there is not duty cast upon the court to receive and adjudicate upon it.” The Plaintiff in his Statement of Claim averred that the Defendant had obtained Letters of Administration to administer the estate of Margaret Donkor. I don’t have any reason to doubt that Letters of Administration has been obtained by some Administrators one of whom is the Plaintiff. And if Letters of Administration had been obtained and same not challenged, caveated or set aside, then the proper party to the Counterclaim in this suit ought to be by the Defendant and the Co-administrator stated in the Letters of Administration as Gloria Donkor. The Defendant’s reliefs in the Counterclaim being P age 6 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH reliefs borne out of the estate administration, he cannot maintain his claim without his Counterclaim being instituted with the said Gloria Donkor and in a representative capacity. Per Sections 1 and 2 of the Administration of Estates Act 1961 (Act 63) the movable and immovable property of a deceased devolves on her personal representatives, in this case being the administrators of the estate of the deceased. They are the person who may pursue claims in respect of the estate of the deceased. Order 66 Rule 47(1) of C.I 47 provides that: - “All the executors or administrators of the estate or trustees of a trust, to which an action referred to in rule 44 relates, shall be parties to the action, and where the action is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff shall be made a defendant.” This was emphasized in the case of Alex Adotey Mingle & Anor. vrs. Philip Yovonoo & Ors [2019] JELR 107040 (CA). Also, in the case of John Eliklim Nyatuame vrs. Jerry and Anor [2017] JELR 108137 (HC), the court held that:- “The Letters of Administration however clearly stated that it was issued to John Elikplim Nyatuame and Elizabeth Fiati. The law is that one person alone cannot bring this action without the other. On all the processes filed however, nowhere has Elizabeth Fiati been mentioned or her consent sought. Order 66 r 47(1) of C.I. 47 states that all the administrators must be parties to the action and this instant suit has not complied with the rule.” On the basis of the above authority, the Counterclaim of the Defendant should not have been entertained. But what about his defence to the Plaintiff’s claim? The pleadings raised by the Plaintiff against the Defendant specifically could have been maintained against him as a party but in view of the fact that to his knowledge Administrators have been appointed regarding the estate of his late wife and co-owner of the Plot No. 63 Kasoa property, his action too suffers from the same capacity challenges. P age 7 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH To the extent explained above, the Plaintiff’s Writ against the Defendant is therefore defective. Issues 3 to 6 are accordingly moot. I am therefore unable to grant the Defendant his reliefs against the Plaintiff for this simple reason even though the Plaintiff did not appear to prosecute his claim. CONCLUSION As stated above both parties are making claims against each other in an administration matter regarding the estate of Margaret Donkor and the matter ought to have been instituted with the Administrators of the Estate of Margaret Donkor as parties, be they Plaintiffs or Defendants/ Counterclaimants. I cannot grant the Defendant’s reliefs on the ground that the mode in which same was instituted is defective in law. I however make the following findings as a guide to the parties. 1. This is a family matter that the Court would entreat the parties to settle as the Defendant admitted that Plaintiff has 50% interest in Plot No. 63. 2. The Plaintiff being the spouse of the Margaret Donkor (deceased) ought to have been joined as co-administrator and the Plaintiff could take steps to correct that if he strongly believes that this could help in protecting his interest. 3. If the Defendant seriously want to prosecute his claim, he has to institute the action not in his personal capacity but by the administrators of the estate of Margaret Donkor. Both parties to bear the cost of this litigation. (SGD.) SHEILA MINTA, J. JUSTICE OF THE HIGH COURT REPRESENTATIONS P age 8 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH PARTIES: PLAINTIFF – ABSENT DEFENDANT – PRESENT COUNSEL: BOTH COUNSEL ABSENT AUTHORITIES: 1. HAMMOND VRS AMUAH [1991]1 GLR 89 2. FIDELITY INVESTMENT ADVISORS VRS. ABOAGYE ATTA [2003-2004]2 GLR 188 3. FATAL VRS. WOLLEY [2013-14]2 SCGLR 1070 4. ALEX ADOTEY MINGLE & ANOR. VRS. PHILIP YOVONOO & ORS [2019] JELR 107040 (CA) 5. JOHN ELIKLIM NYATUAME VRS. JERRY AND ANOR [2017] JELR 108137 (HC) 6. INTESTATE SUCCESSION LAW PNDC LAW 111 7. SECTIONS 1 AND 2 OF THE ADMINISTRATION OF ESTATES ACT 1961 (ACT 63) P age 9 | 9 SUIT NO. GJ/0013/2020 – FRANCIS ADOM VRS. FELIX KYEI MENSAH