BRACE VRS. BRACE (PA/0538/2024) [2024] GHAHC 483 (1 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE PROBATE AND ADMINISTRATION DIVISION I HELD IN ACCRA ON FRIDAY THE 1ST DAY OF NOVEMBER 2024 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON (MRS), JUSTICE OF THE HIGH COURT ---------------------------------------------------------------------------------------------------------------- SUIT NO: PA/0538/2024 ROSELYN NYANKE BRACE } (Suing as an Executor of the Estate } Of Emmanuel Kwesi Brace (deceased) } …Plaintiff H/No. 21 Pawpaw Street } East Legon, Accra } Vs EMMANUEL BRACE } (being sued as an Executor of the Estate } Of Emmanuel Kwesi Brace (deceased) } …Defendant H/No. 21 Pawpaw Street } East Legon, Accra } -------------------------------------------------------------------------------------------------------------------- PARTIES: PLAINTIFF PRESENT DEFENDANT ABSENT COUNSEL: GLENN CHRIS-SAMED HOLDING BRIEF FOR DR. ALEXANDER AMANKWAA FOR THE PLAINTIFF 1 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT ============================================================================== JUDGEMENT ============================================================================== [1] Introduction The Plaintiff/Applicant issued a Writ of Summons with an accompanying Statement of Claim against the Defendant/Respondent on 9th April 2024 for the following reliefs: a. “A declaration that the Defendant by his conduct has renounced. b. A restraining order directed at the Defendant, his servants, agents, privies whomsoever or howsoever manner from dealing with H/No. 112 Freetown Avenue, East Legon and doing any unlawful act in House No. 21 Pawpaw Street, East Legon . c. An order directed at the Defendant to grant access to and hand over the keys to H/No 112 Freetown Avenue, East Legon. d. An order directed at the Defendant to account for the building items he sold, namely the 60 PPL pipes, the 12-door frames and the 8 doors. e. General Damages f. Costs inclusive of solicitor’s fees. The Defendant/Respondent was served with the Writ of Summons and Statement of Claim and he did not enter appearance. Each step of the Court proceeding the Defendant was served with hearing notice but failed to turn up in Court. [2] The Case of Plaintiff It is the case of the Plaintiff that the Defendant together with Sheretha Nancy Brace and herself were appointed as Executors and Trustees of the Last Will and Testament of the late Emmanuel Kwesi Brace dated 15th November 2018. The deceased died on 22nd September 2021. The Plaintiff pleaded that the Testator made a Will dated 15th November 2018. 2 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT According to the Plaintiff the Testator gave his two landed properties in the Will to the Plaintiff, Defendant, Sheretah Nancy Brace and one Geraldine Miriam Brace all children of the deceased Emmanuel Kwesi Brace. The devised properties are as follows: - House No. 21 Pawpaw Street, East Legon and House NO. 112 Freetown Avenue, East Legon. It is the further case of the Plaintiff that the two properties were devised to the four children of the deceased subject to the following instructions: a. “That the Plaintiff, the Defendant, Sheretha Nancy Brace and Geraldine Mariam Brace were to make adequate provision for the maintenance of their mother and wife of the Testator, Rosemary Ajeley Agyei, from the rents from the estate until she remarries, enter into another romantic relationship or dies b. That the widow, Rosemary Ajeley Agyei was to remain in the residential property, House No. 21 Pawpaw Street, East Legon, for her lifetime. However, she was to give vacant possession of the matrimonial home to the four children if she remarried. c. That the Plaintiff was to manage all the properties in trust for her mother and siblings during her mother’s lifetime.” It is the case of the Plaintiff that after the burial of the deceased she sought the cooperation of the other Executors to apply for probate to administer the Will however the Defendant for no explainable reason showed no interest in applying for probate. The Plaintiff testifying per her adopted witness statement stated as follows: “After the funeral rites were completed, I requested the Defendant’s cooperation to apply for probate to administer the Estate of our late Father, but the defendant vehemently refused and stated that he did not care about the application for probate nor the outcome when the probate was granted. With the cooperation of the third executor Sheretha Nancy Brace who was outside the 3 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT jurisdiction, the Will was admitted to probate and administration of the property was granted me on 12th December 2022 in the High Court, Accra, as annexed above as Appendix A.” It is the further testimony of the Plaintiff that in the bid to effect the instructions in the deceased Last Will and Testament and administer the estate of the deceased she has been prevented from renting out House No. 112 Freetown Avenue by the Defendant who earlier stated that he did not want to have anything to do with the grant of probate and its outcome. The Plaintiff testified as follows “The Defendant has taken his unlawful conduct to unimaginable heights by preventing the beneficiaries from accessing the rental property, threatening all who venture to even go near the rental property. The Defendant has repeatedly driven away prospective tenants who attempted to enter and inspect the property, and torn down several banners that were placed on the property to advertise for tenants. The Defendant has unlawfully looked up the rental property with industrial grade padlock and has kept the keys, effectively barring the Plaintiff and the other beneficiaries from accessing or dealing with the rental property, annexed and marked as Exhibit B series are photos of evidence in support with a close- up photo showing the gate shut from outside with the industrial-grade padlock.” It is the further case of the Plaintiff that the Defendant in unprovoked, violent fits has destroyed doors and floor tiles, disconnected the TV and taken away the gas cylinders, forcing his family members to use coal pot to cook their meals. The Plaintiff states as follows: “The Defendant’s unreasonable and violent conduct has endangered the security of the beneficiaries who live in the residential property. The Defendant leaves the house as he pleases, returns very late and has prevented anyone from locking the gate. The Defendant’s violent conduct at home has effectively barred the Plaintiff and other beneficiaries from even accessing communal utilities in the house out of fear and intimidation. Despite the presence of a dining area, the Plaintiff and other beneficiaries are forced to eat in their rooms.” 4 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT It is the further case of the Plaintiff that the Defendant’s conduct has obstructed peace at home. “He has vowed to cause chaos and he has threatened to drive the Plaintiff and other beneficiaries out of the residential property by December 2024. The Defendant has held the beneficiaries hostage emotionally, psychologically and financially.” [3] Failure of the Defendant to participate in the proceedings The Defendant was served with the Writ of Summons and Statement of Claim and on 17th April 2024 at 2.00pm per the affidavit of service at his residence at East Legon Pawpaw Street, Accra. There is no proof on the Court’s docket that the Defendant has entered appearance. On 10th July 2024 the matter was set down for trial after the Court was satisfied that the Defendant had been served with the notice of trial. The Court ordered the Court Notes for 10th July 2024 as well as hearing notice for the next adjourned date to be served on the Defendant. There is proof on the Court’s docket that on 8th October 2024 at 2.30pm the Defendant was served with the Court notes, hearing notice for Case Management Conference/trial and the Plaintiff’s witness statements. This Court upon proof that the Defendant had been served with the hearing notice, Court Notes, etc on 10th October 2024 at the designated time conducted the Case Management Conference. The trial started and concluded on the same day. Once again the Defendant was served with hearing notice for today that Judgment is to be delivered. There is proof of service dated 28th October 2024 that the Defendant was served with the court notes and hearing notice on 26th October 2024 at 11.56 am at his residence at East Legon. The 5 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT Defendant though served with the hearing notice/Court Notes has failed to turn up in Court today. The Learned Author S. Kwami Tetteh in his seminal book1 states as follows: “In Gyambiby v Gyambiby, [1961] GLR 88, SC the defendant applied for an adjournment in the Buem Krachi Native Appeal Court but defiantly warned the court that he would not appear except on the adjourned date that he had suggested. The court did not accede to the requested date and the applicant absented himself from the trial. He then applied to set aside the judgment against him under section 51 of the Native Courts (Colony) Ordinance Cap 98 (1951 Rev), which empowered the court to set aside its judgment where the applicant had “not appeared” at the hearing. The Supreme Court held that the judgment was not exparte since the defendant was present when the case was adjourned and therefore aware of the hearing date. Therefore the section did not apply. Their Lordships’ holding that the provision did not apply implied that, in the view of the court, the applicant had appeared at the hearing although the court had found that he “chose to be absent” from the trial. Obviously, the applicant’s contumelious conduct disentitled him to a favourable ruling but the court appeared to have confused the merits of the application with the issue whether the judgment was exparte. The right to a fair hearing in litigation must not be abused. In Newswatch Communications Ltd v Atta, (2006) 1 All NLR 211 at 224 the Federal Supreme Court of Nigeria, per Tobi JSC held: “The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriageway, in the context of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That would not be justice…It is the duty of the Court to create the atmosphere or environment for a fair hearing of a 1 S. Kwami Tetteh, Civil Procedure, A Practical Approach pages 805 to 807 6 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the Court and Counsel must not instigate his client to accuse the court of denying him fair hearing. A trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party. At that stage, the trial Judge will, and rightly too for that matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his doorsteps by the trial judge cannot complain that he was denied fair hearing. Such is the situation I see in this appeal. The fair hearing principle formerly entrenched in section 33 of the 1979 Constitution, and now section 36 of the 1999 Constitution, is not for the weakling, the slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrongdoing even when such so-called wrongdoing is, as a matter of fact, propelled or instigated by the party, through his Counsel.” Back home, the Supreme Court of Ghana pronounced: “A person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his or her own decision to boycott proceedings cannot later complain that the proceedings have proceeded without hearing him or her and then plead in aid, the audi alteram partem rule.2” 2 Republic v High Court (Human Rights Division) Accra, ex parte Akita [2010] SCGLR 374 at 384, per Brobbey JSC. 7 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT Also that: “A party who disables himself or herself from being heard in any proceedings cannot later turn round and accuse an adjudicator of having breached the rules of natural justice.3” It is trite learning that a person who had an opportunity to be heard but deliberately spurned it to satisfy his decision to boycott proceedings could not later complain of any procedural irregularity as the party would be deemed to have waived any irregularity. See the following cases: Republic v High Court (Human Right Division), Accra, Ex Parte Akita (Mancell -Egala & Attorney-General Interested Party) [2010] SCGLR 372 at 384 Agbewole vs Agbodogbey [2012] 44 GMJ 124 CA at page 146 per Kusi Appiah JA Republic v Fast Track High Court, Accra Ex Parte State Housing Company Ltd [2009] 24 MLRG 163 SC per Wood CJ (as she then was) Mesdames F.P. Cudjoe & Ors v Harry Agyekum [2011] 38 GMJ 1 CA I shall therefore proceed to deliver the Judgment. [3.1] Case Management Conference After setting down the above issues, the Court ordered the Plaintiff to file her witness statements and attach all documents she intended to rely on. The Plaintiff duly complied and after the mandatory Case Management Conference trial commenced. The Plaintiff testified and called no witness in support of her case. The Plaintiff’s Counsel filed his written address on 23rd October 2024. [4] Standard of Proof, Burden of Proof and Persuasion 3 S. Kwami Tetteh, Civil Procedure, A Practical Approach pages 805 to 807 8 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT In all forms of civil litigation and like all civil cases, the standard of proof is one of balance of probabilities or preponderance of probabilities. The proof prescribed in civil trial is provided under sections 10, 11, and 12 of the Evidence Act 1975 NRCD 323. These sections on the burden of proof, burden of persuasion and the burden of producing evidence provide thus: “10. (1) For the purpose of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) To raise a reasonable doubt concerning the existence or non- existence of a fact, or (b) To establish the existence or non- existence of a fact by a preponderance of probabilities or by proof beyond reasonable doubt. 11. (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party… 12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non- existence. In the case of Ackah vs Pergah Transport Ltd [2010] SCGLR 728 at page 736 Adinyira, JSC (as she then was) held that: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…” See also the case of Aryee vs Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721 at 733 where the Supreme Court speaking through Benin JSC had this to say: 9 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT “It must be pointed out that in every civil trial all what the law required is proof by preponderance of probabilities: See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved”. The general position of the law is that he alleges must prove same. In the case of Ababio v Akwasi III [1994-95] GBR 774 at 777 Aikins JSC (as he then was) expounded the position as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case, i.e., he must prove what he alleges. In order words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not, he loses on that particular size.” The erudite judgment of Ollennu J (as he then was) in Majolagbe vs Larbi [1959] GLR 190 always gives guidance to the courts on how the burden of proof is discharged: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” It is essential to establish the burden of proof in this matter. As is trite learning, the Plaintiff bears the evidential burden to evince sufficient evidence if she is to secure a ruling on the existence or non-existence of a fact. The learned Jurist S.A Brobbey, in his book, Essentials of Ghana Law of Evidence at page 28 posits as follows: “ In the normal run of affairs, since the plaintiff is the one asking for something from the defendant, he should be the one who will start the proceedings by giving his testimony. That testimony will 10 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT show what he wants from the defendant and why he wants the court to order the defendant to give it to him. If he drags the defendant to the court but he fails to lead evidence to establish his claim and the basis of the claim, he cannot have the assistance of the court to get what he wants. In life, one gets nothing from nothing. So it is in law. If the party does not lead evidence to establish the claim or its basis, the court will have no grounds or reason or basis for making any order in his favour. If he leads no evidence…”. In the case of Duah vs Yorkwa [1993-994]1 GLR 217, Brobbey JA (as he then was) held as follows: “I proceed to resolve the issue of onus of proof as follows: ... The provisions of the Evidence Decree, 1975 (NRCD 323) require that in a case like the instant one the obligation to adduce evidence should first be placed on the plaintiff. This view will be further elaborated upon when the respondent’s case as argued by her counsel is considered below. On the basis of these three principles, it is my considered view that, initially, the onus of adducing evidence lies on the plaintiff-respondent to have established her assertion of pledge on which her writ and her entire case was based. Part II of NRCD 323 which deals with the burden of proof covers on the one hand, the burden of persuasion under sections 10, 14 and 15 of NRCD 323 and on the other hand, the burden of producing evidence under sections 11, 12 and 13 of NRCD 323. Considering the wording of section 10 (1) of NRCD 323 in the light of the Commentary on the Evidence Decree at pp 14-16, I am of the view that the expression “burden of persuasion” should be interpreted to mean the quantity, quantum, amount, degree or extent of evidence which a litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact. The burden of persuasion differs from the burden of producing evidence. Under sections 11, 12 and 13, particularly section 11 (1) of NRCD 323 the burden of producing evidence “means the duty or obligation lying on a litigant to lead evidence.” In other words, these latter actions cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led. 11 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT In our jurisprudence, if two parties go to court to seek redress to a dispute, it is the plaintiff who initiates the litigation and literally drags the defendant into court. If both parties decide to lead no evidence, the order which will be given will necessarily go against the plaintiff. Therefore, it is the plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him. This is clearly amplified in section 11 (1) of NRCD 323 which provides that: “11. (1)For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue4.” Preponderance of probabilities which is used synonymously with “balance of probabilities” is the standard of proof required in all civil trials and very rarely in some criminal trials. The Bench Book for US District Court Judges, published by the Federal Judicial Center (March 2000 ed.) restates this principle graphically thus5: “ The plaintiff has the burden of proving his (her) case by what is called preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, lead you to believe that what the plaintiff ‘s claims is more likely to be true than not. To put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his or ]her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant”. In the case of Sarkodie vs FKA Co. Ltd (2009) SCGLR page 65 the Court per Wood CJ (as she then was) held as follows: “that on the preponderance of the probabilities, the plaintiff-company’s evidence on the acquisition of the disputed land, is more probable than not in terms of sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323). It is therefore not surprising that the trial High Court found for the plaintiff company”. 4 Duah v Yorkwa [1993-994]1 GLR 217 5 S. A. Brobbey, Essentials of the Ghana Law of Evidence (2014) page 41-42 12 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT In all civil suits, the court is enjoined by section 12 of the Evidence Act, (NRCD 323) to evaluate and weigh the evidence adduced by the parties on the balance of probabilities. This requires careful analysis of the entire evidence on record as held by Ansah JSC in the case of Takoradi Flour Mills vs Samir Faris (2005-2006) SCGLR 882 at 884 holding 5 as follows: “it is sufficient to state that this being a civil suit, the rules of evidence requires that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Act, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict”. It is obvious that if the evidence adduced is such that the scales are evenly balanced, the burden of proof on the Plaintiff would not have been satisfied. In that event, the case of the Plaintiff should fail. [5] The Court’s Evaluation & Analysis of the Evidence This case brings to the fore one main issue which is: - Whether the Defendant by his conduct can be said to have renounced probate? Who is an Executor: The Learned Author N. A. Josiah-Aryeh, writing on Executors in his book Ghana Law of Wills, (2015) at pages 143 to 145 delivered himself thus : “A testator appoints his own executor for the purpose of carrying out directions in the will…The appointment maybe absolute or qualified…Section 61 of the Administration of Estate Act, 1961 (Act 63) states the necessity for probate: “A grant of probate is necessary to entitle an executor to administer the property, whether movable or immovable of the testator. Before probate, the executor 13 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT may, for the benefit of the estate, exercise the functions which pertain to his office but he shall not be entitled to make a disposition of any property”. The Learned Author supra at page 145 to 146 states as follows: “Generally speaking the office of an executor is for life. Usually, however, the business of administration is carried out within a year or two of appointment. However, if property devolves to the testator’s estate long after his death, the executor is under a duty to administer it. This is because the executor’s office is based on personal trust and is not assignable. Viscount Haldane noted in Attenborough v Solomon (1913) AC 76) that one remains an executor for an indefinite time…The chain of representation so created may continue indefinitely. The chain is broken in three circumstance through: 1. Failure of a testator to appoint an executor 2. Intestacy, or 3. Failure to obtain probate of a will.” On page 148 the Author supra states that “ An appointee is not under any duty to accept the office of executor. It was stated in Doyle v Blake (1804) 25 Sch & Lef 231 “No man has a right to make another executor without his consent; and even if in the lifetime of the testator he has agreed to accept the office, it is still in his power to recede. A renunciation of probate is effected by writing and registering with the Court. It remains ineffective until it is filed. In the meantime the individual is free to change his mind (see In b Morant (1874) L.R. 3 P & D 151). Renunciation has the following effects. The rights and duties of the office of the executor are entirely lost. It is not open to the executor to renounce some of those duties and accept others (see Brooke v Haynes (1868) LR 6 Eq 25). Renunciation does not prevent an executor from taking another grant in respect of the same estate in some other capacity.” The Learned Author Derick Adu-Gyamfi Esq. writing on Executors at page 67 in his book Handbook on Probate & Administration Practice in Ghana (with Precedents)(2018) 14 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT states that “the Wills Act, 1971 (Act 360) does not define who an executor is or how he may be appointed. In section 3(1) of Act 360, it only states that any person of or above the age of 21 years and having capacity to enter into a contract may be appointed an executor of a Will. In Osborn’s Concise Law Dictionary, an executor has been defined as; ” a person named in a Will whom the testator wishes to administer the estate.” In Stroud’s Judicial Dictionary it is stated: “Executor is when a man makes a testament and last Will and therein nameth the person that shall execute his last testament, then he that is so named is his executor”. The Plaintiff testifying per her adopted witness statement stated as follows: “After the funeral rites were completed, I requested the Defendant’s cooperation to apply for probate to administer the Estate of our late Father, but the defendant vehemently refused and stated that he did not care about the application for probate nor the outcome when the probate was granted. With the cooperation of the third executor Sheretha Nancy Brace who was outside the jurisdiction, the Will was admitted to probate and administration of the property was granted me on 12th December 2022 in the High Court, Accra, as annexed above as Appendix A.” It is the further testimony of the Plaintiff that in the bid to effect the instructions in the deceased Last Will and Testament and administer the estate of the deceased she has been prevented from renting out House No. 112 Freetown Avenue by the Defendant who earlier stated that he did not want to have anything to do with the grant of probate and its outcome. The Plaintiff testified as follows “The Defendant has taken his unlawful conduct to unimaginable heights by preventing the beneficiaries from accessing the rental property, threatening all who venture to even go near the rental property. The Defendant has repeatedly driven away prospective tenants who attempted to enter and inspect the property, and torn down several banners that were placed on the property to advertise for tenants. The Defendant has unlawfully looked up the rental property with industrial grade padlock and has kept the keys, effectively barring the Plaintiff an the other beneficiaries from accessing or dealing with the rental 15 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT property, annexed and marked as Exhibit B series are photos of evidence in support with a close- up photo showing the gate shut from outside with the industrial-grade padlock.” Dr Alexander Amankwaa Counsel for the Plaintiff in his written address filed on 23rd October 2024 stated that renunciation of probate maybe express or by implication. Counsel contends that renunciation by implication maybe by an act(s) of omission, where the executor simply declines to act, or in some circumstances, by commission or both. Counsel stated “Thus, in renunciation by implication, the conduct of the named executor is deemed by the court to imply that he has renounced his executorship.” Counsel referred the Court to the case of Yaa Akyaa vs Agya Owusu and Akua Buor [2021] DLCA 10076 and concludes that “the Defendant, who was appointed executor in the Will of the late Emmanuel Kwesi Brace has relinquished his right to obtain probate to administer the estate on account of his conduct, and on this, we invite the Honourable Court to so declare.” Exhibit A is the probate granted by this Court in respect of the deceased Last Will and Testament. The deceased Emmanuel Kwesi Brace died on 22nd September 2021 and probate was granted to the Plaintiff on 12th December 2022. The Court reserved the right to make the same grant to the Defendant and one other under Order 66 rule 24 of CI 47 when granting the probate. There is no evidence before this Court that the Defendant has made any effort since 22nd September 2021 to apply for probate in respect of the deceased estate or has exercised his option under Order 66 rule 24 of CI 47 to apply for second probate. The Defendant by his conduct has renounced probate and I therefore hold so. I find that the Defendant by his conduct has renounced probate. I resolve this issue in favour of the Plaintiff. [5.1] Relief C Relief C – “An order directed at the Defendant to grant access to and hand over the keys to H/No. 112 Freetown Avenue, East Legon” 16 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT The Plaintiff has testified per her adopted witness statement that the Defendant has prevented her from performing her duty as the Executrix of the estate of the deceased. The Plaintiff testified as follows “The Defendant has taken his unlawful conduct to unimaginable heights by preventing the beneficiaries from accessing the rental property, threatening all who venture to even go near the rental property. The Defendant has repeatedly driven away prospective tenants who attempted to enter and inspect the property, and torn down several banners that were placed on the property to advertise for tenants. The Defendant has unlawfully looked up the rental property with industrial grade padlock and has kept the keys, effectively barring the Plaintiff an the other beneficiaries from accessing or dealing with the rental property, annexed and marked as Exhibit B series are photos of evidence in support with a close- up photo showing the gate shut from outside with the industrial-grade padlock.” The duties of an Executor/Executrix are well stated in the Law of Wills in Ghana (1998) authored by Samuel Azu Crabbe at page 274 thus: a) To bury the deceased at their own expense, unless the spouse, or the children, or the family or the deceased express the wish to undertake financial responsibilities for the burial b) To collect the estate, which belonged to the deceased at the time of death, and to sell and convert it into money required for the purpose of administration in accordance with the provisions of Section 93(1) and (2) of the Administration of Estates Act, 1961 (Act 63) as amended by Section 6 of the Administration of Estate (Amendment) Law, 1985 (PNDCL 113) c) To clear the estate of liabilities by the payment of funeral expenses and debts, for as it is provided by Subsection 3 of Section 93 of Act 63 (as amended by Section 6 of PNDCL 113) d) To distribute the residue of the estate among the beneficiaries in accordance with the directions in the will or the rules of intestacy; but it is now provided by Subsection 4 of section 93 ) (as amended by Section 6 of PNDCL 113). 17 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT e) To exhibit on oath in court a true and perfect inventory and account of the estate of the deceased, when lawfully required to do so. f) To distribute the estate of the deceased person within the year after the grant of probate or letters of administration as provided by Section 9 of the Administration of Estate (Amendment) Law, 1985 (PNDCL 113) g) To execute a vesting assent in favour of the beneficiary of any real estate under the will in accordance with Section 96(1) of the Administration of Estates Act, 1961 (Act 63). The Learned Author, Derick Adu-Gyamfi in his book Handbook on Probate & Administration Practice in Ghana (with Precedents) in discussing Personal Representative, duties and liabilities of personal representatives or executors at page 57 delivered himself thus: “The expression personal representative is used to describe either an executor (whether he has proved the Will or not) or an administrator and is defined to mean the executor, original by representation or administrator for the time being of a deceased person. Duties and liabilities of personal representatives or executors: 1. To find out the nature and value of the estate of the deceased. 2. To bury the deceased at their own expense, unless the spouse, or the children or the family or the deceased express the wish to undertake financial responsibility for the burial. 3. To apply for probate (in case of testacy) or letters of administration (in case of intestacy) to administer the estate 4. To receive grant of probate or; 5. To find out details of debts owed by the deceased e.g. by advertising in local newspapers; 6. To clear the estate of liabilities by the payment of funeral expenses and debts, for as it is provided by 7. To send copies of the grant to the deceased bankers, insurers, employers, etc to get in what belongs to the estate; 18 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT 8. To pay legacies and hand over bequests to those entitled; and 9. To distribute or invest the residue of the estate or hold it in trust6”. Date-Bah JSC (as he then was) held in the case of T. K. Serbeh & Co Ltd v Mensah [2005- 2006] SCGLR 341 at 360-361 that for, however credible a witness may be her bare affirmation on oath or the repetition of her averments in the witness box cannot constitute proof. From Exhibit A, probate was granted to the Plaintiff on 12th December 2022 herein and efforts to gather in the estate and administer same in accordance with the last Will and Testament of the deceased has been met with resistance by the Defendant. Exhibit A puts it beyond doubt that the Plaintiff has the right to administer the estate of the deceased. As stated supra “Section 61 of the Administration of Estate Act, 1961 (Act 63) states the necessity for probate: “A grant of probate is necessary to entitle an executor to administer the property, whether movable or immovable of the testator. Before probate, the executor may, for the benefit of the estate, exercise the functions which pertain to his office but he shall not be entitled to make a disposition of any property7”. I therefore hold that the Plaintiff is a named Executrix of the estate of Emmanuel Kwesi Brace, having obtained probate in respect of his Last Will and Testament is entitled to perform her functions as Executrix without any hindrance from anyone particularly the Defendant. [5.2] Relief D Relief D - “An order directed at the Defendant to account for the building items he sold, namely the 60 PPL pipes, the 12 door frames, and the 8 doors” 6 Snell’s Principles of Equity, 29th Edition, page 314 the learned author summarized the duties of personal representatives. 7 N. A. Josiah-Aryeh, Ghana Law of Wills, (2015) at pages 143 to 145 19 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT How did the Plaintiff prove this relief? The Plaintiff testifying per her adopted witness statement stated that “The Defendant without the knowledge of the beneficiaries sold the following building materials that were kept in the rental property and refused to account for them: a) Sixty (60) PPL pipes, b) Twelve 12 door frames c) Eight (8) doors”. Counsel for the Plaintiff in his written address submitted as follows: “My lady, the Defendant, by unlawfully locking up the rental property and selling the valuable materials therein acted inconsistently with his duty as an executor of the Estate of the late Emmanuel Kwesi Brace. Where an executor unduly takes advantage of his position to unjustly profit from the Estate, he is under a duty to account for the monies he has received and compensate the estate for the loss. Although the Defendant has not obtained probate, these fiduciary duties are founded in common law and are binding on him.” Is there evidence on record to support Plaintiff's contention that the Defendant sold those items and is the Defendant obliged to account for same? Samuel Azu Crabbe’s in his book, Law of Wills in Ghana the learned Author at page 272- 273 states as follows: “In the case of In re: Smith Henderson-Roe vs Hitchins, the trial judge said: It is the duty of the executor to clear the estate, to pay the debts, funeral and testamentary expenses and the pecuniary legacies and to hand over the assets specifically bequeathed to the specified legatees. When all this has been done, a balance will be left in the executor’s hand and I think it is plain that this balance will be held by him in trust”. The learned Authors of Tristam and Coote’s Probate Practice 23rd Edition at page 873 on delivery of accounts on oath states as follows: 20 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT “Every person who as beneficiary, trustee or otherwise acquires possession or assumes the management of any personal or movable property of a description to be included in an account according to the preceding section shall upon retaining the same for his own use or distributing or disposing thereof and in any case within six calendar months after the death of the deceased deliver to the Commissioners of Inland Revenue a full and true account, verified by oath of such property duly stamped as required by this Act.” The learned Authors in the book, Williams & Mortimer, Executors Administrators and Probate at page 970 writing on Executors Accounts stated as follows “it has already been mentioned that an executor must account for all profits on the estate of the deceased which accrue in his own time, and that if he carries on the trade or business of the testator the profits must be accounted for assets.” The sources that this Court can draw material evidence for the evaluation of evidence is the pleadings, oral evidence led in Court, documentary evidence and judicial decisions. See Fabrina Ltd vs Shell Ghana Ltd [2011] 33 GMJ 1 SC at pages 27-28 per Brobbey JSC (as he then was). In Fori vs Ayerebi [1966] 2 GLR 627, SC a most direct and helpful authority on the point about undenied averments, the apex Court held as follows: “When a party has made an averment and that averment was not denied, no issue was joined and no evidence be led on that averment. Similarly, when a party has given evidence of a material fact and was not cross-examined upon it, he need not call further evidence of that fact.” See also the following cases: Hammond v Amuah [1991] GLR 89 at 91 Western Hardwood Enterprises Ltd vs West African Enterprise Ltd [1998-99] SCGLR 105 21 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT In this case the Defendant was afforded the opportunity to participate in the trial and join issues with the Plaintiff on her pleadings that he had sold some items belonging to the estate of the deceased, but he failed to participate in the trial. There being no issues joined and I therefore hold that the Defendant has sold some building materials that were kept in the rental property and refused to account for them. [6] Conclusion Having reviewed all the evidence and taking into consideration my analysis above, it is my conclusion that the Plaintiff has adduced sufficient evidence to persuade the Court to grant her the reliefs she seeks. I therefore enter judgment on four (4) of the Plaintiff’s Claim as follows: i. I therefore grant Plaintiff’s relief a as follows: I declare that the Defendant by his conduct has renounced probate. ii. I therefore grant relief b in the following terms: The Defendant, his servants, agents, privies whomsoever are permanently restrained from dealing with H/No. 112 Freetown Avenue, East Legon and or engaging any conduct detrimental to the rights of the other beneficiaries of the Emmanuel Kwesi Brace (deceased) estate. iii. I therefore grant relief c in the following terms: An order that the Defendant unlocks the padlocks to H/No. 112 Freetown Avenue and grants the Plaintiff unfettered access to same. All keys in respect of H/NO. 112 Freetown Avenue should be handed over to the Plaintiff by Defendant forthwith. iv. I therefore grant relief d in the following terms: Defendant ordered to account for the building items he sold, namely the sixty (60) PPL pipes, twelve (12) door frames and eight (8) doors (all being part of the estate of the late Emmanuel Kwesi Brace estate) within 28 days from today. v. Reliefs e and f are dismissed. Costs of GHC5,000.00 awarded in favour of the Plaintiff. 22 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT (SGD.) H/L EUDORA CHRISTINA DADSON (MRS) JUSTICE OF THE HIGH COURT 23 SUIT NO:PA/0538/2024 – ROSELYN NYANKE BRACE VS EMMANUEL BRACE – JUDGMENT