Kumi and Josiah v Quarcoo (PA/0090/2024) [2024] GHAHC 523 (22 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE PROBATE AND ADMINISTRATION DIVISION I HELD IN ACCRA ON TUESDAY THE 22ND DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, JUSTICE OF THE HIGH COURT ---------------------------------------------------------------------------------------------------------------- SUIT NO. PA/0090/2024 IN THE MATTER OF ESTATE OF MICHAEL LANTEY LAMPTEY (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR PROBATE BY REV FREDERICK KUMI AND MR ABRAHAM JOSIAH AND IN THE MATTER OF CAVEAT ENTERED AGAINST THE APPLICATION FOR PROBATE BY HENRUETTA ANOWAH QUARCOO ---------------------------------------------------------------------------------------------------------------- APPLICANTS: 1ST APPLICANT PRESENT AND REPRESENTS THE 2ND APPLICANT CAVEATRIX PRESENT COUNSEL: ABENA INKOOM FOR THE APPLICANTS PRESENT ONLINE EMMANUEL ODURO MANU SARFO FOR THE CAVEATRIX ABSENT ----------------------------------------------------------------------------------------------------------------- RULING ------------------------------------------------------------------------------------------------------------------ [1] Introduction A caveat is a document filed in court to prohibit the grant or representation i.e., probate or letters of administration unless prior notice is given to the caveator. In the case of letters of administration, the caveator is saying that the applicant is not the person who is by law entitled to the grant. A caveat once filed shall remain in force for three months from the date on which it is filed but may be renewed from time to time1. The learned authors of the book, Williams and Mortimer on Executors, Administrators and Probate, at page 275 writing on caveats stated as follows: “A caveat is a notice in writing that no grant is to be sealed in the estate of the deceased named, without notice to the caveator. No grant can be sealed if the registry is aware of the caveat, but it will not prevent the sealing of a grant on the day the caveat is entered. The main object of a caveat is to enable a person who is considering opposing a grant to obtain evidence or legal advice in the matter. The effect of a caveat is that no grant can issue after its entry until it is removed or ceases to have effect2.” The learned authors of the book, Tristam and Coote’s Probate Practice, 23rd Edition, at page 523 writing on caveats stated as follows: “A caveat is a notice in writing lodged in the principal probate registry, or in a district probate registry, that no grant is to be sealed in the estate of the deceased named therein without notice to the person who has entered the caveat. No grant can be sealed if the registrar has knowledge of an effective caveat, but a caveat is not effective to prevent the sealing of a grant on the day on which it is entered…The proceedings subsequent to the entry of caveat i.e. the warning or notice to appear, issued against the caveator by the party whose application for a grant has been stopped, and the appearance to such warning by the caveator will disclose the names and addresses of the 1 Adu-Gyamfi Derick, Handbook on Probate & Administration Practice in Ghana (with Precedents) 2 (J.H. G. Sunnucks, 1970) parties and their respective interests in the estate of the deceased, and with this information it is open to either of them, if the interests conflict, to commence an action against the other for the purpose of establishing his own claim…A caveat is not a notice to a particular person; it is a notice to the court not to allow proceedings to be taken in the matter of the will or estate of the deceased without notice to the caveator. It does not commence litigation, it institutes no proceedings.” The person filing the caveat may be warned in the form contained in the schedule issued by the Registry at the instance of the applicant or by any person interested, stating the nature of his interest and shall require the caveator to file an affidavit giving particulars of any contrary interest which the caveator may have in the estate of the deceased. In the words of Lopes, L.J in Salter v Salter (1896) P, 291, C.A. “A caveat is merely notice to the registrar to do nothing without notice to the solicitor who entered it. The effect of the warning is that the caveat becomes void unless the person who entered it appears within time. If the person warned appears within the time limited, the caveat proceedings are an end. If after this a writ is issued, lis pendes commences, but not till then” The court will then give directions to the registrar to bring the caveat to the notice of the applicant and his lawyer as in form 25 and not to take any further steps until the applicant has duly warned the caveator3. Letters of administration should not be granted until the caveat is removed. In the case of Re Hervie (Decd) Addo v Boye [1989-90] 1 GLR 174 per Abakah J: “Even though the respondents had disclaimed any knowledge of the caveat, for purposes of the effect of a caveat, it was the filed thereof which was pertinent. When the caveat was filed, the court should have, on account of Order 60, r.15 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), declined to take any steps until the applicant had duly warned the caveator, i.e. after the 3 Order 66 r 11(5) of C.I 47 court had directed the registrar to notify the applicant. And the court should not have issued a grant until the caveat was removed. Since the caveat in the instant case had not been removed, it was fundamentally irregular for the respondents to have been granted letters of administration by the High Court, Koforidua in respect of the estate of H. Although the grant to the respondents could not be said to have been obtained by fraud, it was vitiated by the irregularity characterising it and must therefore be revoked”. In the case of Agyepong (Decd.); Poku v. Abosi [1982-83] G.L.R. 254, Court of Appeal posited as follows: “The purpose of a caveat is to allow the caveator time to make inquiries and decide whether or not to oppose the application. A caveat is notice to the court that no grant should issue without notice to the caveator. Anyone having an interest in the estate may enter a caveat, and the court will not issue a grant until the caveat is removed. The person applying for a grant of letters of administration must issue a warning to the caveators and disclose his interest in the estate. A caveator may decide to withdraw his caveat or enter an appearance - stating in his affidavit his claim if he has one or oppose the applicant on the ground of lack of interest or that he has superior right to letters of administration or that the applicant was not entitled to such a grant”. A caveat has the effect of staying the grant of probate or administration until the caveat is expired, or until it is warned, and the person warned fails to appear; or, in case of appearance, until the contest is terminated. If by inadvertence such a grant should be made, it would be recalled or revoked. [2] Brief Facts The Caveatrix filed a caveat on 7th November 2023 after the will of the deceased Michael Lantey Lamptey was read. The Caveatrix was duly warned in accordance with the rules on 6th December 2023. The Caveatrix filed her affidavit of interest on 18th December 2023. The pith and substance of her affidavit of interest was that she was married to the deceased Michael Lantey Lamptey under the marriage ordinance on 31st January 1998 and during the subsistence of the marriage they acquired a piece of land at Nii Kpakpa Badu Road, Gbawe, Accra with land certificate No. GA 6020 Vol. 08 Folio 12. Paragraphs 4 to 10 of the affidavit of interest explains the Caveatrix substantial contribution towards the construction of the property at Nii Kpakpa Badu Road. She raises presumption of joint tenancy. [2.1] Application for probate Applicants applied for grant of Probate in respect of the Estate of Micheal Lantei Lamptey (deceased). The Applicants are the named Executors in the last Will and Testament of the deceased. The deceased died intestate on 10th November 2019. Before the application for probate was filed the Caveatrix filed a caveat. The total value of the estate does not exceed GHC412,000.00. Statutory forms 35, 68 and 57 seen. Proof of death seen. [3] Motion on Notice for removal of Caveat The Applicants filed a motion for the removal of caveat filed by the Caveatrix on 17th July 2024. In a 20-paragraph affidavit in support the Applicants deposed that they are the executors of the estate of the deceased. The Caveatrix alleged her interest in the estate of the deceased. The Applicants from paragraph 11 to 19 deposed to how deceased acquired the property and reiterated that the Caveatrix has no interest in the Gbawe property which forms part of the estate of the deceased as it was solely acquired by the deceased before his marriage to Caveatrix. The Applicants therefore prayed that the Caveat be removed and Probate granted to the Applicants. [4] Court’s analysis and opinion I shall examine the applicable rules: Order 66 Rule 11 of High Court (Civil Procedure) Rules, 2004, CI 47 provides as follows: “11. Caveat (1) Any person who has or claims to have an interest in the estate of a deceased and who wishes to ensure that no grant of probate or letters of administration is issued without notice to the person, may file a caveat as in Form 24 specified in the Schedule. (2) The caveat may be filed either before or after an application has been made for probate or letters of administration, but before grant. (3) A caveat filed before an application for probate or letters of administration shall be brought to the notice of the Court by the Registrar as soon as the application is filed. (4) A caveat filed after an application for probate or letters of administration shall be brought immediately to the notice of the Court by the Registrar. (5) On being given notice of a caveat, the Court shall direct the Registrar to bring it to the notice of the applicant or the lawyer of the applicant as in Form 25 in the Schedule and shall decline to take any further steps until the applicant duly warns the caveator. (6) A caveat shall remain in force for three months from the date on which it is filed, but may be renewed from time to time. (7) The Registrar shall not allow any grant of probate or letters of administration to be sealed if the Registrar has knowledge of an effective caveat in respect of it, except that no caveat shall operate to prevent the sealing of a grant on the day on which the caveat is filed or on which a copy of it is received. (8) A person who files a caveat shall be warned as in Form 26 in the Schedule, issued by the Registrar at the instance of the applicant or by any person interested, to file an affidavit, stating the nature and particulars of any interest that person may have in the estate of the deceased. (9) If the warning is not duly obeyed, the applicant shall move the Court in respect of the applicant’s original motion for the grant of probate or letters of administration and where the Court considers it fit it shall direct that notice be served on the caveator. (10) If the warning is obeyed, a copy of the affidavit filed shall be served on the applicant by the Registrar. (11) The applicant shall then move the Court to grant probate or letters of administration on notice to the caveator who shall at the expense of the applicant, be served with copies of any affidavits on which the applicant intends to rely. (12) When the motion comes on for hearing, if the parties agree among themselves as to the person to whom a grant of probate or letters of administration shall be made, the Court may order that the caveat be removed from the file and a grant be made to that person. (13) Failing such agreement between the parties the Court shall determine who is entitled to a grant of probate or letters of administration summarily or may order that the applicant issue a writ against the caveator within fourteen days from the date of the order, to determine who is entitled to grant of probate or letters of administration, if in the opinion of the Court it is necessary to do so”. Order 66 rule 11(9) states that “If the warning is not duly obeyed, the applicant shall move the Court in respect of the applicant’s original motion for the grant of probate or letters of administration and where the Court considers it fit it shall direct that notice be served on the caveator”. The Caveatrix does not challenge the Applicants right to be granted probate. Her plaint is in connection with some of the properties devised in the deceased will. It is trite that in determining who is entitled to probate the court should not couple with issues relating to property entitlement. The motion filed on 17th July 2024 is granted as prayed. The caveat filed on 7th November 2023 is removed from the file. I have examined the will as enjoined by Order 66 rule 17 and ex facie same appears to have been duly executed in accordance with Section 2 of Act 360 and can be admitted to probate. The total value of the estate does not exceed GHC412,000.00. Proof of death seen. Forms 35,57 and 68 seen. The Application conforms to order 66 rule 1(1), 8, 9, 10 (3) & (4), 12 (1), 17 and 18 of CI 47. I therefore grant probate forthwith to Rev. Frederick Kumi and Mr. Abraham Josiah. The issue of property entitlement is left at large to be determined in appropriate proceedings. The form 35 should be commissioned and the Applicants sign the form 57 within 5 days from today. Same shall be inspected before the grant is sealed. (SGD.) EUDORA CHRISTINA DADSON (MRS.) (JUSTICE OF THE HIGH COURT)