In Re Appau (Decd) Appau v. Ocansey [1993-94] 1 GLR 146 @P.147, Per Brobbey J.A., C.A.

IN RE APPAU (DECD); APPAU V OCANSEY [1993-94] 1 GLR 146 @ P.154, PER BROBBEY JA. COURT OF APPEAL, ACCRA LAMPTEY, BROBBEY AND FORSTER JJA.
Ref.: Administration of Estates Act, Section 1
JUDGMENT OF BROBBEY JA.
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One Isaac Nkansah Appau died intestate on 6 January 1988. He left behind a widow with whom he had three children and a fourth child by another woman. All the children were minors when he died. Not long after he had died, his brother sold two cars belonging to the deceased.

On 7 June 1988 his widow applied for letters of administration to administer the estate of the late Appau. On the same day, she filed an

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application in the High Court, Kumasi for the brother to be punished for intermeddling in the estate. Exactly two days after those applications had been filed, the brother too filed an application for the grantof letters of administration in respect of the same estate.

Eventually the High Court granted letters of administration jointly to the widow, the brother and one Kojo Agyemang. The widow however pursued the application for intermeddling in the estate against the brother by name Eric Ocansey alias Kwame Boakye. The High Court dismissed the application. It was against that dismissal that the appellant appealed to this court. In this judgment I shall refer to the widow as the appellant and the brother as the respondent.

Two main reasons were assigned by the trial judge for dismissing the application. First, he stated that he had already granted letters of administration to the appellant, the respondent and another person “and they can conveniently resolve the issue.” That reason, to say the least, begged the question. At the time the appellant decided to pursue the application she knew that joint letters of administration had already been granted to her and two others and yet she pressed on with it. If the parties could resolve the issue, why were they appearing before him? In any case that first reason took the wrong view of the law, as will be apparent shortly below. His second reason was that since there was no known administrator the allegation for intermeddling with the estate failed.

The application was brought under the High Court (Civil Procedure) Rules, 1954 (LN 140A), Order 60, r 3 which reads:

“3. If any person other than the person named executor or administrator, or an officer of the Court or person authorised by the Court, takes possession of and administers or otherwise deals with the property of a deceased person, he shall, beside the other liabilities he may incur, be liable to such fine not exceeding £100 as the Divisional Court, within whose jurisdiction the property so taken possession of or dealt with is situated, having regard to the condition of the person so interfering with the property, and the other circumstances of the case, may think fit to impose”.

The facts on which the allegation of intermeddling was grounded were quite straightforward: The deceased died intestate. That the respondent sold the two cars belonging to the deceased before letters of administration were granted came out in the affidavit of the respondent filed on 24 June 1988, from paragraphs (10)-(16) especially paragraph (16). Further, the respondent deposed that the vehicles were sold even before the 40-day funeral rites of the late Appau.

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Having regard to the time when the vehicles were sold, the allegation that there was unreasonable delay in applying for letters of administration cannot be sustained. The respondent rather acted in haste in disposing of those cars.

The trial judge erred in this case. It appeared that one of the grounds which misled him to the error was that his approach was beclouded by his failure to discern that there were two separate estates involved in the case, According to the respondent’s affidavit already referred to, the respondent stated that:

“(10) It is not true that I have unlawfully sold the cars mentioned in paragraph (6) of the applicant’s affidavit.

(11) At the time of my late brother’s death he was operating the petrol station which had come down to us from our late father.

(12) On the death of my late brother Ghana Oil Co Ltd who were the owners of the station stopped supplies until letters of administration could be obtained.

(13) Officials of Ghana Oil Co Ltd were however willing to reopen the petrol station if I could deposit ¢2 million against the supply of products.”

It is significant to point out that by the respondent’s own showing in that affidavit; the petrol station did not form part of the estate of the deceased Appau. The petrol station was part of the estate of the father of Appau and his brothers and it devolved onto him and his brothers on that death of their father.

It may very well be that the late Appau had an interest in that petrol station. But whatever interest he had in it was held jointly with his brothers. The petrol station belonged to Ghana Oil Co Ltd. If the petrol station was held on a tenancy basis, it may properly be taken that the estate or representatives of the late Appau had no interest in it. This viewpoint is well supported by the Administration of Estates Act, 1961 (Act 63), s 3(3) of which provides that: “The interest of a deceased person under, joint tenancy where another tenant survives the deceased is not property of the deceased.” That law apart, both the respondent and the appellant in their lists of inventories attached to their respective applications for letters of administration before the same trial judge did not include the petrol station as part of the assets or properties of the late Appau. There can therefore be no shadow of doubt that the parties in this case knew that the petrol station did not form part of the estate of Appau. If that petrol station had to be saved or salvaged or kept operational, it was wrong to

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have sold property belonging to a different estate for that purpose. That sale becomes all the more erroneous when one considers the fact that it was not the case that the late Appau had incurred some debt during the time he managed that petrol station and for which misconduct or indebtedness the station was about to be lost to his brother or his father’s estate. That was not the reason assigned for selling the two vehicles. The respondent himself stated that Ghana Oil Co Ltd required letters of administration obtained before supplying products to the station. That meant clearly that he had no need to sell the cars. All that he had to do was to have applied for letters of administration. Even if the appellant as widow would not co-operate with him in the application, he could have applied for letters of administration pendente lite. Instead of applying for letters of administration, he rather turned round to sell the vehicles.

The most important point here is that since the station did not form part of the estate of the late Appau, it was wrong to have sold the property of Appau to save it. This is so even if Appau had some interest in that petrol station. Whatever interest he had in that petrol station did not make him owner of the station. His interest in the station, if any, was totally different and distinct from his own self-acquired properties. That interest could not therefore warrant the disposal of the self-acquired properties to safeguard what he held jointly with others, if he held any interest in it all.

Order 60, r 3 of LN 140A is couched in terms similar to the concept executor de son tort under English law. Williams on Executors and Administrators, (1960 ed), Vol 1, p 28 defines executor de son tort to be this. Anyone:

“who is neither executor nor administrator, [and who] intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, (he) thereby makes himself what is called in the law an executor of his own wrong, or more usually, an executor de son tort.”

The same page provides that “any person who takes possession of or intermeddles with the property of a deceased person without the authority of his personal representatives or the court” is an executor de son tort.

In Halsbury’s Laws of England (3rd ed), Vol 16, p 145, para 230 it is stated that:

“The slightest circumstance may make a person executor de son tort if he intermeddles with the assets in such a way as to denote an assumption of the authority or an intention to exercise the functions

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of an executor or administrator.”

That passage lists acts of interference to include paying the deceased’s debts, carrying on his business, disposing of his goods, etc, provided the interference takes place before letters of administration are granted.

At page 150—151 of Williams on Executor and Administrator (1960 ed) the learned author states that an executor may perform most of the acts pertaining to his office before probate. That actions of an executor before the grant of probate are protected is further supported by the local case of Cathline v Akufo-Addo [1984-86] 1 GLR 57, CA. But the same principles do not apply to administrators. At page 151 of Williams on Executor, and administrator, (1960 ed) it is stated that:

“But with respect to an administrator, the general rule is that a party who is entitled to administration can do nothing as administrator before letters of administration are granted to him, inasmuch as he derives his authority entirely from the appointment of the court.”

It is not the law that because a person subsequently obtains letters of administration, he cannot be liable for intermeddling in the estate. The trial judge’s reason that the accusation of intermeddling failed because he had granted the parties joint letters of administration is legally unsustainable. By his reasoning, he lost track of the essential consideration in the case which is that at the time of interferring or intermeddling with the estate, no letters of administration had even been applied for, let alone been granted to the respondent. The only time when the grant of letters of administration will save an intermeddler is when the doctrine of relation back is applied to make the grant retroactive from the date of death of the deceased so as to validate acts performed on behalf of the estate after his death: see Halsbury’s Laws of England (3rd ed), Vol 16 at p 135. The doctrine of relation back however operates where the action of the intermeddler is for the benefit of the estate: see Williams on Executors and Administrators (1960 ed) at p 153.

In so far as the sale of the two vehicles was not for the benefit of the estate of Appau but rather to benefit the estate of the father of Appau, the doctrine of relation back is inapplicable in the instant case. That doctrine cannot therefore be invoked as a defence for the respondent’s intermeddling in the estate of the late Appau. This is the common law situation.

It is clear that Order 60, r 3 of LN 140A makes no distinction between executor and an administrator.

That rule is explicit that a person who merely takes possession of or administers the estate or asset of a deceased

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person is liable for intermeddling so long as that person is not the administrator. In other words, this rule does not permit any one to start administering the estate before the court has granted letters of administration.

There is no doubt that at the time the respondent took the vehicles, he was not the administrator appointed by the court or even a successor appointed by the family of Appau. If merely taking possession of assets will make a person liable for intermeddling, then in the instant case where the respondent entirely disposed of the vehicles by sale, he is a fortiori liable for intermeddling in the estate within the terms of Order 60, r 3 of LN 140A.

The view of the trial judge that the allegation of intermeddling failed because there was no known administrator was contrary to the express provisions of Order 60, r 3 of LN 140A and was therefore grossly wrong. He fell into the error because he failed to consider the provisions of Order 60, r 3 of LN 140A in relation to the facts of the instant case.

Counsel for the respondent contended that section 96 of Act 63 which deals with vesting assent should have been complied with before the appellant could have brought the instant motion. That contention is not based on the correct interpretation of the law. It is not the law that a beneficiary can only act in respect of an estate after the grant of vesting assent. Anyone with an interest in an estate such as a beneficiary can take action even where there is no formal grant of letters of administration under which vesting assent may be considered, provided the action taken is aimed at protecting the estate from being wasted: see Kwan v Nyieni [1959] GLR 67, CA. Under the Intestate Succession Law, 1985 (PNDCL 111) the appellant as the widow of the deceased intestate will no doubt benefit from the estate and may therefore properly be described as a beneficiary. In so far as the petrol station was not part of the estate of the late Appau, it was a loss to that estate to have used the proceeds of the vehicle to save it. To the extent that the appellant’s complaint of intermeddling was to save that loss, her action cannot be described as unwarranted by the rules. In any case that argument pales into insignificance when one considers the fact that she applied for and was eventually granted the letters, but jointly with the respondent. Considering the status of the applicant as a beneficiary and joint grantee of the letters of administration, the actions he took concerning the intermeddling cannot be faulted on the mere ground that she did not comply with section 96 of Act 63 by obtaining a prior vesting assent.

Counsel for the respondent contended that the issue of the persons entitled to administer the estate of a deceased person is covered by section

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1 of Act 63, while the issue of the people entitled to portions of the estate is covered by PNDCL 111. He submitted that since the issue at stake in this case concerns the persons entitled to administer the estate of the late Appau, Act 63 should be applied to the facts of the case instead PNDCL 111. That argument is grounded on section 1(2) of Act 63 which provides that:

“(2) In the absence of an executor the estate shall, until a personal representative is appointed, vest as follows —

(a) if the entire estate devolves under customary law in the successor;

(b) In any other case—in the Chief Justice.”

In its plain sense section 1(2) of Act 63 clearly deals with the “vesting” of estate in the successor of a deceased intestate. Vesting connotes the giving of estates for the purpose of assigning responsibility for it. It does not connote giving in the sense of distribution. Devolution connotes distribution and to that extent vesting differs from devolution. PNDCL 111 in no way makes reference to Act 63, not even inferentially. Yet there is no provision in PNDCL 111 governing the vesting in the successor of the estate of the deceased who died intestate. This means that the provisions in section 1 of Act 63 on the vesting of estate in successors are still applicable. Counsel for the respondent was therefore right in his view that to determine the rules on vesting of estates one has to look at Act 63 and not PNDCL 111.

Be that as it may, the provisions in section 1(2) of Act 63 that the estate of a person dying intestate vests in the successor cannot provide sufficient defence for the allegation of intermeddling brought against the respondent. There are three reasons for this. The first is that when the respondent took possession of the two vehicles and sold them, he was not the successor. He was appointed a successor on the 40-day funeral rites of the late Appau—long after the sale. Therefore when he sold the vehicles he himself could not have harboured any belief that he was successor or was acting in his capacity as a successor. He acted as an officious intermeddler, seized the vehicles and sold them.

The second reason is that even if the law stipulates that the vesting is operative from the death of the deceased, both at common law and under Order 60, r 3 of LN 140A, no one is empowered to administer an estate until he has been appointed an administrator. The law on this has already been explained in this judgment. There are quite sound policy reasons fo this rule. In the first place, the administrator derives his powers to administer the estate from his appointment. Until he has been formally

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appointed he cannot unilaterally clothe himself with that power to administer the estate, especially if his administration will involve losses or dissipation of the estate like sale of cars. At customary law the family can bypass a senior member or member of family who ordinarily should be a natural successor to a deceased and appoint another person if the family has reason to bypass him. In the same way the family or the court can bypass such a person as administrator, if there are reasons for doing so. The case of Asafu-Adjei v Okrah [1984-86] 1 GLR 440, CA illustrates this point. This is why no one can just wake up and commence administration of the estate because it is not improbable that the person who assumes that he will be appointed successor or administrator may in the long run not be appointed.

Thirdly, certain properties have been assigned “absolutely” to the widow and the children of the deceased and cannot be given to anyone else. A further elaboration of the third reason will involve a consideration of the law on the devolution of estates of deceased intestate. Act 63, s 1 (1) provides that: “The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death.” Notwithstanding the provisions of this law, PNDCL 111, s 1(1) also provides that:

“1. (1) on the commencement of this Law, the devolution of the estate of any person who dies intestate on or after such commencement shall be determined in accordance with the provisions of this Law subject to subsection (2) of this section and the rules of private international law . ..”

and rules on stool, skin or family property.

Act 63 was not expressly repealed or amended by PNDCL 111. It is however obvious that the current law to be applied to the devolution of the estate of any person who dies intestate shall be PNDCL 111, provided that person died after 5 July 1985, the day that Law came into force. If nothing at all, one reason for this view is that PNDCL 111 was later in time and must be deemed to have impliedly amended Act 63 which was enacted in 1961. PNDCL 111 contains detailed provisions on the extent of the estate that should devolve to the successor, the widow and the children as well as other beneficiaries. The provisions will be found in sections 3-8 of the Law which are as follows:

“3. When the intestate is survived by a spouse or child or both, the spouse of child or both of them, as the case may be, shall be entitled absolutely to the household chattels of the intestate.

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  1. notwithstanding the provisions of this Law—

(a) Where the estate includes only one house the surviving spouse or child or both of them, as the case may be, shall be entitled to that house and where it devolves to both spouse and child, they shall hold it as tenants-in-common;

(b) Where the estate includes more than one house, the surviving spouse or child or both of them, as the case may be, shall determine which of those houses shall devolve to such spouse or child or both of them and where it devolves to both spouse and child they shall hold such house as tenants-in-common:

Provided that where there is disagreement as to which of the houses shall devolve to the surviving spouse or child or to both of them, as the case may be, the surviving spouse or child or both of them shall have the exclusive right to choose any one of those houses; except that if for any reason the surviving spouse or child or both of them are unwilling or unable to make such choice the High Court shall, upon application made to it by the administrator of the estate, determine which of those houses shall devolve to the surviving spouse or child or both of them.

  1. Where the intestate is survived by a spouse and child the residue of the estate shall devolve in the following manner:

(a) three-sixteenth to the surviving spouse;

(b) nine-sixteenth to the surviving child,

(c) One-eighth to the surviving parent;

(d) one-eighth in accordance with customary law:

Provided that where there is no surviving parent one-fourth of the residue of the estate shall devolve in accordance with customary law.

  1. Where the intestate is survived by a spouse and not a child the residue of the estate shall devolve in the following manner:

(a) One-half to the surviving spouse;

(b) one-fourth to the surviving parent;

(c) one-fourth in accordance with customary law:

Provided that where there is no surviving parent one-half of the residue of the estate shall devolve in accordance with customary law.

  1. Where the intestate is survived by a child and not by a spouse the surviving child shall be entitled to three-fourths of the residue and of the remaining one-fourth, one-eighth to the surviving
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parent and one-eighth shall devolve in accordance with customary law:

Provided that where there is no surviving parent the whole of the one-fourth shall devolve accordance with customary law.

  1. Where the intestate is survived by a parent and not by a child or spouse, three-fourths of his estate shall devolve to the surviving parent and the remaining, one-fourth shall devolve in accordance with customary law.”

A simple analyses of these sections will demonstrate that when a person dies intestate, his widow and children are automatically entitled to (a) all household chattels including furniture, cars, radio, etc (section 3); and (b) the only house; if he left one house or any number of houses the widow and children will choose if the houses number more than one (section 4). Section 4(b) does not even limit the widow and the children to one house if the houses are more than one.

It is only after the widow and the children have taken “absolutely” the household chattels and their selected house or houses that whatever is left of the estate, if any (described as residue of the estate) is to be distributed in accordance with section 5 of PNDCL 111. Even under section 5, the widow and the children are entitled to 75 per cent of the residue. At best, the successor who will inherit according to customary law (section 5(d)) will be entitled to a paltry one-eighth of the residue if the deceased is survived by his parents or 25 per cent if the parents predeceased the dead family member.

Even if Act 63 vests the estate in the successor, it will be incongruous to argue that the successor who only has an extreme minority interest when it comes to devolution or distribution of the estate, should be able to dispose of the estate as he deems fit. What if he disposes of property specifically stipulated in the Law to be given to a named beneficiary? That may result in injustice and absurdity. Infact that was precisely what happened in this case. Section 3 of PNDCL 111 which has already been quoted provided that:

“3. Where the intestate is survived by a spouse or child or both, the spouse or child or both of them, as the case may be, shall be entitled absolutely to the household chattels of the intestate.”

This clearly meant that when the late Appau died, all his vehicles went “absolutely” to his widow and children, as part of his household chattels. The respondent knew or should have known of this Law. There can therefore be no legal justification for taking the vehicles of all items and

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selling them when the current law devolved the vehicles to the widow and the children absolutely. Why did he not sell any of the residue which would not have been so protected under the Law? At this stage no one can wonder why the widow pursued the application even after she had been granted joint letters of administration because apart from the sale being improper, if the vehicle had not been sold they would have gone to her and the children.

Aside from the loss to the widow and the children, the public policy which this Law aims at safeguarding will be abused and brought to nought if actions like those of the respondent are allowed to stand with impunity. From the analyses given above, it is beyond doubt that under PNDCL 111 the successor has very little of the estate of the family member who die intestate. If the action of the respondent is indorsed and not checked and appropriately punished every smart member of a family will be encouraged to seize any portion of the estate of the deceased ostensibly to pay off debts or run his business, etc when in actual fact the action would be a move to get the smart family member to help himself to what he can lay hands on quickly to his advantage or to spite and deprive the widow and the children of their due under the current law. This type of action will eventually whittle down the effect of PNDCL 111 until it ceases to have any effect or bite. This, in my view, is one good, reason why the respondent’s action should be condemned in no uncertain terms so as to set a precedent for those who would want to follow in his trail.

To sum up, the allegation of intermeddling in the estate of the late Appau was well established by the affidavit evidence and the law for the following reasons:

(1) The respondent had no authority to sell the vehicles because at the time of the sale he was not a successor.

(2) Even if the estate was vested in him as the successor because he was so subsequently appointed, he was only empowered to take action which would protect the estate but not to dissipate it.

(3) As a successor he was not entitled both at common law and under Order 60, r 3 of LN 140A to administer the estate until he had been formally appointed as administrator.

(4) Having regard to the provisions in PNDCL 111 which reserve household chattels and a house absolutely to the widow and children, it cannot be the intendment of the same Law to give free rein to a successor to administer the estate to the extent of dissipating portions of the estate including those reserved for the widow and children. Conflicts and injustice in such a situation will be inevitable and indefensible.

 

(5) In any case since the petrol station did not form part of the estate of the late Appau, it was wrong to have sold part of the late Appau’s estate to save someone else’s estate, ie his late father’s estate.

For all the foregoing reasons there can be no doubt that the respondent is liable for intermeddling in the estate of the late Appau. The appeal is allowed. The judgment of the trial judge is set aside.

Lamptey JA.               I agree with the judgment

Foster JA.                   I also agree.

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