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Read: CRITIQUE: THE REPUBLIC v HIGH COURT (COMMERCIAL DIVISION), ACCRA, EX PARTE: YVONNE AMPONSAH BROBBEY, GLADYS NKRUMAH (INTERESTED PARTY)
By Albert Gyamfi[1]
INTRODUCTION
When a person dies, his movable and immovable properties devolve on his personal representatives with effect from the date of his death.[2] Where a person dies testate, his personal representative is the executor(s) appointed by his will, but where the deceased dies intestate, it is a court that appoints his personal representatives; referred to as administrators. Until a vesting assent is issued by such personal representatives, the legal interest of the estate of the deceased is vested in his personal representatives as trustees of its intended beneficiaries.[3] The personal representatives of the deceased therefore acquire the legal right to possess, administer or deal[4] with the estate of the deceased to the exclusion of all other persons. Any person who takes possession of, administers or otherwise deals with the property of a deceased person may be guilty of intermeddling.[5] Order 66 rule 3 of C.I. 47 establishes intermeddling as a criminal offence punishable upon summary conviction, to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.
Although it is widely acknowledged that intermeddling is an offence, the challenge among lawyers and the bench had always been the proper procedure for the prosecution of such cases. While some legal luminaries argue that it is a criminal offence and can only be prosecuted by the Attorney General in the exercise of his powers under Article 88 (3) and (4) of the 1992 Constitution, others argue that intermeddling, just like contempt of court, is a quasi-criminal offence and may be dealt with summarily by a civil court upon an application.
Although the Supreme Court until the case presently under review had not resolved this dichotomy, conflicting decisions had been made by the Court of Appeal in the cases of Osei Kwaku and Another v Georgina Konadu Kusi[6] and Eric Akwetey Siaw & 2 Others v Tetteh Siaw-Sappore & 2 others[7]
[1] Albert Gyamfi is a private legal practitioner at the law office of Totoe Legal Service. He is also a law lecturer at the Wisconsin International University College and the author of Principles of Commercial Law in Ghana.
[2] See s.1 of the Administration of Estates Act, 1961(Act 63)
[3] See Re Okyere (deceased) Peprah v Appenteng and Adomah (2012) SCGLR 65 at 75
[4] Subject to liabilities for breach of their fiduciary duties
[5] Order 66 Rule 3 of High Court (Civil Procedure) Rules, 2004 (C.I. 47)
[6] (Unreported) Civil Appeal No. H1/11/2005 dated 22nd April, 2005
[7] (Unreported) Civil Appeal No. H1/177/2014 dated 16th June, 2016
OSEI KWAKU AND ANOTHER v GEORGINA KONADU KUSI
In this case, following the death of one Kofi Nsiah, the appellant herein, claiming to have been appointed by the deceased in his last will as an executor took out an originating process by way of notice of motion under the provisions of the Intestate Succession Law, 1985 (PNDCL 111) for an order punishing the Respondent for intermeddling with the estate of the deceased and also for an order compelling her to surrender certain specified properties of the deceased which were alleged to be in her custody to the applicants. An objection was taken against the process filed by the Appellant. The grounds of the objection were that the section of the applicable legislation under which the appellants issued the processes before the lower court created a criminal offence and therefore since the appellants were neither the Attorney General nor claimed to have initiated the proceedings with his, (the Attorney General’s), authority they could not initiate the action on their own against her as it was a criminal case. The trial court upheld the objection and dismissed the application on grounds of capacity.
Although, Order 66 rule 3 of C.I. 47 was not the provision under which the application was filed, Gbadegbe JA, (as he then was), who read the unanimous decision of the Court commented on the ruling as follows:
“I must observe, however that there is a similar provision in Order 66 rule 3 of the High Court Rules, CI 47. But since the section on which the application is based creates a crime, I think that the appellants could not by themselves have initiated what was in essence criminal proceedings; the power to do so having been vested in the office of the Attorney General of the Republic of Ghana. See Article 88 (3) and (4) of the 1992 Constitution. Further to this, I think that learned counsel for the respondent was right in his submissions regarding the form that a criminal trial should take in our jurisdiction. I am of the view that since the section on which the appellants relied created a criminal offence that is to be tried summarily…The result in my thinking therefore is that the application before the court below which sought to invoke its criminal jurisdiction was one that was incompetently instituted and thus rendered the proceedings before the court bad at law. I think that this was a clear instance of proceedings having been instituted without complying with essential statutory conditions namely the bringing of such an application by the Attorney General personally or proving that the application was initiated with his authority made under law. The said application was also fundamentally flawed in that the information on which the trial was to be based was not contained in a charge sheet that contained the statement of the offence together with its particulars, a condition precedent to the court’s exercise of its summary jurisdiction in criminal trials. The consequence of this default is that the application before the court below was thereby constituted into incompetent proceedings that rendered everything planked thereon ineffectual”.
The decision of the Court in essence meant that intermeddling was a criminal offence, and just like any other criminal offence had to be prosecuted at the instance of the Attorney General. The charges against the accused person must be contained in a charge sheet and must be regulated under the procedure set out under the Criminal and other Offences Procedure Act, 1960 (Act 30).