SEAMEWOH VRS. BRIM (PA/0939/2022) [2022] GHAHC 145 (8 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, PROBATE AND LETTERS OF ADMINISTRATION DIVISION ‘COURT 3’ HELD IN ACCRA ON TUESDAY THE 8TH DAY OF NOVEMBER, 2022 BEFORE HER LADYSHIP JUSTICE SARAH ARYEE (MRS.), J. ========================================== SUIT NO. PA/0939/2022 AGBOTSE KWEKU KPOLA SEAMEWOH - PLAINTIFF H/NO. 118, NII KODIA ROAD ADENTA, ACCRA VRS BISMARK BRIM H/NO. 32 LETTUCE STREET - DEFENDANT GW-063-4485 PARTIES: ABSENT COUNSEL: G. K. NTONY FOR THE APPLICANT PRESENT R U L I N G Order 4 rule 3 (1) and (2) of the High Court Civil Procedure Rules, 2004 C1 47 provides Joinder of parties; 3. (1) Subject to rule 4 of this Order, two or more persons may be joined together in the same action as plaintiffs or as defendants without leave of Court, where; (a) If separate actions were brought by or against each of them, some common question of law or fact would arise in all the actions: and (b) All rights to relief claimed in the action whether they are joint, several or in the alternative are in respect of or arise out of the same transaction or series of transactions. (2) Where the plaintiff in any action, other than a probate action, claims any relief to which any other person is entitled jointly with the plaintiff, all persons so entitled shall, subject to the provisions of any enactment and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff shall, subject to any order made by the Court on an application for leave under this sub rule, be made a defendant. The applicant herein, is seeking an order to be joined to the suit as 2nd defendant. The reasons are tabled in an affidavit in support which states inter alia that; 2. I am one of the beneficiaries in the estate of the late Margaret Afua Agodzo. 3. That per paragraph 5(a) of the Will of Margaret Afua Agodzo dated 23rd November, 2008 House No. 188 Nii Kodia road Adenta, Accra was devised equally to me and Raphael Kwasi Nkansah. The Plaintiff is opposed to the application and among the reasons assigned are that; 8. That the Respondent is further advised that the title of the applicant as beneficiary claiming under the Will, will be only complete by some act on the part of the Executor, either in the form of an Assent or Conveyance so as to give effect to the gift under the Will. The plaintiff’s pliant in this suit is that a house devised in his late mother’s Will belongs to him and not his late mother. He has sued the defendant as executor to his late mother’s Will for declaration of title. In the case of MARFOA VRS. AGYEIWAA (J4 42 OF 2012) [2016] GHASC 84 (09 NOVEMBER 2016);, the Supreme Court reversed the position of the Court of appeal that the beneficiaries should have been added to the suit because they had an interest in the estate of the deceased. The court said; “The Court of Appeal also intimated that the other beneficiaries under the Will should have been included in the action because the outcome will affect their interests. We do not think this was necessary because the respondent was sued in her capacity as administrator and not as a beneficiary. So it is her duty to protect the interest of the whole estate of the deceased. Again the respondent had not yet distributed the properties and prepared vesting assets in respect of the properties, so the beneficiaries could not be sued. Azu Crabbe in his book, Law of Wills in Ghana, at page 175, paragraph three wrote: “It is now well established that a Will made by a Ghanaian becomes operative and no more, as from the date of the testator’s death. His intention expressed in the Will has no legal effect, until the Will is admitted to probate”. From this, the inference that can be drawn is that the property devised to the various beneficiaries does not take effect until probate is granted and so since the Administrator has not yet been granted probate, the devolutions to the various beneficiaries have no legal effect yet. As such it is only the personal representative who should be sued.” As stated above, it is the personal representative who should be sued. In the present case, the applicant is seeking to be joined to the suit because she is a named beneficiary in the Will of the testator. If the court finds at the end of the suit that the house in question was the property of the deceased, it Will be vested in the named beneficiary in the Will of the deceased. On the other hand, if the court finds that the property was not the personal property of the deceased, same cannot be vested. Either way, the presence of the applicant as a party will make no difference. Order 1 (2) of CI 47 requires that the rules are interpreted and applied to achieve speedy and effective justice, avoid delays and unnecessary expenses. This is an instance where it is my candid opinion that unnecessary expenses could be avoided if this application is refused. The applicant is not a necessary party to this suit. From the above authorities, the property devolved upon the executor upon the demise of the testator. The executor is therefore the proper person to sue and be sued. Further, as stated above, the applicant is not a necessary party to the suit. The application for joinder is accordingly refused. (SGD) SARAH ARYEE (MRS.) J, JUSTICE OF THE HIGH COURT 5