ATE ROBERT HABIB HITTI (DECEASED) AND GEORGE JAMIL MOUGANIE (H1/114/2021) [2021] GHACA 52 (28 October 2021)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE COURT OF APPEAL (CIVIL APPEAL) ACCRA – GHANA CORAM: SENYO DZAMEFE JA PRESIDING P. BRIGHT MENSAH JA NOVISI ARYENE JA SUIT NO. H1/114/2021 28TH OCTOBER 2021 IN THE MATTER OF THE ESTATE OF THE LATE ROBERT HABIB HITTI (DECEASED) AND IN THE MATTER OF AN APPLICATION BY GEORGE JAMIL MOUGANIE FOR THE GRANT OF PROBATE CAVEATRIX: MIREILLE HITTI -AND- … CAVEATRIX/APPELLANT JUDGMENT ========================================================= BRIGHT MENSAH JA: My Lords, this case which otherwise was a simple an issue touching on, and concerning administration of an estate matter, has had a chequered history. It all started when a Robert Habib Hitti, a Labenese national and businessman but ordinarily resident and doing business here in Ghana, died on or about the 25th day of March 2001. The deceased was survived by his spouse, Theresa Nahum Rouhana Hitti and three (3) children, namely: Alwan Robert Hitti, Caroline Akl and Mireille Hitti (the appellant herein). On record, the surviving spouse together with Alwan Robert Hitti jointly applied for Letters of Administration and were so granted Letters of Administration by the High Court on 20/06/2001 to enable them administer the estate of the deceased. Pursuant to that, the administrators took steps to vest the assets belonging to the deceased here in Ghana, in the beneficiaries. It is noted that some time later, that is to say, on or about 13/11/1985 the surviving spouse, Theresa Nahum Rouhana Hitti also died leaving her properties including those that came to her from her husband’s estate, to the daughter, the caveatrix/appellant herein. However, about 17 years or so later, it emerged that the deceased, Robert Habib Hitti left behind a Last Will and Testament. Consequently, the surviving Executor named in the said -Will, George Jamil Mougaine (respondent herein) in or about December 2017 proceeded to apply for a Probate to the Will. The appellant herein then caused her solicitors to file a caveat. Upon being served with a copy of the caveat, filed a warning and caused same to be served on the solicitors for the appellant. Subsequently, the appellant filed her Affidavit of Interest. Further to filing her Affidavit of Interest, the caveatrix/appellant on 12/06/2018 caused her lawyers to file a motion on notice to strike out the applicant/respondent’s application for Probate. It does appear that while the application for Probate was still pending for determination, the applicant/ respondent issued a writ to set aside the Letters of Administration earlier granted to the surviving spouse and a son of the deceased which the High Court (differently constituted) granted. So aggrieved with the turn of events, the caveatrix/appellant through her lawyers filed an application for an Order of Certiorari in the Supreme Court to quash the judgment of the High Court that revoked the grant of the earlier Letters of Administration. The application in the Supreme Court however failed. The apex court delivered its judgment on the matter on 17/01/2019 and dismissed the application. Still dissatisfied, the caveatrix/appellant herein filed a fresh suit in the High Court in suit no. GF801/19 entitled: Mireille Hitti v George Jamil Mougaine, Caroline Akl, Alwan Robert Hitti and the Registrar of Companies, seeking the following judicial reliefs: 1. An order setting aside the judgment of the High Court dated 5th June 2018 revoking Letters of Administration granted on 20th June 2001 in respect of the estate of Robert Habib Hitti; 2. A declaration that the defendants are estopped from enforcing any Will of the late Robert Habib Hitti; 3. An order perpetually restraining the defendants from interfering with the plaintiff’s lawful acquired inheritance from the late Ro- bert Habib Hitti and Theresa Nahum Rouhana Hitti (deceased); 4. Costs; and 5. Any further order that this honourable court seems fit. It is pertinent to observe that whilst that case was still pending for determination the caveatrix/appellant through her lawyers proceeded to file and did file, an application for stay of proceedings of the Probate application that has eventually culminated in the instant appeal. The application for stay of proceedings never found favour with the lower court. Per a ruling of the court delivered on 01/07/2019 as appearing on pp 122-124 of the record of appeal [roa] the application was so dismissed for lack of merit. Consequently, the lower court on the 29th July 2019 went ahead and granted Probate to the Estate of Robert Habib Hitti (deceased) to the applicant/respondent herein. The order of the court granting the Probate also appears on pp 125-126 [roa]. Now, it is against this decision of the lower court of 29/07/2019 that this instant appeal has been launched, on grounds that: 1. That the learned trial judge committed an error of law and occasioned a miscarriage of justice when she granted the application for Probate without giving due consideration to or taking into account the matters deposed to in the Cavea- trix’ affidavit of interest. 2. That the learned trial judge committed an error of law and occasioned a miscarriage of justice when she granted the application on the basis of an earlier ruling on an application for stay of proceedings when that application was separate and distinct from the application for grant of probate. 3. Further grounds of appeal will be filed upon receipt of the record of appeal. So far as the records go, no further grounds of appeal were filed. In this appeal, the Caveatrix/Appellant shall simply be referred to as the appellant whereas the Applicant/respondent, the respondent. The appeal: The law is certain that an appeal is by way of re-hearing the case. The Court of Appeal Rules, C. I 19 per rule 8(1) provides that any appeal to the court shall be by way of re- hearing. The rule has received ample judicial interpretation in many cases to mean that the appellate court is enjoined by law to review the whole evidence on record and come to its own conclusion as to whether the findings of the lower court both on the land and facts, were properly made and supportable. In R v High Court (General Jurisdiction 6); Exparte Attorney-General (Exton Cubic – Interested Party) (2020) DLSC 8755 the Supreme Court speaking through Anin-Yeboah JSC (as he then was) restated the principle as follows: “Appeal is an application to a higher (appellate) court to correct an error which may be legal or factual. In Ghana, all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.’’ This court in Kofi v Kumansah (1984-86) 1 GLR 116 @ 121 having considered and adopted the principle as espoused by Webber CJ in Codjoe v Kwatchey (1935) 2 W. A. C. A 371, stated the law as follows: ‘’The appeal court is not debarred however from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration it comes to the conclusion that the judgment is wrong……………………” The settled rule, therefore, is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case and the evidence led on record just like a trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not disturbed. The opposite is equally true and the judgment is upset on appeal where it is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A. The rule is also that where the appellate court was obliged to set aside a judgment of a lower court, it must clearly show it in its judgment where the lower court went wrong. The rationale is to correct the lower court and that also serves as a guide to all lower court to follow the decision of the higher court on questions ofr law. Reiterating the principle, Ollenu JSC deliverered himself, an opinion in Prakwa v Ketewa (1964) GLR 423 as follows: ‘’……………….[a]n appeal is by way of rehearing and so an appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the extent that the trial court could …………………………………………………. Therefore, if in the exercise of its powers, an appeal court feels itself obliged to reverse findings of fact made by the trial court, it is incumbent upon it to show clearly in its judgment where it thinks the trial court went wrong.” Now, to the merits of the instant appeal. We intend to combine both grounds of appeal and address them together. Submissions of Counsel for appellant: It has been argued on behalf of the appellant that the affidavit of interest that was filed in the Probate Court [lower court] raised legitimate issues like statute of limitation, the probate application having been brought 12 years after the grant of the Letters of Administration. Thus, Counsel for the appellant submitted that the lower court committed an error of law when it did not deal with the appellant’s affidavit of interest but went ahead to grant the Probate when it was still on the court’s docket. Learned Counsel referred us to the case of Coleman v Shang (1959) GLR 390 and submitted that a caveat filed together with an affidavit of interest constituted a counterclaim and that so long as the caveat was pending in this case, an order by the lower court granting Probate to the respondent was irregular. Having drawn this court’s attention to the earlier application for stay of proceedings that the lower court dismissed on 01/07/2019, Counsel contended had the proceedings in the earlier application had nothing to do application for probate. Therefore, the lower court was in error to have held that nothing new has been filed since it dismissed the application for stay of proceedings on 29/07/2019 and on that basis proceeded to grant probate to the respondent, Counsel insisted. It was Counsel’s view that the lower court’s reliance on its ruling dealing with an application for stay of proceeds to dispose a probate application without the appellant being heard on the matters raised in her affidavit of interest was in error and in breach of the audi alteram partem rule. In support, Counsel relied on In re Hervie (decd); Addo v Boye & anr (1989-90) 1 GLR 174. Arguing further, Counsel contended that the lower court ought to have followed the procedure provided for under Order 66 r 11(12) & (13) of CI 47 that stipulate: “(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.” Learned Counsel next tried to distinguish the instant case from Thomas Tata Atanley Kofigah & anr v Kofigah Francis Atanley & anr (Civ. App. No. J4/05/2019) delivered 22/01/2020 in which case the Supreme Court speaking through Pwamang JSC has stated the law that having regard to the depositions in the affidavit filed in that case, the filing of the caveat under rule 11 of Order 66 was a false procedural step. Learned Counsel stated again that the probate application in our present case was statute barred having regard to the fact that the alleged Will of the deceased emerged about 17 years after Letters of Administration has been granted in his estate and the administrators have wound up the estate. The purpose of the appellant’s caveat, Counsel further maintained, was to alert the lower court about the challenge otherwise the grant of probate would be contrary to Limitation Act, 1972 (NRCD 54), S. 8. Learned Counsel chastised the learned trial judge for holding that after dealing with the application for a stay of proceedings nothing new has been placed before her that stops her from granting the application for probate. In her opinion, reference to the court’s ruling in the stay of proceedings application was in error. Concluding, learned Counsel for the appellant insisted that in hearing an application for probate, the court could not purport to follow a procedure that would sanction the use of its ruling on an application for stay of proceedings to determine matters raised in the probate application that had not been given any consideration. Submissions by Counsel for the respondent: The filing of the caveat by the appellant was a false procedural step, Counsel maintained, relying on the same decision of the Supreme Court in Thomas Tata Atanley Kofigah & anr v Kofigah Francis Atanley & anr (supra). Counsel for the respondent has submitted that Order 66 r 11(12)&(13) did not apply in the instant case and the lower court was not obliged to apply those provisions since the caveat was not to challenge the proper person entitled to grant of probate. It was also Counsel’s view that the lower court considered and took cognizance of all processes the parties had filed and that included the affidavit of interest the appellant filed before proceeding to grant the probate. Counsel next drew this court’s attention to the statement of law Gbadegbe JSC had made on the question of statute of limitation earlier in the case, R v The High Court, Accra; Exparte Mirelle Hitti (George Jamil Mougaine & ors – Interested Parties) (supra) by which case the issue has been considered and dismissed. Counsel invited the court to dismiss the ground of appeal as he was of the view that the learned trial judge never committed any error of law that might have occasioned any miscarriage of justice. Legal analysis and opinion of this court: To begin with, the Wills Act, 1971 (Act 360) and Order 66 of the High Court (Civil Procedure) Rules, 2004 [CI 47) and to some extent, the Administration of Estates Act, 1960 (Act 63) are the statutes that regulate and govern issues touching on and concerning Wills, and/or for interpretation of Wills, in Ghana. Now, we need to say that the purpose of filing a caveat in an estate matter is to enable a party who claims interest in the estate and intends to, or opposes the grant of probate or letters of administration on the ground that he was entitled to the grant rather than the party applied, to serve a notice to challenge the application. For, Order 66 r 11(1) of CI 47 is apt on the point as the law provides: “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 pro- bate or letters of administration is issued without notice to the person, may file a caveat.” Additionally, the filing of caveat serves as a notice to the Probate court when it is considering an application for probate or letters of administration. It is a notice to the court, requesting that no grant be made until the caveatrix was heard. In simple terms, it freezes action on issuing a probate or letters of administration unless and until the party who filed the caveat has been heard on his challenge to the grant. It bears emphasis that that provision of the law ie Order 66 r 11(1) has quite recently received a judicial interpretation by the Supreme Court in Thomas Tata Atanley Kofigah & anr v Kofigah Francis Atanley & anr (Civ. App. No. J4/05/2019) in which case, the apex court speaking through Pwamang JSC postulated: “…………… the filing of a caveat against grant of probate or letters of administration is for the court to determine the proper person to be appointed executors or administrators and not for the purpose of challenging the validity of a Will. Under the rules, the procedure by which the validity of a Will may be challenged is different…………………………..” The Supreme Court in Thomas Tata Atanley Kofigah & anr v Kofigah Francis Atanley & anr (supra) had explained that there were 2 alternative ways of proceeding under the rules challenging the validity of a Will. The first was to proceed under rule 26 of Order 66 calling on the executors to prove the Will in solemn form or to renounce probate. The other alternative method, is for the party to issue a writ pursuant to Order 66 r 28(1) for an order of the court to declare the Will invalid. Where the challenge is to validity of the Will, the party challenging it has to resort to either rule 26 of Order 66 calling on the Executors to prove the Will in solemn form or may proceed under rule 28(1) of Order to issue a writ of summons. Now, Order 66 r 26(2) which is directly in issue and relevant to our discussion expressly provides: “Any person who claims to have an interest in the estate of a deceased person may by notice in writing request the executors named in the Will of the deceased to prove the Will in solemn form.” The required notice shall state the name and address as well as the description of the person filing it. The party shall additionally state the alleged interest he has in the estate. The other condition precedent is that the party shall state the specific grounds upon which the validity of the Will is disputed. See: rule 26(3) of Order 66 of CI 47. Now, juxtaposing rules 23 & 26 of Order 66 with rule 11 it is plainly obvious that whereas rules 23 and 26 deal with challenge to the validity of the supposed Will, the filing of caveat pursuant to rule 11 deal with challenge as to who is entitled to be granted probate to the Will of the deceased. It is pertinent to observe that in the Thomas Tata Atanley Kofigah & anr v Kofigah Francis Atanley & anr (supra) the caveatrices had deposed to in paragraphs 4 and 5 of their affidavit of interest as follows: “4. We have subsequently procured a copy of the said Will and it is our contention that the Last Will & Testament as deposited is fraudulent, to the extent that the signature which appears on the Will as the signature of our late father, Thomas Komla Atanley Kofigah is indeed not the mark of the Testator. 5 In consequence therefore, we make bold to state that the Last Will & Testament of Mr Thomas Atanltey Kofigah alias Komlah Atanley Kofigah allegedly made on 14th day of November 2007 is a complete forgery and ought to be cancelled and/or annulled.” The caveatrices had not filed a ceaveat in that case on the basis of who was entitled to the grant of probate. Rather, they contended that the Last Will & Testament was forged. In other words, it was fraudulently procured. It was in the context of those depositions in the affidavit of interest that the apex court held that the steps the caveatrices took was faulty in procedure. In our instant case, the caveatrix stopped short of saying that the Will found 17 years after the Letters of Administration was fraudulently procured. Nevertheless, since the challenge to the validity was not anchored on a writ for the court to determine whether the application for probate was caught by S. 8 of NRCD 54 but the case hinged on a caveat, our view is that the procedure adopted was bankrupt and inappropriate. Admittedly, where a caveat is sitting on a docket for determination the Probate court cannot without pronouncing on its merits, disregard it and make a grant of probate. On the authorities, so long as the caveat is pending, a grant would be irregular. See: In re Nkansah (dec’d); Nkansah v Okyere (1989-90) 2 GLR 195; In re Hervie (dec’d); Addo v Boye (1989-90) 1 GLR 174. To that extent, I roundly agree with submissions of learned Counsel for the appellant that the learned trial judge committed an error of law when she disregarded the caveat and proceeded to grant probate provided that the caveat was proper and regular. Nevertheless, from the facts of the case and the statements of law stated elsewhere in this judgment particularly, the interpretation on Order 66 rules 11(1), 12&13, 23&26 of CI 47 the Supreme Court gave in Thomas Tata Atanley Kofigah & anr v Kofigah Francis Atanley & anr (supra), which decision is binding on this court in terms of Article 133 of the 1992 Constitution, the caveat the appellant filed was of no consequence. In other words, the proper and valid rule of procedure that the appellant ought to have adopted was to have issued a writ once she was challenging the validity of the Will and not to have filed a caveat in the circumstances of the case. The caveat was only appropriate if her challenge had regard to the proper person to be granted probate. Consequently, our opinion is that technically speaking, there was no caveat properly so called, pending in the case. Therefore, the lower court had jurisdiction to deal with the probate application and to grant it at that stage regardless of the caveat on the docket. We now proceed to consider the question of the application caught by statute of limitation. The main fulcrum around the case of the appellant revolved was that the application for probate the respondent mounted was statute barred. She had put the validity of the Will of the deceased found 17 years upon his demise, into dispute. In the affidavit of interest she was not challenging who was entitled to the grant of probate. Impugning the propriety of the Will, the appellant averred in paragraphs 11 – 13 of her affidavit of interest that runs as follows: “11. That the present application for probate in respect of the deceased’s estate is contrary to law and offends the Statute of Limitations as it is being brought over 17 years after the deceased’s estate has been administered. 12. That the origin of the purported Will of the deceased is un- known and a grant of Probate will serve no real purpose and will be an exercise in futility as the estate has been wound up. 13. That I am advised by Counsel and verily believe same to be true that it will be contrary to law for Probate to be granted in respect of an estate for which the same court granted Letters of Administration as far back as the year 2001.” See: pp 14-15 [roa]. It is worth emphasizing that when the matter went to the Supreme Court one of the fundamental issues turned on the consideration as to whether the application for probate the respondent filed was caught by Statute of Limitations, NRCD 54, S.8. The apex court adequately addressed the issue. The Supreme Court speaking through Gbadegbe JSC held as follows: ”……………… [W]e have taken note of the related matter contained in ground 2 which speaks of the estate having been would up long before the application was filed to revoke the grant and add that as the letters of administration was obtained contrary to the statutory provisions that autho- rise the grant of letters of administration, the order was from its inception a nullity and the feeble point concerning the Statute of Limitation does not arise for our consideration; for such a point override the fact that where a deceased died leaving a Will, the estate falls to be distributed by rules of testacy but not intestacy.” See: p. 94 [roa] The court held further [as appearing on p. 95 roa] as follows: “In our view as a Will was discovered subsequent to the grant of letters of administration to the wife of the testator and the 3rd interested party herein, the said grant was made on the basis of a fact which did not exist and made the grant contrary to the provisions of the Administration of Estates Act, Act 63. In our opinion, where a grant is made to a person other than the one lawfully entitled, there is authority in a court to revoke the grant [of letters of administration]…..………………………..” Now, having regard to facts of the case and on the law, the instant appeal fails on both grounds. The appeal is therefore dismissed in its entirety as lacking any merit. No order as to costs. SGD P. BRIGHT MENSAH I AGREE I ALSO AGREE (JUSTICE OF APPEAL) SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD NOVISI ARYENE (JUSTICE OF APPEAL) COUNSEL ERNESTINA OTU FOR CAVEATRIX/APPELLANTS CLARANCE TAGOE FOR RESPONDENTS 17