02 Nov Charlotte Anum & Others v. The High Court Registrar, Accra & 8 Others, Civil Appeal No. J4/10/2022, Delivered on 2nd March, 2022 (Supreme Court)
“… Plaintiffs who have interest in the property have the capacity to take steps to protect the property irrespective of them not having the property vested in them. The executors abandoned their duties over 30 years ago, justice demands that anyone who has interest in the property takes steps to protect and preserve properties belonging to the estate of the deceased.”
The Plaintiffs were the wife and some children of Mr. Jonathan Odai-Quaye (“the Deceased”) while the Defendants included other children of the Deceased.
By a will dated 30th September 1987 (“the Will”), the Deceased devised House number 24/3 East Nukwe Djourne, Nungua (“the Property”) to his wife and children as beneficiaries.
Probate was granted on 19th December 1991. However, the Executors subsequently failed to vest the Property in the beneficiaries for over 30 years. During this period, without the consent of the Plaintiffs, the other children of the Deceased (6th, 7th, 8th and 9th Defendants) used the Property as collateral to raise a loan from a Lender for a company. Subsequently, the company defaulted in repaying the loan.
The Lender sued to recover the loan, obtained a judgment from the court and the Property was sold to satisfy the judgment debt.
Subsequently, the Plaintiffs sued the Lender, the company and the other children contending that they did not consent to the use of the Property as collateral. They claimed that the acts of the Defendants were void and prayed that the Property should therefore be restored to the estate of the Deceased.
The Lender challenged the capacity of the Plaintiffs to sue since the Property had not yet been vested in the beneficiaries. The High Court dismissed the Plaintiff’s claim on this basis.
The Plaintiffs appealed to the Court of Appeal which affirmed the High Court decision and dismissed the appeal.
The Plaintiffs further appealed to the Supreme Court. The key issue for determination by the apex Court was whether the Plaintiffs could sue as beneficiaries of the estate to protect the Property when title had not yet been vested in them.
The Supreme Court noted that the Plaintiffs’ action was primarily aimed at preserving the estate of the Deceased which was being dissipated.
In interpreting section 96(2) of the Administration of Estates Act, 1961 (Act 63), the Supreme Court took into consideration the overall intent of Act 63, which includes the preservation of the estate of a deceased person.
It held that the Plaintiffs, who had an interest in the Property had the capacity to take steps to protect the Property although title to the Property was not yet vested in them. Considering the fact that the Executors neglected their duty, it was in the interest of justice that the beneficiaries take steps to protect the estate.
Insight: In the interest of justice, a beneficiary may sue to protect the properties of an estate of a deceased person, although title to the property has not yet been vested in the beneficiary.
CHRISTIAN KONADU ODAME
Trainee Legal Associate