Ex Parte Yvonne Amponsah Brobbey Case: Did the Supreme Court actually shut the door on Civil Proceedings in an intermedelling Case?
Last month, the Supreme Court in the landmark case of the Republic v. High Court (Commercial Division), Accra; Ex P arte: Yvonne Amponsah Brobbey (Gladys Nkrumah – Interested Party) held that since Intermeddling is an offence; it is only the Attorney General or a person acting under its power who can initiate criminal prosecutions. The decision also purported to settle, to a greater extent, the long-standing controversy, particularly at the Court of Appeal, over whether a criminal intermeddling proceeding should be commenced by an originating motion on notice or a charge sheet in criminal prosecution. The Apex Court further noted that, by making intermeddling an offence under Order 66 rule (3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), the Rules of Court Committee exceeded its mandate.
The decision received immediate response from some members of the legal fraternity; some of whom boldly registered their total disagreement and offered a critique. Unassumingly, one Albert Gyamfi in his insightful paper titled: “A Critique on Intermeddling Case”, beautifully displayed rare academic brilliance and practical understanding of the law in his carefully-dissected analysis of the judgment.
For the sake of the development of our jurisprudence, I have decided to share my take on both the Supreme Court’s decision and, on the views expressed by the learned writer not only in this paper, but also in the ensuing editions.
Today’s edition will put in perspective the status of an intermeddling application in Ghana. In the case under review, the Supreme Court emphasized that Order 66 rule (3) of C.I. 47 is ‘incompetent to create a novel offence of intermeddling with the sanctions attached thereto’ and thereby shot down the practice by which civil processes are used to initiate criminal intermeddling proceedings. In the view of the learned critic, the Supreme Court nullified Order 66 rule (3) of C.I. 47 when it should not have done so.
Despite the view expressed by the critics, the writer herein would like to use this medium to not only encourage the use of civil processes to commence proceedings against intermeddlers under the saidOrder 66 rule 3 of C.I. 47, but also to embolden trial judges to confidently exercise their jurisdiction in entertaining and determining same, in the absence of any crime. His admonishment should be situated within the context of the discussions and not be miscomprehended as being disparaging the decision of the five intelligent learned men and women imbued with immeasurable wisdom.
About three decades ago, the Court of Appeal in the case of In Re Appau (Dec’d): Appau v. Ocansey held per Brobbey J.A. (as he then was) that an intermeddling application may be commenced by a civil process. Twelve years later, it again decided that because intermeddling has been criminalized under Order 66 rule (3) of C.I. 47, it has to be commenced by a charge sheet in the same manner as other crimes. A decade passed and the Court had to revert to its original positionand even fortify it that intermeddling proceedings must be commenced by a civil process. Since then, the argument of whether intermeddling proceedings should commence by a civil process or by the Attorney General through a criminal prosecution assumed centre stage in many academic and legal discourse. What fuelled the controversy was mainly the provisions of the rules of courts which made intermeddling an offence under Order 66 rule (3) of C.I. 47.
On 1st February, 2023, the Supreme Court in the case of the Republic v. High Court (Commercial Division) Accra, Ex Parte Yvonne Amponsah Brobbey (Gladys Nkrumah, Interested Party)seized the opportunity to put to rest the controversy by holding that because the Rules of Court Committee has no power to use the rules to create criminal jurisdiction in the High Court in intermeddling cases, Order 66 rule (3) of C.I. 47 which makes intermeddling an offence is thus null and void. The Apex Court further held that since under PNDCL 111, intermeddling is an offence; it is not open to anyone, other than the Attorney General or a person acting lawfully under its instructions, to initiate criminal prosecutions.
The decision raised eyebrows among the members of the legal fraternity culminating in an illuminating piece of academic research and enlightenment by one Albert Gyamfi who disagreed entirely with the Apex Court. The learned writer surmised: “The Supreme Court in the case under consideration declared Order 66 rule (3) of C.I. 47 a nullity … The Supreme Court having declared the said law to be a nullity, the effect is that same is void ab initio”.
Did the Supreme Court actually declare Order 66 rule (3) of C.I. 47 a nullity?
In order to answer the question as to whether the Supreme Court declared Order 66 rule 3 of C.I. 47 a nullity, it is essential that we get a deeper understanding of the antecedents to the concept of intermeddling, which has its roots firmly ingrained in the common law. An intermeddler, literally, is a person who without authority takes upon himself the office of an executor by intrusion or interferes with the estate of a deceased person.
Williams on Executors and Administrators, (1960 ed), Vol 1, p 28 explains thus: “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”.
Executor de son tort is a French term which translates: ‘executor of his own wrong”. It was defined by Williams, supra to mean a person: “”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 Osborn’s Concise Law Dictionary (Eighth Edition) edited by Leslie Rutherford and Sheila Bone, at page 182, defines intermeddling as: “Taking steps in the administration of a deceased person’s estate (other than arranging the funeral) which an executor should do … A third party who intermeddles is liable as an executor de son tort”. The concept of intermeddling with the estate is a wide one and even a trifling intrusion therein may bring one within the concept of an intermeddler or an executor de son tort.
Fidelis Nwadialo also in his book, ‘Civil Procedure in Nigeria (2nd Edition) at page 1147 throws more light on the concept thus: “… a person who intermeddles or interferes with the estate without any authority, whatsoever, either of the deceased or the court is called an executor or executrix de son tort. He is one who takes upon himself the office of executor by intrusion, not being so constituted by the deceased, nor for want of such constitution, substituted by the court to administer. He is subject to all the liabilities but none of the privileges of an ordinary executor. An executor de son tort has no principal and he is personally liable for his act as he can be in no better position than a personal representative.”
Judicially, Justice Wachowen in Canadian Commercial Bank v. McLaughlan expounded: “The executor de son tort is … person not lawfully appointed executor or administrator may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship”.
In the West African Court of Appeal case of Dr Curtis Adeniyi Jones v. Josephine Martins, the defendant without any authority collected rents upon the real property which was part of her deceased brother’s estate. By so doing, she became an executrix de son tort and was held liable to the plaintiff for professional services rendered to the deceased during his life time.
A judgment against an executor de son tort is not a judgment against the estate and binds the assets of the estate to the extent of the assets already in his hand. In the American case of Carmichael v. Carmichael, it was held that an executor de son tort bears all the liabilities of an executor but none of his benefits and privileges.
From the above, it can be inferred that the common law perceived an intermeddler as an executor de son tort. Apart from the civil liabilities, most countries, have criminalized the concept of intermeddling. It is worthy of note that in some jurisdictions such as Kenya, The Gambia, Trinidad and Tobago and Jersey, criminal intermeddling is incorporated into a substantive Act of Parliament. An intermeddler in Hong Kong can be fined up to US$ 10,000.
In Ghana since independence, Intermeddling has been criminalized by the Court rules, in addition to the civil component. Under the current rules of the High Court, Order 66 rule (3) which is pari materia to Order 1 r (3) of the Probate and Administration Rules, 1991 (L.I. 1515) provides:
“Intermeddling with property
- Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on 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”.
As per the above provision, intermeddling has put on a Janus-faced posture having both the civil form and the criminal type. A careful reading of the above rule would show that the first part which is the civil component is virtually a restatement of the common law position; while the latter part of the order is the criminal constituent. Commenting on the above order in the case under review, the Supreme Court affirmatively accentuated thus: “The said order purports to impose obligations and liabilities of an executor or administrator on the intermeddler, which is civil, on one hand and on the other hand creates the offence of intermeddling and prescribes punishment of imprisonment which is criminal.”
The case of Impraim v. Baffoe provides an archetypal model of civil intermeddling proceedings, notwithstanding the provisions of the criminal component of the concept in the then High Court (Civil Procedure) Rules, 1954 (LN 140A) which was analogous to the provisions of the current Order 66 rule (3) of C.I. 47. The Court presided over by Okunor J. dealt with the case completely as a civil matter and held thus: “The defendant confesses to collecting rents due to the estate. The executor de son tort is liable to be sued by the rightful executor or administrator or legatee. He must account to the personal representative and will thus put an end to his liability except as regards outstanding legal actions”.
However, it appears that the criminal component of the concept has virtually decimated the civil part to such an extent that even when an application is filed through civil process, its objective has, largely, been to get the intermeddler punished with an imprisonment or a fine and not necessarily for him to render account or held liable for his actions. Her Ladyship Dordzie J.A. (as she then was) amply put it in Eric Akwetey Siaw & 2 Others v. Tetteh Siaw-Sappore & 2 Others thus: “In dealing with offences such as … intermeddling as in this case, the court’s concern is punishing for breaches of court orders or undertakings for the benefit of the parties”.
Imperceptibly, the courts have somehow, managed to intermingle the civil and the criminal concepts into one identifiable system, and are keen to designate it as quasi criminal just like contempt of court. Needless to say that, intermeddling is not quasi-criminal. It is a hundred percent crime under Section 17 of the Intestate Succession Law, PNDCL 111.
Similarly, under Order 66 Rule (3) of C.I, 47, it is a complete crime and wholly civil; just like the body and soul, each being a complete whole. In Jamila Yakubu v. Abdul Aziz Ishak supra, the Court of Appeal rightly underscored: “Intermeddling has its criminal and civil versions … The common law intermeddling … is commenced by an application”.
Nonetheless, the Court after making that profound exposition soon fell into an error (as the Supreme Court has made us to understand in its recent decision); when it confined the criminal component of intermeddling to the provisions of Section 17 of PNDCL 111 and the civil part to Order 66 rule (3) of C.I. 47, describing it as quasi-criminal. Poku-Acheampong J.A. speaking for the Court said: “Thus, it can a fortiori be said that Order 66 r (3) now validly governs intermeddling applications and a judge who relies on same to convict a party of intermeddling cannot be said to have acted without jurisdiction”.
It may be observed that despite the concept being criminalized by PNDCL 111, the Act did not in any way erode the civil component of the concept. Put differently, nowhere in PNDCL 111 or any other statute is it stated that by virtue of the criminalization of intermeddling, the common law practice of treating the intermeddler as an executor de son tort and holding him liable, shall cease to apply.
It is trite learning that a single act can have both civil and criminal consequences. The Court of Appeal, in the case of Alex Onuamah Coleman and David Koomson v. Newmont Ghana Gold and Emmanuel Atsiafu and Others v. Newmont Ghana Gold stressed the point that although intermeddling has been criminalized under PNDCL 111 and the ratio of the Osei Kwaku case cited supra attested to the fact that proceedings in court for the prosecution of criminal offences can only be done as provided for by Article 88 of the Constitution and the Criminal Procedure Act 30, it does not mean the door to a civil court has now been shut.
Her Ladyship Torkornoo (Mrs) J.A. (as she then was) remarkably explicated as follows: “But it [the ratio of Osei Kwaku supra] does not articulate a general principle that any person who does not seek a criminal remedy before a court is precluded from even investigating conduct that is criminal in nature to take a decision regarding that conduct because only the criminal justice system can determine whether criminal conduct has occurred. If that were the case, fraud, unlawful harm and any number of acts that were actionable in both civil and criminal proceedings would be confined to criminal justice system … neither can any civil suit be undertaken where criminal offences are in issue. But this is not so. It is trite knowledge that a party who has suffered from conduct which is criminal in nature – such as fraud, harm or misappropriation of their property can undertake any civil action for the purpose of seeking other available remedies”.
It may be recalled that the Supreme Court in its decision in the Republic v. High Court (Commercial Division) Accra, Ex Parte Yvonne Amponsah Brobbey (Gladys Nkrumah, Interested Party)supra only deactivated the criminal aspect of Order 66 rule (3) of C.I. 47 and was careful not to obliterate the entire rule. It had unambiguously affirmed that Order 66 Rule (3) of C.I. 47 has both civil and criminal forms and was thus mindful of its diction. His Lordship Kulendi JSC speaking for the Apex Court decided thus: “From the foregoing, we have no hesitation to conclude that in its current terms, Order 66 Rule 3 of C.I. 47, being a creature borne out of the constitutionally circumscribed powers granted the Rules of Court Committee, is incompetent to create a novel offence of intermeddling and the sanctions attached thereto. Any previous decisions of the other courts inconsistent with these statements of the law are in obvious error and are to that extent overruled. In the circumstances, the ruling of the High Court (Commercial Division), Accra wherein it held that it had jurisdiction to entertain, and enter into an enquiry of an alleged offence of intermeddlingpursuant to Order 66 rule 3 of C.I. 47 is a clear, obvious and patent error of law …” (My emphasis).
Since the Supreme Court was attacking only the criminal component of Order 66 rule (3) of C.I. 47,and had demonstrably stressed that the rule has both civil and criminal parts, it may now read like this:
““Intermeddling with property
- Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator.
Flowing from the above, an executor or a beneficiary may commence civil proceedings against a person who interferes with the estate of a deceased person under the rules so that the intermeddler can be treated as an executor de son tort. If the executor wants the intermeddler to be punished, he may have to lodge a complaint with the police for the matter to be inquired into and prosecuted by the Attorney General, the police or a person with the authority of the Attorney General to prosecute for an offence under Section 17 of PNDCL 111.
Is the two-pronged approach in prosecuting intermeddling cases relevant?
It is incontestable that intermeddling is a crime in Ghana by virtue of the provisions of Section 17 of PNDLC 111. In all probability, a beneficiary affected by the acts of an intermeddler would want to see the person punished by the law and sentenced to either a fine or imprisonment. However, this dream may not always come to fruition, but can leave the hopes of the beneficiary dashed. It is a reality that the Attorney General and the police are inundated with cases on daily basis and they may not give the intermeddling case enough priority. If the law should only permit criminal prosecutions, it is doubtful whether the underpinning reasoning behind the adoption of the concept of intermeddling could be effectively realized. It may well be that the Attorney General and the police may lack the zeal and enthusiasm to diligently pursue a case of intermeddling. While sharing an experience of criminal prosecution of intermeddling cases in Jersey, a legal commentator illuminated thus: “Prosecutions for the offence of intermeddling have today been extremely rare”. It is no wonder that some states have adopted a dual criminal prosecution system for the offence of intermeddling by either the Attorney General or an individual through a civil application. In Jersey, where the amount involved in the intermeddled property is below £10,000, they are to be referred to the Attorney General for investigation and prosecution. But if it is below the threshold, a beneficiary or executor can personally prosecute the case.
The advantage of maintaining the civil component of intermeddling is that it enables the affected beneficiaries and interested executors to pursue and conduct their own cases in court. It is not all the time that a beneficiary may be interested in seeing the intermeddler punished, he may be eager to benefit from his share of the estate and that could well be achieved by commencing a civil suit.
Intermeddling is both a crime and a civil concept. it is not a quasi-criminal concept as has wrongly been perceived. The Supreme Court’s recent decision under review affected only the criminal component which demands the Attorney General and its authorized officers to prosecute intermeddling cases. The decision should therefore, not be construed as rendering a death blow to the commencement of civil proceedings in intermeddling cases under Ghanaian jurisprudence.
 The Republic v. High Court (Commercial Division), Accra; Ex Parte: Yvonne Amponsah Brobbey (Gladys Nkrumah – Interested Party); Civil Motion No. J5/82/2022, 1st February 2023.
 Albert Gyamfi: ‘Critique on Intermeddling Case’ – in a paper published on www.myjoyonline. com on 24th February 2023.
 In Re Appau (Dec’d); Appau v. Ocansey [1993-1994] 1 GLR 146.
 See the case of Osei Kwaku & Another v. Georgina Konadu Kusi, Suit No. delivered on 22nd April 2005, per Gbadegbe J.A. (as he then was).
 See Eric Akwetey Siaw & 2 Others v. Tettey Siaw-Sappore & 2 Others, Civil Appeal No. H1/197/2014, dated 16th June 2016 (Unreported), per Dordzie J.A. (as she then was).
 Jamila Yakubu v. Abdul Azizi Ishak. Suit No. H1/18/2022, delivered 31 March 2022, C.A. Unreported, per Poku-Acheampong J.A.
 The Republic v. The High Court (Commercial Division) Accra, Ex Parte Yvonne Amponsah Brobbey (Gladys Nkrumah, Interested Party), Civil Motion No. J5/82/2023, delivered on 1st February 2023, S.C. (Unreported).
 Section 17.
 Sudama Devi and Others v. Jogendra Choudhary and Others, AIR 1987 Pat 239 (35) BLJR 724. In Halsbury’s Laws of England (3rded.), Vol. 16 p. 145, para 230, it was stated thus: “the slightest circumstances 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 of an executor or administrator”..
 Canadian Commercial Bank v. McLaughlin (1988) 92 a.r. 105; 69 Alta. L.R. (2D) 337.
 Dr Curtis-Jones Adeniyi v. Josephine Martins (1943) WACA 100 at 102.
 Agoro v. Abon (1944) 10 WACA 257.
 Carmichael v. Carmichael (2000) 2 Phill. C.C. 102, 103.
 See Section 45(2) of the Laws of Succession Act, Cap 160 of Kenya.
 See Order 49 of the Courts Act, High Court Civil Procedure Rules, Second Schedule, Cap 6:01 of The Gambia.
 See Section 74 (2) of the Succession Act, Chapter 9:02 (Act 27 of 1981 as Amended by 28 0f 2000).
 See Article 23 (1) of the Probate (Jersey) Law 1998
 Order 60 rule 3 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) and Order 1 Rule 3 of the Probate and Administration Rules, 1991 (L.I. 1515).
 See Jamila Yakubu v. Abdul Azizi Ishak. Suit No. H1/18/2022, delivered 31 March 2022, C.A. Unreported, per Poku-Acheampong J.A.
 Impraim v. Baffoe  GLR 520.
 See Hill v. Curtis (1866) L.R. 1. In Mrs. Matilda Aku Obeng Emefa Yaa Egbenya-Obeng v. Attorney General and 3 Others, Suit No. GJ 1051/2016, delivered on 10 April 2018, the Plaintiff in his writ sought for damages for intermeddling and the trial judge, His Lordship Kweku T. Ackaah-Boafo granted the relief.
 In Republic v. Bonsu & Ors. Ex Parte Folson [1999-2000] 1 GLR 523, a motion under the rules of court was filed for an order of a fine or imprisonment against the respondents for intermeddling with the property of one Mr Akwasi Agyemeng Bonsu, deceased. Kanyoke acknowledged that intermeddling was a crime under section 17 of PNDCL 111. Nevertheless, he convicted the respondents for intermeddling under the rules of court.
 Eric Akwetey Siaw & 2 Others v. Tettey Siaw-Sappore & 2 Others, Civil Appeal No. H1/197/2014, dated 16th June 2016 (Unreported), per Dordzie J.A. (as she then was).
 Quasi has been defined by the Osborn’s Concise Law Diction as ‘As if it were”; while Black’s Law Dictionary defines it as: “Seemingly in some sense or degree; resembling; nearly”.
 See cases such as Jamila Yakubu v. Abdul Azizi Ishak. Suit No. H1/18/2022, delivered 31 March 2022, C.A. Unreported and Eric Akwetey Siaw & 2 Others v. Tettey Siaw-Sappore & 2 Others, Civil Appeal No. H1/197/2014, dated 16th June 2016 (Unreported).
 As acknowledged by the Supreme Court in the Republic v. High Court (Commercial Division) Accra, Ex Parte Yvonne Amponsah Brobbey (Gladys Nkrumah, Intereted Party) supra.
 In Mrs. Matilda Aku Obeng Emefa Yaa Egbenya-Obeng v. Attorney General and 3 Others, Suit No. GJ 1051/2016, delivered on 10 April 2018, the Plaintiff in his writ sought for damages for intermeddling and the trial judge, His Lordship Kweku T. Ackaah-Boafo granted the relief.
 See Granville Williams: Learning the Law, 15th Edition (Sweet & Maxwell) (2013) at p. 16.
 Alex Onuamah Colemen and David Koomson v. Newmont Ghana Gold and Emmanuel Atsiafu and 6 Others v. Newmont Ghana Gold, Suit No. H1/23/2017, delivered on 24th October 2017 (Unreported).
 In the Kenyan case of Ogoncho v. Republic, the criminal prosecution of an intermeddling case was initiated by the State, but in The Matter of the Estate of David Julius Nturibi M’Ithinji (Deceased)  Eklr, an application was used to commence the proceedings to have the respondent convicted to prison for intermeddling.
The author is a Justice of the High Court of Ghana and is currently on secondment in the Gambia. He obtained his LLB at the University of Ghana in 2000 and was called to the bar in 2002. In 2010, he joined the bench as a circuit court judge – after 8 years in private practice. He became a High Court Judge in 2013. Justice Alexander Osei Tutu holds an LLM in International Human Rights from the Fordham University and a Diploma in Transnational Criminal Law from the International Law Enforcement Academy at Roswell, USA.