Has the decision in Adisa Boya v Mohammed (Substituted by) Mohammed & Mujeeb eroded the powers of executors or administrators in the distribution of an estate of a deceased person? Is the decision in Okyere (decd) (substituted by Peprah) v Appenteng & Adomaa still good law?
Introduction
This article brings to mind the words of Thomas Paine, when he stated as follows in 1796 “Nothing they say, is more certain than death, nothing more uncertain than the time of dying.”[1]
Who are an executor and an administrator?
The Wills Act, 1971 (Act 360) does not define who an executor is or how he may be appointed. In section 3(1) of Act 360, only states that any person of or above the age of 21 years and can enter into a contract may be appointed an executor of a Will.[2]
In Stroud’s Judicial Dictionary[3] an executor is defined as: “Executor is when a man makes a testament and last will and therein nameth the person that shall execute his last testament, then he that is so named is his executor.
Williams on Executors and Administrators,[4] also said: “the word executor, as the term is at present, may also be defined to be the person to whom the execution of a Last Will and testament is, by the testator’s appointed, confided. In other words, an executor is a person appointed, ordinarily by the testator by his Will or codicil, to administer the testator’s property and to carry into effects the provisions of the Will.[5]
To name or appoint an executor is to place one in the stead of the testator, who may enter into the testator’s goods and chattels, and, who has an action against the testator’s debtors, and who may dispose of the same goods and chattels towards the payment of the testator’s debts, and the performance of the Will.[6]
Administrators, on the other hand, is a person appointed by a court of competent jurisdiction to administer the property of a deceased person and are accountable to the court in the exercise of their duties. Thus the court must determine that a person is a fit, proper and competent individual to be put in charge of an estate. It has been held that the court may for good and just reason revoke the grant and make a fresh grant or “appoint any competent person to administer the estate.[7]
The office of the administrator is said to be dative, because it derives from such grant, whereas the office of executor derives from the Will of the deceased person.[8] In the case of intestacy, the distribution of the estate is governed by law.[9] If there be a Will, the distribution is made following the testator’s direction.
The law was settled that trustees, executors and administrators are the proper people to sue and be sued in respect of the properties they hold in trust or estate. The common law position was that beneficiaries of an estate or a trust property cannot sue or be sued in respect of the property except where the property is in danger, in which case they may sue to protect it. This position was adopted by the venerable Date-Bah JSC in Okyere (decd) (substituted by Peprah) v Appenteng & Adomaa[10] by quoting Abban JA in Conney v Bentum-Williams[11] as follows:
“The situation has now been altered completely by the provisions in Act 63 which came into effect on 7 June 1961:
….A devisee cannot sue or be sued concerning the devised property before a vesting assent has been executed in his or her favour. Accordingly, in the absence of vesting assent executed in favour of the second defendant, she could neither sue nor be sued on her devise.”
This decision was derived from section 1(1) of the Administration of Estates Act, 1963 (Act 63) and it states as follows:
“1(1) The movable and immovable property of a deceased person shall devolve on his representatives with effect from his death”.
Personal representative here means executor, original or by representation, or administrator for the time being of a decision.[12]
This paper is aimed at welcoming the decision in the Adisa Boya case supra against the earlier decision in Okyere (decd) case supra even though the latter case is still good law. The author is of the view that the Adisa Boya case will check unscrupulous executors or administrators for refusing to administer the estate of the deceased for the benefit of the beneficiaries. However, the decision Adisa Boya case is not a carte blanche for desperate devisees to just mount an action against executors or personal representatives but can only be invoked where the devisee has been able to prove to the court that the executors or personal representatives have failed to protect the property and that their inaction has dissipated the property which the devisee has an interest.
Facts in the Okyere (decd) case supra
A testatrix (Madam Akua Ataa) devised most of her properties to her daughter Akua Adomaa of Seniagya, Asante (respondent herein) in her will. After her demise, members of the Amina Korkor family of Seniagya challenged the deceased’s ownership of the devised property on the basis that the property devised to the respondent is a family property. This implies that so long as the testatrix cannot make the device, the respondent could not lay claim to the properties devised. But while dismissing the claim of the appellant, the trial court entered judgment for the respondent on her counterclaim; stating expressly that the probabilities of the evidence before it weighed in favour of the respondent. Aggrieved, appellants appealed to the Court of Appeal contending that respondent has no locus standito either counterclaim or be granted judgment on same since no assent has been vested in her by the executor of the will as required by law. Appellant also argued that the trial court should have entered interlocutory judgment in default of appearance and defence by the first defendant (the personal representative) at the instance of section 1(1) of the Administration of Estates Act, 1961 (Act 63) which provides that “the movable and immovable property of a deceased person shall devolve on his representatives with effect from his death.” However, after careful consideration of the judgment of the trial court, vis-à-vis, the evidence before him, the Court of Appeal concurred with and upheld the decision of same on the basis that “Will” as a property conveyance took effect from the death of testatrix to vest the property in the devisee; the execution of an assent notwithstanding. Aggrieved further by the reasoning and position of the appellate court, the appellant is now seeking redress at the apex Court.
The decision of the Supreme Court.
Per Date-Bah JSC held thus:
“When a person dies testate or intestate, his estate devolves on the executor or personal representatives until a vesting assent has been executed to the beneficiaries or devisee; and until the grant to them of the vesting assent, the beneficiaries and devisees have no title or locus standi over any portion of the estate.”
The Supreme Court applied a doctrinaire approach in applying the provision contained in section 1(1) of Act 63 and it did not take into account situations where the executors or personal representatives may decide to selfishly make use of the properties for the benefit of the beneficiaries.
The question is what if the executors and personal representatives are unwilling to vest properties in the beneficiary but decide to keep the properties for their selfish gains?
This question is in sync with an earlier Court of Appeal decision in Appau v Ocansey & Anor.[13], where it was held holding 4 as:
“It was not the law that a beneficiary could act in respect of an estate only upon the grant of a vesting assent. Any person with an interest in an estate such as a beneficiary could take action to protect it.”
I strongly believe that if the majority decision had adverted their minds to this decision even though of a persuasive effect they would have been flexible in the application of the law on section 1(1) of Act 63. However, Brobbey JSC’s obiter dictum expressed a sentiment that even though the Okyere case represents the true position of the law, executors and personal representatives of estates of deceased persons would take advantage of the law and deplete the estate they are to administer for the benefit of the beneficiaries.
Brobbey JSC poignantly said follows:
“It is common knowledge that in this country some estates are dissipated by the inaction of the executors or personal representatives. Others go to waste or are lost as a result of the active misuse or abuse of the estate left by the deceased person when executors or personal representatives refuse or fail to attend to duties entrusted to them under estates or selfishly make use of the estate to their benefit of undeserving others. If the law is that the beneficiary or a devisee has no title to sue or be sued until the grant to him of a vesting assent, what does he do in any of the situations postulated above? At equity, such a person should be able to mount an action to protect the estate, or to save it from being dissipated or wasted….”
The Court of Appeal decision in the Appau case supra conflicts with the Okyere case. However, the dictum by Brobbey JSC is in line with the Appau case. By the doctrine of judicial precedent, the Okyerecase will overrule the Appau case as no longer good law.
Consequently, the ratio in the Okyere case is that a beneficiary cannot sue or be sued in respect of property devolved unto him under a will or intestacy for which vesting assent has not been registered on his behalf per sections 1(1), 2(1) and 96(1) of the Administration of Estates, Act, (Act 63). Any alienation by a beneficiary under a will or intestate estate without a valid registered vesting assent is void for want of capacity.[14] At a later date, the Supreme Court came across a similar case in Adisa Boya (Substituted by) Mohammed & Mujeeb supra.
Facts in the Adisa Boya case supra
The plaintiff sued the defendants in the Circuit Court, Kumasi for, inter alia, a declaration of title to the disputed land. It was the case of the plaintiff at the trial that he obtained his grant in the 1990s and perfected it with a leasehold document from the Hia-Topre Stool of Ayigya. The plaintiff also said that the defendants encroached upon his land resulting in him complaining to the police that led to the conviction of the first defendant by a district court in Kumasi for the offence of obstruction contrary to section 204 of the Criminal Offence Act, 1960 (Act) 29.
The defendants on the other hand who claimed through their deceased father alleged that their father took his grant on 15 January 1970 from the Hia Tpre Stool of Ayigya and followed it with entry upon the land and erected a residential dwelling on the land. The first defendant testified that all of his father’s children were born on the land and that their deceased father was on the land before the plaintiff started moulding blocks on a nearby property which they later tried to utilize on the land but was met with resistance from the first defendant, an act that led to his prosecution and subsequent conviction. At the close of the trial, judgment was entered in favour of the plaintiff. Dissatisfied, the defendants appealed to the Court of Appeal which allowed the appeal, reversed the decision on their counterclaim and decreed title in their favour.
The plaintiff also dissatisfied with the judgment of the Court of Appeal brought the instant appeal to the Supreme Court seeking the reversal of the judgment of the Court of Appeal.
Before the Supreme Court, the plaintiff sought to impeach the judgment of the Court of Appeal on the ground of inconsistencies in the evidence led by the defendants. The plaintiff also argued that, in the absence of proof by the defendants that following the demise of their father they had obtained letters of administration and subsequently had the disputed property vested in them, they could not make a counterclaim. The Court of Appeal, therefore, erred in granting the counterclaim of the defendants and decreeing title to the disputed land in favour of the defendants.
The decision of the Supreme Court
Per Gbadegbe JSC in holding 3 held:
“Under the rules on intestacy contained in section 4(1) of PNDCL 111, following the death of the father of the defendants and their mother the original defendant, the property devolved upon the children and as such they had an immediate legal interest in the property. Consequently, they were competent to defend and/or sue in respect of the property and either of them acting together or any of them acting on behalf of the others might seek an order of declaration of title to be made in his favour.”
This decision seems to have departed from the Okyere case supra but the Supreme Court did not expressly say so. The author is of the view that the Adisa Boya case has to some extent reduce the powers of executors or personal representatives but did completely erode their powers because the Supreme Court did not expressly depart from the Okyere case.
Again the Supreme Court in a recent decision agreed to follow the ratio in the Adisa Boya case supra in the case of Bandoh v Apeagyei-Gyamfi and Another[15]. The Supreme Court speaking through Marful-Sau JSC held thus:
“In that case, this court speaking through Gbadegbe JSC, held that the defendants who were the children of the estate had an immediate interest in the property and for that reason, they were competent to defend or even sue for declaration of title, even though they had not obtained any letters of administration. I wish to add that the above proposition of law is only fair and equitable given the interest created in the estate of beneficiary children, under the Intestate Succession Act, PNDCL 111. I, therefore, entirely agree with the legal proposition enunciated by Gbadegbe, JSC, and hold that even in this appeal the appellant, being a satisfactory child, was a competent party, although she had no letters of administration.”
The question from these current decisions of the Supreme Court i.e the Adisa Boya case supra and the Bandoh case supra is that under what circumstance should a devisee without a vesting assent mount an action on a property. Do these decisions suggest that devisees can just sidestep executors or personal representatives in whose name a will has been admitted without any evidence of neglect or failure to act or the inaction of the executor is likely to cause dissipation of the property which the devisee has an interest in?
This question was answered in a recent Court of Appeal decision in Anum & Ors v The High Court Registrar & Ors[16], the court per Agbevor JA held thus:
“It would be illogical and contrary to good reason that a devisee can sidestep an executor in whose name a will has been admitted to probate to mount an action on the property and receive judicial blessings without sufficiently demonstrating why the executor, in whom ownership of the property is vested statutorily is relegated to the background. Appellant nowhere, in this case, made any averment about the inability or inaction of the executors to mount an action. Appellant has failed to satisfy the court on why the power of executors should be suspended were not entitled as of right to mount the instant action merely because they are devisees and seek to protect the property.”
This decision in the view of the author is very instructive and its import is that the decision in the Adisa Boya and the Bandoh cases are not carte blanche that allows devisees to just sidestep executors and mount an action in court without any evidence that the executor or personal representatives are not acting in good faith to protect the property for the benefit of the devisees. This decision also irons the efficacy of the Okyere case and therefore the decision in the Adisa Boya case has not entirely eroded the powers of the executors or personal representatives.
Epilogue
The author submits that the decision in the Adisa Boya case will be useful where the devisee has been able to prove to the court that the executors or personal representatives have failed to protect the property and that their inaction has dissipated the property which the devisee has an interest. According to the author, if this evidence is not led, the Okyere case should prevail. Otherwise, if this is not checked, any devisee will just sidestep an executor to mount an action against an executor or personal representatives in whose name a will or a property has been vested. This in my estimation will lead to chaos and therefore open the flood gate for desperate devisees to disrespect the executors. It will also go against the wishes of the testator who named the executors in the case of a will and against the court in case of administrators where the deceased died intestate.
[1] See page 63 of the Quotable Founding Fathers-edited by Buckner F. Melton
[2] See Adu-Gyamfi D. Handbook on Probate and Administration Practice in Ghana (With Precedent), P. 67
[3] 3rd ed. at p.1020
[4] 14 ed p.3
[5] Halsbury’s Laws of England, 4th ed, p.7 para 2
[6] Anane v Amomah-Addo [1989-90] 2 GLR 76; Section 62 of Act 63.
[7] Republic v High Court, Sekondi; Ex parte Mensah & Ors [1994-95] GBR 491
[8] Halsbury’s Laws of England, 4th ed. p.8 para 3
[9] PNDCL 111, 1986
[11] [1984-86] 2 GLR 301
[12] Section 108 of Act 63
[13] [1992-93] GBR 850 CA
[14] Conney v Bentum Williams [1984-86] 2 GLR 301
[15] [2018-2019] 1 GLR 299
[16] [2019] 137 GMJ 75 CA
