REPUBLIC vs. BONSU AND OTHERS; EX PARTE FOLSON [1999-2000] 1 GLR 523

CASES REFERRED TO

(1) Ahumah v Akorli [1975] 1 GLR 415.

(2) R v Oliver [1944] KB 68; [1943] 2 All ER 800; 29 Cr App R 137, CCA.

(3) R v Scott (1921) 86 JP 69.

(4) R v Turner (1816) 5 M & S 206, 105 ER 1026.

(5) Salifu v The Republic [1974] 2 GLR 291.

NATURE OF PROCEEDINGS

APPLICATION by the widow of a deceased intestate against the respondents, two brothers and a sister of the deceased, for an order of the High Court punishing them by a fine or imprisonment in accordance with Order 1, r 3 of the Probate and Administration Rules, 1985 (LI 1515) for intermeddling with the estate of the deceased. The facts are sufficiently set out in the ruling of the court.

COUNSEL

Obeng Manu for the applicant.

Y Attakora-Amoo for the respondents.

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JUDGMENT OF KANYOKE J.

The applicant is one of the widows of the late Akwasi Agyemang Bonsu of Kumasi who died intestate on or about 25 May 1996. The late Akwasi Agyemang Bonsu was survived by 31 children, four of whom are with the applicant herein. No letters of administration have since been taken in respect of the estate of the late Akwasi Agyemang Bonsu.

However, despite this, the applicant alleged that sometime after the death of the late Akwasi Agyemang Bonsu, the respondents who are two brothers and a sister of the late Akwasi Agyemang Bonsu, met and distributed the estate of her deceased husband and shared those properties forming the estate amongst themselves contrary to the provisions of the Intestate Succession Law, 1985 (PNDCL 111). When this came to the knowledge of the applicant, she caused her solicitor to write to the first respondent, the then head of the late Agyemang Bonsu’s family, warning him of the consequences of their action and advising the first respondent and the other respondents herein to first apply for letters of administration in respect of the estate of the late Mr Akwasi Agyemang Bonsu. The first respondent also caused his solicitor to reply to the applicant’s letter. In this reply, the first respondent rather confirmed the distribution or sharing of the late Agyeman Bonsu’s estate. Attached to the first respondent’s letter were three annexures showing how the estate of the late Agyemang Bonsu was distributed.

Dissatisfied with this turn of events, the applicant per her solicitor filed a motion on notice on 15 January 1997 for an order that the respondents should be punished by a fine or imprisonment for intermeddling with the estate of her late husband, Mr Akwasi Agyemang Bonsu in accordance with Order 1. r 3 of the Probate and Administration Rules, 1999 (LI 1515). For reasons not clear to me, this motion could not be heard for almost two years until it was argued before me on 2 November 1999. But very unfortunately, the first respondent had by then passed to the next world; the motion therefore abated against him by the rules of court.

In moving the motion, learned counsel for the applicant referred to the supporting affidavit filed on 16 January 1997 and two other supplementary supporting affidavits filed by the applicant on 3 February 1997 and on 28 July 1999 respectively. The supplementary affidavit filed on 3 February 1997 was in reaction to the affidavit in opposition filed by the respondents on 3 January 1997, whilst the

[p.527] of [1999-2000] 1 GLR 523 further supplementary supporting affidavit was in reaction to two affidavits filed by each of the second and third respondents on July 1999. In his submissions, learned counsel for the applicant contended that all the affidavit evidence available to the court shows beyond doubt that the second and third respondents are guilty of intermeddling with the estate of the late Akwasi Agyemang Bonsu. He therefore invited the court to find each of the respondents guilty of the offence and punish them accordingly.

In his reply, learned counsel for the respondents referred to the affidavit in opposition filed on 30 January 1997 by the first respondent, now deceased, and contended that since the first respondent is dead, the second and third respondents cannot be bound by the contents of that affidavits; hence each of them filed his or her own affidavit on 19 July 1999. With the permission of the court, learned counsel for the applicant submitted that since the affidavit in opposition filed by the first respondent, now deceased, was sworn to and filed by the first respondent for himself and on behalf of the second and third respondents, the second and third respondents are still bound by that affidavit. Secondly, learned counsel for the applicant submitted that since each of the second and third respondents did not renounce the contents of the affidavit in opposition filed on 30 January 1997 in their own respective affidavits filed on 19 July 1999, they must still be held bound by that affidavit in opposition.

I do not think the submission made by learned counsel for the respondents concerning the affidavit in opposition filed by the first respondent, now deceased, is right. Order 38, r 9 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) that deals with affidavits made by two or more deponents, reads:

“9. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the ‘above-named’ deponents.”

Paragraph (1) of the affidavit in opposition filed on 30 January 1999 by the first respondent (now deceased) reads:

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“(1) That I swear to this affidavit on my behalf and on behalf of my brother Osei Tutu (the second respondent) and my sister Akosua Barnie, (the third respondent) both of whom have authorised me to depose on their behalves.”

(The emphasis is mine.) Paragraph (13) of this affidavit then deposed as follows: “(13) That I swear to this affidavit in opposition to the application that we the respondents have been intermeddling with the deceased’s estate.” (The emphasis is mine.)

It is clear therefore that the affidavit in opposition was not the affidavit of only the first respondent, now deceased, but it was and still is an affidavit in opposition to the motion by all the respondents. The affidavit in opposition has been on the case docket since 30 January 1997 and has never been renounced by the second and third respondents. When the second and third respondents filed their own affidavits on 19 July 1999, they did not renounce the affidavit in opposition that was said to have been sworn to on their behalf by the first respondent. The second and third respondents have also not denied in their own affidavits in opposition filed on 19 July 1999 that they authorised their brother the first respondent to swear to and file that affidavit in opposition on their behalf and authority.

Now, Order 15, r 7 (1) of LN 140A as amended by the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1997 (LI 1129) provides: “7. (1) Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.” The motion for intermeddling with the estate of the late Akwasi Agyemang Bonsu does not therefore abate by the death of the first respondent. Similarly, the death of the first respondent does not by itself abate any document filed by the first respondent on the expressed authority of the second and third respondents as the affidavit in opposition has clearly stated. The motion for intermeddling and any document filed by the first respondent on his own behalf abate only against the first respondent by virtue of his death. Since therefore, the second and third respondents have not renounced their authority in the affidavit in opposition filed on 30 January 1997, and since that affidavit has not been withdrawn from the record it is still valid against the second and the third respondents, and the applicant can therefore properly refer to and rely on it in pursuance of establishing her application.

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The second legal point raised by learned counsel for the respondents is about a letter he himself wrote on 17 October 1996 on behalf of the first respondent (marked as exhibit AF2 attached to the applicant’s supporting affidavit) in response to a letter written on 26 September 1996 by the applicant’s solicitor (and marked as exhibit AF1 attached to the supporting affidavit). In the letter marked exhibit AF2 is written the phrase “without prejudice.” According to learned counsel for the respondents, any communication or letter or statement written “without prejudice” by a solicitor to another solicitor in connection with court proceedings or contemplated court proceedings, is inadmissible in evidence. He referred to the case of Ahumah v Akorli [1975] 1 GLR 415 as his authority. He therefore submitted that exhibit AF2 is inadmissible in evidence so learned counsel for the applicant cannot refer to it in support of his submission that the second and third respondents are guilty of the offence charged. Secondly, contended learned counsel for the respondents, the complaint in exhibit AF1 concerned only the first respondent so the second and third respondents were not parties to exhibit AF1 and AF2.

In his response, learned counsel for the applicant said letters written “without prejudice” are in admissible in evidence only in situations or circumstances which show that such letter or letters were written during negotiations by solicitors on behalf of litigants or would be litigants for settlement out of court. The “without prejudice” tag cannot therefore be used as a blanket cover for all letters written with the tag. On the contention that exhibits AF1 and AF2 were written in connection with a complaint against only the first respondent (now deceased), learned counsel for the applicant contended that exhibit AF2 said, inter alia, that it was the late Akwasi Agyemang Bonsu’s family which distributed the estate and the second and third respondents are members of that family.

It seems to me again that learned counsel for the respondents misconstrued the rule of evidence concerning the admissibility or inadmissibility of letters or statements written “without prejudice” in court proceedings. I agree that the general principle or rule of evidence is that the contents of a statement made “without prejudice” cannot be put in evidence in a civil case without the consent of both parties to the litigation. That rule is however not absolute and is conditional. The rule is that such statements are inadmissible in

[p.530] of [1999-2000] 1 GLR 523 evidence without the consent of the parties to the litigation. In other words, such statements may be admissible in evidence with the consent of the litigants themselves or of their solicitors. The rule also applies only to communications connected with the attempt to compromise litigation. The rule cannot therefore be used as a cloak to cover all communications with the tag “without prejudice.” A careful perusal and scrutiny of the judgment of Amissah JA (as he then was) in the Ahuma case (supra) supports this submission. Also in his invaluable book An outline of the Law of evidence (2nd ed), pp 80-81 the learned author, Professor Rupert Cross, explains this principle of evidence lucidly as follows: “‘Without prejudice’ means without prejudice to the legal rights of the maker of the statement. The parties frequently make ‘without prejudice’ statements as part of an endeavour to settle a dispute and were it possible to disclose the statement it might be prejudicial to the rights of the maker, because an offer to settle could be construed as an admission of the soundness of the opponent’s case. There is no magic in the words used by the parties in order to produce the cloak of the privilege as long as it is clear that the statement in question was intended to be without prejudice.

The privilege applies although the only outstanding issue between the parties is costs. Thus without the consent of the parties, a judge may not look at ‘without prejudice’ correspondence in order to see whether one party could have saved costs by accepting a favourable offer at an early stage of litigation. In determining whether one of the parties has been unduly dilatory, however, a judge may take into account the fact that there were ‘without prejudice’ negotiations although he may not refer to their terms.

The ‘without prejudice cloak’ only covers communications connected with the attempt to compromise litigation although this may extend to reports obtained by one of the parties from a third party.”

(The emphasis is mine.)

The without prejudice cloak does not therefore apply to all types of communications or statements. It only applies to communications [p.531] of [1999-2000] 1 GLR 523 or statements made in negotiations for settlement or with a view to attempt a compromise in litigation. In the instant case, exhibit AF1 from the applicant’s solicitor to the first respondent was to warn him to desist from intermeddling with the estate of Mr Akwasi Agyeman Bonsu, deceased, and to advise him to first apply for letters of administration before distributing the estate as he was attempting to do. In reply, exhibit AF2 written by the first respondent’s solicitor confirmed the distribution and sharing of the estate of the deceased by the family of the deceased and denying that what the family did or was doing was in violation of PNDCL 111 or Order 1, r 3 of LI 1515. Thus, exhibits AF1 and AF2 did not concern negotiations for settlement of the matters between the parties out of court nor was it an attempt to compromise any litigation between the parties. It is clear therefore and I hold that the “without prejudice” cloak does not apply to exhibit AF2 even though that letter was written “without prejudice.” I rule therefore, that exhibit AF2 is admissible in evidence as part of the affidavit evidence before me.

As to the contention that exhibits AF1 and AF2 concerned only the first respondent, now deceased, so the applicant could not rely on them to prove her case, I totally disagree. Exhibit AF2 stated expressly that the distribution of the estate of the deceased was done by the deceased’s “family.” In the affidavit in opposition filed on 30 January 1997 by the first respondent and which I have found to bind the second and third respondents also, paragraph (1) of same has described the second and third respondents as brother and sister, respectively of the first respondent. Paragraph (8) of this same affidavit in opposition has described the deceased as a brother to the first respondent. In her own affidavit filed on 19 July 1999 the third respondent has described the deceased—Mr Akwasi Agyeman Bonsu—in paragraph (3) as “my late brother.” In effect, the three respondents are brothers and a sister to the deceased Akwasi Agyeman Bonsu. Section 10(a) of PNDCL 111 states that when the word “family” is used in the Law “(a) that family shall be the family to which the intestate belonged for the purposes of succession in accordance with the customary law of the community of which he was a member.”

The deceased as well as the parties in this case are Akans, more specifically Ashantis. Succession in Akan (or Ashanti) customary law is matrilineal or maternal, more specifically the immediate

[p.532] of [1999-2000] 1 GLR 523 matrilineal or maternal family. In his book, The Law of Testate and Intestate Succession in Ghana (1966) at p 75, Justice Ollennu, of blessed memory, says this about the composition of the immediate matrilineal or maternal family of an Akan:

“(1) The immediate maternal family of a deceased male or female consists of his or her mother, the mother’s brothers and sisters, and all who were descended matrilineally from the same womb as himself or herself, i.e., his or her surviving uterine brothers (if any), his or her surviving uterine sisters (if any); in the case of a woman her own children and uterine grand-children, and in the case of a man the surviving children of all his sisters, dead or alive … in short, the immediate maternal family consists of all children of his or her uterine grandmother, and all descendants of his or her mother in the direct female line.”

It cannot be disputed therefore that the deceased—Akwasi Agyemang Bonsu—and the three respondents were and are members of the same family. The second and third respondents are therefore members of that family mentioned in exhibit AF2. In any case, it is not the case of the applicant that it was the respondents’ family that distributed the estate.

Learned counsel for the respondents further contended that since these proceedings are quasi-criminal in nature, it is the duty of the applicant to prove that the second and third respondents participated in the meeting of the family that sat and distributed the estate of the deceased. I shall deal with this point shortly in the ruling.

Let me deal now with the merits of this application. The application has been brought under Order 1, r 3 of LI 1515 which provides:

“3. Where any person other than the person named as executor in a will or appointed by a court to administer the estate of a deceased person takes possession of and administers or otherwise deals with the property of a deceased person he shall be subject to the obligations and liabilities as an executor or administrator and shall in addition be liable to a fine not exceeding ¢200,000.00 or to imprisonment not exceeding six months or to both.”

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The marginal note to rule 3 of Order 1 of LI 1515 is “Intermeddling with property.” It is regrettable that LI 1515 does not define the word “intermeddling.” Nevertheless, the rule itself describes what constitutes or may constitute intermeddling. Order 1, r 3 of LI 1515 states clearly that any person who takes possession of and administers or otherwise deals with the property of a deceased person other than a person named as executor in a will or any person appointed by the court to administer the estate, is guilty of intermeddling. These are, therefore, the acts that constitute intermeddling with the estate of a deceased person.

In her supporting affidavit filed on 16 January 1997 the applicant laid these charges of intermeddling against the three respondents:

“(8) That without any lawful authority the respondents therein have purportedly distributed the intestate estate of the deceased contrary to Order 1, r 13 of the Probate and Administration Rules, 1991 (LI 1515).

(14) That it has come to my knowledge and attention that the second and third respondents being brother and sister, respectively of the first respondent, have also arrogated to themselves the power to appropriate to themselves some of the properties in the estate like clothing and vehicles.”

(The emphasis is mine.) The applicant has therefore laid two specific complaints of intermeddling against the three respondents, namely (1) that all the respondents, ie the first, second and third respondents have distributed or shared the estate of the deceased husband of the applicant; and (2) that the second and the third respondents have taken beneficial possession of some of the properties in the estate, to wit clothing and vehicles.

In their joint affidavit in opposition filed on the 30 January 1997, the respondents deposed in paragraphs (9), (10), (11) and (12) as follows:

“(9) That it is not true that I and my brother and sister are using any clothing or vehicles belonging to my late brother.

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(10) That it is rather the applicant who has been using Peugeuot[sic](1) caravan No ASR 2604 belonging to the deceased.

(11) That this application is based completely on falsehood as none of us respondents is in any way interested in appropriating to ourselves any of our deceased brother’s property, knowing very well that the said property is not enough to look after even the four minors of our late brother who are aged between fifteen years and three years.

(12) That it is rather the applicant who has been trying to appropriate some building plots of the deceased at Buokrom.”

It is significant to observe that this affidavit only denies paragraph (14) of the applicant’s supporting affidavit that the second and third respondents have taken beneficial possession of some of the clothing and vehicles of the deceased but it does not deny paragraph (8) of the supporting affidavit that the three respondents have distributed or shared the estate of the deceased. Now, in his own affidavit sworn to and filed by him on 19 July 1999 the second respondent, Osei Tutu Bonsu, deposed, inter alia, as follows:

“(4) That it is not true that I and my late brother Agyemang Badu[sic](2) and my sister are using any clothing or vehicles belonging to my late brother…

(6) That the said application is brought out of malice as the applicant believes she has been marginalised by the family of our deceased brother.

(7) That the applicant and her family accepted the mode the family of our deceased brother shared the scanty estate left by our deceased brother and consequently, the applicant has been using Peugeuot[sic](3) caravan No ASR 2604 which belong to the deceased and which was given to her as a result of the sharing of the estate.

(8) That the applicant has by exhibit 1 herein attached also accepted the cocoa farm given to her issues with our late brother as a result of the sharing of the estate by the family.

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(9) That the applicant cannot turn round now to claim someone is intermeddling with the estate of our late brother when she is benefiting and enjoying the share to her as a result of the alleged intermeddling.”

(The emphasis is mine.)

This affidavit is very revealing, indeed, as it is nothing but a simple and straightforward confession of the distribution or sharing of the estate of the applicant’s late husband without letters of administration having been taken of same. It is a clear and an unequivocal admission or confession of paragraph (8) of the applicant’s supporting affidavit. With this unequivocal admission, the applicant has nothing more to prove paragraph (8) of her supporting affidavit. I concede, however, that paragraph (4) of the second respondent’s affidavit in opposition has denied paragraph (14) of the supporting affidavit.

In a similar vein, the third respondent in her affidavit in opposition filed on 19 July 1999 has also denied taking any clothing or vehicles of Mr Akwasi Agyemang Bonsu—deceased (see paragraphs (2), (3) and (4) of her said affidavit) but like the second respondent, she (the third respondent) has not denied paragraph (8) of the supporting affidavit about the distribution or sharing of the estate by them. In effect, the affidavit evidence before me proves beyond all reasonable doubt that the three respondents did distribute or share the intestate estate of the applicant’s late husband without taking out letters of administration. In my opinion, that is dealing with the estate of the deceased and that constitutes an act of intermeddling contrary to Order 1, r 3 of LI 1515.

Let me comment briefly now on the point raised by learned counsel for the respondents, namely that the applicant has failed to prove that the respondents were participants in the meeting by their family to share or distribute the estate of the deceased. The submission is to my mind highly unmeritorious. It is significant to note that nowhere in her three supporting affidavits has the applicant stated as her case, that it was the respondents’ family which distributed or shared the estate of her deceased husband. The applicant was very specific in paragraphs (8) and (14) of the supporting affidavit (quoted above) that: (1) it was the three respondents who did the sharing or distribution of the estate; and (2) that it was the

[p.536] of [1999-2000] 1 GLR 523 second and third respondents who took possession of some of the clothing and vehicles forming part of that estate. It is the respondents who tried to put up a defence that it was their family minus them who did the distribution: see exhibit AF2 and the affidavit in opposition of the second respondent. The law is clear on this point. The law, in cases where knowledge of a fact in issue is peculiarly within the knowledge of the accused, is that the negative is not to be proved by the prosecution but on the contrary, the affirmative must be proved by the accused as a matter of defence. This principle is demonstrated in the case of R v Oliver (1944) 29 Cr App R 137, CCA. In that case, the appellant was charged with the offence of supplying sugar without licence granted by the Ministry of Food and the point was taken on behalf of the appellant that the prosecution had not discharged the onus of proof, which rested on them, to show that the appellant had no licence to supply sugar. The opinion of the court expressed at 146 was that “the prosecution was under no necessity of giving prima facie evidence of the non-existence of a licence.” Also in the case of R v Scott (1921) JP 69 the accused was charged with selling cocaine without a licence and did not have a licence, it was held that the onus of proving the fact of the possession of a licence or authority was on him as it was a fact which was peculiarly within his own knowledge. And in R v Turner (1816) 5 M & S 206 at 211 Bayley J had this to say about this principle of law:

“I have always understood it to be a general rule, that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies and who asserts the affirmative is to prove it, and not he who avers the negative.”

See also Salifu v The Republic [1974] 2 GLR 291.

In the instant case, the applicant has deposed specifically that it was the respondents who shared or distributed the estate of her deceased husband without being appointed by the court as administrators of that estate. The respondents have not denied this specific deposition either in general or in particular. But they also deposed that it was their family which did the sharing. That is a fact that is peculiarly within their knowledge, and they therefore have to prove it as a matter of their defence. It is not for the applicant to

[p.537] of [1999-2000] 1 GLR 523 prove that assertion, especially since the respondents have not denied paragraph (8) of her supporting affidavit. But the respondents have not made any attempt whatsoever to prove that it was their family excluding them who distributed the estate. I am satisfied and I hold therefore that it was the respondents who did the distribution.

Before I conclude this ruling, I also wish to comment briefly on another unmeritorious submission made by learned counsel for the respondents. In his submission, learned counsel for the respondents contended that the applicant is equally guilty of intermeddling with the estate of the deceased because she was and is still using one of the vehicles of her late husband and that this vehicle forms part and parcel of the deceased’s estate. Besides, contended counsel for the respondents, the applicant wrote a letter, exhibit 1, attached to the second respondent’s own affidavit in opposition warning or instructing the Secretary-Receiver of the Produce Buying Co at Nyamebeyere No 2 not to pay the proceeds of certain cocoa farms, part of the estate of her late husband, to anybody without her knowledge and consent. This also constitutes intermeddling by the applicant, submitted counsel for the respondents. As I said, this submission is clearly without any merit whatsoever. In the first place, nowhere in their affidavits in opposition have the respondents laid charges of intermeddling against the applicant. Instead, their deposition is that the Peugeot[sic](4) caravan No ASR 2604 is the share of the applicant as a result of the distribution or sharing or both of her late husband’s estate. It is also their deposition that the cocoa farm at Nyamebeyere was also given to the children of the applicant as a result of the sharing of the estate of their late father. Therefore, in these circumstances the applicant cannot be accused of intermeddling by using that vehicle or trying to protect the interest of her children in the cocoa farm. In her further supplementary affidavit, the applicant deposed that all her four children are out of the country so in their absence, she has a right to protect their property given to them by the respondents themselves as deposed by them.

Secondly, even if the applicant is intermeddling with those properties, that provides no defence to the respondents. If an accused steals property and manages to part with some of those properties to say the children of the complainant (owner of those properties) for their enjoyment and the accused is being prosecuted for stealing those properties, it is no defence for the accused to say that he is not

[p.538] of [1999-2000] 1 GLR 523 guilty because after all the children of the complainant benefited from his criminal conduct.

In conclusion, and for the reasons given herein, I am satisfied that the applicant has proved beyond all reasonable doubt that the second and the third respondents are guilty of intermeddling with the estate of her late husband, Mr Akwasi Agyemang Bonsu, contrary to Order 1, r 3 of LI 1515. I accordingly, convict each of the second and third respondents of intermeddling. The motion is, however, struck out against the first respondent because it has abated on his death.

DECISION

Application granted.

LSNA

Endnotes

1 (Popup – Footnote) [sic] same in original. 2 (Popup – Footnote) [sic] same in content 3 (Popup – Footnote) [sic] same in original. 4 (Popup – Footnote) [sic] same in original.