EMMANUEL KWAME NYARKO v. NANA YAW SINTIM & ANOR

E.K. AYEBI, J.A:

This is an appeal against the ruling delivered by an Accra High Court on 20th May, 2010.

The appellant was the plaintiff in the lower court while the respondent was the 2nd defendant because the appellant’s application which was dismissed by the lower court was directly against him.

So in this judgment I will refer to parties simply as appellant and respondent.

The facts of the case are as follows: One Comfort Oforiwaa of Obo, Kwahu who owned the building No.D684/4, Okaishie-Accra died on 3rd June, 2007 in Accra.

On 8th October, 2010 Nana Yaw Sintim and Allen Gyimah Kesse (defendants) applied for the grant of probate in their capacity as the named executors of the will of the deceased.

The appellant who claimed to be the head of family of the late Comfort Oforiwaa, in two writs, challenged the will as not being the act of the deceased.

In suit No.BFA4/2008, appellant sued both defendants but second defendant alone in Suit No.IRL/282/10, in both cases, for the same reliefs.

The reliefs endorsed on both writs respectively are:

1. Declaration that the paper writing 1st May, 2001 is not the act of Comfort Oforiwaa (deceased) late of House No.143/16 Alajo, Accra.

2. A declaration that the said paper writing is null and void and of no legal effect.

3. An order of injunction to restrain defendants by themselves, their agents and assigns whatsoever called from seeking to act under the said paper writing.

From the record of proceedings, there is no indication that the two suits have been consolidated for purposes of hearing.

There is also no such indication in the statement of case of appellant either.

Yet the suit from which the appeal emanates bears the number BFA 4/2007 completely unrelated to the numbers of the two original suits and the number assigned to the appellant’s motion for contempt at the trial court.

But then the case of the appellant is that in course of the trial, it was discovered that the respondent was engaged in acts which amounted to the administration of the estate.

The appellant therefore brought an application under Order 66 of C.I, 47 the High Court (Civil Procedure) Rules, 2004 for an order that the respondent was in contempt of court.

The trial Judge considered the application a waste of the court’s precious time and dismissed it as frivolous.

However, the judge convicted the counsel for the appellant for contempt of court for swearing to a supplementary affidavit on behalf of his client in violation