JUDGEMENT 
The Plaintiffs by their writ dated the 15th day of June, 2007 are before this Court seeking the following reliefs: 
i    A declaration by the Court that Letters of Administration in respect of the estate of Joseph Kwei Nettey were granted by the High Court, Accra to the 1st Defendant on the 5th of July, 1966 and the said estate had already been distributed.  
 ii.  A declaration by the Court that the order procured by the 1st, 2nd 3rd , 4th 5th and 6th Defendants from the High Court,  Accra presided by His Lordship Justice Acquaye by which the 7th Defendant was appointed to distribute the estate of Joseph Kwei Nettey according to the Intestate Succession Law, 1985 PNDCL 111 was procured by fraud . 
iii. An order vacating the order made by His Lordship, Mr. Justice Acquaye in which he appointed the 7th Defendant to distribute the estate of Joseph Kwei Nettey (deceased) in accordance with the Intestate Succession Law, 1985 PNDCL 111. 
iv. A perpetual injunction order directed at the 7th Defendant restraining him from distributing the estate of Joseph Kwei Nettey in accordance with the Intestate Succession Law, 1985 PNDCL 111. 
The facts which have led to the commencement of the present suit are as follows: The Plaintiffs are all surviving children of Joseph Nakai Nettey (deceased) who died on the 8th day of March, 2005. The 1st Defendant (now deceased), the 2nd, 3rd, 4th, 5th and 6th Defendants and the Plaintiffs’ deceased father, Joseph Nakai Nettey are all siblings of full blood born to one Joseph Kwei Nettey.  According to Plaintiffs, upon the death intestate of their grandfather on the 31st day of December, 1965, their paternal uncle, the 1st Defendant, applied for and was granted Letters of Administration by the High Court, Accra on the 5th day of July, 1966 to administer the estate of their late grandfather, Joseph Kwei Nettey. Plaintiffs say that, in line with this mandate, the 1st Defendant as Administrator, duly distributed the rooms in House No. A690/2, Djator Street, Mamprobi-Accra with each of the Defendants including the Plaintiffs’ deceased father getting a specified portion of the said property.  The 5th and 6th Defendants who were still in school at the time, had their portions managed by the 1st Defendant and Plaintiffs’ late father who rented out the rooms allocated to the 5th and 6th Defendants and used the proceeds to maintain them till they came of age.  Plaintiffs contend that the 1st, 2nd, 3rd and 4th Defendants also rented out their rooms upon the said distribution. The Plaintiffs further aver that their deceased father, Joseph Nakai Nettey, whose share of rooms was on the first floor of the said property occupied same with his wife and children for decades until his death in 2005.  This according to Plaintiffs, is indeed where they were born and have lived all their lives. They say that it has however come to their notice that the Defendants have fraudulently managed to procure an order authorizing the 7th Defendant, the Administrator General, to take over the estate of their grandfather who died in 1965 and to distribute same according to the Intestate  
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Succession Law, 1985 PNDCL 111.  Plaintiffs insist that it is unlawful for the 7th Defendant to attempt a redistribution of an estate which has long been distributed. They charge that, the said order was obtained by fraud as the Defendants made representations to the Court knowing very well at the time that the said representations were false.  The particulars of fraud were given as follows: 
“The representation made to the Court was to the effect that the estate of Joseph Kwei Nettey (Deceased) was not distributed when indeed Letters of Administration were granted by the High Court, Accra on the 5th day of July, 1966 to the 1st Defendant and thereafter the estate distributed several decades ago.” 
Plaintiffs assert that they bring the present action in their capacity as beneficiaries of the estate of their deceased father. 
The Plaintiffs’ claim is stoutly resisted by the Defendants. The defence as pleaded in an Amended Statement of Defence filed on the 21st day of May, 2014 is that the estate in question has not been distributed. The Defendants admit that the 1st Defendant applied for and was granted Letters of Administration on the 5th of July 1966 but attribute his failure or inability to distribute the estate solely to the Plaintiffs’ father who they allege, monopolized the entire estate to himself and frustrated all efforts at distribution. According to Defendants, all attempts by the elders of the family to meet with Plaintiffs father to effect such distribution proved unsuccessful due to his recalcitrance. As a result, the matter was still pending before the joint family heads, namely, Mr. TA Mettle and Mrs. Fifi Ankrah at the time the present suit was instituted. This, the Defendants contend, brings the facts of this case within the ambit of Section 21 of the Intestate Succession Law, 1985 PNDCL 111.  They challenged Plaintiffs’ right to succeed their father’s interest in the said Property and counterclaimed for the following: 
a. A declaration by the Court that Plaintiffs have no beneficiary interest in House No. A690/2, Mamprobi, Accra of the estate of the late Joseph Kwei Nettey. b. An order evicting the Plaintiffs from the premises of H/No. A690/2, Mamprobi, Accra c. Perpetual Injunction directed at the Plaintiffs, their privies, assigns and successors in title from interfering in anyway with House No. A690/2, Mamprobi, Accra. d. Any other or further order(s) as this Honourable Court may deem fit.  
The substance of Plaintiffs’ reply filed on the 1st day of August, 2007 was to deny Defendants’ assertions and to reiterate the fact that PNDCL 111 (supra) was not applicable to the facts of the present suit.  
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I find from the record of the Court that, apart from proof of the 7th Defendant having been served with the Statement of Defence filed by the 1st to 6th Defendants on the 6th day of July, 2005 and Plaintiffs’ reply filed on the 1st day of August 2007, there is no proof of service of any of the other processes filed in these proceedings on him.  Notable, among these processes are the Plaintiffs’ Writ and Statement of Claim filed on 15th day of June, 2007.  By ORDER 7 RULE 12(1) OF THE HIGH COURT (CIVIL PROCEDURE) RULES, CI 47, service of a writ is to be effected separately on each Defendant.  In the absence of any proof that the 7th Defendant was duly notified of Plaintiffs’ suit against  him as required by law, it is quite clear that he cannot be deemed to have been properly made a Party to these proceedings.  
Having addressed this issue, I now proceed to deal with the issues set down for the determination of the suit by the Court (differently constituted) at the close of pleadings. These are: 
1)  Whether or not Letters of Administration were originally granted to the 1st Defendant.  
2)  Whether or not the Plaintiffs’ father had obstructed any distribution of the estate of the Defendants’ father by the 1st Defendant in his capacity as administrator of his father’s estate.  
3)   Whether or not any head or elder of the families of the Defendants’ late father had sat down and witnessed any distribution of the estate of the Defendants’ late father, Mr. Joseph Kwei Nettey. 
4)   Whether or not Plaintiffs have a Vesting Assent or any document to prove a contention that a distribution had long been carried out. 
  5)   Whether or not the Defendants were justified or authorized by the ADMINISTRATION OF ESTATES ACT, 1961(ACT 63) in the circumstances of this case in seeking a Court order transferring the administration to the Administrator General and if so  whether or not the Plaintiffs’ charge of fraud is frivolous, untenable and grossly scandalous and absurd in law and fact.  
6)  Whether the 7th Defendant is entitled to accept and act under a valid Court order to distribute the estate concerned.  
7)   Whether or not PNDCL 111 makes provision under Section 21 for any undistributed estate to be dealt with. 
8)  Any other issues necessarily arising from the pleadings.  
As rightly pointed out by both Counsel in their respective addresses, the fact that the 1st  
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Defendant applied for and was on the 5th day of July, 1966 granted Letters of Administration is not in contention and is therefore not an issue to be resolved by this Court. 
The remaining issues however, will, for the purposes of this judgement be compressed under five main heads which are: 
1) Whether or not the estate of Joseph Kwei Nettey has been distributed pursuant to the grant of Letters of Administration to the 1st Defendant on the 5th day of July, 1966. 2) Whether or not the Plaintiffs’ father had obstructed the distribution of the estate by the  1st Defendant. 3) Whether or not the order of the High Court dated the 7th day of May, 2007 appointing the Administrator General to take over and distribute the estate of the late Joseph Kwei Nettey was obtained by fraud. 4) Whether or not Section 21 of PNDC LAW 111 is applicable to the facts of this suit. 5) Whether or not Plaintiffs have the capacity to institute the present suit.  
The above issues will now be dealt with starting with the first two together since they are in my opinion, intertwined.  
It is not in dispute that Letters of Administration were on the 5th day of July, 1966 granted to the 1st Defendant (now deceased). The crucial issue which this Court has to determine however, is whether the 1st Defendant as Administrator proceeded to distribute the estate of Joseph Kwei Nettey to the persons beneficially entitled to same when he was granted Letters of Administration by the High Court in 1966.  On the pleadings, the present dispute appears to centre solely on the House No. A690/2 Djator Street, Mamprobi, Accra being the main property left behind by Joseph Kwei Nettey who died intestate.   
It is trite learning, that a Plaintiff in a civil suit, carries the burden of proving his case on a balance or preponderance of probabilities. Section 12 (2) of the EVIDENCE ACT, (NRCD 323), defines this as the “degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its nonexistence.”  In the Supreme Court case of AKWASI AND ABABIO [1994-95] GBR 774, the Court held that it was the Party whose pleadings raised an issue essential to the success of the case who assumed the burden of proving such issue. The burden only shifted to the Defendant when the Plaintiff had adduced evidence to establish the claim.  
 Applying this legal principle to the present suit, it is my view and I believe quite rightly, that it is only when the Plaintiffs’ have established a prima facie case that the estate of Joseph Kwei  
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Nettey had indeed been distributed that the burden shifts onto the Defendant to adduce evidence to the contrary. Similarly, the Defendants bear this primary evidentiary burden in respect of their Counterclaim. 
Now, there is no doubt that the said house having devolved on all the children of the deceased Joseph Kwei Nettey, who died intestate had assumed the nature and character of family property.  Being family property, the legal position is that, the interest held by the beneficiaries in the said property is joint and indivisible.  See the case of BINEY v BINEY [1965] GLR 619.  
The question however is whether or not the Property has been distributed amongst the children of Joseph Kwei Nettey for the purposes of occupation.   
It is the contention of the Plaintiffs, that the estate was distributed decades ago, presumably, not long after the grant of Letters of Administration to the 1st Defendant.  In support of this assertion, the 2nd Plaintiff who testified on behalf of all the other Plaintiffs gave evidence on how the Property in question was shared amongst all the beneficiaries of the estate including their deceased father.  He admitted that he had not been born at the time but grew up to find his father and each of the Defendants occupying specific portions of the Property.  He alleged that his father and the family head informed him that the Property had been distributed.  According to him, the fact that each of the Defendants as well as his father dealt with their respective portions of the said Property as they wished lent credence to what he had been told.  He stated, for instance, that some of the Defendants had let out the rooms given them upon the said distribution and were collecting rents for their exclusive benefit.  In proof of this, Plaintiffs tendered in evidence EXHIBIT D, a copy of a tenancy agreement entered into between the 3rd Defendant and one Benjamin Sakyi – Sarkwah.  By the said agreement, the 3rd Defendant had let her room to the said tenant for a three (3) year period.   
The fact that the estate has been distributed is however flatly denied by the Defendants. The common thread that run through the testimonies of all the Defendants given in this Court is that the estate has not been distributed because the Plaintiffs’ father refused to allow the 1st Defendant as Administrator to share the Property.  It is however quite apparent from the evidence, that each of the Defendants occupies a specific portion of the Property in dispute over which they have for over four (4) decades exercised exclusive rights of ownership.  Even in the case of the 5th and the 6th Defendants who were said to be of school going age at the time of their father’s death, the evidence before this Court is that their rooms were rented out by the 1st Defendant and Plaintiffs as caretakers and the proceeds used to maintain them till they were old enough to take charge of their respective portions. This fact has not been seriously denied by the Defendants.   What remains unclear to me however, is the exact reason the Defendants give  
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for the failure of the 1st Defendant to distribute the estate.  Is it that the Plaintiffs’ father placed a ban of some sort on the due distribution of the Property by the 1st Defendant or that the 1st Defendant could not distribute the Property because Plaintiffs’ father refused to meet the family head for such distribution?  I am of the opinion that either reason is untenable whichever way one looks at it, for, the 1st Defendant, as Administrator did not need the consent of the Plaintiffs’ father or a meeting with the head of family to enable him distribute the estate of the deceased.  As Administrator, he was the only person vested with the power and authority to gather up the estate and to distribute it in accordance with law.  Assuming, however, without necessarily admitting that the Plaintiffs’ father indeed obstructed the said distribution, what stopped the 1st Defendant from seeking the intervention of the Court from which he obtained the grant? 
It is interesting to note, that the 1st Defendant until his death was a Party to the present suit. The undisputed evidence shows that it was in the year 2007, that is, more than forty (40) years after the said grant of Letters of Administration to him, that 1st Defendant resurfaced in Court seeking an order for the distribution of the estate.  As pointed out in the case of SMITH V CLAY [1767] AMB 645, “a court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time.  Nothing can call forth this court into activity but conscience, reasonable diligence and good faith.”  The reasons put forth by the Defendants for the inordinate delay in seeking the intervention of the Court in my opinion, cannot be valid under any circumstance.  I do not think the Defendants would have succeeded in obtaining the order transferring distribution to the Administrator General if they had disclosed the true state of affairs to the Court presided over by His Lordship Justice Acquaye.  
 What I garner from the evidence of Defendants is the suggestion that, even if they occupy specific portions of the Property, the said house cannot be said to have been distributed because it was Plaintiffs’ father and not the 1st Defendant  as Administrator who allocated the said rooms to them  but  the point is, if indeed the said distribution was done by Plaintiffs’ father, then, the only  inference I am forced to draw from the evidence before me is that,  it was the 1st Defendant who relinquished his duties as Administrator to the Plaintiffs’ father. The Defendants having accepted and enjoyed the benefits of the said distribution for decades cannot now turn round and assert otherwise. Put against the case of the Defendants, what I find rather curious is the Defendants’ admission that they all enjoyed a cordial relationship with Plaintiffs’ father during his lifetime. 
 The 5th Defendant on the 9th of July, 2015 was asked under cross-examination: 
“Q: Robert and Joseph were in [sic] good terms.   
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A: Robert is a senior brother to Joseph. 
Q: The sisters were in [sic] good terms with Joseph. 
A: yes.”  
There is also the undisputed evidence on record that all the Defendants were elders of the Plaintiffs’ father’s church.  By their evidence, the picture painted by the Defendants of the late Joseph Nakai Nettey is that of a stubborn, disrespectful man who, as it were, was a law unto himself.  I do not see how the Defendants could have maintained a cordial relationship with such a character.  I therefore take a jaundiced view of the Defendants’ claims. 
EXHIBITS 1 and 2 were also tendered by the Defendants through the 2nd Plaintiff, to buttress their assertion that the Property in question had been monopolized by Plaintiffs’ father who made extensions to the Property without their consent.  Much as I do not think that these belated protests reflect favourably on the honesty and good intentions of the Defendants, it is well settled that extensions or improvements made to family property by a member “does not take away the family stamp on the property” see the case of OSEI YAW V DOMFEH [1965] GLR 418.  In any event, I do not intend to dwell on the issue of the said extension in any detail as I find the said exhibits were merely introduced to show that Plaintiffs’ father had monopolized the estate.  Apart from the fact that the 5th Defendant asserts that no extensions were made to the Property, no issue was joined by the Parties on the said extensions or any rents accruing therefrom.  I will therefore confine myself to issues raised by the pleadings. 
 It is rather interesting that the Defendants’ claims reared their heads only after the death of the Plaintiffs’ father. The Courts have long held the view that claims against the dead should be viewed with the “ utmost suspicion” and even in the case of OSEI SUBSTITUTED BY GILARD v KORANG [2013-2014] SCGLR 231, where the Supreme Court sought to re-state this rule, the Court was still of the view that a claim against a dead person, who was not in the position to contradict, explain or give evidence on his version of the case ought to be scrutinized meticulously and carefully weighed for its inherent probative value. I am not convinced that the Plaintiffs’ father alone hijacked the entire property, whilst the Defendants who were in the majority looked on helplessly.  I believe that if he wielded such power and influence over the rest of his siblings, he would have been the one to apply for letters of administration and not the 1st Defendant. 
The Defendants have challenged the Plaintiffs to provide positive proof in the form of Vesting Assent to substantiate their claims that the Property has been distributed.  I do not think a failure   
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by the Plaintiffs to produce a Vesting Assent necessarily advances the case of the Defendants or disproves the fact that House No. A690/2 was duly shared amongst the children of the late Joseph Kwei Nettey. In the absence of direct evidence of distribution, this Court must look to all the facts and circumstances of the case, the totality of which should provide the necessary proof.  The standard of proof required of a Plaintiff in a civil trial is to lead such evidence as will tilt the balance of probabilities in his favour on a particular issue.  See the case of BISI v TABIRI [1984-86] 2GLR 282.  In my opinion the evidence led by Plaintiffs is strong enough to warrant an inference that House No. A690/2, Djator Street was indeed shared among the children of the late Joseph Kwei Nettey by the 1st Defendant upon the grant of Letters of Administration to him in 1966 and I believe and find that as a fact. 
I now turn to the question of whether or not the order of the High Court authorizing the Administrator General to take over and distribute the estate was obtained by fraud. In the case of SA TURQUI BROS v DAHABIEH [1987-88] GLR 486 @ 500, TAYLOR JSC, was of the view that “a charge of fraud in law can be taken to be properly made against a party who knowingly or recklessly whether by conduct or words uses unfair, unlawful or wrongful means to obtain a material advantage to the detriment of the other party.”  
The particulars of fraud given by the Plaintiffs suggest that the Defendants represented to the Court that the estate of Joseph Kwei Nettey had not been distributed when indeed Letters of Administration had been granted to 1st Defendant and the estate thereafter distributed decades ago. By Section 13 of the EVIDENCE ACT (NRCD 323), a charge of fraud being charge which is criminal in nature will have to be proved beyond reasonable doubt even in civil cases.  The effect of paragraph 8 of the Defendants’ Statement of Defence is not to deny that they informed the Court that the estate had not been distributed but rather to challenge Plaintiffs to provide evidence of such distribution. The totality of the evidence of the Defendants given in this Court also confirms that they sought and obtained the said order appointing the Administrator General because, as they allege, the estate had not been distributed.  It should be apparent from my analysis of the case so far, that I am in no doubt at all that the Defendants willfully misrepresented the true state of affairs to the High Court presided over by his Lordship Justice Aquaye.  I am inclined to believe that the Defendants went back to Court in the year 2007 to seek an order for a redistribution due to a deterioration of relations with Plaintiffs and not because the estate has not been distributed.   The testimony of the 2nd Defendant in particular, fortifies me in this conclusion.  In her evidence-in-chief, 2nd Defendant stated as follows: 
“The Plaintiffs should be evicted because they do not show respect in the house.” 
She went further to state the following under cross-examination:  
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Q: You told the Court that you want the Plaintiffs out because they do not respect you as uncles and aunties. 
     A:  Yes. 
Q:  From what you have said it is not because the building has not been distributed to you by Robert. 
A:  It does not belong to their father but to our father.  
The reliefs being sought by Defendants in their Counterclaim are also very revealing in this regard. I find that the Court’s order appointing the Administrator General to distribute the estate of the late Joseph Kwei Nettey was obtained as a result of Defendants’ representation to the Court that the said estate had not been distributed when they knew the same to be false or had no belief in the truth of their assertion.  I find the charge of fraud established against the Defendants and accordingly set aside the order of the High Court dated the 7th day of May, 2007 appointing the Administrator General to take over and distribute the estate of the late Joseph Kwei Nettey, on grounds that the same was obtained by fraud. 
Having found that the estate had been distributed long before the promulgation of the Intestate Succession Law, 1985 (PNDCL 111).  It follows that the said law cannot be said to be applicable to the facts of this case. Granting however, without necessarily admitting, that the estate had not been distributed prior to the coming into force of PNDCL 111 and that the issue regarding the said distribution was indeed pending before the family head, it behoved the Defendants to lead cogent and credible evidence in support of their allegations, in the face of Plaintiffs’ stout denials. 2nd Plaintiff challenged Defendants’ assertion that Mrs. Fifi Ankrah and Mr. Mettle were the joint family heads and tendered EXHIBIT E in support of his claim that Nathaniel Akai Nettey (deceased) was the duly appointed head.  As pointed out in the case of KLAH V PHOENIX INSURANCE, [2012]2 SCGLR, 1139, “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated by his witness. He proves it by producing other evidence of facts and circumstances from what the court can be satisfied that what he avers is true.”  
In line with the above reasoning, I think that it was imperative for the Defendants in this case, to lead further evidence to substantiate their claim that, the issue pertaining to the distribution of the estate was still pending before their head of family at the time PNDCL 111(supra) came into force.   
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Section 21 (1) of PNDCL 111 which is being invoked by the Defendants in this case states as follows: 
Notwithstanding the provisions of section 1 of this Law, or any other enactment the provisions of this Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a chief or Head of family under customary law at the commencement of this Law in respect of the administration or distribution of the estate of an intestate who died before such commencement...” 
Defendants, I find, led no evidence regarding when in the past forty (40) years the matter went before a family head and for how long the same had been pending.  They even appeared confused as to whether or not the Nettey family had a family head and who indeed that person was. 
On the 2nd day of March, 2015, 2nd Defendant under cross -examination responded: 
“Q:  Who is the head of family? 
A:  They are all dead.  
Q:  So you don’t have a family head now. 
A:  As we speak we have no head of family but cousins who represent the family.” 
The 5th Defendant on the other hand, had this to say on the 9th day of July, 2015 under cross- examination. 
Q: Where is Mrs. Ankrah. 
A: She is dead but I can’t remember the date. 
Q: Was she succeeded by someone?  
A: He is called brother Akai. 
Q: Is brother Akai alive?  
A: Yes he is alive. 
Q: Who is now the head of family? 
A: Brother Akai. 
Q: When was your latest family head appointed?  
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A:  Before Mrs. Ankrah died, at a family gathering where he was appointed before she died. 
The contradictions in the testimonies of the 2nd and the 5th defendant are quite obvious.  At any rate, if the said Brother Akai succeeded Mrs. Ankrah as head of family, as is being alleged by the 5th Defendant, then I am in no doubt that he knew or ought to have known whether or not there was a pending issue regarding the distribution of the estate of the late Joseph Kwei Nettey. He was however, never called to corroborate the Defendants’ assertions. What I see is a desperate attempt on the part of the Defendants to bring this case under the transitional provisions contained in Section 21(1) of PNDC LAW 111 and I reject their claims as there is no reliable evidence before this Court that there was any “claim or adjudication” pending before any family head at the time the said law came into force. 
It is to the final and in my opinion, the most fundamental issue in this suit that I now turn.  I say so because it is trite learning that want of capacity is fatal to an action and a Party who lacks capacity cannot succeed even if he has a cast iron case against his opponent.  The authorities on this legal principle are so numerous that I see no need to cite authorities in support of this position. It has been argued by Counsel for Plaintiffs in his address that the issue of the Plaintiffs’ capacity is not in contention as it was not raised by the Defendants at all.  I however hold a contrary view, given the facts and circumstances of this case.  On the face of the pleadings, it is clear that there is a serious question relating to the Plaintiffs’ capacity to institute the present action and on the authority of YOKWAH v DUAH [1992 – 1993] GBR 278, it is imperative that the same be addressed by this Court. It is the case of the Plaintiffs, that they bring the present action as beneficiaries of the estate of the late Joseph Nakai Nettey. In paragraph 15 of their Statement of Claim, the Plaintiffs aver that they have the capacity to bring the instant action against the Defendants.  Though the Defendants in their pleadings raised no issue as to the capacity of the Plaintiffs to bring the present action, they have challenged the Plaintiffs to produce their Vesting Assents in proof of their assertion that the Property had been distributed.  What I glean from the evidence –in- chief of 2nd Plaintiff is an admission that no Vesting Assents were executed in favour of the beneficiaries by the 1st Defendant as Administrator. This raises the vexed issue as to whether the Plaintiffs are clothed with the requisite capacity to bring this action. This issue was ably addressed in the case of OKYERE (DECD) (SUBSTITUTED BY) PEPRAH v APENTENG &ADOMAA [2012] 1SCGLR 65, where the Supreme Court in explaining the effect of Section 96 of the Administration of Estate Act, 1961 held that in the absence of a formal Vesting Assent executed in favour of a beneficiary or devisee, that beneficiary or devisee had no capacity to sue or be sued in relation to any portion of the deceased’s estate.  On the basis of the above authority, one should ordinarily conclude that the Plaintiffs’ claim and possibly, the Defendants counterclaim must fail.  For, in the 
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 absence of evidence of a formal Vesting Assent having been executed in favour of the Defendants and Plaintiffs’ father, the Plaintiffs cannot maintain an action in their capacity as beneficiaries of a Property to which their late father had no title.  In resolving this issue however, I think it is necessary to consider the nature and character of the Property in dispute.  On the evidence, it is not in dispute that H/No. A690/ 2, Mamprobi was the self-acquired Property of the late Joseph Kwei Nettey which devolved on all his children upon his death intestate. This, in the words of Akuffo Addo JSC in the case of LARTEY V MENSAH [1963] 2 GLR 92 @ 95.  “…operates to constitute the children into “a family” for the purpose of holding and enjoying the said property”.  Although the Property, the subject matter of this suit was shared among the children of the late Joseph Kwei Nettey, the said distribution, in my considered opinion, was only for the purposes of occupation and did not change the fact that the Property remained one unit in which both the Defendants and Plaintiffs’ deceased father held a joint interest.  On the basis of the foregoing, the crucial question is whether there is the legal requirement for the execution of a Vesting Assent in favour of each beneficiary to family property.  Section 96 of the Administration of Estates Act which is the relevant provision states as follows: 
(1) A Personal representative may assent to the vesting in the form set out in the Third Schedule in the person who by devise , bequest , devolution, appropriation or otherwise, is entitled to the vesting beneficially or as a trustee or personal representative, of any estate or interest in immovable property. (2) To which the testator or intestate was entitled (3) Over which the testator exercised a general power of appointment by will, or which devolved on a personal representative.  Of particular significance, is Subsection 2 of the said section which states: “The assent shall operate to vest in that person the estate or interest to which the assent relates and unless a contrary intention appears, the assent shall relate back to the death of the deceased.” 
Now, the concept of the indivisibility of family property is well settled at customary law. The general position is that though each individual member of the family holds a distinct interest in family property the said interest cannot be disposed of by that member except in exceptional cases and even then, not without the knowledge and consent of other principal members of the family, see the case of KOOMA ALIAS AIKINS VRS EKUA ALIAS HAYFRON AND OTHERS [1997 – 1998]. In the case of BINEY v BINEY [1965] (supra), ARCHER J emphasized this principle when he stated “All members of the family have a joint interest in these family properties,... an interest that is indivisible …”    
My understanding of the Section 96 above particularly Subsection 2, is that the effect of   
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executing a Vesting Assent in favour of a beneficiary would be to vest title to the said estate or interest in that beneficiary.  Following such vesting, the said beneficiary, in law becomes the owner of the property and is at liberty to transfer title to a 3rd Party or to deal with the property in whatever way he deems fit.  I think the situation is different in the case of family property, which is communally owned.  Whatever interest each beneficiary owns in the said property does not make them the owner of same. Due to the concept of indivisibility of family property and the principles that govern the use and ownership of same, I am unable to appreciate the contention of both Parties that, Vesting Assents needed to be executed in favour of each beneficiary regarding their respective interests or the portions they occupy in the said Property.  At best, any Vesting Assent executed in favour of the beneficiaries could only vest the Property in them jointly as children of Joseph Kwei Nettey and not their individual capacities.  It is quite clear, that there is no evidence of a Vesting Assent having been executed in favour of the Defendants before this Court but as stated earlier on in this judgement, this does not provide conclusive proof that the estate was not distributed. To me the task of the Court at this stage, is to determine whether the Plaintiffs have the requisite capacity to bring the present action in the absence of proof of a Vesting Assent having been duly executed in favour of the beneficiaries of the estate of Joseph Kwei Nettey.   
There is however, one issue of considerable importance to resolving this question and that is whether or not the Plaintiffs as grandchildren of Joseph Kwei Nettey are statutorily entitled to inherit their father’s interest in the property.  This is because if the Plaintiffs are not so entitled, then, they cannot claim to be beneficiaries of the estate.   
Now, Section 14(3) of the Conveyancing Decree states as follows: 
“(3) A conveyance of an interest in land to two or more persons, except a conveyance in trust, shall create a tenancy in common and not a joint tenancy unless it is expressed in such conveyance that the transferees shall take jointly as joint tenants, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create a joint tenancy.”  
This means that a tenancy in common will be presumed in the absence of clear evidence of an intention to create a joint tenancy. On the evidence, I do not think that there is any doubt that the Defendants and Plaintiffs’ father took the Property in question as tenants in common and not as joint tenants. THE BLACK’S LAW DICTIONARY [8TH EDITION] defines a tenancy in common as; “a tenancy by two or more persons in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship”.  Furthermore, in the case of OWUSU V AGYENTOA [1994-95] 1GLR 45, the Court per  
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Brobbey JA as he then was, in discussing the effect of a clause in the will of the Testatrix in that case, had occasion to explain a tenancy in common as follows: “… if the clause were to have been construed to have created a tenancy in common, each devisee will have held a separate or distinct interest or share which would have literally attached to him or her and would devolve to his or her personal representatives.”  
This would mean that the share of Joseph Nakai Nettey, who died intestate in 2005, should go to those entitled to inherit him under PNDCL 111. Under the said law, in order of priority, it is the Plaintiffs as his children and any surviving spouse who should step into his shoes with respect to his interest in the said Property.  Consequently, the Plaintiffs, in my opinion, qualify in law, as beneficiaries to the Property in dispute and I so hold. 
The final question therefore, is whether the Plaintiffs in the absence of a Vesting Assent are clothed with capacity to bring the instant action. 
In determining this issue, I must say that, this Court is very alive to the fact that the failure by the Plaintiffs to produce a Vesting Assent in this suit does not necessarily mean that one was never executed in favour of the beneficiaries.  I say this because, in the absence of Plaintiffs’ father, it is the Defendants, particularly the 1st Defendant as beneficiary and Administrator who would have been in the best position to know whether or not a Vesting Assent had been executed in favour of the beneficiaries of the estate of Joseph Kwei Nettey.  However, given the facts and circumstances of this suit, one could not have reasonably expected the Defendants to produce a document which would obviously have been damaging to their case even if the same existed.  Be that as it may, the proper approach is for this Court to apply its mind not only to the law and the facts of this case but also to its duty to do justice. 
I find that, there is no dispute that the late Joseph Nakai Nettey (deceased) was a sibling of full blood of the Defendants.  The fact that the H/No A690/2 Djator Street, Mamprobi devolved on all the children of Joseph Kwei Nettey upon his death intestate is also not disputed. The evidence before this Court shows that the Plaintiffs from birth, lived with their father in his portion of the Property until his death in 2005 and still live there.  The 2nd Plaintiff in his testimony on the 8th day of December, 2014 gave his age as 43.  This means that the Plaintiffs have been in possession of their share of the property for not less than 45 years. The facts that have provoked the present suit are clear from the pleadings and the evidence led.  Plaintiffs say that the Defendants seek a redistribution of the Property in a bid to deprive them of their share.  I have already indicated that I am not persuaded that the Defendants had noble intentions for seeking the said order for distribution but whatever the case may be, it is obvious that the   
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Defendants want the Plaintiffs evicted from the Property in dispute. This fact is amply demonstrated by the reliefs being sought by the Defendants in their counterclaim. 
By their Counterclaim Defendants seek the following reliefs: 
A. A declaration that Plaintiffs have no beneficiary interest in H/No A690/2, Mamprobi, Accra B. An order evicting Plaintiffs from the premises of N/No A690/2 Mamprobi, Accra C. Perpetual injunction directed at the Plaintiffs, their assigns and successors in title from interfering in any way with H/No A690/2, Mamprobi/Accra D. Any other or further order(s) as this Court may deem fit.  
 On the authority of OKYERE (DECD) v APENTENG & ADOMAA (supra), it is clear, that the Plaintiffs, having failed to prove that a Vesting Assent was duly executed in favour of the beneficiaries of the Property should ordinarily be held to lack the requisite capacity to bring this suit but in my considered opinion, each case should turn on its own facts. The uncontroverted evidence is that, the Plaintiffs together with their late father have for decades been persons in possession and exercised all rights of ownership over their share of the Property during their father’s lifetime.  The matters leading to the present suit only came up after the death of Plaintiffs’ father.  I do not disregard the fact that it is on the basis of the clear provisions of Section 96 of the Administration of Estate Act, Act 63 that the Supreme Court has held that beneficiaries cannot sue or be sued in respect of an estate unless a Vesting Assent has been duly executed in their favour.   In my respectful opinion however, a strict adherence to the provisions of the said section could lead to grave injustice, for that will mean that the Plaintiffs in this case will be left with no remedy in the face of imminent danger of their share of the Property being lost. To repeat the pertinent question posed by Brobbey JSC in the case of OKYERE v APPENTENG [supra], “If the law is that a beneficiary or 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.” (Emphasis mine).   This was indeed the position taken by the Court of appeal in the case of APPAU AND OCANSEY [1992-93] 2 GBR 850. See HOLDING (4).  This Court, not only being a Court of Law but a Court of Equity, will not shut its doors to the Plaintiffs when doing so will clearly lead to an unjust result.  Consequently, I hold that, the Plaintiffs as beneficiaries of the estate of their late father have the capacity to institute the present suit to protect their interest in the Property. 
Before concluding this judgement, I think there is one issue that cannot be overlooked by this  
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Court.  One of the complaints of the Defendants is that the Plaintiffs have no respect for them. Unfortunately, no evidence was led by the Defendants in proof of the alleged acts of disrespect exhibited by the Plaintiffs.  This, notwithstanding, the general position under customary law is that the right to occupy family property is subject to good behavior.   I will therefore admonish the Plaintiffs to do their very best to dwell in peace and harmony with their “fathers” and “mothers” as this is not the self-acquired property of their late father but family property. 
In the light of the foregoing, I grant reliefs i), ii) and iii) endorsed on the Plaintiffs’ Writ of Summons and dismiss the Defendants’ Counterclaim.  Plaintiffs’ relief (iv) seeks a perpetual injunction against the Administrator General.  As already observed, the record of this Court does not show that the Administrator General was properly made a Party to these proceedings. Accordingly, the said relief being sought against him cannot stand. 
There will be no order as to costs.  
(SGD) MRS. AKUA SARPOMAA AMOAH                       JUSTICE OF THE HIGH COURT   
aey/…           