HIGH COURT, KUMASI
Date: 3 NOVEMBER 1975
BAIDOO J
CASES REFERRED TO
(1) Ojikutu v. Fella (1954) 14 W.A.C.A. 628.
(2) Tawiah-Yesereh v. C.F.A.O. [1966] G.L.R. 357, S.C.
(3) France v. Quartey (1925) D.Ct. ‘21-’25, 194.
NATURE OF PROCEEDINGS
APPLICATION by executors nominated in an unproved will to be substituted as defendants in an action brought against the deceased testator in his lifetime. The facts are fully stated in the ruling.
COUNSEL
Hayfron-Benjamin for the applicant.
T. A. Totoe for the plaintiff
JUDGMENT OF BAIDOO J.
The plaintiffs by their action are claiming against the defendant a declaration that certain properties in the possession of the defendant are family properties. After the close of pleadings the defendant unfortunately died. This application has therefore been filed by G.K. Mensah alias Nana Oppong Tuasekan II, Kofiasehene, who claims to be one of three executors appointed under a will alleged to have been executed by the defendant in his lifetime. He is applying that the said three executors appointed in the said will be substituted in place of the deceased defendant.
A copy of the will is attached to the motion as exhibit A and an examination of the relevant court docket reveals that three different persons have
[p.462] of [1975] 2 GLR 460
each filed a caveat to prohibit grant of probate. As the grounds for filing the caveats have not as yet been probed it cannot at this stage be assumed there is a valid will. I therefore hold that in view of the tough opposition raised by the plaintiffs as to the locus standi of the executors it will be premature to substitute them in place of the deceased defendant. The alleged will must be proved and probate granted before the executors therein nominated can decide whether they are competent to apply to be substituted in place of the deceased defendant.
To enable them make a proper decision the intended executors must bear in mind that an executor who has duly proved the will and taken out probate may, nevertheless, be incompetent to litigate in respect of a particular devise or bequest. It is only in those cases where the testator has vested the legal title to the property in him as trustee to administer it for the benefit of named beneficiaries or objects that be can sue and be sued in respect of that particular property: vide the case of Ojikutu v. Fella (1954) 14 W.A.C.A. 628 where the will vested the legal estate in the property (a house) to the executors on trust for the benefit of the plaintiffs and the defendant. The executors having died years later the defendant collected and misappropriated the rents. The plaintiffs sued for accounts, and the West African Court of Appeal in its judgment dismissing the plaintiffs’ claim in the course of the appeal observed at pp. 629-630 as follows: “If the will upon which the plaintiffs sued is of effect the legal estate in the property mentioned vested in the trustees of the will. The plaintiffs have no interest in the legal estate. Their interest is to have their legacies paid from time to time out of the income of the estate. It is said that both the trustees appointed by the will are dead. If the defendant is intermeddling with the estate to the plaintiffs’ detriment, the proper course seems to be to apply for appointment of a new trustee. Then, if the defendant is disturbing the legal estate the plaintiffs, although they may not institute legal proceedings in the name of the trustee without his authority, may oblige the trustee, on giving him a proper indemnity, to lend his name for asserting the legal right. But the plaintiffs cannot maintain an action for account against a debtor to the trust estate and that is what they allege against the defendant that she in effect is: Sharpe v. San Paolo Railway (L.R. 8 Ch. 597, at 609) where James, L.J., said that if the trustee would not take proper steps to enforce a claim, the remedy of the cestui que trust was to file a bill against the trustee for the execution of the trust.”
If on the other hand the property is devised or bequeathed directly to a named beneficiary, it is the beneficiary himself who can sue or be sued in respect of that property. This point is illustrated by such cases as Tawiah-Yesereh v. C.F.A.O. [1966] G.L.R. 357, S.C. and France v. Quartey (1925) D.Ct. ‘21-’25, 194. In the last cited case the executors brought an action to set aside on ground of fraud a deed of gift conveying a piece or parcel of land devised under the will. It was held that as
[p.463] of [1975] 2 GLR 460
the land was not specifically vested in the executors as trustees they had no locus standi to sue.
It is clear from the above discussion that it is at the moment a matter of conjecture who are the appropriate person or persons to be substituted in place of the deceased defendant. Order 17, r. 11 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), caters for such a situation. It provides as follows: “If any dispute arise as to who is the legal representative or successor of a deceased plaintiff, it shall be competent to the Court either to stay the action until the fact has been duly determined in another action, or to decide at or before the hearing of the action who shall be admitted to be such legal representative or successor for the purpose of prosecuting the action.”
In the circumstances it is hereby ordered that the proceedings in the action be stayed until after probate has been granted or refused when the court can determine who are the proper person or persons to be substituted in place of the deceased defendant. The present application is therefore struck out with liberty to re-apply. No order as to costs.
DECISION
Application struck out with liberty to re-apply.
D. R. K. S.
