DIVISION: SUPREME COURT
DATE: 21 JUNE 1965
BEFORE: MILLS-ODOI, APALOO AND SIRIBOE JJ.S.C.
CASES REFERRED TO
(1) Ingall v Moran [1944] K.B. 160; [1944] 1 All E.R. 97; 170 L.T. 57; 60 T.L.R. 120; 88 S.J. 68, C.A. (2) Hilton v. Sutton Steam Laundry [1946] K.B. 65; 174 L.T. 31; [1945] 2 All E.R. 425, C.A. (3) Finnegan v. Cementation Co., Ltd. [1953] 1 Q.B. 688; [1953] 2 W.L.R. 1015; 97 S.J. 332; [1953] 1 All E.R. 1130, C.A. (4) Dotwaah v. Afriyie [1965] G.L.R. 257, S.C. (5) Makata v. Ahorli (1956) 1 W.A.L.R. 169, W.A.C.A. (6) Sokpui II v. Agbozo III (1951) 13 W.A. C.A. 241. NATURE OF PROCEEDINGS
APPEAL from a judgment of Prempeh J. (as he then was) delivered on 29 April 1963 awarding the plaintiff-respondent damages under the Fatal Accidents Acts. The facts as summarised in the headnote are taken from the judgment of Apaloo J.S.C.
COUNSEL
E. D. Kom for the appellants. N. Odoi-Annan (with him Asafu-Adjaye) for the respondent.
JUDGMENT OF APALOO J.S.C.
This is an appeal from the judgment of Prempeh J. (as he then was) delivered on 29 April 1963. By that judgment, the learned judge awarded in favour of the respondent (hereinafter called the plaintiff) damages under the Fatal Accidents Acts. The facts of this case present hardly any difficulty and the substantial issues which were fought before the court below and before us are issues of law. But in order that these issues may be appreciated, it would, I think, be in order to relate the facts briefly. The plaintiff, who has since died, was the mother of the late William George Ayitey Bulley. The latter was in his lifetime employed as the chief driver of the Department of Public Construction. On 26 June 1961, while at work in the yard of the Department of Public Construction, he was knocked down and fatally injured by a tipper truck driven by the first defendant and owned by the second defendant company. Mr. Bulley succumbed to his injuries and died the same day. The plaintiff, claiming that the deceased’s death was due to the negligent driving of the first defendant, on 3 March 1962, issued against the defendants, a writ claiming damages. This relief was obviously sought under the Fatal Accidents Acts, 1846-64,1 as amended by the Law Reform (Civil Wrongs) Act, 1959.2 The plaintiff sued in her capacity as “successor and next-of-kin” of the [p.471] of [1965] GLR 469 deceased. On 27 March 1962, the plaintiff lodged a statement of claim in which she set out, in paragraph (4), the names of persons on whose behalf the action was brought. It would seem that some time before instituting the action, the plaintiff was paid compensation apparently under the Workmen’s Compensation Ordinance.3 Accordingly, when the defendants filed a statement of defence on 31 March 1962, they pleaded inter alia that the action was barred by virtue of the provisions of section 24 (1) of the aforesaid Ordinance. The defendants also denied negligence on their part and contended in the alternative that, even if such negligence were established, the deceased Bulley contributed to it. They also denied that the plaintiff was entitled to sue. Some time after the pleadings closed, some of the contention raised in the statement of defence became the subject of preliminary argument before Ollennu J. (as he then was). This was on 29 May 1962. The learned judge declined to pronounce a ruling on the preliminary arguments and instead decided to defer it for incorporation in a final judgment. The action was therefore ordered to proceed. About five months after this order, the plaintiff sought to amend the title of the suit by prefixing to the words “successor and next-of-kin” the words “personal representative.” This application came before the court on 15 November 1962, and was granted without opposition. It is to be noted that no application was made to amend the endorsement on the writ in a similar manner. After a number of other amendments were sought and granted to the plaintiff, trial commenced on 4 December 1962, and concluded on 7 March 1963. The learned trial judge found against the defendants on the question of negligence and rejected the plea of contributory negligence. As at the time the action was commenced, the plaintiff had not obtained letters of administration, it was argued on behalf of the defendants, that the plaintiff did not disclose any legal capacity to sue. The learned judge rejected that argument on the ground that as the plaintiff was herself a “beneficiary” she was entitled under the Fatal Accidents (Amendment) Act, 1864, to sue. On the question whether or not the action was barred by receipt of compensation, the court accepted the evidence led on behalf of the plaintiff that the payment was received in the mistaken belief that it was a gratuity. Accordingly, basing himself on some English decisions which were cited to him, the learned judge held that the action was not barred. Having disposed of all the points of law adversely to the defendants, he decided that the plaintiff was entitled to damages and proceeded to award them with substantial costs. [p.472] of [1965] GLR 469
The defendants appeal against that judgment to this court on no less than twenty grounds, all of which, save one, were argued. But the most serious part of the argument was directed to the learned judge’s finding on the question of capacity to sue and his decision on whether or not the receipt of compensation debarred the plaintiff from proceeding with the action for damages. But if the defendants succeed in making out their contention that the plaintiff never had a valid cause of action vested in herself, then the question whether or not the issue as to compensation was rightly decided would be purely obiter and I would on that score, refrain from expressing an opinion on it. Both the first and second grounds of appeal, which counsel argued together, complain in effect that the learned judge was wrong in holding that the plaintiff validly obtained letters of administration or had any capacity to sue. Counsel referred us to the date when the writ was taken out and when letters of administration were issued and submitted that the plaintiff was not a personal representative at the date of writ and therefore had no capacity to sue. Although counsel conceded that the plaintiff, as a dependant, could sue as such, he submitted that the plaintiff never at any time sued as a dependant. She only professed to sue in a capacity which she did not acquire at the date of the institution of the suit. In support of this contention, counsel referred us to the cases of Ingall v. Moran,4 Hilton v. Sutton Steam Laundry5 and Finnegan v. Cementation Co., Ltd.6 Those cases decide that an administrator as such has no cause of action vested in him before he has obtained letters of administration and that a writ issued by him in that capacity before obtaining grant is a nullity. These cases also decide that where an administrator who is also a dependant issues an invalid writ in his representative capacity, the court would not allow an amendment making the writ one issued in a personal capacity since this would deprive the defendant of the benefit of the limitation period in the Fatal Accidents Acts. All these are unanimous decisions of the Court of Appeal in England and if they are right, and the contrary has not been suggested, they provide very strong support for the contentions put forward on behalf of the defendants. It was conceded for the plaintiff that no letters of administration were taken at the date of the writ but these were subsequently validly taken. It was said the plaintiff sued not only as personal representative but also as successor, next-of-kin and dependant. It was submitted that as the plaintiff was in fact a dependant, she was
[p.473] of [1965] GLR 469
entitled by reason of the provisions of section 1 of the Fatal Accidents (Amendment) Act, 1864, to maintain an action in that capacity and the other roles in which the plaintiff purported to sue were mere surplusage and could be disregarded. Accordingly counsel submitted that the cases relied on by the defendant were inapplicable. For myself, I was captivated by the reply made on behalf of the plaintiff and had the plaintiff in fact sued in the four capacities claimed by her counsel, I should not find it difficult to sustain that argument. But how is this apparently attractive submission borne out by the record? As the plaintiff was suing in a representative capacity she was obliged by the mandatory provisions of Order 3, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 19547 to show in the endorsement to the writ in what capacity she brought the action. The plaintiff stated her capacity in the writ as “successor and next-of-kin.” In the case of Dotwaah v. Afriyie,8 this court held in its judgment of 12 April 1965 that upon the appointment of a successor, the self-acquired property of the deceased to whom he succeeded vests in him for and on behalf of the family and he is thereby entitled, in place of the head of the family, to litigate the family’s title to the property. A successor as such has a locus standi. This principle is clearly inapplicable to this case which is in no way concerned with family property. In my opinion, no question of customary law is involved in this case. Whether or not the endorsement on the writ discloses a valid capacity to sue depends solely on the provisions of the Fatal Accidents Acts and such interpretation as is put on those Acts by judicial decisions. The only persons statutorily clothed with capacity to sue under those Acts are executors and administrators and latterly, in certain circumstances, the dependants. At the date when the plaintiff issued her writ, she was neither an executrix nor administratrix. No cause of action was therefore vested in her and she could not and did not commence a competent action. What then is the legal nature of the writ? The cases on which counsel for the defendants relied show that that writ was a nullity and was incurably bad. Indeed, when the plaintiff launched the litigation in March 1962, she did not profess to sue as a personal representative. As I said, she was granted leave on 15 November 1962 to amend the title of the suit to include a claim by her as a personal representative. As the endorsement on the writ was not similarly amended, it is a debatable point whether she could properly be deemed, in
[p.474] of [1965] GLR 469
whatever capacities else she began the action, to have sued as a personal representative. But if the writ was void ab initio for want of capacity, then the purported amendment amounts to nought. But granted that on 15 November 1962, the plaintiff set on foot a proper representative action, she cannot have disclosed a valid capacity as a personal representative because letters of administration were not issued in her favour until 20 December 1962. It is only then that the plaintiff can properly commence an action as a personal representative within the meaning of the Fatal Accidents Acts. But on that date, the period of limitation of twelve calendar months prescribed by section 3 of the Fatal Accidents Acts had run out and no valid action could have been prosecuted under the Acts. It follows that the plaintiff never at any time prosecuted a competent action as a personal representative under the Fatal Accidents Acts and that counsel for the defendants was right in his contention. The learned trial judge was himself persuaded by the submission based on the decision in Ingall v. Moran (supra) and expressed himself as follows: “There seems to be no doubt that counsel’s submission supported by this decided case is a forceful one, and but for what I have already held that would appear to have put an end to the plaintiff’s case.” What the learned judge apparently held as taking the case out of the principle in Ingall v. Moran was that the plaintiff was herself a beneficiary and claimed for herself and the others equally entitled with her. The learned judge himself put it as follows: “It is quite clear that the plaintiff is at the same time claiming as a beneficiary for herself and for the benefit of the other beneficiaries of the deceased-which she could quite properly do under the Fatal Accidents (Amendment) Act, 1864, and as to that there is abundant evidence.” The learned judge did not pinpoint the “abundant evidence” which shows that the plaintiff in addition to her many doubtful capacities also sued as a dependant. I have searched in vain through-out the record to see among the plaintiff’s multifarious amendments any one which sought to amend either the endorsement on the writ or the title of the suit to enable the plaintiff to claim as a dependant or beneficiary. Although counsel for the plaintiff told us in argument that one of the capacities in which the plaintiff sued is as a dependant of the deceased, he did not refer us to anything on the record which bears this out. As far as the title of the suit is concerned, the only amendment which sought to change it was filed on 18 October 1962 and was formally granted on 15 November 1962. It changed the title of the suit as follows: “Mrs. Charlotte Ashaodey Bulley, as
[p.475] of [1965] GLR 469
personal representative, successor and next-of-kin to William George Ayittey Bulley (deceased).” It is in these capacities that the action proceeded until judgment was delivered on 29 April 1963. If the plaintiff or her advisers had conceived themselves as suing as a dependant under the Fatal Accidents (Amendment) Act, 1864, there would have been no need to amend the writ to include the capacity of a personal representative which status, as the plaintiff’s advisers must have known, the plaintiff did not acquire at the date of the amendment, namely, 15 November 1962. In my opinion, the learned judge’s view that the plaintiff also sued as a “beneficiary” under the Fatal Accidents (Amendment) Act, 1864, was due to a misappreciation of the evidence and was entirely incorrect. Mr. Annan’s argument which was noticeably terse on this particular aspect of the case, would seem to suggest that the words “successor and next-of-kin” could be construed as a “dependant” to entitle the plaintiff to sue. I was at one stage tempted to concur with this view but on reflection, I think that that would not be a legitimate construction of the word “successor.” The word successor in its ordinary legal acceptation does not mean a dependant and the fact that these two may unite in a single individual does not justify us in stretching the meaning of that word to fit the particular facts of this case. The legal position of a successor is more akin to a personal representative than anything else. According to Wharton’s Law Lexicon (14th ed.), p. 961, successor is “one that follows in the place of another.” That that is the sense in which that word is used in customary law, is shown by a decision of the West African Court of Appeal in the case of Makata v. Ahorli,9 where it is stated in the headnote that, “the elders . . . may appoint a successor at their discretion, to stand in the shoes of the deceased with respect to the family property . . .” Nor is the position improved by the coupling of the words “next-of-kin , to the word “successor.” A next-of-kin is merely a blood relative who may or may not be a dependant of the deceased. According to Wharton, “next-of-kin” is “a person or set of persons nearest in blood relationship to another person.” If the original action which the plaintiff brought was brought in her capacity as the dependant of the deceased, the present difficulty would not have arisen. The deceased died on 26 June 1961, and as no personal representative had been appointed at the time the writ was taken out in March 1962, the obvious thing to do was to sue as a dependant by virtue of section 1 of the Fatal Accidents (Amendment) Act, 1864, which provides:
[p.476] of [1965] GLR 469
“If and so often as it shall happen at any time or times hereafter in any of the cases intended and provided for by the said Act that there shall be no Executor or Administrator of the person deceased, or that there being such Executor or Administrator no such action as in the said Act mentioned shall within six calendar months after the death of such deceased person as therein mentioned have been brought by and in the name of his or her Executor or Administrator, then and in every such case such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it had been brought by and in the name of such Executor or Administrator; and every action so to be brought shall be for the benefit of the same person or persons, and shall be subject to the same Regulations and Procedure as nearly as may be, as if it were brought by and in the name of such Executor or Administrator.” But the plaintiff, or more accurately, her advisers, chose to bring the action in a capacity she did not possess and this difficulty is entirely of their own making. I am therefore constrained to hold that the writ was a nullity and so are the proceedings and judgment founded upon it. This disposes of this appeal and I abstain from expressing any opinion on the other matters raised in this appeal. I need hardly say that I reached this conclusion with no relish especially as the plaintiff made out an unimpeachable case of negligence against the defendants on the merits. But the question of capacity, like the plea of limitation, is not concerned with merits and as Lord Greene M.R. said in Hilton v. Sutton Steam Laundry,10 “Once the axe falls it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitations [and I would myself add, or an unanswerable defence of want of capacity to sue] is entitled, of course, to insist upon his strict right.” Accordingly, I would allow the appeal and set aside the judgment appealed from together with the order as to costs. In lieu of it, I would make an order dismissing the plaintiff’s claim and enter judgment for the defendants. The defendants are entitled to their costs in the High Court which I assess at 200 guineas. I would order that the plaintiff refund to the defendants the costs of 400 guineas paid to her in pursuance of the judgment of the High Court. I would also award the defendants their costs in this court.
[p.477] of [1965] GLR 469
JUDGMENT OF MILLS -ODOI J.S.C
I am also of the opinion that the appeal be allowed, with the usual consequences. It is not necessary to recapitulate the facts in this case; they are sufficiently dealt with by my brother Apaloo in the judgment he has just read and which I had the advantage of seeing beforehand. Nor is it necessary for me to say more as to the conclusions to be drawn from the facts, except to state that the plaintiff’s action was bad as being brought by a person who had no title to sue. Her action could not be cured by amendment into a valid action, because it was an action which was never issued at all. For this reason, the subsequent proceedings in the supposed action, including the judgment of the learned trial judge were likewise nugatory; for if the action and the pleadings were bad, there was no valid action before the court to try. JUDGMENT OF SIRBOE J.S.C
I am also of the opinion that his appeal must be allowed. I must confess quite frankly, that I was at first attracted by the submission of learned counsel for the plaintiff when in answer to the question about capacity, he said that the plaintiff sued in four capacities, namely, as personal representative, successor, next-of-kin, and dependant. If indeed that were so, the point taken by counsel for the defendants about lack of capacity to sue would have been baseless. Unfortunately, however, for the plaintiff a thorough perusal of the record of proceedings lent no support to the submission that the plaintiff also sued in her other capacity as dependant. In one of the various amendments at her instance, it was pleaded in paragraphs (1) and (4) of the statement of claim that the persons for whose benefit the action was brought were the plaintiff, and some others whose names were mentioned.That, I think, did not save the situation with regard to the lack of capacity to sue, on the principle laid down in the cases referred to in the judgment of my brother Apaloo. While on this point of capacity, I am tempted to refer to the case of Sokpui II v. Tay Agbozo III.11 In that case, the plaintiffs sued in the native court for themselves and on behalf of the general community of Dzelukope, that is, they sued in a representative capacity. The native court, after hearing the whole of the plaintiffs’ evidence and that of one defendant only, entered judgment for the defendants. On appeal to the West African Court of Appeal, their lordships were of the opinion that the first question that the native
[p.478] of [1965] GLR 469
court had to determine was whether or not the plaintiffs were duly authorised to sue in a representative capacity, which question, for reasons stated by the native court, was decided against the plaintiffs. Verity Ag. P., delivering the judgment of the court had this to say: “There can be no doubt that where parties sue in a representative capacity and their authority to do so is questioned, it lies upon them to satisfy the Court that they have been duly authorised. It is for the Court to consider the evidence they have tendered in that regard and to come to its conclusion . . . The decision of the Native Court on that question was fatal to the plaintiffs and on that ground alone they were right in dismissing the plaintiffs’ action.” In the instant case, to a question put by counsel for the defendants that letters of administration had in fact not been obtained, the plaintiff ‘s attorney gave an affirmative answer. As rightly pointed out by my brother Apaloo, the letters of administration (exhibit C) were obtained on 20 December 1962, i.e. many months after the death of Emmanuel Stephen Bulley, and also after the statutory limitation for instituting the action. It is therefore abundantly clear on the authority of Sokpui II v. Agbozo III, that the plaintiff, when questioned about her capacity to sue as personal representative of the deceased, was unable to prove that she was entitled to do so, and that, I think, was fatal to her case. I am therefore of the opinion that this appeal must be allowed. With regard to the question of costs, however, I have in vain endeavoured to persuade myself to agree with the views held by my brothers.In my opinion, the merits of the case quite properly established negligence on the part of the defendants. Therefore, if they have succeeded on the point already dealt with at all, I would, in fairness to the plaintiff, award no costs in favour of the defendants, either here or in the court below—except that I would order that the costs already paid by them to the plaintiff should be refunded. DECISION
Appeal allowed.
S.K.D.-B.
