HIGH COURT, KUMASI
Date: 7 MAY 1974
OWUSU-ADDO J
CASES REFERRED TO
(1) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
(2) Craig v. Kanseen [1943] K.B. 256; [1943] 1 All E.R. 108; 168 L.T 38; 112 L.J.K.B. 228; 87 S.J. 48, C.A.
(3) In re Jolley (Decd.); Jolley v. Jarvis [1964] P. 262; [1964] 2 W.L.R. 556; [1964] 1 All E.R. 596; 108 S.J. 115, C.A.
NATURE OF PROCEEDINGS
APPLICATION by a caveator to set aside a grant of probate made by a judge who was unaware of the entry of a caveat, the application for the probate preceding the entry of the caveat. The facts are sufficiently set out in the ruling.
COUNSEL
K. A. Boaitey for the applicant.
Rose Taylor for the respondents.
JUDGMENT OF OWUSU-ADDO J
This application is brought under Order 70 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), on behalf of the caveator-applicant, praying for an order to set aside the grant of probate given on 25 September 1973 in respect of the will of the late Kwaku Yeboah to the executors, who will hereafter be referred to as the respondents.
[p.100] of [1974] 2 GLR 98
In order to appreciate the arguments canvassed for and against this application, it is quite necessary to give a brief account of the facts promulgating in this application. The testator, Kwaku Yeboah, died on 4 May 1973 at a place called Sekyere in the Ashanti Region leaving a will dated 5 November 1972. After his burial and observation of all the necessary funeral rites, as is only to be expected, the respondents, having been appointed executors under the said will, applied to the High Court, Kumasi, for probate of the will. The application which came before Sarkodee J. on 25 September 1973 sitting as a vacation judge, was granted and the will admitted to probate. It turned out that before the respondents’ application for probate was heard, a caveat had been lodged under Order 60, r. 14 of L.N. 140A, against the estate of the deceased on 24 September 1973, the day before the grant of probate. It is not in dispute that the caveat was not brought to the knowledge of the learned judge before he admitted the deceased’s will to probate. In the meantime the respondents had paid the estate duty on 8 October 1973 before they were notified of the caveat. Subsequently, the learned counsel for the respondents caused a warning to issue to the caveato r who filed an affidavit of interest on 24 January 1974, exactly a week after the present application had been filed. However, before the hearing of this application a writ of summons seeking to establish the will against the caveator had been issued on behalf of the respondents.
On 1 February 1974 an appearance was entered on behalf of the caveator. In the present application the main contention of learned counsel for the caveator is that on 24 September 1973 a caveat had been filed in anticipation of an application for probate in respect of the estate of Kwaku Yeboah. He placed much reliance on Order 60, r. 15 of L.N. 140A which reads as follows:
“If [a caveat is] filed prior to any application for probate or letters of administration, it shall be brought to the notice of the Court by the Registrar as soon as any such application is filed, and the Court shall then direct the Registrar to bring such caveat to the notice of the applicant, and shall decline to take any steps until the applicant duly warns the caveator in the manner hereinafter provided.”
I am of the view however that the applicable rule in this situation is rather rule 16 of the aforementioned Order since the filing of the application for probate preceded the caveat. It reads:
“16. Where the caveat is filed after any application for probate or letters of administration it shall at once be brought to the notice of the Court by the Registrar. No further steps may then be taken with respect to the application for probate or letters of administration, but a notice in the form set out in Form 20, Appendix J, shall forthwith be sent by the Registrar to the applicant or his solicitor.”
(The emphasis is mine.) Here the caveat was not brought to the notice of the court as admitted by the senior registrar of this court. It is therefore a fact that the court without notice of the caveat granted the respondents’ application for probate.
[p.101] of [1974] 2 GLR 98
The argument advanced by the counsel for the applicant was that the order for probate was made per incuriam since it was made in ignorance of the caveat. Secondly, the order was a nullity and was therefore caught by Order 70, rr. 1 and 2. But the said order relates to voidable and not void orders or proceedings. In fact my understanding of Order 70 is that it does not avail in circumstances where the order or proceedings in question is a complete nullity. It merely saves irregularities which do not render proceedings void but voidable. One would have thought that since the applicant’s substantial complaint was non-compliance with the procedure rules, it is the kind of situation contemplated by Order 70, r. 1, but counsel by his argument brought the situation outside the purview of the said rule by contending that the order of probate was void and not voidable. Be that as it may, the real question in this case is whether the failure on the part of the registrar to bring the caveat to the notice of the learned judge before he dealt with the respondents’ application for probate is such a fundamental defect as would abate the entire proceedings. I think not. For the law as I have always understood it, is that where a court or a judge gives a judgment or makes an order which it has no jurisdiction to give or make, or which is irregular because it is not warranted by any enactment or rule of procedure, such a judgment or an order is void: see Mosi v. Bagyina [1963] 1 G.L.R. 337 at p. 342, S.C.
But in this case since the application for probate preceded the caveat the court has a discretion whether to stay further proceedings or not. This discretionary power is clearly spelt out in Order 60, r. 16. A clear distinction must therefore be drawn between the intendment of Order 60, r. 15 and that of rule 16 of the same Order. In respect of the former, the court is compelled not to take further steps in the matter until the applicant duly warns the caveator.
In this case even if the caveat had been brought to the notice of the learned judge in the morning before he granted the respondents’ application and if in his opinion the application should nevertheless be granted, he could not be said to have disobeyed a statutory requirement. Of course a lot would depend on the contents of the caveat and the position of the caveator vis-a-vis the estate. This brings me to the question whether the procedure adopted by the caveator to set aside the probate is proper. Learned counsel for the respondents vehemently opposed this application on the ground of improper procedure.
From the very nature of this application, it has fallen upon me to exercise a discretion, namely, under Order 60, r. 16 in favour of the applicant. I must mention that in the area ofjudicial discretion there are no binding precedents, each case has to be dealt with strictly on its own merits and on the view which the court takes of the particular circumstances calling for the exercise of the discretion. Often one may gather from the decided cases some general indications which for convenience, may help a court in the exercise of its discretion but such indications are not rules of law which oblige a judge to accept one case of discretion as against another.
[p.102] of [1974] 2 GLR 98
Here the basis of the caveat filed by the applicant and deposed to in his two affidavits dated 17 January 1974 and 24 January 1974 respectively were firstly, that the will of the deceased cannot be valid. Secondly, that the cocoa farms purported to be devised in the said will are family property and therefore the deceased had no authority to make a valid devise of them in his will.
I think the difficulty which has arisen here is a difficulty largely of the applicant’s own making because not only is he challenging the validity of the will but he is also contending that the admission to probate of the said will is null and void due to non-compliance with the procedure rules being the kind contemplated by Order 70, r. 1. As I have already stated, since his complaint is that the defect is fundamental and so the grant is a nullity Order , 70 cannot save such a situation. I respectfully quote the words of Lord Greene M.R. in the case of Craig v. Kanseen [1943] 1 All E.R. 108, C.A. which run as follows at p. 113:
“Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order; and that an appeal from the order is not necessary.”
The situation here is that the order for probate cannot be described as void ab initio because, under Order 60, r. 16, the court has a discretion even where the caveat has been brought to its notice to grant the probate or stay proceedings depending on the contents of the caveat.
It seems to me quite clearly that this application is improper and that the proper procedure is for the caveator to have started proceedings for revocation of the grant of probate. It would, I think be quite absurd to allow the applicant to set aside the probate by motion at a time when he is challenging not only the validity of the will but also the deceased’s authority to devise the properties purported to be devised under his will. But since the executors themselves have decided to propound the will by issuing a writ, it would be unnecessary for a fresh action to be brought to set aside the probate. What the caveator should have done was to file a statement of defence, praying for the revocation of the grant on the grounds that he is relying upon. I am fortified in my conclusions by the English case of In re Jolley (Decd.); Jolley v. Jarvis [1964] 2 W.L.R. 556, C.A. In that case the deceased died leaving a will of which her executors obtained probate in common form. The appellant, her only son who claimed to be the only person entitled to her estate on intestacy desired to dispute the validity of the will and caused a citation to be issued commanding the executors to bring in the probate and commanding the executors and the beneficiaries under the will to enter an appearance to the citation and to propound the will or show cause why letters of administration of the deceased’s estate should not be granted to him. In his judgment Wilimer L.J. at pp. 560—561 read the following passage from Mortimer,
[p.103] of [1974] 2 GLR 98
The Law and Practice of the Probate Division of the High Court of Justice (2nd ed.) at p. 550:
“The preliminary steps to be taken by a party who desires to obtain revocation of probate, or to compel an executor who has proved the will in common form, to propound it for proof in solemn form, are the entry by him of a caveat, followed by the extraction of a citation against the executor to bring the grant into the registry, and the issue of a writ making the executor defendant and alleging the invalidity of the will. The executor thereupon lodges the grant in the registry, enters an appearance to the writ, and an action commences’.”
Since the executors have already taken steps to establish the will, the only step left to the applicant is to defend that suit by establishing the invalidity of the will. Caveator’s application is therefore dismissed. I make no order as to costs.
DECISION
Application dismissed.
K.T.
