IN RE TORTO (DECD.) ADMINISTRATOR-GENERAL vs. TORTO [1973] 1 GLR 417

CASES REFERRED TO

(1) Salter v. Salter [1896] P. 291 ; 65 L.J.P. 117; 75 L.T. 7; 45 W.R. 7; 12 T.L.R. 512 S.J. 635, C.A.

(2) MacFoy v. United Africa Co., Ltd. [1962] A.C. 152; [1961] 3 W.L.R. 1405; 105 S.J. 1067; [1961] 3 All E.R. 152, P.C.

(3) Bakuma v. Ekor [1972] 1 G.L.R. 133, C.A.

(4) Craig v. Kanssen [1943] 1 K.B. 256; [1943] 1 All E.R. 108; 112 L.J.K.B. 228; 168 L.T. 38; 87 S.J.

48, C.A.

(5) Forfie v. Seifah [1958] A.C. 59; [1958] 2 W.L.R. 52; [1958] 1 All E.R. 289; 102 S.J. 31, P.C.

(6) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.

NATURE OF PROCEEDINGS

APPLICATION by the Administrator-General, as administrator pendente lite of the estate of T. (Decd.), for an order of interim injunction to restrain the widow of T. from interfering with the estate of the deceased. The facts are fully stated in the ruling.

COUNSEL

Miss T. Amassah, State Attorney, for the applicant.

G.L. Djabanor for the respondent.

JUDGMENT OF SARKODEE J.

After the death intestate of Frederick Obodai Torto, his widow applied for letters of administration for herself and on behalf of her five children. The deceased’s brother entered a caveat to the application. After necessary documents had been filed by both parties the application was argued and the High Court presided over by Anterkyi J. granted the widow’s application; she being in the opinion of the court the person most entitled to the grant. The caveator then filed an appeal in the Court of Appeal against that order of the High Court.

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The widow, before the notice of appeal was filed, had already taken out letters of administration on 13 August 1969. On an application of the caveator brought under section 80 of the Administration of Estates Act, 1961 (Act 63), Coussey J. then sitting in the High Court, Accra, appointed the Administrator-General as administrator pendente lite for the estate of the deceased.

The Administrator-General was of the view that since his appointment, the widow of the deceased made his work difficult because it came to his knowledge that she had been unlawfully collecting rents from a number of immovable properties which formed part of the deceased’s estate. To obviate this situation the Administrator-General caused a letter to be written to the solicitors of the widow and copied it to the widow requesting them to submit a statement of account and any cash balance held by them to him. Neither the solicitor nor the widow replied to the said letter. Meanwhile the widow continued, according to the Administrator-General, to intermeddle with the deceased’s estate. The widow did not deny the allegation levelled against her but rather in paragraphs (10) to (13) of her affidavit in opposition to the Administrator-General’s motion for interim injunction, challenged the validity of the appointment and gave instances of her dealings with some of the properties of her late husband’s estate.

The Administrator-General therefore applied for an order of interim injunction to restrain the widow, Mrs. Christiana Dede Torto from interfering or in any way dealing with the properties of the deceased and or an order directing her to file a statement of account of moneys she had collected from the properties of the deceased.

In support of the application learned counsel for the Administrator-General contended that the order appointing the Administrator-General pendente lite was made after the appeal had been filed; that grounds of appeal were filed after notice of appeal had been filed and that therefore there were proceedings pending. Further that the court had jurisdiction to make the order and that in any event so long as no steps had been taken to set the order aside the Administrator-General had power to act on the strength of that order and that even if that order was erroneous this court is not sitting as an appellate court.

Section 80 (1) of the Administration of Estates Act, 1961 (Act 63), under which the Administrator-General was appointed provides that:

“Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant, are pending, the court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate, and the administrator shall be subject to the immediate control of the court and act under its direction.”

To found jurisdiction under this section there must be an action actually pending in the High Court. In this case there was no lis pendens

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in the High Court when the appointment was made by that court. Proceedings for letters of administration could not be said to be pending in the High Court when the order appointing the widow as administratrix was made. The High Court at that stage was functus officio. The lis had already been determined. Even if an appeal was pending the application should have been made to the Court of Appeal and not the High Court. Proceedings under section 80 of Act 63, in my view, mean proceedings leading to the grant and not where the grant has already been made. It must however be noted that proceedings on a caveat do not constitute an action. In Salter v Salter [1896] P. 291, C.A. as stated in the headnote:

“A. entered a caveat against probate of a will. B., the executor named in the will, warned it, and A. appeared.

Before anything further had been done A. moved for an order for a receiver and administrator pendente lite:

Held… that there was no jurisdiction to make the order, for the caveat proceedings did not constitute a lis pendens, and, as no writ has been issued, there was no application to the Court on which the Court could act.”

Lopes L.J. in that case said at p. 293, that:

“A caveat is merely notice to the registrar to do nothing without notice to the solicitor who entered it. The effect of the warning is that the caveat becomes void unless the person who entered it appears within a certain time. If the person warned appears within the time limited the caveat proceedings are at an end. If after this a writ is issued the lis pendens commences, but not till then.”

There being no action pending before the High Court the purported order appointing the Administrator-General was without jurisdiction and is null and void. Lord Denning in MacFoy v. United Africa Co., Ltd. [1962] A.C. 152 at p. 160, P.C. in his well-known dictum said:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

This brings me to the argument of learned counsel for the applicant that no steps had been taken to set the order aside. The position is different where the order is merely voidable. In that case it is not automatically void. There must be an order of the court setting it aside. In that case if there is jurisdiction, the proceedings are regular and according to law any subsequent error as to fact or law will not invalidate the judgment or order, though that judgment had not been appealed against. Sowah J.A. in Bakuma v. Ekor [1972] 1 G.L.R. 133 at p. 139, C.A. put it this way, “However, if the party affected does

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nothing either by way of appeal or certiorari and allows time to run out, he would be bound by the decision however erroneous and could not be heard in any subsequent proceedings to plead that the decision was wrong.” Where, however, the judgment or order is wrong because it is given (as in the instant case) without jurisdiction the party affected is entitled ex debito justitiae to have it set aside and the court is under an obligation either on its own motion or on the application of the party affected to set it aside. The court has no discretion in the matter and the power of the court or a judge in such a situation is derived from the inherent jurisdiction of the court to set aside its own void orders. Further, there is no time limit in which a person affected by such an order or judgment may apply to have it set aside: see Craig v. Kanssen [1943] 1 K.B. 256, C.A.; Forfie v. Seifah [1958] 1 All E.R. 289, P.C. and Mosi v. Bagyina [1963] 1 G.L.R. 337 at p. 347, S.C.

I am of the view that the order appointing the Administrator- General was without jurisdiction and therefore void and that the learned judge was wrong in making that order. That order cannot therefore stand and is set aside. This application for interim injunction fails and is accordingly dismissed. The Administrator-General is hereby discharged, No order as to costs.

DECISION

Application dismissed.

Administrator-General discharged.

S.E.K.