HEWARD-MILLS vs. OLLENNU AND OTHERS [1997-1998] 2 GLR 228

CASES REFERRED TO

(1) Kipping & Barrow v Ash (1845) 1 Rob Eccl 270; 9 Jur 452.

(2) Doglioni v Crispin (1866) LR 1 HL 301; 35 LJ&M 129;15 LT44.

APPEAL against judgment of the Court of Appeal, which had reversed the decision of the High Court, refusing an application by respondents to intervene in an action for probate instituted by the appellant.

Joe Ghartey (with him Mrs Efua Ghartey) for the appellant.

Phillip Addison for the respondents.

Acquah JSC. This is an appeal against the decision of the Court of Appeal, dated 11 December 1997, reversing an order of the High Court, Accra which refused an application to intervene in a probate action under Order 6, r 3 of the Probate and Admini-

[p.230] of [1997-1998] 2 GLR 228 stration Rules, 1991 (LI 515). The parties would, where necessary be referred to in the manner they appeared at the trial High Court.

The plaintiff, Mr Leslie Rodney Nii Lante Heward-Mills, issued a writ of summons against the defendants, Mrs Alberta Ollennu and Mr Trebi Ollennu for:

“(1) A declaration that the purported will of Mr Albert Gillies Heward-Mills (deceased) dated 11 December 1939 and the purported codicil thereto dated 3 January 1950 upon both of which probate was granted on 23 June 1965, were fraudulently made being forgeries and therefore a fraud on the estate of the said Albert Gillies Heward-Mills and are therefore null and void.

(2) Any relief or reliefs as in the circumstances may be just.

In his accompanying statement of claim, the plaintiff claimed to be one of the sons of the late A G Heward-Mills, and that he was instituting the action as an “unsatisfied beneficiary” under his father’s estate. He also claimed that the defendants were being sued as executors and trustees by representation of the said deceased A G Heward-Mills, they being in fact the executors of the late Nii Amaa Ollennu, who was the last surviving executor of the alleged will and codicil of the late A G Heward-Mills. He stated that the alleged will and codicil, probate of which was granted in 1965, were recently subjected to forensic laboratory tests both in Ghana and England, and that these tests turned out to establish that the signatures on the alleged will and codicil were forgeries. And as forgeries, they were in law a nullity. In his view, this constituted a fraud on the beneficiaries and the estate. Hence the action.

In their statement of defence, the defendants put the plaintiff to strict proof on a number of issues, including the contention that the will and codicil were forgeries.

Now, on the very day that the defendants filed their statement of defence, that was 15 October 1996, twelve persons, eight of whom claimed to be the children of the late A G Heward-Mills (deceased), applied under Order 6 r 3 of LI 1515 for leave to intervene in the suit. In their supporting affidavit sworn to by one Dr Nii Afla Heward-Mills, the respective standing of each of the twelve applicants was explained, after which they referred to four separate actions touching and concerning the will and codicil in issue and then concluded in paragraphs (32)–(35) as follows:

[p.231] of [1997-1998] 2 GLR 228 the late Nii Amaa Ollennu, who was the last surviving executor of the alleged will and codicil of the late A G Heward-Mills. He stated that the alleged will and codicil, probate of which was granted in 1965, were recently subjected to forensic laboratory tests both in Ghana and England, and that these tests turned out to establish that the signatures on the alleged will and codicil were forgeries. And as forgeries, they were in law a nullity. In his view, this constituted a fraud on the beneficiaries and the estate. Hence the action.

In their statement of defence, the defendants put the plaintiff to strict proof on a number of issues, including the contention that the will and codicil were forgeries.

Now, on the very day that the defendants filed their statement of defence, that was 15 October 1996, twelve persons, eight of whom claimed to be the children of the late A G Heward-Mills (deceased), applied under Order 6 r 3 of LI 1515 for leave to intervene in the suit. In their supporting affidavit sworn to by one Dr Nii Afla Heward-Mills, the respective standing of each of the twelve applicants was explained, after which they referred to four separate actions touching and concerning the will and codicil in issue and then concluded in paragraphs (32)–(35) as follows:

“(32) That I am advised by counsel and verily believe that since the plaintiff herein is a full-blooded brother of Dr S D Heward-Mills and Charles Nii Larkai Heward-Mills, and since probate actions are actions in rem, the above named rulings and judgments are binding on the plaintiff.

(33) That I am advised by counsel and verily believe that the present action is non-maintainable on the grounds that:

(a) the plaintiff did not give notice as required in Order 6, r 2 of LI 1 515;

(b) the action is statute-barred; and (c) the plaintiff is estopped by record.

(34) That since we the applicants are beneficiaries under the said will, the present action affects our interest.

(35) That I therefore pray for an order joining us as co-defendants to enable us to protect our interest.”

Before the hearing of this application for leave to intervene, the defendants also filed a motion on notice for joinder wherein they sought to join the very twelve persons who had already filed an

[p.232] of [1997-1998] 2 GLR 228 application to intervene. The basis for seeking to join the twelve persons, as deposed to in their supporting affidavit in paragraphs (4), (5) and (8) are:

“(4) that as executors by operation of law, we do not have personal knowledge of a lot of things that happened before the death of Justice Nii Amaa Ollennu who was the last executor of the late Albert Gillies Heward-Mills.

(5) That not very long ago, we signed a vesting assent in favour of the beneficiaries.

(8) That there are similar or identical writs or actions, suit numbers 118/96, F 157/94, 15/95, 890/91 and 1349/92 where the said persons were sued together with the defendants or were joined by an order of the High Court.”

On 10 February 1997, the High court refused the application for leave to intervene. The Court of Appeal unanimously set aside the High Court’s refusal, and granted leave for the applicants to intervene. The court ordered the case to proceed at the High Court before another judge. It is against this unanimous decision of the Court of Appeal that the instant appeal is lodged on a number of grounds, the most important of which alleges that the Court of Appeal erred in allowing the appeal and granting leave to the respondents to intervene.

In his statement of case, the appellant dwelt extensively on forgery, res judicata, and the definition of a will, each of which issue is not relevant to this appeal. He also stated, though it was not set down as a ground of appeal, that at the Court of Appeal the appeal was heard without proof of service on him nor his counsel. But page 73 of the record of proceedings clearly shows that at the hearing of the appeal, the appellant was represented by one Dr S D Heward-Mills. It cannot therefore be said that the appellant was not unaware of the hearing of the appeal.

Two other less important issues argued by the appellant deserve some comment. First, he complained that the Court of Appeal erred in holding that his action is a probate action. But under Order 6, r 1 of LI 1515, a probate action is defined to be an action:

(i) for the grant of a probate or letter of administration; or

(ii) for the revocation of a probate or letters of administration, or

[p.233] of [1997-1998] 2 GLR 228

(iii) for the Court to pronounce for or against the validity of a will

In the instant action, the appellant seeks a declaration that the will and codicil of the late A G Heward-Mills was a forgery and therefore null and void. Such a relief obviously aims at impugning the validity of the said will and codicil, and thereby renders the action a probate one within the definition of Order 6, r 1 of LI 1515. The Court of Appeal was therefore right in so holding.

The appellant next complained that when his own brother sued in respect of the estate of A G Heward-Mills for the same reliefs, the courts ruled that the present respondents were not the proper persons to be sued. And for the Court of Appeal now to grant the same respondents leave to intervene, would amount to reversing the previous decisions of the court on the respondents.

I think it is important to appreciate that the fact that the respondents have been held not to be the proper persons to be sued in respect of the estate of the late A G Heward-Mills, does not prevent them from applying for leave to intervene, if the action threatens the interest they have in the estate. Now, in the case of Dr S D Heward-Mills v Miss Susan Heward-Mills, High Court, Accra, 3 December 1991, unreported, Dr S D H Heward-Mills, a brother of the full-blood of the plaintiff in the instant case, sued the first, second and fourth respondents herein for a revocation of the probate of the will and codicil of the late A G Heward-Mills, accounts of the rents and profits from the immovable property of the estate, and payment into court of the amount due. Certainly, since on the pleadings of Dr S D Heward-Mills probate of the said will and codicil was not granted to those he sued, an action for the revocation of the said probate could not be directed against them. Thus the court’s upholding of the defendants’ objection that the action disclosed no reasonable cause of action against them, was sound and impeccable.

No, to the main issue in this appeal. The respondents’ case, briefly put, is that they are the children and beneficiaries of the estate of the late A G Heward-Mills and also executors of the children of the late A G Heward-Mills. This is not denied by the appellant. And the appellant’s action challenging the validity of the will and codicil of the late A G Heward-Mills, of which the respondents are beneficiaries, would definitely affect their interest under the said will and codicil. As interested parties therefore, they seek 1eave to intervene to protect their interest. And in so

[p.234] of [1997-1998] 2 GLR 228 applying for leave, the respondents are fully acting within the letter of Order 6, r 3 of LI 1515. It reads: “3. A person not already a party to a probate action may apply to the Court for leave to intervene in the action.” And as to the qualification of an applicant for leave to intervene, rule 3 (2) of LI 1515 clearly provides that the applicant must show the interest he has in the estate. The rule states: “3 (2) The application must be supported by an affidavit showing the interest of the applicant in the estate of the deceased and must be served on all the existing parties.” All what is therefore required of an intended applicant is that he must have an interest in the estate. He needs not be an executor nor holder of letters of administration. Thus, any person with an interest in the estate is competent to apply for leave to intervene under Order 6, r 3 of LI 1515.

Accordingly, although the respondents may not be the proper persons to be sued for the revocation of the probate of the will and codicil of the late A G Heward-Mills because they were not the executors, but beneficiaries under the said will and codicil, they have sufficient interest to entitle them to apply for leave to intervene in any such action under Order 6, r 3 of LI 1515. The legal position is made clearer in Halsbury’s Laws of England, (3ed), Vol 16, p 201, para 353 as follows:

“Any person not named in the writ may intervene and appear in the (probate) action on filing an affidavit showing how he is interested in the testator’s estate. The possibility of an interest is sufficient to entitle a person to become a party to the proceedings.”

(The emphasis is mine.) Thus in Kipping Barlow v Ash (1845) Rob Eccl 270 and Doglioni v Crispin (1866) LR 1 HL 301, it was held that the bare possibility of an interest was sufficient to entitle a person to intervene in such probate actions.

In the instant case, the appellants in their reply to the respondents’ case, contend that the respondents are not necessary parties and that whatever interest they have in the estate can adequately be represented by the executors. If so, what was the need for Order 6, r 3 of LI 1515? The interest of the executors may certainly not be the same as that of the beneficiaries, especially in the instant case where probate was granted over 30 years ago; the estate had been distributed and vesting assent, as alleged by the executors, had been executed in favour of the respondents, and the

[p.235] of [1997-1998] 2 GLR 228 executors are not the real executors of the will and codicil alleged to be a forgery.

It is also of particular interest to observe that the charge of forgery was not levelled against any of the executors. How then does one expect such innocent defendants to defend the action effectively?

Again, both the plaintiff and the respondents are all beneficiaries under the said will and codicil, although the plaintiff claims that he is an unsatisfied beneficiary. But whether satisfied or not, the plaintiff pleads in paragraph (19) of his statement of claim accompanying his writ of summons, as follows:

“(19) The plaintiff says that the alleged will and alleged codicil being forgeries are in law a nullity. Further that the alleged will and codicil being a fraud upon the beneficiaries and the estate are completely and totally vitiated by the said fraud and should be declared null and void.”

(The emphasis is mine.) If the said forgery is a fraud on the beneficiaries, as stated above, then there is need for the respondents beneficiaries to intervene to ascertain the magnitude of the fraud on their interest in the estate.

It is therefore clear that from the pleadings and especially the interest of the respondents as beneficiaries, there can be no valid reason for refusing to allow the respondents to intervene in the action. The Court of Appeal was therefore right in allowing the appeal and granting leave to the respondents to intervene. The appeal must therefore be dismissed.

Appeal dismissed

LSNA