BONSU vs. EYIFAH AND ANOTHER [2001-2002] 1 GLR 9

CASES REFERRED TO:

(1) Anyinam v Mensah [1989-90] 2 GLR 96.

(2) Republic v High Court, Kumasi; Ex parte Fosuhene [1989-90] 2 GLR 315, SC.

(3) Kuma v Bart-Plange [1989-90] 1 GLR 119.

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APPLICATION by the defendants to strike out the plaintiff’s writ of summons for the recall and revocation of letters of administration which had been granted to the defendants on the ground that the plaintiff had failed to comply with section 67 of the Administration of Estates Act, 1961 (Act 63). The facts are sufficiently stated in the ruling.

Addo Atuah for the plaintiff.

Cyril Quartey for the defendants.

Appau J. This is an application by the defendants calling on the court to strike out or set aside the plaintiff’s writ of summons for non-compliance with a fundamental legal requirement. The six-paragraphed affidavit accompanying the application which was sworn to by counsel for the defendants did not specify the said requirement which the defendants said the plaintiff did not comply with. However, according to the defendants, they had filed the application consequent upon a conditional appearance entered on their behalf by their counsel on 15 March 2001. The application itself was filed on 29 March 2001, that is ten days after the entry of appearance. The plaintiff did not file any affidavit in opposition because, according to her counsel, there was nothing in the affidavit in support of the application which they had to respond to. Counsel for the plaintiff therefore opposed the application on legal grounds.

In his arguments in support of the application, counsel for the defendants pointed out that the plaintiff’s claim was for the recall and revocation of letters of administration granted to the defendants. However, the plaintiff did not comply with section 67 of the Administration of Estates Act, 1961 (Act 63) thus rendering the action void ab initio. According to counsel, section 67 of Act 63 requires that before a plaintiff brings an action in respect of an estate over which letters of administration has been granted, the plaintiff must first of all file a citation calling upon the citee to produce the letters of administration at the registry of the court. Counsel submitted that since the plaintiff did not serve any notice on the defendants to lodge the letters of administration granted them at the registry of the court before filing and serving the writ on [p.12] of [2001-2002] 1 GLR 9 them, the writ becomes void and same should be set aside. Counsel referred to the case of Anyinam v Mensah [1989-90] 2 GLR 96 in support of his contention and submitted that being a fundamental irregularity, the plaintiff cannot find solace under Order 70 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) for a cure. Counsel also said the failure to depose to an affidavit in opposition meant the plaintiff was not opposed to the application.

In reply to the submissions by counsel for the defendants, the plaintiff’s counsel indicated that whilst the writ of summons was filed on 7 February 2001, appearance was filed on 14 March 2001. This being the case, according to counsel for the plaintiff, the defendants should have sought leave of the court first before proceeding further which they did not do. Counsel referred to Order 12, r 16 of LN 140A and then the case of Republic v High Court, Kumasi; Ex parte Fosuhene [1989-90] 2 GLR 315, SC (holding 2) in support of his contention. Counsel went on further to refer to Orders 4, r 5(1) and 6, r 6(1) of the Probate and Administration Rules, 1991 (LI 1515) and then Order 2, r 1 of LN 140A and submitted that the citation which counsel for the defendants was referring to follows the issuance of the writ of summons but, not before. Counsel contented that the only way the plaintiff could have commenced the action was by writ and that the citation was to follow latter. Counsel said the case of Anyinam v Mensah (supra) cited by the defence counsel had no bearing whatsoever on the issue at stake. The plaintiff’s counsel therefore prayed for the dismissal of the application which he said was premature.

In reply to plaintiff counsel’s reference to Order 12, r 16 of LN 140A, upon leave granted by this court, counsel for the defendants contented that granted that the defendants filed their conditional appearance out of time, that alone did not vitiate the proceedings but only converts the conditional appearance to an unconditional one. However, since the irregularity being complained of was incurable under Order 70 of LN 140A, it could be raised at any time whether the appearance was conditional or not.

From the arguments advanced by both counsel and the submissions made in this application, three main issues emerged for consideration. These are:

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(a) whether or not the commencement of the action by the plaintiff was irregular and if yes, whether the irregularity was fundamental and therefore incurable under Order 70 of LN 140A;

(b) whether or not the defendants entered late appearance, and if yes, whether failure to seek leave of the court to enter late appearance vitiated the present application before the court; and

(c) whether failure to depose to an affidavit in opposition meant the plaintiff was not opposed to the application.

On the first issue as to the irregularity or otherwise of the plaintiff’s action, counsel for the defendants referred to both statutory and case law in support of his contention. The statutory law the defendants’ counsel referred to was section 67 of Act 63 and the case law was the decision by Omari-Sasu J (as he then was) in Anyinam v Mensah (supra). Counsel for the plaintiff, on the other hand, referred to the rules of court, particularly Order 2, r 1 of LN 140A and then Orders 4, r 5(1) and 6, r 6(1) of LI 1515 to debunk the arguments of counsel for the defendants.

From a proper interpretation of the law flowing from the references made by both counsel, it is the candid view of this court that the commencement of the instant action by the plaintiff against the defendants, or the service of the writ of summons on them without first giving notice to them to deposit the letters of administration at the registry of court was irregular as submitted by counsel for the defendants. This issue was settled, though not clearly, by Omari-Sasu J (as he then was) in the case of Anyinam v Mensah (supra) as was rightly or correctly contended by counsel for the defendants. Counsel for the plaintiff’s view that that case had no bearing whatsoever to the issue at stake in this application is therefore untenable and quite misplaced, as that case is on all fours with the instant one before the court.

At the time Omari-Sasu J (as he then was) delivered his ruling in the above cited case, LI 1515 which came to revoke Order 60 of LN 140A had not come into being. Despite this the provisions in LI 1515 did not in anyway subvert the clear and unambiguous provision under section 67 of Act 63, but rather came to make it whole.

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Section 67 of Act 63 states:

“67. Where administration has been granted in respect of any estate of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked.”

LI 1515 came to give the ground rules upon which such a revocation could be made. Order 4, r 5 of LI 1515 provides:

“5. (1) Where grant of probate or letters of administration has been issued any person seeking to have such grant revoked by the court may issue a writ to seek such relief.

(2) In any action brought under this Order the provisions of Order 6 shall apply.”

Order 6, r 2 of LI 1515 which has three sub-rules then provides:

“2. (1) A probate action must be commenced by writ.

(2) The writ must be endorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased.

(3) Before a writ beginning an action for the revocation of the grant of probate of a will or letters of administration of the estate of a deceased person is issued out, notice shall be given under rule 6 unless the probate or letters of administration has or have been lodged in the Registry.”

Rule 6(1) of Order 6 of LI 1515 then provides:

“6. (1) Where an action is brought for the revocation of a grant of probate or letters of administration of the estate of a deceased person the plaintiff shall serve a notice on the person to whom the probate or letters of administration as the case may be was granted requiring him to bring and leave at the Registry the probate or letters of administration.”

I do not think any person should be deceived by the wording of rule 6(1) of LI 1515 quoted above, to mean that the institution of an action for the revocation of the grant of probate of a will or

[p.15] of [2001-2002] 1 GLR 9 letters of administration should precede the notice to be given to the grantee of the probate or letters of administration for the recall of same. Section 67 of Act 63, the present law from which LI 1515 derived its authority, should be read together with Orders 4 and 6 of LI 1515 and when that is done, what rule 6(1) of Order 6 of LI 1515 simply means is that where the action involves the recall and revocation of probate or letters of administration granted, then notice shall be given to the grantee of the said probate or letters of administration for a recall of same to be deposited at the registry and rule 2(3) of Order 6 was specific that the notice shall be given before the writ is issued out.

In my view, though Omari-Sasu J (as he then was), with the greatest respect to the learned judge, had the benefit of reading the Halsbury’s Laws of England (3rd ed), Vol 16 which he quoted with approval, and which gives a clear and vivid elucidation of the procedure applicable under paragraph 518 at p 257, which procedure is not different from the one applicable in our case as provided under Order 6, rr 2 and 6 of LI 1515, he did not state the position clearly to my satisfaction in his ruling in the Anyinam v Mensah case (supra). According to the provision in the Halsbury’s Laws of England quoted above, the citation to be served on the citee or grantee of the probate or letters of administration for the recall of same must either precede or be issued simultaneously with the writ. The ordinary dictionary meaning of the word “simultaneous” as provided at page 1261 of the new edition of Chambers 20th Century Dictionary edited by A M Macdonald is, “being or happening at the same time.” In my opinion, therefore, the legal position is not only that the citation should be served on the grantee first before the commencement of the action as stated by Omari-Sasu J (as he then was) in the Anyinam v Mensah case (supra), but that the writ and citation could as well be initiated or commenced together at the same time but before issuing out or effecting service of the writ on the grantee, the citation or notice must be served first. Our Rules of Court Committee in drafting LI 1515 was not oblivious of this legal position as stated in Halsbury’s Laws of England as quoted above that was why it was careful about the choice of words used under Order 6, rr 2(3) and r 6(1) of LI 1515.

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Whilst Omari-Sasu J (as he then was) used the words; “Before the commencement of an action aimed at revocation of letters of administration already granted” without any more; our rules used the words “Before a writ beginning an action for the revocation of probate or letters of administration is issued out.” (The emphasis is mine.) It must be noted that the two terms quoted above are not the same. Before the commencement of an action is different from before the writ is issued out. An action can be commenced at the registry of the court by writ but it can only be said to have been issued out when it has gone out for service or service has been effected in the person affected.

Since the citation could precede the action itself or both could be filed or issued simultaneously, the correct position of the law is that, before the commencement of an action for the revocation of the grant of probate or letters of administration of a deceased person, or before the writ beginning an action for the revocation of probate or letters of administration in respect of a deceased person is issued out or served on the grantee the plaintiff shall first of all serve notice on the grantee requiring him to bring and leave at the registry the probate or letters of administration unless the said probate or letters of administration had already been lodged in the registry. The commencement of the present action by the plaintiff and the service of the writ on the defendants without first serving them with a notice requesting them to deposit the letters of administration granted them at the registry of the court is therefore irregular. The citation or notice precedes the service of the writ of summons and not vice versa as counsel for the plaintiff wanted this court to believe.

On the question as to whether or not the irregularity is a fundamental one that is incurable under the provisions of Order 70 of LN 140A, I have to state the point clearly here that the only irregularities that can be cured by Order 70 of LN 140A are those that border on non-compliance with the rules of court or any rules of practice, but even then it is not in all cases, for where the court thinks that injustice would be caused to the other party when a rectification is allowed under Order 70 of LN 140A, the court shall decide otherwise. However, where the irregularity is not in respect

[p.17] of [2001-2002] 1 GLR 9 of non-compliance with the rules of court but borders on non-compliance with the requirements of statute or other authority as is the case in the instant action before this court, then the whole action becomes a nullity. See Halsbury’s Laws of England (4th ed), Vol 37, para 36 at pp 35-36 and then Kpegah J (as he then was) in his ruling in Kuma v Bart-Plange [1989-90] 1 GLR 119 at 120. In the instant case before me, the plaintiff failed to comply with a statutory provision, ie section 67 of Act 63 and as Omari-Sasu J (as he then was) opined in his ruling in the Anyinam v Mensah case (supra), being a fundamental irregularity bordering on non-compliance with the requirements of a mandatory statutory provision, the whole action becomes a nullity.

On the second issue as to whether or not the defendants’ application is vitiated because they entered a late appearance without seeking leave of the court, it is the position of this court that the plaintiff did not demonstrate in any way that the defendants did enter a late appearance. Though the plaintiff’s writ was issued on 7 February 2001 and the defendants entered appearance on 15 March 2001, there was no indication as to when the defendants were served with the writ of summons. Even a search conducted by counsel for the defendants on 23 February 2001 (more than two weeks after the commencement of the action), showed clearly that as at that time, there was no proof of service of the writ on the defendants. Having failed to establish the date of service of the writ on the defendants, the court is not convinced that the defendants did enter a late appearance. Even granted that the defendants did enter a late appearance without leave of the court, the rule of court which counsel for the plaintiff quoted in support of his contention, that is Order 12, r 16 of LN 140A does not provide that such a late appearance without leave vitiates any action taken by the defendants to set aside the writ for a fundamental error or irregularity. Order 12, r 16 of LN 140A provides:

“16. A defendant may appear at any time before judgment. If he appears at any time after the time limited by the writ for appearance, he shall not, unless the Court or Judge shall otherwise order, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared

[p.18] of [2001-2002] 1 GLR 9 according to the writ.”

It has to be noted that whatever is void is void at all times and a nullity is a nullity no matter the time frame within which it is brought to the notice of the court. In the Anyinam case (supra), the plaintiff in the suit had closed his case before the objection based on the fundamental defect bordering on non-compliance with section 67 of Act 63 was brought to the notice of the court by counsel for the defendant and notwithstanding the time lapse, the court upheld the objection and dismissed or struck out the writ on grounds of nullity.

On the third issue based on the contention of counsel for the defendants that the failure on the part of the plaintiff to file an affidavit in opposition to the application meant the plaintiff was not opposed to the application, I have to state that it is not in respect of all applications supported by an affidavit that the respondent is required to file an affidavit in opposition. It is trite law that where the objections intended to be raised by the respondent against such an application are legal, there is no need for the respondent to swear to or file any affidavit in opposition. In the instant application before the court, apart from the deposition under paragraph (5) of the affidavit in support stating that the plaintiff issued the writ without complying with a fundamental legal requirement, which legal requirement the deponent never stated, no facts were deposed to in the said affidavit which required a reaction from the defendants in the form of an affidavit in opposition. The plaintiff was therefore right in not filing any affidavit in opposition and his failure to do so did not mean that he did not intend to oppose the application.

On the basis of the above conclusions, the plaintiff’s action is struck out with costs against her. The plaintiff is at liberty to commence a fresh action against the defendants but should first of all serve notice on the defendants for a recall of the letters of administration granted them. There will be costs of ¢300,000 against the plaintiff.

Application granted.

FGA