Adjei and Another Vrs Okaikai (CA. 28\2003) [2003] GHACA 4 (05 February 2003);

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA-GHANA, A.D. 2003

 

 

             

                                                                     CA. 28\2003

5TH FEBRUARY.

 

CORAM  -     LARTEY JA

                    ANSAH  JA                    

                   ADDO   JA     

 

  1.  LYDIA ADJEI                          …       PLAINTIFFS/RESPONDENTS
  2.  MOSES OBLIN ARYEEFIO           

 C\O DJABANOR & CO.             

 H\NO. 505\4, ADABRAKA,                

      ACCRA .                                        

 

                   

  VRS.

 

 

 

 

 

BEATRICE OKAIKAI WELBECK         …       DEFENDANT/APPELLANT

H\NO. D. 91\4

KOKOMPE, ACCRA

 

 

                                         J  U  D  G  E  M  E  N  T

 

 

 

ADDO J.A.  -  This is an appeal from the decision of the High Court, Accra presided over by Mrs. Owusu-Arhin J. and dated 25th November 2002.  The appellant herein was defendant in the court below and the respondent herein was the plaintiff.

 

The Defendant\Appellant not satisfied with the decision of the court below has come up to this Honourable Court to ask us to set aside the decision of the court dated 25th November 2002 and to dismiss the action of the Plaintiffs.

The Defendant\Appellant filed two grounds of appeal namely that:-

  1. The learned trial Judge misunderstood the application before her.  That the issue was not that the court did not have jurisdiction but that the Plaintiffs’ action was not maintainable.
  2. That the learned trial Judge having given an earlier Ruling on the 4th June 2002 and ordering the Plaintiffs to bring the action in compliance with

the appropriate rules of law and therefore declined to grant an Application for

Interim Injunction and Appointment of Receiver and Manager, it was untenable for her to have refused the Defendant’s Application.

 

The Plaintiffs\Respondents issued a writ against the Defendant\Appellant for:

  1. Declaration that the Plaintiffs as well as the /Defendant herein are Tenants in common of House No. 91\4, Agona-Kwanyako.
  2. An order of account for all rents collected in respect of the said Properties from October 1996 to date.
  3. Perpetual Injunction restraining the Defendant, her workers, agents Assigns from dealing with the property in dispute without reference to the Plaintiffs.

 

The Plaintiffs writ was accompanied by a statement of claim.  Paragraphs 4 and 7 of the Statement of Claim contend that one Diana Aryeefio who was the mother of the 1st Plaintiff and the Defendant had included in her Will two properties namely House No. D. 91\4, Kokompe and House No. B. 64\1 Agona Kwanyako which belonged to their late grandfather one R.Q. Aryeefio.  Paragraph 8 of the Plaintiff’s statement of claim contend that the devise of those properties to the Defendant was wrongful and unlawful and therefore the Defendant should be restrained and be made to account for proceeds from the properties.  The defendant also avers in paragraph 7 of her Statement of  Defence that the properties the subject matter of the plaintiff’s action were devised by a will of their late mother Diana Aryeefio to three children of the deceased including her but excluding the 1st plaintiff.  The  1st plaintiff and the defendant are uterine sisters.  The defendant further states in her statements of defence p. 8 that the Will was admitted to probate on 9th December 1996 and the said properties vested in the beneficiaries.  She happens to be one of the beneficiaries.

 

The Defendant on the 14th November 2002 filed a Motion under Order 25 rule 2 to dismiss the Plaintiffs’ action. In the affidavit supporting the motion the Defendant averred that the Plaintiffs’ action is bad in law and should be dismissed. That the pleadings raise a legal issue as to whether or not the Plaintiffs action is maintainable in law and that this should be determined before any further proceedings.

Arguments were heard on this on 25th November 2002.  Counsel for Defendant argued that until the Probate on the Will of Diana Aryeefio is revoked no action can be brought in respect of the properties affected by the Probate.  Counsel for Defendant cited the case of Heward-Mills vrs. Heward-Mills [1992-93]GBR. Part 1, 239 at 240 to buttress his

point.  He cited further.  The Law of Wills by Azu Crabbe page 223 to support his submission.  Counsel for the Plaintiffs argued that the defendant’s application was misconceived and that the Plaintiffs had reasonable cause of action otherwise they would not have brought the action.  Counsel argued further that the grounds itemised by Azu Crabbe On Wills meriting revocation of Probate do not apply to the instant case.  The court then ruled thus:  “Application under Order 25 rule 4 is wrong.  The Plaintiffs/action writ discloses reasonable cause of action.  However as advised in an earlier application in respect of this same case, Counsel for Plaintiff must go by the provisions of L.1. 1515 and get the Probate granted in respect of Diana Aryeefio’s Will revoked.”

 

It is in respect of this Ruling that the Defendant has filed the present appeal.  Arguing ground one of the original ground of Appeal, the Defendant\Appellant submits that the Learned High Court Judge misunderstood the application to dismiss the Plaintiffs action and that the issue was not that the Court did not have jurisdiction but that the action by the Plaintiffs was not maintainable and therefore incompetent.

 

It is clear on the face of the record that the learned trial Judge failed to appreciate the issue at stake and wrongfully dismissed the Defendant’s application to dismiss the Plaintiff’s action.  The Plaintiff’s complaint is that Diana Aryeefio who was the mother of the 1st Plaintiff and the Defendant had included wrongfully and unlawfully in her Will two properties the subject-matter of the present action and which properties belonged to their late grandfather R.Q. Aryeefio.  They are asking for the Defendant to be restrained

and be made to account for the proceeds from  the said properties.  The defendant herself also avers in her statement of defence that the properties the subject-matter of this action were devised by a Will of her late mother Diana Aryeefio to three of her children including herself.  It is clear on the record that this Will was admitted to Probate on 9th December 1996 and the said properties vested in the beneficiaries by a Vesting Assent.  It is clear on the face of the record that the plaintiff’s action seeks in effect to set aside the Probate granted to the Administrator-General with regard to the properties the subject-matter of the action.  But the law is clear on this.  Section 67 of the Administration of Estates Act, 1961 Act 63 says that “Where an 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 in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked.”  In the present case the properties the subject-matter of this action are also the subject-matter of a grant in the estate of Madam Diana Aryeefio and also the estate of R.Q. Aryeefio and therefore it stands to reason that until the grant has been recalled or revoked as Section 67 of the Administration of Estates Act 1963 (Act 63) commands, the court cannot entertain  any action in respect of the properties.

 

On the basis of this the Plaintiffs’ action is not maintainable.  It is indeed incompetent for the condition precedent laid down by the law ie. Section 67 of Act 63, before the commencement of an action has not bee fulfilled by the Plaintiffs.  Section 67 of Act 63 is couched in mandatory terms and therefore failure to comply with the said provision is fatal to the Plaintiffs’ action.

 

The learned trial Judge ought to have granted the Defendants’ application to dismiss Plaintiffs’ action rather than giving advice o Counsel for Plaintiffs to come by the provisions of L.1. 1515 to get the Probate granted in respect of Diana Aryeefio’s Will revoked.  If the Plaintiffs had done the right thing in  bringing their action there would have been  no need for the learned Judges’ advice.  The learned trial Judge erred in this regard. It is trite law that non-compliance with  a mandatory statutory provision will render the action of the Plaintiffs void and of no effect. Ground 1 of the Appeal succeeds.

 

The Appellants’ ground 2 says that the learned trial Judge having given an earlier Ruling on the 4th June 2002 and ordering the Plaintiffs to bring the action in compliance with the appropriate rules of law and therefore declined to grant an Application for Interim Injunction and Appointment of Receiver and Manager, it was untenable for her to have refused the Defendant’s application.  I must say that I am in entire agreement that it was untenable for the learned trial Judge to have refused the Defendant’s application in the light of her earlier Ruling.

 

In my respectful view it is precisely because the learned judge realised that the Plaintiffs have proceeded wrongfully that is why the advice was tendered from the Bench for the Plaintiffs to bring their action in compliance with the appropriate rules of law.  As I said earlier if everything was alright with the action brought by the Plaintiffs the learned Judge’s advice would have been needless.

 

In my respectful view, the effect of the trial learned Judge’s earlier Ruling on 4th June 2002 is that the Plaintiffs action is not maintainable.  This being the case, the trial learned Judge erred in not granting the Defendant’s application to dismiss the Plaintiffs’ action.

 

It is clear on the face of the record that Defendant’s Counsel brought his application under Order 25 rule 2 and not rule 4 as suggested by the trial Judge.  Ground 2 of the Appeal also succeeds.  The Appellant in his  written submission is asking leave to argue Additional Ground of Appeal that the action is statue barred.  I have not seen any additional ground of Appeal filed on record and therefore I would ignore the submission on this.

 

The Plaintiffs\Respondents have woefully failed to comply with a mandatory statutory condition precedent to the commencement of their action and therefore their action is not maintainable and indeed the whole proceeding based on their action is thus a nullity (see Mosi vrs. Bagyina , 1963, GLR 337 and the cases cited therein).

 

I would allow the Appeal and set aside the Ruling of the court below dated 25th  November 2002 and dismiss the action of the Plaintiff.

 

 

 

 

                                                    [SGD.]        E.A. ADDO

                                                                JUSTICE OF APPEAL

 

 

I agree            -                                               F.M. LARTEY

                                                                  JUSTICE OF APPEAL

 

 

 

I also agree        -                                               J. ANSAH         

                                                                                  JUSTICE OF APPEAL                                         

                                               

COUNSEL  -              S.H. ANNANCY FOR APPELLANT

                          ERIC NARH FOR RESPONDENTS.