|
________________________________________________________________________
J
U D G M E N T
_____________________________________________________________
As is observable from the title
of the case above, both original
parties died in the course of
the pendency of this action and
were duly substituted
respectively. I will soon come
to discuss the effect of the
death of the original defendant
in this case for its singular
impact on the propriety and
sustainability of the case.
Before then, let us look into
the facts and basis of
plaintiff’s claim.
It must be mentioned on the
onset that plaintiff sued in a
representative capacity. She
sued on her own behalf and on
behalf of her siblings as
beneficiaries of the estate of
the late Robert Isaac Tetteh.
Plaintiff mentioned the
beneficiaries as Nathaniel
Odartey Tetteh, Henrieta Odarko
Tetteh (the substituted
plaintiff), Juliana Odarkai
Tetteh and Hellen Odarchoo
Tetteh. Plaintiff sued defendant
whom, plaintiff described as the
elder sister of the plaintiff
and the other named
beneficiaries.
It is therefore discernible that
the parties herein are children
of the late Robert Isaac Tetteh.
Plaintiff’s claim is that their
father who died intestate in
1948, died possessed of the
properties mentioned hereunder:-
(a)
H/No. D709/4, Tudu, now known as
Sabat Motors.
(workshop)
(b)
H/No. D40/4, Ayalolo
(c)
H/No. E 124/2, Adabraka
(d)
H/No. D49, Nsawam.
(e)
A piece of land at Ayalolo
(f)
Large tract of land at Pokuase
Contending that defendant has
not only been benefiting and
enjoying these properties
exclusively all by herself but
has also fraudulently converted
the properties to her own
plaintiff sued defendant and
prayed the court to order
defendant (a), to share the rent
accruing from these properties,
(b), to distribute the
properties to the surviving
beneficiaries and (c) to
account as to her stewardship
regarding rents defendant has
collected from these properties
from 1990 to May 1998.
The nature of the case of
plaintiff connotes that all the
properties mentioned were the
self-acquired properties of
their father, the late Robert
Isaac Tetteh and defendant as
one of the children of the said
Robert Isaac Tetteh has
arrogated to herself the power
to administer these properties
and yet defendant fraudulently
made these properties her own,
thus denying and depriving
plaintiff and the other siblings
their fair share by way of rent
accruals from these properties.
It cannot be gainsaid that the
cause of action the plaintiff
instituted against defendant was
an action against defendant as a
person, that is, in personam as
against in rem.
Be that as it may, the question
worthy of consideration is: what
effect did the death of
defendant have on the case of
plaintiff as a whole?
In my humble opinion, the cause
of action did not survive the
death of defendant.
Order 4 Rule 6 of C. 1. 47
mentions that where a party dies
but the cause of action
survives, the action shall not
abate by reason of the death.
It follows that where a party
dies but the cause of action
does not survive (as I think
happened in this case), the
action becomes abated by reason
of the death of the party.
It cannot be overemphasized
therefore that the death of
defendant brought to an end the
action as against her, that is
if my opinion that the action as
against defendant was in
personam and did not survive the
death of defendant is anything
to go by.
What then can one say about the
fact that subsequent to the
death of defendant plaintiff
applied for and substituted the
daughter for the deceased
defendant?
The fact of substituting
defendant’s daughter in the
person of Edith Nylander Adum
Yeboah elsewhere in this case
called Awuraddy appears
tantamount to putting something
on nothing.
This brings to mind what Akuffo
Addo JSC espoused in the well
known case of MOSI Vs. BAGYINA
(1963)1 GLR 337 to the effect
that where an order of a court
is not warranted by any
enactment or rule of procedure
same is void and such an order
is susceptible to be set aside
ex debito justitiae by the court
suo moto or on an application by
the party affected by the order.
In my view, the order made by
the court then constituted by
Dapaa J substituting the
daughter of defendant was, with
all due deference, fundamentally
defective and is thus quite
amenable to be regarded as a
nullity.
Lord Denning in the Sierra
Leoneon case of MACFOY VS.
UNITED AFRICA COMPANY LIMITED
(1961) 3 ALL ER 1169, P. C made
it clear that:-
“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”
Taking counsel from the dictum
of Lord Denning, I hereby
declare that no case as against
the original defendant existed
after the death of the original
defendant and all that was done
founded on the substitution is
incurably indefensible. Quite
clearly therefore there is a
mistrial and I so declare.
Looking at the relationship
between the parties, all being
descendants of Robert Isaac
Tetteh and as a step towards
promoting reconciliation and
good spirit, I fell reluctant to
award costs in this case and so
I make no order as to costs.
(SGD) ANTHONY OPPONG
JUSTICE OF THE HIGH COURT.
LAWYERS:
K. A. YANKYERA FOR
PLAINTIFF
PRINCE NII ASHIE
NEEQUAYE FOR DEFENDNTS. |
