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Probate - Revocation - Procedure
for, - Plaintiff to serve notice
on executors or surviving
executors in chain of
representation to deposit will
in High Court before issue of
writ for revocation -
Administration of Estates Act
1961 Act 63 ss 64(1) and (2) -
Non-compliance with requirement
fatal - Probate and
Administration Rules 1991 (LI
1515) Order 6 rules 2(3) and
6(1).
Practice and Procedure - Writ of
summons - Endorsement - Omission
to endorse writ with statement
of the nature of plaintiff’s
interest in the estate - Whether
omission fatal - Probate and
Administration Rules 1991 (LI
1515) Or 6 r 2(2).
Courts - Jurisdiction -
Condition precedent to exercise
of, - Condition imposed by
statute - Court not to act
unless condition complied with.
Limitation of actions - Probate
- Revocation - Action commenced
after 26 years from date of
grant of probate - Action
statute-barred - Limitations
Decree 1972 (NRCD 54) s 8.
Practice and Procedure -
Pleadings - Fraud - Allegation
of fraud to be pleaded -
Averment that the signatures in
will and codicil not genuine -
Whether plea sufficed as a plea
of fraud - Order 19 rule 6, High
Court (Civil Procedure) Rules
1954 LN 140A.
By his will admitted to probate
in 1964 the testator made
devises to his children
including the plaintiff, the 1st
and 2nd defendants and the late
JNH-M deceased. The said
beneficiaries and the 3rd
defendant, the executor and
child of JNH-M, have since been
enjoying the properties.
Following a citation filed by
the plaintiff in 1991, the
Deputy Chief Registrar then
addressed a citation to the
defendants to deposit the
probate in the High Court. In
1991, the plaintiff issued a
writ of summons against the
defendants seeking, inter
alia, the revocation of the
grant of the probate. In his
statement of claim the plaintiff
averred that forensic laboratory
tests had disclosed that the
signatures appearing in the will
and codicil were not those of
the testator or the attesting
witnesses. The 2nd and 3rd
defendants entered conditional
appearance and applied to set
aside the writ of summons and
the service thereof on them
contending firstly, that since
the plaintiff and his siblings
were beneficiaries under the
will, the claim for account was
misconceived; that the citation
calling on the defendants to
produce the probate was
misconceived as it was directed
to persons other than those to
whom probate had been granted;
that the action was
statute-barred. The 3rd
defendant contended that the
writ of summons and the
statement of claim disclosed no
cause of action against him. The
plaintiff replied that the
averment that the signatures in
the will and codicil were not
those of the testator and
attesting witnesses raised a
plea of fraud. The trial judge
declined the application and
ordered the defendants to file
their statement of defence for
the merits to be gone into. The
defendants appealed to the Court
of Appeal.
Held
- (1) It was clear from Order 4
rules 5(1) and (2) of LI 1515
that before a plaintiff could
issue a writ to revoke a grant
of probate, he must first have
served a notice on the person to
whom the probate had been
granted requiring him to bring
and leave at the registry of the
court the probate granted to
him. Where, as in the present
case, all the executors were
dead, the plaintiff ought to
have served the notice on the
surviving executor of any of the
deceased executors so long as
the chain of representation was
unbroken under section 64(1) and
(2) of Act 63. The plaintiff
failed to comply with these
rules even though he was able to
trace and sue the executor of
JNH-M as the 3rd defendant. The
non-compliance with the
mandatory provisions of Order 6
rules 2(3) and 6(1) of LI 1515
was fatal to the action.
(2) Under Order 6 rule 2(2) of
LI 1515 a plaintiff was required
to endorse his writ with a
statement of the nature of his
interest in the estate of the
deceased. The plaintiff failed
to disclose in his statement of
claim the fact that he was a
beneficiary under the will of
his late father. The action was
therefore incompetent.
(3) Where a statutory condition
ought to be complied with before
a court could have jurisdiction
to make an order, failure to
comply with such a condition
would leave the court with no
discretion to make any order or
orders in the matter.
Republic v District Magistrate,
Accra, ex parte Adio [1972]
2 GLR 125, CA applied.
(4) Even though the plaintiff
did not disclose when probate
was granted to enable the court
determine the issue of
limitation, it was not disputed
that the testator died in
December 1964 and that the will
and codicil in question were
deposited in the court in the
same month. Assuming, therefore,
that the probate was granted
within the next twelve months
after the death of the testator,
it would have been about 26
years after the grant that the
plaintiff took the present
action. The action was therefore
statute-barred.
(5) It had been settled by the
courts that fraud must not only
be pleaded but that particulars
thereof must also been given.
The averment in the statement of
claim that forensic laboratory
tests had disclosed that the
signatures appearing in the will
and codicil were not those of
the testator and the attesting
witnesses did not suffice as a
plea of fraud. Nti v Anima
[1984-86] 2 GLR 134, CA,
Davy v Garrett [1877-78] 7
Ch D 473, Nasali v Addy
[1987-88] 2 GLR 286, SC,
Lawrance v Norreys (Lord)
[1890] 15 App Cas 210, Blay v
Pollard and Morris
[1930] 1 KB 628 cited.
APPEAL from the decision of the
High Court.
J Quarshie-Idun
(with him Williams
(Mrs) and R Heward-Mills)
for the appellants.
E D Kom
(with him S Cudjoe (Mrs))
for the respondent.
Cases referred to:
Amoah v Arthur
[1987-88] 2 GLR 87, CA.
Bell v Armstrong
(1822) 1 Add 365, 23 Digest
(Repl) 116.
Blay v Pollard
and Morris [1930] 1 KB
628, [1930] All ER Rep 609, 99
LJ KB 421, 143 LT 92, 74 Sol Jo
284.
Davy v Garrett
(1877-78) 7 Ch D 473, 47 LJ Ch
218, 38 LT 77, 26 WR 225.
Ghana Muslim Representative
Council
v Salifu [1975] 2 GLR
246, CA.
Lawrance v Norreys (Lord)
[1890] 15 App Cas 210, 59 LJ Ch
681, 62 LT 706, 54 JP 708, 38 WR
753, 6 TLR 285, HL.
Nasali v Addy
[1987-88] 2 GLR 286, SC.
Nti v Anima
[1984-86] 2 GLR 134, CA.
Republic v District Magistrate,
Accra, ex parte Adio
[1972] 2 GLR 125, CA.
ADJABENG JA.
The fundamental issue which this
court ought to determine in this
appeal, in my view, is the issue
whether or not the plaintiff’s
action was competent or properly
before the trial court. It is
the contention of the
defendants-appellants that the
trial court failed to tackle
this issue because the court
failed to appreciate the legal
grounds upon which the
appellants’ application in the
court below was based. Also,
that this lack of appreciation
made the trial judge allow
herself to be influenced by
matters not pertinent to the
issues argued before the court,
and thus rendered the decision
of the court unsupportable in
law.
The facts of this case are that
the plaintiff, the 1st and 2nd
defendants are all children of
the late Albert Gillies
Heward-Mills, Barrister-at-Law,
of James Town, Accra. The 3rd
defendant is the executor of the
will of the late J N
Heward-Mills, also a child of
the said Albert Gillies
Heward-Mills (deceased). The
said Albert G Heward-Mills
during his life time made a will
and codicil and on his death on
19 December 1964 these were
admitted to probate. Probate of
the said will and codicil was
granted to the executors named
therein, namely, Nii Amaa
Ollennu, Henry Hornsby Odoi, and
Daniel Phillip Hammond, all now
deceased. The plaintiff, the 1st
and 2nd defendants, and the late
J N Heward-Mills were all named
beneficiaries in their said late
father’s will and the plaintiff,
the 1st, and 2nd defendants, and
the beneficiaries of the late J
N Heward-Mills have all been
enjoying the properties willed
to them by their late father.
The same applied to the other
children of the said testator.
On the 12th of April 1991, that
is, about twenty-seven years
after the death of his late
father, the plaintiff swore to
and filed an affidavit at the
High Court, Accra. I deem it
necessary to set out fully here
this affidavit. It states as
follows:
“I, Dr Samuel Desmond
Heward-Mills of Accra make oath
and say as follows:
1. That I am the
Plaintiff/Applicant herein.
2. That I am the son of the late
A. G. Heward-Mills who died on
19th December, 1964 leaving a
will dated 11th December, 1939
and a codicil dated 3rd January,
1950 which were admitted to
probate.
3. That the testator was
survived by wives and children
of whom I am one.
4. That the executors of the
testator Nii Amaa Ollennu, Henry
Hornsby Odoi and Daniel Phillip
Hammond are now dead and so also
are the attesting witnesses.
5. That the said will and
codicil were deposited in the
High Court by J. N. Heward-Mills
per his clerk or agent, A. G.
Ofei, on 29th December, 1964
after the testator’s death on
19th December, 1964.
6. That the signature of the
testator and the attesting
witnesses on the said will and
codicil were not the act and
deed of the testator and
witnesses respectively.
7. That forensic laboratory
tests by several experts have
confirmed same.
8. That I swear to this
affidavit in support of the
application for recalling and
revocation of the grant of
probate to the will and codicil
of late A. G. Heward-Mills
(deceased).”
On the same date, 12th April,
1991, the plaintiff’s solicitor,
E D Kom, signed a citation to
recall the grant of probate.
This citation was addressed to
both the Deputy Chief Registrar
of the High Court, Accra, and to
the defendants, and was filed on
18 April 1991. It reads as
follows:
“CITATION TO RECALL THE GRANT OF
PROBATE.
“Citation by Dr Samuel Desmond
Heward-Mills, a son of the late
A. G. Heward-Mills, who has an
interest in the estate of the
deceased testator, A. G.
Heward-Mills calling upon Miss
Alma Susan Heward-Mills, Mrs
Eileen Robertson and Mr R. S.
Amegashie of Accra to produce
the probate granted to the will
dated 11th December, 1939 and
codicil dated 3rd January 1950
and deposited in the High Court
on 29th December, 1964 by the
late J. N. Heward-Mills after
the testator’s death on 19th
December, 1964.”
Also, on the same 12th of April
1991, when the plaintiff’s
solicitor signed the citation
quoted above, which was later
filed on 18th of April 1991, the
Deputy Chief Registrar of the
High Court, Accra, also signed
and addressed the following
citation to the defendants:
“CITATION OF RECALL OF PROBATE.
“Whereas it appears by the
affidavit of Dr Samuel Desmond
Heward-Mills of Accra, plaintiff
who alleges that he is a son of
the late A. G. Heward-Mills
(deceased) sworn the 12th day of
April, 1991 that probate to the
will and codicil of the late A.
G. Heward-Mills was granted to
the late
(i) Nii Amaa Ollennu,
(ii) Henry Hornsby Odoi and
(iii) Daniel Phillip Hammond
by the High Court, Accra. AND
WHEREAS it is alleged that the
signature of the testator to the
said will and codicil deposited
in the High Court by the late
Joseph N Heward-Mills was not
the act and deed of the testator
and that in case of intestacy
the plaintiff and all his
brothers and sisters would be
equally entitled by the laws of
intestacy. Now this is to
command you the said defendants
that within 8 (eight) days after
service thereof on you
(inclusive of the day of
service) you bring into and
leave in the Registry of the
High Court the aforesaid probate
until the final hearing and
determination of the suit in
order that the said plaintiff
may proceed in due course for
the revocation of the probate.”
Then on the 18th of April 1991,
the plaintiff caused a writ of
summons to issue against the
defendants, seeking the
revocation of the grant of
probate of the will and codicil
of his late father mentioned
earlier, “accounts of the rents
and profits accruing from the
immovable properties of the
testator which came into the
hands of the defendants jointly
and severally”, and an order for
payment into court within two
months the amounts due and owing
after the accounts. In
paragraphs 5, 6 and 7 of the
statement of claim which
accompanied the writ of summons
the plaintiff averred the
following as the basis of his
action:
“5. The plaintiff further avers
that the will and codicil were
admitted to probate and as a
result the defendants were
granted vesting assents and have
been enjoying the properties
since then.
6. The plaintiff says that his
late father’s signature
appearing on the will and
codicil and those of the
attesting witnesses were not
their act and deed and forensic
laboratory tests have disclosed
and confirmed that they were
signed by somebody else.
7. The plaintiff says that if
this information had been
available the will and codicil
would not have been admitted to
probate by the High Court.”
I have noticed three things
which do not seem to make sense
to me about the plaintiff’s
action as they have not been
explained in any of the papers
filed on behalf of the
plaintiff. Firstly, it is
difficult to understand why the
citation for the recall of the
probate granted in respect of
the will and codicil of the
plaintiff’s late father should
be directed to the defendants
who were commanded to bring in
the probate when it is crystal
clear from the plaintiff’s own
affidavit, and the citation
itself, that the defendants were
not the persons to whom the
probate was granted and when
those to whom it was granted are
named in the said affidavit and
the citation. It is therefore
difficult to understand why this
action was taken against the
defendants at all. Moreover,
when did the plaintiff get to
know that the signature of his
late father, who died about 27
years before the action, was not
the latter’s act? And why did he
now decide to take action to
revoke the probate which might
have been granted about 26 years
before the action? And what was
wrong about the signatures of
the attesting witnesses? Why was
no explanation given about all
these matters in the statement
of claim?
It is not surprising, therefore,
that when the 2nd and 3rd
defendants were served with the
plaintiff’s writ and statement
of claim, they entered a
conditional appearance. They
then filed a motion under Order
12 rule 24 of the High Court
(Civil Procedure) Rules 1954 for
an order setting aside the writ
of summons and the service
thereof on them. In her
supporting affidavit, the 2nd
defendant contended firstly that
since the plaintiff and his late
sister and his brothers, like
the 1st and 2nd defendants and
their brothers and sisters, are
also beneficiaries under their
late father’s will, the
plaintiff’s claims for accounts
and an order for payment into
court of the amount due and
owing after accounts are grossly
misconceived. Secondly, the 2nd
defendant contended that the
citation calling on the
defendants to produce the
probate granted of the will and
codicil of their late father was
also misconceived as the said
citation clearly mentioned
persons other than the
defendants as those to whom
probate had been granted.
Thirdly, it was the contention
of the 2nd defendant that the
plaintiff’s action was
statute-barred as it was
instituted after 12 years of the
grant of probate and as no valid
reason was given for the delay.
On the part of the 3rd
defendant, he added that the
writ of summons and the
statement of claim disclosed no
cause of action against him. No
affidavit in opposition was
filed by the plaintiff.
After listening to the arguments
from both sides, the trial judge
refused to set aside the writ of
summons or the service thereof.
She ordered the defendants to
file their statement of defence
so that the merits of the case
could be gone into. The judge
seemed to have been convinced by
the argument that the plaintiff
should not be driven from the
judgment seat as was decided in
the case of Ghana Muslim
Representative Council v Salifu
[1975] 2 GLR 246 at 264. The
defendants appealed to this
court on the grounds which have
already been alluded to in the
opening paragraph of this
judgment. In my view, two
fundamental issues have arisen
in this appeal. The first issue
is whether or not the plaintiff
in instituting his action
complied with the procedure and
practice governing the type of
action he has taken, namely, a
probate action; and the second
issue is whether or not the
action is statute-barred.
In respect of the first issue,
it was submitted by the
appellants’ counsel that the
plaintiff’s action, being a
probate action, ought to comply
with the practice in such
matters but that the plaintiff
failed to comply with the laid
down procedure. On this counsel
referred us to Halsbury’s
Laws of England, 3rd
edition, volume 16, at page 265,
paragraph 518, on revocation of
probate, which is also provided
for in Order 6 of our own
Probate and Administration Rules
1991 (LI 1515). The only answer
that was given in reply to this
submission by the
plaintiff-respondent’s counsel
was that the executors of the
will of the plaintiff’s late
father were all dead. But, as
was rightly submitted by the
appellants’ counsel, section 64
of the Administration of Estates
Act 1961 (Act 63) provides for
such a situation.
Order 4 rule 5(1) and (2) of LI
1515 provides that:
“(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.”
What does Order 6 provide? Order
6 rule 1 of LI 1515 defines what
“probate action” means. It
describes “probate action” as
“... an action for the grant of
probate of the will or letters
of administration of the estate
of a deceased person or for the
revocation of such grant or for
judgment pronouncing for or
against the validity of an
alleged will being a proceeding
which is contentious or common
form probate business”.
Rules 2 and 6(1) of Order 6 then
provide as follows:
“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...
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.”
It is clear from the rules
quoted above that before a
plaintiff can cause the issue of
a writ to revoke a grant of
probate, he should first have
served a notice on the person to
whom the probate had been
granted requiring him to bring
and leave at the registry of the
court the probate that had been
granted to him. Where that
person is deceased then it seems
to me that section 64(1) and (2)
of Act 63 would apply. These two
sub-sections provide as follows:
“64(1) An executor of a sole or
last surviving executor of a
testator is the executor of that
testator.
(2) So long as the chain of the
representation is unbroken, the
last executor in the chain is
the executor of every preceding
testator.”
So that where, as in the present
case, all the three executors of
the will of the plaintiff’s late
father are dead, the plaintiff
should have looked for the
surviving executor of any of the
three deceased executors, and so
on, so long as the chain of
representation is unbroken, to
serve him or her with the
requisite notice. The plaintiff
failed to do this even though he
was able to trace the executor
of his late half-brother, J N
Heward-Mills, and sued him here
as the 3rd defendant.
It seems to me that the failure
by the plaintiff to comply with
the mandatory provisions of
Order 6 rules 2(3) and 6(1) of
LI 1515 is fatal to his action.
For where a statutory condition
must be complied with before a
court can have jurisdiction to
make an order, failure to comply
with such a condition will leave
the court with no discretion to
make any order or orders in the
matter. See Republic v
District Magistrate, Accra, ex
parte Adio [1972] 2 GLR 125.
This principle will also apply
to the plaintiff’s failure to
comply with Order 6 rule 2(2)
where the plaintiff is
mandatorily required to endorse
his writ with a statement of the
nature of his interest in the
estate of the deceased. The
plaintiff has not disputed that
he is a beneficiary under the
will of his late father. Yet he
failed totally to disclose this
fact in his statement of claim.
This, no doubt, makes one doubt
the good intentions of the
plaintiff in instituting this
action against the defendants
who are not executors of the
testator’s will.
The English case of Bell v
Armstrong (1822) 1 Add 365,
cited by the appellant’s
counsel, is most helpful and
instructive in respect of the
issues being discussed here.
This case did not only decide as
follows: a next of kin who has
acquiesced in probate taken in
common form, and has even
received legacy due to him under
the will, may still be at
liberty to call in such probate,
and put the executor on proof of
that identical will per
testes, first bringing in
the legacy so received.
This decision also shows that
such an action is usually
brought against the executor,
and that the next-of-kin is only
cited to “see proceedings”. The
decision also explains why a
next-of-kin and legatee should
bring in his legacy before being
allowed to contest the will as
against the executor. Delivering
the judgment of the court in the
case, John Nicholl said in the
middle of paragraph 374 of the
report as follows:
“In the judgment delivered by my
predecessor, ... in the case of
Core and Spencer, he
adverted to various cases, ...
all authorities to the same
point. At the same time it was
held in every one of these (and
indeed they were principally
cited, in that case of Core
and Spencer, for the purpose
of shewing) that the legatee
must bring in his legacy before
being permitted to contest the
will under the authority of
which, I hold that I am bound,
in overruling this protest, to
direct the legacy to be brought
in before the brother proceeds.
The bringing in of his legacy
will be a test of the sincerity
of his opposition to the
validity of the will; and will
prove it to be not merely
vexatious. At the same time it
will be a security to the
executor, in case of the
next-of-kin being condemned in
costs: for I hold that a
next-of-kin (or the executor of
a former will, for the same
reasons apply in both cases) who
calls in a probate once taken,
even though in common form, and
puts the executor upon proof,
per testes, of his will,
does it at the peril of costs -
his ordinary exemption from
liability to costs not extending
to one of this particular
description.”
Applying rules 2(3) and 6(1) of
Order 6 of LI 1515, and the
principles enunciated in the
English case quoted above, I
have no hesitation in holding
that the plaintiff’s action is
incompetent. This is because (i)
the plaintiff took the action
against the wrong persons; (ii)
he did not comply with the
mandatory provisions of the
rules quoted above by not citing
the proper person or persons to
bring into court the probate
that had been granted; and (iii)
he also failed to disclose that
he was a beneficiary or legatee
under his late father’s will and
to bring in his legacy. The
trial judge was wrong in failing
to identify and deal with these
issues, and to make the
appropriate order. On this
ground of the incompetence of
the plaintiff’s action alone,
the appeal ought to succeed.
There is, however, another issue
which I intend to tackle before
I am done. It is the issue
whether or not the plaintiff’s
action is statute-barred. It is
not disputed that the testator
in question died in December
1964 and that the will and
codicil in question were
deposited in the court in the
same month. However, one very
significant omission that the
plaintiff made was not to state
the date or time when probate of
the said will and codicil was
granted to the executors. The
reason for this significant
omission can be anybody’s guess.
It is undisputed, however, that
probate was indeed granted.
Assuming, therefore, that the
probate was granted within the
next twelve months after the
death of the testator, it would
have been about 26 years after
that grant that the plaintiff
took this action last year. The
question is whether or not the
law would allow the plaintiff to
sit down all these years and
wait till all the potential
witnesses had died before
instituting his action. It is
the contention of the
defendants-appellants’ counsel
that the law does not allow the
plaintiff to do that, and that
the plaintiff’s action is, by
section 8 of the Limitation
Decree 1972 (NRCD 54),
statute-barred; and that this is
so because the plaintiff did not
in his statement of claim plead
concealed fraud as is provided
for in section 22 of the said
Decree. The answer by the
plaintiff-respondent’s counsel
is that fraud was pleaded even
though the word “fraud” was not
used. Yet after this point of
failing to plead fraud was
raised in the trial court and
the ruling thereon was adjourned
to a later date, this same
counsel thought it necessary to
amend the statement of claim by
now pleading fraud. It is
unfortunate that the trial judge
did not see anything wrong with
relying on this later amendment
in his ruling when it had not
been part of the statement of
claim at the time of the hearing
of the motion. In this court,
when counsel was asked why he
found it necessary to amend the
statement of claim if indeed, as
he had argued, fraud already
been pleaded, he replied that he
had done so out of abundance of
caution.
It is provided in Order 19 rule
6 of the High Court (Civil
Procedure) Rules 1954 as
follows:
“6. In all cases in which the
party pleading relies on any
misrepresentation, fraud, breach
of trust, wilful default, or
undue influence, and in all
other cases in which particulars
may be necessary beyond such as
are exemplified in the forms
aforesaid, particulars (with
dates and items if necessary)
shall be stated in the pleading
...”
Also, in his book, Civil
Procedure, the author, who
incidentally is counsel for the
plaintiff-respondent in this
appeal, writes at page 41, under
the heading “4. Additional
Requirements Of Pleadings” as
follows:
“(i) Particulars to be given,
Order 19, r. 6. In any case in
which a party to a suit relies
on any of the following:
(a) misrepresentation,
(b) fraud,
(c) breach of trust,
(d) wilful default,
(e) undue influence,
(f) negligence in a running down
suit,
(g) dependants in a claim under
the Civil Liability Act 1963 s
16 (5),
(h) in probate actions specific
instance of delusion, order 19,
r. 27, where the mental
condition of the testator is in
issue,
(i) actions of stated or settled
accounts, order 20, r.7,
particulars (with dates and
items if necessary) must be
given in the pleading.”
It has also been settled by the
courts that fraud must not only
be pleaded by a party who relies
on it, but that particulars
thereof must also be given. See
Nti v Anima [1984-86] 2
GLR 134, Davy v Garrett
[1877-78] 7 Ch D 473 at 489,
Nasali v Addy [1987-88] 2
GLR 286 and Amoah v Arthur
[1987-88] 2 GLR 87, CA.
The plaintiff only pleaded in
his statement of claim that the
signatures “appearing on the
will and codicil were not their
act and deed and forensic
laboratory tests have disclosed
and confirmed that they were
signed by somebody else”. I do
not think that the plaintiff can
by this be said to have pleaded
fraud as is required by law.
In the English case of
Lawrance v Norreys (Lord)
[1890] App Cas 210, cited by the
defendants’ counsel, the House
of Lords, dealing with a case
involving concealed fraud, held,
inter alia, as follows:
“In such an action general
averments of fraud are not
sufficient: the statement of
claim must contain precise and
full allegations of facts and
circumstance leading to the
reasonable inference that the
fraud was the cause of the
deprivation, and excluding other
possible causes. In default of
such allegations the court may,
by virtue of its inherent
jurisdiction, dismiss the action
as an abuse of the procedure,
where the claim is incapable of
proof and without any solid
basis. The decision of the Court
of Appeal (39 Ch D 213)
affirmed.”
See also page 221 of the said
report, and the case of Blay
v Pollard and Morris
[1930] 1 KB 628 at 641.
Having considered the
plaintiff’s pleadings, the
relevant law, and having read
and digested the authorities
cited, especially page 221 of
the report of the decision of
the House of Lords quoted above,
I am fully convinced that the
plaintiff’s action is
statute-barred and should have
been struck out by the trial
court. Kom himself at page 26 of
his book, mentioned earlier,
states that an action can be
struck out where it is
statute-barred. In the
circumstances, it is my view
that the appeal ought to succeed
on this ground also.
In conclusion therefore, and for
the reasons given, I would allow
the appeal and dismiss the
plaintiff’s action which I
consider not only incompetent,
but also frivolous and
vexatious.
ESSIEM JA.
I agree.
FORSTER JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner. |
