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ACQUAH, J.S.C.:
This is an appeal against the
decision of the Court of Appeal
dated 11th December, 1997
reversing an Accra High Court’s
order which refused an
application to intervene in a
probate action under Order 6
rule 3 of the Probate and
Administration Rules 1991 (L.I.
1515). The parties would where
necessary be referred to in the
manner they appeared at the
trial High Court.
The plaintiff, Mr. Leslie Rodney
Nii Lantey Heward-Mills, issued
a writ of summons against the
defendants—Mrs. Alberta Ollenu
and Mr. Trebi Ollenu—for
1. A declaration that the
purported Will of Mr. Albert
Gillies Heward-Mills (deceased)
dated 11th December, 1939 and
the purported codicil thereto
dated 3rd January 1950 upon both
of which probate was granted on
23rd 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, deceased, 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 Ollenu, 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 state. 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 15th
October 1996, twelve persons,
eight of whom claimed to be the
children of the late A.G.
Heward-Mills (deceased) applied
under order 6 rule 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 to 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 required in order 6 rule
2 of LI 1515
(b) the action is statute
barred.
(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 application
to intervene. The basis for
seeking to join the twelve
persons, as deposed to in their
supporting affidavit in
paragraph 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 Ollenu
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, F157/94, 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 10th 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 lodge 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 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 rule 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
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 rule 1.
The Court of Appeal was
therefore right in so holding.
The appellant next complained
that where 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 vrs. Miss
Susan Heward-Mills & 2 Ors, H/C
Suit No. 890/91, of 3rd December
1991 (unreported), Dr. S.D.
Heward-Mills, a brother of the
full-blooded of the plaintiff in
the instant case sued the 1st,
2nd, and 4th 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
courts upholding of the
defendants’ objection that the
action disclosed no reasonable
cause of action against them,
was sound and impeccable.
Now 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 leave to
intervene to protect their
interest. And in so applying for
leave, the respondents are fully
acting within the letter of
Order 6 rule 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 action".
And as to the qualification of
an applicant for leave to
intervene, sub-rule 2 of rule 3
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
rule 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 as
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 rule 3. The legal
position is made clearer in
Halsbury’s Laws of England, 3rd
ed. Vol. 16 page 201, paragraph
353, as follows:
“Any person not named in the
writ may intervene and appear in
the (probate) action on filling
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”
(emphasis mine)
Thus in Kipping & Barlow vrs:
Ash (1845) 1 Rob Eccl. 270, and
Doglioni vrs. Crispin (1866) LR
1HL 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
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 rule 3? 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
thirty 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 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
change 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
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” (emphasis 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.
ACQUAH,
JUSTICE OF THE SUPREME COURT.
MRS. BAMFORD-ADDO,
JUSTICE OF THE SUPREME COURT.
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