JUDGMENT
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. That the learned trial judge
misunderstood the application
before her. That the issue was
not that the court did not have
jurisdiction but that the
Plaintiff's 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:
(a)
Declaration that the Plaintiffs
as well as the /Defendant herein
are Tenants in common of House
No. 91\4, Agona-Kwanyako.
(b) An order
of account for all rents
collected in respect of the said
Properties from October 1996 to
date.
(c) 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 Plaintiffs
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 plaintiffs
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.I. 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
plaintiffs 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 beesic 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 to Counsel for
Plaintiffs to come by the
provisions of L.I. 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.
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