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HOME UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2006

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA A.D. 2006

CORAM: ATUGUBA, J.S.C. (PRESIDING),

GEORGINA WOOD, J.S.C.,

PROF OCRAN, J.S.C.,

ANSAH, J.S.C.

ANINAKWAH J.S.C.

CIVIL APPEAL

NO.J4/7/2004

28^TH JUNE, 2006

1. MARY TETTERLEY BILL )

2. JOSEPH ABEKA BILL )

3. EAMMANUEL TETTERLEY BILL ) PLAINTIFFS/

4. ESTHER TETTERLEY BILL ) RESPONDENTS

5. SAMUEL KPOBI BILL )

6. BENJAMIN LARBI BILL )

AND

ROBERT ALEXANDER ATTUGUAYE COLLEY ) CO-PLAINTIFF/

VRS. ) RESPONDENT/

) RESPONDENT

EMMANUEL ABEKA ) DEFENDANT/

) APPELLANT

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J U D G M EN T

ATUGUBA JSC delivered the judgment of the court. The plaintiffs-respondents-respondents (hereinafter referred to as the plaintiffs) sued the defendant-appellant-appellant (hereinafter referred to as the defendant and the co-plaintiff-respondent-respondent in the High Court, Accra in an estate matter in respect of which the latter two are the administrators, having been granted letters of administration.

Owing to opposing attitudes by these administrators towards the suit, the High Court, upon the plaintiffs' application, struck out the co-plaintiff who was then the second defendant, and joined him in his current position, as the co-plaintiff.

When trial opened, the plaintiffs called three witnesses. They testified. However, when the co-plaintiff was called by the plaintiffs as the fourth plaintiff witness, the defendant's counsel, Mr Nii Amponsah, upon his being sworn, raised an objection on the grounds that: first, having renounced administration he must act jointly with the defendant; and second, that he has not pleaded any facts upon which he could testify.

This objection is rather puzzling. The co-plaintiff, as stated (supra) was called as "the fourth plaintiff witness" and was proceeding to testify in that capacity, and not as a co-plaintiff when counsel raised his objection. It is trite law that unless incompetent, a party can testify as a witness: see sections 58 and 59 of the Evidence Decree, 1973 (NRCD 323). No allegation of incompetence arising from those provisions is made against the co-plaintiff as a witness, to wit, the fourth plaintiff witness. That being so, objection could be taken if he purported to testify on matters that ought to have been pleaded by the plaintiffs but have not been pleaded. Even then, such objection could not be based on competence but on admissibility of evidence. That is not what transpired here. This suffices to dispose of this matter.

However, as the issue of the competence of the capacity of the co-plaintiff has engaged arguments from counsel on both sides and the considerable attention of the Court of Appeal, it is better to deal with it. It is said that when the trial court granted the plaintiffs' application for the second defendant to be struck out from the suit as defendant and rather joined him as a co-plaintiff, no appeal was taken therefrom and that ought to conclude the issue. However, capacity being a fundamental issue, the plea of its forceclosure cannot prevail.

It is trite law that no matter how a void order has come to the knowledge of a superior court, the same must be addressed. In Hayford v Moses [1980] GLR 757 at 761 Sarkodee J held as follows:

"Mr Sekyi-Hughes, learned counsel for the defendant submitted that in as much as the parties are co-administrators the action against the defendant is not maintainable. As a general rule if there are several executors and administrators, they have a joint and entire interest in the estate of the testator or intestate which cannot be divided. Accordingly, they cannot maintain an action at law to protect the deceased's property against one another the reason being that a person cannot sue himself either alone or jointly with others: see Ellis v Kerr [1910] 1 Ch 529."

This principle is general but no absolute. In Acquaah v Larbi [1980] GLR 629 at 635-636, Edward Wiredu J (as he then was) said:

"One thing which should be borne in mind in this action is that the defendant is a party to this action and has the right to challenge the capacity of the person seeking to bring to court. The plaintiff is not his landlord; he is a tenant of the estate of the deceased Koi Larbi whose legal representatives are three of whom the plaintiff is one. The common law position with regard to actions commenced by executors on behalf of an estate is that as plaintiffs all proving executors must join and those who refuse must be joined as defendants. If there are two or more executors, all those who are of full age and have proved the will should join as plaintiffs in an action: see Williams on Executors and Administrators (14th ed), para 1834 and Bullen & Leake's Precedents of Pleadings (11th ed), s 22 at p 203.

With regard to non-joinder of one or two or more executors, Werderman v Societe General d'Electricite (1881) 19 Ch D 246 is an authority for the proposition that the only objection which a defendant could take is to take out a summons to have the others joined as plaintiffs. Where they refuse to join as plaintiffs the one suing should bring them in as defendants: see Gandy v Gandy (1885) 30 Ch D 57, CA. Had the position been that the plaintiff had sued alone as an executor one would not have taken the defendant's objection seriously."

Indeed, the contention that administrators must necessarily act together and on the same side as parties to an action in all situations whatever practical and serious problems may be entailed thereby appears so irrational that as a common law rule it cannot hold sway. The maxim cessat ratione cessat lex ipsa would control such an absurdity. Even statutes are construed, as is well-known, to avoid absurdity, inconvenience, etc where possible. It is not surprising therefore that In re Moore (1888) P 36 where an executor had, before probate and without the assent of his co-executor, intermeddled in the estate and made preparations to dispose of a portion of it, the court gave leave to the co-executor to issue a writ against him claiming an injunction to restrain him from dealing with the estate before probate and praying for the appointment of a receiver.

Again in Brewer v Westminster Bank Ltd [1952] 2 All ER 650 in which McNair J held that the executors' right to have cheques honoured by the bank only if signed by both of them was a right owed to them jointly and it could only be relied on in an action brought either by both executors joining as plaintiffs or by one as plaintiff joining the other as defendant. In Burnside v Harrison Marks Productions Ltd [1968] 2 All ER 286, CA it was held that where one joint contracting party sued alone the other could be joined as a defendant and the other defendants could make any counterclaim they desired.

In this case, as said earlier, the plaintiffs sued both joint administrators as defendants but the court deeming it proper in the circumstances, upon the plaintiffs' application, struck him out as second defendant and joined him as a co-plaintiff. It is trite law that such a change in the position of parties to a suit can be made under Order 15, r 6 of the High Court (Civil Procedure) Rules, 1954 as amended by the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129), the then applicable rules of court. Indeed this is a familiar practice: see Warwick Film Productions Ltd v Eisinger [1963] 1 WLR 756. Indeed, in this case, the defendant does not seek to argue that, given jurisdiction, the order joining the second defendant as co-plaintiff was wrong on the merits and he could not have so usefully contended.

For all these reasons, the appeal is dismissed.

W. A. ATUGUBA