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Supreme Court - Civil procedure
- Invoking the
supervisory jurisdiction –
Certiorari - Non-compliance with
the provisions rules -
Revocation of the Probate
granted - Rule 61
(1) (b) of C.I 16, the Supreme
Court Rules
HEADNOTES
The application before us
invokes
the supervisory jurisdiction
of this court for an order of
certiorari to bring up into
this Court for purposes of it
being quashed and quashing
orders made by the Probate and
Administration Division of the
High Court Number 2, in the suit
numbered PA 520/2020 and
intituled Elizabeth Darko Vs.
Tracy Opoku Darko & Others.
Although on the face of the
motion paper, the Applicant
states that the prayer for
certiorari is targeted at the
orders made by the High Court,
dated Wednesday the 11th
day of November 2020, the
Applicant has not specified
which orders are sought to be
quashed.
HELD
It is for these reasons that
this Court has no difficulty
whatsoever in granting the
application before us. The
ruling of the Court reinforces
the position of the Court on
applications for supervisory
jurisdiction. The Court will not
deploy its supervisory powers
over all errors committed by the
High Court. It is such errors
which are patent and clearly
unwarranted. In the instant
case, probate can only be
deposited if they are in the
custody of the person required
to deposit them at the registry
of the Court. It is therefore
manifestly unjustifiable for the
High Court to have struck out
proceedings which were almost
ripe for hearing on the ground
that the Applicant herein was
required by the rules of the
High Court to have demanded the
deposit of the probate which was
not in the possession of the 2nd
and 3rd Interested
Parties. What is even worse is
the fact that even if the said
Interested Parties had in their
possession the probate, striking
out the proceedings at the stage
where pleadings had closed,
resulted in a clear violation of
the provisions of Order 81 rule
2(2) of the rules of the High
Court (Civil Procedure) Rules,
2004 C.I.47. For all the reasons
hereinbefore set out, the
application for certiorari
succeeds and it is hereby
granted
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules C.I 16
High Court (Civil Procedure)
Rules C.I.47
Administration of Estates Act,
1961 (Act 63).
CASES REFERRED TO IN JUDGMENT
Republic Vs. High Court
(Commercial Division) Accra
Ex-parte Attorney General (NML
Capital and Republic of
Argentina-Interested Parties)
[2013-2014] SCGLR 990
Abu Ramadan & Nimako Vs.
Electoral Commission & Attorney
General [2015-2016]1 SCGLR, 77
Okofoh Estates Vs. Modern Signs
Limited [1996-1997] SCGLR 224).
Heward Mills Vs. Heward-Mills &
Others [1992-1993] Part 1 Ghana
Bar Reports 239 CA
Republic Vs. High Court, Accra,
Ex-parte Commission on Human
Rights & Administrative Justice
(Addo Interested Party)
[2003-2004] 1 SCGLR, 312
Republic Vs. Court of Appeal,
Ex-parte Tsatsu Tsikata
[2005-2006] SCGLR, 612
Republic Vs. High Court, Accra
Ex-parte; Ghana Medical
Association, (Chris
Arcman-Akummey, Interested
Party) [2012] 2 SCGLR, 76
Republic Vs. High Court, Accra;
Ex-parte Industrialization Fund
for Developing Countries and
another [2003-2004] SCGLR 348.
Standard Bank Offshore Trust
Company Limited (suing on behalf
of investors in promissory
notes) (substituted by; Dominion
Corporate Trustees Limited Vs.
National Investment Bank &
Others. (Review Motion
No.J7/15/2017, dated 17th
March, 2018).
Republic v High Court,
Koforidua; Ex-parte Ansah-Otu &
Another (Koans Building
Solutions Ltd. Interested Party)
[2009] SCGLR 141
Republic Vs. Fast Track High
Court, Accra, Ex parte Electoral
Commission, (Mettle-Nunoo &
Others Interested Parties)
[2005-2006] SCGLR 514
Republic v High Court, Accra; Ex
parte Peter Sangber-Der (ADB
Bank Ltd- Interested Party)
[2017-2018] SCLRG (Adaare) 552
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
AMADU, JSC: -
COUNSEL
NANA AMA AMPONSAH FOR THE
APPLICANT.
RAY APPIAH-AMPONSAH FOR THE 1ST,
2ND AND 3RD
INTERESTED PARTIES.
AMADU, JSC:-
(1)
My Lords,
the application before us
invokes the supervisory
jurisdiction of this court for
an order of certiorari to bring
up into this Court for purposes
of it being quashed and quashing
orders made by the Probate and
Administration Division of the
High Court Number 2, in the suit
numbered PA 520/2020 and
intituled Elizabeth Darko Vs.
Tracy Opoku Darko & Others.
Although on the face of the
motion paper, the Applicant
states that the prayer for
certiorari is targeted at the
orders made by the High Court,
dated Wednesday the 11th
day of November 2020, the
Applicant has not specified
which orders are sought to be
quashed.
(2)
This observation is made in view
of the prayer set out on the
face of the motion paper. It is
clearly stated therein that the
application for certiorari is
prayed for, to quash the
"orders" of the High
Court. This Court has time
without number, pointed out that
applications invoking the
supervisory jurisdiction of the
Court are technical in nature.
For this reason, it is important
that parties who invoke the
jurisdiction of the Court be
precise in their applications.
It is not sufficient to just
throw a general prayer at the
Court without being specific as
to the nature of the order
sought to be quashed especially
in this instance that the
application seems to suggest on
the face of her motion paper
that the orders sought to be
quashed are several.
(3)
To the extent that the orders
sought to be quashed being
several as suggested in the
Applicant's motion paper, the
position of the court is that,
it may be appropriate to make a
distinct application targeted at
each of those orders. This is
the effect of the decision of
this court in the case of
Republic Vs. High Court
(Commercial Division) Accra
Ex-parte Attorney General
(NML Capital and Republic of
Argentina-Interested Parties)
[2013-2014] SCGLR 990.
In that case Gbadegbe JSC
as reported in page 1030 held
and it is reproduced in
extenso as follows:-
". . . the opinion that I am
about to read relates only to a
point of procedure, which in my
thinking is of some importance
to civil
procedural law. It is an
extremely short one that is
intended for future guidance
only. We have recently observed
that several applications for
judicial review in the nature of
certiorari that are filed before
us relate not only to a single
order, ruling or judgment but to
multiple such orders, rulings or
judgments.... by the very
formulation of
rule 61
(1) (b) of C.I 16, the Supreme
Court Rules, the
applications to be good must
relate to an order and not to
orders. To suggest to the
contrary would mean that such
processes bear the description
applications and not
application. The reason for the
rule is that every order, which
falls from the lips of a judge
is either appealable or might be
the subject matter of some other
judicial correction such as
certiorari or prohibition.
Although in practice,
applications for certiorari
might be coupled with other
orders- injunction and or
prohibition for example, that
part of the application which
seeks judicial review in the
nature of certiorari is limited
to a single order of the court
whose order is the subject
matter of the application for
judicial review.
In my opinion as every such
order is a competent ground for
an application for certiorari
better practice requires that
each such order, from which an
appeal might be filed creates a
separate and distinct right in a
party to apply. I am of the view
that for this purpose the
requirements of practice and
procedure by which appeals are
filed from single orders only,
applies with equal force to
applications for certiorari. It
is observed that although in
appropriate situations several
applications pending before a
court may be consolidated by the
court on its own or upon the
application of a party to the
proceedings, the right to bring
an application for certiorari in
respect of more than a single
order has never been left to the
parties but appears from the
practice of the court to be
consequent upon the exercise of
judicial discretion that is the
sole preserve of a single judge
or a panel of judges. When one
goes through reported cases in
this jurisdiction and elsewhere,
they turn on an order made by a
court and or other tribunal in
the course of adjudication.
While a single order might
suffer from several grounds that
render it amenable to
certiorari, applications for
certiorari are made in respect
of an order and not orders."
(4)
It is further observed that the
Applicant's grounds of
application are quite
argumentative. Apart from the
first ground which states
clearly that the ground of the
application is mounted on an
error of law apparent on the
face of the record, the other
grounds appear argumentative. It
is necessary for Counsel in such
application to avoid
argumentation in the formulation
of grounds. For instance, the
second ground of the application
is couched thus;
"ii. By virtue of the fact
that Probate though granted had
not been
issued to the Executors (2nd
and 3rd Interested
parties), the learned Justice
made a substantial error of law
apparent on the face of the
record when she struck out the
entire suit and counterclaim on
the basis that plaintiff failed
to file Notice to Lodge Probate
prior to the commencement of the
suit."
This is effectively a
submission. In any event, as
already pointed out, a
consolidated application for
certiorari which attacks several
orders of the Court must set out
specifically the particular
orders sought to be quashed.
For, it may well be that some
orders are properly made the
subject of a certiorari
application while others are
not. Given this Court's
inclination to do justice and
not to allow technicalities to
defeat a genuine cause of
action, we shall treat this
procedural glitch lightly
especially in the light of the
authorities which say that in
all applications, the Court
should pay more attention to the
substance of the application
regardless of the manner in
which it is couched. (See
Abu
Ramadan & Nimako Vs. Electoral
Commission & Attorney General
[2015-2016]1 SCGLR, 77 at
88 & Okofoh Estates Vs.
Modern Signs Limited
[1996-1997] SCGLR 224).
(5)
A careful reading of the motion
paper leaves the Court in no
doubt whatsoever that although
the Applicant prays the Court
for an order of the Court to
quash the "orders"
of the High Court, the
Applicant’s concern relates to
one main order. This order is
the one striking out the
Applicant's writ of summons and
statement of claim on the ground
that it is a nullity. This is
the subject matter of the first
ground of the application which
prays this Court to quash the
said order on the ground that
the order is erroneous on the
face of the record.
(6)
The basic point of controversy
on which the instant application
revolves is the legal effect of
non-compliance with the
provisions of Order 66 rules
33(3) and 37(1) of the
High
Court (Civil Procedure) Rules
C.I.47 in particular. They
provide as follows:-
"33. (3) Before a writ 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
37, unless the probate or
letters of administration has or
have been lodged in the registry
of the Court.
37. Notice to bring in grant
(1) Where an action is brought
for the
revocation of a grant of probate
or letters of administration of
the estate of a ceased person,
the plaintiff shall serve a
notice on the person to whom the
probate or letters of
administration is granted
requiring the person to bring
and leave at the registry of the
Court the probate or letters of
administration."
(7)
In the proceedings before the
High Court, there is no doubt
the one of the reliefs the
applicant seeks is for an
"order for the
revocation of the Probate
granted by the Court on 23rd
October 2019 respecting the
purported Will of the Late Nana
Owusu Darko." The suit
before the High Court is
therefore one undoubtedly
regulated by the provisions of
Order 66 rules 33(3) and 37(1)
of C.I. 47. The combined effect
of the provisions of Order 66
rules 33(3) and 37(1) of C.I. 47
quoted above is that before a
writ for the revocation of the
grant of probate of a Will is
issued out, notice be given
under rule 37, to the person to
whom the probate is granted
requiring the person to bring
and deposit at the registry of
the Court the probate.
(8)
We are aware that similar
provisions of these rules were
enforced in the case of
Heward
Mills Vs. Heward-Mills &
Others [1992-1993] Part 1 Ghana
Bar Reports 239 CA.
In that case, the Court of
Appeal held in relation to the
analogous provisions in Order 6
rules 2(3) and 6(1) of LI 1515
that the failure by the
Plaintiff to comply with the
said provisions is fatal to this
action. The reason, the Court
held is that: "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" per Adjabeng JA
(as he then was) at pages
246. The application before us
therefore at first glance would
have required a direct
application of the
Heward-Mills Vs. Heward Mills
position simpliciter.
(9)
However, the facts of the
Heward-Mills case are quite
distinguishable from the instant
case, in that case Probate of
the Will and Codicil of the late
Albert Gillies Heward-Mills,
Barrister-at-Law, of James Town,
Accra was granted to the
executors. In the instant case,
the key issue for determination
is the question whether or not
Probate was granted and issued.
A search report which has been
attached to the affidavit in
support of the application
before us confirms that although
an application for the grant of
Probate was granted. Probate
itself was not yet delivered to
the executors and who not in
possession of any such papers.
In this regard, it is apparent
from the rival contentions of
the parties that there is
disagreement on the question
when Probate is deemed to have
been granted. The submissions
disclose that the parties
disagree on the timing in terms
of when Probate is deemed
granted. The question which
arises is simple. Is Probate
deemed granted only because the
application for the grant of
Probate has been granted? If the
question had been properly
interrogated, the answer to this
question should not have
generated any dispute.
(10)
A plain reading of the rules of
the High Court under
consideration will confirm that
the notice is to lodge the
probate in the registry of the
Probate Court is not required to
be given where the probate has
already been lodged in the
registry of the Court.
This is because the process
of the grant of probate is only
complete after the probate is
sealed by the Registrar of the
Court. The Registrar of the
Court is precluded by the
provisions of Order 66 rule
11(7) from allowing: "any
grant of probate for letters of
administration to be sealed if
the Registrar has knowledge of
an effective caveat in respect
of it...". The
Applicant's contention in the
application before this Court is
that although the application
for probate had been granted,
same had not been issued to the
executors who are the second and
third interested parties in this
application. The fact that
probate had not yet been sealed
and delivered to the executors
of the Will is not disputed. The
Applicant put this fact beyond
dispute by exhibiting a search
report from the registry of the
High Court which established the
Applicant's contention. The
effect is that at all times
material to the proceedings
before the High Court, the
executors of the Will were not
in possession of the probate.
The notice to bring and lodge in
the registry of the lower court
the probate cannot be required
where as in this case, the
person required to deposit the
probate has no possession of
same. The rhetorical question
which makes any argument on this
matter unnecessary is this; what
would be the point in calling a
person to deposit in the
registry of the court a document
the person does not have? It
will therefore not be correct to
require the notice in the
circumstances of the case. There
is therefore no doubt that the
High Court committed an error by
purportedly enforcing rules
33(3) and 37(1) of Order 66 of
the rules. These rules do not
require a person who has no
custody of probate to deposit
same at the registry when the
said probate which has not been
delivered to him.
(11)
The law governing the
supervisory jurisdiction of this
Court has been stated in a
deluge of decisions of the
Court. The oft cited case on
this point however, is the case
of
Republic Vs. High Court,
Accra, Ex-parte
Commission on Human Rights &
Administrative Justice (Addo
Interested Party)
[2003-2004] 1 SCGLR, 312.
In that case, Dr. Date Bah
JSC by way of restatement of the
law held inter alia as
follows:-
". . .where the High Court (or
for that matter the Court of
Appeal) makes a
non-jurisdictional error of law
which is not patent on the face
of the record..., the venue for
redress open to an aggrieved
party is an appeal, not judicial
review. In this regard, the
error of law made by the High
Court or the Court of Appeal is
not to be regarded as taking the
judge outside the court's
jurisdiction, unless the court
has acted ultra vires the
Constitution or an express
statutory restriction validly
imposed on it."
For the avoidance of doubt, this
Court subsequently held in the
case of
Republic Vs. Court of Appeal,
Ex-parte Tsatsu Tsikata
[2005-2006] SCGLR, 612
that:- "The clear thinking
of this court is that our
supervisory jurisdiction under
Article 132 of the 1992
Constitution, should be
exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors go to the
jurisdiction or are so plain as
to make the impugned decision a
nullity." (Emphasis).
(12)
In the case of
Republic Vs. High Court, Accra
Ex-parte; Ghana Medical
Association, (Chris
Arcman-Akummey, Interested
Party) [2012] 2 SCGLR, 768
this Court summarized the
principles "upon which this
court proceeds to exercise its
supervisory jurisdiction thus:
1.
Want or excess of
jurisdiction,
2. Where there is an error of
law on the face of the record,
3. Failure to comply with the
rules of natural justice, and
4. The Wednesbury principle".
The cases just cited established
error of law on the face of the
record as one of the grounds
upon which this Court's
supervisory jurisdiction may
legitimately be invoked. This
Court has however pointed out
that the error of law that
necessitates the application
invoking the supervisory
jurisdiction of this Court must
be a serious one. This was made
clear by this Court in the case
of Republic Vs. Court of
Appeal; Ex-Parte Tsatsu Tsikata
(supra). In that case Wood
JSC (as she then was)
held as reported in page 619 of
the report that:
". . . It stands to reason then
that the error(s) of law as
alleged must be fundamental,
substantial, material, grave or
so serious as to go to the root
of the matter. A minor,
trifling, inconsequential or
unimportant error which does not
go to the core or root of the
decision complained of; or,
stated differently, on which the
decision does not turn would not
attract the courts supervisory
jurisdiction.”
(13)
Reference is also made to the
case of
Republic Vs. High Court,
Accra; Ex-parte
Industrialization Fund for
Developing Countries and another
[2003-2004] SCGLR 348.
In that case this Court held
that certiorari (or
prohibition) was a
discretionary remedy which would
issue to correct a clear error
of law on the face of the ruling
of the court. Quoting
Bamford-Addo JSC in the Ex parte
Industrialization Fund for
Developing Countries case, Ansah
JSC held that the
"authorities make it also clear
that it is not just any error
that has the effect of ousting a
court of jurisdiction, but that
for an error to have any such
effect it ought to be basic and
fundamental."
(14)
In the instant case, the error
complained of has resulted in
the declaration of the
Applicant's writ of summons a
nullity and was struck out. It
is unnecessary to say that
granted even that the writ of
summons and statement of claim
offended the rules of the High
Court considered earlier in this
decision, the counterclaim
should also not have suffered
the same fate. The error of the
Court in misapplying the rules
of the High Court under
consideration did not end there.
The objection to the
noncompliance was taken after
proceedings before the High
Court had advanced. Pleadings
had literally closed. The
question provoked by the
situation is this; was the
objection to the noncompliance
validly taken at the time when
it was raised? The rules require
all objections arising out of
noncompliance with the rules of
court to be taken timeously
failing which such objection is
not permissible. This is the
crux of the fourth ground of the
application which falls within
the purview of the provisions of
Order 81 rule 2(2) of the rules
of the High Court. It provides
that:-
"(2) No application to set
aside any proceeding for
irregularity
shall be allowed unless it is
made within a reasonable time
and the party applying has not
taken any fresh step after
knowledge of the irregularity."
(15)
Given the way in which the rule
has been rendered it is clearly
mandatory. Its mandatory effect
reinforced by the words’ used by
the legislature. This is
indisputable when account is
taken of the words "No"
and "shall"
appearing in the rule. The
effect of the rule was stated
Atuguba JSC in the case of
Standard Bank Offshore Trust
Company Limited (suing on
behalf of investors in
promissory notes)
(substituted by; Dominion
Corporate Trustees Limited Vs.
National Investment Bank &
Others. (Review Motion
No.J7/15/2017, dated 17th
March, 2018). In what
may appear to be a dissent, the
learned Justice held that
although the setting aside of
any proceedings is in the
exercise of judicial discretion.
The exercise of such discretion
is "not permissible upon
application after fresh steps
taken" and that:
"no court has the jurisdiction
to nullify proceedings etc. for
noncompliance with any of the
Rules under the High Court
(Civil Procedure) Rules, 2004
(C.I.47)."
(16)
Reference is also made to the
case of
Republic v High Court,
Koforidua; Ex-parte Ansah-Otu &
Another (Koans Building
Solutions Ltd. Interested Party)
[2009] SCGLR 141,
where Ansah JSC held that by
rule 2(2) of Order 81 of CI 47,
the party affected by the
non-compliance with the rules of
court, may apply to the trial
court to set aside the
proceedings for irregularity,
provided an application was
made timeously and without
taking any fresh step in the
matter after knowledge of the
irregularity.
(17)
We find it unnecessary to
multiply authorities on this
point. Suffice it to say that
certiorari may lie to quash the
decision of the High Court when
the High Court commits an error
apparent on the face of the
record. In the case of
Republic Vs. High Court
(Ex-parte Eastwood)
[1995-1996]1 GLR 689
Hayfron-Benjamin JSC held at
page 698 of the report that, an
error of law appearing on the
face of the record is such an
error which is so obvious as to
make the decision a nullity. In
the Okofo Estates Ltd. Vs.
Modern Signs Ltd. (supra)
this Court intervened in the
exercise of its supervisory
jurisdiction over the High Court
when the High Court judge though
had jurisdiction to hear an
application, committed an error
of law apparent on the face of
the record by taking into
account extrinsic evidence when
the rule under which the
application was made did not
permit the use of affidavits. In
so doing, this Court held that
the Trial Judge fell beyond the
bounds of his jurisdiction and
the ruling was therefore be set
aside. In holding (4) of the
headnote, it is reported that
certiorari would lie to quash
the decision of a court on the
ground of error of law on the
face of the record if such error
went to jurisdiction, or was so
obvious as to make the decision
a nullity.
(18)
In the instant case, the
decision of the High Court is
clearly a nullity arising from
two basic points of law. First,
misapplying the provisions of
Order 66 rules 33(3) and 37(1)
of the rules of the High Court,
and secondly, setting aside
proceedings contrary to the
clear provisions of Order 81
rule 2(2) of the rules of the
Court which forbid the perdition
of proceedings initiated by a
party on grounds of technicality
where the procedural objection
is not raised timeously and at
the time the blunder is alleged
to have been committed. In the
case of
Republic Vs. Fast Track High
Court, Accra, Ex parte Electoral
Commission, (Mettle-Nunoo
& Others Interested Parties)
[2005-2006] SCGLR 514
Prof. Ocran JSC of blessed
memory, put the matter
succinctly when he held that
certiorari lies not only to
review and quash a decision
taken in the absence of initial
jurisdiction, but also in excess
of jurisdiction as when a court
initially clothed with
jurisdiction, embarks upon a
path unwarranted or uncalled for
in the disposition of the
specific matter before it.
(19)
It is for these reasons that
this Court has no difficulty
whatsoever in granting the
application before us. The
ruling of the Court reinforces
the position of the Court on
applications for supervisory
jurisdiction. The Court will not
deploy its supervisory powers
over all errors committed by the
High Court. It is such errors
which are patent and clearly
unwarranted. In the instant
case, probate can only be
deposited if they are in the
custody of the person required
to deposit them at the registry
of the Court. It is therefore
manifestly unjustifiable for the
High Court to have struck out
proceedings which were almost
ripe for hearing on the ground
that the Applicant herein was
required by the rules of the
High Court to have demanded the
deposit of the probate which was
not in the possession of the 2nd
and 3rd Interested
Parties. What is even worse is
the fact that even if the said
Interested Parties had in their
possession the probate, striking
out the proceedings at the stage
where pleadings had closed,
resulted in a clear violation of
the provisions of Order 81 rule
2(2) of the rules of the High
Court (Civil Procedure) Rules,
2004 C.I.47.
(20)
For all the reasons hereinbefore
set out, the application for
certiorari succeeds and it is
hereby granted.
The let effect is that the
ruling of the High Court
(Probate and Administration)
Division No.2 dated 11th
November, 2020 is hereby brought
to this court for the purposes
of being quashed, and the same
is hereby quashed.
I.O. TANKO AMADU
(JUSTICE
OF THE SUPREME COURT)
PWAMANG, JSC:-
My Lords, I read in draft the
lead judgment of the court
written by our noble brother
Amadu, JSC and I am in agreement
that the trial judge erred in
her understandings of Order
66 Rule 33(3) of the High
Court (Civil Procedure) Rules,
2004 (C.I.47) and wrongly
applied the said provision to
the facts of the case that was
before her. I accordingly concur
in the grant of the application
for certiorari. However, for the
purpose of future guidance, I
wish to make a few comments of
my own on some pertinent matters
of procedure that arise in this
case.
The case of the applicant herein
(the plaintiff in the High
Court) is that she used to be
married to Nana Owusu Darko (the
Deceased) but their marriage was
dissolved by order of the High
Court on 28th June,
2018. On dissolution of their
marriage, the court made
ancillary orders for alimony and
property settlement in her
favour. However, before she
could execute those orders the
deceased died on 28th
February, 2019 and left a Will
disposing of his properties and
appointing the 2nd
and 3rd Interested
parties as executors. The
executors applied for probate
over the Will of the deceased
but the applicant got to know of
it only after the application
had been granted but before the
probate was sealed and issued to
the executors. According to the
applicant, in order to prevent a
dissipation of the estate she
was advised by her lawyer to
file a caveat to stop the
issuance of the probate which
she did. The applicant claims
that she got to know that
despite the caveat the executors
were taking steps to have the
Registrar of the High Court
issue the probate to them. Her
lawyer then conducted a search
in the registry of the court and
it was confirmed that the
probate had not yet been issued.
That notwithstanding, she claims
that the interested parties were
still trying to dispose of some
assets of the estate so, to
protect her interest, she took
out a writ of summons against
the interested parties endorsed
with the following reliefs;
i. A declaration that the
purported last Will and
Testament of the Late Nana Owusu
Darko with respect of which
Probate was granted in Suit No.
PA 0092/2020 is a nullity/void.
ii. An order for the revocation
of the Probate granted by the
Court on 23rd October 2019
respecting the purported Will of
the Late Nana Owusu Darko.
iii. A declaration that the
estate of the Late Nana Owusu
Darko is liable to fully settle
plaintiff’s accrued claims
against the estate before any
named and/or legal beneficiary
could benefit from the remainder
of the estate.
iv. An order directed at the
personal representatives and/or
executors of the estate of the
Late Nana Owusu Darko including
2nd, 3rd and 4th defendants to
fully settle the claims of
plaintiff before distribution of
the estate properties among
beneficiaries.
v. An order directed at the
defendants to account for the
estate properties unjustly
appropriated and/or disposed of
and to return the proceeds
thereof to the estate.
vi. Interest at the prevailing
commercial bank lending rate
from the date when the said
proceeds was paid to the
defendants to the date of final
payment.
vii. Perpetual injunction
restraining defendants from
appropriating, dissipating,
disposing of, distributing
and/or otherwise interfering
with the estate properties of
the Late Nana Owusu Darko until
plaintiff’s claims and/or
judgments is fully settled.
viii. General Damages and cost.
The applicant joined the 4th
interested party to the suit in
his capacity as the customary
successor of the deceased. On
service upon him, the 4th
interested party filed a defence
and a counterclaim in which,
among other reliefs, he prayed
for the Will of the deceased to
be declared a nullity on grounds
of allegations of forgery. The
applicant subsequently applied
to the court on notice for an
order of preservation of the
estate pending the determination
of the suit but the 1st
to 3rd interested
parties, while opposing the
application for preservation,
also filed a motion asking the
court to strike out both the
action of the applicant and the
counterclaim of the 4th
interested party on the ground
that both were filed in breach
of a mandatory statutory
precondition, to wit, filing a
citation for the probate to be
lodged at the registry of the
court.
The trial judge determined the
two applications together and
took the view, that by Order 66
Rule 33(3), both the applicant
and the 4th
interested party should have
filed a citation before
commencing proceedings. She
accordingly struck out both the
writ of summons and the
counterclaim. It is that
decision that the applicant
prays us to bring up and quash
for fundamental error of law.
Order 66 Rule 33(3) of C.I.47
that the court based its
decision on is as follows;
“(3) Before a writ 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
37, unless the probate or
letters of administration has or
have been lodged in the registry
of the Court.”
The above Rule may be said to be
applicable only in respect of
the applicant’s relief (ii) that
prayed for revocation of the
probate but the same cannot be
said of the remaining seven
relieves the applicant endorsed
on her writ of summons. The
counterclaim of the 4th
interested party too did not
contain any relief for
revocation of the probate. A
casual reading of the other
reliefs of the applicant reveals
that they concern distinct
causes of action that are
independent of the relief for
revocation of the probate and
are not ancillary to that
relief. Therefore, even if the
judge was right in her
interpretation of the Rule, she
ought not to have dismissed the
whole writ of summons because of
only one relief she considered
was not in conformity with the
Rule. Furthermore, the trite
learning is that a counterclaim
is a separate and independent
suit capable of determination on
its own merits so, as the
counterclaim in this case that
did not contain a claim for
revocation of the probate, it
did not deserve to suffer the
fate of peremptory dismissal
decreed in respect of the writ
of summons by the trial judge.
In the case of
Republic v High Court, Accra; Ex
parte Peter Sangber-Der (ADB
Bank Ltd- Interested Party)
[2017-2018] SCLRG (Adaare) 552,
at page 576 this
court speaking through Benin,
JSC held as follows;
“Where several reliefs are
placed before a court and the
court takes the view that it has
jurisdiction to hear some of
them whilst its jurisdiction is
excluded in respect of others,
the court is not entitled to
decline jurisdiction altogether.
In such a scenario there are two
options open to the court, it
may strike out those reliefs
which are outside its
jurisdiction and proceed to hear
those that fall within its
jurisdiction, or it may hear the
whole case, but decline to grant
the reliefs it is not competent
to grant when it delivers its
final judgment in the matter.”
But, as has been explained in
the lead judgment, the facts of
this case did not even call for
the application of Rule 33(3) of
Order 66 since the probate was
still in the custody of the
court. In fact, on a more
fundamental ground, if the
applicant’s counsel had
considered Rule 29 of Order 66
she would not have endorsed that
relief of revocation of the
probate on her writ of summons.
It provides that;
“Action to revoke grant of
probate or letters of
administration
29. (1) Where grant of
probate or letters of
administration has been
issued, any person who seeks
to have the grant revoked by the
Court may issue a writ to seek
the relief.
(2) In any action brought
under, rules 25 to 29 of this
Order, rules 32 to 43 shall
apply.” (emphasis supplied).
Accordingly, it is only when a
grant of probate or letters of
administration has been issued
that an action may be brought
for its revocation. Since in
this case the probate had not
been issued, it was premature
for the applicant to pray the
court to revoke same. What this
means is that the applicant had
no valid cause of action as far
as her relief (ii) is concerned
and same could have been struck
out by the trial judge, but not
for failure to comply with Rule
33(3) of Order 66. The reason
for Rule 29 is simple. Until the
probate or letters of
administration are issued out of
the registry of the court to the
executor or administrator, the
court can always set aside or
vary its order for the grant of
same upon justifiable grounds by
a simple application to the
court in the matter by a person
adversely affected by the grant.
It must be remembered that
applications for probate and
administration are generally by
ex parte proceedings and a court
will not hesitate to set aside
or vary its orders obtained ex
parte if sufficient reason is
provided.
Another important observation is
that its unclear to me the
purpose for which the applicant
endorsed her writ of summons
with reliefs (i) and (ii) in the
first place. From the narration
of the facts above, her claim is
against the estate of the
deceased and not as a
beneficiary of the estate. In
that case, she can only pursue
her claim if there is a legal
representative of the deceased
against whom she can proceed.
For that reason, praying for the
declaration of nullity of the
Will and revocation of the
probate will leave her claim in
abeyance as there will be no
legal representative to proceed
against until the validity of
the Will is determined.
Meanwhile, in her reliefs (iii),
(iv) and (v) she is pressing
claims against the very
interested parties she is
seeking to unseat. Since the
liability to her was incurred by
the deceased before his death,
it is a debt of his estate and
takes precedence over any
dispositions in a will or
devolution under intestacy. See.
Section 92 of the
Administration of Estates Act,
1961 (Act 63).
It is apparent that the
applicant’s objective in the
proceedings in the High Court is
to preserve the estate of the
deceased in order that she can
pursue her claims against the
estate. If that is her concern,
the Rule directly applicable
appears to me to be Rules 2 of
Order 66. It is as follows;
Preservation of property
“2. (1) The Court to which an
application is made under rule 1
of this Order may, for the
preservation of the property of
the deceased within its
jurisdiction or for the
discovery or preservation of the
will of the deceased, take such
interim measures as it considers
necessary.
(2) The Court within whose
jurisdiction the property is
situated shall, where the
circumstances so require, on the
death of the person or as soon
as may be practicable after
that, appoint an officer of the
Court or such other person as it
considers fit, to take
possession of the property
within its jurisdiction or put
it under seal until it is dealt
with in accordance with law.”
It has come to my attention on a
number of occasions that counsel
handling estate cases do not
usually remind themselves that
special rules have been made in
that regard and instead of
reading those rules closely,
they tend to approach estate
matters using the general
procedure rules for civil
proceedings in C.I.47. An
attentive reading of Order 66 of
C.I.47 as a whole by counsel and
the trial court would have
ensured that this case is
properly constituted for
efficient and effective
adjudication.
G. PWAMANG
(JUSTICE OF THE
SUPREME COURT)
ANIN YEBOAH
(CHIEF JUSTICE)
S. K. MARFUL-SAU
(JUSTICE OF THE
SUPREME COURT)
M. OWUSU (MS.)
(JUSTICE OF THE SUPREME
COURT)
AMADU, JSC
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
NANA AMA AMPONSAH FOR THE
APPLICANT.
RAY APPIAH-AMPONSAH FOR THE 1ST,
2ND AND 3RD
INTERESTED PARTIES. |
