COLEMAN vs. SHANG [1959]DLCA2002

Date	1959-11-26
Suit No.
Citation No.	[1959]DLCA2002

VAN LARE J.A. AS C.J.

GRANVILLE SHARP J.A.

OLLENNU J.

[1959]DLCA2002
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">COLEMAN <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">SHANG<o:p></o:p>&nbsp;[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 390<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
23RD NOVEMBER, 1959<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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VAN LARE J.A. AS C.J., GRANVILLE SHARP
J.A. AND OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN LARE J.A. AS C.J.<o:p></o:p>Van Lare
J. A. delivered the judgment of the Court: This is a judgment of the Court in
the preparation of which we all participated. The proceedings in this case
commenced with an application filed by the plaintiff in the Divisional Court
under Order 60 rule 1 of the Supreme Court (Civil Procedure) Rules for grant of
letters of administration in respect of the estate of his father, the late
Stephen Coleman of Christiansborg, who died intestate on the 1st of April,
1958. Against the plaintiff’s application two persons, one a paternal
half-sister and the other a paternal half-brother, entered a joint caveat.
After the procedure laid down in Rules 18 and 20 had been complied with, the
plaintiff issued a writ of summons against the two caveators, in pursuance of
an order of the Court made in that behalf as provided by Rule 21 (2). After
pleadings had closed, the plaintiff on the 6th of January 1958 filed under
Order 30 rule 1 a summons for directions, and had it fixed for hearing on the
19th January, 1959.<o:p></o:p><o:p>&nbsp;</o:p>On the
10th of January, 1959 Emma Kwaley Shang also entered a caveat to the
application which the plaintiff had made for grant of letters of
administration. On the 19th of January, 1959 the plaintiff caused warning to
issue to her calling upon her to file her affidavit of interest. On the same
date (19th January) the summons for directions came before the Court, and was
adjourned to the 26th of January, 1959. On the 22nd of January Emma Shang duly
obeyed the warning, and filed her affidavit of interest, a copy of which was
served on the plaintiff on the 24th of January. Her obedience to the warning
constituted another dispute relating to the administration of the estate of the
deceased intestate.<o:p></o:p>When the
summons for directions in the suit (which had been issued in consequence of the
first caveat) came before the Court on the 26th of January, leave was granted
to the then defendants to withdraw their caveat and also the defence which they
had filed to the plaintiff’s statement of claim. They were therefore struck out
from the suit. The Court there and then made an order amending the writ of
summons by joining Emma Kwaley Shang as a defendant to the suit; but it made no
further order as to service of the writ or notice on the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>Before us
it is contended on behalf of the defendant Shang that joinder at that stage of
the proceedings was ultra vires the Court, because firstly , the original
defendants having withdrawn their defence and having been struck out from the
suit, the action abated, and no further order could be made in it; and
secondly, as regards the caveat entered by Emma Shang, the stage had not been
reached at which the Court could direct the plaintiff to issue a writ of
summons against her.<o:p></o:p><o:p>&nbsp;</o:p>It was
further argued on behalf of Emma Shang that the order of the Court joining her
as defendant was made in a purported exercise of the powers given to the Court
under Order 16 rule 11, and that the subsequent proceedings are null and void,
because there was no proof of service of copy of the amended writ or notice
upon the defendant as required by the rule.<o:p></o:p>Order 16
rule 11 reads as follows:-<o:p></o:p>“No cause
or matter shall be defeated by reason of the misjoinder or non-joinder of
parties, and the Court may in every cause or matter deal with the matter in
controversy so far as regards the rights and interests of the parties actually
before it. The Court or a Judge may, at any stage of the proceedings, either
upon or without the application of either party, and on such terms as may
appear to the Court or a Judge to be just, order that the names of any parities
improperly joined, whether as plaintiffs or as defe</main>