CATHELINE AND ANOTHER vs. AKUFO-ADDO AND ANOTHER [1984]DLCA899

Date	1984-05-24
Suit No.
Citation No.	[1984]DLCA899

TAYLOR J.S.C.

MENSA BOISON JA

OSEI-HWERE J.A.

E. D. KOM (WITH HIM F. BADOHU) FOR THE APPELLANTS.

JOE REINDORF (WITH HIM ADUMUA-BOSSMAN) FOR THE RESPONDENTS.

[1984]DLCA899
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CATHELINE AND ANOTHER <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 57<o:p></o:p>

DATE:
24 MAY 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

E. D. KOM (WITH HIM F. BADOHU) FOR THE APPELLANTS.
<o:p></o:p>

JOE REINDORF (WITH HIM ADUMUA-BOSSMAN) FOR THE
RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

TAYLOR J.S.C., MENSA BOISON AND OSEI-HWERE JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.S.C.<o:p></o:p>The point
for decision in this appeal is really very simple. On 10 August 1982 the
plaintiffs as executors of the late Ofori-Panin Ofori Atta who died on 12 April
1982 sued the defendants claiming, certain reliefs. It is not necessary for a
decision in this case to advert to the facts or even the reliefs. The important
aspect of the case which dominated the reasoning of the High Court judge and
which led to this appeal is the undisputed fact that the plaintiffs as
executors had not obtained probate of the will of the deceased dated 17
December 1980 when they commenced the action.<o:p></o:p><o:p>&nbsp;</o:p>In a
motion filed on behalf of the defendants by their solicitor it was sought to
have the action dismissed in limine, inter alia, for want of locus standi. On
30 September 1982 the motion was heard, and on 2 November 1982 the learned High
Court judge delivered his ruling in which he relied on the English case, of In
re Crowhurst Park; Sim-Hilditch v. Simmons [1974] 1 W.L.R. 583 for his singular
holding in effect that the action was premature and consequently misconceived
since in his view the plaintiffs lack locus standi because they had not
obtained probate. As he put it:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Until
they prove probate, they will not be clothed with the necessary legal
personality to institute these proceedings against the company or a director of
it qua director. This argument of course finds support in Re Crowhurst Park”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>And he
concluded his ruling with the final decision:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“I dismiss
the action against both defendants with liberty to the plaintiffs to institute
a fresh action—if so advised—upon proving probate.”<o:p></o:p><o:p>&nbsp;</o:p>It is
against this decision that the plaintiffs have appealed to this court and in
their argument before us, advanced on their behalf by their counsel, they
specifically sought to convince us that the view of the law which found favour
with the learned trial judge was erroneous because in Re Crowhurst Park (supra)
far from supporting that view, did in fact repudiate it, for Goulding J. in
unmistakeable terms said of the plaintiff in the case at 590: “...the plaintiff
can sue before probate, but in the ordinary course she cannot obtain relief
from the court without producing a grant.” (The emphasis is mine.)<o:p></o:p><o:p>&nbsp;</o:p>The
defendants’ counsel in reply to the argument of learned counsel for the
plaintiffs sought to rely on the pleadings and the reliefs claimed, to argue in
effect that the plaintiffs have no cause of action and thus quite apart from
the ground upon which the learned High Court judge rested his decision, the
action he contended was properly dismissed for want of locus standi. It is not
necessary in my op</main>