KOMBIA vs. LAARI AND ANOTHER [1989]DLHC2034

Date	1989-07-07
Suit No.
Citation No.	[1989]DLHC2034

BENIN J.

I. MAHAMA FOR THE PLAINTIFF.

AGYEKUM-KWATIA FOR OSEI BONSU FOR THE DEFENDANTS.

[1989]DLHC2034
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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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KOMBIA<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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">LAARI AND ANOTHER<o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p>[1992] 2 GLR 343<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>I. MAHAMA FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AGYEKUM-KWATIA FOR OSEI BONSU FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF BENIN J.<o:p></o:p>There was an accident on 15 March 1986 on the Tamale-Buipe road
involving a vehicle owned by the second defendant and at the material moment,
driven by the first defendant through which the plaintiff’s son, Kobbina
Kombia, a fare-paying passenger, met his death. The plaintiff as the father and
administrator of the deceased’s estate on 19 September 1987 sued out this writ
claiming certain reliefs against the defendant by virtue of the Civil Liability
Act, 1963 (Act 176). The defendants personally entered an appearance and later
filed a statement of defence per their solicitor. Summons for directions was
taken and the suit set down for hearing. On the hearing date counsel for the
defendants raised what he called preliminary legal objections, namely:<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(i).&nbsp;&nbsp;
that since the letters of
administration was taken in the joint names of the plaintiff and Akosua Bawa
(the widow), the action should have been instituted in their joint names; and<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-top:0in;margin-right:0in;margin-bottom:
5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;text-indent:-.25in;
mso-pagination:none;mso-list:l0 level1 lfo1;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes">(ii).that since
there is an infant beneficiary, the action should be taken by his next friend
and this should be clearly indicated by the writ.<o:p></o:p>He therefore submitted that the action was not properly before the
court. In reply, counsel for the plaintiff said the defendants having entered
an appearance and filed a defence without raising any objection to the writ,
cannot now be heard to say the action was not properly before the court.<o:p></o:p>The objection, simple as it appears to be, raised very pertinent
points in procedure. The first question is, should all the administrators join
in an action on behalf of the dependants? I think the letters of administration
was granted to the two persons in response to the demands of section 77 (1) of
the Administration of Estates Act, 1961 (Act 63) which reads in the relevant
part that: “. . . administration shall, if there is any beneficiary who is an
infant . . . be granted either to a trust corporation, with or without an
individual, or to not less than two individuals.”<o:p></o:p>The rationale for this provision is clear that it aims at ensuring
that the infant’s interest is safeguarded at any time, which is better secured
if administration is vested in more than one person. It would thus appear that
the court, by the grant of the letters of administration to two or more
persons, wants them all to act in concert or one on behalf of the others but
with their knowledge and approval; in other words one should not act
arbitrarily or exclusively in order to ensure unity of purpose and interest. In
this vein it would seem that all the persons granted letters of administration
must join in an action on behalf of the estate or if only one administrator
takes the action it must be on behalf of the others also and this no doubt will
also avoid possible multiplicity of actions by or against the estate. But then
it will appear also that where only one of the administrators sues it is merely
irregular procedurally as the other party is entitled to ignore or waive it or
he may take steps to get the other administrator joined to the suit. In this
action the defendants, who have filed an unconditional appearance and filed a
defence without raising any objection, will be deemed to have waived the defect
as a mere irregularity within the meaning of Order 70, r. 2 of the High Court
(Civil Procedure) Rules, 1954 (L.N. 140 A). And even the objection itself was
not properly raised in the sense that it should have been on summons under
Order 70, r. 3 of L.N. 140A.<o:p></o:p>Be that as it may, this action has been taken not on behalf of the
estate but on behalf of the dependants of the deceased. The letters of administration
was taken to administer the deceased’s estate under Act 63. The capacity to sue
is conferred by Act 176 whereby even the dependant can sue without being an
administrator. Under Act 176, s.16 (3) a plaintiff need only, to establish that
he is a personal representative or dependant of the deceased in order to have
the capacity to sue. Personal representative is defined by section 108 (1) of
Act 63 to include the “administrator for the time being of a deceased person.”
The plaintiff as father of the deceased is also a dependant within the meaning
of section 15 (a) and the First Schedule to Act 176 so that he could bring this
action in either or both capacities as administrator and/or dependant. Section
16 (3) of Act 176 by allowing “all or any of the dependants” to bring an
action, means that either or all the personal representatives may also sue, if</main>