GRACE AGBOKU & ORS. (PLAINTIFFS/APPELLANTS) vs. AUGUSTINE YAOVI AGBOKU & ORS. (DEFENDANTS/RESPONDENTS) [2004]DLCA7118

GRACE AGBOKU & ORS. (PLAINTIFFS/APPELLANTS) vs. AUGUSTINE YAOVI AGBOKU & ORS. (D... [2004]DLCA7118

Date	2004-02-19
Suit No.	CIVIL APPEAL NO. 18-2003
Citation No.	[2004]DLCA7118

ESSILFIE-BONDZIE J.A. (PRESIDING)

GBADEGBE J.A.

ANIN-YEBOAH J.A

CHARLES HAYIBOR FOR APPELLANTS

[2004]DLCA7118
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													<main id="main" class="content" style="min-height: 60rem" >GRACE AGBOKU &amp; ORS.<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>AUGUSTINE YAOVI AGBOKU &amp; ORS.<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. 18-2003&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;DATE: 19TH FEBRUARY, 2004.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;border:none;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;border:none;
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APPELLANTS.<o:p></o:p>

</div>CORAM:&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;&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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p>ESSILFIE-BONDZIE
J.A. (PRESIDING), GBADEGBE J.A., ANIN-YEBOAH J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>The decision of the Court
was read by Gbadegbe J.A. as follows: <o:p></o:p>The
question for our decision in this case is whether or not in commencing the
action in the court below the plaintiffs (hereinafter for convenience referred
to as the appellants) ought to have extracted a citation calling upon the last
surviving executor to bring into the registry of the High Court Accra the
probate of the will granted to them on the 29th of June 1994 in respect of the
deceased's estate in compliance with the provisions of Order 6 rule 6(1) of LI
1515? It is important to note that whiles the defendants (hereinafter for
convenience described as the respondents) were of the view that the action not
having been issue in compliance with the mandatory provisions of the said rule
was incompetent, the appellants took the view that since the reliefs which they
were demanding from the court did not seek a 'revocation' of the said grant
there was no need for them to comply with the rule. I must say that in the
court below and before us in these proceedings the parties took substantially
the same rival positions and as such this appeal arises within a narrow compass
for our determination whether having regard to the plaint of the appellants
their action suffered from a non-compliance with the rule in question which
reads thus: <o:p></o:p>"Where an action is brought for
the revocation of a grant of probate or letter of administration of the estate
of a deceased person the plaintiff shall serve a notice on the person to whom
the probate or letters of administration as the case may be was granted
requiring him to bring and leave at the Registry the probate or letters of
administration".<o:p></o:p>&nbsp;That the above rule is mandatory and a
non-compliance with it would invalidatesic an is not in issue. See (1) Heward
Mills vs: Heward Mills [1992] 1 GLR 153. It would appear from the proceedings
before us that the controversy which we have to determine turns on the question
whether or not the rule in question was applicable having regard to the plaint
as formulated by the appellants. It is the case of the appellants that their
claim did not seek a revocation of the grant of probate made by the court on
the 29th of June 1994, and therefore they were not required to comply with the
rule as decided in the Heward Mills case. I have examined the statements
submitted to us by the parties and come to the conclusion that in so far as the
appellants seek an order for the 'removal' of the 3rd respondent as the
surviving executor of the last Will and testament of Nichodemus Agboku which
relief if acceded to has the effect of recalling or bringing to an end the
office of executor to whom probate was earlier on granted the action seeks in
substance an order for the revocation of the grant made on 29th June 1994 by
the Court. It being so, in my opinion the failure to comply with the mandatory
provisions of Order 6 rule 6 (1) was fatal to their action as indeed the court
below found against them. <o:p></o:p>I wish to point out that
since the respondents objected to the competency of the action on the ground
which the appellants alleged as the basis of their claim for the removal of the
last surviving executor, this court has to consider the ground on which the
relief for removal was based and deem it as true for the purpose of considering
the objection. The compliant made by the appellant against the 3rd respondent
is that he had abandoned the testamentary instructions of the testator and by
his inaction enabled the 1st and 2nd respondents to resort to doing things
which were not directed in the last Will of the testator, hence the need for
his removal. In my thinking this complaint amounts to an allegation that he had
renounced his office as executor and was conducting himself in a manner that
was not in the interest of those beneficially entitled thereto. This charge in
my opinion though not claiming that the probate was granted fraudulently or
irregularly raises a matter which concerns the court's real object of ensuring
the due and proper administration of the estate and justifies the revocation of
the probate granted if proven. Therefore, in my view the mere fact that the
writ uses the word "removal" but not revocation should not deprive
the court from looking at the substance of the action to determine whether the
appellants ought to have satisfied the conditions of Order 6 rule 6 (1)
relating to the deposit of the probate in the Registry of the court. I think
that this is a clear instance in which the Court must look at the substance of
the action and not its mere form as expressed in the formulation of the reliefs
indorsed on the writ of summons. This approach calls for an examination of the
consequences which might result in the event of the grant of the claim of the
appellants. In the case of Re: Loveday, In the Goods of [1900] P 154 it was
said in the course of the judgment at page 156 as follows: <o:p></o:p>