MARY TETTERLEY BILL & 5 ORS AND ROBERT ALEXANDER ATTUGUAYE COLLEY vs. EMMANUEL ABEKA BIL [2006]DLSC2426

MARY TETTERLEY BILL & 5 ORS AND ROBERT ALEXANDER ATTUGUAYE COLLEY vs. EMMANUEL A... [2006]DLSC2426

Date	2006-06-28
Suit No.	CIVIL APPEAL NO.J4/7/2004
Citation No.	[2006]DLSC2426

ATUGUBA J.S.C. (PRESIDING)

GEORGINA WOOD J.S.C

PROF OCRAN J.S.C

ANSAH J.S.C

ANINAKWAH J.S.C.

NII AMPONSAH FOR APPELLANT.

ADUMUAH-BOSSMAN FOR RESPONDENT

[2006]DLSC2426
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													<main id="main" class="content" style="min-height: 60rem" >MARY TETTERLEY BILL &amp; 5 ORS AND ROBERT ALEXANDER
ATTUGUAYE COLLEY<o:p></o:p>vs.<o:p></o:p>EMMANUEL ABEKA BIL<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO.J4/7/2004<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">

DATE: 28TH JUNE, 2006.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NII
AMPONSAH FOR APPELLANT.<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">

ADUMUAH-BOSSMAN
FOR RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ATUGUBA,
J.S.C. (PRESIDING), GEORGINA WOOD, J.S.C., PROF OCRAN, J.S.C., ANSAH, J.S.C., ANINAKWAH
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M EN T<o:p></o:p>&nbsp;ATUGUBA JSC delivered the judgment of the
court.&nbsp; The
plaintiffs-respondents-respondents (hereinafter referred to as the plaintiffs)
sued the defendant-appellant-appellant (hereinafter referred to as the
defendant and the co-plaintiff-respondent-respondent in the High Court, Accra
in an estate matter in respect of which the latter two are the administrators,
having been granted letters of administration.<o:p></o:p>Owing
to opposing attitudes by these administrators towards the suit, the High Court,
upon the plaintiffs' application, struck out the co-plaintiff who was then the
second defendant, and joined him in his current position, as the
co-plaintiff.&nbsp; <o:p></o:p>When
trial opened, the plaintiffs called three witnesses.&nbsp; They testified.&nbsp; However, when the co-plaintiff was called by
the plaintiffs as the fourth plaintiff witness, the defendant's counsel, Mr Nii
Amponsah, upon his being sworn, raised an objection on the grounds that: first,
having renounced administration he must act jointly with the defendant; and
second, that he has not pleaded any facts upon which he could testify.&nbsp; <o:p></o:p>This
objection is rather puzzling.&nbsp; The
co-plaintiff, as stated (supra) was called as "the fourth plaintiff
witness" and was proceeding to testify in that capacity, and not as a
co-plaintiff when counsel raised his objection.&nbsp;
It is trite law that unless incompetent, a party can testify as a
witness:&nbsp; see sections 58 and 59 of the
Evidence Decree, 1973 (NRCD 323). No allegation of incompetence arising from
those provisions is made against the co-plaintiff as a witness, to wit, the
fourth plaintiff witness. That being so, objection could be taken if he
purported to testify on matters that ought to have been pleaded by the
plaintiffs but have not been pleaded.&nbsp;
Even then, such objection could not be based on competence but on
admissibility of evidence.&nbsp; That is not
what transpired here.&nbsp; This suffices to
dispose of this matter.<o:p></o:p>However,
as the issue of the competence of the capacity of the co-plaintiff has engaged
arguments from counsel on both sides and the considerable attention of the
Court of Appeal, it is better to deal with it.&nbsp;
It is said that when the trial court granted the plaintiffs' application
for the second defendant to be struck out from the suit as defendant and rather
joined him as a co-plaintiff, no appeal was taken therefrom and that ought to
conclude the issue.&nbsp; However, capacity
being a fundamental issue, the plea of its forceclosure cannot prevail.<o:p></o:p>It
is trite law that no matter how a void order has come to the knowledge of a
superior court, the same must be addressed.&nbsp;
In Hayford v Moses [1980] GLR 757 at 761 Sarkodee J held as follows:<o:p></o:p>&nbsp;"Mr Sekyi-Hughes, learned counsel for the
defendant&nbsp; submitted that in as much as
the parties are co-administrators the action against the defendant is not
maintainable.&nbsp; As a general rule if there
are several executors and administrators, they have a joint and entire interest
in the estate of the testator or intestate which cannot be divided.&nbsp; Accordingly, they cannot maintain an action
at law to protect the deceased's property against one another the reason being
that a person cannot sue himself either alone or jointly with others: see Ellis
v Kerr [1910] 1 Ch 529."<o:p></o:p>&nbsp;This principle is general but no
absolute.&nbsp; In Acquaah v Larbi [1980] GLR
629 at 635-636, Edward Wiredu J (as he then was) said:<o:p></o:p>&nbsp;"One thing which should be borne in mind
in this action is that the defendant is a party to this action and has the
right to challenge the capacity of the person seeking to bring to court.&nbsp; The plaintiff is not his landlord; he is a
tenant of the estate of the deceased Koi Larbi whose legal representatives are
three of whom the plaintiff is one.&nbsp; The
common law position with regard to actions commenced by executors on behalf of
an estate is that as plaintiffs all proving executors must join and those who
refuse must be joined as defendants.&nbsp; If
there are two or more executors, all those who are of full age and have proved
the will should join as plaintiffs in an action: see Williams on Executors and
Administrators (14th ed), para 1834 and Bullen &amp; Leake's Precedents of
Pleadings (11th ed), s 22 at p 203.<o:p></o:p>With regard to non-joinder of one or
two or more executors, Werderman v Societe General&nbsp; d'Electricite (1881) 19 Ch D 246 is an
authority for the proposition that the only objection which a defendant could
take is to take out a summons to have the others joined as plaintiffs.&nbsp; Where they refuse to join as plaintiffs the
one suing should bring them in as defendants: see Gandy v Gandy (1885) 30 Ch D
57, CA. Had the position been that the plaintiff had sued alone as an executor
one would not have taken the defendant's objection seriously."<o:p></o:p>&nbsp;Indeed, the contention that administrators
must necessarily act together and on the same side as parties to an action in
all situations whatever practical and serious problems may be entailed thereby
appears so irrational that as a common law rule it cannot hold sway.&nbsp; The maxim cessat ratione cessat lex ipsa
would control such an absurdity.&nbsp; Even
statutes are construed, as is well-known, to avoid absurdity, inconvenience,
etc where possible. It is not surprising therefore that In re Moore (1888) P 36
where an executor had, before probate and without the assent of his
co-executor, intermeddled in the estate and made preparations to dispose of a
portion of it, the court gave leave to the co-executor to issue a writ against
him claiming an injunction to restrain him from dealing with the estate before
probate and praying for the appointment of a receiver.<o:p></o:p>