ZENABU KUBLENU (PLAINTIFF) vs. HAJAJ IBRAHIM DANKANI (DEFENDANT) [2019]DLHC7054

Date	2019-07-04
Suit No.	SUIT NO. E12/73/19
Citation No.	[2019]DLHC7054

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.

PHILIP NKRUMAH ESQ. FOR THE PLAINTIFF/RESPT.

JOHN MERCER ESQ. FOR THE DEFENDANT/APPLCT.

[2019]DLHC7054
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ZENABU KUBLENU<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>HAJAJ IBRAHIM DANKANI<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH
COURT, SEKONDI]<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">

SUIT
NO. E12/73/19&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; DATE: 4TH JULY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>PHILIP
NKRUMAH ESQ. FOR THE PLAINTIFF/RESPT.<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">

JOHN MERCER ESQ. FOR THE
DEFENDANT/APPLCT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>The plaintiff in this case is the
daughter of one Adisa Kublenu (now deceased). In her lifetime, the said mother
was sued in the Circuit Court Takoradi by the defendant herein for inter alia
declaration of title to House No. 38/19, 1st Avenue, Zongo, Sekondi.
The Circuit Court, in default of defence on the part of the mother gave
judgment for the defendant herein. It appears that at the time the relevant
notices were given and the judgment was entered by the Circuit Court, the
mother was dead. If that was the case, then clearly that judgment was a
nullity.<o:p></o:p>Now the plaintiff is before his
court for an order to set aside the judgment of the Circuit Court. It does not
appear too clearly the plaintiff’s reason for coming to this court instead of
the Circuit Court. I would have thought that that was the most appropriate
forum. That is where the substantive action was pending. If at the end of the
day this suit succeeds, she will still have to go back to that court. Be that
as it may I agree that once the allegation is that the judgment was void, this
court’s jurisdiction can be invoked to set aside the judgment. The authority
for this is the REPUBLIC VRS HIGH COURT, KUMASI EX PARTE ASARE ADJEI
(2007/2008)2 SCGLR 914. At page 918 of the report, BROBBEY JSC noted: “If a judgment is void, it would not have
mattered which court set it aside.” DARTEH-BAH JSC also observed in the same
case at page 921 that if a judgment or ruling was void, any court in principle
can set it aside.<o:p></o:p>Now having issued out the instant
writ of summons to have the judgment of the Circuit Court set aside, the
defendant upon entering an appearance filed the instant motion for an order to
dismiss the suit on grounds that it was frivolous and vexatious and otherwise
an abuse of the court’s process. The application has been brought under Order
11 rule 18(2) of CI 47 and the inherent jurisdiction of this court. <o:p></o:p>At the hearing of the application,
this court posed a more fundamental question as to the plaintiff’s locus standi
in bringing the instant action. The plaintiff obviously was not a party in the
Circuit Court suit. She does not sue as an administrator or personal
representative of her mother’ estate. Her writ does not disclose any interest
in the Circuit Court suit and nothing is said of the capacity in which she is
before this court. Going by the writ and statement of claim, she has sued just
because her mother was the defendant in the suit in which the impugned judgment
was given. <o:p></o:p>In posing the question, I was mindful
of the normal practice where capacity is challenged by the adversary for issue
to be joined on the question. However, I thought given the peculiar nature of
this suit where the plaintiff is before this court for only a procedural relief
and not to contest any matter of substance, the question could be raised at
this preliminary stage. After all capacity affects the validity of the writ
itself.<o:p></o:p>On this question, Learned Counsel
for the plaintiff is of the view that the plaintiff could file the suit as
daughter of the deceased who by law has an interest in the estate. I disagree
with this position. <o:p></o:p>The fundamental point to be made in
the first place is that looking at the remedies on trial at the Circuit Court the
cause of action in the Circuit Court suit no doubt survived the mother. Sections
22 and 23 of the Civil Liability Act 1963 (Act 176) on survival of cause of
action state:<o:p></o:p>“22.
A cause of action vested in a person shall on death survive for the benefit of
the estate of that person.”<o:p></o:p>“23.
A cause of action subsisting against a person shall on death survive against
the estate of that person.”<o:p></o:p>The provisions imply that the right
to pursue the suit at the Circuit Court including proceeding to set aside the
judgment before it or any other court became vested in the estate of the late
mother. Consequently, it was those who by law were vested with the power to
deal with the estate that could file a suit in connection with matters of the
estate. And who were they? They were the administrators of the estate or the
personal representatives of the deceased. By definition, an administrator is
the person to whom administration has been granted. Personal representative
means the executor, the original or by representation, or the administrator for
the time being of a deceased person. See section 108 of the Administration of
Estate Act, 1961 (Act 63). In effect, the plaintiff could only sue upon obtaining
letters of administration in connection with the estate of the late mother.<o:p></o:p>In INGALL VRS MORAN (1944) KB 160,
it was held that as a general rule, proceedings instituted by a person who at
the time had no standing because he had not taken out letters of administration
was an incurable nullity.<o:p></o:p>The local case on this point is IN
RE APPAU (DECD), APPAU VRS OCANSEY (1993-94)1 GLR 146.<o:p></o:p>The Court of Appeal in that case
decided, as reported in part of holding 1 thus:<o:p></o:p>“(1)the
general rule was that since an administrator derived his authority entirely
from the appointment of the court, a party who was entitled to administration
could not do anything as an administrator before letters of administration were
granted to him.” <o:p></o:p>