JUDGMENT OF TAYLOR J.S.C.
Ref.: Administration of Estates Act, S.61
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.
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  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:
“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”
And he concluded his ruling with the final decision:
“I dismiss the action against both defendants with liberty to the plaintiffs to institute a fresh action—if so advised—upon proving probate.”
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.)
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 opinion to respond in depth to this argument of the respondents’ counsel. Besides the fact that these other considerations were not the grounds on which the ruling was founded, the proper procedure if it is sought to attack the writ with the statement of claim on the ground that it discloses no reasonable cause of action, should have been to have recourse to the provision of Order 25, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), for that purpose.
The question around which this appeal revolves and which in my opinion this court is called upon to decide, is whether the ruling of the court against which the plaintiffs have appealed can be supported having regard to the ratio decidendi adopted by the learned judge to
sustain his conclusion. In other words are the plaintiffs disbarred from instituting the action by reason of the fact that they had not proved the will and had not obtained probate?
Section 61 of the Administration of Estates Act, 1961 (Act 63), provides: “61. A grant of probate is necessary to entitle an executor to administer the property, whether movable or immovable, of the testator. Before probate, the executor may, for the benefit of the estate, exercise the functions which pertain to his office but he shall not be entitled to make a disposition of any property.”
(The emphasis is mine.)
In my view the provision of section 61 of Act 63 would seem to indicate that apart from denying an executor power to actually alienate the testator’s property or administer or otherwise dispose of it in accordance with the terms of the will, the executor’s right as a representative of the testator commences from the date of the death of the deceased and not from the date of grant of probate, with the result that before probate, he can sue.
In any case, the status of an executor under the common law unlike that of an administrator is that his title dates from the death of the testator. The position was very neatly stated by Lord Parker of Waddington in Meyappa Chetty v. Supramanian Chetty  1 A.C. 603 at 608, P.C. He there said:
“It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator’s death, and the consequence is that he can institute an action in the character of executor before he proves the will.”
This view finds support in English cases like the decision of Pearson J. in In re Masonic and General Life Assurance Co (1885) 32 Ch.D 373 at 374 and in In re Pawley and London and Provincial Bank  1 Ch.D 58 and a number of old cases cited in Halsbury’s Laws of England (3rd ed.), Vol. 16 at p. 133. In Halsbury’s Laws of England (3rd ed.), Vol.1 at p. 17, para. 24, it is stated as follows: “An executor derives his title from the will and may therefore commence an action before probate.” And in Halsbury’s Laws of England (3rd ed.), Vol. 16 at p. 133, para. 202 the point is reiterated: “As an executor derives his title from the will and not from the grant of probate, he may commence an action as executor before probate…”
In view of the legal position, I think the ruling of the learned High Court judge dismissing the plaintiffs’ action in limine for want of
probate as is stated in the said ruling is erroneous in law. I will therefore allow the appeal, set aside the ruling of the learned judge and order the case to continue its normal course.
MENSAH BOISON J.A. I agree.
OSEI-HWERE J.A. I also agree.