Kakraba v. Amidu [1987-88] 2 GLR 59.

HIGH COURT, ACCRA

AMMAH J.

JUDGMENT OF AMMAH J.

Ammah J. On 11 July 1985 the plaintiff instituted this action against the defendant. The title of the case is Ama Kakraba (c/o Kadore Chambers, Accra, as plaintiff) v. Alhaji Amidu (house No. 218, Akim Aseni, defendant).

On the indorsement the plaintiff ‘s claim is for: “¢235,000 general and special damages against the defendant for the negligence of his servant which caused the death of Ama Dapaa as per the statement of claim attached.”

The accompanying statement of claim is as follows:

“(1) The plaintiff is a farmer and sues for the estate of her sister Ama Dapaa who was killed in a lorry accident on 25 September 1982 at Kasewa.

(2) The defendant is owner of vehicle No. E.R. 4308 at all times material to this suit. 

(3) On 24 September 1982 the plaintiff’s sister Ama Dapaa (deceased) boarded the vehicle of the defendant as passenger for value from Akim Oda intending to travel to Accra.”

Paragraphs (4) and (5) averred that the defendant’s servant was in charge of the defendant’s vehicle and that he drove negligently. Particulars of negligence were also given. Paragraph (6) averred the age of Ama Dapaa deceased as 40 and earning ¢3,000 a month as a trader. Paragraphs (7) and (8) of the statement of claim read:

“(7) Ama Dapaa left behind five issues namely:

(i) Yaw Asante aged 18

(ii) Akosua Owusu aged 15

(iii) Yaw Appiah aged 12

(iv) Kwaku Adu aged 8

(v) Kojo Apentua aged 4

(8) By the death, the dependants of the deceased named above have suffered financial handicap.”

Paragraph (9) mentioned the deceased’s foodstuff costing ¢5,000 which got damaged and paragraph (10) averred the special and general damages being claimed.

The defendant was served with the writ of summons and the statement of claim on 11 November 1985.

He did not enter any appearance. The plaintiff therefore obtained interlocutory judgment in default of appearance on 21 July 1986. Notice of assessment of damages fixed for 30 September 1986 was served on the defendant but he failed to appear. The court adjourned to 7 September 1986 when evidence was heard. The plaintiff gave evidence and called Kofi Danso, head of her family and that of the deceased Ama Dapaa.

The evidence shows that the plaintiff is a younger sister to Ama Dapaa the deceased who earned ¢3,000 a month. The deceased had five children. She lost property worth ¢5,000 during the accident. The plaintiff in evidence said she was suing as next-of-kin in respect of the deceased’s estate. In support a registrar’s authority dated 20 June 1986 marked exhibit A was tendered.

There is a conflict in the evidence with regard to the funeral expenses incurred. The plaintiff mentioned ¢5,000 whilst her witness, the head of family, mentioned a funeral debt of ¢30,000 including the cost of coffin at ¢8,000. The plaintiff’s witness said he appointed the plaintiff to succeed her late sister. These facts constitute the substance of the plaintiff ‘s case.

At the end of the case and at the request of the court counsel addressed the court briefly. Counsel referred to Ollennu, Principles of Customary Land Law in Ghana at 154, and the case of Hammond v. 

Randolph (1939) 5 W.A.C.A. 42, P.C. on that page in support of his case. He further referred to section 61 of the Administration of Estates Act, 1961 (Act 63), Part 3. This section reads:

“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.”

Speaking for myself and having regard to the writ of summons together with the statement of claim I am of the opinion that the plaintiff’s action is founded under the Civil Liability Act, 1963 (Act 176), particularly section 15, 16 and 18. Section 16 (3) of Act 176 reads:

“(3) The action may be brought by the personal representative of the deceased or if, at the expiration of six months from the death, there is no personal representative or no action has been brought by the personal representative, by all or any of the dependents.”

It is clear from the section that a personal representative should bring the action, failing him and in certain cases a dependant as defined in section 15 of Act 176, which includes (a) a member of the family and (b) a person adopted under the Adoption Act, 1962 (Act 104) or the deceased is otherwise obliged to maintain, should bring the action. It is therefore very important for the plaintiff in the particular case to show the capacity in which she is suing. This should reflect in the title and the indorsement of the writ of summons to comply with the mandatory provisions of Order 3, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A).

The plaintiff fails to do this. There is nothing in the indorsement of the writ of summons and the statement of claim to state that the plaintiff is claiming as a “dependant” nor has there been any evidence to the effect that the plaintiff was deriving financial benefit from the deceased. In this connection, see Adam v. Patrick [1975] 2 G.L.R. 155 at 157 and Addai v. Attorney-General [1976] 2 G.L.R. 412. It is true that when evidence was heard on 7 and 8 October 1966 the plaintiff was described as a sister to the deceased, next-of-kin and a successor, but at no time was an application made to amend the title and the endorsement to that effect as was done in the case of Akrong v. Bulley [1965] G.L.R. 469, S.C., where Apaloo J.S.C. (as he then was) reading the unanimous judgment of the then Supreme Court explained clearly words, successor, next-of-kin in the context of that case and concluded that each could not in law in that particular case be construed as a 

dependant. In the same way a sister of a deceased person might not necessarily be a of [1987-88] 2 GLR 59-64 dependant of the deceased if there is no such evidence in support: see Shell Company of Ghana Ltd. v. Ayimavor [1971] 1 G.L.R. 51 at 55, C.A. I hold that in this case the plaintiff lacked capacity as a dependent to sue. This is fatal if the plaintiff is suing as a dependant. But it would appear that the tendering of the registrar’s authority suggests that the plaintiff took the action as a personal representative or administratrix of the estate of the deceased.

The registrar’s authority is dated 20 June 1986. This means the plaintiff instituted this action at a time when she had not obtained the registrar’s authority. What is the position of the law in such circumstances? The action must be brought by and in the name of the executor or administrator and in Ghana, at times by the dependent as I have said earlier. The executor’s title to sue exists from the date of death of the deceased, but an administrator’s title exists only from the grant to him of letters of administration or the registrar’s authority. If therefore, a plaintiff brings an action as administrator or administratrix but has not obtained a proper grant when proceedings are commenced, the action is a nullity: see the English cases of Ingall v. Moram [1944] K.B. 160; Hilton v. Sutton Steam Laundry [1946] K.B. 65, C.A. and Finnegan v. Cementation Co. Ltd. [1953] 1 Q.B. 688, C.A. All these cases were cited with respectful approval and applied in the local case of Akrong v. Bulley (supra). It is true the Akrong case (supra) was based on the English Fatal Accidents Acts, 1846-64. These Acts were repealed by our Act 176 which as I have stated above governs this case, but I think the principles are the same. In the instant case, at the time the plaintiff took this action on 11 July 1985 she was not clothed with the registrar’s authority (dated 20 June 1986). This means that the plaintiff lacked capacity in law to sue and her action is a nullity. I have found the Akrong case (supra) to be very instructive and feel fettered by it. It follows in law that the subsequent proceedings and the interlocutory judgment given in favour of the plaintiff have become nugatory. I do not regard the references made by counsel for the plaintiff in his address to be relevant to this case. It is therefore with a deep heart and regret that I would dismiss this action.