Kombia v.Laari & Anor. [1992] 2 GLR 343.



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Benin J. There was an accident on 15 March 1986 on the Tamale-Buipe road involving a vehicle owned by the second defendant and at the

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material moment, driven by the first defendant through which the plaintiff’s son, Kobbina Kombia, a fare-paying passenger, met his death. The plaintiff as the father and administrator of the deceased’s estate on 19 September 1987 sued out this writ claiming certain reliefs against the defendant by virtue of the Civil Liability Act, 1963 (Act 176). The defendants personally entered an appearance and later filed a statement of defence per their solicitor. Summons for directions was taken and the suit set down for hearing. On the hearing date counsel for the defendants raised what he called preliminary legal objections, namely:

(i) that since the letters of administration was taken in the joint names of the plaintiff and Akosua Bawa (the widow), the action should have been instituted in their joint names; and

(ii) that since there is an infant beneficiary, the action should be taken by his next friend and this should be clearly indicated by the writ.

He therefore submitted that the action was not properly before the court. In reply, counsel for the plaintiff said the defendants having entered an appearance and filed a defence without raising any objection to the writ, cannot now be heard to say the action was not properly before the court.

The objection, simple as it appears to be, raised very pertinent points in procedure. The first question is, should all the administrators join in an action on behalf of the dependants? I think the letters of administration was granted to the two persons in response to the demands of section 77 (1) of the Administration of Estates Act, 1961 (Act 63) which reads in the relevant part that: “. . . administration shall, if there is any beneficiary who is an infant . . . be granted either to a trust corporation, with or without an individual, or to not less than two individuals.”

The rationale for this provision is clear that it aims at ensuring that the infant’s interest is safeguarded at any time, which is better secured if administration is vested in more than one person. It would thus appear that the court, by the grant of the letters of administration to two or more persons, wants them all to act in concert or one on behalf of the others but with their knowledge and approval; in other words one should not act arbitrarily or exclusively in order to ensure unity of purpose and interest. In this vein it would seem that all the persons granted letters of administration must join in an action on behalf of the estate or if only one administrator takes the action it must be on behalf of the others also and this no doubt will also avoid possible multiplicity of actions by or against

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the estate. But then it will appear also that where only one of the administrators sues it is merely irregular procedurally as the other party is entitled to ignore or waive it or he may take steps to get the other administrator joined to the suit. In this action the defendants, who have filed an unconditional appearance and filed a defence without raising any objection, will be deemed to have waived the defect as a mere irregularity within the meaning of Order 70, r. 2 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140 A). And even the objection itself was not properly raised in the sense that it should have been on summons under Order 70, r. 3 of L.N. 140A.

Be that as it may, this action has been taken not on behalf of the estate but on behalf of the dependants of the deceased. The letters of administration was taken to administer the deceased’s estate under Act 63.
The capacity to sue is conferred by Act 176 whereby even the dependant can sue without being an administrator. Under Act 176, s.16 (3) a plaintiff need only, to establish that he is a personal representative or dependant of the deceased in order to have the capacity to sue. Personal representative is defined by section 108 (1) of Act 63 to include the “administrator for the time being of a deceased person.” The plaintiff as father of the deceased is also a dependant within the meaning of section 15 (a) and the First Schedule to Act 176 so that he could bring this action in either or both capacities as administrator and/or dependant. Section 16 (3) of Act 176 by allowing “all or any of the dependants” to bring an action, means that either or all the personal representatives may also sue, if only it is to benefit the dependants. Alternatively, the widow who also has a dual capacity was entitled to act in either or both capacities. She could sue as joint personal representative claiming for the dependants, including herself, or could allow the other personal representative to sue alone claiming for her as a dependant. Section 16 (3) of Act 176 permits both procedures. I hold therefore that under Act 176 either or both personal representatives can sue for and on behalf of the dependants, and accordingly I overrule this ground of objection.

The second limb of the objection states that in view of the infant beneficiary the action should have been taken by his next friend. This objection no doubt falls under Order 15, r. 12(1) of L.N. 140A as substituted by the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 1977 (L.I. 1129) which provides that “A person under disability may not bring or make a claim in any proceeding except by his next friend.” The object of having a next friend is to give security for costs to the defendant. Thus where an infant plaintiff sues as an adult it is a

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mere irregularity which may be waived by the entry of an appearance unconditionally. In the same way if the next friend sues stating this fact in the accompanying statement of claim, but without stating it on the writ, the defendant may waive it as a mere irregularity since he will have the plaintiff to fall upon to recover his costs should he win the action. At any rate in this particular case the procedure is governed by Act 176 which as I have already said permits either the personal representative or the dependant to sue, and whoever sues must indicate he is suing for the dependants whose particulars he must provide the defendants under section 16 (5) of Act 176; which he may do either in the indorsement to the writ and/or preferably in the statement of claim. The dependant therefore need not be a party in the suit. The plaintiff having sued as personal representative did so in his own right as plaintiff and not as nominal plaintiff for the infant. This objection does not also hold and I reject same accordingly. The hearing of the case having been postponed because of this objection which was unnecessary, the plaintiff is entitled to costs and I allow him ¢3,000 for that.

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