The main issue that arises for determination in this appeal is whether non-compliance with Order 66 Rules 33(3) and 37(1) of C.I.47 before probation action is issued out, is a mere irregularity which can be set aside or renders the proceedings a nullity. Put differently, was the plaintiffs’ action competent or properly before the trial court?

The facts relevant to this appeal were as follows:

On 7^th August, 2015, the plaintiffs/respondents (hereinafter called the respondents) issued a writ of summons against the defendants/ appellants (hereinafter called the appellants in the High Court, Accra for the following reliefs:

“(1) A declaration that Getrude Otto’s line of inheritance is matrilineal and that the defendants have no business in intermeddling with the intestate estate of the late Getrude Akotaa Otoo.

(2) An order to set aside the grant of the Letters of Administration to the 1^st defendant.

(3) An order for the cancellation of the certificate issued to the 1^st defendant to administer the estates of the late Getrude Akotaa Otoo.

(4) An order to restrain the defendants assigns, agents, principal, etc. from intermeddling with the estate of the late Getrude Akotaa Otoo pending the final determination of this suit.

(5) An order as the court may deem fit to make.”

Upon service of the respondents’ writ and statement of claim, the appellants entered conditional appearance through their solicitor Dr. Ekow Daniels and Co on 1^st September, 2015 and followed it up the same day with a “Notice of Preliminary Legal Objection.” On or about 7^th October, 2015, the appellants filed a motion to set aside the writ of summons for non-disclosure of a reasonable cause of action in furtherance of their notice to raise preliminary objection.

The record of appeal indicates that on or about 10^th November, 2015 this application was argued by both parties after which the trial judge dismissed the appellants’ application to set aside the respondents’ writ.

Pursuant to the ruling dated 7^th December, 2015 against the appellants’ herein, they filed another motion on 19^th May, 2016 to set aside the writ of summons for want of jurisdiction.

In this second application, the appellants contended inter alia that the non-compliance with “notice to bring in grant” as provided in Order 66 rules 33(3) and 37(1) of C.I.47, which is a condition precedent for the commencement of an action for revocation of the grant of Letters of Administration, renders the respondents’ writ and statement of claim a complete nullity and ought to be set aside as same cannot be cured under Order 81 of the High Court (Civil Procedure) Rules, 2004 (C.I.47).

But the learned trial judge after hearing arguments from the parties, dismissed the appellants’ application on 28^th July, 2016. It is this ruling that the appellants’ disputes in this appeal on the following grounds:

“(a) The trial Judge erred in law when he dismissed the 1^st and 2^nd defendants’ applications to set aside the plaintiffs’ writ of summons and statement of claim as a nullity for the plaintiffs failure to call in th grant per Order 66 Rule 33(3) which is a mandatory condition precedent for the commencement of the action.

PARTICULARS OF ERROR OF LAW

The trial judge erred in law in not considering and applying legal position espoused in Ex parte Allgate Co. Ltd. (2007-2008) S.C.G.L.R. 1041.

(b) The trial Judge lacked jurisdiction as the plaintiff failed to comply with a condition precedent to invoke the jurisdiction of the court.”

I propose to take grounds (a) and (b) of the appeal together as they deal in the main, with the issues essentially as one.

Addressing these grounds of appeal, counsel for appellants in his statement of case submitted that the respondents did not comply with the mandatory rule of procedure that an intended plaintiff must first serve notice on the grantee of letters of administration to bring in the grant before issuing a writ as required by the High Court (Civil Procedure) Rules 2004, C.I.47, Order 66 rule 33(3) and 37(1) which provides as follows:

“33(3) Before a writ for the revocation of the grant of probate of a will or letters of administration of the estate of a deceased person is issued out, notice shall be given under rule 37, unless the probate or letters of administration has or have been lodged in the registry of the court.

37(1) Where an action is brought for the revocation of a grant of probate or letters of administration of the estate of a deceased person, the plaintiff shall serve a notice on the person to whom the probate or letters of administration is granted requiring the person to bring and leave at the registry of the court the probate or letters of administration.”

Learned counsel for the appellants submitted that Order 66 r.33(3) and 37(1) of C.I.47 provide that when a plaintiff intended to proceed against a defendant to whom letters of administration of the estate of a deceased person has been granted to be revoked, the intended plaintiff must first serve notice on the grantee of letters of administration to bring in the grant (court) before issuing the writ. However, counsel argued that, the plaintiffs (now respondents) did not comply with the provisions of Order 66 r.33(3) and 37(1) of C.I.47 which was then in force when they issued the writ of summons against the defendants/appellants herein.

In the view of counsel for the appellants, the non-compliance by the respondents to observe the mandatory notice required by the rules of court, before issuing the writ, meant or implied that the jurisdiction of the trial High Court was not invoked. The result is that the said breach was such a fundamental error which could not be treated as a mere irregularity as it goes to the root of the action and the whole proceeding was therefore void and a nullity.

The appellants therefore contended that the failure to serve notice to the appellants before the writ was issued and served on them was in breach of the condition required by the law as condition precedent for the validity of the proceedings. Consequently, the proceedings could not be validated by the subsequent act of the appellants in taking part in the proceedings. Neither could the proceedings be saved under Order 81 r.1(1) of C.I.47.

Counsel for the appellants cited the following cases to support his stand: Heward-Mills vrs. Heward-Mills and Ors (1992-93) G.B.R. 239. The Republic vrs. High Court, Accra. Ex parte Allgate Company Ltd. (Amalgamated Bank Ltd. Interested Party) (2007-2008) S.C.G.L.R. 1041.

To these submissions, counsel for the respondents replied by relying on Order 81 r.1 and 2(2) of C.I.47 which run as:

Non-compliance with rules not to render proceedings void

“1(1)    Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not (sic) be treated as an irregularity and shall not nullify the proceedings any step taken in the proceedings, or any document, judgment or order in it.

(2) The court may, on the grounds that there has such a failure as stated in subrule (1), and on such terms as to costs or otherwise as it considers just.

(a) Set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or

(b) Exercise its powers under these Rules to allow such amendments to make such order dealing with the proceedings generally as it considers just.

Setting aside for irregularity

2(2) No application to set aside any proceedings for irregularity shall be allowed unless it is made within reasonable time and the party applying has not taken any fresh step after knowledge of the irregularity.”

Counsel submitted that on the authority of the above-cited subsections, the issue of the failure to serve notice before issuing and serving the writ was a mere irregularity which the court could cure under Order 81 r.1 of C.I.47. He contended that the courts have held in many cases that non-compliance with the rules of procedure or any existing practice is a mere irregularity that does not automatically render proceedings following such non-compliance void.

Learned counsel for the respondents maintained that the irregularity or non-compliance complained of is not an irregularity that goes to jurisdiction or infringes on the constitution or any statute or is it against the rules of natural justice. Rather, the irregularity is only a breach of the rules of court. He therefore concluded that the irregularity herein is that, the respondents did not comply with Order 66 rule 33(3) and 37(1) of C.I.47, where upon the respondents failed to issue a notice requiring the appellants to deposit the letters of administration at the registry of the High Court, which was a mere irregularity of the rules of court which can be saved by Order 81 of C.I.47.

Counsel therefore invited the court to affirm the ruling of the trial court, the subject matter of this appeal and cited the cases of: Republic vrs. High Court, Accra, Ex Parte Allgate Company Ltd. (Amalgamated Bank Ltd. – Interested party) supra, and J.K. Kpogo substituted by Noble Kpogo vrs. F.K. Fiadzorgbe G.M.J. dated October 5, 2015 Part 89 (2015) 9 G.M.J. 52 S.C.

In the case of Republic vrs. High Court, Accra, Exparte Allgate Company Ltd. (Amalgamated Bank Ltd. – Interested Party) supra, Dr. Date Baah J.S.C. explained the position that Order 81 of C.I.47 did not apply to cases involving the non-compliance with the breach of a substantive Act of Parliament or Statutes, the rules of natural justice and lack or excess of jurisdiction by the courts. In the view of Date Baah J.S.C., these were the three exceptions to the provisions on non-compliance captured in Order 81 r.1(1) of C.I.47.

Guided by the above authority, it seems to me that under Order 81 r.1(1) of C.I.47, a distinction was drawn between a non-compliance which rendered the proceedings a nullity, in which case the court had no discretion and no jurisdiction to do otherwise than set the proceeding aside, and a non-compliance which merely rendered the proceedings irregular, in which case the court had a discretion to amend the defective proceedings as it thought fit.

So the question is: Can it be said that the respondents’ writ and the whole proceedings based thereon are invalid? In other words, was the failure to serve notice before issuing the writ a mere irregularity or a nullity? Or could the appellants waive this admittedly procedural blunder?

Faced with a similar question, Dr. Date Baah J.S.C. in the case of Republic vrs. High Court, Accra, Exparte Allgate Co. Ltd. (Amalgamated Bank Ltd. – Interested Party) (2007-2008) S.C.G.L.R. 1041 at 1054 delivered himself as follows:

“To summarise then, where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure) Rules, 2004 (C.I.47), such non-compliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the constitution or of a statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction.”

The Allgate case was about non-compliance with regard to service of court process. The Supreme Court in dismissing the application differentiated between Non-service and short service and came to the conclusion that whereas Non-service is a fundamental breach of the audi alteram partem rule and goes to the jurisdiction of the court, short service was not automatic and only a ground of setting aside any order made after such infringement or irregularity.

This brings me to the critical issue of whether the non-compliance complained of on the facts of the case goes to jurisdiction or is a mere irregularity.

If I understand counsel for the appellants, he is of the view that where an enactment (Order 66 r.33(3) of C.I.47) sets out a procedure for invoking the jurisdiction of a court or tribunal, the party must comply with it or he will be thrown out of court. He therefore contends that the failure to serve notice before issuing the writ, which is a condition precedent to the action, goes to jurisdiction and renders the proceedings a nullity.

With due deference to learned counsel for the appellants his contention cannot be right. This is because the same enactment (Order 81. R.1 of C.I.47) provides that with exception of breach of the Constitution, Acts of Parliament or Statutes other than rules of court, rules of natural justice and lack or excess of jurisdiction, non-compliance with any rules of court or procedure is a mere irregularity which does not render the proceedings a nullity.

In any event, the Supreme Court in a recent case of Republic vrs. High Court, Koforidua Exparte Ansa-Otu (Koans Building Solution Ltd.) – Interested Party) C.M.J. 5/41/2008, 13^th February, 2009, unreported, put a seal on the principle of non-compliance with rules of procedure when the court unanimously held that:

“the provision in Order 81 rule 1 and 2 of the High Court (Civil Procedure) Rules, 2004 (C.I.47), were not new for they had existed as Order 70 of the Old High Court (Civil Procedure) Rules, 1954 (LN 140 A), which were the extant rules at the time of the institution of the suit by the interested party. Both rules provided in clear terms that non-compliance with the rules of procedure would not render the proceedings null and void but was a mere irregularity, a voidable but not a void act which might be set aside on terms.”

Applying the above authority as my guide, it is patently clear that the non-compliance to serve a notice before issuing the writ in probate actions is to be regarded as an irregularity which does not cause automatic nullity. Simply put, the failure to serve notice before issuing the writ in the instant case, is a mere irregularity of the rules of procedure, a voidable but not a void act, which might be set aside on terms.

In any case, the record of appeal indicates that the appellants who were represented by the same counsel at the trial as in this appeal, were served with the relevant court processes – the writ of summons, statement of claim. The appellants not only entered conditional appearance but filed a statement of defence before filing the motion to set aside the writ of summons for want of jurisdiction on 19^th May, 2011. The appellants also participated in subsequent proceedings when an application for leave to intervene was filed by Michael Otoo and Christopher Otoo and even associated themselves with the submission of counsel for the respondents in that application. When the appellants did so, they became caught by Order 81 rule 2. For they had taken fresh steps after discovering the irregularity.

Indeed, Order 81 r. 2 of C.I.47 deals with applications to set aside irregularity. Proceedings are intended by these rules to be the day-to day steps in the action, which are rules of procedure, and not merely the cause of action on which they rest. It is pertinent to note that the wording of Order 81 r.2 of C.I.47, confirms my view that proceedings means the day-to-day steps in any action. And it is important to emphasise that proceedings can cure themselves of irregularity by delay, in the sense that the other party cannot rely on an irregularity unless he makes the complaint within reasonable time. See Smalley vrs. Robey & Co. Ltd. (1962) 1 All E.R.133 at 135 C.A. Similarly, proceeding can cure themselves of irregularity when the other party had taken a fresh step after discovering the irregularity. Hopper vrs. Oil & Fats Co. Ltd. (1992-93) G.B.R. 384 at 388 C.A.

In this appeal, I find that the appellants having taken part in the proceedings by filing their statement of defence and also participated in one or two applications after discovering the irregularity, the said proceedings have cured themselves of any irregularity arising therein. In other words, the appellants having taken fresh steps after knowledge of the irregularity, is caught by Order 81 r.2 of C.I.47 which is fatal to their case.

For these reasons, I am unable to fault the decision of the learned trial judge in refusing the appellants application to set aside the plaintiffs/ respondents writ and statement of claim as a nullity.

I would accordingly dismiss the appeal and order the parties herein to go back to the trial High Court, Accra, to continue the substantive case.