The instant action was commenced on 18/08/11 by one Opanin Joseph Adubofour who described himself as the Customary successor of the late Opanin Kwadwo Gyimah alias Kwadwo-Aboasu and the current Abusuapanin of his immediate Oyoko family. He has brought this action for and on behalf of the said Oyoko Family of Dawu- Jamasi against the Defendant who is a beneficiary under the Will of Opanin Kwadwo Gyimah for the under listed claims:

a. A declaration that the Cocoa Farm and Secondary Forest mentioned in paragraphs 3, 4 and 5 of the Will of the late Opanin Kwadwo Gyimah @ Kwadwo Aboasu of Dawu-Jamasi, which Will was executed on the 11^th day of December, 2007, are the properties of the Plaintiff's immediate Oyoko family they being part of a large family land and so the late Opanin Kwadwo Gyimah had no testamentary power over them.

b. An order that the Defendant attones tenancy to the Plaintiff's immediate family over the said farm and secondary forest.

The Plaintiff's case as contained in his statement of claim filed on 18/8/11 is that his great-grand mother by name Obaapanin Donkor alias Nana Donkor cultivated the disputed land at Akasaeso or Atta ne Attaso at Dawu when it was a virgin forest. It is his case that a portion of the said land was given to the testator who is a grandson of Nana Donkor to farm on, but after his death, the family discovered that he had devised that portion of land to his wife, the defendant herein, in his Will. The Plaintiff alleged that the property shares boundaries with the properties of Madam Boya, Mr. Nti, Opanin Biowuo, Osei Yaw, Madam Mansah, Brobbey Awuah and Agya Yaw. The Plaintiff further asserted that not knowing the Executors in the said Will dated 11/12/2007, he decided to take action directly against the Defendant.

By an affidavit of service sworn on 06/09/11, it is indicated that the writ of summons and statement of claim were served on the Defendant personally at Abuakwa- Kumasi on 01/09/11. On 11/10/11, counsel for the Plaintiff conducted a search to, inter alia, ascertain whether the Defendant had entered appearance and the answer was negative. He then brought an ex-parte application on 04/05/12 and prayed the court to enter judgment in default of appearance against the Defendant.

On 17/05/12, the court (differently constituted), entered judgment against the Defendant as follows:

“The search report shows that defendant has failed to enter appearance even though served with the plaintiff's writ. The application has merit and same is granted as prayed. Default judgment is hereby entered for the plaintiff per his claims in default of the defendant's appearance. Suit adjourned to 1/6/2012 for plaintiff to prove his title."

A hearing notice was served on the Defendant personally on 10/07/13 and proof of that service is contained in an affidavit of service filed on 20/11/13. The hearing date shown on the said hearing notice was 17/07/13. On 17/07/13, the court adjourned the case to 20/11/13 because a copy of the entry of interlocutory judgment said to have been served on the Defendant was not on the docket. For the same reason and there being no evidence of service on the Defendant, the court again adjourned the case to 12/12/13. But, on 29/11/13, the entry of interlocutory judgment and a hearing notice were served on the Defendant personally.

After a couple of adjournments, the Plaintiff mounted the witness box on 06/02/14 to prove his title. The previous sitting was on 21/01/14 and counsel for the Plaintiff sought an adjournment and the same was granted. I have perused the record and to my surprise the Defendant was not served with a hearing notice in respect of the 06/02/14 hearing. In my view, the Defendant ought to have been served with a hearing notice because the adjournment was at the instance of the Plaintiff's lawyer, the service on 29/11/13 notwithstanding.

That apart, the capacity in which the Defendant has been sued raises a serious legal issue which cannot be glossed over. In Ghana, by virtue of the Administration of Estates Act, 1961, (Act 63), an executor becomes vested with the properties of a testator after his death unless a contrary intention appears from the Will. Thus, the law is well settled that executors and administrators are the proper persons to sue and be sued in respect of the properties they hold in trust or estate. This position was well illustrated in the case of Okyere (Decd) (substituted by) Peprah v Appenteng & Adomaa (2012) SCGLR 65. In holding (5), the Supreme Court indicated that the decision of the Court of Appeal was a statement of the old common law position and held that:

The law in Ghana, after the enactment of the Administration of Estates Act, 1961( Act 63), was different. The correct legal position was that a devisee could not sue or be sued in relation to the devised property before a vesting assent had been executed in his or her favour. Accordingly, in the absence of a vesting assent executed in favour of the second defendant, she could neither sue or be sued on her devises..."

In addition to the above position of the law, the provisions of order 4 rule 13 of CI 47 cannot be ignored. It states:

Representation of beneficiaries by trustees

13. (1) Trustees, executors or administrators may sue and be sued in their capacity as such without joining any of the persons who have beneficial interest in the trust or estate.

(2) A judgment or order given or made in such proceedings shall bind those persons, unless the court in the same or other proceedings otherwise orders on the ground that the trustees, executors or administrators could not or did not in fact represent the interests of those persons in the earlier proceedings.

(3) This rule is without prejudice to the power of the court to order a person who has beneficial interest to be made a party to the proceedings or to make an order under rule 12

The combined effect of Order 4 rules 12 and 13 of C.I. 47 is that the court has power to join beneficiaries to suits even when vesting assent has not been executed in their favour. That notwithstanding, the position of the law that a beneficiary of an estate cannot sue or be sued until a vesting assent has been executed in that persons favour remains unchanged. Put differently, the court has power to join the beneficiary but a Plaintiff cannot on his own sue a beneficiary when a vesting assent has not been made in his or her favour. It seems a bit confusing but that is the current position of the law.

A court is not precluded from considering the capacity in which a person has sued or has been sued. I think the position stated in Yorkwa v Duah (1992-93) 1 GBR 278 should also be applicable to persons who have been sued in a wrong capacity. It was held in that case as follows:

“Where a person’s capacity to institute proceedings was in issue, it was no answer to give that person a hearing on the merits even if he had a cast iron case. Even though the point of respondent’s capacity was not raised at the trial it involved a serious point of law that the trial judge ought to have considered.” Sarkodie I v Boating II (1982-83) GLR 881 cited.

In the case before me, the fact that the Plaintiff alleged that he did not know the executors does not in itself give him the right to sue the beneficiaries directly contrary to the legal position. Had the Plaintiff conducted a diligent search, he would have ascertained the identities of the said executors.

Under the circumstance, I will set aside the interlocutory judgment entered against the Defendant on 06/02/2015 under the inherent jurisdiction of the court and the same is hereby set aside. Further, I dismiss the suit against the Defendant since she cannot in law be sued at a time when no vesting assent has been executed in her favour.