COLEMAN v. SHANG

JUDGMENT OF VAN LARE J.A. AS C.J.

Van Lare J. A. delivered the judgment of the Court: This is a judgment of the Court in the preparation of which we all participated. The proceedings in this case commenced with an application filed by the plaintiff in the Divisional Court under Order 60 rule 1 of the Supreme Court (Civil Procedure) Rules for grant of letters of administration in respect of the estate of his father, the late Stephen Coleman of Christiansborg, who died intestate on the 1st of April, 1958. Against the plaintiff's application two persons, one a paternal half-sister and the other a paternal half-brother, entered a joint caveat. After the procedure laid down in Rules 18 and 20 had been complied with, the plaintiff issued a writ of summons against the two caveators, in pursuance of an order of the Court made in that behalf as provided by Rule 21 (2). After pleadings had closed, the plaintiff on the 6th of January 1958 filed under Order 30 rule 1 a summons for directions, and had it fixed for hearing on the 19th January, 1959.

On the 10th of January, 1959 Emma Kwaley Shang also entered a caveat to the application which the plaintiff had made for grant of letters of administration. On the 19th of January, 1959 the plaintiff [p.396] caused warning to issue to her calling upon her to file her affidavit of interest. On the same date (19th January) the summons for directions came before the Court, and was adjourned to the 26th of January, 1959. On the 22nd of January Emma Shang duly obeyed the warning, and filed her affidavit of interest, a copy of which was served on the plaintiff on the 24th of January. Her obedience to the warning constituted another dispute relating to the administration of the estate of the deceased intestate.

When the summons for directions in the suit (which had been issued in consequence of the first caveat) came before the Court on the 26th of January, leave was granted to the then defendants to withdraw their caveat and also the defence which they had filed to the plaintiff's statement of claim. They were therefore struck out from the suit. The Court there and then made an order amending the writ of summons by joining Emma Kwaley Shang as a defendant to the suit; but it made no further order as to service of the writ or notice on the plaintiff.

Before us it is contended on behalf of the defendant Shang that joinder at that stage of the proceedings was ultra vires the Court, because firstly , the original d