MARY TETTERLEY BILL & ORS v. EMMANUEL ABEKA BILL

J U D G M EN T

ATUGUBA JSC delivered the judgment of the court. The plaintiffs-respondents-respondents (hereinafter referred to as the plaintiffs) sued the defendant-appellant-appellant (hereinafter referred to as the defendant and the co-plaintiff-respondent-respondent in the High Court, Accra in an estate matter in respect of which the latter two are the administrators, having been granted letters of administration.

Owing to opposing attitudes by these administrators towards the suit, the High Court, upon the plaintiffs' application, struck out the co-plaintiff who was then the second defendant, and joined him in his current position, as the co-plaintiff.

When trial opened, the plaintiffs called three witnesses. They testified. However, when the co-plaintiff was called by the plaintiffs as the fourth plaintiff witness, the defendant's counsel, Mr Nii Amponsah, upon his being sworn, raised an objection on the grounds that: first, having renounced administration he must act jointly with the defendant; and second, that he has not pleaded any facts upon which he could testify.

This objection is rather puzzling. The co-plaintiff, as stated (supra) was called as "the fourth plaintiff witness" and was proceeding to testify in that capacity, and not as a co-plaintiff when counsel raised his objection. It is trite law that unless incompetent, a party can testify as a witness: see sections 58 and 59 of the Evidence Decree, 1973 (NRCD 323). No allegation of incompetence arising from those provisions is made against the co-plaintiff as a witness, to wit, the fourth plaintiff witness. That being so, objection could be taken if he purported to testify on matters that ought to have been pleaded by the plaintiffs but have not been pleaded. Even then, such objection could not be based on competence but on admissibility of evidence. That is not what transpired here. This suffices to dispose of this matter.

However, as the issue of the competence of the capacity of the co-plaintiff has engaged arguments from counsel on both sides and the considerable attention of the Court of Appeal, it is better to deal with it. It is said that when the trial court granted the plaintiffs' application for the second defendant to be struck out from the suit as defendant and rather joined him as a co-plaintiff, no appeal was taken therefrom and that ought to conclude the issue. However, capacity being a fundamental issue, the plea of its forceclosure cannot prevail.

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