IN RE KWAAYIE (DECD.); BOADIWAA v. KOBI PRACTICE NOTE
July 9, 1968
HIGH COURT
GHANA
CORAM
- ANNAN J
Areas of Law
- Civil Procedure
- Probate and Succession
July 9, 1968
HIGH COURT
GHANA
CORAM
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JUDGMENT OF ANNAN J.
This is a motion to strike out a caveat filed by the caveatrix through her solicitors, and the application is based on the ground that the caveatrix has neglected to file an affidavit of interest after [p.646] service of the warning of the applicant. The preliminary issue which arises for determination is whether service was properly effected of the warning—namely whether the caveatrix was warned in terms of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 60, r. 17. That rule requires that, "The person filing the caveat shall be warned by a warning in writing." In the present case the certificate of service shows that there was no personal service on the caveatrix. Service was effected on her solicitor who had filed the caveat. After some initial doubt as to whether service effected on the solicitor should not be sufficient service on "The person filing the caveat," I have come to the conclusion that rule 17 requires service on the caveatrix herself and I so hold. In the circumstances the preliminary issue must be settled in favour of the caveatrix respondent. The motion therefore cannot be granted and I dismiss it. I order that the warning be served on the caveatrix personally.
DECISION
Application refused.
D. R. K. S.
AI Generated Summary
In a probate-related motion before the Supreme [High] Court, Justice Annan considered whether a caveat lodged by a caveatrix could be struck out for failure to file an affidavit of interest following service of a warning. The certificate of service revealed that the warning had been served not on the caveatrix personally but on her solicitor who had filed the caveat. Applying Order 60, rule 17 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which requires that the person filing the caveat be warned by a warning in writing, the judge concluded that proper service demands personal service on the caveatrix. The preliminary issue was resolved in favor of the caveatrix, and the motion to strike out was dismissed, with directions that the warning be personally served on her. The decision underscores strict compliance with procedural service requirements before adverse steps may be taken against a caveat.