JOHNSON ANGMOR TETTEH & ANOTHER v. PASTOR HAYFORD LARSON
2013
COURT OF APPEAL
GHANA
CORAM
- DUOSE, J.A. (PRESIDING)
- AYEBI, J.A.
- DORDZIE (MRS.), J.A
Areas of Law
- Civil Procedure
- Probate and Succession
- Property and Real Estate Law
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiff/respondent sought to substitute the head of family for the deceased defendant to satisfy a judgment. The trial judge granted the substitution, basing his decision on Order 4 Rule 7(2) of C.I. 47, which was improper. The appeals court held that the appropriate rule for substitution in such cases is Rule 6 of Order 4 of C.I. 47, which deals with substitution of parties upon death. The court concluded that the head of family has no right to be substituted unless the estates interest or liabilities devolve onto them by law. The appeal was allowed, and the substitution order was set aside.
JUDGMENT
AYEBI J.A.
This appeal is against the ruling of an Accra High Court dated 30th November, 2011. In the said ruling the trial judge granted the application of the plaintiff/respondent to substitute the Wekumatse Tetteh Okudum for the deceased defendant Johnson Angmor Tetteh.
The background to that application for substitution is that the plaintiff/respondent obtained a judgment on 22nd June 2007 against the deceased defendant Johnson Angmor Tetteh for the sum of ¢132,998.048 (GH¢13,290.80). In his bid to execute the judgment, plaintiff/respondent served an entry of judgment followed by a writ of fi:fa on the deceased defendant. Some movable properties of the deceased attached and auctioned only fetched GH¢1,668.42.
The plaintiff/respondent identified a house at Tema as the property of the defendant. But before the plaintiff/respondent could proceed to attach the house, the defendant died on 7th May 2010. It is the case of the plaintiff/respondent that the action survives the defendant/judgment debtor. So it is provided in rule 6(1) of Order 4 of C.I. 47 that where a party dies but the cause of action survives, the action shall not abate by reason of death of that party. And according to s.23 of the Civil Liability Act 1963 (Act 176), a cause subsisting against a person shall on his death survive against the estate of the deceased.
It is for this right the plaintiff/respondent has against the estate of the deceased that he sought to substitute the defendant/appellant herein for the deceased defendant/judgment/debtor. According to plaintiff/respondent, the application was brought under Order 4, rule 7(2). Although the defendant/appellant resisted the application, the trial judge granted it. In this appeal, the defendant/appellant prayed this court to reverse the said order of substitution and discharge him on the following grounds:-
(i) The ruling is against the weight of the submission made before the court.
(ii) The trial judge misconstrued the provision of the High Court (Civil Procedure) Rules, 2004 C.I. 47 contained in Order 4 rule 7(1) and (2) and erred in ruling that the head of family is a proper person to be substituted for the defendant in an action which is personal and not a family matter.
(iii) The trial judge failed to consider Order 6 rule 2 of C.I. 47 and erred in implying that the interest of the deceased devolved onto the appellant.
Subsequently, appellant filed four additional grounds as follows:
1. The learned trial judg