Akrong and Another v. Bulley [1965] GLR 469

Material Facts:

Akrong, the first defendant-appellant, hit one Ayitey Bulley with a car belonging to the second defendant-appellant. Ayitey Bulley later died, and the plaintiff-respondent, Bulley, the mother of Ayitey Bulley, issued a writ against the defendants claiming damages under the Fatal Accidents Acts, 1846-64. The plaintiff sued in her capacity as “successor and next-of-kin” of the deceased. The plaintiff later applied to the court to amend the title of the suit by prefixing to the words “successor and next-of-kin” the words “personal representative.” The application was granted without opposition, but no application was made to amend the endorsement on the writ in a similar manner.

At the trial court, the capacity of the plaintiff to sue as “successor and next-of-kin” of the deceased was challenged by the defendant-appellants. Per the defendant-appellants, the plaintiffs had not obtained letters of administration at the date of issuing the writ (conceded by the plaintiffs) and consequently did not have any legal capacity to sue.

Procedural History:

On capacity, the trial judge held that the plaintiff was a beneficiary and was entitled to sue under the Fatal Accidents (Amendment) Act, 1864. The defendants appealed against this ruling.

Issue:

Whether or not the plaintiff had the capacity to issue the writ before obtaining letters of administration.

Arguments of the Plaintiff:

That the plaintiff sued in four capacities: successor, next-of-kin, personal representative, and dependant. That as dependant, the plaintiff's capacity to sue under the Fatal Accidents (Amendment) Act, 1864, and the other capacities were mere surplusage and could be disregarded.

Arguments of the Defendant-Appellants:

1. That the plaintiff did not disclose any legal capacity to sue.
2. That the plaintiff was not a personal representative at the date of the issue of the writ and therefore had no capacity to sue.
3. That per the cases of Ingall v. Moral and Hilton v. Sutton Steam Laundry, an administrator has no cause of action vested in him before he has obtained letters of administration and that a writ issued by him in that capacity before obtaining a grant is a nullity.
4. That the above cases also hold that where an administrator who is also a dependant issues an invalid writ in his representative capacity, the court would not allow an amendment making the writ one issued in a personal capacity.

Holding:

The plaintiff did not have the capacity to issue the writ, and the writ is a nullity.

Ratio Decidendi:

The plaintiff was suing in a representative capacity and was obliged to show in the endorsement of the writ in what capacity she brought the action. In the writ, the plaintiff stated her capacity as “successor and next-of-kin.” The question is whether a successor and next-of-kin has the capacity to sue under the Fatal Accidents Act. Under the Act, only the following classes of persons have capacity to sue:

1. The executors and administrators (personal representative)
2. The dependants.

In the present case, the plaintiff was neither an executrix nor an administratrix at the date she issued the writ. Consequently, their lordships are of the view that “no cause of action was therefore vested in her, and she could not and did not commence a competent action.”

When the plaintiff commenced the action in the High Court, she did not profess to sue as a personal representative. However, she subsequently obtained leave to amend the title of the suit to include a claim by her as a personal representative (administrator or executor), which would have granted her capacity to claim under the Fatal Accidents Act. Although the leave was granted and the amendment made, the amendment amounted to nought (of no effect) as the writ itself was a nullity and void ab initio because she was not a personal representative (executor or administrator) at the time the writ was issued and could therefore not sue under the Fatal Accidents Act.

Finally, their lordships noted that the plaintiff could have simply brought the action in her capacity as a dependent, and the present dispute would not have arisen because she had that capacity and could also sue under the Fatal Accidents Act as a representative. She instead decided to bring the action in a capacity she did not have, thereby rendering the writ, the proceedings, and the judgement founded upon it a nullity.

Principles in Case:

1. A writ issued by a person who lacks capacity is a nullity, and so are the proceedings and judgment founded upon it.
2. Where a writ is null, an amendment to the writ is of no effect.
3. A person’s capacity to institute an action may be prescribed by statute.