It is clear therefore, that the writ filed in March 1995 by the Plaintiff as the “intended administrator” of his son’s estate cannot
be valid if this was the only capacity in which the action was brought.
However, the Plaintiff purports also to bring the action as a dependent under section 10 of the Compensation to Relatives Act. Counsel for the Defendant submits that the dependants are not listed as parties and that no amendment should be entertained at this
stage.
Section 10 of the Compensation to Relatives Act provides:
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“Where in any of the cases provided for bs Act it happens that there is no executor or administratorrator of the deceased person,
or that there being such executor or administrator no action as hereinbefore mentioned is within six months after the death of the
deceased as hereinbefore mentioned brought by and in the name of the executor or administrator, then such action may be brought by
and in the names of all or any of the persons, if more than one, for whose benefit such action would have been if it had been brought
by and in the name of the executor or administrator.
(2) Every action so brought shall be for the benefit of the same person or persons and shall be subject to the same procedure as nearly
as may be as if it were brought by and in the name of the executor or administrator.”
The deceased’s father is undoubtedly a beneficiary of his son’s estate by virtue of section 6(1)(e) ofSuccession, Probate and Administration
Act Cap. 60. Howeverwever, the writ itself is not issued by him as beneficiary of the estate, the reference to the writ being brought
on behalf of the beneficiaries, is contained in paragraph 19 of the writ of summons.
Order 6 Rule 3 of the High Court Rules provides:
nbsp; “Before a writ is issued it must be indorsed -
(a) &nbbsp; where the plaintiesnties in a representative capacity, with a statement of the cahe capacity in which he sues.”
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The Supreme Court Practice (1997) at page 46, Para 6/3/1 states that this rule -
“.... requires the representative capacity, if any, of the plaintiff and the defendant to be indorsed on the writ before it is issue
is the indorsement on the the writ and not the statement in the title which is mere description (Bowler -v- John Mowhem & Co. (1954) 1 WLR 1445.”
In this case, the indorsement on the writ, atgraph 1 states clearly:
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “The Plaintiff is the intendministrator and is suing on behalf of his son’s estate, deceased who was born on the 17th 17th day of
March 1986.”
Can this defect be rectified by amendment? Order 20 Rule 1 states that amendment withoute may not be effected in relation to an amendment
which conh consists of an alteration of the capacity in which a party to the action sues or is sued. Order 20 Rule 5 allows for amendment
with leave “to alter the capacity in which a party sues ... if the new capacity is one which that party had at the date of commencement
of the proceedings or has since acquired.” The discretion to allow amendment exists even after the limitation period has expired
(Order 20 Rule 5(2)).
No application for amendment has been made. Plaintiff’s counsel did not appear at the hearing of this application. Itot known whether
the Plaintlaintiff is now administrator, or whether, he wishes to proceed under section 10 of the Compensation to Relatives Act. The last sign of activity from the Plaintiff was July 1995.
