HIGH COURT, KUMASI
Date: 14 NOVEMBER 1974
KORANTENG-ADDOW J
NATURE OF PROCEEDINGS
APPLICATION by originating summons for a declaration that the plaintiff as mother and head of family of her deceased son was the sole owner of certain movable properties left by the deceased.
COUNSEL
Kofi Sackey for the plaintiff.
Hayfron-Benjamin for the defendants.
JUDGMENT OF KORANTENG-ADDOW J.
In this originating summons the plaintiff in her capacity as mother and head of family of the deceased Dr.
Gabriel Blankson-Hemans is calling upon the court to decide two issues, namely:
“(1) Whether or not by virtue of the proceeding of the High Court, Kumasi, of 12 October 1971 and the consequent order of the said court of the same date (which proceedings and order of the said court
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are annexed hereto), the plaintiff herein is the bona fide owner and entitled to the immediate delivery to her by the defendants hereto, who are wrongfully in possession of the subject-matter of the said order of 12 October 1971 (being medical instruments which were listed in an affidavit deposed to by the plaintiff herein of 1 September 1971 a copy of which is attached hereto).
(2) Whether or not the failure of the defendants hereto to comply with the said order of 12 October 1971 does not amount to contempt of court and the attachment and committal to prison of the said defendants until the said order of 12 October 1971 is complied with.”
At the hearing of the summons Mr. Hayfron-Benjamin, learned counsel, for the defendants took a preliminary objection to the propriety of the summons. He argued that the plaintiff did not fall within the class of persons who, under Order 54, r. 15 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), could take out such a summons. He submitted that as mother and head of family the plaintiff, as such has no locus standi. Mr. Kofi Sackey, learned counsel for the plaintiff argued against this proposition contending that the mother fell under the class of cestui que trust who were contemplated by the rule. Again he contended that the mother was in law the customary successor of the deceased, and that she could take out such a summons. In my view the rule, that is Order 54, r. 15 of L.N. 140A, caters for two situations —a situation in which some relief is sought by persons interested in the administration of the estate of a deceased person and that in which persons interested in a trust deed seek some relief appertaining to the trust. The marginal note to the rule makes this plain. Order 54, r 15 reads: “The executors or administrators of a deceased person or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to he interested in the relief sought as creditor, devisee, legatee, next-of-kin, or heir-at-law or customary heir of a deceased person, or as cestui que trust under the trust of any deed or instrument, or as claiming by assignment or otherwise, under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable in the chambers of a Judge for such relief of the nature or kind following, as may by the summons be specified and as the circumstances of the case may require (that is to say), the determination, without an administration of the estate or trust, of any of the following questions or matters:
(a) any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next-of-kin, or heir-at-law, or cestui que trust;
(b) the ascertainment of any class of creditors, legatees, devisees, next-of-kin, or others;
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(c) the furnishing of any particular accounts by the executors or administrators or trustees, and the vouching (when necessary) of such accounts;
(d) the payment into court of any money in the hands of the executors or administrators or trustees:
(e) directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees;
(f) the approval of any sale, purchase, compromise, or, other transaction;
(g) the determination of any question arising in the administration of the estate or trust.”
The marginal note reads: “Originating summons relating to express trusts or the administration of the estate of a deceased person. R.S.C. O. 55, r. 3.” In my view therefore it could not be said that her interest in the estate or its administration in any way makes Madam Monney a cestui que trust to enable her to take out such a summons. I would, however, hold that as the mother of the late Dr. Gabriel Blankson-Hemans she is, until a substantive customary successor has been appointed, the parties being Akans, the proper person to be regarded as successor. She is the customary heir of the deceased: see on this Sarbah’s Fanti Customary, Laws (2nd ed.), pp. 101 and 102. She could therefore in a proper case take out such a summons. The reliefs sought by her in this summons, in my view, take away her right to take out this summons. They have nothing to do with the administration of the estate of her late son. She claims in her own right as owner of the properties involved. She is in that sense like any person making such a claim. She is not doing so as a person interested in the estate. And in that capacity she is excluded from the classes of persons for whom these reliefs under Order 54, r. 15 of L.N. 140A were fashioned. The application will therefore not be entertained. It is dismissed. There will be costs assessed at 025.00 in favour of the respondent.
DECISION
Application dismissed.
S. E. K.
