ARMAH AND ANOTHER v. QUAGRAINE [1960] GLR 132

DIVISION: IN THE COURT OF APPEAL

DATE: 30TH MAY, 1960

BEFORE: KORSAH, C.J., VAN LARE AND GRANVILLE SHARP, JJ.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Adumua-Bossman, J, in proceedings instituted by originating summons.

The facts are fully set out in the headnote and judgment.

COUNSEL

C.F. Hayfron-Benjamin for the appellant.

Danquah for the respondent.

JUDGMENT OF GRANVILLE SHARP J.A.

The proceedings in the trial court before Adumua-Bossman, J. from whose decision this appeal was brought were instituted by originating summons pursuant to the provisions of Order 54, rule 4 of the Rules of the High Court.

The relief sought was as follows:

“(1) The interpretation of paragraph 12 of the will of J. E. Biney, deceased dated 11th August, 1936.

(2) The interpretation of paragraph 11 of the Codicil to the said will dated 9th September, 1936.

(3) And whether under the provisions of the said will and codicil the defendant as Administrator of the Estate of J. B. Apprey, deceased, is entitled to administer the estate of the said J. E. Biney (deceased).”

[p.134] of [1960] GLR 132

Order 54, rule 4 provides inter alia that “An originating summons shall be in the Form No. 2, 3 or 5 Appendix K to these Rules, with such variations as circumstances may require.” The form used in the present case purported to be No. 2, which as printed in Appendix K contains the following direction as to the title: “ If the question to be determined arises in the administration of an estate or a trust, entitle it also in the matter of the estate or trust.” It is to be noted that this direction was not followed by the practitioner who settled the summons in the instant case. This in itself might be thought to be a small matter. It may well be so, but small matters are often of considerable consequence. The plaintiff in the suit, Armah, claimed relief “on his own behalf and on behalf of some of the beneficiaries under the Will and Codicil of J. E. Biney (deceased) Cape Coast “, and this relief he claimed against “ K. A. Quagraine, Administrator of the Estate of J. B. Apprey (deceased), Cape Coast.” Quite clearly the practitioner must have entertained considerable doubt whose was the estate in the administration of which the question arose to be determined — Biney’s or Apprey’s. The importance of this will appear later, it being the contention of the defendant before us that the procedure chosen by the plaintiff was wholly inappropriate and incompetent, and that the learned judge, in the circumstances, should have held (a) that the defendant was not the proper party to be served, and (b) that an originating summons was not the proper procedure.

J. E. Biney died, and left both a will and a codicil. He appointed four executors, who (after administering their trust as such executors) vacated their office. They were all deceased at the date of these proceedings. Among other provisions of the will and codicil J. E. Biney named J. B. Apprey “ to be my sole heir and administrator of all my estate.” On the death of J. B. Apprey the defendant became his undisputed successor. As such successor to Apprey, and having obtained letters of administration as to personalty,

Quagraine claimed (on the footing that Apprey was the heir of Biney, and therefore inheritor of, inter alia, Biney’s realty) that he, Quagraine was now entitled to deal with and dispose of realty formerly the property of Biney, it having become the inheritance and property of Apprey. After issue and service of the originating summons, and after a question had been submitted to the

Cape Coast Municipal Court (the answer to which resulted in Kwami Gyesi being joined as a plaintiff as the undoubted head of the family of J. E. Biney of Tuakwa in the Abura State) it was agreed between the parties that the questions to be determined, and the relevant facts above shortly set out, should be fully presented in the form of a case stated for the consideration of the trial court. It is not necessary more fully to refer to these matters, which are not now material to a decision of this appeal. When the case stated came before Adumua-Bossman, J. in the Divisional Court at Cape Coast, Mr. Benjamin for the defendant made a submission to the learned judge in the following form:

“I desire to raise an objection in limine to the effect that the originating summons is misconceived, in that the summons purports

[p.135] of [1960] GLR 132 to have been issued under Order 54 rr. 15, 16 and 17. I submit the defendant is not executor or administrator of the estate of J. E. Biney (with whose estate the Court is concerned) and by rule 17B he is wrongly served.”

The learned judge ruled: “I am unable to sustain the objection, which in any event by Order 25, r.2, should have been taken on the pleadings.” A case stated cannot be said to be a pleading, and there were in fact no pleadings before the court. Furthermore, the point raised was a point of objection based on such grounds as to make it open, to either party or to the court itself, to raise it at any stage.

We think, therefore, that the learned judge was in error when he rejected the objection. This court having so ruled, Mr. Benjamin was permitted to raise it as a preliminary ground of appeal. It was therefore the only point argued before us.

The material provision of Order 54, rule 17 is as follows: “ The persons to be served with the summons under the last two preceding rules in the first instance shall be the following; (that is to say,) . . . B. Where the summons is taken out by any person other than the executors, administrators or trustees, the said executors, administrators or trustees.”

The summons in the present case was under rule 15, viz: by a “person claiming to be interested in the relief sought as … devisee, legatee” under a deed or instrument. It related to the administration of the estate of a deceased person, and it is the cold fact that there were no executors or administrators of that estate upon whom service in accordance with rule 17B could be effected. They have vacated their office, and indeed were at the material time dead. Apprey, whose estate was brought in on the summons, was never an executor of Biney’s will, and had he been alive he could not in the first instance have been served. He was in fact dead, and the defendant was neither an executor of Biney’s will nor of any other will. Apprey died intestate, and the defendant was his successor under customary law. In the estate of Apprey the plaintiff could not pretend to have any interest whatever. In the circumstances it is not surprising that the originating summons was not entitled “ In the matter of the estate,” as it ought to have been if such had been possible.

Dr. Danquah sought to bring the case within the ambit of Order 54A, rule 1, which reads as follows:

“Any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.” All that needs to be said about this contention is that the same objections would arise as are stated above in relation to Order 54, rule 17B. The plaintiffs are not interested in any deed or instrument affecting Apprey’s estate, because none such exists. They are not, in my opinion, interested in any deed or instrument relating to Biney’s estate, and would find it difficult to justify a claim so to be. Their interest in the estate of Biney would arise, not under Biney’s will, but as members of Biney’s family under customary law.

[p.136] of [1960] GLR 132

It follows, in my opinion, from all this that the proceedings by originating summons was wrongly conceived, and that the summons was incompetent, and was irregularly served. The learned judge should have conceded to the submission of Mr. Benjamin. He in fact, tried the issues in an irregular and misconceived proceeding. In the interests of justice, and to make it clear that the plaintiffs’ rights (if any) are preserved, I would add that the question as to the defendant’s right to deal with property that the plaintiffs allege has not become his as successor to Apprey under customary law, could have been tried in an action by the plaintiffs for a declaration of title and damages. It remains open for the plaintiffs so to test the matter, but so far as the present case is concerned we allow this appeal.

DECISION

Appeal allowed.