ARMAH AND ANOTHER vs. QUAGRAINE [1960]DLCA72

Date	1960-05-30
Suit No.
Citation No.	[1960]DLCA72

KORSAHC.J.

VAN LARE J.A

GRANVILLE SHARP J.A

C.F. HAYFRON-BENJAMIN FOR THE APPELLANT.

DANQUAH FOR THE RESPONDENT.

[1960]DLCA72
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													<main id="main" class="content" style="min-height: 60rem" >ARMAH AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>QUAGRAINE<o:p></o:p>&nbsp;[COURT
OF APPEAL]<o:p></o:p>[1960] GLR 132<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
30TH MAY, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

C.F. HAYFRON-BENJAMIN FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KORSAH, C.J., VAN LARE AND GRANVILLE
SHARP, JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF GRANVILLE SHARP J.A.<o:p></o:p>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.<o:p></o:p>The
relief sought was as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(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).”<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 </main>