ARMAH AND ANOTHER v. QUAGRAINE

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]

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 procee