ASIEDUA v. KORANTENG AND OTHERS

JUDGMENT OF APATU-PLANGE J.

On 18 September 1980, the plaintiff herein who claims to be the widow of the late Geofrey Francis Djomoah applied [p.514] by originating summons for the determination of the following questions:

(1) That by virtue of article 32 (2) of the Constitution, 1979, the plaintiff who is the widow of the deceased is entitled to one-third of the estate of the said Geofrey Francis Djomoah, being a reasonable share of the said estate.

(2) By virtue of the attached regulations of the Presbyterian Church which was subscribed to by the deceased, the plaintiff is entitled to one-third of the estate upon the inventory of the estate of the deceased.

The plaintiff in her application stated clearly that the originating summons has been taken under Order 54, r. 15 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A).

Before this originating summons could be heard, the defendants filed a motion asking this court to strike out the said originating summons as being inappropriate in the circumstances. This motion was supported by a five-paragraph affidavit. Counsel for the defendants in moving the motion sought to rely on Order 54A, rr. 1 and 2 which provide:

"1. 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.

2. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed."

Counsel for the defendants submitted that the gist of the whole case presently before this court is whether or not the plaintiff was married to the deceased, and that being the case, this issue cannot be settled by originating summons but by a substantive suit. Counsel therefore invited this court to strike out the originating summons as being misconceived.

In reply counsel for the plaintiff submitted that the plaintiff's originating summons has not been taken under Order 54A, rr. 1 and 2 but rather under Orders 54, r. 15 and 60, r. 35, and therefore the plaintiff being a person claiming to be interested as a beneficiary [p.515] in the estate of the late Geofrey Francis Djomoah is entitled