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December 9, 1986
HIGH COURT
GHANA
CORAM
JUDGMENT OF AMMAH J.
This is an application on notice filed on 10 February 1986 raising a preliminary legal point:
“(a) whether or not originating summons is the appropriate process in this case, where to the knowledge of the plaintiffs there are contentious issues or issues of fact in which there is no agreement;
(b) whether or not the affidavits herein disclose disputed issues; and
(c) Whether or not in the face of the Court of Appeal judgment in Korblah II alias Tetteh v. Odartei III [1980] G.L.R. 932, C.A. the instant originating summons, should be dismissed in limine.”
On 9 April 1985 the plaintiffs issued an originating summons directed against the defendants for the determination of certain questions as stated in the originating summons touching on the estate of Charles Ahia Bill deceased. The originating summons was supported by an affidavit setting out the facts relied on. The defendants on 27 March 1986 filed in opposition a corrected affidavit by order of the court.
In arguing the present preliminary point, counsel for the defendants referred to certain paragraphs of the affidavit in support of the originating summons and submitted that they had been controverted by other paragraphs of the defendants affidavit in opposition filed on 27 March 1986 and thus it could not be rightly said that the facts were or are undisputed. Counsel further contended therefore that it was wrong for the plaintiffs to come by originating summons and if anything at all, they should have come by ordinary writ of summons. In support he referred to the Court of Appeal decision in Korblah II alias Tetteh v. Odartei III (supra).
Counsel for the plaintiffs opposed the application. He contended that the case referred to by the counsel for the defendants was not applicable. He contended that the plaintiffs had brought their action under Order 54, r. 15 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), and that there were no disputed facts about the questions raised for determination on the originating summons, and that it was unnecessary to come by ordinary writ. He referred to the case of In re Deadman; Smith v. Garland [1971] 2 All E.R. 101.
In my view some of the depositions in the affidavit in opposition may be irrelevant, but those relevant would seem to controvert some of the depositions in the affidavit in support of the originating summons; that may render some of the facts to be disputed and could be resolved by evidence.
[p.708]
By the nat
AI Generated Summary
AMMAH J. considered a preliminary objection to the plaintiffs’ use of an originating summons to obtain determinations relating to the estate of Charles Ahia Bill, deceased. The plaintiffs commenced the originating summons on 9 April 1985 supported by affidavit evidence, and the defendants filed a corrected affidavit in opposition on 27 March 1986. The defendants argued that the affidavits contained controverted assertions, so the facts were disputed and the originating summons procedure, which proceeds on affidavit without cross-examination, was inappropriate, relying on the Court of Appeal’s guidance in Korblah II alias Tetteh v. Odartei III. The plaintiffs invoked Order 54, r. 15 and cited In re Deadman; Smith v. Garland. The judge found that relevant opposing depositions did controvert the plaintiffs’ affidavit, reiterated that affidavit evidence is not subject to cross-examination, noted the Doherty v. Doherty principle that originating summons is unsuitable for disputed facts, deemed Deadman inapplicable because English Order 28, r. 8(1) is absent from local rules, upheld the preliminary objection, directed a shift to the appropriate procedure and forum under Order 54A, r. 5, and made no order as to costs.