AGBAJE AND ANOTHER v. BUCKNOR

JUDGMENT OF ARCHER J.

The plaintiffs have applied under Order 25, r.4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A), for an order striking out the statement of defence filed by the defendant and also for entry of judgment in their favour. In considering the application, I have found it necessary not to confine myself to the affidavits filed by both parties but to consider as well the whole of the pleadings so far delivered by the parties.

The facts of the case are very simple and straightforward. There lived in Ghana, one Arthur Joseph Eugene Bucknor who later died in Cape Coast on 19 September 1931, leaving an estate which included both movable and immovable properties. There is no indication that the deceased died testate but there is evidence that his lawful wife, Mrs. Joan Bucknor, at the time of his death was appointed administratrix. There is also evidence that before his marriage to the said administratrix, the deceased had been previously married lawfully under the Marriage Ordinance, Cap. 127 (1951 Rev.), to [p.619] one Augusta Margaret Bucknor, and the plaintiffs were the lawful children under the said earlier marriage.

In an administration suit No. 53/1949 in the then Divisional Court at Cape Coast, the plaintiffs took action against the administratrix, Mrs. Joan Bucknor, claiming account of her administration, and also claiming their shares in the estate as the lawful daughters of the deceased. To resolve their differences, the Divisional Court on 9 April 1953, made the following order:

"By consent, the plaintiffs are given three months from today's date in which to pay in respect of the movable and immovable properties the total value of the same into court, that is to say £2,410 9s. 6d. In the event of this not being done within the time stated all the property will be sold.

The only conclusion I can arrive at and the only possible construction I can place on this order is that by consent of the parties, the court ordered the estate of the deceased to be converted into ready cash with a right of pre-emption vested in the plaintiffs. The plaintiffs were unable to comply with the court's order of 9 April 1953 and a further extention of three months was granted them on 18 July 1953. The plaintiffs were able subsequently to transfer the sum of £2,410 9s. 6d. from Nigeria to the Divisional Court, Cape Coast. There is evidence from exhibit B (a cablegram received by the court on 3 October 1953) attached to the plaint