JUDGMENT OF ANIN J.A.
The defendants-appellants appealed from only a part of the judgment of the Accra High Court dated 28 October 1965 and reported in [1965] G.L.R. 619, while the plaintiffs-respondents (who were substituted for the original plaintiff, now deceased) filed a notice of contention imploring that the said judgment should be varied. Since both parties have in the event cross-appealed from parts of the same judgment, I shall refer to them simply as the plaintiff and the defendants respectively.
The main facts of the case are as follows: The late Joseph Peter Oconnor Biney, who died in 1910, was the father of the plaintiff and grandfather of the defendants. By a deed of settlement dated 12 March 1901 (exhibit A), he conveyed his freehold land with building thereon measuring 100 ft. by 100 ft. situated on the Korlena, James Town, Accra (now numbered D.540/1 Bruce Road and popularly known as "Bineyville") to his two brothers and a cousin, namely, Joseph Cobblah Biney, Charles Biney and Adolphus Joseph Ashun, as life tenants; thereafter to his four children as remaindermen, namely, the plaintiff, Claudius William Biney, [p.322] Lily Mensimah Biney and Hendrick Frederick Bart Biney, "their heirs, and assigns" forever.
At the date of the plaintiff's originating summons, all the donees with life interests and the remaindermen under the deed of settlement bad died, with the exception of the plaintiff, who was the sole survivor of the remaindermen. It was undisputed by the parties that the settlor (J. P. O. Biney, deceased) acquired from the Sempe stool a tract of land adjoining the area of 100 ft. by 100 ft. specifically conveyed by the deed of settlement (exhibit A); that this extra land was subsequently integrated into and treated as one whole with the demised land; and that the entire area was popularly referred to as "Bineyville."
In his evidence, the plaintiff alleged that Joseph Cobblah Biney, a former head of family, partitioned "Bineyville" into two parts and granted one part to the plaintiff and the other to the plaintiff 's brother Hendrick, the father of the defendants. Thereafter Joseph Cobblah Biney permitted the plaintiff to erect buildings on the portion granted him and to make extensions to the original building known as "Bineyville."
After reviewing the relevant evidence, the learned trial judge held first, that upon the death intestate of J. P. O. Biney, the accretion to "Bineyville," (which was not conveyed by exhibit A) bec
