BROWN v. DARKO AND ANOTHER

JUDGMENT OF OLLENNU J.

The plaintiff is a beneficiary under the will of the late Joseph Quao Arthur. The defendants are the executors named under the said will of which exhibit A is a copy of the probate. By her writ, the plaintiff claims two reliefs namely: (1) an order upon the defendants to execute a deed conveying to her a plot of land devised to her under the said will; and (2) an order for the payment of the sum of £G50 bequeathed to her under the said will.

Apart from pleading the devise and bequest, all the facts pleaded by the plaintiff in her four paragraphed statement of claim are contained in paragraph 3 of her said statement of claim which is as follows: "3. Since November, 1955 and despite requests the defendants have failed and still fail to convey the said land to the plaintiff and to pay to her the bequest of £G50".

The defence to the claim is that: (1) the land devised under the will cannot be identified and therefore no conveyance of it could be executed [p.541] in favour of the plaintiff, and (2) in any event the defendants as executors under the will of the testator are not under a legal obligation to execute a conveyance in favour of a devisee in respect of land devised to her.

The defendants counterclaimed for an amount of £G485, due to the estate as value of trinkets which they alleged were given to the plaintiff by the testator for sale. The defence filed to that counterclaim is as follows: "7. In further reply to paragraph 6, plaintiff avers that she does not owe the testator the alleged sum of £G485 being value of trinkets sold by her on the testator's behalf as averred or in any part of that sum or at all".

For a plaintiff to succeed on a claim for an order upon a defendant to execute a deed of conveyance of land to him, he must: (1) satisfy the court that the defendant is under a legal liability to execute the said deed for him, (2) identify the land to the court with specific particularity, and (3) prove to the court that he had tendered the necessary documents to the defendant for execution and that the defendant had refused to execute the same.

It was submitted on behalf of the plaintiff that as executors, the defendants are under a legal duty to assent to or execute a deed conveying to the plaintiff, a devisee under the will, the plot of land devised to her under the will. In support of that proposition of law, counsel cited the case of Attenborough v. Solomon1 a case which appears to have been based upon sections1