2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiffs/appellants appealed against a High Court decision that dismissed their action due to the absence of a vesting assent. The appellate court upheld the lower court's judgment, affirming that a devisee cannot commence a lawsuit regarding devised property before a vesting assent is executed. The plaintiffs/appellants challenged the use of a property as collateral without their consent, leading to its sale after a loan default. The court concluded that the executors have authority over the estate until a vesting assent is issued, thereby denying the plaintiffs/appellants' capacity to bring the action. The appeal was dismissed in its entirety.
AGBEVOR, J.A.
The instant appeal is against the judgment of the High Court, Land Division, Accra dated 22nd day of December, 2016. The grounds of appeal are:-
a) The learned trial judge erred in holding that the non-issue of a vesting assent in favour of plaintiffs by the executors precluded them from commencing this instant action and this occasioned a substantial miscarriage of justice.
b) Judgment is against the weight of affidavit evidence.
c) Additional grounds of appeal would be filed on receipt of record.
No additional grounds were filed.
FACTS OF CASE
The plaintiffs/appellants case was that No. 24/3 East Nukwe Djourne, Nungua was the bona fide property of JONATHAN ODAI QUAYE (now deceased). In his last Will and testament dated 30th September, 1987 the testator devised the said house to his wife and children as beneficiaries of the said estate.
Probate was granted by the High Court, Accra on the 19th December, 1991 to the EXECUTORS but no vesting assent issued to the beneficiaries at all material times.
Other children of the testator that is the 6th, 7th, 8th and 9th defendants/respondents who are also beneficiaries of the estate, in an agreement with the 4th defendant represented by the 5th defendant used the said No. 24/3 East Nukwe Djourne, Nungua as collateral for a loan facility from the 3rd defendant/respondent by the 4th defendant.
The appellants claim that the said agreement was without their consent neither did they ratify same. The 4th defendant/respondent defaulted in the repayment of the loan leading to legal proceedings against 4th defendant/respondent by 3rd defendant/respondent.
Judgment was decreed in favour of 3rd defendant/respondent leading to the attachment and sale of the property used as collateral by 1st defendant/respondent in satisfaction of the judgment debt. Since the grant of probate to the executors in respect of the last Will of Jonathan Odai Quaye on 19th December 1991, no vesting assent had been executed to the named beneficiaries of the property.
The Writ of Summons was served on the defendants/respondents who all entered their notices of appearance.
The 3rd defendant/respondent then filed a motion to dismiss the action on the grounds that since no vesting assent has been executed in favour of the plaintiffs/appellants they had no capacity to institute the instant action. The court granted the motion dismissing the appellants action on the 22nd December 2016. Dissatisfied with this verdict the plaintiffs