2022
SUPREME COURT
CORAM
AI Generated Summary
On appeal to the Ghana Supreme Court, the children and widow of Jonathan Odai-Quaye challenged the loss of House No. 24/3 East Nukwe Djourne, Nungua, devised in Odai-Quaye’s 1987 will to his widow and children as tenants in common. Although probate was granted in 1991, the executors did not vest the property. Four siblings (the 6th–9th defendants) agreed with other defendants to use the house as collateral to secure a loan for Biney Impex Ltd from Gold Coast Security Ltd; after default, the Registrar attached and sold the property, and the purchaser (2nd defendant) obtained a certificate. The High Court dismissed the beneficiaries’ suit for lack of capacity absent a vesting assent; the Court of Appeal affirmed. Writing for a unanimous Supreme Court, DORDZIE JSC prioritized estate preservation over strict statutory interpretation, relied on Order 66 Rule 57 and public policy, departed from Re Okyere, held the plaintiffs had capacity, allowed the appeal, and remitted for trial.
DORDZIE (MRS.) JSC:-
Facts
Per a writ of summons dated 26 of August 2016 the plaintiffs instituted this action against the defendants.
By the facts averred in the statement of claim accompanying the writ, the 1st& 2nd plaintiffs & the 6th to 9thdefendants are children of Jonathan Odai-Quaye (deceased). The 3rd plaintiff is his widow.
The Plaintiffs and the 6thto 9th defendants are beneficiaries of the estate of late Jonathan Odai-Quaye. Jonathan Odai- Quaye died testate and in his will, dated 30thSeptember 1987, he devised House number 24/3 East Nukwe Djourne, Nungua to his widow and children to hold same as tenants in common.
Probate to the will was granted by the High Court Accra on 19th December 1991. The executors however failed to vest the property in the beneficiaries. By an agreement between the 6th to 9thdefendants and the 3rd to 5th defendants, the property in dispute was used to raise a loan for the benefit of the 4th defendant. 4th defendant defaulted in paying the loan. Consequently, the property was attached in execution of a judgment debt by the 1st defendant. The 2nddefendant purchased the property & was issued certificate of purchase by the High Court Accra.
The plaintiffs contend that they did not consent to the transaction between their siblings and the 3rd, 4thand 5thdefendants. No vesting assent had seen executed by the executors of their father's will. In the circumstances, the 6th, 7th, 8th and 9th defendants have no capacity to deal with the property in the manner they did.
The plaintiffs therefore instituted this action praying for the following reliefs:
i.A declaration that the property forms part of the Estate of their late father, Jonathan Odai-Quaye.
ii.A declaration that the purported use of the Property, H/No. 24/3 East Nukwe Djourne, Nungua as collateral for a loan from Gold Coast Security Ltd. to Biney Impex Ltd is null and void.
iii.A declaration that the purported sale of the Property House No. 24/3 East Nukwe Djourne, Nungua by the 1st Defendant (Registrar) to the 2nd Defendant (Purchaser)in Satisfaction of a judgment debt is null and void.
iv.An order setting aside the sale of Property House No. 24/3 East Nukwe Djourne, Nungua to the Purchaser as null and void.
v.An order that Property House No. 24/3 East Nukwe Djourne, Nungua remains partof the Estate of the late Jonathan Odai-Quaye.
vi.An order setting aside the certificate of purchase issued in favour of the purchaser
vii.General damages for trespass.
v