1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
Chief Attipoe and Chief Tamakloe, substituted as heads of the family of the late Emmanuel Nelson Tamakloe in a prior redemption suit, brought this action to recover sums for the 1st defendant’s use and occupation of a store at No. D.907/3 Pagan Road, Accra, and sought ejectment. Tamakloe had mortgaged the premises to E. Z. Nassar; after his death, the plaintiffs redeemed and obtained reconveyance, funding payment with a loan from Mrs. Jiagge. The 2nd defendant claimed successor status under native custom, received £3,600 and purported to grant a 90-year lease to the 1st and 3rd defendants. Viewing the matter under English law and native custom, the court held the legal estate in the plaintiffs, declared the lease void for lack of family concurrence, rejected disputed receipts as proof of rent payments, amended the claim to use and occupation, awarded £84 and costs, and refused possession to permit negotiation of a further tenancy.
Judgment:
The claim in this suit is for £136 arrears of rent from 1st December, 1943, to 30th September, 1946, in respect of the 1st defendant's occupation of a store in premises described as No. D.907/3 Pagan Road, Accra, and for an Order ejecting the 1st defendant from the premises.
The plaintiffs' case as proved is that the premises were the self-acquired property of Emmanuel Nelson Tamakloe who mortgaged them, during the 1st defendant's tenancy of the store, to one E. Z. Nassar by Deeds of Mortgage and further charge dated respectively the 27th March, 1940, and 7th June, 1940 , to secure advances of money.
In the year 1942 the mortgagor, Emmanuel Nelson Tamakloe, instituted an action against the mortgagee for an account of what was due on the mortgages and for an Order for redemption of the mortgaged property. This action was pending in the Divisional Court when the plaintiff-mortgagor died intestate on the 1st January, 1944. Thereupon, the mortgagee Nassar gave notice of intention to sell, after the expiration of one month, the mortgaged premises for the sum of £1,61618 s. which he claimed to be due to him. At a family meeting the plaintiffs, Chief Attipoe and Chief Tamakloe, were authorised to apply and they did apply to the Court to be substituted for the deceased plaintiff to carry on the Redemption action.
The plaintiffs carried the said action to conclusion, and in the result, the Court on the 28th March, 1944 decreed that upon the plaintiffs Chief Attipoe and Chief Tamakloe paying to the defendant Nassar within three months, the moneys certified due with interest at 12 per cent the defendant should reconvey the mortgaged property to the plaintiffs as heads of the family of the deceased, the capacity in which they were substituted plaintiffs in the suit.
In due course the plaintiffs paid £1,2792 s. to redeem the property, and they took from Nassar, a Reconveyance thereof in terms of the Order of the Court.
The 1st defendant refused to pay rent when the plaintiffs made a demand.
When this action was instituted in the District Magistrate's Court the 1st defendant pleaded payment to the 2 nd defendant who claims that he is the successor by native customary law of his decased father, Emmanuel Nelson Tamakloe, and, as such the person lawfully entitled to receive such rents and that the plaintiffs, in spite of their reconveyance, ceased to have any interest in the property when the 2 nd defendant's right to be the successor of the deceased was d