DAGADU AND OTHERS v. ADDY AND ANOTHER
February 28, 1983
HIGH COURT
GHANA
Areas of Law
- Property and Real Estate Law
- Probate and Succession
- Civil Procedure
- Tort Law
February 28, 1983
HIGH COURT
GHANA
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JUDGMENT OF OSEI-HWERE J.
By the indorsement on their writ the plaintiffs sue for:
(1) A declaration that the plaintiffs are the rightful owners of all that piece or parcel of land more particularly described in the accompanying statement of claim.
(2) A declaration that the plaintiffs are entitled to the structures and the wall unlawfully erected by the defendants on and around the plaintiffs' said land.
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(3) Perpetual injunction restraining the defendants, their servants or agents or whosoever otherwise from entering the plaintiffs' said land and committing further acts of trespass thereto.
(4) Damages for trespass.
In the accompanying statement of claim, the plaintiffs aver that their father acquired the plot of land in dispute which is situated at Lartebiokorshie, Accra from the Sempe stool. Their father devised this plot to them and their sisters and a brother under his will. On his death, probate of the will was granted to the named executors on 16 October 1961. It has been pleaded in paragraph (8) of the statement of claim that the surviving executor of the will has not yet assented to the vesting of the said plot in the plaintiffs and their said sisters and brother, and the plaintiffs bring the action for and on behalf of themselves and their sisters and brother as beneficial owners. The defendants entered conditional appearance to the writ, and they have brought this motion to dismiss the action.
The defendants' supporting affidavit makes articulate the following matters:
“(3) That the defendants entered the said plot of land as far back as 1977 as the tenants of Mrs Gladys Dagadu and have since remained tenants on the said land.
(4) That the said plot of land was given to the defendants by Mrs Gladys Dagadu, mother of the plaintiffs herein through Madam Ameley Stevens, caretaker of the said land.
(5) That soon after the defendants entered the said plot of land the first plaintiff contacted them in respect of the said land and the defendants informed the first plaintiff that they were in lawful occupation of the said plot of land as the tenants of the plaintiffs' own mother, Mrs Gladys Dagadu, with Madam Ameley Stevens as the caretaker of the said plot.
(6) That upon the above explanation the first plaintiff left the defendants in peaceful occupation of the land until 27 July 1981, after the defendants had developed the land into a restaurant and a bakery.
(7) That on the date stated in paragraph (6) above, the defendants rec
AI Generated Summary
Osei-Hwere J. dismissed an action by beneficiaries seeking a declaration of title, injunction, and damages over a plot at Lartebiokorshie, Accra, originally acquired from the Sempe stool and devised to them and their siblings. The defendants had occupied the land since 1977 as tenants of Mrs Gladys Dagadu and caretaker Madam Ameley Stevens, developing a restaurant and bakery. The plaintiffs denied those persons authority and relied on an alleged oral assent by executor Rev. Clegg. The court held that under the Administration of Estates Act, 1961 (Act 63), beneficiaries have only inchoate rights until a personal representative assents in writing, and as an instrument affecting land the vesting assent must be registered under the Land Registry Act, 1962 (Act 122). Oral assent was ineffective, so the plaintiffs lacked capacity. While noting it was not amiss to sue tenants in possession and seek declaratory relief alongside trespass and injunction, the court granted the motion to dismiss and awarded a2400 costs.