LYDIA ADJEI, MOSES OBLIN ARYEEFIO v. BEATRICE OKAIKAI WELBECK

JUDGMENT

ADDO J.A.

This is an appeal from the decision of the High Court, Accra presided over by Mrs. Owusu-Arhin J. and dated 25th November 2002. The appellant herein was defendant in the court below and the respondent herein was the plaintiff.

The Defendant/Appellant not satisfied with the decision of the court below has come up to this Honourable Court to ask us to set aside the decision of the court dated 25th November 2002 and to dismiss the action of the Plaintiffs.

The Defendant\Appellant filed two grounds of appeal namely that:—

1. That the learned trial judge misunderstood the application before her. That the issue was not that the court did not have jurisdiction but that the Plaintiff's action was not maintainable.

2. That the learned trial judge having given an earlier Ruling on the 4th June 2002 and ordering the Plaintiffs to bring the action in compliance with the appropriate rules of law and therefore declined to grant an Application for Interim Injunction and Appointment of Receiver and Manager, it was untenable for her to have refused the Defendant's Application.

The Plaintiffs\Respondents issued a writ against the Defendant\Appellant for:

(a) Declaration that the Plaintiffs as well as the /Defendant herein are Tenants in common of House No. 91\4, Agona-Kwanyako.

(b) An order of account for all rents collected in respect of the said Properties from October 1996 to date.

(c) Perpetual Injunction restraining the Defendant, her workers, agents Assigns from dealing with the property in dispute without reference to the Plaintiffs.

The Plaintiffs writ was accompanied by a statement of claim. Paragraphs 4 and 7 of the Statement of Claim contend that one Diana Aryeefio who was the mother of the 1st Plaintiff and the Defendant had included in her Will two properties namely House No. D. 91\4, Kokompe and House No. B. 64\1 Agona Kwanyako which belonged to their late grandfather one R.Q. Aryeefio. Paragraph 8 of the Plaintiffs statement of claim contend that the devise of those properties to the Defendant was wrongful and unlawful and therefore the Defendant should be restrained and be made to account for proceeds from the properties. The defendant also avers in paragraph 7 of her Statement of Defence that the properties the subject matter of the plaintiffs action were devised by a will of their late mother Diana Aryeefio to three children of the deceased including her but excluding the 1st plaintiff. The 1st plaintiff and the defend