MARY YARBOLEY OKAI & OTHERS v. NICHOLAS TIMOTHY CLERK & OTHERS

J U D G M E N T

BROBBEY, J.S.C.:This is an appeal from the judgment of the Court of Appeal which had dismissed an earlier appeal from the High Court by the appellants before this court.

The facts giving rise to the litigation are as follows: The case concerns a house which was originally owned by one Mark George Okai. He died intestate on 17th September 1939, leaving behind male and female children. On his death, letters of administration were granted to William George Okai, his eldest son, and Samuel Adotei Brown, his nephew. Both died later. On 14th August 1945, two daughters of Mark G Okai entered into a lease agreement with Nicholas Timothy Clerk in respect of that house. The house was leased to the latter for sixty years at a yearly rental of sixty pounds commencing from 1st August 1945. The lessee paid seven hundred and fifty pounds on execution of the lease and another seven hundred and fifty pounds, the latter being one-half of the children’s share. The children’s share was later returned to the lessee and was never repaid by him. By calculation, the lessee paid rent from 1st August 1945 to 30th April 1964 which amounted to eighteen years and nine months.

In spite of the execution of the lease, some of the children of Mark G. Okai remained in occupation of the house and even collected rents from some tenants. The lessee took action against those children, claiming two hundred pounds as damages for trespass, an order of ejectment and refund of rents collected by them. He obtained judgment against them. The co-defendants in that case appealed to the West African Court of Appeal (WACA). The appeal failed. The WACA judgment ordered the lessee, at his own expense, to obtain planning permit, pull down the existing structure and construct an entirely new building in its place.

He failed to comply with that order. He also failed to pay rent from May 1964.

In June 1983, the surviving children of the late Mark Okai sued the lessee for one thousand one hundred and forty five pounds being rent arrears for 229 months from 1st May 1964 to 1st May 1983, mesne profits and forfeiture of the lease for breach of covenant to pay rent and non compliance with the order of WACA already referred to. For convenience, those children will be referred to as the plaintiffs and the original defendant will be referred to as N. T. Clerk for short.

N. T. Clerk filed his defence to the action in August 1983. He died in May 1985. Letters of administration were granted to the s