2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arose from a High Court decision declaring co-ownership of a residential property at Plot No. 43, Block B, Community 22, Tema between the late Alfred Mensah Welsing and his widow, Rebecca Welsing, as tenants in common, ordering sale and equal sharing. Alfred had acquired the land from Tema Development Corporation in 2005 (Exhibit C), documented in joint names, and later devised his interest to his only daughter, with his sister serving as executrix. The Court of Appeal first struck out the executrix for lack of capacity after vesting. It then explained that under Section 14(3) of the Conveyancing Act, co-grantees presumptively hold as tenants in common absent express joint tenancy. Accepting a constitutional point raised on appeal, the Court applied Article 22(1) to ensure a reasonable provision for the widow: allocating her 75% (her 50% plus half of Alfred’s 50%) and the daughter 25%, with valuation and a buyout option, failing which sale and distribution at 75/25. Costs were not ordered on appeal.
WELBOURNE, J.A
This is an appeal from the judgment of the High Court, Accra dated the 25th day of January 2017.
BRIEF FACTS:
The Appellant in this case was the Defendant in the case at the High Court. The 1st Respondent is the sister of Mr. Alfred Welsing (deceased) and is also the Executrix of his Last Will and Testament. The 2nd Respondent is the only daughter of the deceased and the sole beneficiary of his estate. The Appellant is the widow of the deceased. In the Will of the late Mr. Alfred Welsing he devised his interest in the property known as Plot No 43, Block B, Community 22, Tema to his daughter, the 2nd Respondent. The property is made up of a residential property built on land purchased by the deceased from the Tema Development Corporation in 2005 which is evidenced by Exhibit C. Both parties are in agreement that the said land was purchased with money solely provided by the deceased however all documents covering the property were made in the joint names of Mr. Alfred Welsing and the Appellant. After the death of Mr. Welsing in 2012 the 1st Respondent applied and obtained probate without challenge and subsequently through a vesting assent transferred the interest of the deceased in the property to the 2nd Respondent. The 2nd Respondent then acting through her lawyers wrote to the Appellant offering to sell her interest in the house to the Appellant or in the alternative to have the entire property sold and the proceeds shared equally between the parties. The Appellant through her lawyers responded to the letter of the 2nd Respondent rejecting her offer and claiming that the property was jointly owned by the deceased and herself and upon the death of the deceased she became the surviving and as such the sole owner of the property. The Appellant also claimed that the deceased could not lawfully devise his interest in the property to anyone else.
The Respondents subsequently issued a writ against the Appellant seeking the following reliefs:
a. A declaration that the property in dispute Plot No. 43, Block B, Community 22, Tema was owned by the Alfred Mensah Welsing and Defendant as tenants in common.
b. An order for the sale of the property in dispute and the sharing of proceeds from the sale equally between the 2nd Plaintiff and Defendant.
c. Costs.
The High Court entered judgment in favour of the Respondent. It held that:
a. The property in dispute, Plot No. 43, Block B, Tema Community 22 is owned by Alfred Mensah Welsing and Rebecca We