MRS. VIOLET ALLEN & ANOTHER v. MADAM MARY ADJANOR
2022
COURT OF APPEAL
GHANA
CORAM
- WELBOURNE J. A. (PRESIDING)
- GAISIE J.A.
- BAFFOUR J.A
Areas of Law
- Property and Real Estate Law
- Civil Procedure
- Probate and Succession
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal concerns Primrose Villa in Adabraka-Accra, long held in the Whitaker family. In 1947, Thomas Joseph Whitaker conveyed the property to his children Lily Patricia, Florence, and Thomas Hutton as tenants in common. Thomas Hutton’s 1996 will devised his share to his daughters Mame, Violet, and Pearl, and grandson James, who, after probate, sued to eject the appellant from the outhouse, seeking possession, trespass damages, and costs. The appellant claimed a lawful purchase from Ali Jebeile, registration at the Lands Commission, and a land title certificate, invoking bona fide purchaser for value without notice. The Court of Appeal struck out two grounds lacking particulars under Rule 8(4)–(6), and a reply that impermissibly introduced fraud. Central to the decision, the court held capacity was lacking because tenancy in common has no survivorship; each co-tenant’s share passes to beneficiaries, so the respondents could not litigate on behalf of Lily Patricia’s or Florence’s shares without authority. The writ was a nullity and the appeal succeeded on capacity.
Baffour J.A:
INTRODUCTION
Among some of the legal concepts that are evinced for an examination in this appeal are principles such as jus accrecendi and tenancy in common. For a healthy appreciation of these common law concepts would greatly illume our path to deal with virtually the weightier issues raised by the defendant/appellant in this appeal. As the nature of the devise to the plaintiff/respondent by the Will of their father largely depended on the interest that Thomas Hutton-Whitaker (decd) possessed before his death and same being hinged on whether it was one of jus accrecendi or tenancy in common with two of his sisters, being Patricia Lilly and Florence Hutton-Whitaker. For this appreciation would also settle the important question of capacity and locus standi that has been raised by the defendant/appellant for the first time in this appeal. For the sake of consistency plaintiffs/respondents would be referred to as respondents whilst the defendant/appellant would be maintained as appellant throughout the trial.
BACKGROUND
The res litga is H/No C336/1, Manyo Plange Street, Adabraka-Accra stylishly called Primrose Villa. It has a recorded history of about four score and ten years of having been in the ancestral lineage of the respondents’ Thomas Joseph Whitaker family since it was purchased from Julietta Louisa Ribeiro in 1933. The respondents are descended from Thomas Joseph Whitaker, through his son Thomas Hutton Whitaker. He it was in 1947 due to natural love and affection which he bore towards three of his children devised to Lily Patricia Whitaker, Florence Whitaker and Thomas Hutton Whitaker, the Primrose Villa as seen in Exh “G” “as Tenants in common”. For a number of decades it appears that Violet Afua Maanum Whitaker, who was the mother of the three children and the grandmother of the appellants exercised rights over the house until her death in 1971. The three donees of the property at some point moved to all live in the house. Whilst Thomas Hutton Whitaker and Florence Whitaker and her daughter occupied various sections of the main house, Patricia Lily Whitaker rather occupied the outhouse. The two sisters predeceased the father of the respondents.
In the Will of Thomas Hutton Whitaker made on the 12th of August, 1996, that is on record as Exhibit “D1” he declared his ownership among other properties his “share of House No C. 336/2 Manyo Plange Street, Adabraka, Accra”. He proceeded to devise his share of that property to his three