SAMUEL ARUNA NOAH v. CHARLES LAMPTEY

JUDGMENT KWOFIE J. A:

This appeal is against the judgment of the High Court Accra (Land Division)delivered on 14th day of June, 2013.

The trial judge dismissed the plaintiffs action and entered judgment in favour of the defendant on his counterclaim.

The facts leading to this appeal are that the Plaintiff/Appellant and the Defendant/Respondent (hereinafter referred to as the defendant) are an uncle and his nephew.

The Plaintiff/Appellant (hereinafter referred to as the plaintiff) and the Defendant/Respondents mother Irene Amina Noah (deceased) are both the children of Emmanuel Cofie Noah (deceased). The late Emmanuel Cofie Noah died on intestate on 24th May 1972 having left aWill dated 18th October 1967.

Two (2) out of the three (3) named executors in the said Last Will and Testament predeceased the testator and on his deaththe one surviving executor also failed to apply for Probate.

The Defendantsubsequently applied for and was granted Letters of Administration with Willannexed by the High Court Accra.

The testator by clauses five (5) (6) (7) and(11) of the Will devised and bequeathed to the defendants mother IreneAmina Noah as follows:

5. I devise and bequeath to my daughter Irene Amina Noah absolutely two rooms and a hall in the main building, two rooms made of wooden boards, four (4) gold rings and the remaining movable or personal properties excluding my clothes.

6. The bequest of my two rooms made of wooden boards herein before made to my daughter Irene Amina Noah in paragraph 5 above is made on the express condition that the said Irene Noah shall pay and discharge all water rates, house rates and conservancy fees imposed or assessed on my said house after my death.

7. I bequeath to my daughter Irene Amina Noah my One-quarter () share of rents collected from our fathers House No. 201/17 Derby Avenue, Near Makola Number one Accra which said house my father devised to four of us that is to say my brothers Anna Noah, Daniel Noah, my sister Fatima Noah and me.

I devise and bequeath all the movable and immovable properties whatsoever and wheresoever of or to which I shall be possessed or entitled or over which I have a disposing power at the time of my death to my daughter Irene Amina Noah absolutely.

After obtaining the Letters of Administration with Will annexed the defendantissued a writ against two tenants of shops built by the plaintiff on portions ofland forming part of House Number C410/3 Asylum Down the devisedproperty and succeeded