STEPHEN DEI QUAYNOR v. A.J. KWAKU AND OTHERS
1950
HIGH COURT
GHANA
CORAM
- Wilson, C.J
Areas of Law
- Property and Real Estate Law
- Probate and Succession
- Evidence Law
- Civil Procedure
1950
HIGH COURT
GHANA
CORAM
AI Generated Summary
On appeal from the Ga Native Court ‘B’, Wilson, C.J. reviewed a dispute over House No. F. 341, Christiansborg, which the plaintiff bought at an April 1939 auction and claimed a two-thirds share and partition based on a deed executed by Alfred Edmund Okantey as administrator of his late father S. R. Okantey’s estate. The deed’s testatum included an all-estate clause and purported to convey a whole interest. Applying Halsbury and English authority on all-estate conveyances and Conveyancing Act 1881 s.63, the court held that the deed operated to pass whatever interest Okantey actually had, but as administrator he lacked power to sell estate assets and there was no evidence of co-heirs’ consent. Thus only Okantey’s personal share within the undivided two-thirds under Marriage Ordinance s.48 could pass. The appeal was allowed; the dismissal set aside; and the court ordered further evidence to identify co-heirs to quantify the precise share conveyed.
Judgment:
This is an appeal from the judgment of the Ga Native Court "B" dated the 28th March, 1949, dismissing a suit by the plaintiff-appellant in which he claimed an Order for the partition of the property in dispute, House No. F. 341 at Christiansborg, Accra, and the handing over to him of 2/3 share therein and an account of the rents and profits of the said property and the payment to him of a 2/3 share thereof. He based his claim on a deed of conveyance dated the 25th April, 1939 (Exhibit “A"), hy which one Alfred Edmund Okantey purported to convey the said property to the plaintiff in consideration of the sum of £1020 s. 0d. for which sum the plaintiff is said to have purchased the property at an auction sale held on the 3rd April, 1939.
The vendor purported to sell the property in the capacity of Administrator of the estate of his deceased father S. R. Okantey and what he purported to sell and convey is to be seen from the following extract from the testatum or operative part of the deed:
"Now this Indenture witnesseth that ... the Vendor doth hereby grant and convey unto the Purchaser ... all that piece or parcel of land situate lying and being at Christiansborg ... together with all houses and other buildings erected thereon ... and all the estate right title interest claim and demand whatsoever of the said Vendor in to and upon the said premises and every part thereof to have and to hold the hereditaments and premises hereby granted and conveyed or expressed so to be unto and to the use of the Purchaser ..."
There is in fact nothing whatever in the deed to show that the vendor was purporting to deal with anything less than the whole of the property in question or with anything less than a whole interest in it. It is well settled law that if there is an ambiguity in the operative part of the deed it is permissible to look to the recitals for elucidation as to the extent of the interest intended to be conveyed (Halsbury; 2nd Ed. Vol. 10, paragraph 352 at page 283 and Odonkor & Anor. v. Ashawah Akoshia (1)). But in this instance there is nothing either in the operative part of the deed or in the recitals suggesting anything but a whole interest in the whole property.
It is common ground that in his personal, apart from his representative, capacity the vendor in fact had nothing more than a share in an undivided interest in two-thirds of the property held jointly with his mother and her other children by virtue of the provisions of Section 48 o