Whitaker v Nanka-Bruce and another

BROBBEY JA. This appeal concerns, essentially, one house numbered as number 57, Granville Avenue, Accra. That house was at some time in its history part of the assets of a limited liability company bearing the name of Independent Press Limited.

In the High Court, the case of the plaintiff who is the appellant in this appeal was this: The Independent Press Ltd was owned by a group of shareholders. The company fell into debt. The mother of the plaintiff paid those debts. As a result, the shareholders vested all the shares of that company in his mother and she became the sole shareholder. This was before the company was wound up. One of the shareholders was Nanka Bruce. When he died the plaintiff’s mother became the executrix of his will. As executrix she took over the shares and interest of Nanka Bruce in that company as well. The company was eventually wound up and the outstanding assets of the company were according to the plaintiff, vested solely in his mother. Those outstanding assets included the house in dispute. When the plaintiff’s mother died, the plaintiff took over the administration of her estate. It was in that capacity that he filed a writ in the High Court claiming a declaration that “the outstanding assets of Independent Press Ltd did not form part of estate of the late Dr Frederick Nanka Bruce and that the said assets belonged to the successors of the shareholders of the said Independent Press Ltd who had vested their shares in the late Violet Afua Maamun Whitaker and therefore became the sole shareholder and executrix of the Independent Press Ltd.” The writ was later amended to include an order for possession of the house and an order for perpetual injunction.

An application was brought on behalf of the defendants to strike out the writ under order 25 r 4 of the High Court (Civil Procedure) Rules 1954 (LN 140A). That application, as I understand it, was founded on a number of grounds. The first was that the plaintiff lacked capacity to sue. The second was that the pleadings did not disclose material facts. The High Court ruled in favour of the defendants. It was against that ruling that the plaintiff appealed to this court.

In this appeal too, counsel for the respondent repeated more or less the same arguments he canvassed before the High Court. He contended that the disputed house which the appellant referred to as company property had devolved on his mother. However the respondents laid claim to the property because it