BROWN vs. DARKO AND ANOTHER [1961]DLHC870

Date	1961-09-22
Suit No.
Citation No.	[1961]DLHC870

OLLENNU J

J. C. ARMAH FOR THE PLAINTIFF

J. QUASHIE-IDUN FOR THE DEFENDANT

[1961]DLHC870
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 539

DATE: 22ND SEPTEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

J.
C. ARMAH FOR THE PLAINTIFF.

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OLLENNU, J.

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&nbsp;

The plaintiff is a beneficiary under the will of the late Joseph
Quao Arthur. The defendants are the executors named under the said will of
which exhibit A is a copy of the probate. By her writ, the plaintiff claims two
reliefs namely: (1) an order upon the defendants to execute a deed conveying to
her a plot of land devised to her under the said will; and (2) an order for the
payment of the sum of £G50 bequeathed to her under the said will.

Apart from pleading the devise and bequest, all the facts pleaded
by the plaintiff in her four paragraphed statement of claim are contained in
paragraph 3 of her said statement of claim which is as follows: “3. Since
November, 1955 and despite requests the defendants have failed and still fail
to convey the said land to the plaintiff and to pay to her the bequest of
£G50”.

The defence to the claim is that: (1) the land devised under the
will cannot be identified and therefore no conveyance of it could be executed
in favour of the plaintiff, and (2) in any event the defendants as executors
under the will of the testator are not under a legal obligation to execute a
conveyance in favour of a devisee in respect of land devised to her.

The defendants counterclaimed for an amount of £G485, due to the
estate as value of trinkets which they alleged were given to the plaintiff by
the testator for sale. The defence filed to that counterclaim is as follows:
“7. In further reply to paragraph 6, plaintiff avers that she does not owe the
testator the alleged sum of £G485 being value of trinkets sold by her on the
testator’s behalf as averred or in any part of that sum or at all”.

For a plaintiff to succeed on a claim for an order upon a
defendant to execute a deed of conveyance of land to him, he must: (1) satisfy
the court that the defendant is under a legal liability to execute the said
deed for him, (2) identify the land to the court with specific particularity,
and (3) prove to the court that he had tendered the necessary documents to the
defendant for execution and that the defendant had refused to execute the same.

It was submitted on behalf of the plaintiff that as executors, the
defendants are under a legal duty to assent to or execute a deed conveying to
the plaintiff, a devisee under the will, the plot of land devised to her under
the will. In support of that proposition of law, counsel cited the case of
Attenborough v. Solomon1(1) a case which appears to have been based upon
sections1 (1), 2 (1) and 3 (1) of the Land Transfer Act, 18972(2). By section 2
(1) of that Act, a beneficiary entitled to real estate under a will, has the
same power of requiring the transfer of the real estate devised to him as a
person beneficially entitled to personal estate has of requiring a transfer of
such personal estate to him. And subsection (2) of that section (as amended by
section 12 of the Conveyancing Act, 19113(3)) provides that all enactments and
rules of law concerning matters relating to the administration of personal
estates, and powers, rights, duties and liabilities of personal representatives
in respect of personal estate, apply also to real estate so far as the same is
applicable, as if the real estate were a chattel real vesting in the personal
representatives; and section 3 (1) of the Act provides that at any time after
the death of an owner of land, his personal representatives may assent to any
devise contained in his will or may convey the land to any person entitled
thereto as heir, devisee or otherwise.

But neither the said Land Transfer Act, 18974(4), nor the
Conveyancing Act, 19115(5) applies to Ghana they not being statutes of general
application in force in England on July 24, 1874. Under the Wills Act 18376(6)
which is the statute applicable to Ghana, real estate does not vest in personal
representatives and so they have no power to assent to its vesting in a beneficiary,
or to convey it to such person. See judgment of this court in Hammond v.
Lamptey7(7)

It must be pointed out that the relevant provisions of the Land
Transfer Act, as amended by the Conveyancing Act, 1911, have now been enacted
in our Administration of Estates Act, 1961,8(8) which provides as follows:

“Section 1 (1) The movable and immovable property of a deceased
person shall devolve on</main>