AGBAJE AND ANOTHER vs. BUCKNOR [1967]DLHC1444

Date	1967-10-17
Suit No.
Citation No.	[1967]DLHC1444

ARCHER J.

SHORT FOR THE PLAINTIFFS.

HAYFRON-BENJAMIN FOR THE DEFENDANT.

[1967]DLHC1444
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													<main id="main" class="content" style="min-height: 60rem" >AGBAJE AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>BUCKNOR <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1967] GLR 617<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
17 OCTOBER,
1967.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SHORT FOR THE PLAINTIFFS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 3.0pt 0in">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
plaintiffs have applied under Order 25, r.4 of the Supreme [High] Court (Civil
Procedure) Rules, 1954 (L.N.140A), for an order striking out the statement of
defence filed by the defendant and also for entry of judgment in their favour.
In considering the application, I have found it necessary not to confine myself
to the affidavits filed by both parties but to consider as well the whole of
the pleadings so far delivered by the parties.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case are very simple and straightforward. There lived in Ghana, one
Arthur Joseph Eugene Bucknor who later died in Cape Coast on 19 September 1931,
leaving an estate which included both movable and immovable properties. There
is no indication that the deceased died testate but there is evidence that his
lawful wife, Mrs. Joan Bucknor, at the time of his death was appointed
administratrix. There is also evidence that before his marriage to the said
administratrix, the deceased had been previously married lawfully under the
Marriage Ordinance, Cap. 127 (1951 Rev.), to one Augusta Margaret Bucknor, and
the plaintiffs were the lawful children under the said earlier marriage.<o:p></o:p><o:p>&nbsp;</o:p>In an
administration suit No. 53/1949 in the then Divisional Court at Cape Coast, the
plaintiffs took action against the administratrix, Mrs. Joan Bucknor, claiming
account of her administration, and also claiming their shares in the estate as
the lawful daughters of the deceased. To resolve their differences, the
Divisional Court on 9 April 1953, made the following order:<o:p></o:p>“By
consent, the plaintiffs are given three months from today’s date in which to
pay in respect of the movable and immovable properties the total value of the
same into court, that is to say £2,410 9s. 6d. In the event of this not being
done within the time stated all the property will be sold. The only conclusion
I can arrive at and the only possible construction I can place on this order is
that by consent of the parties, the court ordered the estate of the deceased to
be converted into ready cash with a right of pre-emption vested in the
plaintiffs. The plaintiffs were unable to comply with the court’s order of 9
April 1953 and a further extention of three months was granted them on 18 July
1953. The plaintiffs were able subsequently to transfer the sum of £2,410 9s.
6d. from Nigeria to the Divisional Court, Cape Coast. There is evidence from
exhibit B (a cablegram received by the court on 3 October 1953) attached to the
plaintiffs’ affidavit in support of their motion, that the plaintiffs notified
the registrar of the court of the transfer. Exhibit C is the official receipt
issued by the registrar to the Bank of British West Africa Limited, as it was
then called, for the said transfer. After the plaintiffs had exercised this
right of pre-emption and had deposited the sum of £2,410 9s. 6d. as the total
purchase price of the whole estate as valued, the Divisional Court on 22
October 1953 made the following order for the distribution of the converted
estate:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It is
ordered that the registrar of this court do pay to the plaintiffs herein
two-thirds share of the sum of £2,410 9s. 6d. now in his custody. It is also
ordered that the defendant do produce all the personal effects with the
inventory of the valuers appointed by the court and do deposit same with the
registrar of this court for delivery to the plaintiffs: The defendant is hereby
ordered to hand over forthwith to the registrar of this court for the
plaintiffs all the movable and immovable properties together with any keys and
title deeds in her possession.”<o:p></o:p><o:p>&nbsp;</o:p>At this
stage, there is no doubt that the conversion of the whole estate had been
completed and the court had ordered the mode and ratio of distribution of the
proceeds of sale. The plaintiffs thereby became purchasers for valuable
consideration of the whole estate. But as beneficiaries of the estate, they received
two-thirds of the proceeds of sale of the estate. In other words the plaintiffs
became owners of all the movable and immovable properties of the deceased by
purchase and not by devolution. They took the two-thirds share of the cash by
devolution as the lawful children of the deceased. The next question I shall
deal with is what was the role of the present defendant, Charles J.B. Akin
Bucknor. The defendant is a half brother of the plaintiffs. His own affidavit
discloses that he was the son of the deceased, Arthur Joseph Eugene Bucknor, by
virtue</main>