KING AND ANOTHER vs. ELLIOT AND ANOTHER [1971]DLCA2228

Date	1971-11-01
Suit No.
Citation No.	[1971]DLCA2228

KOI LARBI JSC

BENTSI-ENCHILL J.S.C

SOWAH J.A.

JOE REINDORF FOR THE APPELLANTS.

NO APPEARANCE BY OR FOR THE RESPONDENTS.

[1971]DLCA2228
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													<main id="main" class="content" style="min-height: 60rem" >KING AND ANOTHER <o:p></o:p>vs. <o:p></o:p>ELLIOT AND ANOTHER <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972] 1 GLR 54<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
1 NOVEMBER 1971.<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;
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JOE REINDORF FOR THE APPELLANTS.<o:p></o:p>

NO APPEARANCE BY OR FOR THE RESPONDENTS.<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;
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KOI LARBI AND BENTSI-ENCHILL JJ.S.C.
AND SOWAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BENTSI-ENCHILL J.S.C.<o:p></o:p>The facts
in this appeal from the judgment of Lassey J. (as he then was) may be
summarised as follows:<o:p></o:p>Patience
Williams who died in 1943 had by her will devised various properties to her
descendants and relations. She was the only child of her mother, Mrs. Nancy
Campbell the original owner of the properties, who died intestate. It is not
clear from the evidence whether Patience Williams’ title to the properties
rested simply on the fact of her being the only child of Nancy Campbell, or
whether Nancy Campbell gifted the properties to her. There is a suggestion in
the original pleading of the defendants-appellants (hereinafter called the
defendants) that Nancy Campbell made a gift of the properties to Patience
Campbell’s daughter who predeceased Patience Campbell. There is the admission
by the second defendant under cross-examination at page 53 of the record of
proceedings that Nancy Campbell bequeathed all her self-acquired properties to
her only child Patience Williams. And there is also the possibility, wholly
uncanvassed, that Patience Williams was the issue of a marriage under the
Marriage Ordinance.<o:p></o:p><o:p>&nbsp;</o:p>But
notwithstanding the lack of clarity regarding the basis of her title to the
said properties originally owned by her mother, it is stridently clear that she
dealt with the properties in the character of owner, was in exclusive and
undisputed control and possession of them and that her dealings with the said
properties during her lifetime and upon her death were acquiesced in and even
adopted and accepted by Nancy Campbell’s “family,” such as it was. By her will
dated 8 October 1935, she distributed the properties among her descendants and
relations including the plaintiff-respondent (hereinafter called the plaintiff)
now deceased, and the defendant. Every disposition under her will had taken
effect and been accepted by the various beneficiaries including the defendants
to whom one of the houses had been devised. The only exception was the property
known as “Pitt’s House” which was devised to the plaintiff-respondent.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants are in control of Pitt’s House, collecting the income therefrom,
although it was not devised to them, and have refused to surrender possession
of it to the plaintiffs to whom it had been devised by Patience Williams under
a clause of the same will by virtue of which the defendants are enjoying other
property devised to them. And the plaintiff’s claim is for recovery of possession
of the said Pitt’s House from the defendants, mesne profits and a perpetual
injunction.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants assumed control and possession of Pitt’s House upon the death of
their father, T. A. King, a son of Patience Williams and sole executor of her
said will. They took possession of Pitt’s House on the strength of a provision
in the will of T. A. King which stipulated that all incomes derived from that
house should be paid to the second defendant for a period of ten years in
repayment of the cost of redeeming it from a mortgage on that property made by
the father of the plaintiff. It is to be noted that, whatever may be said
concerning the validity of this charging provision in T. A. King’s will, having
regard to the terms of Patience Williams’ will, the said ten-year period during
which the second defendant was empowered to receive income from Pitt’s House
had expired by the time this action was brought, and that, therefore, T. A.
King’s will had ceased to provide even the semblance of a basis for depriving
the plaintiff of possession of that house. No wonder then that the defendants
pleaded other pretexts for retaining possession as against the plaintiff. One
of these pretexts is that they have been using the income from Pitt’s House in
paying for house and water rates and for maintaining the plaintiff, who they
claimed, could not take proper care of himself by reason of physical infirmity.
This was denied. But it is noteworthy that an implicit admission of the
plaintiff’s title to the said property may be inferred from that pretext. Also
noteworthy is the fact that the defendant</main>