ELIZABETH NOAMAH & ANOR. (PLAINTIFFS) vs. DR. RODERICK BANOR LOKKO (DEFENDANTS) [2001]DLHC7494

Date	2001-01-16
Suit No.	SUIT NO. L. 87/98
Citation No.	[2001]DLHC7494

HER LORDSHIP MRS. AGNES DORDZIE J.

[2001]DLHC7494
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													<main id="main" class="content" style="min-height: 60rem" >ELIZABETH NOAMAH &amp;
ANOR.<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>DR. RODERICK BANOR LOKKO<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. L. 87/98&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 16TH JANUARY, 2001<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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HER
LORDSHIP MRS. AGNES DORDZIE, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>In
this suit the Plaintiffs are claiming among other things a declaration of title
to the out house of House No. F.627/1, Kuku Hill, Osu, devised in the Will of
Frederick Erasmus Lokko to which Probate was granted on 14/4/1981. <o:p></o:p>The
Plaintiffs contend that by the same Will the main house i.e. House No. F.627/1,
was devised to the Defendant. The plaintiffs since 1984 have enjoyed the out
house devised to them in the Will without any hindrance. Of late they detected
that the Defendant has registered the whole property including the out house in
his name as his hence the action. <o:p></o:p>At
the Summons for Directions stage Counsel for the Plaintiffs applied that the
following issues be set down for legal argument and they were set down
accordingly. <o:p></o:p>(a)
Whether or not having accepted all the gifts made to him in his late father’s
Will, the Defendant can deny the Plaintiffs the right to the enjoyment of the
boys quarters attached to the house. <o:p></o:p>(b)
Whether or not the testator had power to dispose by will property that he had
long before the making of the Will transferred to the Defendant. <o:p></o:p>Counsel
for Plaintiffs relied on the equitable doctrine of election to argue the 1st
issue. Counsel submitted that the defendant claims the outhouse is his and
therefore the testator has no power to devise it. <o:p></o:p>However
the defendant has benefited from the same Will, he accepted other devises in
the same Will and therefore he cannot object to the title of the Plaintiffs in
the boys quarters devised to the Plaintiffs in the same Will. His acceptance of
the other devises under the Will estops him from denying the devise to the
Plaintiffs. <o:p></o:p>Defence
counsel was opposed to the matter being disposed of by legal argument. He
argued that the doctrine of election Plaintiffs counsel is relying on
undermines S.1 of the Wills Act. The doctrine of election as a principle of
equity is uncertain. <o:p></o:p>I
have carefully read the various authorities cited by both counsel in support of
their submissions and found that the English Courts approach to the equitable
doctrine of election has been changing over the years. The text book writer R.
H. Mandsley says in Habury’s Modern Equity 9th Edition page 485 that: in its
present form (and his book was published in 1969) it is an uncertain doctrine.
In practice most cases of election rises out of mistakes in Wills. And there is
“a limited merit in a doctrine that deals in mistakes. <o:p></o:p>

I do
not find it very safe to follow this doctrine to determine the issues at stake.
Even if I decide to rely on this doctrine there are certain facts I need to
admit through evidence to enable me do so. The conclusion I have come to is
that it will be better to take evidence to establish this facts to enable me
determine the issues in a just manner. The issues set down for legal argument
are hereby set aside. The Court will take evidence on those issues.<o:p></o:p></main>