[2026] SLR (SC) 85Supreme Court - Ghana2026 SC - GHANA

CHARLES MENSAH & ORS vs. VIVIAN MENSAH & ANOR

28 October 2026 · PWAMANG JSC · ≈ 35 min read

Cite as[2026] SLR (SC) 85

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OSCOLACHARLES MENSAH & ORS v VIVIAN MENSAH & ANOR [2026] SLR (SC) 85

APACHARLES MENSAH & ORS v VIVIAN MENSAH & ANOR, [2026] SLR (SC) 85 (Ghana).

BluebookCHARLES MENSAH & ORS v VIVIAN MENSAH & ANOR, [2026] SLR (SC) 85 (Ghana Sup. Ct. 2026).

Linkhttps://superlawgh.com/slr/2026/sc/85/

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: PWAMANG JSC (PRESIDING)

AMADU JSC

ASIEDU JSC

GAEWU JSC

AMALEBOBA JSC

CIVIL APPEAL

NO. J4/60/2025

28TH OCTOBER, 2026

1. CHARLES MENSAH

2. MARY AFI MENSAH

3. FRANCIS MENSAH PLAINTIFFS/RESPONDENTS/

4. HENRY MENSAH APPELLANTS

5. MARGARET MENSAH

6. ANGELO MENSAH

7. KOKOU MENSAH

VRS

1. VIVIAN MENSAH ………. 1ST DEFENDANT

2. KWASI AGYEKUMHENE ………. 2ND DEFENDANT/APPELLANT/

RESPONDENT

JUDGMENT

TANKO AMADU JSC: –

INTRODUCTION

[1] A man died intestate and left one house, a widow and fourteen children. The law gives that house to all of them as tenants in common. None of them can sell it out from under the others, and a group of them cannot do so either, however large the group is. That is our answer to this appeal. A fuller answer is needed because the Court of Appeal upheld a sale of part of the house on two grounds. The first was that “in a democratic society like Ghana the decision of the majority must prevail”. The second was that the personal representatives could sell without the court order that Section 93 of the Administration of Estates Act, 1961 (Act 63) requires. The Court of Appeal was understandably troubled by the conduct of some of the Appellants, and by the position of a purchaser who had paid in full and spent money on the property.

[2] This is an appeal by the Plaintiffs/Respondents/Appellants (“the Appellants”) against the judgment of the Court of Appeal, Kumasi, delivered on 12th November 2024. That judgment set aside the judgment of the High Court, Kumasi, delivered on 31st October 2019, and entered judgment for the 2nd Defendant/Appellant/Respondent (“the Respondent”) on his counterclaim. The 1st Defendant took no part in the appeal to the Court of Appeal and has filed nothing in this court. We refer to her as the 1st Defendant.

BACKGROUND

[4] The 2nd Appellant is the widow of the late Nicholas Kofi Mensah. The 1st and 3rd to 7th Appellants are six of his children, and the 1st Defendant is another child. It is not disputed that he died intestate. It is also not disputed, and the Court of Appeal found, that he was survived by fourteen children born of more than one woman. Seven of them, born of one Beatrice Afriyie, are not parties to this suit.

[5] The property in dispute is House No.38, Block E, Fankyenebra, Kumasi, a building of two semi-detached units on a single plot. The Appellants’ case is that, the late Francis Kojo Poku gave the property to the deceased during his lifetime but died before he could transfer it formally. The property was therefore listed among the assets of Francis Poku’s estate. The deceased died before that estate was distributed. On 9th July 2014, the administrators of Francis Poku’s estate executed a vesting assent (Exhibit A) in favour of the Appellants and the 1st Defendant. The Respondent does not dispute any of this. In his Statement of Case, he accepts that when the transaction took place, “the necessary documentation from the estate of Francis Kojo Poku had not been given to the Appellants and the other beneficiaries”, and that they then held “no legal interest” in the property.

[6] Letters of administration to the deceased’s estate had been granted to four persons: the 2nd Appellant, the 1st Defendant, and two of the children of Beatrice Afriyie, Michael Mensah and Maxwell Yaw Mensah. Neither of the last two is a party.

[7] In September 2011, the Respondent bought one of the two semi-detached units for (Sixty-Five Thousand Ghana Cedis) GH¢65,000.00, which he paid in two instalments. He paid through an agent who gave evidence as DW1. The transaction was concluded in the chambers of a lawyer who has since died, and that lawyer prepared the two receipts on which the Respondent relies. Exhibit 4 acknowledges receipt of Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) from the Respondent and his wife as “the purchase price from the sale of our house at Fankyenebra Kumasi thus Plot No.38 ‘E’ Fankyenebra”. It is signed by the 1st Defendant alone, who described herself as “representing all the children” of the deceased. Exhibit 9 is a receipt for Thirty Thousand and One Hundred Seventy-Five Ghana Cedis (GH¢30,175.00) which, on the Respondent’s account, was paid out of the purchase price to the children of Beatrice Afriyie as their share of their father’s estate. The 5th Appellant signed it as a witness.

[8] The Respondent carried out substantial works on the unit. He re-roofed it, raising the roof above that of the adjoining unit. He built a wall dividing the two units into separate compounds, and he put up separate gates. He asserts that he moved in during December 2011 and that these works were done before then. The Appellants’ solicitors wrote to him at least twice to say that the sale had not been agreed to and that he should stop work. The second of these letters, Exhibit B, is dated 26th November 2012. The Respondent’s solicitors replied that their clients “have changed their position to their detriment by adding value to the property and now live in the property” (Exhibit 5).

THE PROCEEDINGS IN THE HIGH COURT

[9] By a writ of summons filed on 26th February 2015, the Appellants sued the 1st Defendant and the Respondent for the following reliefs:

A declaration that property Numbered 38 Block E, Fankyenebra, Kumasi devolved on the Plaintiffs and the 1st Defendant as beneficiaries of the said property forming part of the estate of the late Nicholas Kofi Mensah.

A declaration that the 1st Defendant alone lacks the capacity to transfer title in the property to the 2nd Defendant.

An order setting aside the purported sale of the property in September 2011 made between the 1st and 2nd Defendants.

An order of perpetual injunction restraining the 2nd Defendant, his privies, assigns, agents and all those claiming through him from interfering with the Plaintiffs’ interest in the property.

[10] The Respondent filed a Statement of Defence and Counterclaim on 27th April 2015. By his Counterclaim, he sought the following reliefs:

A declaration that the sale by the Plaintiffs and the 1st Defendant of a semi-detached building on Plot No.38 Block E, Fankyenebra, Kumasi to the 2nd Defendant, which he presently occupies, is valid, as same was done for themselves and on behalf of other beneficiaries of the estate of the late Nicholas Kofi Mensah, which the 2nd Defendant was made to believe include others, other than the Plaintiffs and the 1st Defendant herein, and which said representation the 2nd Defendant relied on to change his position to his detriment.

An order of specific performance directed at the Plaintiffs and the 1st Defendant to fully complete the transaction between them and the 2nd Defendant by formally conveying the disputed property to the 2nd Defendant, as the property has now been vested in them.

Perpetual injunction against the Plaintiffs and the 1st Defendant, their agents, assigns, workmen and anybody claiming through them from having anything to do with the disputed property.

[11] The terms of the Counterclaim matter, and we draw attention to them now. Every relief in it is directed at “the Plaintiffs and the 1st Defendant”. The sale it asks the court to uphold is one made by them “for themselves and on behalf of other beneficiaries”. The conveyance it seeks is to be made by them, on the footing that the property “has now been vested in them”. The Respondent’s pleaded case was therefore a sale by the beneficiaries. He did not plead a sale by the personal representatives of the deceased, and he sought no relief against them in that capacity.

[12] In her evidence, the 1st Defendant admitted that she sold the property. She said she did so under pressure, and that she shared the proceeds with six of her siblings, all children of Beatrice Afriyie.

[13] At the close of pleadings, the following issues were set down for trial:

Whether or not the 1st Defendant has the capacity to dispose of property numbered 38 Block E, Fankyenebra, Kumasi.

Whether or not property numbered 38 Block E, Fankyenebra was sold by the 1st Defendant with the consent of the Plaintiffs.

Whether or not the Plaintiffs are entitled to their claim.

Whether or not the 2nd Defendant is entitled to his counterclaim.

[14] No issue was set down on whether the transaction was a sale by the personal representatives, or on the effect of Section 93 of Act 63. Those matters were taken up in the written submissions of counsel for the Respondent in the Court of Appeal.

[15] The Learned Trial Judge held that the beneficiaries held the property as tenants in common. He found that, apart from the 1st Defendant, the 2nd, 5th and 6th Appellants knew of the sale. He granted the reliefs on the writ. He also ordered the 2nd, 5th and 6th Appellants and the 1st Defendant to pay the Respondent One Hundred and Thirteen Thousand, Five Hundred Ghana Cedis (GH¢113,500.00), “being the difference between the current value of the disputed house and the value before refurbishment”, and ordered the Respondent to vacate the property once that sum had been paid to him. As the order has been reproduced to us, it requires payment “by the Plaintiffs and 2nd Defendant”. The 2nd Defendant is the Respondent himself, so the reference was plainly meant to be to the 1st Defendant, and we read it in that way. The Appellants did not appeal against any part of that judgment.

THE JUDGMENT OF THE COURT OF APPEAL

[16] On the Respondent’s appeal, the Court of Appeal began, correctly, with the incidents of co-ownership as follows:

“The basic and unimpeachable thought gathered from the preceding is that in either a joint tenancy or tenancy in common situation, a tenant can only dispose of his interest in the property and not the interest of his co-tenants. The knowledge and consent of the joint or co-tenants is required only where the entire property is to be disposed of. In the instant case, it was the entire interest in the subject matter that was transferred to the Appellant.”

[17] The Court of Appeal then examined who had taken part in the sale. It found that the 3rd Appellant “had full knowledge of the decision to sell”, that when he learnt the sale was driven by his half-siblings’ need for school fees “he requested for time to find the money for them so that the sale halted”, and that because he could not find the money the sale went ahead. It concluded thus:

“The reality then is that of the fourteen children of the late Nicholas Kofi Mensah only the 1st, 4th and 7th Respondents were not involved in the sale transaction. The 4th and 7th Respondents were out of the country.”

[18] It then held as follows:

“In a democratic society like Ghana the decision of the majority must prevail. The decision of the majority of the children of late Nicholas Kofi Mensah backed by the widow (2nd Respondent) was sufficient to give validity to the sale of the property to the Appellant.”

[19] On Section 93 of Act 63, the Court of Appeal agreed with counsel for the Appellants that Exhibit C1 was neither an application for a court order nor an order, and it concluded that “the administrators with majority of the beneficiaries sold the property to the Appellant without the requisite order envisaged under Section 93(2), Act 63”. It accepted that “the obvious reason behind the requirement of the court order is the protection of the interest of the beneficiaries which may be at risk in the hands of greedy and malicious administrators”. It nevertheless held that the omission was not fatal: The Court of Appeal held that:

“In the instant case, the property was sold to the Appellant by the administrators in conjunction with majority of the beneficiaries. That is not a scenario Section 93 of Act 63 envisaged … Since the case was already in court and the court had encouraged the administrators and beneficiaries to settle, coupled with the fact that the sale was not only by the personal representatives but in conjunction with the widow and majority of the children who are beneficiaries, the failure to seek a court order was not fatal to the transaction by which the subject property was sold to the Appellant.”

[20] The Court of Appeal further held that the Appellants were estopped by conduct. It said that none of them had objected to the “extensive renovations done by the Appellant under their watching eyes”, that “it was only when the 1st Respondent arrived from Accra and learnt of the purchase price that he instigated the first resistance to the renovation”, and that even then “the main concern of the 1st Respondent was the purchase price”. The Court of Appeal further observed that the writ was “defective in terms of the endorsement of Respondents’ capacity” because the Appellants had “unilaterally declared themselves the sole beneficiaries”, and it described the vesting assent, Exhibit A, as “defective” because it left out the other children.

[21] The Court of Appeal then entered judgment for the Respondent. It declared that the sale “was done by the personal representatives of the estate of the late Nicholas Kofi Mensah and the widow, in conjunction with majority of the children/beneficiaries for and on behalf of the estate”. It ordered the personal representatives to convey the property to the Respondent within three months, and in default ordered the Registrar of the High Court to execute a deed of transfer. It granted a perpetual injunction against the Appellants and the 1st Defendant, and awarded costs of Ten Thousand Ghana Cedis (GH¢10,000.00) against the Appellants.

APPEAL TO THE SUPREME COURT

[22] Dissatisfied with the judgment of the Court of Appeal, the Appellants filed a notice of appeal to this court on the following grounds:

The Court of Appeal erred when it held that the decision of majority of the children of the late Nicholas Kofi Mensah backed by the widow (2nd Respondent) was sufficient to give validity to the sale of the property to the Respondent.

The judgment is against the weight of evidence.

[24] The second ground, as argued in the statement of case, refers to “the affidavit evidence”. This case was tried on witness statements and oral testimony, and we take the ground to be the ordinary omnibus ground.

[25] Counsel for the Respondent submits that, the first ground misrepresents the Court of Appeal, because the true basis of its decision was the sale by the administrators and not majority rule. We do not accept that interpretation. The passage is a direct holding, expressed in terms that, the majority decision “was sufficient to give validity to the sale”. The holding on Section 93 is a second and separate basis for the decision, and the omnibus ground puts it in issue. We shall deal with both.

THE LAW AND PRINCIPLES

[26] This is a second appeal, and it is by way of rehearing. Where the ground is that the judgment is against the weight of evidence, the appellate court must examine the whole record and satisfy itself, on the preponderance of the probabilities, that the conclusions reached are supported by the evidence: TUAKWA VS. BOSOM [2001-2002] SCGLR 61; ABBEY VS. ANTWI [2010] SCGLR 17. The Appellant must point to the evidence that was wrongly assessed or overlooked: DJIN VS. MUSAH BAAKO [2007-2008] SCGLR 686. The omnibus ground also allows legal arguments, because whether a party has discharged a burden of proof, or what the law requires on an issue, is itself a question of law: OWUSU-DOMENA VS. AMOAH [2015-2016] 1 SCGLR 790.

[28] Most of the material facts in this appeal are not really in dispute. The difficulty lies in the legal conclusions the Court of Appeal drew from those facts. Our main task is therefore to decide whether those conclusions are correct in law.

THE ISSUES

[29] In our considered view, this appeal raises the following questions:

Could the sale bind those beneficiaries who did not agree to it, on the basis that a majority of the beneficiaries did agree?

Can the sale be upheld as a sale by the personal representatives of the deceased?

Are the non-consenting Appellants barred by estoppel, acquiescence or delay?

Is the transaction evidenced in writing that is enforceable against the Appellants, and is specific performance available?

What is the effect, if any, of the absence from the suit of the other children of the deceased, and of the alleged defect in Exhibit A?

What orders should follow?

ISSUE 1: CAN A MAJORITY OF CO-OWNERS SELL THE SHARES OF THE MINORITY?

THE NATURE OF THE BENEFICIARIES’ INTEREST

[30] The Intestate Succession Law, 1985 (PNDCL 111) provides in Section 4:

“Notwithstanding the provisions of this Law: (a) where the estate includes only one house the surviving spouse or child or both of them, as the case may be, shall be entitled to that house and where it devolves to both spouse and child, they shall hold it as tenants-in-common.”

[31] It was never suggested that the estate included any other house. Counsel for the Respondent himself relies on Section 4(a) and on the smallness of the estate. The house therefore devolved on the widow and on all fourteen children as tenants in common. That includes the seven children of Beatrice Afriyie, as the Court of Appeal rightly emphasised. The Learned Trial Judge reached the same result by applying Section 14(3) of the Conveyancing Act, 1973 (NRCD 175), under which a conveyance to two or more persons creates a tenancy in common unless a joint tenancy is clearly intended, and Exhibit A is such a conveyance. Both routes lead to the same place, and no party has contended otherwise.

[32] A tenancy in common is a holding in undivided shares. Each co-owner has a distinct share that has not yet been separated out, and each may deal with his own share. No co-owner may deal with the shares of the others without their authority. Counsel for the Appellants refers us to the learned authors of Ghana Land Law and Conveyancing (da Rocha and Lodoh) on this point, and the Court of Appeal stated the principle correctly. A person cannot give what he does not have (nemo dat quod non habet). This court has applied that rule to land in SEIDU MOHAMMED VS. SAANBAYE KANGBEREE [2012] 2 SCGLR 1182, which counsel for the Appellants cites.

THE MAJORITY PRINCIPLE

[33] Having stated the principle correctly, the Court of Appeal then departed from it. It held that because a majority of the children, supported by the widow, had decided to sell, their decision “was sufficient to give validity to the sale”. With the greatest respect, that is an error of law, and it goes to the root of the judgment.

[34] Democracy is a principle for governing a society. It is not a rule for transferring property. The right of each co-owner to his share is a right of property, and Article 18(1) of the 1992 Constitution guarantees every person the right “to own property either alone or in association with others”. A share held in association with others is still the holder’s own property. If eleven co-owners could sell the shares of the other four simply because there are more of them, the minority would hold their shares only for as long as the majority allowed. Neither the general law of property nor (PNDCL 111) contains any rule to that effect. Where the law intends that some persons may bind others in dealings with property, it provides so expressly and lays down safeguards. Section 93 of Act 63, which we consider below, is such a provision. Its safeguards include the court’s control and a duty to consider the beneficiaries’ wishes. It contains no rule that the majority shall prevail.

[35] The Court of Appeal’s own reasoning exposes the difficulty. It had found that “a tenant can only dispose of his interest in the property and not the interest of his co-tenants”, and that consent of the co-tenants “is required only where the entire property is to be disposed of”. It also found that the entire interest had been transferred, and that the 1st, 4th and 7th Appellants “were not involved”. On those findings, the only correct conclusion was that the sale could not pass their shares. The appeal to majority rule was used to avoid that conclusion, and that is not permissible in law.

[36] The position of the 3rd Appellant must also be considered. On the Court of Appeal’s own account, when he learnt of the proposed sale, he asked for time to raise the money so that “the sale halted”. A man who tries to find money to stop a sale is objecting to it. He is not consenting. The Respondent’s own evidence points the same way. Under cross-examination he agreed that the 3rd Appellant “was also in South Africa and you never saw him even after the transaction” .DW3 agreed that he was in South Africa at the time, “was not present”, and that she had “not mentioned his name”. Knowing that a sale is proposed is not the same as agreeing to it. The evidence does not support a finding that the 3rd Appellant agreed to the sale, and the Court of Appeal was wrong to count him among those who were “involved”.

[37] This does not change the result, which is the same whether three or four of the beneficiaries stood outside the transaction. At least three of the fifteen co-owners did not agree, and that is enough to decide the point. Ground one succeeds.

ISSUE 2: CAN THE SALE STAND AS A SALE BY THE PERSONAL REPRESENTATIVES?

[38] The Respondent’s main argument in this court is that the sale was made by the four administrators acting together, and that this gave it validity whatever the wishes of individual beneficiaries. We have considered this argument carefully, because a sale by personal representatives acting within their powers would indeed bind the beneficiaries. In such a case the beneficiaries’ interests would attach to the proceeds of sale. The argument fails, however, on the facts, on the state of the title in 2011, and on the statute.

WHAT THE EVIDENCE SHOWS

[39] As already noted, the Respondent’s pleaded case was a sale “by the Plaintiffs and the 1st Defendant … for themselves and on behalf of other beneficiaries”. The only document of sale, Exhibit 4, is signed by the 1st Defendant “representing all the children”. It is not signed by any of the administrators in that capacity, and nobody signed it on behalf of the estate. No contract or conveyance was executed by the personal representatives. The 1st Defendant described the transaction in her evidence as a sale by her, the proceeds of which she shared with her siblings. On the documents and on the evidence, this was a sale by some of the beneficiaries of what they regarded as their side of the house. It was not an exercise by the personal representatives of their statutory power of sale. The case that it was a sale by the personal representatives was developed in counsel’s written submissions on appeal. A court must decide a case on the pleadings and the evidence, and should not decide it on a version that was never pleaded: DAM VS. ADDO [1962] 2 GLR 200.

THE STATE OF THE TITLE IN 2011

[40] Section 1(1) of Act 63 provides that the movable and immovable property of a deceased person “shall devolve on his personal representatives with effect from his death”. In September 2011, the legal title to this property was still part of the estate of Francis Kojo Poku, and it was vested in his personal representatives. Neither the deceased’s personal representatives nor his beneficiaries held that title, which only left Francis Poku’s estate in July 2014. The Respondent concedes this in his statement of case. Whatever claim the deceased’s estate had against the estate of Francis Poku in 2011, the deceased’s administrators did not hold the legal estate. Treating the transaction as a sale by them, under a power that only attaches to property vested in them, therefore runs into a difficulty that the Court of Appeal did not consider.

[41] That difficulty also affects the order the Court of Appeal made. It directed “the personal administrators/personal representatives of the estate of Late Nicholas Kofi Mensah to formally convey the subject property”. But the legal title was not vested in them. It was vested by Exhibit A in the Appellants and the 1st Defendant, and the Court of Appeal did not set Exhibit A aside. The order directs persons who do not hold the legal title, in their capacity as administrators, to convey it.

SECTION 93 OF ACT 63

[42] Even if the administrators did make the sale, Section 93 would be against them. The Respondent’s counsel has quoted to us, as the governing provision, a subsection which reads: “A conveyance of immovable property shall not be made without the concurrence of all the persons to whom representation has been granted, unless the court otherwise directs.” He attributes it to “Section 6 of the Administration of Estates (Amendment) Law, 1985 (PNDCL 110)”. We must correct this. The Administration of Estates (Amendment) Law, 1985 is (PNDCL 113). Section 6 of that Law substituted a new Section 93 into Act 63, and the subsection counsel quoted does not appear in it. Section 93, as substituted, provides in its first three subsections:

“(1) Subject to subsection (2) of this section the personal representative may, so far as required for the purposes of administration, sell and convert into money any movable and immovable property of the deceased other than those household chattels and immovable property to which sections 3 and 4 of the Intestate Succession Law, 1985 (P.N.D.C.L. 111) apply.

Notwithstanding subsection (1) of this section if the personal representative is of the opinion that the conversion into money of those household chattels and the immovable property referred to in that subsection is necessary for the purposes of administration he shall apply to the Court for an order to sell and convert into money those household chattels and immovable property.

The Court shall, in making an order under subsection (2) of this section, consider all the circumstances of the case, including the wishes of those beneficiaries entitled to the household chattels and the immovable property.”

[43] The scheme of the section is clear. The general power of sale in subsection (1) expressly excludes the house that devolves under Section 4 of (PNDCL 111). Personal representatives therefore have no power of their own to sell such a house. They may sell it only under an order of the court, and subsection (3) requires the court, before making the order, to consider the wishes of the beneficiaries entitled to the house. Parliament plainly meant every beneficiary to be heard, and that would include a minority of four out of fifteen. This house is the very property the section protects. Counsel for the Appellants did not refer to subsections (1) and (3), but both support his submission.

[44] The Court of Appeal correctly identified the purpose of the requirement, which is to protect beneficiaries. It then gave three reasons for excusing compliance. We consider each of them.

[45] The first reason was that a sale by the administrators “in conjunction with majority of the beneficiaries … is not a scenario Section 93 of Act 63 envisaged”. The section, however, makes no exception for a sale supported by a majority. It requires a court order for every sale of a section 4 house, and it requires the court to hear “those beneficiaries entitled”. The protection is given to each beneficiary, so a majority cannot give it up on behalf of the others. This reason is the majority principle again, applied to the statute, and it fails for the reasons we have already given.

[46] The second reason was that the matter was already in court and “the court had encouraged the administrators and beneficiaries to settle”. When a court encourages parties to settle, it is not authorising a sale under Section 93(2). The section requires an application and an order made after the court has considered the circumstances and the wishes of the beneficiaries. Encouraging a settlement involves none of these. The supervision of the transaction by counsel in his chambers cannot take the place of the court’s order, however respected counsel was. If the court had meant to authorise a sale, it would have said so, and as counsel for the Appellants observes, no such order exists. The Court of Appeal itself found that Exhibit C1 was not such an order.

[47] The third reason was that the widow and most of the children took part. That was a reason for holding those who took part to the consequences of what they did, and we deal with that below. It cannot be a reason for binding those who did not take part, and they are the very people the statute protects.

[48] We would add one further point. Section 93(1) permits a sale only “so far as required for the purposes of administration”. On the Respondent’s own case, the purpose of the sale was to pay some of the beneficiaries their shares so that school fees could be paid. Paying beneficiaries their shares is distribution of the estate. It is not administration in the sense of paying debts and expenses. Whether a court asked to approve such a sale under Section 93(2) would have done so is a question we need not answer, because no court was ever asked.

[49] Counsel for the Respondent argues that, on his reading of the section, a court order is needed only where the administrators disagree, and that since all four agreed, no order was needed. That argument depends on the text counsel quoted, which is not the law. On the actual text of Section 93, the agreement of all the administrators does not give them a power of sale that subsection (1) withholds.

[50] Counsel also argues that the Appellants are inconsistent. He points out that they say there “would not have been any issue if all the beneficiaries had consented”, and argues that if the agreement of all the beneficiaries could make up for the lack of an order, then the agreement of most of them should do so too. This does not follow. If every person entitled to the house agrees to sell it, they are disposing of their own property, and there is nobody left for the statute to protect. If only some of them agree and others do not, they are disposing of property that partly belongs to others, even if it is one person, and the statute exists to prevent that. The difference between the two cases is the whole point.

[51] Our conclusion on this issue is that the transaction was not a sale by the personal representatives in exercise of a statutory power. Even if it had been, it was made without the order section 93(2) requires, and could not bind the beneficiaries who did not agree to it. With all due respect to the Learned Justices of the Court of Appeal, they erred in holding that, the omission was not fatal.

ISSUE 3: ESTOPPEL, ACQUIESCENCE AND DELAY

[52] The Court of Appeal held that the Appellants were “estopped by conduct” because none of them objected to the renovations made “under their watching eyes”, because most of them knew of the sale, and because most of them shared in the proceeds. Section 26 of the Evidence Act, 1975 (NRCD 323) provides:

“Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in proceedings between that party or his successors in interest and the relying person or his successors in interest.”

[53] The estoppel the section creates operates against a particular party, on account of that party’s own statement, act or omission. One co-owner cannot be estopped by what another co-owner did. Equity’s doctrine of standing by, which counsel for the Respondent invokes through PICKARD VS. SEARS (1837) 6 A & E 469 and PROFESSOR KLUDZE’S MODERN PRINCIPLES OF EQUITY, has the same limit. The owner who is barred is one who knows of his own right, that the other person is acting in the mistaken belief that the property is his, and encourages that person, either actively or by keeping quiet when he should speak: RAMSDEN VS. DYSON (1866) LR 1 HL 129; WILLMOTT VS. BARBER (1880) 15 CH D 96. A person cannot be said to stand by while work is done if he is not there and does not know about it.

[54] On the Court of Appeal’s own findings, the 4th and 7th Appellants were out of the country. The 1st Appellant was in Accra and objected once he arrived. The Respondent’s own evidence places the 3rd Appellant in South Africa, and says he never saw him. The Respondent also says that the works were complete when he moved in during December 2011, about three months after the sale. There is no evidence that any of these four Appellants knew of the works while they were being carried out, still less that any of them encouraged the Respondent to believe that their shares had become his. The finding that the works were done “under their watching eyes” cannot stand against these Appellants. It was contradicted by the Court of Appeal’s own finding that the 1st Appellant “instigated the first resistance” when he arrived. Any money the Respondent spent after he received the solicitors’ letters in 2012 was spent with notice of the objection, and at his own risk.

[55] The position of the 2nd, 5th and 6th Appellants and the 1st Defendant is different. The Trial Court found that they knew of the sale, and the Appellants did not appeal against that finding. The Respondent contends, and the Court of Appeal accepted, that the 2nd Appellant gave him possession, and that the 1st Defendant showed him the boundaries. These four persons did, by their conduct, lead the Respondent to part with his money and to rely on the transaction. As against them, Section 26 of the Evidence Act applies. What it prevents them from doing, however, is denying to the Respondent that they took part in the sale and that they caused him to act to his detriment. It cannot make them owners of the shares of their co-owners, and it does not allow them to convey those shares. The proper consequence of their estoppel is that they must bear the cost of undoing the transaction. We return to this when we consider the remedy.

[56] Counsel for the Respondent argues that, at most, the transaction was voidable, and that the Appellants did not move promptly to avoid it. We do not find it necessary to decide whether the transaction was void or voidable. Even if it was only voidable, the non-consenting Appellants objected through their solicitors within about a year, and they issued the writ in February 2015, about three and a half years after the sale. That is well within the period of twelve years allowed by Section 10(1) of the Limitation Act, 1972 (NRCD 54) for an action to recover land. A co-owner who protests through his solicitors and then sues within the statutory period has not been sleeping on his rights. It is true that the 1st Appellant tried to renegotiate the price. The Respondent rejected that attempt, as the evidence at page 128 of the record shows. An offer to sell at a higher price, once rejected, is not acceptance of the lower price that was actually paid.

ISSUE 4: THE WRITING REQUIREMENT AND SPECIFIC PERFORMANCE

[57] The Appellants argue that no writing transferred the property to the Respondent, and that the sale therefore offends Sections 1 and 2 of (NRCD 175). The Respondent answers that Exhibit 4 is a sufficient writing. He relies on DONKOR VS. ALHASSAN [1987-88] 2 GLR 253, where the Court of Appeal decreed specific performance of a sale evidenced by signed receipts, and on the doctrine of part performance.

[58] We agree with the Respondent to this extent. A contract for the sale of land need not be in any particular form. Under Section 2(a) of (NRCD 175), it is enough that it is “evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of such person”. A receipt that names the parties, identifies the property, states the price and is signed by the party to be charged can satisfy that requirement, as it did in DONKOR VS. ALHASSAN. Exhibit 4 does all of that. To the extent that the Appellants argue that a receipt can never be sufficient, the argument is wrong.

[59] But the question is not whether Exhibit 4 is a writing at all. The question is against whom it can be enforced. Section 2(a) makes the contract enforceable against the person who signed it, or against a person on whose behalf it was signed by someone authorised to sign for him. Exhibit 4 was signed by the 1st Defendant alone. Her description of herself as “representing all the children” is a statement she made about her own authority. A person’s authority to act for others cannot be proved by that person’s own statement, and there is no evidence that the 1st, 3rd, 4th or 7th Appellants ever authorised her to sign for them. Section 1(1) of (NRCD 175) goes further for an actual transfer, which must be signed by the transferor “or by his agent duly authorised in writing”. There is no written authority from any of these Appellants.

[60] Part performance does not help the Respondent against them either. Section 3(2) of (NRCD 175) preserves the equitable doctrine of part performance. The doctrine allows a court to enforce a contract that was in fact made, where writing is absent, if the acts of part performance point to that contract. It cannot create a contract with persons who never agreed to one. The possession the Respondent received came from the 2nd Appellant and the 1st Defendant. That possession, and the money he spent on the property, are evidence of his dealings with them. They are not evidence of any agreement by the absent co-owners.

[61] There are further reasons why the Court of Appeal should not have decreed specific performance. Specific performance is a discretionary remedy and it is granted on terms that are fair to everyone affected by it. The order the Court of Appeal made compels the conveyance of co-owners’ shares that the vendors never had. It is directed at persons who do not hold the legal title. It also binds, by way of perpetual injunction, Appellants who were never parties to any contract. Counsel for the Respondent says that it rides “on all the four wheels” of DONKOR VS. ALHASSAN, but that case does not support it. In DONKOR VS. ALHASSAN, the vendor was the sole owner of the house and had signed the receipts. In this case, the vendors were some of the owners and purported to sell the whole of the unit.

[62] We have asked ourselves whether the Respondent should at least receive the undivided shares of those who did take part in the sale. We do not think so, for four reasons. First, the Respondent never bargained for fractional shares in a house held in common with strangers. He bargained for the whole unit, and his counterclaim seeks the whole unit. Secondly, an order giving him fractional shares would force the non-consenting Appellants into co-ownership with a stranger who is in occupation and who has re-roofed and walled off part of their common property. A court will not grant specific performance of a part interest on terms that prejudice co-owners who were never party to the bargain: THAMES GUARANTY LTD. VS. CAMPBELL [1985] QB 210. Thirdly, the shares of the participants have never been determined, and they cannot be determined without the seven children who are not before the court. Fourthly, the trial court has already assessed the value of the Respondent’s improvements, and an order for the return of his money will compensate him adequately.

ISSUE 5: THE CHILDREN WHO ARE NOT PARTIES, AND EXHIBIT A

[63] The Court of Appeal was right to insist that the children of Beatrice Afriyie are beneficiaries of their father’s estate. Section 4(a) of (PNDCL 111) gives the house to “the surviving spouse or child or both”, and a child born of another woman is still a child. To the extent, that the first relief on the writ implies that the Appellants and the 1st Defendant are the only beneficiaries, it goes too far, and we shall amend it.

[64] Two consequences that the Court of Appeal drew do not follow, however. First, the Appellants’ right to protect their own shares does not depend on whether others share the same rights. A co-owner may sue to protect his own interest against a stranger who claims under a transaction he never agreed to. Order 4 rule 5(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides that a proceeding shall not be defeated by the non-joinder of any party, and that the court may determine the issues so far as they affect the rights of the parties before it. The writ was not “defective” for this reason.

[65] Secondly, whether Exhibit A is defective as between the beneficiaries themselves, or as between them and the estate of Francis Poku, was not an issue at the trial. Neither the administrators of that estate nor the excluded children were heard on it. The question cannot be decided against persons who were not heard, and the Court of Appeal’s observation does not bind them. In any event, the observation does not help the Respondent. If Exhibit A were defective, the legal title would remain in the estate of Francis Poku, and the persons who sold to the Respondent would have had even less to give him.

[66] Exhibit 9 suggests that the children of Beatrice Afriyie received Thirty Thousand One Hundred Seven-Five Ghana Cedis (GH¢30,175.00) out of the purchase price. The effect of that payment on their entitlement is a matter between them and the estate, and nothing in this judgment decides it. Counsel for the Respondent invokes the maxim that “he who comes to equity must come with clean hands”. That maxim is concerned with the conduct of the party who seeks relief, in relation to the very matter in dispute. The Appellants who did not agree to the sale did nothing wrong in this transaction. Those who did take part in it will, under the orders we make, bear its consequences.

ISSUE 6: REMEDY

[67] The Respondent paid Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) and spent his own money improving the property. The Court of Appeal ordered specific performance in order to avoid what it called “unjust enrichment by the Respondents”, and the concern behind that order was a proper one. However, unjust enrichment must be avoided on both sides. If the Appellants recovered the unit and kept the benefit of the Respondent’s money, they would be unjustly enriched. If the Respondent were given the shares of co-owners who never sold to him, he would be unjustly enriched at their expense. The law resolves this by setting the transaction aside and restoring the parties, so far as possible, to their original positions. This is a condition of setting aside the transaction, and it falls on those whose conduct brought it about. A court that sets aside a sale must make sure the purchaser is repaid.

[68] The Learned Trial Judge had this principle in mind. He ordered the 2nd, 5th and 6th Appellants and the 1st Defendant to pay One Hundred and Thirteen Thousand, Five Hundred Ghana Cedis (GH¢113,500.00) for the improvements and allowed the Respondent to remain in possession until he was paid. As those consequential orders have been reproduced to us, however, they make no express provision for the return of the Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) purchase price. Restitution that leaves the purchaser without his purchase money would be incomplete. Under Article 129(4) of the Constitution, this court has all the powers of the courts below for the purpose of determining the matter before it, and we shall make good that omission.

[69] We have considered whether interest should be awarded on the purchase price for the period since 2011. The Respondent has occupied the unit since December 2011 without paying rent, and those who received his money have had the use of it over the same period. When a sale is set aside, equity ordinarily treats the purchaser’s use of the land and the vendors’ use of the purchase money as balancing each other, and we shall do the same here. That balance lasts only for as long as the Respondent remains in possession. If payment is not made within the time we allow, interest will run from the end of that time.

[70] The parties liable to make restitution are those whose conduct, on the unchallenged findings of the trial court, brought about the transaction: the 2nd, 5th and 6th Appellants and the 1st Defendant. It is on them that the estoppel under Section 26 of (NRCD 323) operates. Their liability is joint and several. Any right they may have to recover contribution from others who received part of the proceeds is preserved.

CONCLUSION

[71] For these reasons, the appeal succeeds on both grounds. The Court of Appeal erred in law in holding that a majority of the beneficiaries could validly sell the shares of the minority. It also erred in law in holding that the failure to obtain an order under Section 93(2) of Act 63 was not fatal. Its finding that the Appellants watched the works being done and were therefore estopped is not supported by the evidence so far as the 1st, 3rd, 4th and 7th Appellants are concerned.

[72] Upon our consideration of the appeal in the round, we hereby hold and order as follows:

The appeal is allowed. The judgment of the Court of Appeal dated 12th November 2024, including the order for costs, is set aside.

The judgment of the High Court dated 31st October 2019 is restored, subject to the following variations.

It is declared that House No. 38, Block E, Fankyenebra, Kumasi devolved, under Section 4(a) of the Intestate Succession Law, 1985 (PNDCL 111), on the surviving spouse and the children of the late Nicholas Kofi Mensah, including the Appellants and the 1st Defendant, who hold it as tenants in common. Nothing in this judgment determines the shares of, or any claim by, the children of the deceased who are not parties to this suit.

It is declared that neither the 1st Defendant alone, nor the 1st Defendant together with the 2nd, 5th and 6th Appellants or any other beneficiaries, had capacity to transfer the shares of the beneficiaries who did not agree to the transaction.

It is further declared that the transaction of September 2011 was not a sale by the personal representatives of the deceased in exercise of a power under Section 93 of the Administration of Estates Act, 1961 (Act 63), and that it was in any event made without the order of the court required by Section 93(2) of that Act.

The purported sale of September 2011 to the Respondent is set aside. The Respondent’s counterclaim is dismissed.

The 2nd, 5th and 6th Appellants and the 1st Defendant, jointly and severally, shall pay to the Respondent One Hundred and Seventy-Eight Thousand, Five Hundred Ghana Cedis (GH¢178,500.00), made up of Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) as refund of the purchase price and One Hundred and Thirteen Thousand, Five Hundred Ghana Cedis (GH¢113,500.00), being the value of the improvements as assessed by the High Court. The sum shall be paid within two months from the date of this judgment. Any part of it that remains unpaid at the end of that period shall attract simple interest at the prevailing commercial bank rate from the end of that period until the date of final payment.

(SGD.) I. O. TANKO AMADU