[2026] SLR (SC) 90Supreme Court - Ghana2026 SC - GHANA

LAMBERT SACKEY & ANOR vs. GEORGE CHIDIACK & ANOR

4 November 2026 · AMADU JSC · ≈ 44 min read

Cite as[2026] SLR (SC) 90

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OSCOLALAMBERT SACKEY & ANOR v GEORGE CHIDIACK & ANOR [2026] SLR (SC) 90

APALAMBERT SACKEY & ANOR v GEORGE CHIDIACK & ANOR, [2026] SLR (SC) 90 (Ghana).

BluebookLAMBERT SACKEY & ANOR v GEORGE CHIDIACK & ANOR, [2026] SLR (SC) 90 (Ghana Sup. Ct. 2026).

Linkhttps://superlawgh.com/slr/2026/sc/90/

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: AMADU JSC (PRESIDING)

ADJEI-FRIMPONG JSC

DZAMEFE JSC

BARTELS-KODWO (MRS.) JSC

AMALEBOBA (MRS.) JSC

CIVIL APPEAL

NO. J4/31/2022

4TH NOVEMBER ,2026

LAMBERT SACKEY PLAINTIFFS/APPELLANTS/

JUSTINA SACKEY RESPONDENTS

VRS

GEORGE CHIDIACK DEFENDANTS/RESPONDENTS/

RAYMOND CHIDIACK APPELLANTS

JUDGMENT

TANKO AMADU JSC:

Introduction

The question for our determination in this appeal is not novel to this court. We are invited by the Appellants to decide which of the two lower courts properly apprehended and evaluated the evidence on record and applied the relevant law before arriving at their respective conclusions. This appeal is from the judgment of the Court Appeal dated 3rd December 2022 by which that court overturned the decision of the High Court dated 21st March 2016 granted in favour of the Defendants.

BACKGROUND FACTS

In 1967 a house at South La Estate, Accra (“the disputed house”) was acquired from the State Housing Corporation (SHC) in the name of a Ghanaian businessman. The Defendants say it was paid for by his partner, a Lebanese businessman who, as a foreigner, could not buy it in his own name due to government policy, at the time which did not permit non Ghanaian citizens to acquire such interest. The Lebanese businessman lived in it. When he left Ghana, the Ghanaian partner took care of the property. When the Lebanese businessman’s family later demanded the property, the partner handed it over to them. He then lived for another eight years without asking them for a pesewa in rent, and he never claimed the house as his own. The Lebanese businessman’s family has lived there ever since. More than forty years after the purchase, and twelve years after the death of the man in whose name the house stood, his grandchildren sued to recover it as part of their inheritance. They relied on the name in the register without more.

As aforesaid, the High Court held that, the house had been bought for the Lebanese businessman and belonged to his estate. The Court of Appeal reversed that decision. It held that the name in the register prevailed and that the occupants were mere tenants. The Defendants, who are the sons of the Lebanese businessman, now appeal to this court against that reversal. In this judgment we refer to the Plaintiffs/ Appellants/Respondents as “the Plaintiffs” and to the Defendants/Respondents/Appellants as “The Defendants”.

The appeal requires this court to address four questions. The first is the distinction between legal and beneficial ownership, and the circumstances in which a person in whose name property stands holds it in trust for the person who paid for it. The second is the burden of proof in an action for a declaration of title, and the evidential weight of long, open and rent free possession. The third is the admissibility of an old private letter, admitted at the trial without objection, which is rejected on appeal. The fourth is the proper limit of a first appellate court’s power to substitute its own view of the facts for the findings of the Trial Judge who saw and heard the witnesses. Before these four questions, we must deal with the challenges to the Plaintiffs’ right to sue at all. Those challenges oblige us to separate two concepts that are too often run together: a party’s capacity to sue, and his standing to bring the particular claim (locus standi). We must also deal with the challenge to the validity of the Plaintiffs’ grant of letters of administration.

THE CASE OF THE PLAINTIFFS

The Plaintiffs are brother and sister. They are the only children of their late mother, who was in turn the only child of the Plaintiffs’ late grandfather (“the grandfather”) and his late wife. Their case is that their grandfather acquired the disputed house for himself from the State Housing Corporation (now the State Housing Company Limited, “SHC”) in 1967; that he let it out to tenants, among them PW1 and her husband and, later, an uncle of the Defendants (“the uncle”); that on his death intestate on 27th February, 2000, the house devolved on his widow and his only child. That on the deaths of both, it devolved on the Plaintiffs, who obtained letters of administration in respect of their mother’s estate (Exhibit E). The 1st Plaintiff testified that, after the grant he permitted the 2nd Defendant to continue to live in the house.

In support of the claim to title the Plaintiffs tendered receipts of instalment payments made to State Housing Corporation (SHC) in the name of the grandfather (Exhibits A to A3) and ground rent receipts in his name (Exhibit B). They also subpoenaed an official of SHC, PW2, who produced the corporation’s records (Exhibits J and K). Those records show a sixty-year lease from 1st June, 1967 granted to the Plaintiffs grandfather, who had first occupied the house as a sitting tenant and who paid the first deposit on 6th June, 1967. The Plaintiffs further relied on a series of documents arising from dealings, after their grandfather’s death, between one person claiming to be head of the grandfather’s family (“the family head”) and a half-brother of the Defendants’ father (“the half-uncle”). These dealings are discussed below.

By writ of summons issued in October, 2012 the Plaintiffs claimed against the Defendants the following reliefs:

“(a) Declaration of title over H/No.10 Jomo Street,

South La Estate, Accra

(b) Recovery of possession;

(c) Perpetual injunction restraining the Defendants, their assigns, servants, workers or any person claiming through them from entering or interfering in any H/No.10 Jomo Sreet, South la Estate, Accra ;

(d) General damages.”

THE CASE OF THE DEFENDANTS

The Defendants are sons of a late Lebanese businessman (“the Defendants’ father”) who traded in Ghana and in the sub-region. Their case is that their father and the Plaintiffs’ grandfather were business partners. In 1967 the houses on the State Housing Corporation (SHC) estates were not sold to foreigners. The Defendants’ father therefore arranged for the Plaintiffs’ grandfather to acquire the disputed house for him, and the Defendants’ father advanced the money for its purchase. That, they say, is why the records of SHC bear the name of the Plaintiffs’ grandfather although the house was never his. The Defendants’ father lived in the house until about 1969, when, in the wake of the Aliens Compliance Order, he relocated to Togo. Thereafter he shuttled between Togo and Ghana in the course of his transport business, and when in Ghana he lived in the house.

After the Defendants’ father’s death, his brother (the uncle) wrote to the Plaintiffs’ grandfather in French on 6th April, 1992 (Exhibit 9) seeking a meeting to discuss “the memorandum of understanding” between [the Plaintiffs’ grandfather] and “my late brother [the Defendants’ father], for whom you made arrangements and he made advanced payments for the purchase of a house along the South La Beach, in his name”. The Plaintiffs’ grandfather thereupon arranged for the persons then living in the house to leave and gave vacant possession to the Defendants’ uncle. The Defendants’ uncle moved in with the children of the Defendants’ father, including the 2nd Defendant, who was then a boy of about eight (8) years. The Defendants say that, no member of their family has ever paid rent to the Plaintiffs’ grandfather, his widow, his daughter or the Plaintiffs themselves. They also say that the family has been in continuous possession from 1967 to date.

The Defendants denied the Plaintiffs’ claim and counterclaimed for the following reliefs:

“(i) Declaration that H/No. 10 Jomo Street, South La

Estates, Accra belongs to the estate of the late Joseph Fouad Chidiac.

(ii) Perpetual injunction restraining the Plaintiffs, their privies, successors, assigns etc. from interfering with the peaceful enjoyment of the Defendants;

(iii) Costs including legal fees.”

The Defendants also pleaded that the Plaintiffs’ letters of administration had been procured by fraud, and gave particulars.

THE PROCEEDINGS AND JUDGMENTS OF THE

COURTS BELOW

At the close of pleadings the following issues, among others, were set down for trial at the High Court:

(a) Whether or not the property in dispute was acquired by

S.K Johnson from SHC for himself?

(b) Whether or not Joseph Fouad Chidiac gave money to the late S.K Johnson to buy the house in dispute for him?

(c) Whether or not the property in dispute devolved to the

Plaintiffs’ late mother after the death of S.K. Johnson?

(d) Whether or not the Defendants have capacity to challenge the Letters of Administration of Plaintiffs?

(e) Whether or not Plaintiffs permitted the Defendants to live in the house in dispute?

(f) Whether or not the Defendants have asserted the title of the Plaintiffs to H/No.10 Jomo Street, South La Estate-

Accra?

(g) Whether or not Plaintiffs are entitled to their claim?

(h) Whether or not Defendants are entitled to their counterclaim?

(i) Any other relevant issues arising from the pleadings.

THE JUDGMENT OF THE HIGH COURT

The High Court delivered its judgment on 21st March, 2016. The Learned Trial Judge found for the Defendants on every material issue.

On capacity, the Learned Trial Judge held that the Plaintiffs had no standing to sue. She reasoned that, under the Administration of Estates Act, 1961 (Act 63) the property of a deceased person devolves on his personal representatives. In her view, until those representatives execute a vesting assent, the beneficiaries have no capacity to deal with the property. Even if the Plaintiffs’ grandfather’s widow inherited the house by operation of law, she had not passed it to her daughter, and no assent had been executed in favour of the Plaintiffs. Relying on IN RE OKYERE (DECD); PEPRAH VS. APPENTENG & ADOMA [2012] SCGLR 65, she concluded that “by implication, the Plaintiffs herein have no locus standi to sue the Defendants because no vesting assent has been executed in their favour”. The Learned Trial Judge also held that the Plaintiffs could not take a grant that included the house while the earlier grant over their grandfather’s estate to the family head remained unrevoked. She further found that the 1st Plaintiff had not shown that he had the authority of the 2nd Plaintiff to bring the action, since by settled law, administrators must act in unison unless an instrument of authority is procured in favour of the one intending to act for and on behalf of the other administrator(s).

On fraud, the Learned Trial Judge accepted the evidence of a former clerk that, the 2nd Plaintiff was in the United Kingdom when the grant was made, and that the clerk had signed in her name on the instructions of her employer a lawyer. She observed: “As serious as this allegation of fraud could be the plaintiffs did not adduce evidence to discredit the Defendants on the issue.” The Learned Trial Judge also held that, the Plaintiffs’ grant had been procured by fraud. She also criticised counsel who had appeared for the Plaintiffs, finding that he had earlier acted for a relative of the Defendants’ in respect of the same property and that his conduct “falls short of the standard expected of him”.

On the merits of the case, the Learned Trial Judge identified the question whether the Defendants’ father gave money to the Plaintiffs’ grandfather to buy the house as “the crux of the whole matter”. She found that the Defendants’ father was the first of his family to live in the house, and that the uncle came to live there only after the Defendants’ father’s death. She reasoned that, if the Plaintiffs’ grandfather had let the house to the Defendants’ father, the uncle could not have lived there without paying rent during the Plaintiffs’ grandfather’s lifetime.

In the view of the Learned Trial Judge, the evidence revealed that, the Plaintiffs’ grandfather did nothing to prevent the uncle’s occupation and never asserted ownership by collecting rent from him. The Trial Judge relied on Exhibit 9, which she held “partly resolves the important issue of how the defendants acquired the right of possession and occupation in successive transfer from one family member to the other”. She found that the rent free occupation continued until the Defendant half-uncle “was made to pay money to a stranger”.

As for the Plaintiffs’ claim that the Defendants were tenants, she held that “every tenant is however subjected to periodic payments to a Landlord in return for the use of the property, but there is absolutely no evidence of any series of periodic payments”. She also found it strange that the grandfather’s widow did not apply for letters of administration after his death. She took no step until a customary successor had obtained a grant without her knowledge.

In the Trial Judge’s view, the pattern of events suggested that the grandfather had never told his wife that the house was his. She concluded that “on the preponderance of probabilities… it is more probable that [the grandfather]… did purchase the property for the [Defendants’ family] under a special arrangement”. She added, by way of observation, that, even assuming the Defendants were in adverse possession, the Plaintiffs would be estopped by their conduct from recovering the house, although limitation had not been pleaded. The Learned Trial Judge therefore dismissed the Plaintiffs’ claim and entered judgment for the Defendants on their counterclaim.

THE JUDGMENT OF THE COURT OF APPEAL

The Court of Appeal delivered its judgment on 3rd December, 2020 and allowed the appeal. On capacity, it held that the trial court had misapplied the law in non-suiting the Plaintiffs, and that this had occasioned “a grave miscarriage of justice”. It relied on ADISA BOYA VS. ZENABU MOHAMMED (CIVIL APPEAL NO.J4/44/2018) and on Section 4 of the Intestate Succession Act, 1985 (PNDC LAW 111). It reasoned that the house was the only immovable property of the Plaintiffs’ grandfather, and that on his death intestate, it vested in his widow and only child as tenants in common. The court disagreed with the trial judge that the widow’s failure to take out letters of administration meant that the property did not devolve on her. It noted that the widow and her daughter had taken steps to set aside the family head’s grant, although that suit did not run its full course because both of them died. The court also held that a party need not give evidence personally if the evidence is given on his behalf, relying on the case of NYAMEKYE VS. ANSAH [1989-90] 2 GLR 152.

On fraud, the Court of Appeal noted that the Plaintiffs had denied the allegation. It held that the Defendants, who alleged, ought to have produced documentary or other evidence sufficient to establish it, and had not done so. It set aside the finding of fraud.

On the merits, the Court of Appeal held that Exhibit 9 had been wrongly admitted. It reasoned that “once the evidence shows that Exhibit 9 was sent from Togo meant to be used in the trial here in Ghana, its acceptance in evidence ought to have met the requirements of the law as housed in Ss. 161 & 136 of the Evidence Act 1975 (NRCD 323)… The document being translated into English Language as ordered by the Court was insufficient”. It held that, the Defendants’ assertion of a special arrangement “was never proved with any degree of certainty”. It stated that “the Trial Judge in her judgment made a finding of fact that [the grandfather] owned the property”.

On the status of the Defendants’ family, the Learned Justices of the Court of Appeal held as follows:-

“As regards whether the [Defendants’ family] were tenants in the disputed property, I hold that there is that overwhelming evidence that the [Defendants’ family] through whom the Respondents trace their root of title, were tenants paying rents to the estate of the late [grandfather]. From the evidence, it could easily be inferred that it was [the grandfather] who permitted [them] to occupy the house as tenants. Indeed, there is that unchallenged evidence that the lawyers from the estate of [the grandfather] at a stage wrote to demand settlement of arrears of rent in respect of the tenancy agreement with [the half-uncle].”

The Court of Appeal also described the interest of the Defendants’ family as that of “licensees who had enjoyed undisturbed possession for admittedly many years”. Upon its own findings as set out above the Court of Appeal entered judgment for the Plaintiffs on their claim and dismissed the Defendants’ counterclaim as unproven, and in any event unsustainable.

THE INSTANT APPEAL

Dissatisfied with the judgment of the Court of Appeal, the Defendants appealed to this court per notice of appeal dated the 8th December 2020 with only the omnibus ground that “the judgment is against the weight of evidence”. By leave, they filed additional grounds. The composite grounds of appeal, as finally formulated and set out are as follows:

The judgment is against the weight of evidence.

The Court of Appeal erred in law and in fact in holding that, the Plaintiffs are clothed with capacity to mount the action.

It is a misapprehension of the law for the Court of Appeal to say that the 1st Plaintiff ought to have obtained a power of attorney from the 2nd Plaintiff before testifying on her behalf, even though the evidence on record shows that the 1st Plaintiff indicated that he was giving evidence on their joint behalf.

The Court of Appeal erred in holding that the Plaintiffs did not need letters of administration to sue in respect of the estate of the grandfather, in the light of the fact that letters of administration had already been granted to the family head.

The Court of Appeal erred in dismissing the allegation of fraud.

The Court of Appeal erred in law and in fact in holding that the Defendants’ family, through whom the Defendants trace their root of title, were tenants paying rent to the estate of the grandfather.

The Court of Appeal erred in law in holding that the interest held by the Defendants’ family in the disputed house was that of licensees who had enjoyed undisturbed possession for many years.

The Court of Appeal erred in holding that Exhibit 9, the letter from the Defendants’ uncle, was wrongly admitted.

The Court of Appeal erred in holding that the special arrangement between the Defendants’ father and the grandfather was never proved.

The Court of Appeal erred in law and in fact in dismissing the counterclaim of the Defendants.

THE COMPETENCE OF THE GROUNDS OF APPEAL IN THIS COURT

Before we turn to the substance, we must say something about the form of these grounds. Most of them do not comply with the Supreme Court Rules, 1996 (C.I. 16). The defects are not mere technicalities. Rule 6(2)(f) requires a notice of appeal to state “the particulars of any misdirection or error in law, if so alleged”. Rule 6(4) requires the grounds to be set out concisely, under distinct heads, “without any argument or narrative”. Rule 6(5) provides that; a ground which is vague or general in terms, or which discloses no reasonable ground of appeal, is not permitted, except the general ground that the judgment is against the weight of evidence. A ground that offends these provisions may be struck out by the court of its own motion. These rules exist so that the Respondent in the appeal and the court know precisely what error is alleged and where it is to be found.

Measured against these requirements, Grounds (2), (6), (7) and (10) each allege that the Court of Appeal “erred in law” or “erred in law and in fact”. Ground (8) complains of a ruling on admissibility, which is a question of law. None of these grounds provides any particulars of the error of law alleged. They do not identify the principle that was misapplied, the provision that was misconstrued, or the respect in which the court’s reasoning departed from the law. Grounds (3) and (4) are worse. Each contains argument in the body of the ground itself: “even though the evidence on record shows that…” and “in the light of the fact that…” Ground (3) also attributes to the Court of Appeal a holding that, on the Plaintiffs’ unchallenged submission, it never made for want of compliance with the rules. Grounds (2), (3), (4), (6), (7), (8) and (10) are consequently struck out.

Grounds (5) and (9) each identify a specific finding of the Court of Appeal and complain that it was wrong. They are inelegant and not models of drafting, but they tell the Respondents what case they have to meet. For that reason, they survive. Ground (1), the omnibus ground, is expressly permitted by Rule 6(5) of C.I.16

We must state that, striking out the defective grounds does not mean that the questions they raise go unanswered. Three considerations apply. First, capacity and standing go to the competence of the action itself. A court may consider them at any stage, and may do so of its own motion, whether or not it is properly raised as a ground. Secondly, under the omnibus ground this court is bound to evaluate the whole of the evidence on the record. A point of law may be argued under that ground where it arises from the evidence or the exhibits, such as the admissibility and effect of a document relied on below. See the settled jurisprudence by this court as exemplified in OWUSU-DOMENA VS. AMOAH [2015-2016] 1 SCGLR 790; ATUGUBA & ASSOCIATES VS. SCIPION CAPITAL (UK) LTD. [2019] GHASC 18. Thirdly, by rule 6(7)(b) this court “shall not, in deciding the appeal, confine itself to the grounds set forth by the appellant”. Every question we consider below was fully argued in both parties’ statements of case, so no question of unfairness under Rule 6(8) arises.

We shall therefore consider, first, the capacity and standing of the Plaintiffs to bring the action. We shall then take ground (5), on fraud. Finally, we shall take the merits under the omnibus ground (1) and ground (9), which turn on the same body of evidence.

THE LAW AND PRINCIPLES

It is settled law that, an appeal is by way of rehearing, and that this court, like the first appellate court, is entitled and indeed bound to examine the whole record. It must satisfy itself that the conclusions reached below are supported by the evidence on a preponderance of the probabilities. See TUAKWA VS. BOSOM [2001-2002] SCGLR 61. The guiding principle has been that, an Appellant who complains that a judgment is against the weight of the evidence assumes the burden of identifying the evidence which was ignored or wrongly applied, and which if properly applied, would have produced a different result as this court stated in the case of DJIN VS. MUSAH BAAKO [2007-2008] SCGLR 686.

In the instant appeal, the Trial Court and the Court of Appeal arrived at different conclusions on every material question of fact. As observed earlier, our task is to decide which of the two conclusions is the one that the evidence, properly evaluated, supports. In performing that task we bear in mind the principles that govern a first appellate court which is invited to reverse the primary findings of a trial judge on the facts. In KOGLEX (NO.2) VS. FIELD (supra) at 184-185, Acquah JSC (as he then was) explained that, findings based on the demeanour and credibility of witnesses are peculiarly within the province of the trial court, which saw and heard the witnesses.

An appellate court should therefore be extremely slow to interfere with such findings. On the other hand, where the findings rest on established facts the appellate court is in as good a position as the trial court to draw its own inferences. This court has repeatedly identified the circumstances that provoke and justify appellate or further appellate interference. They are: where the findings are clearly unsupported by the evidence; the reasons given for them are unsatisfactory; a principle of evidence has been improperly applied; the court failed to draw an irresistible conclusion from the evidence; the findings rest on a wrong proposition of law; or they are inconsistent with crucial documentary evidence. In further articulating on these guidelines Kludze JSC cautioned in the case of IN RE OKINE (DECD) [2003-2004] SCGLR 582 AT 607, as follows:

“where the evidence can reasonably support the conclusions of the trial judge, the appellate judges should not order a reversal just because their assessment and comparison, or their view of the probabilities, may be at variance with those of the Trial Judge. If the evidence can lead to two or more plausible conclusions, the conclusion of the Trial Judge should prevail, even though a different judge might come to a different conclusion.”

The question on the merits, therefore, is not whether the Court of Appeal’s view of the evidence was a possible one. It is whether the Trial Judge’s conclusion was one which the evidence could not reasonably support. If findings were reasonably open to the Learned Trial Judge, the Court of Appeal was not entitled to displace it.

CAPACITY AND STANDING

TWO DISTINCT QUESTIONS

Capacity and standing (locus standi) are often treated as if they were the same concept and the submissions on both sides in the instant appeal use the two words interchangeably. They are related, but they are not the same, and on the peculiar facts of this case the difference is decisive.

Capacity concerns the character in which a party comes to court and his legal competence to sue in that character. A person who sues in a representative capacity, as an administrator, an executor, a head of family or an attorney, must show that he holds that character. If he cannot, the writ issued by him is a nullity and so is everything founded on it. See REPUBLIC VS. HIGH COURT, ACCRA; EX-PARTE ARYEETEY [2003-2004] SCGLR 398; NII TETTEH KPOBI TSURU VS. AGRIC CATTLE LTD. & ORS (CIVIL APPEAL NO. J4/15/2019).

On the other hand, standing, or locus standi, concerns the relationship between the party and the particular right he asserts. A Plaintiff may hold an undoubted capacity and yet have no standing to bring the particular claim before the court. This happens when the right he seeks to enforce is not one that the character he holds entitles him to enforce. An administrator suing in that character has standing only in respect of property that is vested in him as personal representative of the deceased whose estate he administers. Property that belongs to the estate of some other person, and is vested in that other person’s personal representative, is not his to recover. Both questions go to the competence of the instant action, and both may be raised at any stage. We take them in turn.

THE PLAINTIFFS HAVE CAPACITY AS ADMINISTRATORS

The Plaintiffs sued as the administrators of the estate of their late mother. Their character as such rests on their grant, Exhibit E. That grant has not been revoked. We hold below, under ground (5), that the finding that it was procured by fraud cannot stand. The Plaintiffs therefore hold the character in which they sued.

The Defendants’ objections concerning the 2nd Plaintiff do not alter this. They assert that she lived in the United Kingdom, that the writ did not state her foreign address as Order 2 Rule 4(2) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) requires; that the surname in which she sued differs from the surname in the grant, and that she never attended court nor gave the 1st Plaintiff a power of attorney. The Defendants rely on NAOS HOLDING INC VS. GHANA COMMERCIAL BANK [2005-2006] SCGLR 407 AND STANDARD BANK OFFSHORE TRUST CO LTD VS. NATIONAL INVESTMENT BANK LTD. [2017-2018] 1 SCLRG 707.

Whatever the effect of those matters on the 2nd Plaintiff’s position, they cannot defeat the capacity of the 1st Plaintiff. He was resident in Ghana, was named in the grant, and sued as one of the administrators. A party is in any event not obliged to testify personally, provided the evidence necessary to establish the claim is placed before the court: NYAMEKYE VS. ANSAH [1989-90] 2 GLR 152.

Nor did the absence of a vesting assent deprive the Plaintiffs of capacity. The case of IN RE OKYERE (DECD); PEPRAH VS. APPENTENG & ADOMA [2012] SCGLR 65 concerned the capacity of a devisee to sue or be sued over devised property before an assent had been executed in her favour. The Plaintiffs did not sue as devisees awaiting an assent. They sued as the personal representatives of their mother. To that extent, the Court of Appeal was right, and the Learned Trial Judge was in error to treat the want of an assent as a want of capacity. This is not however the end of the inquiry.

THE PLAINTIFFS STANDING TO THE DISPUTED HOUSE

The question remains whether the right the Plaintiffs assert is one which their character as administrators of their mother’s estate entitles them to enforce. On their own case, it is not. The Plaintiffs’ case is that the disputed house was the property of their grandfather. On that footing, when the grandfather died intestate in 2000, the house formed part of his estate. By the Administration of Estates Act, 1961 (Act 63), the property of a deceased person devolves on, and vests in, his personal representatives. The Plaintiffs’ grandfather’s estate has a personal representative. Letters of administration over that estate were granted to the family head, and the inventory to that grant included the disputed house. The 1st Plaintiff at first told the Trial Court that, the grant had been set aside. When pressed, he conceded that it had not and conceded he erred. The suit brought by the Plaintiffs’ mother to revoke that grant, in which the Plaintiffs were later substituted, has never been determined. The grant therefore subsists.

It is provided under Section 67 of Act 63, as follows:

“where administration has been granted in respect of any estate of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked.”

Indisputably, the Plaintiffs did not sue as administrators of the Plaintiffs’ grandfather’s estate, and they could not have done so while the family head’s grant stood. But the substance of their action is a claim to recover property which, on their own case, is comprised in the Plaintiffs’ grandfather’s estate and is the subject of that subsisting grant. They seek to recover it by tracing it through two further estates, the widow’s and the daughter’s (their mother).

The legal position is that Section 67 does not permit what is done in substance to be achieved by a change of title on the writ. So long as the family head’s grant subsists, the house is vested in him as the Plaintiffs’ grandfather’s personal representative. The administration of the Plaintiffs’ grandfather’s estate has not been completed, and no part of that estate has been passed to the widow or the daughter. On the Plaintiffs’ own case, the house has never become part of their mother’s estate, and it is therefore not vested in them as her administrators.

This is not the vesting assent point in another guise. We do not hold that the Plaintiffs needed an assent before they could sue at all. We hold that, the particular property they sued for was not, on their own case, property of the estate they represent. It was property of a different estate, vested in a different personal representative whose grant they had challenged without success. Their capacity as their mother’s administrators gave them no standing to recover the subject matter in dispute.

In our considered view, the decision of this court in ADISA BOYA VS. ZENABU MOHAMMED (CIVIL APPEAL NO. J4/44/2018), on which the Court of Appeal relied, does not assist the Plaintiffs. The Learned Justice of the Court of Appeal clearly misapplied that case to the peculiar facts of this dispute. That case recognised that the children of an intestate have an immediate interest under Section 4 of (PNDC LAW 111) which they may protect by action. The Plaintiffs are not the children of the intestate whose estate the house is said to form part of. They are his grandchildren. They did not sue as beneficiaries of his estate. They sued as administrators of their mother’s. And nothing in that decision permits a beneficiary to bypass a subsisting grant over the very estate in question in order to recover its property for a different estate. The Court of Appeal fell into error in treating the Plaintiffs’ undoubted capacity as administrators as if it answered the separate question of their standing (locus) to sue for the property in dispute.

We should add that the Plaintiffs’ lack of standing does not depend on the Defendants’ case on the merits. It follows from the Plaintiffs’ own pleaded case and from the subsisting grant that they themselves sought, and failed, to have revoked. Their claim fails at the threshold for that reason alone. And it is on the basis of their own pleadings.

WHY WE NEVERTHELESS DECIDE THE MERITS

Ordinarily by settled practice in our jurisprudence, a finding that the Plaintiffs lacked standing would dispose of their claim without any examination of its merits. Two considerations require us to go further here. First, the Defendants counterclaimed for a declaration that the house belongs to their father’s estate. A counterclaim is a cross-action and does not fall with the claim. Secondly, the courts below examined the merits fully, both parties argued them fully before us, and the parties have been litigating over this house for over a decade. It would serve no one to leave the question of beneficial ownership unanswered. We therefore turn, after dealing with the allegation of fraud, to the merits.

GROUND (5): THE ALLEGATION OF FRAUD

The Defendants pleaded four particulars of fraud against the Plaintiffs’ grant. Two of them, namely that the Plaintiffs included the disputed house in their mother’s estate and that the house was never vested in their mother are in our view, not allegations of fraud at all. They are a restatement of the Defendants’ case on title. The particular allegation that, notice of the application was not posted at the disputed house fails on the facts, since that house was not the last place of abode of the deceased. The remaining particular is the serious one. It alleges that the 2nd Plaintiff was out of the jurisdiction when the grant was made, and that her signature was forged at the court registry by a former clerk who testified that she did so on the instructions of her employer, counsel who later acted for the Plaintiffs at the trial.

That is an allegation of crime and of serious consequence. By Section 13(1) of (NRCD 323), where the commission of a crime by a party is directly in issue in a civil action, the burden of persuasion requires proof beyond reasonable doubt: FENUKU VS. JOHN TEYE [2001-2002] SCGLR 985; IN RE AGYEKUM (DECD) [2005-2006] SCGLR 851. The burden lay on the Defendants, who made the allegation. The Learned Trial Judge rejected it. She reasoned that “the Plaintiffs did not adduce evidence to discredit the Defendants on the issue”. The question was not whether the Plaintiffs had discredited the allegation. It was whether the Defendants had proved it to the criminal standard. The evidence of a single witness, uncorroborated by any document, by any comparison of signatures, or by proof of the 2nd Plaintiff’s absence from Ghana on the material dates, does not reach that standard. Besides, a grant of Letters of Administration stands until it is revoked in proceedings properly constituted for that purpose under Order 66 of C.I.47. The Defendants themselves had begun such proceedings (Exhibits 18, 19 and 20), and those proceedings remained pending.

We therefore accept the position of the Court of Appeal in setting aside the finding of fraud against the Plaintiffs. Ground (5) consequently fails. The validity of the Plaintiffs’ grant, however, goes only to their capacity, and it does not cure their want of standing (locus). We now turn to the merits.

GROUNDS (1) AND (9): THE MERITS

THE BURDEN OF PROOF

The Plaintiffs sought a declaration of title. By Sections 11(1), 12 and 14 of (NRCD 323), the burden of persuasion lay on them to establish, on a preponderance of the probabilities, every fact essential to their claim. A Plaintiff who seeks a declaration of title must succeed on the strength of his own case, and not on the weakness of his opponent’s. The Defendants, who counterclaimed for a declaration in favour of their father’s estate, assumed the same burden in respect of their counterclaim: See the case of BIRIMPONG VS. BAWUAH [1994-95] GBR 837. Proof means the establishment of facts by proper legal means.

Therefore, a party who merely repeats his averment on oath, without the corroborative evidence which, if the averment were true, would certainly exist, does not discharge the burden. See the vintage cases of MAJOLAGBE VS. LARBI [1959] GLR 190; ZAMBRAMA VS. SEGBEDZI [1991] 2 GLR 221. As this court explained in YEBOAH VS. AMOFA [1997-98] 1 GLR 674 at 683, what the law requires is such evidence as the circumstances permit, from which a reasonable mind would conclude that the existence of the fact is more probable than its non-existence.

LEGAL TITLE AND BENEFICIAL OWNERSHIP

It is common ground that the records of State Housing Corporation (SHC) show the disputed house as leased to the Plaintiffs’ grandfather. The Defendants do not dispute this. It is in fact an integral part of their case. The real issue, as the Trial Judge rightly identified, was not in whose name the house stood. It was whether the Plaintiffs’ grandfather acquired it for himself or for the Defendants’ father, with money advanced by the Defendants’ father.

Equity looks at substance and not form. A name in a register is a record of the holder of the title, but will not always say who truly owns it until the issue is provoked by litigation as in the instant case. That is all what the principle resulting trust is about. Equity has long recognised that where property is purchased in the name of one person with money provided by another, the person in whose name the property stands is presumed to hold it on a resulting trust for the person who provided the purchase money. The presumption is rebuttable by evidence of a contrary intention, such as an intention to make a gift. The law looks beyond the name on the document to the substance of the transaction, and the trust may be proved by evidence of the surrounding circumstances and the subsequent conduct of the parties. See USSHER VS. DARKO [1977] 1 GLR 476; and the Plaintiffs’ cited authority, IN RE KORANTENG (DECD); ADDO VS. KORANTENG [2005-2006] SCGLR 1039, which recognises that the trust depends on proof that the claimant provided the purchase price.

It follows that the documents on which the Plaintiffs placed so much reliance did not decide the issue. Exhibits A to A3, the ground rent receipts and the evidence of PW2 prove that the legal interest was taken in the name of their grandfather. That is exactly what the Defendants say happened. These documents say nothing about whose money paid for the house, or for whose benefit it was taken. The principle that a court will prefer documentary evidence to oral testimony (ABBEY VS. ANTWI [2010] SCGLR 17) applies where the documents speak to the fact in issue. In the instant case, they do not. The Court of Appeal treated the record title as if it concluded the question of beneficial ownership. With respect, that was an error of principle, and it infected that court’s whole approach to the evidence.

THE EVIDENCE OF THE ARRANGEMENT

On the Defendants’ side, the Trial Judge had before her a body of evidence which, taken together, pointed consistently in one direction. First, there was the evidence of one of the wives of the Defendants’ father. She lived with him in the disputed house from 1967 and bore him a son. She testified that the Defendants’ father told her the house was his and that he had asked his business partner to purchase it for him, “because at the time it has been said that they were not selling to foreigners”. She also testified that the Defendants’ father lived in the house for about three years until “the foreigners were asked to leave”. That he went to Togo but returned to transact business; and that the uncle later came to live in the house with the Defendants’ father’s children. Her evidence that the Defendants’ father occupied the house from 1967 was not displaced, and it matters. The records of State Housing Corporation describe the Plaintiffs’ grandfather as the sitting tenant who purchased the house in 1967, yet the person shown on the evidence to have been living in the house at that time was the Defendants’ father.

Secondly, there was Exhibit 9, the letter of 6th April, 1992. Its contents are directly in point. Written by the brother of the Defendants’ father to the Plaintiffs’ grandfather during the grandfather’s lifetime, it refers in terms to a “memorandum of understanding” under which [the grandfather] “made arrangements” and the Defendants’ father “made advanced payments for the purchase of a house along the South La Beach, in his name”. We consider its admissibility below.

Thirdly, and most important, there was the conduct of the Plaintiffs’ grandfather himself, as described by the Plaintiffs’ own witness. PW1, who testified that, she and her husband occupied an apartment in the house, and that one afternoon “the Landlord came with a certain white man, and said he wanted to introduce the white man to us so that we will know who will occupy our apartment after we have left the place”. It is common ground that the uncle then moved into the house with the children of the Defendants’ father, and that the Defendants’ family has lived there ever since. On receiving a letter that asserted the Defendants’ father’s interest in the house, the Plaintiffs’ grandfather did not repudiate it. He did the opposite. He caused the occupants he had placed there to leave, and he delivered possession to the brother of the man who, the letter said, had paid for the house.

Fourthly, from 1992 until his death in 2000 at the age of Eighty-five (85) years, the Plaintiffs’ grandfather never demanded or received rent from the uncle. No rent card, receipt, tenancy agreement, demand notice or record of any kind evidencing a tenancy between the Plaintiffs’ grandfather and any member of the Defendants’ family was produced. Neither his widow nor his daughter ever collected rent or asserted title, although both survived him, and the house is said to have been the only immovable property of his estate. As the Learned Trial Judge observed, the widow took no step to administer the estate until a stranger had obtained a grant over it. The ingredients of a tenancy relationship aforesaid are precisely the kind of evidence which, on the Plaintiffs’ case, would certainly exist if the Defendants’ family had been tenants. Its absence tells the true story and does so pointedly against them.

The Trial Judge weighed all of this and concluded that it was more probable that the grandfather purchased the house for the Defendants’ father under a special arrangement. We think she was right. On this evidence, no other conclusion was reasonably open.

THE OBJECTIONS OF THE PLAINTIFFS

The Plaintiffs raise several objections to that conclusion, and we have considered each of them. They say the 2nd Defendant could not state how much his father paid, or when. That is true, but it is unsurprising. The transaction took place in 1967. The 2nd Defendant was not then born, and the principal actors are long dead. The law requires such proof as the circumstances permit: YEBOAH VS. AMOFA (supra). A trust of this kind is commonly proved by inference from the circumstances and the subsequent conduct of the parties. Here the conduct of the Plaintiffs’ grandfather himself, the person best placed to deny the arrangement, supplied the strongest evidence of it.

The Plaintiffs’ assert that, the Aliens Compliance Order was made in November, 1969, after the purchase in 1967, so the arrangement could not have been made to evade it. This misreads the Defendants’ case. The Defendants never asserted that the arrangement was made because of the Aliens Compliance Order. They asserted that, the arrangement was made because, in 1967, SHC did not sell its estate houses to foreigners. The Aliens Compliance Order is relevant only because it explains why the Defendants’ father left the house in 1969. The suggested discrepancy between 1969 and 1970 in Exhibit L, and between buying the house “from” and “through” the Plaintiffs’ grandfather, does not touch the substance of the Defendants’ case, which has been consistent throughout.

Further the Plaintiffs say that the Defendants’ father held a residence permit (Exhibit 25), and so was not affected by the Aliens Compliance Order. But nothing turns on whether the Defendants’ father was compelled to leave or chose to relocate. What matters is that he left and that the house thereafter remained under the management of his partner, who handed it to his family when asked to do so.

Furthermore, the Plaintiffs, relying on PW1, assert that the Plaintiffs’ grandfather let parts of the house to tenants during the Defendants’ father’s absence. That is so, but it does not advance the Plaintiffs’ case. A partner who holds a house in his own name for an absent friend may well let it out on the friend’s behalf. Letting the house to third parties during the owner’s absence is equally consistent with ownership and with management on behalf of another. What distinguishes the two is what the holder does when the absent party’s family asks for the house. The Plaintiffs’ grandfather’s answer was to hand it over and never demanded rent.

Further, the Plaintiffs assert that the Defendants’ father himself never laid claim to the house in his lifetime. But his claim was never challenged in his lifetime. His family remained in possession, and the person in whose name the house stood acknowledged his interest by delivering possession to his brother.

EXHIBIT 9

The Court of Appeal held that Exhibit 9 was inadmissible because, having been “sent from Togo meant to be used in the trial here in Ghana”, it did not satisfy Sections 136 and 161 of NRCD 323. The record does not bear out that premise. Exhibit 9 was not a document. The Evidence was procured from abroad for the purposes of the litigation. It is a private letter written in 1992, two decades before the action began, and kept in the custody of the family of its author. The provisions of the Evidence Act on the authentication of writings require only such evidence as is sufficient to sustain a finding that the writing is what its proponent claims it to be. The 2nd Defendant, who lived with the author and accompanied him to meet the Plaintiffs’ grandfather, gave that evidence. The letter had been in the family’s custody for over twenty years, which itself supports its authenticity as an ancient document pursuant to Section 146 of the Evidence Act.

There is even a simpler answer to the erroneous reasoning of the Learned Justices of the Court of Appeal. When Exhibit 9 was first tendered, counsel for the Plaintiffs did not object to it outright. He asked that it be translated before it was admitted. When the translation was produced and the document was again tendered, the record shows that counsel said: “No objection.” A party who expressly consents to the admission of a document at the trial cannot afterwards be heard to complain, on appeal, that it was inadmissible. The Plaintiffs’ complaint that the document was not specifically pleaded fares no better. A party pleads facts, not the evidence by which they are to be proved. The arrangement to which the letter speaks was squarely pleaded.

The weight and probative value of the letter was, of course, a matter for the Trial Judge. The Plaintiffs’ counsel challenged it in cross-examination, suggesting that the Plaintiffs’ grandfather never received it and that it was fabricated. The Trial Judge, who saw and heard the 2nd Defendant, rejected those suggestions. Her assessment is fortified by PW1’s account, which shows that the Plaintiffs’ grandfather acted on the letter’s request by delivering the house to its author. The Court of Appeal erred in excluding Exhibit 9 and in disregarding it. Exhibit 9 was properly part of the evidence, and the Trial Judge was entitled to rely on it.

WHETHER THE DEFENDANTS’ FAMILY WERE TENANTS

The Court of Appeal strangely found “overwhelming evidence” that the Defendants’ family were tenants paying rent to the estate of the grandfather. The evidence on which that finding rests does not support it at all. The ingredients of the valid tenancy are settled at common law and under the Rent Act 1963 (Act 220). Tenancy being contractual, there must be certainty of parties, rent, tenure and statutory consequences in case of breach by either party. None of these prevailed in the relationship between the predecessors of the parties. In their difficulty to find a legal status for the Defendants and their predecessors, the Court of Appeal departed from their own classification of the Defendants as tenants into being licensees of the Plaintiffs.

In this proceedings, every document relied on (Exhibits F, G, H, J, K, 7, 8, 10, 11, 12 and 14) post-dates the death of the Plaintiffs’ grandfather in 2000. Most of them arose from the dealings of the family head with the half-uncle in and after July, 2004, following the death of the uncle. There is no evidence that the uncle ever paid rent to anyone in the twelve years he lived in the house. The demand for “arrears” in Exhibit 7 is the assertion of the family head, not evidence that rent was ever agreed or paid. The single payment of ten months’ rent by the half-uncle (Exhibit 8) was made in August, 2004 to the family head. The family head was a man whose grant the Plaintiffs’ own mother sued to revoke on the ground that he had obtained it fraudulently and behind the backs of the true beneficiaries (Exhibit 17). The 1st Plaintiff himself described him under cross-examination as having “fraudulently acquired” the grant.

The Plaintiffs cannot rely on that man’s authority as landlord to found a tenancy, while denouncing that same authority as a fraud on their family. Exhibit 10, a letter from the family head’s own lawyer, records that the “negotiations of the terms of tenancy never reached a consensus”, and that no tenancy agreement was ever reached, agreed nor signed.

Nor do these dealings bind the Defendants. The proceedings against the half-uncle in the District Magistrate Court, and his submission to judgment there (Exhibits G and K), were between the family head and the half-uncle. A judgment binds only the parties and their privies. There is no evidence that the half-uncle represented the estate of the Defendants’ father, through whom the Defendants claim, or that the Defendants derive their title from him. The half-uncle’s acts, made without knowledge of the history and, on the evidence, under pressure, are at most evidence of his own understanding. They cannot divest the estate of the Defendants’ father of a beneficial interest acquired in 1967.

The Plaintiffs invoke Section 26 of (NRCD 323) and the rule that a tenant may not deny the title of his landlord at the beginning of the tenancy. It presupposes a tenancy created by the person whose title is asserted. No tenancy between the Plaintiffs’ grandfather and any member of the Defendants’ family was proved. Any tenancy that the half-uncle may have taken from the family head in 2004 could estop, at most, the half-uncle, and only as against the family head. It cannot estop the Defendants, who claim through their father and not through the half-uncle.

There remains Exhibit H, a pleading in another Suit (No. C11/78/2010) in which the Defendants are said to have described themselves as tenants of the house. An admission in a pleading in other proceedings is not conclusive in subsequent proceedings. It is evidence to be weighed with the rest. The Defendants explained the circumstances of that suit, which had been conducted for them by the same counsel who later appeared for the Plaintiffs at the trial.

The Trial Judge found that counsel’s conduct in this respect fell short of the expected standard. The Trial Judge was measured in her attitude towards the said lawyer on a matter of serious professional misconduct. That notwithstanding, having heard the Defendants, she was entitled to give the pleading little weight against the whole body of evidence. A description in a pleading about a different dispute, in an action for nuisance against a neighbour, cannot outweigh some twenty years of rent-free occupation by the Defendants’ family before the action, and the conduct of the Plaintiffs’ grandfather himself.

The finding that the Defendants’ family were tenants paying rent to the estate of the Plaintiffs’ grandfather is unsupported by the evidence and inconsistent with the documentary record.

WHETHER THE DEFENDANTS’ FAMILY WERE

LICENSEES

As aforesaid,The Court of Appeal’s alternative characterisation of the Defendants’ family as “licensees who had enjoyed undisturbed possession for admittedly many years” was not the Plaintiffs’ pleaded case. It is also inconsistent with the court’s own finding of a tenancy. A licence is a permission to occupy given by the owner. Like any other fact, it must be proved by the party who asserts it. The only permission the Plaintiffs pleaded and testified to, was that the 1st Plaintiff, after the grant in 2007, permitted the 2nd Defendant to stay on because he was then a law clerk in the chambers that acted for the 1st Plaintiff. That explanation cannot account for the fifteen (15) years of occupation by the Defendants’ family that preceded it, or for the Defendants’ father’s own occupation from 1967. No evidence was led of any permission granted by the Plaintiffs’ grandfather to the Defendants’ family to live in the house for their lives. The only evidence of his attitude is that he handed the house to them in response to a letter asserting that it was theirs.

The undisputed long possession of the Defendants’ family is also of evidential significance in its own right. By Section 48(2) of NRCD 323, a person who exercises acts of ownership over property is presumed to be its owner. Where the long and undisturbed possession of one party is admitted, the onus lies on the other to show that the possession was consistent with his own ownership: IN RE ADJANCOTE ACQUISITION; KLU VS. AGYEMANG II [1982-83] GLR 852. The Plaintiffs, who admitted that possession, did not discharge that onus.

ILLEGALITY

The Plaintiffs submit that, even if the arrangement was proved, it was an illegal device to circumvent the law, which the courts will not enforce. They rely on ZAGLOUL REAL ESTATES CO. LTD. VS. BRITISH AIRWAYS [1996-97] SCGLR 378. We accept without hesitation that a court will not lend its aid to a party whose cause of action is founded on an illegal transaction. A court must take notice of illegality brought to its attention, even if it was not pleaded: MENSAH VS. AHENFIE CLOTH SELLERS ASSOCIATION [2010] SCGLR 680.

But illegality must be shown by reference to some law that the transaction contravenes. None was identified. Granted there was this court has held that not every proven case of illegality goes to the root of a transaction. If a statute is breached the sanctioning regime of that statute is what strictly applies. The evidence was that SHC, as a matter of its own sales policy, did not then sell its estate houses to foreigners. No statute or regulation was shown to prohibit a foreign national from paying for a house or holding a beneficial interest in one. The Aliens Compliance Order of 1969 concerned the residence of aliens without valid permits. It said nothing about the ownership of property. An arrangement to buy a house through a Ghanaian partner because the seller would not sell to a foreigner is not shown to have violated any law. The Defendants do not rely on any illegality to found their claim. They rely on the ordinary equitable consequence of having paid for the property. We express no view on any question, not argued before us, as to the nature or duration of the interest that a non-citizen may hold in land under the Constitution or other enactments.

LIMITATION

The Trial Judge observed that, even if the Defendants were in adverse possession, the Plaintiffs would be estopped from recovering the house. The Plaintiffs rightly point out that limitation was not pleaded, and that a defence of limitation must be specifically pleaded: DOLPHYNE (NO. 3) VS. SPEEDLINE STEVEDORING CO. LTD. [1996-97] SCGLR 514. We do not rest our decision on limitation. The Defendants’ case does not depend on it. They claim not as trespassers who have extinguished the title of the owner by lapse of time, but as the beneficial owners themselves.

It is conceivable that, in the exercise of its appellate powers while embarking on its own evaluation of the evidence, in order to arrive at its own findings, the first appellate court can draw mistaken conclusions from indisputable primary facts or may wrongly apprehend the facts on which the foundations of the case have been correctly determined by the Trial Court. In that situation, as has occurred in the instant case, it will be invidious for the second appellate court not to interfere and do what the justice of the dispute requires. Consequently, we find with all due respect to the Learned Justices of the Court of Appeal that, they were in error in their re-evaluation of the evidence on record, and the conflicting findings they arrived at against the Plaintiffs which resulted in the reversal of the judgment of the Trial High Court.

CONCLUSION ON THE MERITS

In the instant case, the Plaintiffs proved that the legal interest in the disputed house stood in the name of the grandfather. That fact was never in dispute. They did not prove that he acquired the house for himself, that the Defendants’ family were his tenants, or that they occupied by his licence. On the other side, the Trial Judge had before her the evidence of the Defendants’ father’s occupation from 1967, the evidence of one of his wives, Exhibit 9, and the conduct of the Plaintiffs’ grandfather as described by the Plaintiffs’ own witness. She also had the complete absence, from 1992 until this dispute arose, of any act by the Plaintiffs’ grandfather or his family consistent with ownership as against the Defendants’ family. On that evidence, she was entitled to find, and was right to find, that the Plaintiffs’ grandfather acquired the house for the Defendants’ father with money advanced by him. He accordingly held the legal interest on trust for the Defendants’ father.

It follows that, the disputed house never formed part of the beneficial estate of the grandfather. It therefore did not pass beneficially to his widow or his daughter, and it does not form part of the estate that the Plaintiffs administer. So even if the Plaintiffs had standing, their claim would fail on the merits. The Court of Appeal reversed a conclusion which the evidence amply supported. In doing so, it treated the record title as decisive of beneficial ownership, excluded admissible evidence to which the Plaintiffs had consented, and made a finding of tenancy which the evidence does not sustain. Its judgment cannot stand. Grounds (1) and (9) succeed.

DISPOSITION

For these reasons, Grounds (2), (3), (4), (6), (7), (8) and (10) are struck out as incompetent. Ground (5) fails. The appeal succeeds on the omnibus Ground (1) and on Ground (9). The judgment of the Court of Appeal dated 3rd December, 2020 is set aside. The judgment of the High Court dated 21st March, 2016 is restored, save as follows:

The holding that the Plaintiffs lacked capacity because no vesting assent had been executed in their favour is set aside. We hold instead that the Plaintiffs had capacity as administrators of their mother’s estate but no standing to sue for the disputed house. Their claim also fails on its merits.

The finding that the Plaintiffs’ letters of administration (Exhibit E) was procured by fraud is set aside. Nothing in this judgment affects any proceedings for the revocation of any grant that may be pending in the High Court.

(SGD.) I. O. TANKO AMADU