December 21, 2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Angelina M. Domakyaareh J.A. delivered the Court of Appeal’s decision allowing an appeal by sisters who were principal members of the maternal family of the late Jonathan Kwame Duodu of Offinso Kokote. They had sued the executors of Duodu’s will and a beneficiary, contending that clauses 8 and 9 of the will purported to devise family property, specifically the Gambia farm originally acquired by Opanin Kwame Wiafe, and sought a declaration of invalidity and an injunction. The High Court dismissed their claim for lack of capacity and proof, but on appeal the court reviewed the record under the “against the weight of evidence” ground, applied the Evidence Act burdens and appellate standards, and held the defendants failed to prove a family meeting or abunu arrangement conferring an individualized portion on Duodu. Recognizing exceptions to the head-of-family rule under Kwan v Nyieni and In re Ashalley Botwe Lands, the court found the plaintiffs had capacity under necessity and Order 66 Rule 28(1). The trial judge’s conclusions were set aside and the appeal was allowed.
DOMAKYAAREH (MRS),J. A.
1. This is an appeal against the judgment of the High Court, Kumasi delivered on 15th January 2014. The said judgment was in respect of an attempt by some family members, (other than the Head of family) to protect what they described as family property. The appellants, who were plaintiffs in the court below, are sisters and they described themselves as Principal Members of the family of the late Jonathan Kwame Duodu of Offinso Kokote.
2. The appellants said they mounted the action for themselves and on behalf of their maternal family because their Head of Family, Opanin Kwame Sikayena failed to pursue legal action to preserve the family property. The appellants sued the Executors of the Will of the late Jonathan Kwame Duodu and a beneficiary under the Will in which they sought a declaration that the late Jonathan Kwame Duodu had no testamentary capacity to make the device in clauses 8 and 9 of his Last Will dated 15th October, 1999 as the properties therein are family properties and perpetual injunction restraining the defendants, their privies and servants from dealing with or claiming the said properties. The Will itself was not tendered in Court but the parties were in agreement as to the content of the clauses 8 and 9 of the said Will. At the end of the trial, the learned trial judge gave judgment against the plaintiff/appellants on grounds among others that the plaintiffs failed to produce evidence that they had the approval of the rest of the family to institute the action and that they failed to lead credible evidence to establish their case to merit judgment in their favour.
.
3. Aggrieved by the said judgment, the appellants mounted the instant appeal on three prongs as evidenced by the Notice of Appeal filed on 30th January 2014 and additional grounds of appeal filed on 26th June 2015 pursuant to leave granted on 16th June 2015.
The initial grounds of appeal are:-
(a) That the judgment is against the weight of the evidence
(b) Further grounds of appeal may be filed on receipt of the record of proceedings.
The additional grounds of appeal are:
(a) That the trial judge erred when he held that the plaintiffs/appellants had no capacity to institute the action
(b) That the trial judge failed to resolve the major issue as to whether or not the late Jonathan Kwame Duodu had the requisite capacity to devise the lands or farms in dispute.
We now consider the grounds of appeal in light of the applicable law and the Rec