AHYIA v. AMOA
1987
COURT OF APPEAL
GHANA
CORAM
- OSEI-HWERE
- WUAKU
- AMPIAH J. J. A.WUAKU
- AMPIAH J.J.A
Areas of Law
- Civil Procedure
- Evidence Law
- Probate and Succession
- Property and Real Estate Law
1987
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision arose from litigation over alleged family property of the late Kwaku Adu Asare. His widow and children were sued by the deceased’s brother, who claimed family headship and had earlier obtained a decree in LC 46/75 after the deceased’s customary successor submitted to judgment. In LC 94/82, the defendants failed to appear, and Amua‑Sekyi J. entered default judgment with damages and costs. After paying part of the judgment, the defendants appealed and sought a stay. While hearing the stay motion, the trial judge, suspecting fraud in LC 46/75, set aside his own default judgment and ordered a refund. On appeal, Osei‑Hwere JA held the judge was functus officio once the appeal was filed and condemned the sua sponte fraud intervention as contrary to settled procedure and natural justice. Wuaku JA and Ampiah JA agreed. The appeal was allowed.
JUDGMENT OF OSEI-HWERE JA.
The history of this appeal is a paradox. It is the story of the victor-vanquished. It must be re-told briefly to appreciate the appeal. The defendant-respondents (hereinafter referred to as the defendants) are the widow and children of the late Kwaku Adu Asare. The plaintiff-appellant (described as the plaintiff hereinafter) is the brother of the deceased and claims to be the head of the family to which he belonged. In his lifetime Kwaku Adu Asare wrote his will in which he purported to give away certain properties to the defendants. When the plaintiff came by this knowledge he sued Kwaku Adu Asare for a declaration of title on behalf of the family. That suit was No LC 46/75.
The matter came before Jones-Mensah J. who, on account of the advanced years of Kwaku Adu Asare, allowed him to give evidence first. He died before the trial was concluded and the plaintiff applied and was granted leave to substitute his successor as the defendant. When the trial was resumed the successor entered the witness-box and he, in effect, submitted to judgment. Whereupon the trial judge briefly decreed judgment for the plaintiff. The plaintiff alleged that in spite of [p.292] the judgment the defendants herein took possession of the properties involved in that suit together with a house at New Koforidua and a double barrel gun. To vindicate the family's rights the plaintiff sued for “recovery and possession" of two cocoa farms and specified personal effects in respect of which the plaintiff had judgment in suit No LC 46/75 and also for declaration of title to the house at New Koforidua and the double barrel gun. The suit against the defendants is No LC 94/82 and that has resulted in the appeal before us.
Although the processes were duly effected the defendants failed to enter appearance, much less to deliver a defence. The plaintiff moved the court for judgment. The motion came before Amua-Sekyi J. (as he then was) who gave judgment for the plaintiff for the reliefs indorsed on his writ and awarded damages of ¢5,000 and ¢3,000 costs. The plaintiff entered the judgment and served notice thereof on the defendants. On 27 September 1983 the parties appeared before Doris Owusu-Addo J. on a summons to show cause. The solicitor for the defendants, Mr Afram, appeared for them. The defendants applied for an adjournment for two weeks to make part payment. At the next adjourned date they duly paid on account ¢4,000 of the judgment debt and promised to pay