DORIS NAADU NARTEY v. CHRISTIAN KUMI

SOPHIA ADINYIRA (Mrs.) JSC: The parties are beneficiaries named in the will of the late Christian William Kumi who died on 14 April 1989. The said will dated 10 March 1989 was admitted to probate on 2 March 1992. The devise under paragraph 4 (i) and (ii) of the said will were:

“4. I BEQUEATH my real estate to the following: -

(i) My proposed 3-storey building at Nii Boi Town, Abeka, to my children named in paragraph 2 supra, inclusive of my wife Doris Naadu Nartey till she remarries or dies;

(ii) My single storey building W.39 Boi Man at Abeka to my wife Doris and my children named in paragraph 2 supra in equal shares.”

The children named in paragraph 2 of the will are Christian Kumi the defendant/appellant, (hereinafter defendant) Betty Kumi and Nana Kwadwo Kumi son of the plaintiff/ respondent (hereinafter plaintiff).

On 18/8/99, the plaintiff issued a writ of summons for herself and on behalf of her infant son Nana Kwadwo Kumi against the defendant at the High Court Accra. Her claim was that even though the house numbered W.39 Boi Man at Abeka belongs to the plaintiff, defendant and others jointly by the terms of the devise under her late husband’s will, the defendant was preparing to sell or alienate it to the exclusion of the plaintiff and the other beneficiaries. She therefore asked for the following reliefs:

A declaration that the plaintiff and the son Nana Kwadwo Kumi have equal shares in House No. W.39 Boi Man at Abeka as stated in paragraphs 2 and 4 (ii) of the will of Christian William Kumi.

An order for valuation and judicial sale and distribution of the proceeds equally amongst the beneficiaries mentioned in paragraphs 2 and 4 (ii) of the will of Christian William Kumi dated 10 March 1989.

Perpetual injunction restraining the defendant his agents, assigns, workmen, servants, privies from disposing of, alienating and or selling House No. W.39 situate and lying at Boi Man, Abeka.

The defendant resisted the action on the basis that the late Christian William Kumi in 1980 and during his lifetime ‘effectively gifted over customarily’, the said house to Mrs. Comfort Kumi (deceased) who was the mother of the defendant. His mother predeceased his father who purported to devise the said house in his will. The defendant and his siblings filed a caveat but were prevailed upon to withdraw it with the understanding that their rights of ownership and control of their late mother’s property would not be disturbed. He further denied that he was makin