EMMANUEL KOFI MUSTAPHA v. SAMUEL GYEKYEI & 3 ORS
2016
COURT OF APPEAL
GHANA
CORAM
- GYAESAYOR (J.A.) (PRESIDING)
- ADUAMA OSEI J.A.
- DZAMEFE J.A.
Areas of Law
- Civil Procedure
- Probate and Succession
- Property and Real Estate Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiff's appeal was dismissed for lack of capacity to sue, as he neither obtained Letters of Administration nor was appointed as the customary successor to his fathers estate. The trial court's ruling that the land was sold by the plaintiff's father to the 1st defendant was upheld. Consequently, the plaintiffs claims for trespass, ejectment, and injunction were denied, and the proceedings initiated by the plaintiff were deemed null and void.
JUDGEMENT
DZAMEFE, J.A
The plaintiff appellant hereinafter simply referred to as the plaintiff issued this writ against the respondent also referred to as the Defendant in the Circuit Court Accra for the following reliefs:
a. An order that defendants dealing with plaintiffs deceased father’s land amounts to trespass.
b. Order of ejectment and recovery of possession of the said land from defendants.
c. Perpetual injunction restraining the defendants’’ their agents, assigns from interfering with the land the subject matter of this suit.
The plaintiff in his statement of claim averred he is the eldest son of the late Joseph Kobina Mustapha (deceased). On the death of his father, his mother Elizabeth Wilson (deceased) tried in vain to obtain Letters of Administration to administer the estate of the deceased husband. Out of fear that the husband’s family will take all properties from her handed the document on the deceased husband’s land at Bubiashie to 1st defendant, a very good friend of the deceased husband for safe keeping.
Plaintiff’s mother later requested for the said document but 1st defendant after several excuses failed to hand it over to her till her death. 1st defendant refused to hand over same to the plaintiff after persistent demands but rather gave out portions of the land to 2nd, 3rd and 4th defendants for commercial purposes. Plaintiff averred further that the 1st defendant in his attempt to deprive them of their father’s land alleged their father owed him some money in his life time and will therefore take the portion of land he gave out to the defendants. Wherefore the plaintiff issued this writ for the reliefs stated.
The 1st defendant in his defence averred he bought his portion of the land from the plaintiff’s deceased father. He said the larger tract of land was sold by plaintiff’s father to a Priestess in 1988 and later to him. The priestess realizing the double sale by the plaintiff’s father pulled out of the sale and demanded a refund of her money. According to him the plaintiff’s father approached him to refund the money to the priestess which he did. This was against the documents on the whole land.
1stdefendant admits the plaintiff’s mother confronted him for him to prepare a site plan on his portions and return the original document covering all the land to her. He denied the plaintiff’s allegation that it is his mother who handed the documents on the land to him and that the plaintiff is not entitled to his claim on the