2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On appeal from the High Court, Kumasi (judgment of 25 October 2013), the Ghana Court of Appeal, per Ayebi JA, resolved a family dispute over H/No. OTB 141, Adum–Kumasi. The property was assigned in 1972 in nephew Frank Oppong Bediako @ Kwaku Forkuo’s name, though paid for by his uncle, Opanin Kwadwo Oppong (“Agya Oppong”), who later died testate naming his sister, Akua Amoah, as residuary legatee. After Akua Amoah’s death, her daughter, Adwoa Fosuaa (2nd defendant), claimed the house as part of the residuary family property; the High Court accepted that Forkuo held the house on resulting trust and dismissed Hanna Kwarteng’s claims. On appeal, Ayebi JA held that while there was no direct proof of a customary gift, the conveyance to a nephew within the Akan matrilineal system placed the uncle in loco parentis and raised a presumption of advancement. Unchallenged acts of ownership by Forkuo, family distributions (Exhibit G), and inclusion in the letters of administration inventory supported beneficial ownership. The Court of Appeal set aside the counter‑claim, allowed the appeal, and granted all reliefs except the orange‑farm sale.
AYEBI, J. A:
1. This appeal emanated from the judgment of the High Court, Kumasi dated 25th October, 2013. The subject-matter of the dispute between the parties is H/No. OTB 141, Adum-Kumas.
2. The two defendants herein are uterine sisters. Their brother of the plaintiff, Hanna Kwarteng. The uncle of three siblings that is the two defendants and Kwaku Forkuo was Opanin Kwadwo Oppong.
3. According to Exhibit B, the deed of assignment executed in 1972 in the name of Kwaku Forkuo, although it was actually acquired by Opanin Kwadwo Oppong, the property remained so in the name of Kwaku Forkuo until his death in 2000. His uncle Opanin Kwadwo Oppon died in 1985 testate but he never mentioned this property in his last will and testament. In the will, he made his sister Akua Amoah mother of defendants and Forkuo the residuary legatee. Akua Amoah also died in 1996 testate but she also never mentioned this property in her Will.
4. The plaintiff explained that the property remained so in the name of Kwaku Forkuo because his late uncle apart from buying it in his name, actually gifted it to him.
So after the death of Kwaku Forkuo, the 1st defendant herein who was appointed the customary successor, shared the estate and gave a flat and some stores in H/No. OTB 141, Adum to the plaintiff as his widow and her children.
The distribution is documented in Exhibit G and Adwoah Nsiah, sister of the 1st defendant signed as a witness.
Thereafter, the 1st defendant herein and the original plaintiff(Hanna Kwarteng) jointly applied for letters of administration in respect of the estate of Kwaku Forkuo.
In the declaration of inventory they excluded the disputed house because it had already been shared.
But upon the advise of counsel, the inventory was amended and the house was included, after which the letters of administration was granted.
application for the grant of the letters of administration.
Her case is that, apart from Kwaku Forkuo, their late uncle bought several properties in the names of other nephews and in his lifetime, treated all those properties as his own until he died.
In his will, their late uncle named their mother as his residuary legatee.
All the properties which their late uncle acquired in the names of nephews, the disputed house inclusive, formed part of the residue and devolved on their mother Madam Akua Amoah.
Continuing, 2nd defendant/respondent claimed that since she has been appointed to succeed her late mother, the property now devol