IN RE AGYEPONG (DECD.); POKU v. ABOSI AND ANOTHER
July 6, 1981
COURT OF APPEAL
GHANA
CORAM
- JIAGGE
- FRANCOIS
- MENSA BOISON JJ.A
Areas of Law
- Civil Procedure
- Probate and Succession
- Evidence Law
- Family Law
- Corporate Law
July 6, 1981
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal decision addresses a dispute over letters of administration for the estate of the late J. K. Agyepong. After Cecilia Agyepong obtained a grant in the High Court, Kumasi (with caveats that disputed property extent but not entitlement), the Court of Appeal affirmed and added the deceased’s daughter, Comfort, to comply with Act 63. Later, family head Kwame Abosi sued in the High Court, Sekondi to revoke the grant on grounds of fraud and to declare family and company assets outside the estate. The trial judge revoked the grant, critiquing earlier decisions. On appeal, the Court of Appeal held Order 60, r.21(2) is discretionary and concerns entitlement, not property ownership; res judicata and estoppel barred re-opening status; fraud was not proved; the appellant’s Ordinance marriage was valid; and ownership disputes should be tried separately. The appeal was allowed, the revocation set aside, and joint letters directed to issue to Cecilia and Comfort.
JUDGMENT OF JIAGGE J.A.
The appellant, by an ex parte motion, applied to the High Court, Kumasi, for letters of administration in respect of the estate of [p.258] her late husband and on the orders of the court the usual notices were posted.
Three caveats were entered. The first caveat was entered by Afua Donkor of Kumasi who disclosed in her affidavit that house No. BA 147, Kumasi, was assigned to her on 9 June 1970 by the deceased J. K. Agyepong and that the said house should not be included in the list of properties belonging to the deceased at the time of his death.
The second caveat was entered by Broadway Cinema and Hotel Co., Ltd. One Emmanuel Victor Addo-Boamah who described himself as a law clerk of Benyin Chambers, Kumasi swore to an affidavit stating that:
"I am informed and verily believe that the under-mentioned properties belong to the Broadway Cinema and Hotel Co., Ltd.:
(a) Zenith Hotel, Takoradi.
(b) Prempeh Cinema Palace, Takoradi.
(c) Gyandu Cinema Palace, Sekondi.
(d) Rex Cinema, Sekondi.
(e) Afia Cinema, Effiakuma.
(f) Fiasco Cinema Palace.
(g) Ambassador Cinema, Obuasi.
(h) Abesi Cinema, Dunkwa.
(i) Rex Cinema Equipment, Sunyani."
There was nothing to show that Addo-Boamah had any personal knowledge of the facts deposed to nor that he was a director or secretary of the company. It would appear that he was the law clerk of counsel representing the company.
The third caveat was filed by Kwame Abosi of Kumasi. In this affidavit of interest one James Emmanuel Apprey of Benyin Chambers, Kumasi deposed to the following facts:
"I am informed and verily believe that the under-mentioned properties belong to the family of J. K. Agyepong (deceased):
(a) House No. 19C/1, Kitson Avenue, Takoradi.
(b) House No. 18, S.M. Block, Market Circle, Takoradi.
(c) Plot 22, Market Circle, Takoradi.
3. The said Kwame Abosi has been appointed as the successor to J. K. Agyepong (deceased)."
In her affidavit in support of her motion on notice for the grant of letters of administration, the appellant averred that the properties listed as being claimed by the Broadway Cinema and Hotel Co., Ltd. were originally the self-acquired properties of the deceased and that the company should have disclosed in its affidavit how it came to [p.259] acquire such properties. That Addo-Boamah of Benyin Chambers who swore to the affidavit was neither a director nor the secretary of the company and that he exhibited no power of attorney to swear to the sai