JOANA NYARKO v. MAXWELL TETTEH & OTHERS
2018
COURT OF APPEAL
GHANA
CORAM
- OFOE, J.A. (PRESIDING)
- ACKAH-YENSU (MS.), J.A.
- SUURBAAREH, J.A.
Areas of Law
- Probate and Succession
- Property and Real Estate Law
2018
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case involves the disputed inheritance of properties left by Samuel Kwabena Afram in his will. After his death, the appointed executor failed to distribute the estate due to challenges posed by the 3rd appellant. The respondent, Afram's wife, sought court intervention to compel the appellants to provide accounts and distribute the estate as per the will. The High Court ruled in her favor and dismissed the counterclaims from the appellants who contended the properties were not part of Afram’s estate. On appeal, the Court highlighted the importance of explicitly pleading fraud and affirmed that the properties developed by the 2nd and 3rd appellants with their brother were not part of Afram's testamentary estate due to the implied revocation through the testator's intentions and actions.
SUURBAAREH, J. A.
This is an appeal against the judgment of the High Court, Accra (Financial and Economic Division) dated 9th June, 2016 in which judgment was entered for the plaintiff/respondent, called respondent hereafter, whilst dismissing the counterclaims of the defendants/appellants, simply called appellants hereinafter.
The facts giving rise to the action resulting in the present appeal are not in any dispute.
One Samuel Kwabena Afram who died in 1998, had on 21st March, 1989 made a Will in which he appointed the 1st appellant and one Daniel Owiredu Baidoo as his trustees and executors.
In the Will, the testator made certain devises in respect of House No. 229/16, Darkuman Korkompe, Accra in which the respondent and her children were beneficiaries of majority of the rooms/stores.
As at the time of his death, Daniel Owiredu Baidoo had died so the 1st appellant, as the sole surviving executor, applied and obtained probate but was unable to distribute the estate as a result of a challenge by the 3rd appellant.
Not satisfied with the conduct of the executor, the respondent issued out a writ against the appellants, claiming the following reliefs: “(a) Account of all the proceeds from the renting of the 13 stores since (b) Account of stewardship of the estate to the beneficiaries (c) Distribution of parts of the estate to the beneficiaries (d) Provision of the original copy of the probate (e) Cost of litigation. ” The 1st and 2nd appellants, who initially filed a joint statement of defence with the 3rd appellant, subsequently filed a separate statement of defence on 11th December, 2012 upon an application to amend their defence.
It is necessary to state here that while the respondent is the wife of the testator, Samuel Kwabena Afram, the 2nd and 3rd appellants are children of the testator by different women.
The respondent took out the action as she alleged that the 1st appellant had failed to distribute the estate despite the probate and that the estate was under the control and enjoyment of the appellants.
The 1st and 2nd appellants, whilst admitting that probate has been taken of the Will, denied being in control and enjoyment of the estate and went on to contend that the property did not belong to the testator and that even if it was, it was subject to the portion given to the 2nd appellant for the construction of stores.
On his part, the 3rd appellant, who contended that the land on which House No. 229/16 is built was acquired for him, and