2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appellate judgment reviewed the High Court's decision regarding a disputed property claimed to be gifted by the late Samuel Kwame Opuni to his family. The appellate court found the plaintiff's evidence insufficient to establish a valid gift under customary law. Consequently, the court held that the property fell into intestacy, and it should be shared by both the deceased's immediate family and his matrilineal family under the applicable intestate succession laws. The trial judges factual errors and inconsistencies were also noted but did not affect the final determination of the case.
JUDGMENT
AYEBI J.A.
The judgment in this appeal should have been delivered on Thursday, 31st July 2014 but for the death of the original plaintiff/respondent, Felix Opuni Agyei. Now that he had been substituted by the new head of family Daniel Opuni Duh, we proceed to deliver the judgment.
1. This is an appeal against the judgment of the High Court, Kumasi dated 17th December 2009. The subject-matter of the suit is H/No. Plot 7 Block 3, New Amakom-Kumasi. The house was owned by the late Samuel Kwame Opuni in his lifetime as his self-acquired property.
2. The late plaintiff Felix Opuni Agyei described himself as the head of the immediate matrilineal family of Nyinampinase and sued in that representative capacity. The late Samuel Kwame Opuni hailed from that family. The first defendant is one of the daughters of the late Samuel Kwame Opuni while the second defendant is his wife.
3. The late Samuel Kwame Opuni lived in the disputed house as his matrimonial home with his wife, children as well as some family members until he passed away. He also let out portions of the house to tenants and enjoyed the rent himself. The defendants, the plaintiff alleged, ejected family members from the house and took control of it after the death of Samuel Kwame Opuni.
4. Samuel Kwame Opuni died on 9th November, 1996. The case of the plaintiff is that as far back as 1973, the deceased gifted the disputed house to the family. And because the deceased knew that he gifted the house to the family, he did not mention this house in his Will which he made subsequently in 1976. This is the basis of the claim of the plaintiff for:
1. A declaration that H/No. Plot 7 Block 3, New Amakom-Kumasi is the property of the plaintiff.
2. Recovery of possession
3. An order for accounts from 13th April 1997
4. An order for perpetual injunction restraining the defendants, their servants, agents and any person claiming title through them from interfering with the plaintiff’s family property in dispute.
5. The defendants denied any gift of the house to the plaintiff’s family. The defendants asserted that to the knowledge of the plaintiff’s family and the whole world, the deceased dealt with the house as his self-acquired property. But then the deceased died partly intestate in respect of this property. Thus by operation of law, the house devolved on the surviving widows and children. The defendants therefore counter-claimed for:
(i) A declaration that the late Samuel Kwame Opuni d