KINGSLEY ADU POKU-MENSAH v. YAA MANSAH AND ANOR.
2004
COURT OF APPEAL
GHANA
CORAM
- TWUMASI J.A. (PRESIDING)
- OWUSU-ANSAH, J.A.
- ANIM, J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Evidence Law
- Probate and Succession
2004
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Kingsley Adu Poku Mensah sued his sister-in-law Yaa Mansah and her children in the Circuit Court, Kumasi, seeking declaration of his maternal familys title to House Plot 11, Block 1, New Amakom Extension, seven and a half tons of iron rods stored there, accounts of rents and compensation from June 1996, and a perpetual injunction. He alleged succession within the Akan matrilineal family to the self-acquired house of his late brother, Opanin Kwame Poku, later managed by another brother, Nana Poku Frefre, and by a caretaker under power of attorney. The defendants asserted a customary inter vivos gift of the house from Kwame Poku, ratified at the fortieth day funeral by Aseda of two bottles of schnapps and a2100,000. The trial judge held for Mensah, rejecting the gift as implausible. On appeal, ANIM J.A. emphasized the plaintiffs failure to establish capacity to sue as head or authorized representative under Ghanaian customary and procedural law, the discretionary nature of declaratory relief, and the Summey v Yohuno requirements for valid gifts, ultimately allowing the appeal and setting aside the judgment, with concurrences by TWUMASI and OWUSU-ANSAH, JJ.A.
JUDGMENT
ANIM, J.A.
This is an appeal from the judgment of the Circuit Court, Kumasi, dated 22nd January 2002 presided over by His Honour Ato Assan. Before going into the merits or demerits of this, appeal it is necessary to relate the events, which led to the judgment of 22nd January 2002.
On 4th February 1999, the Plaintiff/Respondent (hereinafter referred to as "the Plaintiff') commenced action at the Circuit Court, Kumasi, against the Defendants/Appellants (hereinafter referred to as "the Defendants"). By his Writ of Summons the Plaintiff asked the Court for:—
(1) Declaration of Plaintiffs maternal family's title to and recovery of possession of
(a) House Plot 11, Block 1, New Amakom Extention Kumasi and
(b) 7½ (seven and half) tons of iron rods stored in a kitchen in the said house.
(2) An Order for an account of the Rents and/or compensation for the use of all the rooms in the two (2) flats in the said House from 21st June 1996 up to the date of surrender of possession of the said House to Plaintiff by the Defendants.
(3) Perpetual injunction restraining the Defendants, other members of their family, agents, servants or workers from interfering with the Plaintiff and his maternal family's possession and enjoyment of the house and the iron rods.
The Plaintiff's case is that he had uterine brothers, Opanin Kwame Poku @ Poku Fofie and Kwaku Poku @ Nana Poku Frefie both deceaseds: he also had one uterine sister by name Akosua Dufie.
Opanin Kwame Poku died on 28th April 1977 and was succeeded by Nana Poku Frefre: Nana Poku Frefre also died on 21st July 1996. It was after his death that (he) Plaintiff succeeded Nana Poku Frefre.
The Plaintiff said during the life time of Opanin Kwame Poku he acquired House No. Plot 11, Block 1, New Amakom Extension, Kumasi, consisting of an uncompleted main building and an out-house; the main building was constructed before the out house. Nana Poku Frefre took possession of the said house after the death of Opanin Kwame Poku and remained in possession and managed the house up to 1987 when he became a chief; he then appointed his nephew Peter Kofi Karikari as his caretaker and gave him Power of Attorney to manage the house from 1987 up to the time Nana Poku Frefie died.
The Defendants' case in brief is that during his lifetime Opanin Kwame Poku evinced an intention to make a gift of the house in dispute to them which intention was allegedly made known to Nana Poku Frefre: they also allege that this intention of