KOFI ASAMOAH v. NANA GUAKRO EFFAH & ORS
2021
COURT OF APPEAL
GHANA
CORAM
- A. M. DOMAKYAAREH (MRS) J. A. PRESIDING
- A. B. POKU-ACHEAMPONG, J. A.
- S. K. A. ASIEDU, J. A
Areas of Law
- Civil Procedure
- Probate and Succession
- Property and Real Estate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arises from a Kumasi High Court order in litigation over the estate and property of the late Dr. Christian Kwaku Adjei, centering on Plot No. 13 Blk W at Takwa Makro. The Plaintiffs—children and family members—challenged a 1998 will as forged, sought intestacy under PNDC Law 111, revocation of probate and vesting assent, and invalidation of a transfer to the 3rd Defendant, also seeking possession, demolition, damages, letters of administration, and injunction. With a parallel Circuit Court suit (A9/17/17), the High Court put the Plaintiffs to election but additionally ordered that, if the Circuit Court action was discontinued, the Defendants must desist from pursuing their counterclaim. The 3rd Defendant appealed only that restraint. The Court of Appeal, per A. B. Poku-Acheampong JA, held that lis alibi pendens does not extinguish or restrain a counterclaim, which is a separate and independent action under C.I. 47, and set aside the offending order; the panel was unanimous.
JUDGMENT
POKU-ACHEAMPONG, J.A.:
The subject matter of this interlocutory appeal is a ruling by a Kumasi High Court dated the 27th day of February, 2020.
The part of the ruling being assailed is the order that the 3rd Defendant/Applicant/Appellant desist from pursuing his counterclaim if the Circuit Court case is discontinued. The grounds of appeal of the 3rd Defendant/Applicant/Appellant in his Notice of Interlocutory Appeal filed on 12/3/20 are as follows:
1. The Learned Trial Judge erred when she held that the Defendants/Appellants must desist from pursuing their counterclaim if the Plaintiffs/Respondents discontinued their action at the Circuit Court.
2. Additional grounds of appeal to be filed on receipt of the Record of Appeal.
Background
The Plaintiffs/Respondents, hereinafter referred to as the Plaintiffs, on 4/4/2018 issued a Writ of Summons and Statement of Claim against the Defendants/Appellants, hereinafter referred to as the Defendants, claiming the following reliefs:
i. A declaration that the documents dated 25th day of March 1998 being described as the last will and Testament of the deceased, the late Dr. Christian Kwaku Adjei is not his deed and therefore null and void and of no effect.
ii. Declaration that the late Dr. Christian Kwaku Adjei died intestate and therefore all his self-acquired properties are to be shared in accordance with the PNDC Law 111.
iii. An order revoking the probate granted to the purported executor of the said document and /or setting aside the vesting assent vesting the subject property to the 2nd defendant and any document(s) premised on same.
iv. A declaration that the purported sale of the said property by the 1st and 2nd defendants to the 3rd defendant is illegal and /or unlawful.
v. Recovery of possession.
vi. An order compelling the 3rd defendant to pull down (at his own expense) the building structure which he has constructed on land, the subject matter in issue.
vii. General damages for trespass.
viii. An order granting Letter of Administration to the children and the family of the deceased to enable them jointly administer his estate and distribute same according to law and custom.
ix. An order of perpetual injunction restraining the 1st and 2nd defendants either by themselves, their agents, successors, assigns from interfering with the portions of the property in issue to be vested in the other beneficiaries or doing anything at all with the aim of denying the other beneficiaries access t