2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per M. M. Agyemang (JA), allowed an appeal from a High Court judgment following a rehearing ordered in 2004 concerning the estate of the late Opanyin Kwaku Boadi of the Bretuo Clan. The appellant, the successive customary successor, challenged a customary arbitration conducted at the Kade Traditional Council Palace that purported to redistribute Boadi’s properties to his children, including House No. D194, Kade, and a farm at Dadease. The panel required payments of Ȼ150,000 and a sealing fee of Ȼ140,000, after which the children ousted the appellant and instructed tenants to attorn to them. Applying the rehearing standard, the Court held the arbitration invalid for lack of jurisdiction because the subject matter—giving children a share in an already distributed estate under matrilineal succession—was contrary to customary law, and PNDCL 111 could not be retroactively applied to a 1962 death. The Court rejected complaints about a successor judge and certain evidentiary points, set aside the judgment, and awarded GH¢5,000 costs.
J U D G M E N T
AGYEMANG (MRS.), JA:
This appeal follows the judgment of the High Court, Akim Oda, delivered on 30th of March 2012. The judgment itself follows a rehearing of the suit per an order of this court contained in this court’s judgment dated: 5th March 2004.
The facts of this matter are not complex, and we shall endeavour to make short work of the issues that have given rise to this appeal. These are the matters antecedent to the instant appeal:
The plaintiff\appellant (hereafter referred to alternately as the plaintiff, or the appellant), commenced the suit at the court below against the defendants/respondents (hereafter referred to alternately as the defendants, or the respondents), seeking inter alia, a declaration that the alleged redistribution of the estate of Opanyin Kwaku Boadi (deceased) on 4th August 1999 is null and void; damages for trespass; the refund of Ȼ150,000 by the 4th defendant with interest thereon, and a perpetual injunction restraining the defendants and their privies from interfering with the plaintiff’s ownership, possession and control of properties or any part thereof.
The plaintiff brought suit as the successive customary successor to Opanyin Kwaku Boadi (deceased), having been appointed the direct customary successor to his own mother Akosua Kadewaa, who herself had been customary successor to her brother Kwaku Danso, the direct customary successor of the said Opanyin Kwaku Boadi.
According to the plaintiff, family properties he succeeded to, included a house numbered H/No D194 Nsuase Kade, originally the self-acquired property of Opanyin Kwaku Boadi, as well as a farm at Dadease (which he alleged to be family land) on which the said Opanyin Kwaku Boadi (deceased) had made a farm.
It was the case of the plaintiff that Opanyin Kwaku Boadi, a man of wealth who had put up three houses in his lifetime, and had made the farm at Dadease, distributed his self-acquired properties before his death in 1962. In this regard, the plaintiff alleged that, Opanyin Kwaku Boadi a husband of two wives gifted one house each to his wives: to his wife Abena Donkor who was childless, he gifted his self- acquired house at a place called Twepease, to his wife Akosua Donkor, the mother of his four children (the defendants herein), he gifted a house at Kade, and to his maternal family, he gave house numbered D194 where he dwelt.
It was common cause that Opanyin Kwaku Boadi was an Ashanti man who belonged to the Bretuo Clan and was subj