Kwaku Ameyaw v. Dr. Francis Osafo-Mensah & Ors
2021
COURT OF APPEAL
GHANA
CORAM
- Sowah, J.A. (PRESIDING)
- Oppong, J.A.
- Mensah-Homiah, J.A
Areas of Law
- Probate and Succession
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal from the High Court, Nkawkaw, concerns the administration of the estate of Opanin Kofi Siaw and the leadership of the Anima-Afi Aduana Royal family of Obo-Kwahu. The two consolidated suits pitted Kwaku Ameyaw and the defendants in the second suit on one side against Dr. Osafo-Mensah (the executor) and Ebusuapanin Nana Yaw Boateng on the other. Ameyaw sought vesting and accounts on behalf of the immediate maternal family/gate, while Boateng claimed to be the overall family head. The trial court found Ameyaw to be the customary successor with capacity, held Boateng had been removed per custom, ordered accounts against the executor, and declared Kofi Ofori head of family since November 2009. On appeal, arguments that the claims were statute-barred, that adverse possession applied, and that capacity and removal were improper were rejected. The Court of Appeal dismissed the appeal, varying only the accounting period (August 2003–22 June 2011) because the executor had been removed in 2011.
SOWAH, (J.A):
Introduction
This is essentially a probate and administration matter interspersed
with issues of headship of the immediate and the larger family.
Two cases, namely E2/1/2010 and E10/3/2011, were consolidated per order of court on 20th July 2011. Kwaku Ameyaw, the Plaintiff in the 1st suit was the 2nd defendant in the 2nd suit. The Defendant in the 1st suit was different from the Plaintiff in the 2nd suit but they share the same interests. They are the appellants in this appeal and will collectively be called “the appellants”. As the trial judge aptly noted, Ameyaw and all the defendants in the 2nd suit (hereafter collectively called “the respondents'”) are on one side of the litigation fence while Dr Osafo Mensah and Ebusuapanin Nana Yaw Boateng (respectively defendant in the 1st suit and plaintiff in the 2nd suit) are on the other side of the litigation fence and were represented by the same lawyer, Kweku Y. Paintsil Esq.
Facts of case
A brief narration of the general facts which tie the two cases will be helpful in appreciating the matters in contention in this appeal. The parties all belong to the Anima-Afi Aduana Royal family of Obo-Kwahu which is a clan said to be constituted by different families/gates. The respondents' allege that they belong to the founding maternal and immediate family to which Opanyin Kofi Siaw, a wealthy deceased member belonged, but that the appellants belong to a different family or gate and are not related by blood.
The testator in the case, Op Kofi Siaw died in September 1988. The appellant Dr Osafo-Mensah was the sole executor of the Will which was admitted to probate on 1st September 1989. A major beneficiary of the Will was the “maternal family” which was bequeathed buildings and personal belongings.
Alleging dissatisfaction with the administration of the estate; specifically that the appellant had for 22 years refused to vest the properties bequeathed to the immediate family of the testator, the respondent Ameyaw instituted action as ‘the head of family of the immediate maternal family of Opanin Kofi Siaw’ at the High Court, Nkawkaw on 4th August 2009 seeking the following reliefs:
A declaration that the defendant is under a duty to vest the properties devised in favour of the plaintiff’s family under the provisions of paragraphs 4 and 5 of the last Will and testaments of Opanin Kofi Siaw in the plaintiff.
An order that the defendant is liable to account to the plaintiff’s family in respect of his