January 28, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Ghana Court of Appeal, per Adjei‑Frimpong JA with Tanko Amadu JSC and Anthony Oppong JA concurring, resolved a family dispute over the boys‑quarters at Plot 16, Block E, North Patase, Kumasi. Adiyea’s children sought possession and declaration of ownership under his will. The appellant, Adiyea’s nephew and customary successor to Adiyea’s brother, Kwame Nkrumah, asserted an inter vivos gift of the boys‑quarters to Nkrumah, who moved in and whose name appeared on title and bills. The appellate court criticized the trial judge’s handling of evidence, found the gift valid (intention, aseda ceremony, possession/publicity), and held that nemo dat prevented the will from devising the outhouse. On settlement, the court agreed beneficiaries lacked authority absent vesting assent, but found this immaterial given the gift. It reversed the trial court, dismissed the respondents’ claims, granted the counterclaim, declared the boys‑quarters Nkrumah’s property, and issued a perpetual injunction.
RICHARD ADJEI-FRIMPONG JA:
The bone of contention in this case now on appeal before us is the outhouse (boys-quarters) attached to the main storey building on Plot No. 16, Block E, North Patase, Kumasi.
It was established at the trial in the Circuit Court that the entire property was acquired by the late Opanin Kwabena Adiyea (the testator) who died testate on 12th November 1981.
The plaintiffs, (herein the respondents) are the children of the testator and their claim, for themselves and on behalf of their other siblings was that the testator devised the outhouse and the upstairs portion of the main storey to them in his last will.
The defendant, (herein the appellant) is a nephew of the testator who currently occupies the outhouse. His occupation is on the basis that, the testator in his lifetime made a gift inter vivos of the outhouse to his younger brother Kwame Nkrumah also deceased, whom he (appellant) as nephew, customarily succeeded.
The respondents’ action at the trial circuit court was mainly to recover possession of the outhouse but they added another declaratory relief by endorsing their writ as follows:
(i) An order of tis Honourable Court to compel the defendant to give vacant possession of the portion of the Boys—Quarters occupied by the defendant.
(ii) A further order of the Court declaring that the Upstairs portion of the House Number Plot 16, Block E, North Patase, as well as the Boys—Quarters is the property of the plaintiffs.
By way of pleading, the respondents did not have much to state. Their late father’s will by which the devise of the property was made to them had been admitted to probate following which the executors vested the property in them. The appellant however failed to give up possession when requested to vacate the place. Not only that, the appellant brought an action against them at the Circuit Court which he later discontinued on his own. The appellant had no interest whatsoever in the property hence their action.
Per contra, the appellant pleaded that he was entitled to occupy the property as the customary successor of the late Kwame Nkrumah. The story about how Kwame Nkrumah became the owner of the property as narrated, began on a regrettable note.
In the lifetime of the testator, he was dealing in arms (guns) which business he ran with his younger brother Kwame Nkrumah. In course of the business, Kwame Nkrumah was arrested in connection with the sale of arms. He however owned up without disclosing his brothe