Kwame Adjei v. Agyenim Boateng & ORS
November 15, 2022
COURT OF APPEAL
GHANA
CORAM
- Sowah, J.A. (PRESIDING)
- Oppong, J.A.
- Mensah-Homiah, J.A.
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Probate and Succession
November 15, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Sowah JA, dismissed an appeal by Kwabena Moses, who had been substituted as defendant after the death of his father, Agyenim Boateng, in a long-running land dispute brought by family head Kwame Adjei of the Asante Nnobuom Agona Family of Abodom. The record showed that Moses was served with the substitution order and numerous hearing notices but failed to enter appearance or attend trial, after which the High Court, Koforidua, declared title in the plaintiff, ordered recovery of possession, and granted a perpetual injunction. On appeal, Moses argued the trial court erred in substituting him because, under Akan custom, he is not a member of his fathers family and that the customary successor should have been substituted. The Court held substitution was proper under Order 4 rule 6, emphasized the mandatory 14-day window under Order 36 rule 2 for setting aside, and noted the deceaseds pleadings claimed personal ownership of some lands, engaging intestate succession principles. The appeal was dismissed.
SOWAH, (J.A):
This appeal is by Kwabena Moses, the substituted 1st defendant and the appellant in this appeal from the judgment of the trial High Court, Koforidua dated 30th October 2020 which is at pages 292-297 of the record of appeal.
It will be useful for a proper appraisal of the appeal to set out the history of the case briefly.
Background Facts
The writ of summons in this case was issued on 23rd December 2008 by the plaintiff Kwame Adjei suing as the Head, for and on behalf of the Asante Nnobuom Agona Family of Abodom against three defendants. The basis of the case against the 1st defendant was that he was a principal member of the family but that he had through fraudulent representations purported to alienate family lands to the 2nd and 3rd defendants.
In the tortuous course of the case which included several amendments to pleadings, the suit against the 2nd and 3rd defendants was discontinued, leaving only Agyenim Boateng as defendant. The amended writ of summons filed on 22nd July 2010 at pages 82-83, and the later amendment to the statement of claim filed on 19th Jan 2016 at page 211-215 of the record of appeal attests to this. The defendants’ amended statement of defence filed on 24th May 2012 is at pages 110-112 of the record.
It would appear from the records that the defendant died sometime between July 2016 and November 2017 and was substituted on the application of the plaintiff with his son, the present defendant/appellant on 22nd March 2018 [See page 228].
The Order was duly drawn, the writ of summons was duly amended and the processes including the Order for substitution were served on the substitute on 19th April 2018 [See Search Reports at pages 231, 253, 329 and 340].
The plaintiff also died thereafter and was substituted on 9th July 2019 by Afia Kyerewaa who prior to her substitution was the lawful attorney for the plaintiff.
Meanwhile the substituted defendant failed to enter appearance and ignored a Motion for judgment in default of appearance which was served on him on 18th November 2019 as well as copies of witness statements of the plaintiff and her two witnesses and the Pre-trial Check list and several Hearing Notices.
The trial court noted on 2nd March 2020 (at page 271) as follows:
“Defendant served Hearing Notice but not in Court to proceed. Plaintiff has filed her witness statement and that of PW1 & PW2 as well as pre-trial checklist. Interlocutory judgment already taken against defendant. Plaintiff to prove