KWAME TAWIAH & ANOR v. NANA AMA AKOM
2016
COURT OF APPEAL
GHANA
CORAM
- E. K. AYEBI, J.A. (PRESIDING)
- G. TORKORNOO(MRS), J.A
- A. M. DOMAKYAAREH (MRS), J.A
Areas of Law
- Civil Procedure
- Constitutional Law
- Probate and Succession
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The initial suit filed in 1992 sought an order for Letters of Administration and a perpetual injunction over the estate of the late Kobina Bentsi. The High Court ruled against the plaintiff/appellant in 2004, who then filed an appeal. After the plaintiff/appellant’s death in 2005, the applicant, a customary successor, sought substitution in 2014. The application was dismissed due to unreasonable delay, and a subsequent review application was also dismissed. The applicant's appeal against this dismissal is also dismissed, with the court affirming that there are no exceptional circumstances to interfere with the trial judge's discretion.
J U D G M E N T
DOMAKYAAREH (MRS),J. A.
1. This is an appeal against the Ruling of the High Court, Kumasi dated 3rdApril, 2014 which went against the applicant herein.
The suit that culminated in this appeal was commenced almost 24 years ago on 16th June 1992 when the plaintiff/appellant herein filed a Writ of Summons and a Statement of Claim against the defendant/respondent herein, claiming the following reliefs:-
(a) An order granting him Letters of Administration in respect of the estate of Kobina Bentsi (Deceased).
(b) Perpetual injunction restraining the defendant, her servants and agents from in any manner unilaterally appropriating to her exclusive use and benefits incomes from the estate of the late Kobina Bentsi (particularly H/No. OTB 419 Roman Hill, Kumasi.
(c) Such further order(s) as to this Honourable Court may deem fit.
The case went through full trial and on 16th January 2004 the trial High Court gave judgment against the plaintiff/appellant herein and in favour of the defendant/respondent.
The plaintiff/appellant, who was dissatisfied with the judgment of the trial court filed an appeal to the Court of Appeal against same on 29th March 2004.Shortly thereafter, the plaintiff/appellant died on 28th January 2005. Nine years later, on 13th February 2014, the applicant herein filed a motion on Notice at the High Court praying the court for an order to substitute the applicant in place of the deceased plaintiff/appellant. In
his affidavit in support, the applicant deposed that he was the grand nephew of the deceased plaintiff/appellant and that he was appointed
by the family as his customary successor and was mandated by the family to apply for the substitution to defend the interest of the family in the suit.
2. Even though counsel for the defendant/respondent stated that they were not opposed to the application for substitution, the trial judge nevertheless refused the application. He did so in these terms on 19th March 2014
“BY COURT:- The Record of Appeal in this case was settled on 4/11/2004. It is alleged that the plaintiff/Appellant died on 28/1/2005, and the applicant was thereafter appointed the customary successor. This is about 9 years ago. No reasons have been given for this long delay, apart from the death of the plaintiff/appellant. It is in the public interest that there should be an end to litigation. I find the long delay in prosecuting this appeal unreasonable and accordingly dismiss this application……..”
On 27th