2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal (per A. M. Domakyaareh, J.A.) considered an appeal from the High Court, Kumasi’s refusal to substitute the deceased plaintiff/appellant’s customary successor nine years after the appellant’s death. The underlying suit, filed in 1992, concerned administration of the estate of Kobina Bentsi and restraint of unilateral appropriation of estate income, including property H/No. OTB 419 Roman Hill, Kumasi. After the High Court entered judgment for the defendant in 2004, the plaintiff appealed but died in 2005. The 2014 substitution application was refused by the High Court on public policy grounds (“there must be an end to litigation”) given the prolonged delay, and a review was dismissed. On appeal, the court agreed that proceeding in a deceased’s name was wrong, invoked section 6(2) of the Limitation Act by analogy to reinforce finality, found no exceptional basis to disturb the discretion, and dismissed the appeal.
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