MICHAEL KWASHIE, ADELAIDE KWASHIE v. PETER CHARLES NOI _ JONE KORLEY
2004
COURT OF APPEAL
GHANA
CORAM
- ARYEETEY, J.A. (PRESIDING)
- ANINAKWAH, J.A.
- QUAYE, J.A
Areas of Law
- Property and Real Estate Law
- Probate and Succession
- Evidence Law
2004
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal of Ghana, per Aryeetey, J.A., dismissed an appeal by the children of the late Emmanuel Kotei Kwashie concerning ownership of House No. F390/1 at Osu, Accra. Adelaide and Michael Kwashie claimed they had sent funds from the United Kingdom and supplied machinery to help complete the property, and that their father acknowledged these contributions by executing a conveyance (exhibit B) placing the house in the names of himself and the plaintiffs as tenants in common. After Emmanuel’s death, it surfaced that he devised the same property to his second wife, Emma Telfah, and her children (exhibit A). The appellants sought declaration of title and to void the devise. The court held that exhibit B merely recorded a customary gift subject to customary law, the appellants failed to prove the alleged contributions, and that even if a valid parent-child customary gift existed, Emmanuel’s later will effectively revoked it. The appeal was therefore dismissed.
ARYEETEY, J.A.
A brief background to this appeal is as follows: Until his death on 25th February 1997 the late Emmanuel Kotei Kwashie carried out a business as dressmakers and tailors with his son and daughter, the appellants herein. It is the contention of the appellants that even though their late father on his own acquired the land on which besic built the house where they jointly carried out the dressmakers and tailoring business with him they gave monetary assistance to him for the construction of the house. They did that from the United Kingdom where they studied. On their return from the United Kingdom to Accra, they brought with them industrial and domestic machines as well as other tools to reactivate the business, of which they became partners with their late father. In acknow- ledgement of the contributions made by the appellants in various forms the late Emmanuel Kotei Kwashie executed a conveyance, exhibit B transferring the property, House No F390/1, Osu from himself as a Donor to the plaintiffs and himself as donee being tenants in common. That took place on 13th September 1984. However, upon his death it was discovered that the late Emmanuel Kotei Kwashie devised the said house in his Will to his second wife Emma Telfah and her children.
The appellants contend that because of the execution of exhibit B of which they are beneficiaries their late father lacked the capacity to devise in his Will, exhibit A, House No. 390/1, Osu in favour of Emma Telfah and her children, which adversely affects their interest in the said house. Therefore by their writ of summons in the court below, the plaintiffs/appellants sued the executors of their father’s will, the defendants/respondents herein claiming the following reliefs:
(a) Declaration of title of all that parcel of land situate at Osu, Accra with building thereon which land is particularly described in the schedule hereinafter referred and commonly known as House No. F390/1 Osu, Accra.
(b) Perpetual Injunction against the defendants, their agents and assigns restraining them from interfering with the interest of the plaintiffs in House No. F390/1, Osu Accra.
(c) An order declaring the devise of House No. F390/1 Osu Accra to Emma Telfah and children as contained in the Last Will and Testament of Emmanuel Kotei Kwashie as void and of no effect.
The defendants counterclaimed for:
(a) Account of all rents and proceeds from House No. F390/1, Osu Gorsee, Accra and payment over to the defendant/exec