NANA OBENG DWAMENA (CUSTOMARY SUCCESSOR OF THE LATE KWAKU BOAKYE) v. MR. KWAME DONKOR & ORS

AYEBI J.A.

1.This is an appeal against the judgment of the Circuit Court, Bekwai dated 8th April 2011. In the judgment the trial judge dismissed the plaintiff’s claim as customary successor to the late Kwaku Boakye because the plaintiff is not a member of the family of the late Kwaku Boakye. On the contrary, the trial judge upheld the counter-claim of the 1st to the 6th defendants that since the family of the late Kwaku Boakye has become extinct, the late Kwaku Boakye had the capacity to devise the disputed properties to the 3rd to 7th defendants in his will.

2.In his writ of summons, the plaintiff sought the following reliefs:

(a) A declaration that the following properties belong to his immediate family and that the late Kwaku Boakye had no capacity to devise them to the defendants or anybody:

(i) All that piece and parcel of cocoa farm at Amomorso/Kokotro Road/Danhiniho on Kokofu/Dadiase stool land and bounded by the properties of Adwoa Bio, the late Kwasi Boadi No.2, late Kwame Adjei, Kwaku Poku, the late Peter and Anyano streamlet (beyond the stream is the farm of Osei Yaw).

(ii) All that and parcel of farmland at Bofufuoho on Kokofu/Dadiase stool land and bounded by the properties of Yaw Sarfo, the late Kwasi Boadi No.1, the late Kwasi Boadi No.2, the late Kofi Agyapong, the late Kofi Nyame, the late Kyei Mensah, the late Yaa Amoa and Amma Serwaa.

(iii) All that piece and parcel of fallow land at a place known and called Nsuayem/Kwaho on Kokofu/Dadiase stool land and bounded by the properties of Amma Serwaa, the late Yaw Barimah Kumaa and the late Adwoa Kyere.

(iv) All that piece and parcel of cocoa farm lying and being at a place commonly called Buohoho on Kokofu/Dadiase stool land and bounded by the properties of Yaw Sarfo, Kwasi Boadi No.1 and Kwasi Boadi No.2, Kwadwo Agyapong, Kofi Nyame, Kyei Nyame, Yaa Amoa, Amma Serwaa and Kwaku Nyame.

(v) House No. A 20, Amormoso.

(b) Recovery of possession of all the properties listed in paragraph 1 “a” to “e” supra. (

c) General damages.

(d) An order of perpetual injunction to restrain the defendants, their agents, family members, etc. from laying adverse claim to any of the properties.

3.Upon service of the writ of summons and statement of claim on the defendants, an appearance was entered for all of them by a lawyer. However, the 7th defendant did not engage the services of a lawyer. She entered an app