2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case arises from an intra-family dispute over Plot No. 17 Block B Suame Tarkwa/Magazine, Kumasi. Principal members of the Nkofe family, Aframa and Adadiemu, sued the executors (later substituted by children Anthony K. Mensah and Georgina Mensah Poku) of the estate of John Edward Mensah, alleging he lacked testamentary capacity over the property, which they say was built with family funds while he served as fiduciary head, and seeking declarations and injunctions. The Respondents denied, asserting the plot was Mensahs self-acquired property under a government lease, and counterclaimed for declaration and injunction. After the High Court dismissed the Appellants claims and entered judgment on the counterclaim, the Appellants appealed, ultimately arguing only capacity. The Court of Appeal held that the action was a representative claim not endorsed per Order 2 rule 4(1)(a), rendering the writ and proceedings void. The trial judge erred by proceeding to the merits; consequently, the entire trial suit and counterclaim were dismissed as incompetent, while the appeal was rejected insofar as it sought judgment for Appellants.
DOMAKYAAREH (MRS.), JA:
[1] In this appeal, the Plaintiffs/ Appellants who will herein after the called the Appellants averred in their Amended Statement of Claim that they are principal members of the Nkofe family of Aframa and Adadiemu in the Ashanti Region of Ghana. They initially issued the Writ against Nana Sarfo and Benjamin Brayie Edusei who were the named Executors of an alleged Last Will and Testament of John Edward Mensah (deceased). Later, upon the death of both Defendants, upon application, Anthony K. Mensah and Georgina Mensah Poku who are children of the deceased John Edward Mensah were substituted in place of the deceased Defendants. They are the Defendants/Respondents in this appeal and will herein after be called the Respondents.
[2] By their Amended Writ of Summons filed on 28th October, 2013 in the Registry of the High Court, Kumasi, found at page 136 of the Record of Appeal, the Appellants claimed as many as six reliefs against the Respondents jointly and severally. The reliefs they claimed are: -
a. A declaration that plot known as PLOT NO. 17 BLOCK ‘B’ SUAME TARKWA/MAGAZINE, KUMASI together with the building situated thereon is the property of the NKOFE FAMILY of AFRAMA and ADADIEMU in the Ashanti Region.
b. A declaration that JOHN EDWARD MENSAH (deceased) had no Testamentary capacity whatsoever and in respect of the said property known as H/NO. 17 SUAME TARKWA/MAGAZINE, KUMASI and that the device in respect of the property in the last Will and Testament of John Edward Mensah (deceased) is null and void ab initio.
c. A declaration that the purported and/or alleged device made in the Last Will and Testament of John Edward Mensah (deceased) in respect of Plot No. 17 Block ‘B’ Suame Tarkwa/ Magazine, Kumasi is an infraction of the property rights of the said Nkofe family of Aframa and Adadiemu.
d. An order of perpetual injunction restraining the Defendants, their agents, assigns, privies from in any manner attempting to distribute and/or vest the said property in the persons named in the said Last Will and Testament of John Edward Mensah as the beneficiary of the said property.
e. A declaration that any document in respect of the said property known as Plot No. 17 Block ‘B’ Suame Tarkwa/ Magazine, Kumasi which bears any name other than that of the Nkofe family of Aframa and Adadiemu (particularly the name of John Edward Mensah) as being the owner(s) of the said property is fraudulent and has no legal basis whatsoever and same