OPANIN JOSEPH ADUBOFOUR v. MADAM ADWOA TIWAAH
2016
HIGH COURT
GHANA
CORAM
- ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
Areas of Law
- Property Law
- Trust and Estate Law
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The court set aside an interlocutory judgment against the Defendant because the Defendant, a beneficiary under a will, was sued improperly without a vesting assent. The Plaintiff should have identified and sued the executors.
JUDGMENT
The instant action was commenced on 18/08/11 by one Opanin Joseph Adubofour who described himself as the Customary successor of the late Opanin Kwadwo Gyimah alias Kwadwo-Aboasu and the current Abusuapanin of his immediate Oyoko family. He has brought this action for and on behalf of the said Oyoko Family of Dawu- Jamasi against the Defendant who is a beneficiary under the Will of Opanin Kwadwo Gyimah for the under listed claims:
a. A declaration that the Cocoa Farm and Secondary Forest mentioned in paragraphs 3, 4 and 5 of the Will of the late Opanin Kwadwo Gyimah @ Kwadwo Aboasu of Dawu-Jamasi, which Will was executed on the 11th day of December, 2007, are the properties of the Plaintiff's immediate Oyoko family they being part of a large family land and so the late Opanin Kwadwo Gyimah had no testamentary power over them.
b. An order that the Defendant attones tenancy to the Plaintiff's immediate family over the said farm and secondary forest.
The Plaintiff's case as contained in his statement of claim filed on 18/8/11 is that his great-grand mother by name Obaapanin Donkor alias Nana Donkor cultivated the disputed land at Akasaeso or Atta ne Attaso at Dawu when it was a virgin forest. It is his case that a portion of the said land was given to the testator who is a grandson of Nana Donkor to farm on, but after his death, the family discovered that he had devised that portion of land to his wife, the defendant herein, in his Will. The Plaintiff alleged that the property shares boundaries with the properties of Madam Boya, Mr. Nti, Opanin Biowuo, Osei Yaw, Madam Mansah, Brobbey Awuah and Agya Yaw. The Plaintiff further asserted that not knowing the Executors in the said Will dated 11/12/2007, he decided to take action directly against the Defendant.
By an affidavit of service sworn on 06/09/11, it is indicated that the writ of summons and statement of claim were served on the Defendant personally at Abuakwa- Kumasi on 01/09/11. On 11/10/11, counsel for the Plaintiff conducted a search to, inter alia, ascertain whether the Defendant had entered appearance and the answer was negative. He then brought an ex-parte application on 04/05/12 and prayed the court to enter judgment in default of appearance against the Defendant.
On 17/05/12, the court (differently constituted), entered judgment against the Defendant as follows:
“The search report shows that defendant has failed to enter appearance even though served with the plaintiff's writ. The a