OPANIN KWAKU DUAH & KWABENA ADADE v. OPPONG ASAMOAH

JUDGMENT

HENRY KWOFIE J.A

This is an appeal against the judgment of the High Court Kumasi dated the 30th of July 2015. By a Writ of Summons filed on 25/02/2005 the plaintiffs/appellants claimed against the defendant/respondent the following relief:

1. A declaration that the properties devised under the Will of the late Kwabena Nyantakyi are his self-acquired properties and perpetual injunction restraining the defendant, his privies agents and servants from interfering with them.

The 1st plaintiff is the surviving executor of the last Will and Testament of the late Opanin Kwabena

Nyantakyi (deceased) who died testate on 5th May 2004. The 2nd plaintiff is a member of the testator’s family and one of the beneficiaries named in his Will. The defendant is a nephew of the testator. In his last Will and testament, the testator devised all his properties to named beneficiaries. After his death, the defendant claimed that not all the properties devised in the testator’s last Will were his self-acquired properties. The plaintiffs contending that all the properties were his self-acquired properties and he had the testamentary capacity to devise them in the manner he did, commenced an action against the defendant.

The defendant on the other hand contended that the testator who was a member of his family had made an intervivos gift of one of the disputed properties to his matrilineal family whilst a house at Atwima Koforidua was not the self-acquired property of the testator. The defendant accordingly counter-claimed as against the plaintiffs as follows:

a) A declaration that the following properties belonged to the defendant family:

i) First floor consisting of two flats of his H/No. 20, Patasi Kumasi

ii) A portion of his Wansamire cocoa farm together with a cottage thereon now given under his Will paragraph 6(c) to his daughter Abena Antwiwaa

iii) House No. 88, Koforidua-Atwima

b) Recovery of possession of the properties in dispute or any part thereof from the plaintiffs.

c) Perpetual injunction to restrain the plaintiffs, their agents, workmen/servants and assigns from in any manner dealing with the properties in dispute or any part thereof.

The High Court Kumasi gave judgment in favour of the defendant/respondent in terms of his counter claim.

Aggrieved by the said decision, the appellants filed an appeal on the 12th of August 2015 on the ground that:

i) The judgment is against the weight of evidence.

The notice of appeal is at page 80 of the Recor