OPANIN KWASI GYAMFI VS. AMOS AGYAPONG & ANOR

The Plaintiffs/Respondents hereafter referred to as Respondents are the executors of the will of Opanin Kwame Agyapong (deceased) whilst the Defendants/Appellants hereafter referred to as Appellants are the children of the deceased Testator.

The Respondents instituted this action against the Appellants for the following reliefs:

(a) A declaration that the undevised portion of the house at AbuakwaDadiase mentioned by the late OPANIN KWAME AGYAPONG in his will dated 23rd February, 1998 which will was Probated on the 26th October, 1998 falls into residue.

(b) An order of perpetual injunction restraining the Defendants, their agents, workmen and assigns from in any manner interfere (sic) with the Plaintiff’s family interest and possession of the said house.

It is the case of the Respondents, as executors, that paragraph 12 of the Will the late Opanin Agyapong devised his residuary estate to his family and that the house at the Dadiase he was completing fell into the residue. Consequently, the said house, subject to Paragraph 5 of the said Will, was devised to the family.

The Appellants objected to the Respondents’ attempt to honour the wish of the deceased Testator by complying with Paragraph 12 of the Will on the grounds that since they were not going to benefit from the house at Dadiase they could not wait till the house was completed before taking possession of the farms devised to them. The objection culminated in an action at the High Court, Kumasi where the matter was settled and a portion of the cocoa farm given to the Appellants.

The Appellants, contrary to the unambiguous provision of Paragraph 12 of the Will, have taken possession of the property in dispute and completing it. They continued their unlawful conduct resulting in breaches of the peace and hence this action instituted to ensure that the wishes of the Testator were duly honoured.

The Appellants contended that the Respondents had no capacity to institute the action since they had completed the distribution of the properties under the estate. Further, the Appellants claimed that the provision under Paragraph 5 of the Will of the Testator was in respect of the house in which he lived before he died and not the property in dispute.

As far as the property under Paragraph 12 of the Will is concerned, the Testator built it for the children including the Appellants and gifted it to them during his lifetime. They performed the necessary customary aseda and he put the children i