2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arose from a long-running dispute over Cannan Lodge (House No. MB 35/2) at Agona Swedru, built by Alphonso Owiah Kwakye Bondzie, a Fante of Apam who died intestate in 1970. After his death, his immediate maternal familyrepresented by the plaintiffsmanaged the tenanted property for decades, collecting rent and exercising control. In 2012 the defendants, Alphonsos children, acting through counsel, instructed tenants to attorn to them based on an unexecuted 1965 will and asserted entitlement under a supposed customary Abusa one-third share. The Circuit Court dismissed the plaintiffs suit, but on appeal the Court of Appeal reappraised the record, held that in a matrilineal system pre-1985 intestacies devolve on the immediate family, rejected retroactive reliance on PNDC Law 111 and constitutional provisions, found the purported will invalid under Act 360, confirmed plaintiffs capacity to sue and that letters of administration were unnecessary, and applied laches and limitation to extinguish the defendants claims. The appeal was allowed and the trial judgment set aside.
LAWRENCE L. MENSAH, J.A.
The Plaintiffs/Appellants who will be referred to as Plaintiffs are members of the immediate family of the wider Efrisem Anona Kusibentsir family of Apam. The Defendants/Respondents who will be referred as Defendants are the children of Alphonso Owiah Kwakye Bondzie (deceased) who hailed from Apam in the Central Region of Ghana and a member of the Plaintiffs’ immediate family and a grandfather of the Plaintiffs.
Before his death in 1970 the said Alphonso Owiah Kwakye Bondzie the deceased put up two houses. The first house is situate at Apam called “Panpashie”. This house became a family house. The second house Number MB 35/2, Agona Swedru christened “Cannan Lodge” is the subject-matter of this appeal. The deceased also had cocoa farms at Makrong and Nkutunase.
Upon the death of Alphonso Owiah Bondzie in 1970 intestate, the immediate family, now fronted by the two Plaintiffs in this appeal, took over the ownership, possession and control over the said properties. The disputed house was a large tenement rented to several tenants who paid the rents to the Plaintiffs and the immediate family. Upon the death of the said Alphonso Owiah Bondzie, he was customarily succeeded to by Clement Kobina Ahinsah Bondzie and he was also the head of the immediate family of the Efisan Anona Kusubentsir family. After his death in 1985, he was succeeded by one Lawyer SOB Quaye. The reality is that the Plaintiffs continue to exercise ownership, possession and control over the disputed Cannan Lodge aforesaid to the total exclusion of anybody since the death of Alphonso Owiah Bondzie in 1970.
In an undated letter to the tenant-caretaker of the Cannan Lodge, followed by two other letters dated the 13th of November 2012, and 12th December 2012, to the instant Plaintiffs’ lawyer, the learned counsel for the Defendants wrote that the children of Alphonso Owiah Bondzie had taken over control of the Cannan Lodge rented premises. The Defendants’ counsel ordered the tenants to attorn tenant to the Defendants and their siblings “starting from the end of November, 2012”.
According to the Defendants’ counsel the reason for helping the Defendants and their siblings to take over the disputed property is that he had in his “possession a copy of the WILL of the late Alphonso Owia Kyakye Bondzie dated 30th June 1965”, and he appointed executors for the said will.
After the instant counsel for the parties could not find a way of resolving the hassle through exchange