OPANIN YAW OKYERE v. OPANIN APPENTENG _ ANOR.
2004
COURT OF APPEAL
GHANA
CORAM
- ANSAH, J.A.
- AKOTO BAMFO (MRS.)
- ANIN-YEBOAH, JJA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Probate and Succession
- Evidence Law
2004
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In this Ghana Court of Appeal decision authored by ANSAH, JA, the dispute concerns whether several farms and a house in Seniagya, Ashanti, referenced in the will of the late Akua Ataa, were family property or self‑acquired and validly devised. The plaintiff, head of the Anima Kokoo family, sought declarations, possession, and an injunction; the second defendant, identified as Akua Adoma, counterclaimed asserting that the properties originated from gifts to immediate family (not the wider clan) and from acquisitions by Akua Ataa and her husband. The High Court dismissed the plaintiff’s case and upheld the counterclaim. On appeal, the court affirmed, emphasizing deference to trial fact‑finding and the burden in land cases to prove title by traditional evidence or acts of ownership. Procedurally, the court held late judgment did not automatically invalidate the decision, default judgment required an application actually moved, and interim injunction relief cannot be endorsed on a writ or counterclaim. The court added that the Alata farm should go to the family pursuant to the will.
JUDGMENT
ANSAH, JA
The plaintiff claimed the following against the defendants:
(a) “a declaration that all items being farms and a house bequeathed, devised and/or gifted by the late Akua Attaa under the will of Akua Attaa dated 11/8/83 are Family property.
(b) Recovery of possession of the said property, i.e.
(i) Mmenkrom Farm,
(ii) Brepro Farm,
(iii) Seniagya Kwaemu Farm,
(iv) Kwame Atta Farm, and
(v) House Number A.D. 26 Seniagya Ashanti.
(c) An Injunction restraining the defendants all by themselves and each by himself or herself from in any way interfering with the property."The second defendant, while denying each and every allegation of fact or law in the plaintiff’s statement of claim counterclaimed for
(i) A declaration that the properties devised to the 2nd defendant were self acquired properties of the immediate family members made up of Madam Amma Ayewa and her three children namely, Opanin Ntim, Kwaku Brobbey and Akua Ataa (the testatrix),
(ii) …Order for interim injunction restraining the plaintiff…from in any way interfering with the devises made to the 2nd defendant in the said will.
(iii) An order of the court compelling the sole executor to take control over the properties devised in the will till the final determination of this suit."
(iv) General damage.
I have decided to comment briefly on a point of pleadings first.
"In law, where a claim in an action involving land was not for possessing, an interlocutory injunction could not be endorsed on the writ of summons. Therefore in the instant case, the endorsement for interim injunction on the writ should be struck out because an interim injunction was, in the circumstance, a substitute for damages for the period between the issuing of the writ and the trial. The plaintiff was at liberty to a motion for interim injunction after the issue of the writ."
See Ediyie v Honny [9757] 2 GLR 142.
The above applies in a counterclaim where there was no claim for possession of land as in this case. Claims (ii) and (iii) in the counterclaim were for control of the properties till the final determination of the dispute. It smacks of and sounded in the nature of an interim injunction, which by practise is to be applied for in a motion after the issuing of the writ of summons or taking filing a counterclaim. It was wrong for them to be put in the counterclaim. The court below should have struck them out and we hereby do so.
Many issues were set down in the summons for directions. The d