December 4, 2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal (per Senyo Dzamefe, JA, with Abban, JA (Mrs.) presiding and Acquaye, JA concurring) decided an appeal brought by the children and administrators of the estate of Susannah Korkoi Otoo against the executors of Joseph Kabufio Otoos Will. The appellants sought a declaration of title and conveyance of House No. C505/13 at Kotobabi, alleging a divorce-settlement announced by Josephs counsel and implicit recognition in Josephs Will. The High Court found no enforceable consent order, held the action timely, nevertheless dismissed the suit on estoppel. On appeal, the Court of Appeal applied the re-hearing standard, held there was no binding settlement nor implied acknowledgement under the Will, and concluded that estoppel per rem judicatam barred relitigation given prior competent and final decisions involving the same parties and issues. The appeal was dismissed in its entirety.
DZAMEFE, JA
This is an appeal from the judgment of the Accra High Court dated 2nd May, 2012.
The brief facts of this case, as stated by the plaintiff’s hereinafter referred to as the appellants, are that the appellants are the administrators of the estate of one Susannah Korkoi Otoo by virtue of Letters of Administration granted them by the Accra High Court on 15th May, 2003. They are the children of the deceased and also beneficiaries of her estate and reside in Accra.
The defendants hereinafter referred to as the respondents are the executors of the last Will and testament of one Joseph Kabufio Otoo and also reside in Accra.
According to the appellants, in or about 1984, Susana Korkoi Otoo petitioned for the dissolution of her marriage to Joseph Kabufio Otoo, her husband, in the High Court. One of the reliefs was the settlement on her a property situated at Kotobabi, Accra. It is the appellants’ case that in course of the divorce suit, counsel for the husband, Mr. Mingle agreed to settle the petitioner on the portion of the Kotobabi property on which was an existing building which she accepted. This agreement they averred formed part of the court’s record in the matrimonial cause.
The appellants averred that although Joseph Kabufio Otoo could not finally convey the settled property to Susannah before his death on 19th July, 1986, he impliedly acknowledged the agreement by leaving the settled property off his Will.
By the said Will dated 2nd July, 1986, J. K. Otoo devised on his daughter Margaret Odoforkor Otoo the vacant half of the property at Kotobabi having already settled a portion of it to Susana Korkoi Otoo.
The respondents, the appellants claim, have refused to acknowledge the said property settlement by J. K. Otoo in favour of Susana K. Otoo and have wrongfully persisted in claiming the aforesaid building as part of the J. K. Otoo’s estate. They have refused to convey the settled property to Susana Korkoi Otoo’s estate unless compelled by the court hence this suit for the following reliefs:
i. Declaration of title to that part of the land situated at Kotobabi, Accra, on which is sited a building known as H/No. C505/13.
ii. Declaration that the said building was settled on Susannah Korkoi Otoo by Joseph Kabufio Otoo, by virtue of an agreement reached by the parties in divorce suit No. DMC 49/84, and thus forms part of her estate.
iii. An order compelling the defendants to formally convey the aforesaid building to the estate of Susana Kor