April 28, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Baah JA, heard an appeal from a High Court judgment distributing the estate of Emmanuel Clement Dsani Kotei. The estate comprised House No. F807/2 off Cantonments Road, Osu, Accra, with a main storey building and a larger plot with an outhouse. Plaintiffs/Respondents and Defendant/Appellant are brothers and beneficiaries. The High Court found Defendant had occupied the outhouse exclusively since 1973, used temporary structures to enhance it, and allowed his child to occupy the ground floor of the main house. It vested the outhouse in Defendant, the storey building in Plaintiffs, ordered vacation of the ground floor, and restrained Defendant from occupying any part of the storey building. On appeal, the court affirmed civil burden-of-proof principles, rejected arguments on capacity, discontinuance, and valuation, found the findings supported by admissions and evidence, and dismissed the appeal, upholding the distribution.
BAAH, JA.
On 7 April 2017, Plaintiffs/Respondents (hereafter Plaintiffs), issued a writ of summons against Defendant/Appellant (hereafter Defendant) at the High Court, Accra, for an order that their late father’s estate should be distributed by vesting the outhouse of House No. F807/2, off Cantonments Road, Osu, Accra, in the Defendant, whiles the main story building is vested in the Plaintiffs. They further sought an order directing Defendant and his children to vacate the ground floor of the story building to enable Plaintiffs take possession of same, damages for trespass and further or other reliefs that may be just, including an order for perpetual injunction restraining the Defendant, his servants, agents, privies, assigns or workmen from occupying any portion and taking possession or control of any part of the main storey building of the subject property.
CASE OF PLAINTIFFS
The case of the Plaintiffs is that their late father, Emmanuel Clement Dsani Kotei who died on 9 May 1973, vested the entire property in the Plaintiffs and Defendant who are brothers, as tenants-in-common. On or about 27 May 1974, the Executors were granted probate to administer the estate. The main house (storey building) was rented out by or on the directives of the Executors. Realising that the Executors had failed to vest the estate in the beneficiaries, the beneficiaries applied and secured a High Court order which vested the estate in them on 12 February 2014.
The dilemma of Plaintiffs began from this stage. From the evidence of Plaintiffs, House No. 807/2, is constituted of two plots. One plot has the main building, which is a one storey. There is however a second plot which is larger, and on which is situate the outhouse. Their evidence shows that Defendant has been in occupation of the outhouse since 1973, when their father died. He has constructed temporary structures around or by the outhouse for his own use. His child or children were also in possession or occupation of the ground floor of the storey building after the tenant, late lawyer Peasah-Boadu left. Plaintiffs allege that both outhouse and main house remained in the possession of Defendant until recently when Plaintiffs were placed in possession thereof after the High Court Judgment.
According to them, the Defendant as the first son was given the first option to choose the portion of the estate that he wanted vested in him. On three separate occasions, he chose a portion of the estate, but failed to respec