July 17, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court of Ghana appeal arises from the Court of Appeals partial variation of a High Court judgment concerning House No. 27, Block 6, Old Tafo, Kumasi. Opanyin Kwabena Asare built the house, devised it to his wife Abena Tiwaah and their sons, Opanyin Kwasi Sarfo and Opanyin Kwadwo Gyebi; both sons enjoyed occupancy. After Gyebis death, his executors defended and counterclaimed when the plaintiff (a child of Kwasi) sued to protect familial rights, asserting Petenyinase family ownership and referencing amendments and a gift to Kwabena Duku. The Supreme Court held the record overwhelmingly supported the Court of Appeals recognition of joint beneficial ownership by the children and descendants of both brothers, varied the injunction to restrain the defendants personally, corrected terminology to beneficial owners, and, exercising appellate powers, declared Gyebis attempted devise to his wife and children ineffectual. The appeal was dismissed except for the correction to the injunction, and the Court of Appeals judgment was affirmed subject to these variations.
GBADEGBE: JSC
We have before us in the exercise of our appellate jurisdiction, an appeal from the judgment of the Court of Appeal (CA) by which the decision of the trial High Court was varied in part. In the judgment on appeal to us, the learned justices agreed with the lower court’s findings of fact but varied the consequential awards. While the variation of relief 2 relating to an order of perpetual injunction was essentially a different formulation of that which was granted by the trial court, relief 1 was varied in substance to include children and descendants of the plaintiff’s uncle- Opanyin Kwadwo Gyebi. The variation to the order made regarding relief 2 inserted the words; “the children of Opanyin Kwadwo Gyebi and their descendants” to the persons whose beneficial interest in the disputed property was acknowledged in the judgment of the trial court. Following the said judgment, the defendants/ appellants/ appellants (defendants) launched the instant appeal seeking a variation of the judgment in their favor. For reasons of convenience, in these proceedings the plaintiff/respondent/respondent will bear the description of plaintiff.
In the notice of appeal, the defendants attacked the judgment of the CA on the following grounds:
1. The judgment is against the weight of the evidence.
2. The Court of Appeal was wrong in declaring the children of Opanyin Kwasi Sarfo and their descendants, the children of Opanyin Kwadwo Gyebi and their descendants are beneficiary owners of House No 27, Block 6, Old Tafo, Kumasi.
3. The Court of Appeal erred in restraining the Defendants/ Appellants/ Appellants and or Agona Petenyinase family and their respective privies, assigns, workmen and anybody claiming in trust for them from interfering with the beneficiaries’ occupation and use of House No 27, Block 6, Old Tafo, Kumasi.
4. The Plaintiff was not entitled to judgment against the Petenyinase family or the family of Opanyin Kwadwo Gyebi.
5. The Defendants were not the proper persons to be sued or to be continued as Defendants in respect of the Suit.
6. The Plaintiff was not entitled to judgment on the reliefs he was granted upon the requisite standard of proof or at all.
A brief statement of the background to the action herein is stated as follows. During his life time, Opanyin Kwabena Asare was married to one Abena Tiwaah with whom he had two children, Opanyin Kwasi Sarfo and Opanyin Kwadwo Gyebi. He also acquired the disputed property in which he lived