2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision, authored by Samuel K.A. Asiedu JA with DOMAKYAAREH JA (Presiding) and Poku-Acheampong JA concurring, arises from a family land and testamentary dispute over a cocoa farm at Akomenaso (the “family’s place”) cultivated with family resources by three brothers, including the Appellant’s father, Yaw Boakye. After Yaw Boakye died, his daughter produced a Will read at the High Court and claimed a devise of the disputed farm. The family head and customary successor (Respondents) sued in the Kumasi Circuit Court for declarations, possession, damages for trespass, and injunction; the Appellant counterclaimed, asserting an inter vivos gift confirmed by the Will. On appeal, the Court rejected the jurisdictional challenge, clarified Circuit Court authority over probate and succession matters within statutory limits, and, exercising its appellate power to address capacity, held that a devisee cannot be sued absent probate or vesting assent. The appeal was allowed, the Circuit Court judgment set aside, the suit dismissed, and no costs ordered.
ASIEDU, JA
My lords, on the 9th day of August 2019, the Circuit Court sitting at Kumasi pronounced judgment in favour of the Plaintiffs/Respondents in this matter against the Defendant/Appellant herein in a suit brought by the Plaintiffs/Respondents in which they sought against the Defendant/Appellant:
1. Declaration that all that piece and parcel of farm land situate and lying at a place commonly known and called family place at Akomenaso, Bayerebon bounded on all of its sides by the river Asuo Kokoo and properties of Ama Achiaa, Agya Abokyi succeeded by Akua Kyeraa, Agya Kwadwo Fordjour succeeded by Okomfuo, Agya Sam succeeded by Elder Bee, Apabi, Yaw Owusu, Yaw Opoku and Kwaku Anane is the family property of the Plaintiffs.
2. Recovery of possession.
3. Damages for trespass
4. Perpetual Injunction
In the same suit, the Defendant/Appellant also filed a purported counterclaim against the Plaintiffs /Respondents for:
a. Declaration that all that piece and parcel of cocoa farm, oil palm farm and scrubland situate and lying at Tawiahkrom, Bayerebon encompassing an area of about 9.80 acres bounded by the properties of Opanin Yaw Boakye (Defendant’s now deceased father, Osei Yaw, Yaw Poku now in possession of Akosua Brago, Agya Apaabi now in possession of the Abiisi and Asuo Koko (sic)
b. Order of perpetual injunction restraining the Plaintiffs herein, whether by themselves or their agents, assigns, servants, workmen and all or any other persons claiming ownership, under or in trust from them from in anyway interfering with or dealing with the property the subject-matter of the instant action.
After the hearing of the matter, the trial Circuit Court Judge, as already stated, entered judgment in favour of the Plaintiffs against the Defendant. Dissatisfied with the said judgment, the Defendant filed the instant appeal on the 17th October 2019 in which she seeks an order of this court “to set aside the whole judgment delivered” on the grounds that:
1. The learned trial Judge erred when she assumed jurisdiction which it (sic) lacked.
2. The Judgment is against the weight of the evidence.
3. The learned trial Judge erred when she sought to adjudicate a matter which was before the High Court where the Will was first read.
On the 29th July 2010, the Defendant/Appellant (who shall henceforth be referred to as the Appellant) caused her lawyer to file a Written Submission on her behalf. The Plaintiffs/Respondents (hereinafter referred to as the Respo