BARNIEH II vs. MENSAH AND OTHERS [1984]DLCA892

Date	1984-04-17
Suit No.
Citation No.	[1984]DLCA892

APALOO C.J.

FRANCOIS JA

ABBAN J.A.

NANA AKUFO-ADDO FOR THE APPLICANT.

HAYFRON-BENJAMIN FOR THE RESPONDENTS

[1984]DLCA892
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BARNIEH II <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 2 GLR 20<o:p></o:p>

DATE:
17 APRIL 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NANA AKUFO-ADDO FOR THE APPLICANT. <o:p></o:p>

HAYFRON-BENJAMIN FOR THE RESPONDENTS<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APALOO C.J., FRANCOIS AND ABBAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>Apaloo
C.J. delivered the ruling of the court. In this matter, the applicant invites
us to stay the execution of a ruling delivered by the High Court, Kumasi in an
estate matter. Counsel says that that ruling is wholly wrong and he seems
confident that it would be reversed on appeal. We have looked carefully at the
ruling. It merely held that the applicant was not clothed with power to
institute the proceedings he did. It held he was neither head of family nor
customary successor of the late Opanin Kojo Mensah alias Kojo Teng and was
bereft of capacity to sue.<o:p></o:p><o:p>&nbsp;</o:p>It seems
therefore that the ruling made no order or direction which the successful
respondents could enforce by the known process of execution. That is why Mr.
Hayfron-Benjamin argued that this application was ill-conceived. Mr. Akufo-Addo
replied that that was only looking at the form of the matter. The substance
really is that this ruling would enable the respondents to proceed to carry out
the wishes of the testator in his will. He says that will purports to dispose
of properties which did not belong to the testator but to the family which he
heads. He says if this ruling is not stayed, he would suffer irreparable damage
in the event of his success on appeal.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Hayfron-Benjamin’s contention is superficially attractive, but in matters of
this sorts where this court’s equitable discretion is appealed to, we think it
conforms to equitable principle to look at the substance and not at the form of
the relief sought. Looked at that way, it is in reality an application to us to
grant an injunction restraining the respondents as executors of the will from
carrying out its provisions until the determination of this appeal.<o:p></o:p><o:p>&nbsp;</o:p>That
being so, we must consider whether taking all the circumstances of this case
into consideration, it is just and convenient to do so. According to the
available evidence, the testator died nearly ten years ago. Presumably to avoid
litigation after his death, he took the trouble to set out his wishes in a
valid testamentary document. He was, himself, said to be a man of substantial
means in his own right. Those wishes have not yet been carried out because of
the applicant’s objections. First, it was the validity of the will that he
contested. In the result, he was unsuccessful. He now claims that the testator
did not own any one of the properties he sought to bequeath. They all allegedly
belonged to the family. With regard to one farm, the applicant said it was his
own self-acquired property.<o:p></o:p><o:p>&nbsp;</o:p>Because
of the pendency of the suits, the farms were entrusted to a receiver and
manager. He is the registrar of the High Court. The respondents say he has
mismanaged the estate and the court below ordered his discharge pending the
filing of accounts. It is said, he is having trouble doing so. If, in fact, the
properties devised belonged to the deceased, the beneficiaries have been put to
great loss since for nearly ten years, they have been disabled by reason of the
applicant’s suits from entering upon their inheritance. The applicant was not
prepared to concede that any of the properties devised belonged to the
deceased. That appeared odd to the judge below as it appeared to us. Indeed,
the judge said, “I cannot but take note of the hardship caused to them” (i.e.
the beneficiaries) “by the all embarrassing nature of the plaintiff’s claim.”
The balance of hardship is one of the factors we should take into consideration
when dealing with an application of this sort. It seems to us, prima facie at
any rate, that the balance of hardship lies heavily on the beneficiaries, and
we should, on that account, think it right to refuse this application.<o:p></o:p>