KWAKU vs. SERWAH AND OTHERS [1994]DLSC760

Date	1994-05-26
Suit No.
Citation No.	[1994]DLSC760

FRANCOIS JSC

AMUA-SEKYI JSC

AIKINS JSC

BAMFORD-ADDO JSC

CHARLES HAYFRON-BENJAMIN JSC

TOTOE FOR THE APPELLANTS.

E D KOM (WITH HIM SYLVIA CUDJOE (MRS) FOR THE APPELLANT.

[1994]DLSC760
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KWAKU<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">SERWAH AND OTHERS<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1993-94] 1 GLR 429<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>TOTOE FOR THE APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

E D KOM (WITH HIM SYLVIA CUDJOE (MRS) FOR THE APPELLANT. <o:p></o:p>

FRANCOIS, AMUA-SEKYI, AIKINS, BAMFORD-ADDO AND CHARLES HAYFRON-BENJAMIN
JJSC<o:p></o:p>

</div>JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC<o:p></o:p>(Delivering the first judgment at the invitation of Francois JSC).
The plaintiff sued no fewer than fifteen defendants for certain declarations
notable among which were two principal claims stated in the manner following:<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-left:.75in;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a).&nbsp; “A declaration that plot No 6,
Block 10, Manyhia Extension in Kumasi was gifted from the plaintiff’s father to
the plaintiff. <o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-top:0in;margin-right:0in;margin-bottom:
5.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify;text-indent:-.25in;
mso-pagination:none;mso-list:l0 level1 lfo1;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes">(b).&nbsp;
A declaration that the house situate on plot No. 6, Block 10,
Manyhia Extension, Kumasi is the self-acquired bona fide property of the
plaintiff which the plaintiff’s own effort built for the sum of £9,000 without
any assistance from Kwasi Mensah (deceased) or any other member of the
plaintiff’s family.”<o:p></o:p>The action arose because Kwasi Mensah by his last will and
testament dated 17 June 1983 devised unto the defendants certain rooms in house
No plot No 6, Block 10, Manyhia Extension, Kumasi with the rest of the unshared
rooms in the house given to the plaintiff.<o:p></o:p>On 11 October 1984 solicitors entered appearance for the first,
second, third, fourth and fifth defendants. It does not appear that the
plaintiff was concerned to pursue his claims against the fifth to sixteenth
defendants and in my respectful opinion, at the close of the case the learned
trial judge should have dismissed the case against these latter defendants.
However, in the judgment the learned trial judge noted as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Only the first to the fifth defendants entered an appearance and
filed a statement of defence. The others did not. In the will no devises was
made to Akua Nyarko (the third defendant) and Akua Adorkie in clause 2(b) and
Abena Nyarko in clause 2(c).”<o:p></o:p>Before their lordships in the Court of Appeal their lordships
noted that: “the first defendant-appellant Yaa Serwaah was given no room in the
house and yet she was sued.” The necessary inferences from their lordships’
observation were that the first and third defendants ought not to have been
sued. The real defendants in the case are therefore the second defendant—Kwaku
Mensah, the fourth defendant—Agya Adu and the fifth defendant—Aku Amardie. Of
the three remaining defendants, two were the children of Madam Yaa Serwaah, ie
the first defendant and the third defendant, Agya Adu was the son of the
testator’s wife whom he did not name in the will.<o:p></o:p>It is clear to me that apart from the three defendants whom I have
identified in this opinion, the action should have been dismissed against the
twelve others. As it happened the action proceeded on the footing that the five
defendants on whose behalf solicitors had entered appearance were the real
defendants to be pursued. In my respectful opinion, the course of procedure
taken by the learned trial judge was wrong. If the defendants were not
beneficiaries under the clause in the testator’s will which was under attack,
then any judgment against them will be brutum fulmen. But their lordships in
the two lower courts while recognising these defects, nevertheless proceeded on
the footing that the five were the real defendants. I think that this case
having travelled this far, the justice of the case demands that we should
recognise the defendants as such, the better to enable this court put an end to
the litigation. In this appeal therefore the plaintiff-respondent, Osei Kwame,
will be referred to as the plaintiff and the five defendant-appellants will be
referred to as the defendants.<o:p></o:p>