DORIS NAADU NARTEY vs. CHRISTIAN KUMI [2007]DLSC2439

Date	2007-03-13
Suit No.	CIVIL APPEAL NO.J4/20/2006
Citation No.	[2007]DLSC2439

MISS AKUFFO J.S.C.(PRESIDING)

BROBBEY J.S.C.

ANSAH J.S.C.

MRS. ADINYIRA J.S.C.

ASIAMAH J.S.C.

G. BOADU ESQ. FOR APPELLANT.

GEORGE ESHUN FOR THE RESPONDENT

[2007]DLSC2439
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													<main id="main" class="content" style="min-height: 60rem" >DORIS NAADU NARTEY<o:p></o:p>vs.<o:p></o:p>CHRISTIAN KUMI<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO.J4/20/2006<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">

DATE: 13TH MARCH, 2007.<o:p></o:p>

</div>COUNSEL<o:p></o:p>G.
BOADU ESQ. FOR APPELLANT.<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">

GEORGE
ESHUN FOR THE RESPONDENT<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;
padding:0in 0in 1.0pt 0in">

MISS
AKUFFO &nbsp;J.S.C.(PRESIDING), BROBBEY &nbsp;J.S.C., ANSAH &nbsp;J.S.C., MRS. ADINYIRA J.S.C., ASIAMAH &nbsp;J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>SOPHIA
ADINYIRA (Mrs.) JSC: The parties are beneficiaries named in the will of the
late Christian William Kumi who died on 14 April 1989. The said will dated 10
March 1989 was admitted to probate on 2 March 1992. The devise under paragraph
4 (i) and (ii) of the said will were:<o:p></o:p>“4. I BEQUEATH my real estate to the
following: -<o:p></o:p>(i) My proposed 3-storey building at
Nii Boi Town, Abeka, to my children named in paragraph 2 supra, inclusive of my
wife Doris Naadu Nartey till she remarries or dies;<o:p></o:p>(ii) My single storey building W.39
Boi Man at Abeka to my wife Doris and my children named in paragraph 2 supra in
equal shares.”<o:p></o:p>The
children named in paragraph 2 of the will are Christian Kumi the
defendant/appellant, (hereinafter defendant) Betty Kumi and Nana Kwadwo Kumi
son of the plaintiff/ respondent (hereinafter plaintiff).<o:p></o:p>On
18/8/99, the plaintiff issued a writ of summons for herself and on behalf of
her infant son Nana Kwadwo Kumi against the defendant at the High Court Accra.
Her claim was that even though the house numbered W.39 Boi Man at Abeka belongs
to the plaintiff, defendant and others jointly by the terms of the devise under
her late husband’s will, the defendant was preparing to sell or alienate it to
the exclusion of the plaintiff and the other beneficiaries. She therefore asked
for the following reliefs:<o:p></o:p>(a)&nbsp;
A declaration that the plaintiff and the son Nana Kwadwo Kumi have equal
shares in House No. W.39 Boi Man at Abeka as stated in paragraphs 2 and 4 (ii)
of the will of Christian William Kumi.<o:p></o:p>(b)&nbsp;
An order for valuation and judicial sale and distribution of the
proceeds equally amongst the beneficiaries mentioned in paragraphs 2 and 4 (ii)
of the will of Christian William Kumi dated 10 March 1989.<o:p></o:p>(c)&nbsp;
Perpetual injunction restraining the defendant his agents, assigns,
workmen, servants, privies from disposing of, alienating and or selling House
No. W.39 situate and lying at Boi Man, Abeka.<o:p></o:p>The
defendant resisted the action on the basis that the late Christian William Kumi
in 1980 and during his lifetime ‘effectively gifted over customarily’, the said
house to Mrs. Comfort Kumi (deceased) who was the mother of the defendant. His
mother predeceased his father who purported to devise the said house in his
will. The defendant and his siblings filed a caveat but were prevailed upon to
withdraw it with the understanding that their rights of ownership and control
of their late mother’s property would not be disturbed. He further denied that
he was making any effort to dispose of the said house.<o:p></o:p>On
23 March 2000, hearing of the case started before Gyamera- Tawiah J. The
plaintiff closed her case and the defendant gave his evidence in chief. The
case was adjourned to 16 /7/ 2002 for the cross-examination of the defendant to
continue. After several adjournments before Asare-Korang J. (as he then was)
the case was heard de novo by Abada J on 10 /12 /2002, and he entered judgment
for the plaintiff on13/2/ 2003. The defendant who was absent at the trial,
applied to have the judgment set aside on the main ground that he was not
served with any hearing notice. On 8/12 /2003 his application was refused by
the High Court on the grounds that: <o:p></o:p>“I find no merit in the instant
application seeking to set aside a judgment that was regularly obtained. In any
case if the defendant is challenging the validity of the will he cannot choose
parts of the bequest made. In the circumstances I believe the conclusions of
the court cannot be assailed and I therefore dismiss the instant application.”<o:p></o:p>&nbsp;Being dissatisfied the defendant appealed to
the Court of Appeal on the sole ground that: ‘the trial judge exercised his
discretion wrongly in law’. The Court of Appeal dismissed the appeal and
affirmed the ruling of the trial court. It is against this decision that the
defendant has appealed to this Court on the grounds that:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;
The judgment is wrong in law in that from the record of proceedings, it
was quite clear the defendant/appellant was denied an adequate or reasonable
opportunity to be heard, thus infringing the rules of natural justice<o:p></o:p>2.&nbsp;&nbsp;&nbsp;
The judgment is against the weight of evidence on record.<o:p></o:p>It
should be borne in my mind that the appeal before this court is not against the
judgment of 13/2/2003 but rather against the ruling of the court dated
8/12/2003 refusing to set aside the said judgment. The submissions made on
behalf of the defendant was that the case which was a part heard has suffered a
checkered career and when the case was fixed before Abada J. he and his counsel
were absent and there was no hearing notice served on either of them.&nbsp; He said neither the</main>