MADAM ADWOA ADUKUMAH AND ANOTHER vs. ANTHONY OPOKU GYAMFI AND OTHERS [2010]DLCA3168

Date	2010-01-29
Suit No.	APPEAL NO.H1/21/2009
Citation No.	[2010]DLCA3168

MARIAMA OWUSU (MISS) J.A (PRESIDING)

F.G.KORBIEH J.A

IRENE C.DANQUAH (MS) J.A.

MR. PETER KWAKU NTI COUNSEL FOR THE PLAINTIFFS/RESPONDENTS

MR. ASARE BEDIAKO COUNSEL FOR THE DEFENDANTS/APPELLANTS

[2010]DLCA3168
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													<main id="main" class="content" style="min-height: 60rem" >MADAM ADWOA ADUKUMAH AND ANOTHER<o:p></o:p>vs.<o:p></o:p>ANTHONY OPOKU GYAMFI AND OTHERS<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

APPEAL
NO.H1/21/2009&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 29TH
JANUARY, 2010<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div>IRENE
C DANQUAH JA<o:p></o:p>This appeal arises from
the ruling of the High Court, Kumasi dated 3rd November 2008 in
which the Adoption Order obtained by the 1st and 2nd
Defendants on 9/9/04 was set aside.<o:p></o:p>The uncontroverted and
essential facts for purposes of this appeal are that the 1st
Plaintiff is the maternal grandmother of two girls both minors called Dorothy
Opoku Gyamfi and Stella Opoku Gyamfi.&nbsp;
The 1st Plaintiff is also the natural mother of Janet Durowaa
(deceased) who was the mother of the two girls.&nbsp;
Janet Durowaa died together with her husband, one Anthony Opoku Gyamfi
in a motor accident in Italy where they were domiciled.&nbsp;&nbsp; The 2nd Plaintiff is the natural
mother of Augustine Opoku Gyamfi a minor.&nbsp;
She had him outside of marriage with the late Anthony Opoku Gyamfi.&nbsp; The 1st Defendant is a younger
brother of Anthony Opoku Gyamfi.&nbsp; He has
been domiciled in Italy before and after the death of his elder brother.&nbsp; The 2nd Defendant is domiciled in
Kumasi and married to the 1st Defendant.&nbsp; After the corpses of Anthony Gyamfi and Janet
Durowaa had been flown to Ghana and buried, the 1st and 2nd
Defendants applied to the high Court, Kumasi on 9th September 2004
for an order adopting the three children.&nbsp;
It is the adoption order that was secured by the 1st and 2nd
Defendants that precipitated the institution of this action by the
Plaintiffs.&nbsp; <o:p></o:p>It is the case of the
Plaintiffs as gathered from the statement of claim, that at all material times
the three minor children had been in the custody of the 1st
Plaintiff but the 1st and 2nd Defendant secured the
adoption order without the knowledge and consent of the Plaintiffs.&nbsp; The 1st and 2nd
Defendant circumvented all rules and procedure as prescribed in the Children’s
Act (Act 560) in their quest to obtain the Adoption Order.&nbsp; The plaintiffs alleged that the sole motive
of the 1st and 2nd Defendants was to claim the insurance
benefits of the deceased for themselves.&nbsp;
The Plaintiffs alleged impropriety on the part of the 3rd
Defendant for failing to observe strict compliance as guardian ad litem in
respect of the juveniles which enabled the 1st and 2nd
Defendants obtain the adoption order without going through the proper
procedures.&nbsp; <o:p></o:p>On the basis of these
facts the Plaintiffs issued a writ of summons endorsed with the following
reliefs against the Defendants:<o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
An
order nullifying and cancelling the Adoption Order granted to the 1st and 2nd
Defendants on 9th Sepetember 2004 on the grounds of fraud.<o:p></o:p><o:p>&nbsp;</o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Pepertual
unjunction restrianing the 1st and 2nd Defendants or any other person(s) from
using the said Adoption Order of 9th September 2004 for any purpose whatsoever
to the detriment and against the interest of the Plaintiff herein and of the
children.<o:p></o:p><o:p>&nbsp;</o:p>iii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Costs.<o:p></o:p><o:p>&nbsp;</o:p>It is obvious from the
claims that the 3rd Defendant was joined as a nominal Defendant in the suit and
therefore, he neither entered appearance nor filed a statement of defence.&nbsp; Only the 2nd Defendant entered appearance and
filed a statement of defence whilst an order was made by the tiral court on
15th June 2006 to have the writ and the statement of claim served on the 1st
Defendant out of jurisdiction.<o:p></o:p>The 2nd
Defendant resisted the Plaintiffs claims.&nbsp;
The gravamen of the 2nd Defendants defence is that the 1st
Defendant as the successor to the dece</main>