AWO YAA MENSAH vs. MARY ASANTEWAA & ANOR. [2011]DLCA6647

Date	2011-03-10
Suit No.	H1/145/210
Citation No.	[2011]DLCA6647

ABBAN (MRS.) J.A. (PRESIDING)

APALOO J.A.

DANQUAH J.A

NII AKWEI BRUCE THOMPSON FOR DEFENDANTS/APPELLANTS

MAJOR (RTD.) T. A. DARTEY FOR PLAINTIFF/RESPONDENT

[2011]DLCA6647
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													<main id="main" class="content" style="min-height: 60rem" >AWO YAA MENSAH<o:p></o:p>vs.<o:p></o:p>MARY ASANTEWAA &amp;
ANOR.<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

H1/145/210&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;DATE: 10TH MARCH, 2011<o:p></o:p>

MAJOR
(RTD.) T. A. DARTEY FOR PLAINTIFF/RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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">JUDGMENT<o:p></o:p>

</div>ABBAN (MRS), J.A. <o:p></o:p>This
is an appeal from a judgment of the High Court, Accra, delivered on the 5th day
of August, 2009. The judgment went against the defendants (hereinafter referred
to as the Appellants) and being dissatisfied, they have appealed against the
said decision to this court.&nbsp; The facts
that have culminated into this appeal are as follows: <o:p></o:p>The
defendants who are the sister and the eldest son of Madam Mary Oparebea
(deceased) who died in March 2008, applied for Letters of Administration after
the death of Madam Oparebea in respect of her estate including House No. 2,
Mukose Street, Tesano.&nbsp; Their application
was granted in August 2008. <o:p></o:p>The
plaintiff (hereinafter referred to as the Respondent) who claimed to have an
interest in the estate of the deceased filed a caveat against the grant of
Letters of Administration, but the caveat was removed on an application by the
appellant herein.&nbsp; At the time the
removal took place, the respondent claimed that though she had filed an
affidavit disclosing her interest, she was out of the jurisdiction and her
counsel also claimed that he was short-served, so, none of them was in court. <o:p></o:p>In
spite of the above premise, the respondent never applied to the court to have
the ruling which granted the Letters of Administration set aside in accordance
with r.2(1) and (2) of Order 81 of C.I. 47 (High Court Civil Procedure Rules
2004) nor did she apply to the court for the revocation of the Letters of
Administration granted to the Defendants on the ground that the averment that
House No. 2, Mukose Street belonged to Madam Oparebea was false.&nbsp; Instead, the respondent sued the appellants
for: <o:p></o:p>a.
A declaration that House No. 2, Mukose Street, Tesano is not the property of
the late Mary Oparebea for it to be included in her estate. <o:p></o:p>b.
A declaration that the plaintiff is the beneficiary of the residuary of the
interest in the said property. <o:p></o:p>c.
Perpetual injunction restraining the defendants, their privies, agents, and/or
successors from interfering with the quiet enjoyment of the said property. <o:p></o:p>After
the close of the pleadings, the issues set down for trial were as follows: <o:p></o:p>a.
whether or not the plaintiff’s deceased mother had life interest in House No.
2, Mukose Street, Tesano; <o:p></o:p>b.
whether or not the plaintiff had put up stores in the frontage of the said
house and also put up two small warehouses on the compound of the house; <o:p></o:p>c.
whether or not any vesting assent had been executed in respect of the house; <o:p></o:p>d
whether or not the late father’s successor gave plaintiff the title deeds to
the house; <o:p></o:p>e
Any other issues raised by the pleadings. <o:p></o:p>The
argument of learned counsel for the appellants is that instead of deciding the
case based on the issues set down for trial by the parties, the learned trial
judge suo motu selected two issues for trial and determination namely: <o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
whether or not the late S.A. Mensah in his
lifetime gave the disputed house to the plaintiff and her mother, the late Mary
Oparebea who only had a life interest in the property; <o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
whether or not the late Mary Oparebea was
the sole owner of the house by reason of the High Court and Court of Appeal
judgments and that upon her death intestate the property fell to be distributed
under the Intestate Succession Law (P.N.D.C.L. 111) as amended; <o:p></o:p><</main>