MRS. EMILY ANTO ALIAS EMILE ADDO KUFFOUR AND ANOTHER vs. PROFESSOR FRANCIS ADDO KUFFOUR ALIAS KWASI AGYEBI AND ANOTHER [2011]DLHC8202

MRS. EMILY ANTO ALIAS EMILE ADDO KUFFOUR AND ANOTHER vs. PROFESSOR FRANCIS ADDO... [2011]DLHC8202

Date	2011-04-06
Suit No.	SUIT NO. LS 102/97
Citation No.	[2011]DLHC8202

HIS LORDSHIP JUSTICE JACOB B. BOON

MICHEAL OWUSU FOR APPLICANTS

BOAMAH FOR THE CO-DEFENDANT/RESPONDENT

[2011]DLHC8202
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													<main id="main" class="content" style="min-height: 60rem" >MRS. EMILY
ANTO ALIAS EMILE ADDO KUFFOUR AND ANOTHER<o:p></o:p>vs.<o:p></o:p>PROFESSOR
FRANCIS ADDO KUFFOUR ALIAS<o:p></o:p>KWASI AGYEBI
AND ANOTHER<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. LS 102/97&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;DATE:
6TH APRIL, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MICHEAL
OWUSU FOR APPLICANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

BOAMAH
FOR THE CO-DEFENDANT/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:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>This is a ruling in respect of a motion by the
applicants, namely Nana Addo Kuffour and Vida Kuffour, for an order to
substitute them for Nancy Osei Kwaku who was a plaintiff in a suit instituted
in this court as far back on 8th May, 1997, judgment of which was
delivered on 29th July, 2010 in favour of the co-defendant for her
counter-claim. During the pendency of the suit, the first plaintiff passed away
but was not substituted. The judgment was therefore against the surviving
second plaintiff who was said to be dissatisfied with the judgment and had
instructed her counsel to file an appeal against it. It is instructive to note
that the appeal was not filed because she had run out of time. However, on
15/11/10, a motion on notice for extension of time to appeal against the
judgment was filed on her behalf. The motion is yet to be heard. Whilst that is
pending, the applicants filed the instant motion for an order substituting them
for the sole plaintiff to enable them pursue the intended appeal. The reason
they assigned for their action is that, they, together with the plaintiff are
beneficiaries of the property in dispute in the main suit and they wished to be
substituted for the plaintiff to &nbsp;pursue
the intended appeal in order to vindicate their interest under the will of
their late father.<o:p></o:p><o:p>&nbsp;</o:p>The motion was opposed by the co-defendant. In the
affidavit filed on her behalf, it was deposed that the applicants are not
parties in the main suit and consequently, do not possess the requisite
capacity to pursue any appeal in place of the plaintiff, who is alive, as
regards the judgment entered against the said plaintiff; that their motion do
not disclose how any right or interest of theirs is derived from the suit, and
if they had such a right or interest, it is yet to accrue. In her view, the
instant action is an attempt by the applicants to become parties to the action
in a circuitous manner. She prayed for the motion to be dismissed as
unmeritorious and an abuse of the process.<o:p></o:p><o:p>&nbsp;</o:p>When he moved the motion, counsel for the applicants, who
also represented the plaintiff at the hearing of the suit indicated that the
writ was a representative one, issued by the plaintiffs, on behalf of
themselves and their siblings. According to him, the surviving plaintiff has
indicated she is no longer interested in pursuing the appeal, and that has
necessitated the instant motion by the applicants as the surviving siblings of
the plaintiffs.<o:p></o:p><o:p>&nbsp;</o:p>Now, from the endorsement of the writ filed by the
plaintiffs on 8/05/97, there is no indication that it was issued by the plaintiffs
for themselves and their siblings. The plaintiffs’ first claim was for “a
declaration that they are joint owners in common with Mrs. Cecilia Campbell
also known as Cecilia Akoto alias Afua Adjeiwaa of all that property on plot
No. O.T.B. 603, Adum Kumasi, which was devised unto them by the will of their
father, John Addo Kuffour (deceased) dated 8th day of June, 1957,
and probate of which was granted on 27th day of June, 1955, by the
Supreme Court of the Gold Coast, Kumasi – Ashanti to Francis Addo Kuffour alias
Kwasi Agyeibi and John Kofi Darkwa (now deceased) as the named executors of the
said will”. The second relief was for an order of the court to compel
the defendant as the surviving executor of the will of the said John Addo
Kuffour to vest the property in the plaintiffs and Mrs. Cecilia Campbell. Mrs.
Cecilia Campbell is the co-defendant who had judgment in the suit. The other
two reliefs are for orders for accounts and injunction. Nowhere was the
slightest indication given by the plaintiffs that they instituted the action
for themselves and their siblings. The action had been a long standing one, and
I agree with counsel for the co-defendant that if the applicants felt they had an
interest in the property, they should have come earlier to be joined so as to
protect that interest and also to enable the court make a decision as regards
that interest. They failed to do so. And as from the endorsement to the writ,
it has not been stated that they were part of it, it is too late in the day for
them to be substituted to pursue the intended appeal in place of the surviving
plaintiff. <o:p></o:p><o:p>&nbsp;</o:p></main>