NANA NTIM BANAHENE AND OTHER vs. OPANIN KWAME MENSAH (SUBST.) BY KWABENA OSEI

NANA NTIM BANAHENE AND OTHER vs. OPANIN KWAME MENSAH (SUBST.) BY KWABENA OSEI –... [2011]DLHC8213

Date	2011-01-17
Suit No.	SUIT NO. LS 306 / 2002
Citation No.	[2011]DLHC8213

HIS LORDSHIP JUSTICE JACOB B. BOON

JAMES M. BELIEB FOR THE PLAINTIFFS

IBRAHIM ADAM FOR THE DEFENDANT

[2011]DLHC8213
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													<main id="main" class="content" style="min-height: 60rem" >NANA NTIM
BANAHENE AND OTHER<o:p></o:p>vs.<o:p></o:p>OPANIN KWAME MENSAH (SUBST.) BY KWABENA OSEI – OWUSU 
[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 306 / 2002&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; DATE:
17TH JANUARY, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JAMES
M. BELIEB FOR THE PLAINTIFFS<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">

IBRAHIM
ADAM FOR THE DEFENDANT&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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;
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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">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The plaintiffs are the executors of the will of one
Opanin Kwame Owusu Ansah, who was the elder uterine brother to the original
defendant, Opanin Kwame Mensah. Probate of the will dated 16th
August, 1994 was granted on 25th March, 2002 to the plaintiffs, the
testator having died on 28th September, 2001. It must be on record
that Opanin Kwame Mensah passed away, and on 29th July, 2008, this
court granted an application and the present defendant, who is his uterine
younger brother and customary successor, substituted him.<o:p></o:p><o:p>&nbsp;</o:p>When the plaintiffs applied for probate of the will, the
defendant filed a caveat claiming a house numbered DK 42 formerly No. D134
situated at Dominase, and a cocoa farm at Ayamfuri which were devised in the
will are not the self-acquired properties of the testator. It was asserted by
the defendant that the properties referred were jointly acquired by him and the
testator, and they could not be given away in the will of the testator. The
instant writ was instituted by the plaintiffs, as the personal representatives
of the testator, in an effort to establish that the disputed properties were
self-acquired by the testator, and consequently, he had the capacity to freely
devise them in his will.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiffs asserted that because the disputed house
was self-acquired by late Opanin Kwame Owusu Ansah, in May 1957, he collateralized
it to secure his status as a representative of Messrs J. Lyons Co. Ltd, and to
confirm that he owned the house, one Osei Yaw Anane, the younger brother of the
original defendant, swore an affidavit to that effect. Osei Yaw Anane is now
known and called Kwabena Osei Owusu, and he is the substituted defendant
herein. <o:p></o:p><o:p>&nbsp;</o:p>As regards the disputed cocoa farm, it is the case of the
plaintiffs that the testator and the defendant jointly acquired from the
Ayamfuri stool a 222.56 acre farm land. From the pleadings, it appears it was
acquired by an outright purchase. According to them, the land was a virgin
forest, and the testator cleared and farmed it for three seasons. They asserted
that thereafter, the defendant entered it and in the middle, he cut a boundary,
partitioning the whole land into two, and chose the larger northern portion for
himself. They alleged that he abandoned his portion which was subsequently
re-entered by the Ayamfuri stool; that the stool after taking possession of it
entered into an abunu tenancy with one John, who was the testators caretaker.<o:p></o:p><o:p>&nbsp;</o:p>It is the further case of the plaintiffs that the
testator put his share of the land, which was about 100 acres into cultivation
of cocoa. It is therefore their contention that the defendant, by his conduct,
has lost his share of the land and cannot lay any claim to any part of the
cocoa cultivated by the testator on his portion.<o:p></o:p><o:p>&nbsp;</o:p>The defendant, on the other hand, denied per his
statement of defence the partitioning of the land into two and later abandoning
the portion he chose for himself. It is his case that he personally carried out
the negotiations that led to the acquisition of the land after the testator,
who was then living and working at Dominase as a cocoa broker, sent him an
amount of £100, £50 of which he added to his own money and paid for the
property. At that time, according to him, he lived and worked at Ayamfuri as a
goldsmith, denying the suggestion by the plaintiffs that the marriage of the
testator to a royal of the Ayamfuri stool facilitated the acquisition of the
land.<o:p></o:p><o:p>&nbsp;</o:p>