ANTHONY OPOKU GYAMFI AND ANOTHER vs. MADAM ADWOA ADUKUMAK AND ANOTHER [2012]DLCA3063

Date	2012-01-27
Suit No.	CIVIL APPEAL NO. H1/72/2011
Citation No.	[2012]DLCA3063

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

ASARE BEDIAKO ESQ. FOR DEFENDANTS/APPELLANTS

PETER KWAKU NTI FOR PLAINTIFF/RESPONDENTS.

[2012]DLCA3063
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													<main id="main" class="content" style="min-height: 60rem" >ANTHONY OPOKU GYAMFI AND
ANOTHER<o:p></o:p>vs.<o:p></o:p>MADAM ADWOA ADUKUMAK AND
ANOTHER<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">

CIVIL
APPEAL NO. H1/72/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATED: 27TH JANUARY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ASARE BEDIAKO ESQ. FOR DEFENDANTS/APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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PETER
KWAKU NTI FOR PLAINTIFF/RESPONDENTS.<o:p></o:p>

</div>CORAM:<o:p></o:p>MARIAMA OWUSU (MISS) J.A. (PRESIDING),
F.G. KORBIEH J.A., IRENE C. DANQUAH (MS.) J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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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>F.G. KORBIEH, J.A.<o:p></o:p>I deem it necessary to recount the
order of events leading to this appeal in order to put the appeal in better
perspective. The uncontroverted facts are as follows. One Janet Durowaa was the
daughter of the 1st plaintiff/respondent herein. Janet Durowaa was
married to one Anthony Opoku Gyamfi with whom she had two daughters called
Dorothy Opoku Gyamfi and Stella Opoku Gyamfi, both of whom were minors at all
material times. The afore-mentioned Anthony Opoku Gyamfi also had a son called
Augustine Opoku Gyamfi(who was also a minor at all material times) with the 2nd
plaintiff/respondent herein to whom he had earlier on been married. All the
three children remained in Ghana whilst their father and the mother of the two girls
went to Italy ‘to seek greener pastures’. All three children were also kept
together in the custody of the1st plaintiff/respondent in order to
give them ‘a sense of consanguinity’ and they attended the same boarding
school. The original Anthony Opoku Gyamfi took his younger brother (curiously
by the same name), who is the 1st defendant/appellant herein, to
Italy obviously to try to enhance the fortunes of this younger brother. Tragedy
then struck as Anthony Opoku Gyamfi (senior) was killed in a motor traffic
accident in Italy together his wife, Janet Durowaa. On hearing the news of the
tragedy, the 1st plaintiff/respondent rushed to Italy to see things
for herself. Anthony Opoku Gyamfi (junior) however somehow brought back the
bodies of his brother Anthony Opoku Gyamfi (senior) and his wife, Janet Durowaa
to Ghana and had both of them buried even before the 1st
plaintiff/respondent could return to Ghana. Anthony Opoku Gyamfi (junior),as
the customary successor to his late brother, then proceeded to apply for
letters of administration to administer the estate of the said late brother.
Thereafter he, together with his wife, the 2nd defendant/appellant
herein, applied for an order to adopt all three children of his late brother.
The adoption order was granted by a Kumasi High Court (presided over by
Ansu-Gyeabour, J) on the 9/9/2004.According to the plaintiffs/respondents, this
order of adoption was granted without their knowledge and consent and that the
first two defendants/appellants applied for the order in order to be able to
claim insurance benefits for themselves. &nbsp;Meanwhile the 1st
plaintiff/respondent, who had returned to Ghana, also applied for and was
granted an order by an Accra High Court making her the legal guardian of the
three children and together with the 2nd plaintiff/respondent
challenged the legality of the adoption order obtained earlier by the first two
defendants/appellants. This took the form of an application before the High
Court, Kumasi presided over by Okofo-Darteh, J who ordered a suspension of the
adoption order for thirty days. The application was then repeated before
Ansu-Gyeabour, J who dismissed the application. I shall return to the reasons
he gave for so doing in due course. Suffice now to say that the
plaintiffs/respondents took out a substantive suit by the issuance of a writ of
summons claiming against the defendants/ appellants the following reliefs:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
‘(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order nullifying and cancelling the
adoption order granted to the 1st and 2nd defendants on 9th
September, 2004 on grounds of fraud.<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:.5in;
margin-bottom:0in;margin-left:63.0pt;margin-bottom:.0001pt;mso-add-space:auto;
text-align:justify;text-indent:-.5in;mso-list:l2 level1 lfo1">(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Perpetual injunction restraining 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 plaintiffs herein and the
children.<o:p></o:p><p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:0in;
margin-bottom:0in;margin-left:63.0pt;margin-bottom:.0001pt;mso-add-space:auto;
text-align:justify;text-indent:-.5in;mso-list:l2 level1 lfo1">(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Costs.’<o:p></o:p>In the statement of claim accompanying
the writ of summons, the plaintiffs/respondents (hereinafter simply referred to
as the respondents) averred, inter alia, that the adoption order had been</main>