KOFI NUHU vs. MABEL QUAGRAINE (SUBST BY) GABEX A. SPIO AND 2 OTHERS [2013]DLHC8517

Date	2013-04-26
Suit No.	SUIT NO. E5/31/04
Citation No.	[2013]DLHC8517

HIS LORDSHIP JUSTICE JACOB B. BOON

MARIAM A. GYASI JAWHARY (MRS.) FOR THE PLAINTIFF

FRANCIS KOFFIE FOR THE DEFENDANTS

[2013]DLHC8517
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													<main id="main" class="content" style="min-height: 60rem" >KOFI NUHU<o:p></o:p>vs.<o:p></o:p>MABEL QUAGRAINE (SUBST BY) GABEX A. SPIO AND 2 OTHERS<o:p></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. E5/31/04&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 26TH
APRIL, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MARIAM
A. GYASI JAWHARY (MRS.) FOR THE PLAINTIFF<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">

FRANCIS
KOFFIE FOR THE DEFENDANTS<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">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-indent:
0cm;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">HIS
LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>The subject matter of this suit is a room in House No. NTER 28, Fanti
Newtown, Kumasi. The house was built by one Isaac Abednego Benjamin Sackey who
devised the disputed room in his last will and testament of 11th
March, 1960 to one Maame Nana Amma, deceased. Plaintiff asserted Maame Nana
Amma was her mother who then devised the room to him and his sister called Akua
Maanang, also deceased. It is the further case of Plaintiff that the device was
made in the last will and testament of Maame Nana Amma dated 3rd
February, 1975, exhibit ‘A’. Probate of exhibit ‘A’ was granted to one of the
two named executors of the will, Nana Esilfie, the Fanti Ekounahene of Kumasi.
The probate so granted is in evidence as exhibit ‘A1’. Exhibit ‘A1’ was granted
on 24th July, 1989, Maame Nana Amma having died in May, 1986. The
other named executor in the will&nbsp; is said
to have died before exhibit ‘A1’ was granted. It is asserted by the plaintiff
that Nana Esilfie&nbsp; did not formally
prepare a vesting assent in respect of the property in dispute in favour of
plaintiff and the other beneficiary before he passed away.<o:p></o:p><o:p>&nbsp;</o:p>The further case of plaintiff is that the original defendant occupied
the disputed room as a tenant during the life time of Maame Nana Amma.
Defendant denied this assertion and averred that the room was gifted to her by
Maame Nana Amma and she acknowledged the gift by paying aseda, and thereafter
lived in the room as the owner without any let or hindrance. It should be on
record that the original defendant passed away during the pendency of this suit
and was substituted by the current defendants who are her personal
representatives. The first substituted defendant is her husband, whilst the
other two are her daughters.<o:p></o:p><o:p>&nbsp;</o:p>When Nana Esilfie died without a vesting assent in favour of the
plaintiff and after the original defendant failed to give him vacant possession
of the room, though he instructed his counsel to write formally to the defendant
and her husband demanding vacant possession of it, plaintiff filed a writ at
the Circuit Court Kumasi against the defendant, but it was discontinued. He
then applied and was granted letters of administration with the will of Maame
Nana Amma annexed regarding the disputed property. After the grant, the
plaintiff mounted the instant suit.<o:p></o:p><o:p>&nbsp;</o:p>The defendant &nbsp;&nbsp;maintained in her defence that Maame Nana Amma
did make not make exhibit ‘A’. She described the document presented by the
plaintiff as the last will and testatement of Maame Nana Amma as a forged and
fraudulent one because the thumbprint on it is not that of Nana Amma. For this
reason, the defendant asserted that both the probate and letters of
administration with will annexed granted to Nana Esilfie and the plaintiff
respectively are unlawful and wrongful because they were based on a forged
will. In another response to the plaintiff’s case touching on the probate and
the letters of administration, defendant asserted in paragraphs 14(a) to 16 of
her statement of defence as follows:<o:p></o:p><o:p>&nbsp;</o:p>“14 &nbsp;(a). In further answer… the defendant says
that the plaintiff was at all material times fully aware of the grant of
probate as far back as 1987 and the need of the vesting assent, he was
nevertheless guilty of prolonged inordinate and inexcusable delay in seeking a
vesting assent to enable him of the commence (sic) action for the recovery of
the room.<o:p></o:p><o:p>&nbsp;</o:p>15. As legal title to the
alleged land (room) referred to in the statement of claim was in the name of
the alleged Executor Nana Esilfie, &nbsp;and
as no Vesting Assent had been done, the right to bring an action for the
recovery of the land (room) was vested in the said Executor and by failing to
commence any action against the defendant after obtaining probate in 1989 and
permitting the defendant, if at all, to live in the room for 14 years before
the commence</main>