ADWOA YEBOAH (PLAINTIFF) vs. AUGUSTUS KWADWO ASANTE & 2 ORS. (DEFENDANTS) [2014]DLHC7090

Date	2014-06-12
Suit No.	SUIT NO/ BFA 100/2009
Citation No.	[2014]DLHC7090

HIS LORDSHIP MR. JUSTICE ANTHONY KOFI ABADA

[2014]DLHC7090
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													<main id="main" class="content" style="min-height: 60rem" >ADWOA YEBOAH<o:p></o:p>(PLAINTIFF)<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>AUGUSTUS KWADWO ASANTE &amp; 2 ORS.<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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 MR. JUSTICE ANTHONY KOFI
ABADA<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;
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</div>The
Plaintiff per her Writ of Summons and Statement of Claim filed on the 29th
April, 2009 is seeking the following reliefs: <o:p></o:p>(a)
Declaration that House No. 947/3, Derby Avenue, Accra became family property of
the late JOHN KWAME APPAH, upon his
death in 1964 and consequently the Aduana Amoakare Family of Obo, to which the
deceased belonged are the beneficial owners of the property. <o:p></o:p>(b)
Perpetual injunction restraining the Defendant, their agents or assigns from
interfering with the Plaintiffs' possession and management of the said
property. <o:p></o:p>(c)
An order to recall and revoke the Letters of Administration in respect of the
estate of JOHN KWAME APPAH granted
to the Defendants by the High Court, Accra on 14/4/2005 on grounds that same
was obtained by fraudulent misrepresentation. <o:p></o:p>(d)
Declaration that the Plaintiff is the duly appointed customary successor of the
late JOHN KWAME APPAH (deceased) and
therefore her possession and management of House No. D947 Derby Avenue is
lawful. <o:p></o:p>By
the Defendants' defence and counter-claim, they also sought the following
reliefs: <o:p></o:p>(1)
A declaration that Defendants are (the) lawful beneficiaries and administrators
of the estate of the late JOHN KWAME
APPAH. <o:p></o:p>(2)
Perpetual injunction restraining the Plaintiff, her agents, assigns from
collecting rent until the final determination of the case. <o:p></o:p>(3)
Appointment of a manager by the court to receive rents from the tenants until
the final determination of the case. <o:p></o:p>(4)
An order of account directed at the Plaintiff to account for all monies
received in the name of the estate and for and on behalf of same. <o:p></o:p>On
the 14th of January 2014, upon application by counsel for plaintiff and
agreement of the Defendants' counsel issues (1) and (2) was set down for legal
arguments. <o:p></o:p>ADMITTED FACTS BY BOTH PARTIES: <o:p></o:p>It
is common ground that the late JOHN KWAME
APPAH (deceased), who was a member of the Aduana Amoakare family of Obo,
died in 1964. He left behind amongst others House No. D947/3 Derby Avenue,
Accra. It is also common ground that following his death aforesaid, a customary
successor was appointed and the estate of the deceased including the subject
matter of the instant dispute was vested in the said customary successor after
his demise in 1964. Not only was a customary successor appointed to administer
the said estate, but subsequent customary successors were appointed by the
maternal family over the years to take care of the disputed property on behalf
of the family. <o:p></o:p>Significantly,
the 1st Defendant was at a point in time in the 1980 appointed by the same
family; being a member of the family to administer the estate on behalf of the
family which he did until he had to travel outside the jurisdiction. Strangely,
1st Defendant was said to have purportedly granted a power of attorney to his
sister to act as customary successor apparently without recourse to the family;
and therefore the family justifiably revoked the said power of attorney and
other members were subsequently appointed until the family appointed the
Plaintiff as the current customary successor of the deceased JOHN KWAME APPAH. It is the Plaintiff's
case that the Defendants in 2004 applied for and were in 2005 purportedly
granted Letters of Administration to administer the estate of the deceased who
died in 1964 while the person regularly appointed by the family was still at
post. Consequently, the Plaintiff mounted the instant action seeking the
reliefs supra. <o:p></o:p>In
the Defendants submission, it was contended that the Plaintiff upon having
notice of the application caveated but failed to file an affidavit of interest
when served with the statutory warning, then it was contended that the
Plaintiff had resorted to the exclusive use of the property to the detriment of
the wife and children of the late JOHN
KWAME APPAH. <o:p></o:p>Furthermore,
it was contended on the Defendants' behalf that the estate of the deceased
since his death has not been distributed by the customary successor that have
been appointed to manage the estate. Apparently on this basis the Defendants
purported to have been vested with the right to apply for Letters of
Administration so as to distribute the estate according to PNDCL 111; the Inte</main>