ABENA ADIYAA & OTHER vs. AKWASI OPOKU & 2 OTHERS [2014]DLHC8151

Date	2014-01-15
Suit No.	SUIT NO. CS/671/02
Citation No.	[2014]DLHC8151

HIS LORDSHIP JUSTICE JACOB B. BOON

F. K. BOUR FOR PLAINTIFFS

FELIX AMOAH FOR DEFENDANTS

[2014]DLHC8151
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													<main id="main" class="content" style="min-height: 60rem" >ABENA ADIYAA
&amp; OTHER<o:p></o:p>vs.<o:p></o:p>AKWASI OPOKU &amp; 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. LS15/2002&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;DATE: 15TH JANUARY, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>F.
K. BOUR FOR 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">

FELIX
AMOAH FOR 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;
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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;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;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 herein are sisters. They described themselves as
principal members of the family of one Jonathan Kwame Duodu, deceased, of
Offinso Kokote and asserted they mounted the instant action on behalf of the
family because the current family head, Opanin Kwame Sikayena, has failed to
take action to preserve family property. They averred that their deceased
brother, Jonathan Kwame Duodu, in his lifetime took possession of three farms
being family property when he succeeded his mother, one Akua Mansa. However,
after his death a document was discovered in which he devised one of the farms
situated at a place called Gambia to his widow and Opanin Sikayena, already referred
to as the current head of family of the plaintiffs. The plaintiffs therefore
asserted that the instant action is to preserve the said family property since
the head of family has failed and/or refused to act in that direction. It is
their case that the defendants are sued in their capacities as the executors of
the will of Jonathan Kwame Duodu. The third defendant denied she is a named
executor of such a will. Unfortunately, the document referred to as the will
and testament of Jonathan Kwame Duodu was not made available to the court at
the trial. Because third defendant asserted she is not a named executor of the
said will, contending that the plaintiffs had no cause of action against her,
the plaintiffs were bound to have established the capacity in which she was
joined to the action as a defendant. &nbsp;<o:p></o:p><o:p>&nbsp;</o:p>I am aware the plaintiffs have alleged that third defendant is a
beneficiary, alongside Opanin Kwame Sikayena of the farm devised in the
document referred to as the will of Jonathan Kwame Duodu. Granted that is true,
as a beneficiary of a will, she possessed no capacity to sue or be sued in
relation to devised property in respect of the will before a vesting assent is
prepared and executed in her favour. Thus in holding (2) of the case of Okyere
(decd) (substituted) by Peprah v Appenteng &amp; Adomaa (2012)1 SCGLR 65, at
66, it was held that:<o:p></o:p><o:p>&nbsp;</o:p>“The Court of Appeal had,
however, erred in holding that since the properties had been devised to the
second defendant in the will of the testatrix, the properties had been vested
in second defendant by operation of law; and that there was no need for executing
a formal vesting assent by the executor so as to clothe her with the capacity
to sue or be sued in respect of the devised properties. That decision by the
Court of Appeal was a statement of the old common law position .The Law in
Ghana, after the enactment of the Administration of Estates Act, 1961 (Act 63),
was different. The correct legal position was that a devisee could not sue or
be sued in relation to the devised property before a vesting assent had been
prepared in his or her favour. Accordingly, in the absence of the vesting
assent executed in favour of the second defendant, she could neither sue or be
sued in relation to her devises not having been a beneficiary of a vesting
assent”.<o:p></o:p><o:p>&nbsp;</o:p>I am of the opinion that the plaintiffs failed to establish the capacity
in which third defendant was sued. As illustrated above, even if she were a
beneficiary of the will, she did not possess the requisite capacity to sue or
be sued in respect of any devised property in the will before a vesting assent
is executed in her favour. In the instance, the court upholds the contention of
third defendant that the action against her is misconceived as no cause of
action has been established against her.<o:p></o:p><o:p>&nbsp;</o:p>Admittedly, in order to save legal expenses and time, relative to the
concern of third defendant, the matter should have been considered as a
preliminary issue at the stage of application for directions. Be that as it
may, she deserves to be adequately compensated for being unnecessarily and needlessly
dragged to court.<o:p></o:p>