ALI ANUM YEMOH vs. HON. DAOUD ANUM YEMOH [2015]DLCA4527

Date	2015-04-23
Suit No.	SUIT NO: H1/12/2015
Citation No.	[2015]DLCA4527

KANYOKE J.A. (PRESIDING)

LOVELACE-JOHNSON J.A.

SOWAH J.A.

MR. EDDIE ROC FOR DEFENDANT/RESPONDENT

MR. KWAME FOSU GYEABOUR FOR PLAINTIFF/APPELLANT

[2015]DLCA4527
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													<main id="main" class="content" style="min-height: 60rem" >ALI ANUM YEMOH<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;HON. DAOUD ANUM YEMOH<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

SUIT NO: H1/12/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 23RD APRIL, 2015<o:p></o:p>

MR.
KWAME FOSU GYEABOUR FOR PLAINTIFF/APPELLANT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>SOWAH, J.A:<o:p></o:p>The
parties herein are uterine brothers and children of the late ANUM YEMOH
[hereinafter referred to as the deceased or testator] The appellant who was the
plaintiff at the trial court issued a writ of summons claiming against the
defendant as follows:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that the plaintiff is the
sole and lawful executor of the Will of the late Anum Yemoh of Accra.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that plaintiff as the
sole Executor is entitled to grant portions of the estate of the late Anum
Yemoh.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that any grant by
defendant forming part of the estate of the late Anum Yemoh is null and void.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order of perpetual injunction
restraining the defendant from holding himself as the Attorney, Agent or
Administrator of the late Anum Yemoh family and granting portions of the land
forming part of the estate of the late Anum Yemoh or collecting any revenue or
ground rent accruing from the estate of the late Anum Yemoh.<o:p></o:p>e.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order compelling the defendant to
account for all the proceeds emanating from the estate of the late Anum Yemoh
which he has unlawfully collected.<o:p></o:p>f.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Any order relief that may be just in
the circumstance.<o:p></o:p>His
case was that the deceased died testate on 21st March 1995 and probate of his
Will was granted to him on 31st August 2004 as the sole surviving executor.
However, the defendant had been representing himself to the general public as
the lawful attorney of the deceased. Acting under a purported power of
attorney, the defendant had redeemed land at Frafraha which formed part of the
estate of the deceased and was dealing with the land without reference to the executor.
An Anum Yemoh Foundation had also been set up unilaterally by the defendant;
actions which the plaintiff said constituted interference with the estate.<o:p></o:p>The
defendant [the respondent herein] denied that his actions constituted
interference in the estate. His case was that before their father died, the
Government had compulsorily acquired his land without compensation. As the
plaintiff refused to take action to recover the land, the Anum Yemoh family
authorized him to take legal action against the Government. He instituted Suit.
No.L153/96 against the State and in 1997successfully obtained judgment for the
return of Frafraha land to the Family. He has since been managing the land on
behalf of the family and in accordance with the duty allotted to him by the
Will. It was not until 9 years after the death of their father and 7 years
after he had obtained the said judgment that the plaintiff took probate. The
family also decided to set up a Foundation as the plaintiff had refused to set
up a Trust and a Company into which proceeds of sale of land was to be paid in
accordance with the wishes of the testator. He counter-claimed for the
following:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that upon the
incorporation of the ANUM YEMOH FOUNDATION, plaintiff’s authority as Executor
over all the undistributed properties of the estate has ceased and that
defendant is the only lawful person with authority over the said estate.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A perpetual injunction restraining the
plaintiff, his agents, assigns and representatives from interfering with the
management of the said Estate.<o:p></o:p><o:p>&nbsp;</o:p>In
the judgment delivered on 17th February 2014 by the High Court, Accra, the
learned trial judge after evaluating the evidence of the parties in
establishing their respective claims dismissed the claims of the plaintiff and
upheld the defendants counterclaim. The court made the following final orders:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&n</main>