OPANIN KWABENA SENYAH vs. AGYA AGYARE AND AGYA BREMAWUO [2015]DLHC8221

Date	2015-03-11
Suit No.	SUIT NO. C1/261/07
Citation No.	[2015]DLHC8221

HIS LORDSHIP JUSTICE JACOB B. BOON

J.K. KODUA FOR PLAINTIFF/APPLICANT

YAW BOAFO FOR DEFENDANT/RESPONDENTS

[2015]DLHC8221
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWABENA
SENYAH<o:p></o:p>vs.<o:p></o:p>AGYA AGYARE AND AGYA BREMAWUO<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. C1/261/07&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 11TH MARCH, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J.K.
KODUA FOR PLAINTIFF/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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YAW
BOAFO FOR DEFENDANT/RESPONDENTS<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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<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><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">RULING<o:p></o:p>

</div>This ruling is in respect of an application by the plaintiff/applicant,
to be called hereafter as the plaintiff, to restrain the defendant/respondents,
simply to be referred to as the defendants, either by themselves, their agents,
workmen, or any other persons claiming through or for them or on their behalf
or persons purporting to be claiming under the will of late Opanin Kwadwo Wih from
interfering with plaintiff’s title or possession of a cocoa farm which is the
subject-matter of a suit filed by the plaintiff in the registry of t his court
on 14th June 2007. In the said writ, the plaintiff asserted that he
is the customary successor of late Opanin Kwadwo Wih as well as the head of the
immediate matrilineal family of the deceased. He averred he instituted the
action in that capacity for himself and on behalf of his family. It is his case
that his family owned a cocoa farm at a place known and called Buaduro at
Abroma on Boamang stool land and it came into the possession of the late Opanin
Kwadwo Wih through inheritance; that on the death of Opanin Kwadwo Wih it was
discovered that he had purported to devise the said family property in his will
dated 15th September, 2005. The instant application is to restrain
the defendants who are the named executors of the will of Opanin Kwadwo Wih from
interfering with plaintiff’s family title and possession of the disputed farm
pending the determination of the suit.<o:p></o:p><o:p>&nbsp;</o:p>The application was opposed by the defendants. They claimed that the property
in dispute is vested in them by operation of the law as executors of the will
of Opanin Kwadwo Wih. It is their case that the challenge against the specific
devise of the disputed farm does not affect the validity of the will. It was
contended on their behalf that the instant application lacks a legal basis and
should not be granted because as executors they cannot be restrained by an interlocutory
injunction.<o:p></o:p><o:p>&nbsp;</o:p>I agree with the contention of defendants and their lawyer that the
estate of the late Kwadwo Wih devoles on the executors of his will until a
vesting assent has been executed&nbsp; in
favour of the beneficiaries of the &nbsp;will:
see Okyere (deceased) substituted by Peprah v Appenteng and Adomaa, Civil
Appeal &nbsp;no. J4/17/2008 of 23rd
November, 2011, digested in the Daily Graphic of Thursday, April 19, 2011. <o:p></o:p><o:p>&nbsp;</o:p>It is also true that the case put up by the defendants that the deceased
could not devise the disputed cocoa farm in his will in that it is family
property does not affect the validity of the will the deceased made. Such a
challenge to a specific devise will not throw the will overboard: In re Kumi
(decd); Kumi v Nartey (2007-2008) SCGLR 623. The will could still be admitted
to probate in respect of the other properties that are not disputed, whilst the
writ regarding the disputed cocoa farm is dealt with. The challenge of the
plaintiff touching the property in dispute is not a frivolous one and could
only be resolved after the matter is heard. The fairness of the case demands
that both sides to the action be restrained in respect of the property whilst
the action is heard on merits. The court therefore restrains the plaintiff as
well as the defendants from having anything to do with the disputed cocoa farm
for which plaintiff instituted action against the defendants and filed in the
registry of this court on 14th June 2007 pending the final
determination of the suit. Having so restrained both sides, it is necessary to
appoint a manager/receiver to take care of the property and also receive
proceeds of the farm for safe keeping for the benefit of the side that
eventually emerges successful in this action. Each side is to nominate a
representative to assist the Registrar of the Court to manage the property.<o:p></o:p>

<o:p>&nbsp;</o:p></main>