KOFI AMANKWAA (SUBST BY) KWABENA OPOKU AND NANA KWAKU ATUAHENE vs. DR. ERNEST KOFI ANTWI [2015]DLHC8514

KOFI AMANKWAA (SUBST BY) KWABENA OPOKU AND NANA KWAKU ATUAHENE vs. DR. ERNEST KO... [2015]DLHC8514

Date	2015-06-10
Suit No.	SUIT NO. LS.447/93
Citation No.	[2015]DLHC8514

HIS LORDSHIP JUSTICE JACOB B. BOON

KWASI AFRIFA FOR PLAINTIFF/APPLICANT

KWAME BOAFO FOR DEFENDANT/RESPONDENT

[2015]DLHC8514
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													<main id="main" class="content" style="min-height: 60rem" >KOFI AMANKWAA
(SUBST BY) KWABENA OPOKU AND NANA KWAKU ATUAHENE<o:p></o:p>vs.<o:p></o:p>DR. ERNEST
KOFI ANTWI<o:p></o:p><o:p>&nbsp;</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 0cm 0cm">

SUIT
NO. LS.447/93&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 10TH JUNE, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWASI
AFRIFA FOR PLAINTIFF/APPLICANT<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">

KWAME
BOAFO FOR DEFENDANT/RESPONDENT&nbsp;&nbsp; <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">

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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</div>On
24th October, 2014, this court gave judgment in favour of the
defendant/respondent, to be referred to hereafter simply as the defendant, in a
suit filed by the plaintiff/appellants/applicants, hereinafter called the
plaintiffs. The suit was mounted a little over twenty-one years at the time of
the judgment, and it concerned House No. Plot OTB 604, Odum, Kumasi. The
property was devised in the will of one Isaac Cobina Antwi the father of the
defendant, to the defendant and his siblings. The plaintiffs alleged the
testator had no capacity to give away the house in his will because it was not
self-acquired by him. The first plaintiff who described himself as the
customary successor of Isaac Cobina Antwi asserted the property is owned by his
family but its documents were prepared in the name of the testator because at
the time the land on which it is built was acquired by a deceased family member
he was the only literate in the family. However, in the pendency of the suit,
the original first plaintiff passed away and was customarily succeeded by the
current first plaintiff who continued the prosecution of the case. The second plaintiff
claimed he is the Gyaasehene of Ankase and averred he &nbsp;is in the suit as a representative of the
elders of the Ankase stool to claim and protect its interest in the disputed
house. The claim of the stool, discernible at the trial, is limited to two
rooms in the disputed house.<o:p></o:p><o:p>&nbsp;</o:p>In
its judgment, the court held that the first plaintiff had no capacity to mount
the action. It also dismissed the claim of the second plaintiff put up on
behalf of the Ankase stool for two rooms in the disputed property. However the
counterclaim of the defendant for a declaration that the house in dispute is
the self-acquired property of his father, amongst other reliefs, was granted.
The plaintiffs are aggrieved by and dissatisfied with the judgment and have decided
to contest it at the Court of Appeal for which reason they have filed a notice
of appeal. Thereafter, they put up a motion on notice for stay of execution of
the judgment pending the prosecution of the appeal. Not unexpectedly, the
motion was opposed by the defendant.<o:p></o:p><o:p>&nbsp;</o:p>In
arguing the motion, Counsel for the plaintiffs referred to the affidavits in
opposition to the motion deposed to by two sisters of the defendant. He
contended that affidavits of the sisters, Muriel Bemah Antwi and Freda Nana
Antwi, suffer from fundamental defects in that both deponents are strangers to
the suit. In his opinion, the affidavits should be held to be ineffective and
disregarded by the Court. In support of his submission, &nbsp;he cited a ruling by my learned brother,
Justice Paul Richardson in the case of Kwabena Boateng and 4 Others v Nana
Oduro Kwakye AB Abio and 4 Others, Civil Suit No. FAL 139/2015 dated 26th
February, 2015 in which he ruled that an affidavit sworn by one Berchie Mensah
describing himself as the attorney of the first plaintiff therein was
incompetent on the ground that there was no evidence of a power of attorney
donated by the first plaintiff to Berchie Mensah to prosecute that action. In
my opinion the facts of that case are different from that of the instant
application. Both deponents in this applications are sisters to the defendant
and, at various times at the trial, represented the defendant in court. The
current defendant was substituted as a beneficiary under the will of his father.
Evidence at the trial indicated that I.C. Antwi had devised the disputed
property as his self-acquired to his wife and children, including the deponents
of the affidavits in opposition to the instant application. I agree with the
contention of counsel for the defendant that the deponents did not need a power
of attorney from the defendant before they could depose to the affidavits.<o:p></o:p><o:p>&nbsp;</o:p>I do not find any
wrong with what they did since they have personal knowledge of the facts of the
suit and even have an interest in its outcome for which reason at various
points in times they represented the defendant in court to the knowledge of the
plaintiffs and their former lawyer. The affidavits deposed to by them are
properly before the co</main>