OPANIN JOSEPH ADUBOFOUR vs. MADAM ADWOA TIWAAH [2016]DLHC3823

Date	2016-05-13
Suit No.	SUIT NO.FAL/15/12
Citation No.	[2016]DLHC3823

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

S. ANAGLATE FOR E. ANAGLATE FOR PLAINTIFF

NO LEGAL REPRESENTATION FOR DEFENDANT

[2016]DLHC3823
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN JOSEPH ADUBOFOUR<o:p></o:p>vs.<o:p></o:p>MADAM ADWOA TIWAAH<o:p></o:p>&nbsp;[HIGH COURT (LAND DIVISION),
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO.FAL/15/12&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 13TH MAY, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>S. ANAGLATE FOR E.
ANAGLATE FOR PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<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
instant action was commenced on 18/08/11 by one Opanin Joseph Adubofour who
described himself as the Customary successor of the late Opanin Kwadwo Gyimah
alias Kwadwo-Aboasu&nbsp; and the current
Abusuapanin of his immediate Oyoko family.&nbsp;
He has brought this action for and on behalf of the said Oyoko Family of
Dawu- Jamasi against the Defendant who is a beneficiary under the Will of&nbsp; Opanin Kwadwo Gyimah for the under listed
claims:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A
declaration that the Cocoa Farm and Secondary Forest mentioned in paragraphs 3,
4 and 5 of the Will of the late Opanin Kwadwo Gyimah @ Kwadwo Aboasu of
Dawu-Jamasi, which Will was executed on the 11th day of December,
2007, are the properties of the Plaintiff's immediate Oyoko family they being
part of a large family land and so the late Opanin Kwadwo Gyimah had no
testamentary power over them.<o:p></o:p><o:p>&nbsp;</o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order that the Defendant attones tenancy to the Plaintiff's immediate family
over the said farm and secondary forest.<o:p></o:p>The
Plaintiff's case as contained in his statement of claim filed on 18/8/11 is
that&nbsp; his great-grand mother by name
Obaapanin Donkor alias Nana Donkor cultivated the disputed land at Akasaeso or
Atta ne Attaso at Dawu when it was a virgin forest. It is his case that a
portion of the said land was given to the testator who is a grandson of Nana
Donkor to farm on, but after his death, the family discovered that he had devised
that portion of land to his wife, the defendant herein, in his Will. The
Plaintiff&nbsp; alleged that the property
shares boundaries with the properties of Madam Boya, Mr. Nti, Opanin Biowuo,
Osei Yaw, Madam Mansah, Brobbey Awuah and Agya Yaw. The Plaintiff further
asserted that not knowing the Executors in the said Will dated 11/12/2007, he
decided to take action directly against the Defendant.<o:p></o:p>By
an affidavit of service sworn on 06/09/11, it is indicated that the writ of
summons and statement of claim were served on the Defendant personally at
Abuakwa- Kumasi on 01/09/11. On 11/10/11, counsel for the Plaintiff conducted a
search to, inter alia, ascertain whether the Defendant had entered appearance
and the answer was negative. He then brought an ex-parte application on
04/05/12 and prayed the court to enter judgment in default of appearance
against the Defendant.<o:p></o:p>On
17/05/12, the court (differently constituted), entered judgment against the
Defendant as follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; " The search report shows that
defendant has failed to enter appearance even though served with the
plaintiff's writ. The application has merit and same is granted as prayed.
Default judgment is hereby entered for the plaintiff per his claims in default
of the defendant's appearance. Suit adjourned to 1/6/2012 for plaintiff to
prove his title."<o:p></o:p>&nbsp;A hearing notice was served on the Defendant
personally on 10/07/13&nbsp; and proof of that
service is contained in an affidavit of service filed on 20/11/13.&nbsp; The hearing date shown on the said hearing
notice was 17/07/13.&nbsp; On 17/07/13, the
court adjourned the case to 20/11/13 because a copy of the entry of
interlocutory judgment said to have been served on the Defendant was not on the
docket. For the same reason and there being no evidence of service on the
Defendant, the court&nbsp; again adjourned the
case to&nbsp; 12/12/13.&nbsp; But, on 29/11/13, the entry of interlocutory
judgment and a hearing notice were served on the Defendant personally. <o:p></o:p</main>