AMA ATAA, AMA POKUAA, EFIA SAAH, NANA KUNADU AND AMA SERWAA vs. CYRIL MAINOO AND CYMAIN GHANA LIMITED [2020]DLCA9261

AMA ATAA, AMA POKUAA, EFIA SAAH, NANA KUNADU AND AMA SERWAA vs. CYRIL MAINOO AND... [2020]DLCA9261

Date	2020-07-30
Suit No.	SUIT NO H1/15/2020
Citation No.	[2020]DLCA9261

PROF. DENNIS ADJEI J. A. (PRESIDING)

MERLEY WOOD J.A.

ERIC K. BAFFOUR J.A

T. N. WARD BREW WITH NOAH DIAPAH FOR DEFENDANTS/APPELLANTS

DAVID BOAFO FOR PLAINTIFFS/RESPONDENTS

[2020]DLCA9261
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													<main id="main" class="content" style="min-height: 60rem" >AMA ATAA, AMA POKUAA, EFIA SAAH, NANA KUNADU AND AMA SERWAA<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>CYRIL MAINOO
AND CYMAIN GHANA LIMITED<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO H1/15/2020&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 30TH
JULY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>T. N. WARD BREW WITH NOAH
DIAPAH FOR DEFENDANTS/APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DAVID BOAFO FOR PLAINTIFFS/RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>PROF. DENNIS ADJEI J. A.
(PRESIDING), MERLEY WOOD J.A., ERIC K. BAFFOUR J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div><o:p>&nbsp;</o:p>Baffour J.A:<o:p></o:p><o:p>&nbsp;</o:p>INTRODUCTION<o:p></o:p>We are confronted in this appeal by the
Defendants/Appellants against the judgment of the High Court, Accra wherein the
trial court entered judgment for the Plaintiffs/Respondents for the reliefs
endorsed on their writ including a declaration that the Respondents are the
owners of H/No 24, North Labone, Accra. Opanin Kwame Poku, he it was in his
lifetime, who sired forty-five children including the five Appellants as well
as Yaw Gyamfi, the vendor of the Respondents. He left behind a will in which he
bequeathed H/No 24, North Labone, the res litiga, to all the forty-five
children. Notwithstanding an earlier stand by the 1st Appellant who
joined forces with her auntie, Ama Afriyie in suit No FA 80/2003 that the said
property was by Ashanti customary law, a family property, the Appellants made a
volte face after the High Court declared that the res litiga was not the
family property of Kwame Poku but a self-acquired one which could be bequeathed
in his last will to his children. Efia Saah, the 3rd Defendant at
the court below, it must be placed on record, passed away in the course of the
trial and is not part of this appeal as there is no evidence that steps were
taken to substitute her. <o:p></o:p><o:p>&nbsp;</o:p>BACKGROUND<o:p></o:p>Wrangling as to how forty-five siblings could hold
one property together led to some meetings in Kumasi, where it appears the
majority of the children were in favour of the sale of the property and
distribution of the proceeds. The minority favoured the letting out of the
property. Without a definite conclusive stand as to what should be done to the
properties, some of the Appellants aligned with their paternal auntie, Ama
Afriyie commenced an action in suit No FA 80/2003 on the 25th of
July, 2003 against, Yaw Gyamfi and Yaa Asuboi, some of their own siblings for a
number of reliefs including the claim that any manifested intention evinced by
Yaw Gyamfi for the sale of the house was a breach of the consent judgment of
the High Court in suit No CS56/98 and cancellation of any purported sale of the
property as same had been done without the consent of the Appellants. In a
trial that lasted for about seven years, judgment was delivered on the 24th
of September, 2009. <o:p></o:p><o:p>&nbsp;</o:p>The substantial reliefs of the Plaintiffs were
dismissed by the High Court in the said suit No FA 80/2003 but the court
concluded that the property was the self-acquired property of Kwame Poku and
the latter had a legitimate right to have devised the house to all his
forty-five children in his last will. In view of the difficulties of the
forty-five children holding one property together under the Ghanaian
presumption of law as tenants in common, the court ordered the house to be sold
but with the right of first option to the Appellants that had insisted against the
sale to purchase the property. That judgment was in evidence as Exhibit ‘9’. Having
paid the purchase price of Gh₵1,600.000.00
into court by means of a cheque issued, the Appellants sought to enforce the
judgment by execution and had the properties of the Respondents thrown out and
the gate to the house locked up with the keys deposited at the High Court.<o:p></o:p><o:p>&nbsp;</o:p>By an Ex Parte application and without any notice
to the Appellants who h</main>