OHENEMAA ABENA BONSU vs ANDOH BENOLI KOOMSON [2023]DLCA16188

Date	2023-07-06
Suit No.	CIVIL APPEAL NO: H1/42/2021
Citation No.	[2023]DLCA16188

MENSAH-HOMIAH JA (PRESIDING)

OWUSU-OFORI J. A.

OBENG DIAWUO J.A.

Kwame Adofo

Evans Oppong Adoma

[2023]DLCA16188
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													<main id="main" class="content" style="min-height: 60rem" >&nbsp;OHENEMAA ABENA BONSU<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs<o:p></o:p>ANDOH BENOLI KOOMSON<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

CIVIL
APPEAL&nbsp; NO: H1/42/2021&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 6TH JULY, 2023<o:p></o:p>

</div>COUNSEL:<o:p></o:p>Kwame
Adofo for the Defendant/Appellant.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM:
<o:p></o:p>MENSAH-HOMIAH
JA (PRESIDING)<o:p></o:p>OWUSU-OFORI
J. A.<o:p></o:p>OBENG
DIAWUO J.A.<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>MENSAH-HOMIAH, J.A.<o:p></o:p>INTRODUCTION:<o:p></o:p>This appeal is launched by the Defendant/Appellant
(Defendant) against the Judgment of the High Court, Kumasi, dated 22nd
January, 2020 by which the trial Judge granted all the reliefs claimed by the
Plaintiff/Respondent (Plaintiff) in respect of a cocoa farm which allegedly
belonged to one Dr. Andoh Benoli Koomson in his life time. This appeal raises
for our consideration issues such as, whether in the absence of a Vesting Assent,
a devisee under a Will can sue for declaration of title in the name of a deceased
Testator or in the beneficiary’s own name. <o:p></o:p>BACKGROUND:<o:p></o:p>The Plaintiff describes himself as a beneficiary of a
cocoa farm measuring 10.14 acres which his late father, A.B. Koomson, a Medical
Doctor, devised to his three children in his Last Will, absolutely. The
Plaintiff contended that, his father purchased the farm land from the Biemso
Stool in 1955. Upon the acquisition, Dr A.B.&nbsp;
Koomson is said to have&nbsp;&nbsp; engaged one
Opanin Kwabena Bedwa Obeng (deceased), as his Caretaker to see to the cultivation
of this cocoa farm. After the death of Dr. A.B. Koomson in 1995, the Plaintiff
contended that he did not go to this farm for many years due to a dispute over
a house which the Testator had devised to his Children. Eventually, the
Plaintiff stated that he went to this cocoa farm after the dispute over the
devised house had been determined, only to be told that, the Defendant who
describes herself as the surviving spouse of Opanin Kwabena Bedwa Obeng had
taken over the farm. According to the Plaintiff, when he approached the
Defendant, she refused to hand over the cocoa farm to him.&nbsp; <o:p></o:p>Contending that he is the sole surviving beneficiary of
this cocoa farm and has even perfected his title by applying for the
registration of a lease in respect of the land in his own name, coupled with
payment of ground rent, the Plaintiff claimed the following reliefs against the
Defendant per his Amended Writ of Summons and Statement of Claim, filed on 24th
December 2018:<o:p></o:p>An order of declaration of title to the cocoa
farm lying and situate at Ahimsu-Biemso No. 1 in the Ashanti Region measuring
10.14 acres and sharing boundaries with (sic) Kodwo Nsia Young Cocoa Fram, a
thick forest, the property of Owusu Yaw and Yaw Gyamfi (sic) was the property
of the late Andoh Benoli Koomson at the time he was alive.<o:p></o:p>A further order for the recovery of the said
cocoa farm<o:p></o:p>An order of perpetual injunction restraining
the Defendant, her agents, assigns, workmen, etc. and all claiming title
through her from further interfering with the said cocoa farm.<o:p></o:p>The Defendant resisted these claims and contended that, her
late husband, Opanin Kwabena Bedwa Obeng, acquired the land in dispute from the
Chief of Biemso, Nana Bediako, many years ago. It was the Defendant’s case
that, during the 42- year period that she was married to Opanin Kwabena Bedwa
Obeng till date, she has been farming on this land without any interference.
And further to that, Opanin Kwabena Bedwa Obeng in his life time gifted the
said cocoa farm to her in the presence of witnesses.&nbsp; The Defendant then challenged the Plaintiff’s
Capacity and further contended that, the action is caught by section 10 of the
Limitations Act. She then counterclaimed for:<o:p></o:p>A declaration of title and recovery of
possession of all that piece and parcel of land situate at Biemso Number 1 on
Akyempim Stool Land and bounded by the properties of Kwadwo Nsiah, Yaw Gyamfi,
Kwadwo Owusu (all now deceased) and the Ashyiresu stream.<o:p></o:p>Damages.<o:p></o:p>Perpetual Injunction restraining the
plaintiff, his servants, agents, workmen, assigns and all those claiming title
through him from having anything to do with the land.<o:p></o:p>THE HIGH COURT DECISION<o:p></o:p>At the trial, the parties led evidence which was more or
less a repetition of their respective witness statements, supported by some
documents. It is worthy of note that the Plaintiff whose capacity had been
challenged neither led evidence that the property had been duly vested in him
nor tender any valid Vesting Assent made in his favour by the Executors to his
father’s Will. <o:p></o:p>The trial Judge dismissed the challenge to the
Plaintiff’s capacity on the basis that without a Vesting Assent, a beneficiary
could sue to protect a property under a Will, on the authority of Adisa Boya v.
Zenabu Mohammed (substituted by Adama Mohammed &amp; Ors), Civil Appeal No.
J4/44/2017, 14th February 2018, SC. <o:p></o:p></span</main>