Obeng and Another Vrs Mensah [2019] GHASC 34 (17 July 2019)

Obeng and Another Vrs Mensah [2019] GHASC 34 (17 July 2019)

The children and descendants of Opanyin Kwasi Sarfo and Opanyin Kwadwo Gyebi are beneficial owners of House No 27, Block 6, Old Tafo, Kumasi, as tenants in common, based on the original devise by Opanyin Kwabena Asare. The devise by Opanyin Kwadwo Gyebi to his wife and children is ineffectual as he was not the exclusive owner. The defendants, as executors, are proper parties. The order of restraint is proper against the defendants but not against the Petenyinase family.

Citation
[2019] GHASC 34
Parties
Defendant/appellant/appellant: Sampson Obeng; Defendant/appellant/appellant: Kwame Mensah; Plaintiff/respondent/respondent: Kwabena Mensah (suing for himself & on behalf of all his siblings)
Court
Supreme Court
Jurisdiction
Ghana
Judgment Date
17 July 2019
Procedural Posture
Civil Appeal / Final Appellate Judgment
Outcome
appeal dismissed except for ground 4; Court of Appeal decision affirmed with variations
Legal Topics
Beneficial Ownership, Wills and Probate, Tenancy in Common, Injunctions, Capacity of Parties
Source Language
English
Succession Property Law Beneficial Ownership Wills and Probate Tenancy in Common Injunctions Capacity of Parties

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Parties

Sampson Obeng

Defendant/appellant/appellant

Kwame Mensah

Defendant/appellant/appellant

Kwabena Mensah (suing for himself & on behalf of all his siblings)

Plaintiff/respondent/respondent

Procedural Posture

Civil Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Whether the Court of Appeal erred in varying the High Court's judgment regarding beneficial ownership of the disputed property
  2. 2 Whether the children and descendants of Opanyin Kwasi Sarfo and Opanyin Kwadwo Gyebi are beneficial owners of House No 27, Block 6, Old Tafo, Kumasi
  3. 3 Whether the devise of the disputed property by Opanyin Kwadwo Gyebi to his wife and children is valid

Ratio Decidendi

The children and descendants of Opanyin Kwasi Sarfo and Opanyin Kwadwo Gyebi are beneficial owners of House No 27, Block 6, Old Tafo, Kumasi, as tenants in common, based on the original devise by Opanyin Kwabena Asare. The devise by Opanyin Kwadwo Gyebi to his wife and children is ineffectual as he was not the exclusive owner. The defendants, as executors, are proper parties. The order of restraint is proper against the defendants but not against the Petenyinase family.

Court Disposition

appeal dismissed except for ground 4; Court of Appeal decision affirmed with variations

Orders

  • Declaration that the children of Opanyin Kwasi Sarfo and their descendants, and the children of Opanyin Kwadwo Gyebi and their descendants, are beneficial owners of House No 27, Block 6, Old Tafo, Kumasi, as tenants in common.
  • Order restraining the defendants and their privies, assigns, workmen, agents, and any person claiming through them from interfering with the beneficial enjoyment of the property by the beneficial owners.