|
Customary law – Family law -
Head of Family - Heads or joint
heads - Perpetual injunction -
Capacity – Acts done - Null and
void - Authority to grant
interests in lands -
Non-compliant with Rule -
Whether or not the Respondent is
the substantive head of the
Akwanor Royal Family of Ashalaja
- Whether or not the Respondent
was appointed the head of the
Akwanor Royal family of Ashalaja
in 2009 - Whether or not Suit
No. 1222/89 did confer title of
the head of the Akwanor family
on the 1st Appellant - Whether
or not the Appellants have
fraudulently been describing
themselves as head of the
Akwanor Royal Family of Ashalaja
- Rule 6(2)(f) of the Supreme
Court Rules C.I. 16 - Evidence
Act, NRCD 323 of 1975
HEADNOTES
The Appellants say that the
Respondent is not the head of
the Akwaanor Royal family of
Ashalaja and contend that the
Appellants are the joint heads
of the family. They trace their
co-headship through their father
who they say was the immediate
past head of the Akwaanor Royal
family of Ashalaja. They say
that contrary to the claim of
the Respondent, no person was
appointed head of the Akwaanor
Royal family on 9th July 2009.
The Appellants further claim
that the Plaintiff is not a
member of the Nii Akwaanor Royal
family of Ashalaja which hails
from Winneba. They say that the
Respondent hails from Moree and
not Winneba, both in the Central
Region. They also say that they
have been joint heads of the Nii
Akwaanor Royal family since
December 2003The Respondent on
the other hand, says while he is
the Head of Family of the
Akwaanor family of Ashalaja, and
has been since 2009, the
Appellants have been
mischievously presenting
themselves as the joint heads of
family of the Akwaanor Royal
family. The Respondent says he
was appointed Head of Family in
2009, after one Daniel Quao
Ntadu was removed as Head of
Family that year, At the
conclusion of the trial, the
Trial High Court held in favour
of the Respondent, Aggrieved by
the decision of the High Court,
the Appellants appealed to the
Court of Appeal which upheld the
decision of the High Court. The
Appellants are thus in this
Court seeking a decision to
overturn the judgments of the
Trial Court and the Court of
Appeal
HELD
It is to be noted that the
appointment of a person as head
of a family is neither automatic
nor does it devolve on any
person as a matter of right. The
Appointment is made by the
elders of the family either
formally and expressly or by
necessary implication, such as
where a family accepts and
supports acts of headship
performed by a member who is not
expressly elected as head of the
family. Having examined the
entire record, including the
evidence before the trial Court,
the findings of the trial Court,
the arguments urged on the Court
of Appeal, its findings as well
as the submission canvassed
before this Court, we have come
to the conclusion that the
findings, reasoning and
conclusions of the Court of
Appeal were properly made and
ought not to be disturbed. , For
these reasons the Appeal wholly
fails and is accordingly
dismissed.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules C.I. 16
Court of Appeal Rules of Court
C.I. 19
Evidence Act1975, NRCD 323
CASES REFERRED TO IN JUDGMENT
Atuguba & Associates v. Scipion
Capital UK & Anor. Civ. Appeal
No. J4/04/2019 delivered
03 April 2019
International Rom Limited v
Vodafone Ghana Limited and
Another [2015-2016] SCGLR 1389
Owusu Domena v. Amoah
[2015-2016] SCGLR 790
Achoro & Anor v Akanfela & Anor
[1996-97] SCGLR 209
Obeng & Others v Assemblies of
God church, Ghana [2010] SCGLR
300
Ntiri v Essien [2001-2002] SCGLR
459
Sarkodie v F K A Co Ltd [2009]
SCGLR 79
Jass Co Ltd v Appau [20009]
SCGLR 266
Awuku-Sao v Ghana Supply Co Ltd
[2009] SCGLR 713
Gregory v Tandoh iv [2010] SCGLR
971
IN RE: Asere Stool; Nikoi Olai
v. Amontia IV (Substituted by
Nii Tafo Amon II) v. Akortia
Oworsika III (Substituted by
Laryea Ayiku III) [2005-2006]
SCGLR 637
Amoah v. Lokko & Alfred Quartey
(substituted by) Gloria Quartey
[2011] 1 SCGLR 505
In Re Fianko Akotuah (deceased):
Fianko & Another vs. Djan &
Others [2007-2008] 1 SCGLR 165
Achoro vs. Akanfela [1996-97]
SCGLR 209
Hervi v. Tamakloe [1958] 3 WALR
342,
Nyamekye v. Ansah [1989-90] 2
GLR 152,
Mills v. Addy (1958) 3 W.A.L.R.
357
Amah v. Kaifio [1959] G.L.R. 23
In Re Estate of Kwabena Appianin
(Decd.); Frimpong v. Anane
[1965] GLR 354-363
Lartey v. Mensah (1958) 3
W.A.L.R. 410
Abakah v. Ambradu [1963] 1
G.L.R. 456,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
KULENDI, JSC:-
COUNSEL
O.K OSAFO BUABENG ESQ FOR
DEFENDANTS/APPELLANTS/APPELLANTS.
A.K BANNERMAN WILLIAMS JNR ESQ
WITH HIM ROBERT PAPPOE FOR
PLAINTIFF/ RESPONDENT/RESPONDENT
JUDGMENT
KULENDI, JSC:-
INTRODUCTION
We have before us an appeal
against the judgment of the
Court of Appeal, confirming the
judgment of the High Court
(Probate and Administration
Division) which held that the
Plaintiff/Respondent/Respondent
(hereinafter called “the
Respondent”) is the true
head of
the Akwaanor Royal Family.
BACKGROUND
The background to this appeal is
that the Respondent, by an
amended Writ of Summons and
Statement of Claim dated 25th
April, 2014, sought the
following reliefs against the
Defendants/Appellants/Appellants
(hereinafter called “the
Appellants”):
i.
A declaration that the Plaintiff
is the substantive Head of the
Akwaanor Royal family of
Ashalaja;
ii.
A declaration that the
Defendants are not the Heads of
the Akwaanor Royal family of
Ashalaja;
iii.
A declaration that any act or
acts done by the Defendants in
the purported
capacity
as Heads of the Akwaanor Royal
family of Ashalaja is null and
void;
iv.
An Order directed at the
Defendants to relinquish any
asset of the Akwaanor family of
Ashalaja that might have come
into their possession by reason
of them holding themselves out
to be the Heads of the Akwaanor
family of Ashalaja;
v.
Perpetual injunction
restraining the Defendants from
holding themselves out as the
Head of the Royal family of
Ashalaja.
The Appellants, by an Amended
Statement of Defence and
Counterclaim amended after the
Respondent had closed his case
in the trial, claimed against
the Respondent as follows;
i.
A declaration that the
Defendants have always been the
heads or
joint heads of the Akwaanor
Royal family of Ashalaja;
ii.
A declaration that the Plaintiff
is estopped from styling or
calling himself as lawful head
of the Nii Akwaanor Royal family
of Ashalaja;
iii.
A declaration that the
Plaintiff, his agents, assigns
and witnesses hail from Moree in
the Central Region and therefore
cannot be members of the Nii
Akwaanor Royal family of
Ashalaja;
iv.
A declaration that any land
title document executed by the
Plaintiff, his agents, assigns
and privies in relation to the
Ashalaja lands without lawful
authority is null and of no
legal effect;
v.
An order directed at the Lands
Commission and its divisions to
expunge the records and
registration of grants
purportedly made by the
Plaintiff, his agents, assigns,
concerning Ashalaja lands;
vi.
An order of perpetual injunction
restraining the Plaintiff from
styling or calling himself as
the lawful head of the Akwaanor
Royal family of Ashalaja;
vii.
An order of perpetual injunction
restraining the Plaintiff, his
agents, assigns, privies and
witnesses in this suit from
entering, leasing, selling,
assigning, or in anyway
whatsoever dealing with the
lands at Ashalaja.
THE APPELLANTS’ CASE
The Appellants say that the
Respondent is not the head of
the Akwaanor Royal family of
Ashalaja and contend that the
Appellants are the joint heads
of the family. They trace their
co-headship through their father
who they say was the immediate
past head of the Akwaanor Royal
family of Ashalaja. They say
that contrary to the claim of
the Respondent, no person was
appointed head of the Akwaanor
Royal family on 9th July 2009.
The Appellants further claim
that the Plaintiff is not a
member of the Nii Akwaanor Royal
family of Ashalaja which hails
from Winneba. They say that the
Respondent hails from Moree and
not Winneba, both in the Central
Region. They also say that they
have been joint heads of the Nii
Akwaanor Royal family since
December 2003.
The Appellants say that after
Kwame Addy was the head of
family, Peter Kojo Addy and
Akwanorfio Addy became joint
Heads of the Akwaanor family.
They say that both heads died in
March and October 1999. The
Appellants state that after the
death of Nii Akwaanorfio Addy in
1999, the 1st Appellant was
appointed Head of Family until
December 2003 when the 1st
Appellant was confirmed as head
of family and the 2nd Appellant
made joint Head of Family days
later. They contend that as
joint heads of the family, Peter
Kojo Addy and Akwanorfio Addy
executed several leases to third
parties without objection from
anyone and that in some of these
cases, Land Titles have been
issued in respect of these
grants.
The Appellants also assert that
Nii Akwarnorfio Addy was sued in
his capacity as the Head of
Family in the case of Nii
Kojo Appiah II & 2 Ors vs. Nii
Akwanor substituted by Adams
Addy Suit No. 1222/89. The
Appellants allege that after the
death of Nii Akwanorfio Addy,
the 1st Appellant was appointed
by the family to substitute for
Nii Akwanorfio Addy in the case
and to serve as acting head of
family. The Appellants state
that Nii Bornal Ackaah, the
Respondent’s predecessor in
title, does not hail from
Winneba and as such was not
eligible to be elected as Head
of the Awkaanor family.
They allege fraud on the part of
the Respondent saying that he
knew or ought to have known that
they (the Appellants) had been
co Heads of the Family since
2003. They also contend that he
(the Respondent) knew or ought
to have known that the
Appellants were the heads of the
family on the 9th day of July,
2009 when the Respondent
purports to have been made the
head of family. As a result,
they say that the Respondent did
not have
authority to grant interests in
Ashalaja lands to 3rd
Parties.
THE RESPONDENT’S CASE
The Respondent on the other
hand, says while he is the Head
of Family of the Akwaanor family
of Ashalaja, and has been since
2009, the Appellants have been
mischievously presenting
themselves as the joint heads of
family of the Akwaanor Royal
family. The Respondent says he
was appointed Head of Family in
2009, after one Daniel Quao
Ntadu was removed as Head of
Family that year.
According to the Respondent,
Daniel Quao Ntadu was installed
in 2007, following the death of
the late Nii Bornal Ackaah, who
in turn was made the Head of the
Akwaanor family in 1999
following the demise of Peter
Kojo Addy. The Respondent says
that Peter Kojo Addy was made
the Head of Family in 1980,
following the death of one Kwame
Addy. The Respondent says Kwame
Addy served as Head of the
Akwaanor Royal family of
Ashalaja from 1973 to 1980.
This is how far back the
Respondent traces his claim to
the Headship of the Akwaanor
Royal Family.
The Respondent says that the
Appellants had been unlawfully
holding themselves out as joint
heads of the Akwaanor Royal
family. He says, as an example,
that on or about the 25th of
January 2013, the 1st Appellant
misrepresented himself to
Bookman-Amissah and Associates
and instructed them to write to
the Lands Commission describing
him as the head of family.
The Respondent says that this
conduct is fraudulent because
the Appellants knew or ought to
have known that they are not the
heads of the Akwaanor Royal
family when they did represent
themselves as such. He also
argued that the Appellants knew
or ought to have known that by
custom, usage and practice of
the Akwaanor Royal family, the
family is at all times headed by
one person. He also says that
the Appellants, holding
themselves out as joint heads of
the Akwaanor Royal family, have
been selling lands in that
capacity.
The following issues were
settled at the directions stage
and adopted for determination by
the Trial Court;
1.
Whether or not the Respondent is
the substantive head of the
Akwanor Royal Family of
Ashalaja.
2.
Whether or not the Respondent
was appointed the head of the
Akwanor Royal family of Ashalaja
in 2009.
3.
Whether or not Suit No. 1222/89
did confer title of the head of
the Akwanor family on the 1st
Appellant
4.
Whether or not the Appellants
have fraudulently been
describing themselves as head of
the Akwanor Royal Family of
Ashalaja
5.
Whether or not the Respondent is
entitled to his reliefs.
6.
Any other issues arising out of
the pleadings.
At the conclusion of the trial,
the Trial High Court held in
favour of the Respondent
in the following terms;
i.
It is hereby declared that the
Plaintiff Solomon Mintah Ackaah
is substantive head of family of
the Akwanor Royal Family of
Ashalaja and not the Defendants
ii.
It is hereby declared that any
act or acts done by the
Defendants in their alleged
capacity as joint Heads of
family are null and void
iii.
Defendants are to relinquish any
assets of the Akwanor Royal
Family of Ashalaja that may have
come to them by reason of their
holding themselves out as joint
family heads
iv.
The Defendants are hereby
perpetually restrained from
holding themselves out as heads
of the Akwanor Royal Family of
Ashalaja.
Aggrieved by the decision of the
High Court, the Appellants
appealed to the Court of Appeal
which upheld the decision of the
High Court. The Appellants are
thus in this Court seeking a
decision to overturn the
judgments of the Trial Court and
the Court of Appeal.
GROUNDS OF APPEAL
The Appellants appealed to this
Court on the following grounds;
i.
The judgment is against the
weight of the evidence
ii.
The learned Justices of the
Court of Appeal did not consider
the case
iii.
of the Appellants, as a witness
to the Respondent confirmed that
the Respondent was installed as
a chief and not family head and
therefore engendered a grave
miscarriage of justice.
iv.
Additional grounds of appeal
will be filed on receipt of the
judgment and proceedings.
LAW AND ANALYSIS
The Respondent has raised a
preliminary objection about the
Appellants’ second ground of
appeal, arguing that it does not
comply with the established
rules set down for couching
grounds of appeal. Specifically,
in his Statement of Case,
counsel for the Respondent (on
page 15) states, “… I humbly
submit that this ground of
Appeal is argumentative and
lacks sufficient particulars to
assist this Honourable Court to
identify and situate the point
of law or facts upon which the
Appellants seek to impugn the
judgment of the Court of
Appeal.” They further argue
that since appeal is a creature
of statute, they believe that a
non-compliant ground of appeal
ought to be struck out.
The Appellants in their Reply to
the Respondent’s Statement of
Case effectively argue that they
do not seek to rely on or argue
this ground of appeal, and that
the entirety of the second
ground of appeal may be subsumed
within the omnibus ground of
appeal. They however ask this
Court not to strike out this
ground of appeal.
However, he Appellants did not
proffer any submissions in
respect of the said ground two
and consequently, we
deem
this Ground to be
abandoned.
In any event,
Rule
6(2)(f) of the Supreme Court
Rules C.I. 16 states
that, “(2) A notice of civil
appeal shall set forth the
grounds of appeal and shall
state— (f) the particulars of
any misdirection or error in
law, if so alleged.”
In our opinion, ground 2 of this
appeal breaches this rule of
Court. This ground was couched
in the same misconceived manner
as many of the grounds of appeal
to the Court of Appeal, which
grounds were struck off as
violating the
Court of
Appeal Rules of Court.
Similarly, this ground would not
have been deserving of our
consideration.
In view of the foregoing, we are
left with the omnibus ground of
Appeal as the sole ground of
appeal since the Appellants did
not file any additional grounds
further to ground 3.
DISCUSSION OF THE OMNIBUS GROUND
In the case of
Atuguba & Associates v. Scipion
Capital UK & Anor. Civ. Appeal
No. J4/04/2019 delivered
03 April 2019,
Amegatcher JSC, opined about the
omnibus ground in the following
terms, “The omnibus ground
has been a hideout ground. The
responsibility in even minor
appeals is shifted to the
appellate judges to comb through
the records of appeal, review
the evidence and identify the
specific areas the trial judge
erred before coming out with the
court’s opinion on the merits or
otherwise of the appeal. The
situation is worrying where no
viva voce evidence is proffered
and a judge is called upon to
exercise judicial discretion,
such as in applications for
injunction, stay of execution,
amendment, joinder, judicial
review, and consolidation, just
to mention a few. In our
opinion, though the rules allow
the omnibus ground to be
formulated as part of the
grounds of appeal, it will
greatly expedite justice
delivery if legal practitioners
formulate specific grounds of
appeal identifying where the
trial judge erred in the
exercise of a discretion. A
proper ground of appeal should
state what should have been
considered which was not and
what extraneous matters were
considered which should not have
been. We believe this approach
will better serve the ends of
justice and lessen the use of
the omnibus ground particularly
in interlocutory matters and in
the exercise of judicial
discretion.”
This dictum was not the first or
the last time that this Court
has raised concerns with the use
of the omnibus ground and the
lack of specificity in couching
grounds of appeal. In the case
of
International Rom Limited v
Vodafone Ghana Limited and
Another [2015-2016] SCGLR 1389
at 1400, this court said “Thus
the 1st defendant’s
so called grounds of appeal when
juxtaposed with the above
requirement reveals an obvious
non-compliance with the rules of
court. Undoubtedly it is only in
an atmosphere of compliance with
procedural rules of court would
there be certainty and integrity
in litigation. All the so called
grounds filed by the appellant
(above) are general,
argumentative and narrative and
to that extent
non-compliant with Rule 6
sub-rules 4 and 5 of CI 16. They
are struck out. In order not to
yield overly to legal
technicalities to defeat the
cries of an otherwise sincere
litigant we would and hereby
substitute them with what
actually emerges as the core
complaint and general ground
which is that ‘the judgment is
against the weight of evidence’.
It does appear that the
magnanimity exhibited by this
court over these obvious lapses
and disrespect for the rules of
engagement is being taken as a
sign either of condoning or
weakness hence the persistence
of the impunity. It is time to
apply the rules strictly.”
However, there is a requirement
that we consider the entirety of
the record once the omnibus
ground has been adduced. Per
Benin JSC in the case of
Owusu
Domena v. Amoah
[2015-2016] SCGLR 790
at 792
“The sole ground of appeal
throws up the case for a fresh
consideration of all the facts
and law by the appellate court.”
As a result, in compliance with
the statutory requirement that
appeals are by way of rehearing,
and the established principle
that once the omnibus rule is
asserted by an Appellant, the
Court ought to consider the
entirety of the record, we
proceed to deliver our judgment
on the entirety of the evidence
before us.
There are multitude of decisions
of this Court which state that
unless the Appellant points to
specific findings of fact and
demonstrates why they are not
supported by the evidence on the
record, Appellate Courts ought
not to disturb the findings of
the Courts below them.
In the case of
Achoro & Anor v Akanfela & Anor
[1996-97] SCGLR 209
at Page 214,
Acquah JSC,
(as he then was) stated as
follows:
“Now in an appeal against
findings of facts to a second
appellate court like this court,
where the lower appellate court
had concurred in the findings of
the trial court, especially in a
dispute, the subject-matter of
which is peculiarly within the
bosom of the two lower courts or
tribunals, this court will not
interfere with the concurrent
findings of the lower courts
unless it is established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, is
apparent in the way in which the
lower tribunals dealt with the
facts.”
[See also:
OBENG &
OTHERS V ASSEMBLIES OF GOD
CHURCH, GHANA [2010] SCGLR 300
AT 409; NTIRI
V ESSIEN [2001-2002] SCGLR 459;
SARKODIE V F K A CO LTD [2009]
SCGLR 79; JASS CO LTD V APPAU
[20009] SCGLR 266 AND AWUKU-SAO
V GHANA SUPPLY CO LTD [2009]
SCGLR 713; GREGORY V TANDOH IV
[2010] SCGLR 971]
The burden herein therefore
rests with the Appellant who now
has to demonstrate to this Court
what pieces of evidence would
change the decisions of the
lower Courts, otherwise this
Court would be minded not to
disturb their findings.
The Appellants contend that the
judgment in the case of Nii
Kojo Appiah II & 2 Ors vs. Nii
Akwanor substituted by Adams
Addy [supra] which they
tendered as their Exhibit 10 is
crucial in determining whether
the Respondent was ever validly
elected and/or appointed as the
head of the Akwaanor Royal
family of Ashalaja. Per the
Appellants, this exhibit shows
that while one Samuel Afful
Akwanor joined as party to this
suit maintained that one Nii
Bornal
Ackah was the head of the
Akwanor family at the time of
the commencement of the trial
and that he just delegated the
father of the Appellants, Nii
Akwanorfio Addy to be the
representative of the family in
the trial, the trial judge in
that action made a finding of
fact in his judgment that
Akwanorfio Addy was the head of
the Akwanor royal family.
He claims that this was a final
determination of the issue of
the Headship of the family and
could not be reopened by the
Respondent in this matter. This,
they say, dislodges the
Respondent’s claim that Nii
Bornal
Ackah was the head of family,
and therefore his tracing of his
headship through Nii
Bornal
Ackah meant that he (the
Respondent) could not be Head of
Family.
Counsel for the Appellants
concedes that the suit in
Exhibit 10 was in respect of the
ownership of the Ashalaja lands
but says that the Court in that
case went ahead to make a
determination on who the head of
the Akwaanor family is, and that
such determination is binding on
both parties. They assert that
the issue of the Headship of the
family is a matter that is
sealed by estoppel per rem
judicata.
The Respondent on his part
argues in his Statement of Case
that suit no. 1222/89 did not
confer headship of the Akwaanor
Family on the Appellants. He
then points to the record of
Appeal on page 429 of volume 1
where the following exchange on
cross examination of the 1st
Appellant is captured.
“Q - You are relying on Suit
No. 1222/89 to say that you are
the head of family.
A - Yes.
Q - Do you know that the matter
did not decide headship of the
family?
A - Yes it did not but the one I
represented was sued as head of
family and I was made acting
head of family in relation to
the case.”
Counsel for the Respondent
points to this testimony and
urges that the 1st Appellant
himself admits that the effect
of the Judgment in the earlier
case does not decide who is the
head of the family. They contend
that since the 1st Appellant has
admitted this, they do not need
to present evidence to prove
that fact.
FINDINGS OF THIS COURT
The main piece of evidence in
contention in this Appeal is the
earlier case of Nii Kojo
Appiah II & 2 Ors vs. Nii
Akwanor substituted by Adams
Addy [supra] . During the
trial in this case, the question
of whether or not that earlier
case conferred headship came up.
On cross examination the 1st
Appellant admitted that that
earlier case does not confer
headship on anyone. Counsel for
the Respondent is right when he
describes the effect of this
admission.
In IN
RE: Asere Stool; Nikoi Olai v.
Amontia IV (Substituted by Nii
Tafo Amon II) v. Akortia
Oworsika III (Substituted by
Laryea Ayiku III) [2005-2006]
SCGLR 637, this
Court, speaking through Dr.
Twum, JSC (as he then was) said,
“Where an adversary has
admitted a fact advantageous to
the cause of a party, the party
does not need any better
evidence of estoppel by conduct.
It is a rule whereby a party is
precluded from denying the
existence of some state of facts
formerly asserted. That type of
proof is salutary of evidence
based on common sense and
expediency.”
Evidence Act, NRCD 323 of
1975
states thus:
Section 26
– Estoppel by own statement or
Conduct.
“Except as otherwise provided
by law, including a rule of
equity, when a party has, by his
own statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person on his
successors in interest.”
As a result, 1st Appellant
cannot admit under oath that the
earlier case of Nii Kojo
Appiah II [supra] did not
confer the title of Head of
Family and at the same time,
counsel for the Appellants argue
in his submission that that case
did in fact confer the title of
Head of Family on the
predecessor in title of the
Appellants.
CONCLUSION
It is settled law that once a
Trial Court had heard evidence
and made findings on that
evidence, the Appellate Courts
ought not to disturb the
findings unless there is
evidence on the contrary to
support disturbing those
findings.
In the case of
Amoah
v. Lokko & Alfred Quartey
(substituted by) Gloria Quartey
[2011] 1 SCGLR 505 at
505, his Lordship Aryeetey
JSC said;
“The appellate court can only
interfere with the findings of
the trial court if they are
wrong because (a) the court has
taken into account matters which
were irrelevant in law, (b) the
court excluded matters which
were critically necessary for
consideration, (c) the court has
come to a conclusion which no
court properly instructing
itself would have reached and
(d) the court’s findings were
not proper inferences drawn from
the facts.”
See also the case of
In Re
Fianko Akotuah (deceased):
Fianko & Another vs. Djan &
Others [2007-2008] 1 SCGLR 165,
at 171 where Atuguba JSC
delivering the judgment of the
Court stated the legal position
relating to concurrent findings
of fact as follows:
“The Supreme Court in the
case entitled
Achoro
vs. Akanfela [1996-97] SCGLR 209
held that, in an appeal
against findings of facts to a
second appellate court, such as
in the instant case, where the
lower appellate court had
concurred in the findings of the
trial court, the second
appellate court would not
interfere with the concurrent
findings of the two lower courts
(our emphasis) unless it was
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice was apparent in the
way in which the lower tribunals
had dealt with the facts.”
In any event, we are of the
view, that family headship is by
appointment and therefore has to
do with the factual
circumstances of the appointment
of a person as against historic
predecessorship. At best, what
Suit Number 1222/89 may have
established is that all parties
in the instant suit have a
commonality of lineage to the
Akwanor Royal Family of Ashalaja
and it dispels claims that the
parties in this instant Suit
hail from two different families
with Respondent’s root from
Moree and Appellants’ root from
Winneba.
The succession to family
headship being by appointment or
election, much emphasis ought to
be given to the factual
circumstances of the appointment
or election of a person such as
the nature of the appointment or
election and the recognition of
the appointment or election by
the family itself. This being a
civil suit, the trial Judge was
to examine the evidence offered
by each party and determine
which of the parties’ claims was
more probable.
It is to be noted that the
appointment of a person as head
of a family is neither automatic
nor does it devolve on any
person as a matter of right. The
Appointment is made by the
elders of the family either
formally and expressly or by
necessary implication, such as
where a family accepts and
supports acts of headship
performed by a member who is not
expressly elected as head of the
family.
[see the cases
of HERVI
V. TAMAKLOE [1958] 3 WALR 342,
NYAMEKYE V. ANSAH [1989-90] 2
GLR 152, MILLS V. ADDY (1958) 3
W.A.L.R. 357, AMAH V. KAIFIO
[1959] G.L.R. 23, IN RE ESTATE
OF KWABENA APPIANIN (DECD.);
FRIMPONG V. ANANE [1965] GLR
354-363, LARTEY V. MENSAH (1958)
3 W.A.L.R. 410 AND ABAKAH V.
AMBRADU [1963] 1 G.L.R. 456,
S.C]
Having examined the entire
record, including the evidence
before the trial Court, the
findings of the trial Court, the
arguments urged on the Court of
Appeal, its findings as well as
the submission canvassed before
this Court, we have come to the
conclusion that the findings,
reasoning and conclusions of the
Court of Appeal were properly
made and ought not to be
disturbed.
For these reasons the Appeal
wholly fails and is accordingly
dismissed.
E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
A. LOVELACE–JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
PROF. H. J. A.
N. MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
O.K OSAFO BUABENG ESQ FOR
DEFENDANTS/APPELLANTS/APPELLANTS.
A.K BANNERMAN WILLIAMS JNR ESQ
WITH HIM ROBERT PAPPOE FOR
PLAINTIFF /RESPONDENT/
RESPONDENT. |
