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JUDGMENT
ADJABENG, J.S.C.:
This is an appeal against the
unanimous decision of the Court
of Appeal which had dismissed
the appellants' appeal and
upheld the decision of the trial
High Court dismissing their
claim for grant of letters of
administration in respect of
their late father's estate. The
trial High Court held that the
issue as to whether it was the
maternal or the paternal family
of the appellants' late father
that was entitled to administer
the estate of their late father,
Edward Daniel Lartey, had been
decided earlier in 1955 by the
High Court, Accra, in favour of
the respondent's predecessor
called Ben Quao Mensah. As such,
the appellants were estopped per
rem judicatam by the said
earlier decision from
relitigating the matter. That
this was so, especially, as the
appellants never appealed
against the said earlier
decision to enable an appellate
court set it aside.
The 1st, 2nd and 3rd
plaintiffs/appellants are the
children of the late Edward
Daniel Lartey whose estate was
the subject of the various
actions, and the 4th
plaintiff/appellant is the
grand-niece of the said
deceased. The appellants took
this action at the High Court,
Accra, claiming:
"1. A declaration that the
plaintiffs are entitled to
administer the estate of Edward
Daniel Lartey.
2. Perpetual injunction to
restrain the Defendant from
interfering with the
administration of the estate of
Edward Daniel Lartey."
The defendant/respondent, Abban
Otoo, is a member of the
deceased's maternal family. In
an action which immediately
preceded the action now before
us, the appellants sued the
respondent's predecessor, Ben
Quao Mensah, in respect of the
same estate of their said late
father. When the said Ben Quao
Mensah died in the course of
that litigation, the respondent
herein was appointed by the
maternal family to apply to be
substituted for the said Ben
Quao Mensah. This action was,
however, later struck out. The
appellants then applied for
letters of administration to
administer their late father's
estate. The respondent,
obviously on the authority of
the maternal family, caveated.
This resulted in the present
action being taken.
The trial court, after taking
evidence from the 2nd and 4th
plaintiffs/appellants, and from
the defendant/respondent, gave
judgment against the appellants
and dismissed their action. As
stated earlier in this opinion,
the trial High Court dismissed
the appellants' action because
the High Court, Accra, presided
over by Lingley, J., had in 1955
decided, in an earlier action
between the 1st, 2nd and 3rd
plaintiffs/appellants herein and
the defendant/respondent's
predecessor, Ben Quao Mensah,
mentioned earlier, the same
issue joined between the parties
in the present action. That is,
that as between the appellant's
paternal family and the
respondent's maternal family, it
is the respondent's maternal
family that is entitled to
administer the estate of the
appellants' said late father.
The trial judge herein relied on
the decided authorities of Foli
& Ors. vrs. Agya Atta & Ors.
(consolidated) [1976] 1 GLR 194
at 195, C.A. and Larinde vrs.
Afiko (1940) 6 W.A.C.A. 108 at
109-110.
The appellants appealed to the
Court of Appeal against the
trial Court's decision on the
sole ground that the trial Court
was wrong in holding that they
were estopped per rem judicatam
from relitigating the matter
which had already been decided
by Lingley, J. in 1955. In a
unanimous decision, the Court of
Appeal dismissed the appellants'
appeal and upheld the trial
Court's decision.
Still not satisfied, the
appellants appealed to this
Court on the same ground
canvassed in the Court of
Appeal, and one other ground.
This other ground is that:
"2. The learned Justices of
Appeal erred in law by not
holding that the decision of
Lingley, J. in suit No. 174/55
Re Estate of Edward Daniel
Lartey; Ben Quao Mensah vrs.
Florence Naadu Lartey that
Edward Daniel Lartey is a Ga
Mashie Man was over ruled by the
Supreme Court decision in MENSAH
VRS. LARTEY (1963) 2 GLR 92
which held that Edward Daniel
Lartey is an Osu Man whose
estate should devolve
patrilineally."
Elaborating on the above ground
of appeal, the appellants in
their statement of case argue as
follows:—
"In 1955 in Suit No. 174/55,
MENSAH VRS. LARTEY, Lingley, J.
sitting at High Court expressed
the opinion that the estate of
EDWARD DANIEL LARTEY should be
inherited matrilineally; in 1963
the Supreme Court decided in
MENSAH VRS. LARTEY, 2 GLR 92
that the inheritance of the same
estate should be patrilineal.
Surely as between the decision
of the Supreme Court in 1963 in
rem and the opinion of the High
Court in 1955 in respect of the
same estate, the 1963 decision
should prevail and the customary
law of Osu should have been
applied to give the present
Applicants/Appellants the right
to administer their father's
estate as Osu Customary Law
prescribes."
In reply, the respondent, in his
statement of case, argues that:
"The Supreme Court opinion in
1963 and the decision of the
High Court in 1955 in Suit No.
174/55, Mensah vrs. Lartey, are
not in conflict with each other.
The action before the Supreme
Court in 1963 was not an appeal
against the 1955 decision of the
High Court. Thus the Court of
Appeal rightly upheld the High
Court decision that the 1955
decision operates as 'estoppel
per rem judicatam' against the
plaintiffs/appellants."
It must be pointed out that
Counsel for the appellants made
the same argument in the trial
Court that he is repeating in
this Court as stated above. The
trial court ruled on the point
as follows:—
"Learned Counsel for the
Plaintiffs in this case argued
in his submission that Lingley,
J. did not consider the law and
he decided per in curiam. He
added that the learned trial
judge failed to direct himself
on the right of the children in
a case like this where the
father belonged to two different
systems of custom. He cited the
case of MENSAH VRS. LARTEY
(1963) 2 GLR 92 as having
finally decided the issue where
children had a father belonging
to two different systems of
custom. Mr. Amarteifio also
submitted as follows:—
'It should also be pointed out
that the decision of Lingley, J.
was a decision of the Divisional
Court of the Gold Coast. At best
it can only be persuasive on the
Honourable Court. On the other
hand, the clear principles
enunciated in MENSAH VRS. LARTEY
in 1963 by the Supreme Court of
Ghana are binding on this
Honourable Court'.
It is true that the principles
established in Mensah vrs.
Lartey in 1963 by the Supreme
Court are binding on the Court.
But the evidence before me
indicates that there was no
appeal against the judgment of
LINGLEY, J. in Suit No. 174/55.
In other words the said judgment
which was given by Court of
competent jurisdiction is still
valid.
It must be pointed out that the
principle is well established
that where a decision is final
it will operate as RES JUDICATA
notwithstanding that the
judgment is wrong in Law. In
LARINDE VRS. AFIKO (1940) 6
W.A.C.A 108 at 109-110 it was
held:
'That 1925 judgment still stands
as RES JUDICATA between the
parties to it and their privies.
It may be that the 1925 case was
wrongly decided but it has never
been upset by an Appeal Court
and it binds the parties to it
and their privies'.
In the instant case since the
judgment in Suit No. 174/55 was
final, in view of the matters
discussed above, I hold that the
plaintiffs are estopped per rem
judicatam."
The Court of Appeal confirmed
the above decision of the trial
court. In her opinion, Wood,
J.A. stated, among other things,
as follows:—
"In the case of the 1st - 3rd
appellants who relied on the
same evidence in support of
their own claim I have not the
slightest doubt that the learned
trial judge's decision that they
are bound per rem judicatam by
the 1955 decision is again
valid. I agree with the trial
judge that that case determined
the personal law of the late
Lartey.
The issue of this personal law
was pertinent to the 1955 action
in which the appellants were the
caveators. It was decided that
their father was an Accra man
whose system of inheritance was
matrilineal not patrilineal...
The record further shows that
the appellants did not appeal
against these crucial findings
by a court of competent
jurisdiction. Counsel's
lamentation that the law as
stated in the 1955 case is wrong
and that subsequent Supreme
Court case states the more
correct view is therefore of no
consequence.
In Bakuma vrs. Ekor (1972) 1 GLR
133 the Court of Appeal drew a
distinction between an order or
judgment which is totally void
on the ground that the court
which made it lacked competency
or jurisdiction and one which
even if erroneous in fact and
law was within the court's
competency.
In the case of the latter an
appeal could lie against the
said order and which, much more
importantly, the judgment can
operate as res judicata. Indeed
the Bakuma case confirms the
older decision in Larinde vrs.
Afiko (1940) 6 W.A.C.A. 108 at
109-110 referred to by the
learned trial judge ...
In my view, the learned trial
judge correctly decided the case
between the 1st - 3rd
appellants. The 1955 judgment of
Lingley, J. operates as res
judicata against them on the one
hand and the respondent on the
other. Their claim therefore
that they as members of the
patrilineal family are better
entitled to administer the
estate than the matrilineal
family representative, the
respondent, must fail and the
same must accordingly be
dismissed."
In his opinion, Afreh, J.A.,
fully supports Wood, J.A.
Particularly, in respect of the
1963 Supreme Court decision in
Mensah vrs. Lartey which the
appellants have waved before the
trial court, the Court of
Appeal, and which they still
wave before us, Afreh, J.A.
states as follows:—
"Mr. Amarteifio also drew our
attention to the case of MENSAH
VRS. LARTEY [1963] 2 GLR 92 SC
between Benjamin Quao Mensah and
members of the patrilineal
family of Edward Daniel Lartey
regarding his share in a family
property donated to Edward and
his brothers by their father in
1919.
I believe if the decision in the
1963 case had been in existence
when the 1955 case was decided
the court would have been bound
to give judgment in favour of
the plaintiffs herein. It is
even possible that if the
plaintiffs had maintained their
appeal they would have won. But
no such thing happened. So the
judgment of Lingley, J.
continues to be binding on the
parties to the case before him
and their privies. The fact that
that decision can now be shown
to have been wrong does not
affect that situation."
Having studied the evidence and
the decision of the trial court,
and also the decision of the
Court of Appeal, and the
authorities referred to and
relied on by both courts in
support of their decisions, it
is my view that the decision of
the trial court as affirmed by
the Court of Appeal is sound and
cannot be faulted. I think that
the Court of Appeal was right in
affirming the decision of the
trial court. Indeed, the
appellants failed to show that
the decisions of the two courts
were wrong, nor were they able
to challenge the authorities the
two courts referred to. No
wonder that Counsel for the
appellants was not able to refer
to any authority in this Court
or in the Court of Appeal to
challenge the authorities the
two Courts had referred to as
mentioned earlier. I find no
merit in this appeal and
accordingly it ought to be
dismissed.
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
F.Y. KPEGAH
JUSTICE OF THE SUPREME COURT
G.K. ACQUAH
JUSTICE OF THE SUPREME COURT
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Amarkai Amarteifio with him
Ahmed for Appellants.
Respondent Absent - No
Representation. |
