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Customary law
– Head of family - Family land –
Res judicata - Wether there had
indeed been a split in the
Pitsir Kwaata Anona Family of
Uper Inchaban -
HEADNOTES
The facts of
this case are in a small
compass. It is unnecessary to
go over the history of this
action in its entirety. The
only matter for the decision of
this court is the appeal before
it. The appeal is against the
allowance of the co-defendant’s
counterclaim by the court of
Appeal, thereby reversing its
dismissal by the trial High
Court. The co-defendant John
Kwesi Wilson had counterclaimed
as stated follows: that the
Co-defendant is the head of the
Pitsir Kwaata Anona family of
Upper Inchaban. and he is
seeking a Perpetual Injunction
restraining the Plaintiff from
acting or holding himself out as
the head of the Pitsir Kwaata
Anona family of Upper Inchaben,
The trial judge was satisfied on
the evidence adduced before him
that there had indeed been a
split in the Pitsir Kwaata Anona
Family of Uper Inchaban . He
however felt constrained to
decide in favour of the
defendants because in the the
District Court, Sekondi gave
judgment in favour of the
plaintiff, holding that the
plaintiff had neither vacated
his office as the head of the
Pitsir Kwaata Anona Family nor
been removed therefrom.
.
HELD
For the
foregoing reasons the courts
below erred in law in feeling
hardbound by the judgment of the
Sekondi District Court in the
face of the further and
unobjected evidence to the
contrary. All the relevant
evidence led in the action
caught to have been considered
and if that were done the
co-defendant’s counterclaim was
unsustainable. The fact of
secession by the defendants from
the Pitsir Kwaata Anona family
as opposed to a mere split by
way of disagreement on an issue,
has clearly been established on
the evidence in this case.
Having seceded from the Pitsir
Akwaata Anona family, neither he
nor his predecessor Kofi Mensah
could thereafter claim headship
of that same family,as if no
secession had occured. We
accordingly allow the appeal and
dismiss the co-defendant’s
counterclaim.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules, 1954
(LN 140A),
Evidence
Decree, 1975 (NRCD 323)
CASES
REFERRED TO IN JUDGMENT
Hugo vrs
Djangmah (1997-98) 1 GLR 300
Nyan v
Amihere (1964) GLR 162 S.C.
Akoto III v.
Agyeman I [1962] 1 G.L.R. 524,
S.C.,
Okai II v.
Ayikai II (1946) 12 W.A.C.A. 31
Vooght v.
Winch (1819) 2 B. & Ald. 662;
106 E.R. 507
Sasu v.
Amua-Sekyi and Another
[2003-2004] 2 SCGLR 742
judicata
Dedeke v Williams (1944) 10 WACA
164
Agyako v
Nazir Zok (1944) 10 WACA 277
Scanship (Gh)
Ltd v. Effasco Ltd (2001-2002)
SCGLR 70
Edward Nassar
Co Ltd v. McVroom [1996-97] SCLR
468,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ATUGUBA
J.S.C.
COUNSEL
MICHAEL
ARTHUR-DADZIE ESQ. FOR THE
PLAINTIFF /RESPONDENT /APPELLANT
.PHILIP
NKRUMAH ESQ. FOR THE DEFENDANTS/
APPELLANTS/ RESPONDENTS.
IN THE SUPERIOR
COURT OF JUDICATURE
IN THE SUPREME COURT OF GHANA
ACCRA- GHANA , A.D.2014
----------------------------------------------------------------------------------------------------------------
ATUGUBA
J.S.C.
The facts of
this case are in a small
compass. It is unnecessary to
go over the history of this
action in its entirety. The
only matter for the decision of
this court is the appeal before
it. The appeal is against the
allowance of the co-defendant’s
counterclaim by the court of
Appeal, thereby reversing its
dismissal by the trial High
Court.
The
co-defendant John Kwesi Wilson
had counterclaimed as stated at
p.289 of the record of appeal as
follows:
“a. A
declaration that the
Co-defendant is the head of the
Pitsir Kwaata Anona family of
Upper Inchaban.
b.
Perpetual Injunction restraining
the Plaintiff from acting or
holding himself out as the head
of the Pitsir Kwaata Anona
family of Upper Inchaben.”
The grounds
of appeal as per the notice of
appeal are as follows:
“a) That the judgement is
against the weight of evidence.
b) That the Learned
Justices of the Court of Appeal
erred by holding that the
Co-Defendant was the Head of the
Pitsir Kwaata Anona Family of
Inchaban when as matter of fact
the said John Kwesi Wilson was
substituted for Kofi Mensah
(deceased) for the conduct of
the cause or matter.
c) The
Learned Justices of the Court of
Appeal erred by holding that the
Defendant and Co-Defendant’s
family never seceded from the
Plaintiff’s Family in the light
of overwhelming evidence that
the Plaintiff’s family and the
Defendant and Co-Defendant’s
family stopped doing things in
common as required of ‘Family’
as a united entity.
d) That
the Learned Justices of the
Court of Appeal erred by failing
to appreciate the legal effects
of Exhibits “KS1” and “KS2”
being decisions of a Superior
Court as against Exhibit “1” a
decision of a Lower Court.
e)
That the learned Justices of the
Court of Appeal erred by holding
that Kofi Mensah’s successor the
Co-defendant was and still
remains the head of the Pitsir
Kwaata Anona Family.
f)
That the Court of Appeal erred
by ignoring the overwhelming
evidence to the fact that the
Co-Defendant seceded from the
said Pitsir Kwaata Anoma family.
g) Further grounds of
Appeal may be filed.”
It must be
emphasised that though the
appellant’s submissions also
touch and concern the grant of
part of the Pitsir Kwaata family
land to the Defendant,the only
issue this court can competently
deal with is the co-defendant’s
counterclaim aforesaid since the
appeal before this court stems
from the allowance of the
co-defendant’s appeal to the
Court of Appeal which was based
solely on the dismissal of the
said co-defendant’s counterclaim
by the trial judge, see p. 34 of
the record of appeal.
We think that
the grounds of appeal can be
dealt with compositely.
The trial
judge was satisfied on the
evidence adduced before him that
there had indeed been a split in
the Pitsir Kwaata Anona Family
of Uper Inchaban . He however
felt constrained to decide in
favour of the defendants because
in the case of Suit No. 180/2001
Ebusuapanyin Kofi Mensah (Head
of the Pitsir Kwata Anona Family
of Inchaban) Inchaban. vrs. Kojo
Yankson and Kwamena Siisi the
District Court, Sekondi gave
judgment in favour of the
plaintiff, holding that the
plaintiff had neither vacated
his office as the head of the
Pitsir Kwaata Anona Family nor
been removed therefrom.
As aforesaid
there is no doubt that there has
been a split in the Pitsir
Kwaata Anona family of Upper
Inchaban. Even in the Sekondi
District Court judgment in
Ebusuapanyin Kofi Mensah (Head
of the Pitsir Kwata Anona Family
of Inchaban) Inchaban. Vrs. Kojo
Yankson and Kwamena Siisi dated
17/6/2003 the District
Magistrate stated thus:
“.... the
family, as agreed to by all
parties is split into two
factions.”
The trial
judge in this case also stated
thus: “Plaintiff spent a good
deal of energy in this case in
his effort to establish that
defendant and a minority group
of the family including even
Abusuapanyin Kofi Mensah (now
deceased) dissociated themselves
from the family of Pitsir Kwaata
Anona family. It appears to me
that plaintiff succeeded in his
effort. That is to say, I am
inclined to accept as proved
that a faction of the family
including defendant,
co-defendant and their group
announced renunciation of the
family and the renunciation was
accepted by the majority group
and that libation was poured as
required by customary law and
that all these were publicly
done thus satisfying the
customary requirement of
publication as stated in the
case of Hugo vrs Djangmah
(1997-98) 1 GLR 300. However,
this finding is of no
significance since it cannot
overrule the decision of the
District Court.”, see p. 226 of
the record of appeal.
In the
circumstances it is not
necessary to refer in this
judgment to the copious evidence
on record which clearly
establishes a split in the
Pitsir Kwaata Anona Family as
far back as 1999.
The Issue of
Res Judicata
As already
stated the trial judge was
constrained to grant the
co-defendant respondent’s
counterclaim because of the
aforementioned Sekondi District
Court judgment. However the
courts apply precedents in a
manner that advances the ends of
justice where possible. The
courts had earlier established
the principle that where
estoppel per rem judicatam has
not been expressly pleaded the
judgment in question operates as
part of the pieces of evidence
to be considered in determining
the case under trial, see Nyan v
Amihere (1964) GLR 162 S.C.
This principle is therein stated
in holding (1) of the Headnote
thus:
“(1) the
evidence adduced at the trial
showed that (a) the series of
litigation between the
appellant’s stool and the
respondents’ stool established
the appellant’s stool as the
owner of the land in dispute and
(b) that the caretaker of the
respondents’ stool admitted,
during the 1956 litigation, the
stool of the appellant’s claim
to the boundary of the land in
dispute. If estoppels had been
pleaded, these pieces of
evidence would have operated
against the respondents. In the
absence of such a plea, however,
they became available as pieces
of evidence in support of the
appellant’s case. Akoto III v.
Agyeman I [1962] 1 G.L.R. 524,
S.C., Okai II v. Ayikai II
(1946) 12 W.A.C.A. 31 and Vooght
v. Winch (1819) 2 B. & Ald. 662;
106 E.R. 507 cited.”
However in a
drive to ensure substantial
justice the rigour of this
principle has been watered down
by this court in Sasu v.
Amua-Sekyi and Another
[2003-2004] 2 SCGLR 742 as per
holding (1) of the Headnote
therein, thus:
“(1) it was
settled rule of pleading that
the defence of estoppel per rem
judicatam should be specifically
pleaded where there were
pleadings; and where there were
no pleadings, it must be raised
by word of mouth at the earliest
possible stage of the
proceedings. And the failure to
plead estoppel per rem judicatam
as required under Order 19,
r 16 of the High Court (Civil
Procedure) Rules, 1954 (LN
140A), could be cured by
evidence on record such as would
make the plea obvious. Where on
the facts of the case, the plea
of res judicata was obvious, the
court would take notice of it
since the party raising the
objection would beheld to have
had knowledge of it and would
not be surprised by it. Thus in
the instant case, where the
appellant had sued both the
first and second respondents
together in the same matter, the
fact that the second respondent,
unlike the first respondent, had
pleaded res judicata in respect
of the 1995 action, had direct
impact and affected the whole
case. And the appellant had
been well aware of the existence
of res judicata as held by the
High Court (per Apaloo J) in his
judgement in respect of the 1995
action because the appellant,
had himself, tendered in the
instant case, that judgment in
evidence. Furthermore, the
Court of Appeal had, in the 1987
judgement, affirmed that fraud,
as alleged by the then defendant
(the appellant in the instant
case), had never been proved.
And even thought the appellant
had taken number of actions
based on the same facts rather
than resorting to an appeal,
that did not prevent the
respondents from relying on res
judicata Dedeke v Williams
(1944) 10 WACA 164 per Brooke J
at 166 and Agyako v Nazir Zok
(1944) 10 WACA 277 per Kingdom
CJ at 280 cited.”
It must never
be forgotten that the principle
of estoppel per rem judicatam
has never been stated in
absolute terms, for its
formulation has often been made
subject to the requirements of
justice. And every rule,
statutory or at common law has
an object to be attained
thereby, which should never be
lost sight of.
The object of
the principle of res judicata is
interest reipublicae ut sit
finis litium. But where the
party who could curtail the
litium by insisting on estoppel
per rem judicatam,`
either by failing to have that
issue set down and determined
distinctly ahead of the trial on
the merits or to object to the
adduction of further evidence on
the issue, suffers contrary and
fuller evidence to be led
thereon and thereby allowing a
relitigation of the res judicata,
the trial court cannot discount
the further evidence and
restrict itself to the res
judicata, see by analogy
Scanship (Gh) Ltd v. Effasco Ltd
(2001-2002) SCGLR 70. At p. 79
Atuguba JSC delivering the
judgment of this court held as
follows:
“It was also
submitted that the courts below
erred in awarding to the
plaintiffs damages higher than
warranted by the contractual
limitation as to liability as
per the Hague Rules. In any
event, the evidence of the
higher damages for breach of
contract awarded in favour of
the plaintiffs which might have
been inadmissible as irrelevant
under section 5(1) of the
Evidence Decree, 1975 was let in
without objection and was
rightly considered by the courts
below: see Edward Nassar Co Ltd
v. McVroom [1996-97] SCLR 468,
holding (1) of the headnote
which states as follows:
“...if a
party failed (as required by the
Evidence Decree, 1975 (NRCD 323)
to object to the admission of
evidence which in his view,
ought not to be led, he would be
precluded by section 5(1) of the
Decree to complain on appeal or
review about the admission of
that evidence unless the
admission had occasioned a
substantial miscarriage of
justice. Factors helping to
determine whether or not a
substantial miscarriage of
justice had occurred have been
set out in section 5(2).
Consequently, where evidence in
respect of an unpleaded fact had
been led without objection, the
trial court was bound to
consider that evidence in the
overall assessment of the merits
of the case, unless that
evidence was inadmissible per
se. An appeal or a review
against the judgment might
succeed only where it was
established that the admission
had occasioned a substantial
miscarriage of justice. In the
instant case, the evidence on
the building permit, certificate
of occupancy and the age of the
house did not constitute
inadmissible evidence per se.
Since no objection to them was
taken at the trial, the trial
judge and the Court of Appeal
had rightly considered them as
part of the evidence in the
overall assessment of the case;
and the appellant had failed in
establishing that the admission
of that evidence had occasioned
a substantial miscarriage of
justice.””
For the
foregoing reasons the courts
below erred in law in feeling
hardbound by the judgment of the
Sekondi District Court in the
face of the further and
unobjected evidence to the
contrary. All the relevant
evidence led in the action
caught to have been considered
and if that were done the
co-defendant’s counterclaim was
unsustainable. The fact of
secession by the defendants from
the Pitsir Kwaata Anona family
as opposed to a mere split by
way of disagreement on an issue,
has clearly been established on
the evidence in this case.
Having seceded from the Pitsir
Akwaata Anona family, neither he
nor his predecessor Kofi Mensah
could thereafter claim headship
of that same family,as if no
secession had occured.
We
accordingly allow the appeal and
dismiss the co-defendant’s
counterclaim.
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) R. C. OWUSU (MS)
JUSTICE OF THE SUPREME
COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
MICHAEL
ARTHUR-DADZIE ESQ. FOR THE
PLAINTIFF /RESPONDENT
/APPELLANT.
PHILIP
NKRUMAH ESQ. FOR THE
DEFENDANTS/ APPELLANTS/
RESPONDENTS.
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