NYAME vs. KESE ALIAS KONTO

The plaintiff, Ebusuapanin Kofi Nyame of the Aduana family of Sekyedumase-Ashanti, filed a suit at the Kumasi Traditional Council (KTC) against Ebusuapanin Osei Kese of the Oyoko family and the queenmother, Yaa Kune alias Yaa Fosuwaa, both of Sekyedumase-Ashanti. The plaintiff sought declarations that the Aduana family has the right to ascend the Sekyedumase stool and that the second defendant was not properly enstooled as queenmother. The dispute traces back to a 1946 suit at the Kumasi Divisional Council (KDC) which decided in favor of the Oyoko family as founders of Sekyedumase. Subsequent petitions and decisions, including the destoolment of Nana Kofi Takyi (Aduana family) and enstoolment of Oyoko family members, led to the present litigation. The defendants raised the plea of res judicata based on the 1946-47 judgments, asserting the plaintiff was estopped from reopening the matter.

JUDGMENT OF EDWARD WIREDU JSC. This opinion is a concurring contribution to the able and erudite opinion about to be read by my brother Acquah JSC. The principle of res judicata is now a well established and acceptable principle in judicial proceedings. Its objective is to prevent an abuse of the court’s process by estopping a party to a litigation against whom a court of competent jurisdiction has already determined the issue now being raised by reopening the same subject matter for further litigation. The principle can also be raised against privies of the original parties. Since its objective is to prevent an abuse of the court’s process there is no need to go into the exercise of hearing the whole evidence on the matter again, otherwise its purpose would be defeated. It can legitimately be determined on an affidavit evidence in appropriate circumstances. Where it is necessary to go into the matter by hearing evidence, such evidence must be restricted to that issue only...