FYNIBA AND OTHERS vs. SEKYIWA; AND FYNIBA vs. ESSAABA; AND FYNIBA vs. SEKYIWA (CONSOLIDATED) [1989]DLCA589

FYNIBA AND OTHERS vs. SEKYIWA; AND FYNIBA vs. ESSAABA; AND FYNIBA vs. SEKYIWA... [1989]DLCA589

Date	1989-07-13
Suit No.
Citation No.	[1989]DLCA589

AMUA-SEKYI J.S.C.

LAMPTEY J.A

ESSIEM J.A.

E. B. ODURO FOR THE APPELLANTS.

E. F. SHORT FOR THE RESPONDENT.

[1989]DLCA589
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													<main id="main" class="content" style="min-height: 60rem" >FYNIBA AND OTHERS vs.
SEKYIWA; <o:p></o:p>AND<o:p></o:p>FYNIBA vs. ESSAABA; <o:p></o:p>AND<o:p></o:p>FYNIBA vs. SEKYIWA
(CONSOLIDATED) <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1989-90] 1 GLR 426<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
13 JULY 1989<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

E. B. ODURO FOR THE APPELLANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMUA-SEKYI J.S.C., LAMPTEY AND ESSIEM
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.S.C.<o:p></o:p>The
litigation between the parties started in 1971 when one Kobina Awotwi, also
called Frederick Swanzy, issued a writ in the High Court, Cape Coast against
the nine children of the late Kwamena Nuamah, also called Thompson, for a
declaration of his title to a house on Kotokuraba Road, Cape Coast numbered F
84/3. The house was built by the said Kwamena Nuamah on land which, Awotwi
alleged, was the subject of a gift from Kwasi Nuamah, otherwise known as Regent
Thompson, to his wife Aba Kraba and her children. Kwamena was one of the five
children who benefited from the gift of the land. The capacity in which Awotwi
sued was that of head of the Anona family of Cape Coast of which Aba Kraba and
her children were members, and his contention was that the house was family
property which the said Kwamena could not lawfully devise to his children under
his will.<o:p></o:p><o:p>&nbsp;</o:p>Awotwi
died before the matter came to trial and was substituted by Aba Sekyiwa,
daughter of Essie Amoasiwa, one of the five children of Aba Kraba. Osei-Hwere
J. (as he then was) who tried the suit found as a fact that the gift of the
land was to the children only and held, following Mensah v. Lartey [1963] 2
G.L.R. 92, S.C, that the house was the property of the children and their
descendants. He dismissed the action. A counterclaim by the defendants for
certain reliefs was also dismissed.<o:p></o:p><o:p>&nbsp;</o:p>There was
no appeal from the decision. However, soon thereafter a new writ was taken out
in the name of Essie Amoasiwa. She sued as “the sister, customary successor and
the head of the immediate family” of Kwamena and asked for a declaration that
the house belonged to the maternal family. The defendants filed a defence to
the action in paragraphs 11 and 12 of which they pleaded the judgment of
Osei-Hwere J. (as he then was) and averred that Amoasiwa was estopped by the
said judgment from bringing the action. In her reply Amoasiwa admitted the
judgment but contended that since she had sued as the head of the immediate
family the judgment against the head of the wider family did not bind her.<o:p></o:p><o:p>&nbsp;</o:p>The point
would seem to be covered by Krabah v. Krakue [1963] 2 G.L.R. 122, S.C. which
decided that the head of the wider family could sue to protect property vested
in the immediate family, a decision which is well in tune with the earlier case
of Kwan v. Nyieni [1959] G.L.R. 67, C.A. Any decision given in such an action
would be binding on all members of the family. If Order 25, rr.2 and 4 of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A) had been invoked and the
issue of estoppel set down for argument before trial much expense would have
been saved. Unfortunately, this was not done and evidence was led on the whole
case. Aba Sekyiwa who, incidentally, was the very person who had been
substituted for Awotwi in the earlier suit, represented her mother and gave
evidence as her only witness. Throughout, she never once mentioned her
grandmother, Aba Kraba, as being one of the donees of the gift from Regent
Thompson. Of the nine defendants, only the third, Kweku Nuamah, gave evidence.
On the adjourned date, Mr Hammond, counsel for the defendants, failed to turn
up. The seventh defendant, Aba Fyniba, informed the court that she could not
find Mr Hammond. Mr Sackeyfio, counsel for the plaintiff, asked the court to
take it that the defendants had closed their case. This request was acceded to,
and the case for the defendants was closed without the court having sight of
the judgment of Osei-Hwere J. (as he then was). The decision of Wuaku J. (as he
then was) who heard this second suit was that the property belonged to the
maternal family.<o:p></o:p><o:p>&nbsp;</o:p>The
judgment of Osei-Hwere J. (as he then was) was not without its ambiguities.
While relying on Mensah v. Lartey (supra) to find that the land became the
property of the children of the donor and all their descendants, he also held
that Kwamena became the usufructuary owner of the house and that although the
device to his children failed they alone were entitled to succeed to the
property. He said:<o:p></o:p>