APPIAH II vs. BOAKYE [1994]DLSC5208

Date	1994-02-01
Suit No.	[1994 - 95] 2 G B R 921 – 934 SC
Citation No.	[1994]DLSC5208

FRANCOIS JSC

ABBAN JSC

AMUA-SEKYI JSC

AIKINS JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

WIREDU JSC

K KODUA FOR THE APPELLANT.

PETER ADJETEY WITH HIM WILLIAM ADDO FOR THE RESPONDENT

[1994]DLSC5208
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													<main id="main" class="content" style="min-height: 60rem" >APPIAH II<o:p></o:p>vs.<o:p></o:p>BOAKYE<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1994 - 95] 2 G B R 921 – 934 SC&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 1 FEBRUARY 1994<o:p></o:p>

PETER
ADJETEY WITH HIM, WILLIAM ADDO FOR THE RESPONDENT.<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 1.0pt 0in">

FRANCOIS
JSC, ABBAN JSC, AMUA-SEKYI JSC, AIKINS JSC, BAMFORD-ADDO JSC, HAYFRON-BENJAMIN
JSC, WIREDU JSC<o:p></o:p>

</div>ABBAN JSC. <o:p></o:p>The
Court of Appeal on 24 January 1991 reversed the ruling of the High Court,
Kumasi given in favour of the appellant. It is against that decision of the
Court of Appeal that the appellant appealed to this court.<o:p></o:p>The
appellant was a defendant in the High Court. The respondent (hereinafter
referred to as the plaintiff) by his writ of summons claimed:<o:p></o:p>“(a) A declaration that one Yaw Manu
(deceased) late of Abenase-Ejisu and Yaw Mensah (deceased) late of
Abenase-Ejisu the uterine brothers of the defendant were members of the
plaintiff’s maternal family.<o:p></o:p>(b) A declaration that consequent upon
a statutory declaration by the defendant, of unknown date, by which the
defendant renounced any or all family ties with the plaintiff, the properties
of Yaw Manu (deceased) and Yaw Mensah (deceased) which become the family
properties of the plaintiff and which were handed over to the defendant as
customary successor of the said Yaw Mensah (deceased) should be surrendered by
the defendant to the plaintiff.”<o:p></o:p>The
plaintiff sued as the head of the maternal family of one Kwabena Dua Agyemang
of Asenie clan of Abenase village in the Ejisu Traditional area. He alleged in
his statement of claim that the defendant and his uterine brothers, Yaw Manu
and Yaw Mensah both deceased were children of one Adwoa Tawiah; and the latter,
Adwoa Tawiah, was a slave and was purchased into the plaintiff’s family. So by
virtue of the said purchase the defendant’s mother became a member of the
plaintiff’s family and so the defendant and his deceased brothers also became
members of the said family.<o:p></o:p>It
was further alleged by the plaintiff that the defendant was customarily
appointed by the plaintiff’s family to succeed to the properties of his two
uterine brothers, Yaw Manu and Yaw Mensah both of whom died intestate and were
buried at Abenase.<o:p></o:p>In
paragraph 9 of the statement of claim the plaintiff pleaded as follows:<o:p></o:p>“9. On some date in 1976, which is not
known to the plaintiff, the defendant hereto in an affidavit made a statutory
declaration to the effect that the defendant and his brothers and sisters
hailed from Mampong, Ashanti, and that the defendant’s mother belonged to the
Bretuo clan, defendant in effect denounced that the defendant was a member of
the plaintiff’s family.”<o:p></o:p>In
his statement of defence the defendant denied the plaintiff’s capacity to sue
in the first place; he further disputed that the plaintiff brought the action
for and on behalf of the plaintiff’s family as alleged in the statement of
claim. The relevance of these denials will be seen in due course.<o:p></o:p>The
defendant also denied that his mother was ever bought as a slave into the
plaintiff’s family and averred that she was a member of the Bretuo family of
Ashanti Mampong and gave the circumstances under which the mother came to
settle at Abenase where she was later married. Again, in paragraph 8 of the
defence he denied that it was the plaintiff’s family that appointed or made him
(the defendant) the customary successor to the movable and immovable properties
of the defendant’s two uterine brothers. It is also important to note the
defendant’s averments as contained in his statement of defence, paragraph 9; it
is stated as follows:<o:p></o:p>“9. The defendant denies the averments
contained in paragraphs 8 and 9 and 10 of the plaintiff’s statement of claim
and at the trial will put the plaintiff to strict proof.”<o:p></o:p>In
others words, the defendant was denying in the above paragraph 9 that he had
made such statutory declaration of the sort or of the kind alluded to by the
plaintiff in his statement of claim. Therefore the defendant intended, at the
trial, to demand from the plaintiff strict proof of that allegation.<o:p></o:p>The
plaintiff filed a short reply in which he simply stated that he “joins issue
with the defendant on the material averment in the defendant’s statement of
defence.” I must observe that from the pleadings several issues ought to have
been set out in the summons for directions but only one issue was set down by
counsel for the plaintiff. That was not satisfactory. However the plaintiff’s
counsel covered himself by adding the usual phrase “any other issues raised by
the pleadings.”<o:p></o:p>On
24 April 1977, the case came before the court and in the presence of counsel
for the parties the issues as set out in the summons for directions were
accepted by the High Court judge and adopted for trial. The learned High Court
judge on the same date directed the registrar to fix a date for the trial. The
case was fixed for trial on 13 July 1977 by the registrar in compliance with
the order of the High Court judge. But it was adjourned. Indeed, the trial of
the case was adjourned on several occasions.<o:p></o:p>While
the parties were still looking forward to a day when the trial would begin the
defendant, on 14 February 1980, that is, some three years after the issues had
been agreed upon, filed motion to dismiss the plaintiff’s action. The
defendant’s main ground for asking for an order of dismissal was that the case
“disclosed no reasonable cause or action.”<o:p></o:p>