ALHAJI TETTEY KWAO AND TWO ORS vs. NII TEI ADUMUAH II AND ANOR. [2000]DLSC6149

Date	2000-04-12
Suit No.	C. A. NO. 5/99.
Citation No.	[2000]DLSC6149

AMPIAH J.S.C. (PRESIDING)

KPEGAH J.S.C.

ADJABENG J.S.C.

ACQUAH J.S.C.

AKUFFO (MISS) J.S.C.

MRS. I. QUANSAH FOR APPELLANT

MR. NSIAH-AKWETEY FOR RESPONDENTS.

[2000]DLSC6149
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													<main id="main" class="content" style="min-height: 60rem" >ALHAJI TETTEY KWAO AND
TWO ORS<o:p></o:p>vs.<o:p></o:p>NII TEI ADUMUAH II AND
ANOR.<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">

C. A. NO. 5/99.&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 12TH
APRIL, 2000<o:p></o:p>

MR.
NSIAH-AKWETEY FOR RESPONDENTS.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AMPIAH, JS.C.: <o:p></o:p>The
Plaintiffs who are all from Appolonia, claim to be the respective heads of the
ruling clans of Appolonia and the Kingmakers and/or elders of the Appolonia
Stool. The Defendant is the incumbent occupant (Chief) of Appolonia and the
Co-Defendant is the Paramount Chief of the Kpone Traditional Area of which
Appolonia is a part. For sometime now the Defendant has been alienating lands
at Appolonia to certain individuals and companies or bodies without reference
to the Plaintiffs. The Plaintiffs took objection to these alienations and
protested to certain authorities about the conduct of the Defendant. The
Defendant claimed that as the Plaintiffs were neither his Kingmakers nor elders
of his Stool, they were not entitled to be consulted in the alienation of land
at Appolonia for any purpose. <o:p></o:p>On
the 1st day of September, 1994, ALHAJI TETTEH KWAO and two other Plaintiffs
(now Appellants) issued a Writ of Summons against NII TEI ADUMUAH II of Appolonia,
Defendant (now Respondent) for— <o:p></o:p>“(a) Declaration that the lands of
Appolonia can only be alienated with the consent and concurrence of the
Plaintiffs clan. <o:p></o:p>(b) Account of all monies received
from the sand winning for all the year. <o:p></o:p>(c) Perpetual Injunction to restrain
Defendant his agents/servants from further alienating Appolonioa lands without
the consent and concurrence of the Plaintiffs”. <o:p></o:p>The
Respondent entered a conditional appearance and applied on 14th September, 1994
to have the Writ of summons and Statement of Claim set aside. The application
was heard on 7th February, 1995. The relief for account was struck out leaving
the two other reliefs to proceed to trial. <o:p></o:p>In
due course NII TETTEH OTU II of Kpone was joined as Co-Defendant (now also
Co-Respondent). The necessary processes were filed by all the parties and
summons for Directions taken. The case was heard at the High Court, Tema and
judgment given for the Plaintiffs on 28th September, 1995 granting the 1st
relief and the order for Injunction. <o:p></o:p>The
Defendants appealed to the Court of Appeal against the judgment on several
grounds; however, only two of the grounds were argued. <o:p></o:p>On
13th March, 1997 the Court of appeal allowed the appeal and set aside the
judgment of the High Court by a majority of two to one; their Lordships,
LAMPTEY and BENIN, JJ.A. in the majority with ESSILFIE-BONZIE dissenting. <o:p></o:p>It
is against this judgment that the Plaintiffs now appeal to the Supreme Court. <o:p></o:p>GROUNDS OF APPEAL <o:p></o:p>The
grounds of appeal by the appellants are set out in their Notice of appeal.
These are:— <o:p></o:p>(a) “That the majority of the court of
Appeal misdirected itself in law by holding that the action was chieftaincy
cause or matter so, the High Court had no jurisdiction to try the case. Raised
as preliminary point before the High Court”. <o:p></o:p>PARTICULARS OF MISDIRECTION: <o:p></o:p>That
as a resolution of the case will involve a determination of the existence of
ruling houses or was then it is a chieftaincy case or matter. <o:p></o:p>(b)
The decision of the Court of Appeal is against the weight of evidence. <o:p></o:p>(c)
That the decision of the Court of Appeal allowing the appeal and in effect
setting aside the injunction granted by the Trial Court was wrong as the two of
the Court of Appeal Judges accepted that there was evidence on the record to
the effect that the Plaintiffs have to be consulted by the Defendants on grants
of Appolonia Lands”. <o:p></o:p>The
majority judgment of the Court of appeal is that:— <o:p></o:p>(a)
The High Court did not have jurisdiction to determine the suit and <o:p></o:p>