FLORENCE NAADU LARTEY & 3 ORS. vs. ABBAN OTOO. [2001]DLSC2365

Date	2001-02-21
Suit No.	C.A. NO. 15/98.
Citation No.	[2001]DLSC2365

AMPIAH J.S.C. (PRESIDING)

KPEGAH J.S.C

ADJABENG J.S.C.

ACQUAH J.S.C

ATUGUBA J.S.C.

MR. AMARKAI AMARTEIFIO WITH HIM AHMED FOR APPELLANTS.

RESPONDENT ABSENT - NO REPRESENTATION.

[2001]DLSC2365
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													<main id="main" class="content" style="min-height: 60rem" >FLORENCE NAADU LARTEY &amp; 3 ORS.<o:p></o:p>vs.<o:p></o:p>ABBAN OTOO.<o:p></o:p>[SUPREME
COURT]<o:p></o:p>C.A.
NO. 15/98.<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">

21st February 2001 <o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
AMARKAI AMARTEIFIO WITH HIM AHMED FOR APPELLANTS.<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">

RESPONDENT
ABSENT - NO REPRESENTATION.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>ADJABENG,
J.S.C.:<o:p></o:p>&nbsp;This is an appeal against the unanimous
decision of the Court of Appeal which had dismissed the appellants' appeal and
upheld the decision of the trial High Court dismissing their claim for grant of
letters of administration in respect of their late father's estate. The trial
High Court held that the issue as to whether it was the maternal or the
paternal family of the appellants' late father that was entitled to administer
the estate of their late father, Edward Daniel Lartey, had been decided earlier
in 1955 by the High Court, Accra, in favour of the respondent's predecessor
called Ben Quao Mensah. As such, the appellants were estopped per rem judicatam
by the said earlier decision from relitigating the matter. That this was so,
especially, as the appellants never appealed against the said earlier decision
to enable an appellate court set it aside.<o:p></o:p>The
1st, 2nd and 3rd plaintiffs/appellants are the children of the late Edward Daniel
Lartey whose estate was the subject of the various actions, and the 4th
plaintiff/appellant is the grand-niece of the said deceased. The appellants
took this action at the High Court, Accra, claiming:<o:p></o:p>"1. A declaration that the
plaintiffs are entitled to administer the estate of Edward Daniel Lartey.<o:p></o:p>&nbsp;2. Perpetual injunction to restrain the
Defendant from interfering with the administration of the estate of Edward
Daniel Lartey." <o:p></o:p>The
defendant/respondent, Abban Otoo, is a member of the deceased's maternal
family. In an action which immediately preceded the action now before us, the
appellants sued the respondent's predecessor, Ben Quao Mensah, in respect of
the same estate of their said late father. When the said Ben Quao Mensah died
in the course of that litigation, the respondent herein was appointed by the
maternal family to apply to be substituted for the said Ben Quao Mensah. This
action was, however, later struck out. The appellants then applied for letters
of administration to administer their late father's estate. The respondent,
obviously on the authority of the maternal family, caveated. This resulted in
the present action being taken.<o:p></o:p>The
trial court, after taking evidence from the 2nd and 4th plaintiffs/appellants,
and from the defendant/respondent, gave judgment against the appellants and
dismissed their action. As stated earlier in this opinion, the trial High Court
dismissed the appellants' action because the High Court, Accra, presided over
by Lingley, J., had in 1955 decided, in an earlier action between the 1st, 2nd
and 3rd plaintiffs/appellants herein and the defendant/respondent's
predecessor, Ben Quao Mensah, mentioned earlier, the same issue joined between
the parties in the present action. That is, that as between the appellant's
paternal family and the respondent's maternal family, it is the respondent's
maternal family that is entitled to administer the estate of the appellants'
said late father. The trial judge herein relied on the decided authorities of
Foli &amp; Ors. vrs. Agya Atta &amp; Ors. (consolidated) [1976] 1 GLR 194 at
195, C.A. and Larinde vrs. Afiko (1940) 6 W.A.C.A. 108 at 109-110.<o:p></o:p>The
appellants appealed to the Court of Appeal against the trial Court's decision
on the sole ground that the trial Court was wrong in holding that they were
estopped per rem judicatam from relitigating the matter which had already been
decided by Lingley, J. in 1955. In a unanimous decision, the Court of Appeal
dismissed the appellants' appeal and upheld the trial Court's decision.<o:p></o:p>Still
not satisfied, the appellants appealed to this Court on the same ground
canvassed in the Court of Appeal, and one other ground. This other ground is
that:<o:p></o:p>"2. The learned Justices of
Appeal erred in law by not holding that the decision of Lingley, J. in suit No.
174/55 Re Estate of Edward Daniel Lartey; Ben Quao Mensah vrs. Florence Naadu
Lartey that Edward Daniel Lartey is a Ga Mashie Man was over ruled by the
Supreme Court decision in MENSAH VRS. LARTEY (1963) 2 GLR 92 which held that
Edward Daniel Lartey is an Osu Man whose estate should devolve
patrilineally."<o:p></o:p>Elaborating
on the above ground of appeal, the appellants in their statement of case argue
as follows:—<o:p></o:p>"In 1955 in Suit No. 174/55,
MENSAH VRS. LARTEY, Lingley, J. sitting at High Court expressed the opinion
that the estate of EDWARD DANIEL LARTEY should be inherited matrilineally; in
1963 the Supreme Court decided in MENSAH VRS. LARTEY, 2 GLR 92 that the
inheritance of the same estate should be patrilineal. Surely as between the
decision of the Supreme Court in 1963 in rem and the opinion of the High Court
in 1955 in respect of the same estate, the 1963 decision should prevail and the
customary law of Osu should have been applied to give the present
Applicants/Appellants the right to administer their father's estate as Osu
Customary Law prescribes."<o:p></o:p>In
reply, the respondent, in his statement of case, argues that: <o:p></o:p>"The Supreme Court opinion in
1963 and the decision of the High Court in 1955 in Suit No. 174/55, Mensah vrs.
Lartey, are not in conflict with each other. The action before the Supreme
Cour</main>