OPANIN KWASI ASAMOAH vs. KWADWO APPEAH AND NANA OWUSU SENYA [2003]DLSC6435

Date	2003-12-17
Suit No.	CIVIL APPEAL NO. 8/2000
Citation No.	[2003]DLSC6435

BAMFORD-ADDO

(MRS) J.S.C. (PRESIDING)

KPEGAH J.S.C.

ATUGUBA J.S.C.

WOOD (MRS) J.S.C.

BROBBEY J.S.C.

J K KODUA FOR THE DEFENDANTS-APPELLANTS.

KWAME BOAFO FOR THE PLAINTIFF-RESPONDENT.

[2003]DLSC6435
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWASI ASAMOAH <o:p></o:p>vs.<o:p></o:p>KWADWO APPEAH AND NANA
OWUSU SENYA <o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO. 8/2000 &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; &nbsp;DATE: 17TH DECEMBER, 2003<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J K KODUA FOR THE
DEFENDANTS-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">

KWAME BOAFO FOR THE
PLAINTIFF-RESPONDENT. <o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <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">

BAMFORD-ADDO, (MRS) J.S.C.
(PRESIDING), KPEGAH J.S.C., ATUGUBA J.S.C., WOOD (MRS) J.S.C., BROBBEY J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

JUDGMENT<o:p></o:p>

</div>BAMFORD-ADDO,
J.S.C. <o:p></o:p>This
is an appeal against the judgment of the Court of Appeal dated 4 November 1997
which heard an appeal from the High Court's decision dated 4 November 1992. The
Judgment of the Court of Appeal admittedly was unfortunately very short. It
merely stated: <o:p></o:p>"By
court: having heard the submission of counsel for the parties, and having read
the record and considered the evidence, we are hereby satisfied that the
learned trial judge arrived at the right conclusion. We find no merit in the
appeal. In our opinion the appeal ought to be dismissed. It is dismissed."
<o:p></o:p>I
think that if submissions had been made before the Court of Appeal as confirmed
in the record of appeal at page 181, then it was the duty of the Court of
Appeal to have discussed and considered the issues raised and to have given a
considered opinion on those points, itself; rather than to simply rely on the
decisions and findings made by the trial High Court, however correct and
unimpeachable they may be. The practice adopted in the instant case is to be
deprecated and not to be encouraged by appellate courts. However, the appeal to
this court should be considered under the circumstances in this case. Both
grounds of appeal, as well as statements of case of both the appellants and the
respondent, have been filed in the exercise of the right of appeal granted by
law and should be exercised in the interest of justice. <o:p></o:p>The
grounds of appeal filed by the appellants on 20 January 1998 are:— <o:p></o:p>(a)
the Court of Appeal erred in law when it held that the judgment of the district
court dated 8th April 1981 could not operate as estoppel per rein judicatam
merely because the full reasons for the judgment were not incorporated in that
relevant exhibit which had been tendered at the trial and was part of the
record of proceedings; <o:p></o:p>(b)
that by the failure of the Court of Appeal to call for the reasons for the
judgment which was available at the district court, the Court of Appeal denied
itself the opportunity of having a look at the said reasons for the judgment
and that has resulted in a serious miscarriage of justice which ought not to be
allowed to stand uncorrected by the Supreme Court; <o:p></o:p>(c)
the defendants/appellants/appellants will seek the leave of the Supreme Court
to tender the said reasons for judgment in evidence by means of the appropriate
procedure if need be; and <o:p></o:p>(d)
additional ground of appeal filed, is that judgment of the Court of Appeal is
against the weight of evidence. <o:p></o:p>The
brief facts of this case are that Opanyin Kwaku Asare and Opanyin Kwame
Abebrese were brothers of full blood and early in life they worked together as
Wood Sawyers and earned substantial income. The plaintiff in this case was the
customary successor to the late Opanyin Kwaku Asare and brought this action
against the defendants who are children of the said Opanyin Kwaku Asare,
hereinafter to be called the defendants. They are also beneficiaries under the
Will of their deceased father referred to above. <o:p></o:p>The
plaintiff sought a declaration that House No. ABH, 7 Block B, Abuahia, Ashanti
was family property and sought perpetual injunction restraining the defendants,
their agents, servants, licenses and assigns from interfering with the house in
dispute. He claimed that the said house was not the self-acquired house of the
testator and so he could not devise same to the defendants in his Will. That
the house was family property. <o:p></o:p>As
I said, the plaintiff was the customary successor to Opanyin Kwaku Asare
(deceased) who in his last Will and testament purported to devise the said
House No. ABH 7, Block B, Abuahia in his hometown, to the defendants, even
though the house was family property which belonged to Opanyin Kwaku Abebrese
(deceased) and whom Opanyin Kwame Asare succeeded in 1973. The defendants being
executors of the said Will containing the devise of House No. ABH 7 Block B
Aboahia, claimed that this house was the self-acquired property of the late
Kwaku Asare and not family property. They also counterclaimed for one-half of
House No. O.1. 119, Ashanti New Town, Kumasi; one-half of a Cocoa farm at
Oldmankrom, one-half of flock of sheep and poultry at unnumbered store-storey
building at Oldmankrom, near Tepa, Ashanti; and one-half of the said unnumbered
house, claiming that late Opanyin Kwaku Asare and his brother late Kwame
Abebrese jointly acquired those property. <o:p></o:p>This
claim, however, was dismissed by the High Court as unproved and House No. 0.1.
119, Ashanti New Town, Kumasi was found to be family property. In respect of
house No. ABH 7 Block B, the court held that the house was acquired and owned
by Kwame Abebrese, not the testator Kwaku Asare, and was thus family property. <o:p></o:p>It
is to be not</main>