OPANYIN KOFI AMONOO AND 3 OTHERS vs. NANA AFARI TWAKO VI & 2 OTHERS AND OSABARIMA KWESI ATTA II & OGUAA TRADITIONAL COUNCIL [2011]DLCA5337

OPANYIN KOFI AMONOO AND 3 OTHERS vs. NANA AFARI TWAKO VI & 2 OTHERS AND OSABAR... [2011]DLCA5337

Date	2011-11-03
Suit No.	CIVIL APPEAL NO. H1/151/2010
Citation No.	[2011]DLCA5337

QUAYE JA –PRESIDING

MARFUL-SAU JA

HONYENUGA JA

[2011]DLCA5337
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													<main id="main" class="content" style="min-height: 60rem" >OPANYIN KOFI AMONOO AND 3 OTHERS<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>NANA AFARI TWAKO VI &amp; 2 OTHERS<o:p></o:p>(DEFENDANTS/
RESPONDENTS)<o:p></o:p>AND
OSABARIMA KWESI ATTA II &amp; OGUAA TRADITIONAL
COUNCIL (CO-DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO.
H1/151/2010&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; &nbsp; &nbsp; &nbsp;3RD
NOVEMBER, 2011<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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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>MARFUL-SAU,
JA: - This appeal is taken against the judgment
of the High Court sitting at Cape Coast on the 7th of July 2009. The
plaintiffs /appellants referred in this judgment as appellants by their writ of
summons filed on the 27th July 2006 claimed one relief against the
defendants who are the respondents in this appeal. The relief was simply thus:-<o:p></o:p>&nbsp;‘’i)an order directed at the 3rd
defendant to have the name of J. S. Haizel removed from the National Register
of Chiefs on the grounds of fraud.’’<o:p></o:p>The
brief facts of the case are that the 1st respondent forwarded information on
J.S. Haizel, alias Osabarima Kwesi Atta II, the 1st co-respondent herein to the
National House of Chiefs for insertion in the national register of chiefs. The
information contained in the Chieftaincy Declaration Forms (CDF 1B), was to be
vetted by the 2nd respondent before its submission to the 3rd
respondent. According to the appellants the 1st respondent in completing
Form CDF 1B, fraudulently misrepresented answers to question No. 6 and 7 as
contained in the Form. It was the case of the appellants that on the 20th
July 1998, one Ekow Garbrah and three others filed a petition in the Judicial
Committee of the 2nd respondent house, challenging the 1st
co-respondent’s nomination and election as the Omanhene of Oguaa.<o:p></o:p>This
information according to the appellants were suppressed by the 1st
and 2nd respondents in the Form transmitted to the 3rd
respondent house to get the 1st co-respondent name inserted in the register of
chiefs. The record of appeal revealed that before the transmission of the Form
to the 3rd respondent house, the 1st co- respondent had obtained an
order of Mandamus from the High Court to compel the 2nd respondent
house to forward information on his election and enstoolment to the 3rd
respondent house for registration.<o:p></o:p>The
order of Mandamus which is at page 130 of the record of appeal is dated the 15th
June, 1999 and has the following particulars: <o:p></o:p>&nbsp;‘’IT IS HEREBY ORDERED that order of Mandamus
be and is hereby granted compelling the Respondent Central Regional House of
Chiefs to comply with section 51(1) of the Chieftaincy Act 1971 (Act 370) in
transmitting the information of the enstoolment of the applicant to the
National House of Chiefs for that House to comply with section 48 (2) of Act
370 in inserting the applicants name in the National Register of Chiefs.’’<o:p></o:p>In
the statement of claim the appellants particularised the fraud against the 1st
respondent as follows:-<o:p></o:p>a)
Fraudulently stating that there was no case pending against the said J.S.Haizel
when indeed there was.<o:p></o:p>b)
Fraudulently stating that the said J.S Haizel was in possession of the stool
properties (including the Black Stool) when indeed he was not.<o:p></o:p>The
record of appeal again revealed at page 45 that on the 23rd of March
2007 the 1st respondent personally filed a process in this suit
headed ‘’ NOTICE OF INTENTION NOT TO CONTEST CASE.’’ The body of this process
read in part as follows:-<o:p></o:p>&nbsp;‘’Please take notice that, I Nana Afari Twako
the 1st defendant in this case has no intention of contesting this
case, since I have no defence to the case. Further take notice that I have not
engaged Mr. Joseph Amowee Dawson or any other Lawyer to file any Notice of
Appearance on my behalf and / or represent me in court.’’<o:p></o:p>In
fact since appellant’s pleadings before the court specifically cited the 1st
respondent as the person who committed the fraud, I expected the court to have
entered judgment for the appellant on receipt of the above process filed by the
1st respondent, to conclude the matter at least in the High Court.
For reasons which I do not find on record, the case preceded even after the 1st
respondent had admitted appellants claim. At page 67 of the record is a motion
filed by counsel for appellants praying for judgment on admissions, as a result
of the process filed by the 1st respondent, but I have searched the
record and it seems this application was not pursued either by counsel.<o:p></o:p>The
appellants’ application for directions filed on the 20th January
2009 at page 121 of the record settled the following issues for trial:-<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">i)