EBUSUA PANYIN KWA KAKRABA vs. KWESI BO [2012]DLSC6158

Date	2012-04-18
Suit No.	CIVIL APPEAL SUITE NO: CA. J4/50/2010
Citation No.	[2012]DLSC6158

ADINYIRA (MRS.) JSC (PRESIDING)

ROSE OWUSU

JSC DOTSE JSC

ANIN YEBOAH JSC

GBADEGBE JSC

SOMUAH ASAMOAH FOR THE APPELLANT.

CAB ADDAE FOR THE RESPONDENT.

[2012]DLSC6158
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													<main id="main" class="content" style="min-height: 60rem" >EBUSUA
PANYIN KWA KAKRABA <o:p></o:p>(PLAINTIFF/APP./APPELLANT)<o:p></o:p>vs.<o:p></o:p>KWESI BO <o:p></o:p>(DEFENDANT/RESP.
RESP.)<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">

[SUPREME COURT, ACCRA]<o:p></o:p>

<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 SUITE NO: CA.
J4/50/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 18TH APRIL, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>SOMUAH ASAMOAH FOR
THE APPELLANT. <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">

CAB
ADDAE 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">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-layout-grid-align:none;text-autospace:none;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ADINYIRA
(MRS.) JSC (PRESIDING), ROSE OWUSU, JSC DOTSE JSC, ANIN YEBOAH JSC, GBADEGBE
JSC<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">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;mso-layout-grid-align:none;text-autospace:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ANIN
YEBOAH, JSC <o:p></o:p>This
is an appeal from the Court of Appeal, Accra, which affirmed the judgment of
the High Court, Cape Coast. In these proceedings the appellant herein who sued
as plaintiff claimed for a declaration to the effect that as an overall head of
the Royal Adwenadzi family of Edukrom he is the proper person to deal with the
lands in Edukrom. Other reliefs to the effect that the land the subject matter
of the dispute is vested in the overall head of family by virtue of a judgment
and other reliefs which are ancillary were also sought. The plaintiff endorsed
his writ as suing for himself and on behalf of the Royal Adwenadzi family of
Edukrom. <o:p></o:p>In
a lengthy statement of claim which accompanied the writ of Summons, the
appellant traced the root of title of the family to pre-colonial times and
asserted that ever since his ancestors migrated from Techiman to settle on the
land, they had enjoyed undisturbed possession. According to the appellant it
has always been the custom that the land in dispute is vested in the overall
head of the family and the respondent herein (as the defendant at the High
Court), who is an ordinary member of the family has no right to asset ownership
of the land to alienate portions thereof. Several suits which the appellant
claims to have been decided in his favour were pleaded to establish that the
respondent had no right to assert ownership as he was not the overall head of
family and for that matter the respondent is estopped per rem judicata by
virtue of the judgment of William J. sitting at the High Court, Cape Coast. He
further alleged that he was the family member who performed the customary rites
concerning the burial of Kwesi Yaa and bore the funeral expenses. By that very
fact he was the customary successor of Kwesi Yaa and therefore the head of the
Royal Adwenadzi family of Edukrom. <o:p></o:p>The
respondent as defendant at the trial court in response to the statement of
claim filed a statement of defence traversing most of the allegations. He
denied the appellant's leadership of the family even though he admitted that
both of them are members of the same family. He pleaded that his section or
branch of the Adwenadzi family, (that is, Edu Abekwa section) were the original
settlers on the Edukrom land and they were later joined by the appellant's section,
that is Apentsen Kwakwa section. He contended that as original settlers, the
respondents section is the rightful one to select an overall head of the
amalgamated family and the only instance where a member of the appellant's
section was appointed was due to the fact that there was no elderly person from
the respondent's section. The respondent also pleaded the decision of Williams
J, the Abura Traditional Council judgment and the Circuit Court case which
ended at the Court of Appeal involving the two sections, in support of his
case. <o:p></o:p>At
the trial court, few issues were set down to be determined before Justice Nana
Gyamerah Tawiah. After careful evaluation of the rival stories the learned
trial judge held that after the tenure of Kwesi Bo as the overall head of
family, no person (neither the appellant nor the respondent had been lawfully
appointed as the overall head of the Royal Adwenadzi family. The learned trial
judge ordered that none of the parties should hold himself out as the overall
head of the family until a new head of family is validly appointed. <o:p></o:p>The
appellant lodged an appeal to the Court of Appeal, Accra, which heard the
appeal and dismissed it as without merits. <o:p></o:p>In
dismissing the appeal, the Court of Appeal was of the view that the appellant
as plaintiff failed woefully to discharge the burden of proof that he was the
overall head of the Adwenadzi family. The Court of Appeal also relied on the
several judgments pleaded by both parties in their respective pleadings and
tendered at the trial c</main>