ADOMAKO ANANE vs. NANA OWUSU AGYEMANG & 7 ORS [2014]DLSC6131

Date	2014-02-26
Suit No.	CIVIL APPEAL NO. J4/42/2013
Citation No.	[2014]DLSC6131

WOOD (MRS.) CJ

PRESIDING ANSAH J.S.C

YEBOAH J.S.C

BONNIE J.S.C

AKAMBA J.S.C

OBENG MANU JNR. ESQ FOR THE DEFENDANTS/RESPONDENTS/APPELLANTS.

EDWARD EGBLOGBE ANAGLATE FOR THE PLAINTIFF/APPELLANT/RESPONDENT.

[2014]DLSC6131
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													<main id="main" class="content" style="min-height: 60rem" >ADOMAKO ANANE<o:p></o:p>vs.<o:p></o:p>NANA OWUSU AGYEMANG &amp; 7 ORS<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">

CIVIL
APPEAL NO. J4/42/2013&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: 26TH FEBRUARY, 2014<o:p></o:p>

EDWARD
EGBLOGBE ANAGLATE FOR THE PLAINTIFF/APPELLANT/RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;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>WOOD
(MRS.), CJ <o:p></o:p>The oft quoted legal maxim
“Justice delayed is justice denied”, coined by the British politician, William
Gladstone (1809-1898), is no mere cliche. The right to fair trial in a timely
manner is neither a courtesy nor a favour, but a fundamental right. Protracted
delays in the administration of justice, impact negatively not only on those
who access the courts, such as the victims of crime, accused persons who are
acquitted at the end of their trial, parties in civil proceedings and their
privies, lawyers who practice before the courts but indeed the entire justice
system. The judicial history of this relatively simple family related land
matter, which was commenced in the High Court Kumasi, as far back as the 4th of
April 1974, provides an insight into the harmful effects of systemic delays in
the administration of justice. Regrettably, it has taken forty long years, a
whole generation, for this case to finally find its way into this court; the
court of last appeal. We hope court business shall always be managed in ways that
will not occasion a repeat of this parody of justice. <o:p></o:p>BACKGROUND
FACTS <o:p></o:p>The Plaintiff/ Appellant/
Respondent, (Respondent), a senior member of the immediate Asona family of
Asamankama-Offinso, acting on behalf of himself and the family, took out a writ
of summons against the Defendants /Respondents/ Appellants (Appellants) jointly
and severally for declaration of title to certain properties listed in a
schedule attached to the statement of claim, recovery of possession of those
properties and an order of perpetual injunction. This appeal relates to one of
these properties, the house numbered 0.1. 92, Ashanti-New Town, Kumasi. The
original claim which was in relation to all those properties was directed
against only two named executors of one Osei Hwirie, deceased, the person
around whom this entire controversy revolves. But, by an order of Anterkyi J,
both writ and statement of claim were amended to include the 3rd to 8th
Appellants, who are beneficiaries of the will of Hwirie. Again, in the course
of time, the Respondent limited the claim to only the house numbered 01.92. <o:p></o:p>The case presented by the
parties in this legal battle is in reality so uncomplicated that it is most
unfortunate that it has taken so long for it to be brought to closure. The
Respondent's case is that in 1921, Kwabena Amankwaa, deceased, the maternal
uncle of Hwirie, acquired plot No 0.192, from the Chief Commissioner of Kumasi
for a period of twenty-one years certain, and constructed a swish building
thereon. On his death intestate some six months to the expiry of the said lease
in 1942, Hwirie in his capacity as customary successor inherited the property,
as family property. However, some four years later, in 1946, Hwirie acquired
the self same property, from the Asantehene, this time round, in his personal
name, for a period of ninety-nine years. He pulled down the swish building and
constructed a sandcrete building which he however later devised under his will,
to the 3rd-8th Appellants as beneficiaries. The Respondents, contending that
the lease which Hwirie as customary successor subsequently acquired in 1946,
together with the building thereon, constituted family property and not his
self acquired property, sued on behalf of the family in protection of its
property. <o:p></o:p>Not surprisingly, the
Appellants countered the claim. They maintained that the family’s interest in
the property was completely extinguished when the late Amankwaa’s lease expired
in 1942. They further contended that with the property having lost its family
character altogether, Hwirie, was legally entitled to and did in fact take out
the subsequent lease in his individual capacity, and was indeed entitled to
dispose of it in the manner that he did, namely, as his self acquired property.
<o:p></o:p>As is to be expected, the
pleadings on both sides raised a number of pertinent triable issues, as is
borne out by both the summons for directions and additional issues. It took a
whole decade, after the commencement of the action, for judgment to be
pronounced by the High Court differently constituted. While the evidence was
received by Korsah J, who reserved judgment on 15th August 1980, the decision,
with the full reasons reserved, to be given at a later date, was delivered by
Okunnor J on the 21st of August 1986, nearly six years thereafter. But the
Respondent, who lost the action, would not wait for the promised reasons. Some
five days thereafter, aggrieved by the decision, he appealed to the Court of
Appeal; understandably, on the oft used omnibus ground that: <o:p></o:p>“The judgment is against
the weight of the evidence.” <o:p></o:p>For reasons not apparent
on the face of the record, this judicial promise by Okunnor J, that he would
provide the reasons for dismissing the claim, never came to be honoured. <o:p></o:p>Again, regrettably, it
took another two decades for the Court of Appeal to set aside Okunnor J's
decision, on the ground that when he took over the case from a previous judge;
he failed to formally adopt the proceedings before pronouncing the decision
complained of. The appellate court consequently ordered a de novo hearing. <o:p></o:p>When the parties appeared
before the new trial judge Debrah J for a fresh hearing as ordered, the learned
judge, relying on an agreement of the parties, decided to dispose of the entire
action by way of legal arguments only. He neither adopted the proceedings nor
took fresh evidence from the parties and their witnesses. He ruled: <o:p></o:p>“As things stand now, the
court </main>