SAMUEL OBLIE, CHRISTOPHER OBLIE AND MENSAH OBLIE vs. TETTEH LANCASTER [2016]DLSC2872

Date	2016-03-15
Suit No.	CIVIL APPEAL NO. J4/29/2015
Citation No.	[2016]DLSC2872

ANIN-YEBOAH JSC (PRESIDING)

BAFFOE – BONNIE JSC

AKAMBA JSC

APPAU JSC

PWAMANG JSC

NICK M. AFESI ESQ. FOR THE PLAINTIFFS/APPELLANTS /APPELLANTS.

ERIC NARH ESQ. FOR THE DEFENDANT/RESPONDENT /RESPONDENT.

[2016]DLSC2872
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													<main id="main" class="content" style="min-height: 60rem" >SAMUEL OBLIE,
CHRISTOPHER OBLIE AND MENSAH OBLIE<o:p></o:p>vs.<o:p></o:p>TETTEH LANCASTER<o:p></o:p>&nbsp;[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. J4/29/2015&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: 15TH MARCH, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>NICK
M.&nbsp; AFESI ESQ.&nbsp; FOR THE PLAINTIFFS/APPELLANTS /APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ERIC
NARH ESQ. FOR THE DEFENDANT/RESPONDENT /RESPONDENT.<o:p></o:p>

ANIN-YEBOAH
JSC (PRESIDING), BAFFOE – BONNIE JSC, AKAMBA JSC, APPAU JSC, AND PWAMANG 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;
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JUDGEMENT<o:p></o:p>

</div>YAW APPAU, JSC:
<o:p></o:p>Under
customary law, which is part of the common law of Ghana, it is axiomatic that
it is the Head of Family who has capacity to sue and be sued in matters
concerning family property. The only exceptions to this rule have been
well-established in the cases of KWAN v NYIENI [1959] GLR 67 @ 68; AMPONSAH v
KWATIA [1976] 2 GLR 189; YORMENU v AWUTE [1987] 1 GLR 9; IN RE ASHALLEY BOTWE
LANDS; ADJETEY AGBOSU &amp; Others v KOTEY &amp; Others [2003-2004] 1 SCGLR 420
@ 423; MANU v NSIAH [2005-2006] SCGLR 25 and IN RE NEEQUAYE (DECD); ADEE KOTEY
v KOOTSO NEEQUAYE [2010] SCGLR 348.<o:p></o:p>This
Court in the IN RE ASHALLEY BOTWE LANDS case cited (supra) explained the
principle as follows: “the general rule recognised in Kwan v Nyieni, namely,
that the head of family was the proper person to sue and be sued in respect of
family property was not inflexible. There are situations or special
circumstances or exceptions in which ordinary members of the family could in
their own right sue to protect the family property, without having to prove
that there was a head of family who was refusing to take action to preserve the
family property. The special or exceptional circumstances include situations
where: (a) a member of the family had been authorised by members of the family
to sue; or (b) upon proof of necessity to sue”.<o:p></o:p>This
case presents a disturbing picture of three brothers who decided to resort to
the courts to protect a so-called family land but were not ad idem as to who
out of the three was to represent them in the family suit. They therefore
decided to initiate a joint action in their names; viz. Samuel Oblie (1st
Plaintiff), Christopher Oblie (2nd Plaintiff) and Mensah Oblie (3rd Plaintiff).
<o:p></o:p>Paragraphs
1, 2 and 3 of their Statement of Claim filed on 8/8/2001 read as follows:<o:p></o:p>“1. 1st Plaintiff
is the Head of the Asua We Family of Oyarifa and La.<o:p></o:p>2. 2nd and 3rd Plaintiffs
are principal members of the Asua We Family.<o:p></o:p>3. The Plaintiffs bring
this action for themselves and on behalf of the Asua We Family.”<o:p></o:p>Though
the 2nd and 3rd Plaintiffs admit that the 1st Plaintiff is the Head of their
family, they all decided to join in the action as plaintiffs instead of
allowing him alone to represent the family in the action. However, as time went
by, one of them; i.e. Mensah Oblie who is the 3rd Plaintiff, dismantled the
trinity and engaged the services of a separate lawyer to represent him alone in
the same suit but based on the same pleadings filed by the three jointly. He
did not assign any reasons for doing so. <o:p></o:p>After
engaging a separate lawyer, he attempted unsuccessfully, to dislodge his eldest
brother Samuel Oblie who is the Head of Family from his family seat by filing a
motion in the trial High Court through his new lawyer that the 1st Plaintiff
had been removed as the head of family and he had been appointed by the family
in his place as the Acting Head of Family. This move or attempted ‘coup d’état’,
was scuttled by the 1st and 2nd plaintiffs who vigorously opposed the
application. Their opposition compelled the 3rd Plaintiff to withdraw his
application. <o:p></o:p>Notwithstanding
the fact that the 3rd Plaintiff withdrew the application and maintained his
position as a principal member of the family, he stuck to his lawyer and
conducted the case separately from his two elder brothers with whom he
initiated the joint action; a step, which invariably did not help the course of
the Plaintiffs who are the appellants herein, as would be unfolded later in
this judgment.<o:p></o:p>As
the records show, all the three brothers gave separate testimonies instead of
allowing just one of them to testify on their behalf. This, in the end, sowed
the seeds of destruction of their case as they seriously contradicted
themselves in their testimonie</main>