NAI KOFI ASHIAW vs. KWAKU SAMPA AND 6 OTHERS [2017]DLCA5559

Date	2017-01-30
Suit No.	CIVIL APPEAL NO. H1/46/16
Citation No.	[2017]DLCA5559

HONYENUGA J.A. (PRESIDING)

GYAN J.A.

SUURBAAREH J.A.

MR. RAPHAEL ALIJINA FOR THE PLAINTIFF/APPELLANT

MR. VICTOR YAWKSON FOR THE DEFENDANTS/RESPONDENTS

[2017]DLCA5559
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													<main id="main" class="content" style="min-height: 60rem" >NAI KOFI ASHIAW<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>KWAKU SAMPA AND 6 OTHERS<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT OF APPEAL, CAPE COAST]<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. H1/46/16&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; 30TH
JANUARY, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. RAPHAEL ALIJINA FOR THE PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. VICTOR YAWKSON FOR THE
DEFENDANTS/RESPONDENTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>HONYENUGA J.A. (PRESIDING), GYAN J.A., SUURBAAREH J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>HONYENUGA, J.A.<o:p></o:p>This is an
appeal filed by the plaintiff/appellant (hereinafter referred to as the
plaintiff) against the judgment of the High Court, Winneba dated the 26th
day of February, 2016. The said court had dismissed the plaintiff’s claim and
entered judgment in favour of the defendants/respondents (hereinafter called
the defendants).<o:p></o:p><o:p>&nbsp;</o:p>The facts of
this appeal were that the plaintiff has been the head of Yorkor family in the
Awutu Traditional Area for 30years. Without notice to the plaintiff, he heard
rumours that he was removed as the head of the family. As a result he caused
his lawyer to write a letter to the Awutu Traditional Council to ascertain the
truth. The Traditional Council through its Registrar replied to the said letter
and confirmed that the plaintiff was indeed removed as head of his family. Later,
the family constituted by the defendants also wrote to the plaintiff confirming
his removal. The plaintiff claiming that his removal was wrongful and unlawful
caused the instant writ of summons which was accompanied by a statement of claim
to be issued against the defendants jointly and severally as follows:-<o:p></o:p>“(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A
declaration that he is still the validly nominated, elected and installed Head
of the Yorkor family of Awutu;<o:p></o:p>&nbsp;(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A
declaration that his purported removal as the Head of the family is wrongful
and unlawful to the extent that he was not given an opportunity to defend
himself before he was purportedly removed by the sdefendants;<o:p></o:p>&nbsp;(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order of perpetual injunction restraining defendants and their assigns from
further holding out 1st defendant as Head of the family and/or from
in any manner interfering with plaintiff’s functions, duties, roles and
privileges as Head of the family; and<o:p></o:p>&nbsp;(d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Cost”.<o:p></o:p>The
defendants entered conditional appearance but later filed a statement of
defence and averred that because the plaintiff was not performing his duties as
the head of family he was removed on the 4th day of September, 2011.
They also averred that the plaintiff was served with a letter that in his place
the first defendant was appointed as the head of family.<o:p></o:p><o:p>&nbsp;</o:p>An
Application for Direction was agreed and taken with the following issues:<o:p></o:p>“(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not plaintiff was lawfully removed as Head of the family;<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Any
other issue(s) raised by pleadings of the parties”.<o:p></o:p>In line with
Order 32 of C.I. 47, the parties filed their written statements together with
their witnesses. At the trial the plaintiff’s Attorney was cross-examined but
called no witness. However, the 1st defendant testified on behalf of
the defendants and was cross-examined. The defendants called one witness.<o:p></o:p><o:p>&nbsp;</o:p>Upon hearing
the parties and their witnesses, the learned trial judge on the 26th
day of February, 2016 delivered judgment, dismissed the plaintiff’s case and
entered judgment for the defendants although they filed no counter-claim. The
judge also awarded cost of GH¢10,000.00 in favour of the defendants against the
plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>Aggrieved by
the judgment of the trial judge, the plaintiff on the 29th day of
February, 2016 filed the instant appeal based on the following grounds:-<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The judgment is against the weight of the
evidence;<o:p></o:p>