EBUSUA PANYIN KWA KAKRABA v. KWESI BO

J U D G M E N T

ANIN YEBOAH, JSC;

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.

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.

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 amal