FYNIBA v. SEKYIWA (CONSOLIDATED)
1989
COURT OF APPEAL
GHANA
CORAM
- AMUA-SEKYI J.S.C.,
- LAMPTEY
- ESSIEM JJ.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Probate and Succession
1989
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appellate decision arises from a long-running Cape Coast family property dispute over a house on Kotokuraba Road. In 1971, Kobina Awotwi, the Anona family head, sued Kwamena Nuamahs nine children, alleging the land was a gift from Regent Thompson to Aba Kraba and her children and asserting the house was family property. After Awotwis death, Aba Sekyiwa was substituted; Osei-Hwere J held the property belonged to the donors children and their descendants. Rather than appeal, Essie Amoasiwa later sued as Kwamenas immediate family head; Wuaku J declared for the maternal family, and Sapong J granted possession and injunction against Aba Fyniba. During appeals, an application for stay was refused, but the automatic seven-day stay under rule 27(3) applied; Fyniba was prematurely ejected, re-entered, and convicted of contempt. The appellate court held the parties were bound by the 1979 decision, set aside the later judgments, and allowed all three appeals.
The litigation between the parties started in 1971 when one Kobina Awotwi, also called Frederick Swanzy, issued a writ in the High Court, Cape Coast against the nine children of the late Kwamena Nuamah, also called Thompson, for a declaration of his title to a house on Kotokuraba Road, Cape Coast numbered F 84/3. The house was built by the said Kwamena Nuamah on land which, Awotwi alleged, was the subject of a gift from Kwasi Nuamah, otherwise known as Regent Thompson, to his wife Aba Kraba and her children. Kwamena was one of the five children who benefited from the gift of the land. the capacity in which Awotwi sued was that of head of the Anona family of Cape Coast of which Aba Kraba and her children were members, and his contention was that the house was family property which the said Kwamena could not lawfully devise to his children under his will.
Awotwi died before the matter came to trial and was substituted by Aba Sekyiwa, daughter of Essie Amoasiwa, one of the five children of Aba Kraba. Osei-Hwere J. (as he then was) who tried the suit found as a fact that the gift of the land was to the children only and held, following Mensah v. Lartey [1963] 2 G.L.R. 92, S.C, that the house was the property of the children and their descendants. He dismissed the action. A counterclaim by the defendants for certain reliefs was also dismissed.
There was no appeal from the decision. However, soon thereafter a new writ was taken out in the name of Essie Amoasiwa. She sued as "the sister, customary successor and the head of the immediate family" of Kwamena and asked for a declaration that the house belonged to the maternal family. The defendants filed a defence to the action in paragraphs 11 and 12 of which they pleaded the judgment of Osei-Hwere J. (as he then was) and averred that Amoasiwa was estopped by the said judgment from bringing the action. In her reply Amoasiwa admitted the judgment but contended that since she had sued as the head of the immediate family the judgment against the head of the wider family did not bind her.
The point would seem to be covered by Krabah v. Krakue [1963] 2 G.L.R. 122, S.C. which decided that the head of the wider family could [p.428] sue to protect property vested in the immediate family, a decision which is well in tune with the earlier case of Kwan v. Nyieni [1959] G.L.R. 67, C.A. Any decision given in such an action would be binding on all members of the family. If Order 25, rr.2 and 4 of the High Court (Civil Procedu