May 7, 2014
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Justice W. A. Atuguba of the Supreme Court addressed an appeal arising from the Court of Appeals allowance of a counterclaim by co-defendant John Kwesi Wilson asserting headship of the Pitsir Kwaata Anona family of Upper Inchaban and seeking to restrain the opposing party from holding himself out as family head. The Supreme Court confined itself to the counterclaim. The record showed a longstanding split within the family, acknowledged by both the Sekondi District Court and the trial High Court, which found formal secession evidenced by customary libation. Analyzing res judicata and estoppel per rem judicatam, the Court emphasized that unpleaded estoppel can be cured by evidence and that evidence admitted without objection must be considered. In light of unobjected evidence establishing secession by Wilson and his predecessor Kofi Mensah, the Court held they could not claim headship and allowed the appeal, dismissing the counterclaim.
JUDGMENT
ATUGUBA J.S.C.
The facts of this case are in a small compass. It is unnecessary to go over the history of this action in its entirety. The only matter for the decision of this court is the appeal before it. The appeal is against the allowance of the co-defendant’s counterclaim by the court of Appeal, thereby reversing its dismissal by the trial High Court.
The co-defendant John Kwesi Wilson had counterclaimed as stated at p.289 of the record of appeal as follows:
“a. A declaration that the Co-defendant is the head of the Pitsir Kwaata Anona family of Upper Inchaban.
b. Perpetual Injunction restraining the Plaintiff from acting or holding himself out as the head of the Pitsir Kwaata Anona family of Upper Inchaben.”
The grounds of appeal as per the notice of appeal are as follows:
“a) That the judgement is against the weight of evidence.
b) That the Learned Justices of the Court of Appeal erred by holding that the Co-Defendant was the Head of the Pitsir Kwaata Anona Family of Inchaban when as matter of fact the said John Kwesi Wilson was substituted for Kofi Mensah (deceased) for the conduct of the cause or matter.
c) The Learned Justices of the Court of Appeal erred by holding that the Defendant and Co-Defendant’s family never seceded from the Plaintiff’s Family in the light of overwhelming evidence that the Plaintiff’s family and the Defendant and Co-Defendant’s family stopped doing things in common as required of ‘Family’ as a united entity.
d) That the Learned Justices of the Court of Appeal erred by failing to appreciate the legal effects of Exhibits “KS1” and “KS2” being decisions of a Superior Court as against Exhibit “1” a decision of a Lower Court.
e) That the learned Justices of the Court of Appeal erred by holding that Kofi Mensah’s successor the Co-defendant was and still remains the head of the Pitsir Kwaata Anona Family.
f) That the Court of Appeal erred by ignoring the overwhelming evidence to the fact that the Co-Defendant seceded from the said Pitsir Kwaata Anoma family.
g) Further grounds of Appeal may be filed.”
It must be emphasised that though the appellant’s submissions also touch and concern the grant of part of the Pitsir Kwaata family land to the Defendant,the only issue this court can competently deal with is the co-defendant’s counterclaim aforesaid since the appeal before this court stems from the allowance of the co-defendant’s appeal to the Court of Appeal which was based solely on the dismissal of the sai