KWASI AKUMANI v TORDIA AGBONUSHI

CONCURRING OPINION

AFIA SERWAH ASARE-BOTWE (MRS.) JA

I have had the privileged opportunity of reading the lead opinion of my learned brother, Justice Jerome Noble-Nkrumah JA. I agree entirely with his reasoning and conclusion that the Ruling of the court below ought to be set aside and a full trial on the merits of the case be undertaken. I wish however, to make a brief contribution to the discourse.

The background and facts leading to this appeal have been well set-out in the lead opinion of my learned brother. I do not intend to rehash them in this concurring Judgment.

For ease of reference, the Grounds of Appeal are reproduced below;

GROUNDS OF APPEAL

1. The Learned Trial Judge erroneously erred by finding that the Plaintiff/ Appellant's case is caught by estoppel rem judicatam and in consequence of the said erroneous finding, did also erroneously erred by dismissing the Plaintiff/Appellant's Suit.

2. The Learned Trial Judge failed to avert or adequately avert her mind to the judicial reliefs the Plaintiff/ Applicant was seeking before the Honourable Court and she in consequence thereof erroneously did dismiss his suit.

3. The Learned Trial Judge failed to appreciate the incidence and existence of Usufruct at Customary Law as valid interest that members of communities and families hold, defend and alienate and, in so doing, she erroneously held as she did that 'If the disput ed lands belong to the Dakpui family no individual family member can claim ownership over same".

4. The Learned Trial Judge erroneously misapplied the elements that establish estoppel rem judicatam and in consequence thereof she erroneously concluded that, the Plaintiff/Appellant's action was caught by estoppel rem judicatam and based thereon, erroneously dismissed Plaintiff/Appellant's suit.

An assessment of the grounds of appeal and the processes filed in the Court below in the light of the Ruling complained against would show that there are two main issues to be determined;

a) On whether or not the decision of the Court in upholding estoppel per rem judicatam was proper in the circumstances;

b) Whether there was a genuine question to be tried in the light of the pleadings filed at the time and the matter of entitlement and protection of the Plaintiff's claim to a usufructuary title or rights.

Both matters are two sides of the same coin, and having been extensively discussed by my learned brother, there will be no call to go into any great detail.

ON ESTOPPEL PER