2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arose from a ruling of the High Court, Cape Coast, refusing to set aside a writ filed by a member of the Techie-Mensah Anona Family of Elmina. After the death of head-of-family Nana Kwamina Solomon, with no successor appointed, Defendants arrogated headship and allegedly disposed of family lands. Plaintiff sought declarations confirming his membership and restraining Defendants from alienating family property and interfering with his participation in family affairs. Defendants moved to set aside the writ, invoking an earlier 2011 judgment by Dorgu J. and asserting lack of capacity. The High Court dismissed the motion and directed filing of a defence. On appeal, the Court of Appeal criticized the vagueness of Defendants’ grounds under C.I. 19 rule 8(6), agreed that issues like estoppel, res judicata, and capacity are defences to be pleaded and determined at trial, and recognized under Order 4 rule 9 C.I. 47 that family members may sue when necessity requires, particularly in the absence of a head-of-family. The appeal was dismissed and the High Court’s ruling affirmed.
LAWRENCE L. MENSAH, J.A.
This is an interlocutory appeal against the ruling of the High Court, Cape Coast dated the 7th day of February 2018 in favour of the Plaintiff/Respondent who will be referred in this appeal as the Plaintiff, against the Defendants/Appellants who will be referred as the Defendants.
FACTS:
The facts of this interlocutory appeal admit no complications at all. The Plaintiff’s case is that he is a member of the Techie-Mensah Anona Family of Elmina. Nana Kwamina Solomon who was the head of family passed away, however, no successor has been appointed to replace him. Meanwhile the Defendants have arrogated to themselves the power of head of family and are disposing of the tracts of land belonging to the family. The Plaintiff also contend that even though he is a member of the Techie-Mensah Anona family aforesaid, the Defendants, for no apparent reason, declared the Plaintiff an outcast and have variously retorted that the Plaintiff is not a member of the said Techie-Mensah Anona family of Elmina. The Plaintiff therefore instituted action at the court below claiming the following reliefs:
(1) A declaration that the Plaintiff is a member of the Techie-Mensah Anona Family of Elmina.
(2) A declaration that the Defendants not being the Head of the Techie-Mensah Family of Elmina lack capacity to alienate lands.
(3) An order for perpetual injunction restraining the Defendants, their agents/workmen, assigns, privies and all those claiming through them from having interference with the Plaintiff’s right to partake in all activities of the Techie-Mensah Anona Family of Elmina.
(4) Any other relief(s) that this Honourable Court may deem fit so to award in the circumstances.
Upon being served with the above writ and statement of claim, the Defendants entered conditional appearance and followed up same by filing a motion on notice to set aside the writ of summons. In their affidavit and supplementary affidavit in support of the motion to set aside the writ, the Defendants deposed that the Plaintiff is not the head of family to mount the action. The Defendants contend that the action of the Plaintiff is abuse of the court process because the reliefs sought by the Plaintiff were litigated in court earlier which is the issue as to whether or not the Plaintiff is a member of the Techie-Mensah Anona family of Elmina. And the Plaintiff made it clear in that action against the late head of family Nana Kwamina Solomon that he was from the lineage of Eg