APPIAH v. KYEIWA [1968] GLR 319

DIVISION: HIGH COURT, ACCRA

DATE: 28 MARCH 1968

BEFORE: APALOO J.A.

NATURE OF PROCEEDINGS

APPEAL against the decision of the district court dismissing the appellant’s plea of estoppel per rem judicatam. The facts are fully set out in the judgment of Apaloo J.A. sitting as an additional judge of the High Court.

COUNSEL

W. A. N. Bossman for the appellant.

Ansah for the respondent.

JUDGMENT OF APALOO J.A.

This appeal concerns the succession to the estate of a man by name Kwabena Bempong who died at Kintampo in June 1952.

The late Bempong’s maternal ancestry is traceable to Ashanti but the evidence shows that he was born to a woman called Ama Odurowaa at Anyinam where he lived all his life. The deceased went to Kintampo when he was afflicted with illness and the evidence is, that he went there to receive medical treatment. His illness did not apparently respond to treatment and he succumbed to it there. His remains were brought home to Anyinam and interred there. The [p.321] of [1968] GLR 319 cost of the conveyance of the corpse from Kintampo to Anyinam was paid by some members of the Bretuo clan while the cost of the coffin and other burial expenses were met by the deceased’s son Apraku and some of his relations.

The fact that the funeral expenses were paid by two families neither of which claimed blood relationship to each other was a sad foreboding of the succession to the late Bempong. A week after the burial, two different families assembled to celebrate his funeral. The deceased’s children and other relations assembled in front of the house of the departed, while the odikro and members of the Bretuo family gathered for the same purpose at the entrance of the house of a man whose name was given as Agya Amoako.

The evidence shows that before the actual celebration of the funeral began, a Mr. Asiedu who was then in the company of the respondent and who belonged to what, I will call the Bretuo group, disputed the right of Apraku and his relations of Asona family to celebrate Bempong’s funeral. It was claimed by Asiedu that the late Bempong belonged to the Bretuo family inasmuch as he was a slave to Adjepong who Asiedu claimed to be his ancestor. It would seem that Apraku and other members of the Asona clan did not pay heed to Asiedu’s protest and went ahead with their part of the funeral. One of the persons then in the Asona group was one Kwasi Agyekum who came from Abomosu. It would seem that Apraku was in possession of his father’s personal effects. After the celebration of the funeral, he relinquished their possession to Kwasi Agyekum as the latter was appointed by his family at Abomosu to succeed the late Bempong. Apraku knew Agyekum to be a blood relation to his late father and considered Agyekum as rightly entitled to succeed his father. Asiedu did not accept this. He claimed that he was the rightful successor having been appointed to that post by the Bretuo family. He therefore brought a suit against Apraku and Agyekum claiming, in his capacity as successor to Bempong, possession of the personal properties of the deceased, his house and six cocoa farms. The suit was brought in the Native Court A of Akim Abuakwa and that court sustained the claim of Asiedu and entered judgment in his favour. Before actual hearing of the suit began in the native court, Kwasi Agyekum died. His younger brother Kofi Appiah was substituted for him and he and Apraku fought and lost the case to Asiedu. Aggrieved at the decision of the native court, Apraku and Appiah jointly appealed to the magistrate’s court. The appeal was successful and by a judgment dated 11 March 1967, the decision of the native court was reversed, the magistrate’s court held that “the plaintiff-respondent [thereby meaning Asiedu] failed totally to [p.322] of [1968] GLR 319 prove that he was the proper person to succeed to the property of the deceased. . .” Asiedu for his part, appealed against that judgment to the High Court which on 20 May 1967, affirmed it. In the meantime, the evidence suggests that both the real and personal properties of the late Bempong came into the possession of the appellant, he having succeeded to his elder brother Kwasi Agyekum.

Having fought and lost two actions to gain control of Bempong’s properties, Asiedu must have decided that the succession was not worth the trouble. The evidence is, that he then gave up his post as successor to Bempong. In his stead, the Bretuo family appointed the present respondent. It is to be noted that Bretuo was referred to both as a clan and a family, the two words being used interchangeably. Upon her appointment, the respondent then resurrected the lost conflict and in her capacity as successor to Bempong, brought a fresh suit against the appellant for recovery of the self-same properties. Kofi Appiah against whom the fresh suit was brought is the selfsame Appiah to whom the respondent’s predecessor-in-office Asiedu, lost both in the magistrate’s court and in this court. On 10 April 1959, the Akim Abuakwa Native Court before which, the respondent instituted the fresh action against the appellant, entered judgment in her favour and it is plain from that judgment that the issues which were agitated before the court were the same issues which Asiedu fought and lost to the appellant. The appellant gave evidence of the previous suit and tendered the judgment recovered against Asiedu but these did not apparently weigh with the native court. Understandably enough, the appellant appealed against that judgment to the magistrate’s court and it was urged on his behalf that the respondent was estopped by the judgments recovered against Asiedu. The only other ground which counsel seemed to have pressed before the magistrate is, that the judgment was against the weight of evidence. On 30 November 1960, the learned magistrate delivered a reserved judgment in which he rejected the plea of estoppel on the ground that “the respondent sued in her capacity as the duly appointed successor to Bempong and not Asiedu.” He declined to interfere with the judgment on the merits because, as he put it, “the native court weighed all the evidence adduced very carefully before giving judgment in favour of the respondent.” He accordingly affirmed the decision of the native court and dismissed the appeal. It is against that judgment that this appeal hag been brought.

As is only to be expected, the plea of estoppel was again canvassed before me. Mr. Bossman for the appellant, contends that the present respondent is the successor-in-title of the vanquished Asiedu and was on that account, his privy. He says the issue which was

[p.323] of [1968] GLR 319 sought to be decided in this case, was the same issue which was decided in the earlier litigation and the subject-matter being identical with that in the former suit, he argues that the respondent was estopped by the magistrate’s judgment of 1959.

Mr. Ansah for the respondent, disputes the validity of Mr. Bossman’s contention. He propounds the question for determination in this way: “Who is entitled to succeed Bempong? and Who has been appointed by the family to succeed him?” He says, these issues did not arise for determination in the previous suit and therefore no question of estoppel arises. In any event, Mr. Ansah argues, that the appellant cannot succeed in making out a case of estoppel without producing in evidence the full record of the former proceedings and for this, he relies on Larbi v. Kwabena (1952) 14 W.A.C.A. 299.

If Mr. Ansah’s view of the issues is correct, it is difficult to see what issues were fought in the former case. I should have thought that as both Asiedu and Agyekum claimed to be the successors of Bempong, the native court came under a duty to decide which of these two rival claimants was rightly entitled to succeed. Indeed that was what the native court decided. As to Mr. Ansah’s subsidiary question “Who has been appointed by the family?” it does not seem to be of importance. Both sides claim to have been duly appointed by their families. The question who has been appointed by the family, would have been of importance as an issue only if the two rival claimants derived their appointments from the same family. As they both claimed their right of succession from two families neither of which claimed relationship to each other on grounds of consanguinity, a decision that one rather than the other was the person entitled to succeed, necessarily inferentially decides that one of the two rival families was entitled to make a valid appointment. I think it is now generally accepted that the appointment of a person to succeed is not a right but a privilege which the family confers on the appointee. In my opinion, the issue which was necessarily inferentially decided in the former action was, which of the rival families was entitled to make a valid appointment of a successor to the late Bempong? Asiedu asserted that it was the Bretuo family while the appellant asserted that it was the Asona. The native court accepted that it was Bretuo and held the appointee of that family as rightly entitled to succeed Bempong. The magistrate’s court held on appeal that the answer provided by the native court was wrong because Asiedu who can only succeed in recovering Bempong’s properties on proving that the Bretuo family were entitled to make a valid appointment, failed to do so. That conclusion does not by itself establish that the Asona family was entitled [p.324] of [1968] GLR 319 to make a valid appointment, but it operates to defeat any subsequent claim by Bretuo family against the Asona that it was entitled to appoint a successor to Bempong.

Were the position otherwise, the Bretuo family would as soon as any of its appointees failed to establish its right in court to succeed to Bempong, make a fresh appointment of another member of the family and encourage him to relitigate the family’s right to appoint a successor to Bempong ad infinitum. Such a course would make a mockery of the principle on which the rules as to res judicata is founded. It would also offend against the principles laid down in the two Privy Council cases of Frempong II v. Effah [1961] G.L.R. 205, P.C. and Duedu v. Yiboe [1961] G.L.R. 346, P.C.

Here quite plainly, the respondent and Asiedu derived their titles from the same source, namely, the Bretuo family. Indeed the respondent said she and Asiedu are related. The issue which was agitated in the instant case was the same issue which was fought out between Asiedu and the appellant in the former suit, that is, the right of an appointee of the Bretuo family to succeed Bempong as against the appellant—an appointee of Asona family. The subject-matter in both suits is the same, namely, the real and personal properties of the late Bempong. I think therefore that Mr. Bossman was right in contending and that Mr. Ansah was wrong in disputing that the respondent was estopped per rem judicatam from instituting the suit which culminated in this appeal. In so far as the learned magistrate decided otherwise, I think he was in error. This is a matter of some technical legal finesse and it is perhaps understandable that the learned magistrate should have erred on it. This view is sufficient to entitle me conclude this appeal in the appellant’s favour. But even on the facts, I think the appellant should succeed. As I said, the learned magistrate rejected a contention pressed on behalf of the appellant that the judgment was against the weight of evidence on the ground that the native court gave full consideration to the case. In my opinion, the trial native court did not evaluate the evidence or weigh the probabilities and had it done so, it would have considered that the evidence of genealogy led by the appellant was the likelier of the two.

Both parties claim that their mother was an uterine sister of Ama Odurowaa. The latter is admitted to be the mother of the late Bempong but whereas the respondent says, Yaa Baah was the mother of Odurowaa, the appellant says, Odifie was her mother. Each party accordingly claims relationship to Bempong through an ancestress. Neither party claims blood relationship to each other and it follows that one of the parties must be a stranger to Bempong. The evidence of genealogy led by the respondent is as sketchy as [p.325] of [1968] GLR 319 that led by the appellant is detailed. Furthermore, whilst the respondent’s testimony of her genealogy rests upon her lone evidence, that of the appellant was supported by no less than three witnesses. One of such witnesses, is Apraku, the natural son of the late Bempong. The latter was, by all accounts, a disinterested witness as he was a stranger to his father for the purpose of inheritance and there is no reason to suppose that he would give evidence of his father’s ancestry other than what he knew to be the truth.

Furthermore, Apraku did not only tell a very probable story but also gave great details including dates of various incidents about which he testified. His evidence has the clearest imprint of truth and I would expect good reason to be given for its rejection. That the appellant rather than the respondent was the blood relation of Bempong, is also supported by evidence of acts within recent memory. Some time ago, the appellant’s brother Mensah died at Abomosu. The appellant testified, that being a maternal cousin of Bempong, the latter was appointed to succeed him. This evidence was confirmed by Apraku who gave the date of this incident as 1948. This shows that Bempong was close enough to Kwame Mensah on grounds of consanguinity to succeed him. That being so, it must follow that the appellant who is an uterine brother of Kwame Mensah was near enough in blood to succeed Bempong. A consideration of all these matters leads me to think that the evidence of genealogy produced by the appellant must be true and that of the respondent must be false. I think of the two sides, the party who is a stranger in blood to Bempong must be the respondent. This view is supported by the right which the respondent’s predecessor-in-office, Asiedu, asserted in the former suit as the basis of his claim to succeed Bempong. Asiedu then claimed that Bempong was a slave to his ancestor Adjepong. The respondent admits that he is a blood relative of Asiedu and both belong to the same family. It is impossible to believe that if be was a blood relative to Bempong and sought to succeed him on that basis, Asiedu would advance a claim that Bempong was a slave to his ancestor. I think the present claim of blood relationship to Bempong set up by the respondent was fabricated when it was realised that a claim to succession based on slavery was certain to fail. I conclude therefore that the appellant’s family are the surviving blood relations to the late Bempong and were entitled to appoint a person to succeed him. In my opinion, the respondent’s family are strangers in blood to the late Bempong and have no locus standi to appoint a person to succeed him and any appointment made by them is void as against the appellant’s family.

[p.326] of [1968] GLR 319

I think the learned magistrate’s consideration of this case was somewhat perfunctory. In my judgment, the appellant is entitled to succeed on the law as well as on the merits. I therefore allow the appeal and set aside the judgment of the native court as well as of the magistrate’s court which affirmed it. In lieu of those judgments, I make an order dismissing the plaintiff’s claim and I enter judgment for the defendant. During the pendency of this suit in the native court, that court appointed a receiver and manager to collect the rents and profits from the properties pending a final decision. I order that any sums held by the receiver to the credit of this suit be now paid to the appellant. The appellant is entitled to his costs in the native court and I order that this be taxed in the corresponding district court. I award the appellant costs in the magistrate’s court assessed at N¢100.00 and in this court assessed at N¢150.00.

DECISION

Appeal allowed.

S. K. T.