KUMAH v. ANKOMA [1972] 2 GLR 134
HIGH COURT, CAPE COAST
Date: 24 MARCH 1972
BEFORE: BAIDOO J.
CASES REFERRED TO
(1) McHenry v. Lewis (1882) 22 Ch.D. 397; 52 L.J.Ch. 325; 47 L.T. 549; 31 W.R. 305, C.A.
(2) Cohen v. Rothfield [1919] 1 K.B. 410; 88 L.J.K.B. 468; 120 L.T. 434; 63 S.J. 192, C.A.
(3) Bushby v. Munday (1821) 5 Madd. 297; 56 E.R. 908.
(4) Kwaa v. Kwakwa (1937) 3 W.A.C.A. 176.
(5) Anyimah III v. Kodia IV [1962] 2 G.L.R. 1.
(6) Asamba v. Paintsil, High Court, Cape Coast, 14 October 1934, unreported.
(7) Poh v. Konamba (1957) 3 W.A.L.R. 74.
(8) In re Eburahim (deceased); Ansah v. Ankrah (1958) 3 W.A.L.R. 317.
NATURE OF PROCEEDINGS
PRELIMINARY POINT of law under Order 25, rr. 2 and 3 of L.N. 140A/54 that the plaintiff was
estopped by a judgment of a district court from bringing her action. The facts are set out in the ruling.
COUNSEL
A. H. Sackeyfio for the plaintiff. E. M. Amponsah Dadzie for the defendant.
JUDGMENT OF BAIDOO J.
The plaintiff applied to this court for letters of administration to administer the estate of her deceased brother, Opanyin Yaw Koramoah, who died intestate at Amanfupong on 18 August 1969. The defendant, a nephew of the deceased, filed a caveat and as the parties could not agree on who should administer the estate the court, acting under Order 60, r. 21 (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), ordered the applicant to issue the summons herein against the caveator. The plaintiff is therefore claiming in this action “a declaration that she is the proper person entitled to succeed to Opanyin Yaw Koramoah (deceased) and to take out letters of administration for the administration of the estate of the said deceased.”
The plaintiff’s case as pleaded in the statement of claim was as follows:
“(1) The plaintiff is a farmer of Amanfupong as well as the defendant.
(2) Parties belong to the same family.
(3) The deceased had two sisters: a deceased one, whose son is the defendant and the plaintiff; and therefore the defendant is a nephew to the deceased and the plaintiff.
(4) The deceased took ill on 8 August and died on 18 August 1969.
(5) After the funeral rites, the head of family Opanyin Anifori Bosompen Ntow with the knowledge,
consent and approval of the entire family appointed the plaintiff a customary successor to the
deceased. [p.137] of [1972] 2 GLR 134
(6) Accordingly the plaintiff applied to the court for letters of administration. The formal application was granted on 13 October 1969. (7) While these proceedings were pending before the High Court, the defendant sued the plaintiff in theMGrade II District Court of Akim Ofoase, claiming that he is the proper person to succeed and to administer the estate of the deceased. (8) The fact that proceedings relating to the estate of the deceased were pending before the High Court
was brought to the notice of the Ofoase court, nevertheless an ex parte judgment was entered against
the plaintiff on 22 November 1969. (9) The plaintiff then moved the Ofoase court to set aside the ex parte judgment which was entered without jurisdiction. The application was dismissed. A judgment entered without jurisdiction is of no effect. (10) At the time of his death the deceased had his fixed place of abode at Amanfupong. He had his house there, and there he lived, died and he was buried. The Ofoase court therefore had no jurisdiction to determine any suit relating to his estate (Courts Decree, 1966 (N.L.C.D. 84), para. 49 (1) (g)).
(11) Opanyin Kwadwo Appiah whom the defendant mentioned in his affidavit of interest as the head of family is not the head of family. The head of family is Opanyin Anifori Bosompem Ntow. (12) Wherefore the plaintiff claims for a declaration that she is the proper person to succeed to Opanyin
Yaw Koramoah (deceased) and to take out letters of administration for the administration of the estate of the said deceased person.” The defendant’s case as pleaded in the statement of defence was as follows:
“(1) The defendant admits paras. (1), (2), and (4) of the statement of claim.
(2) Paras. (5) and (11) of the statement of claim are stoutly denied. The head of the deceased’s family is Opanyin Kwadwo Appiah, and not the said Opanyin Anifori Bosompem mentioned by the plaintiff in her statement of claim. (3) On the death intestate of the deceased, Opanyin Yaw Koramoah, the defendant herein was duly appointed his customary successor by the head of family Opanyin Kwadwo Appiah, with the prior consent and concurrence of the principal members of the family including the plaintiff herein. [p.138] of [1972] 2 GLR 134 (4) In answer to paras. (6) and (7) of the statement of claim, the defendant states that after his appointment as successor to the deceased, he took possession and management of most of the properties left by the deceased in accordance with native custom. (5) The plaintiff herein however, interfered with the defendant’s administration of the properties left by the deceased, as a result of which the defendant sued the plaintiff at the District Court Grade II, Ofoase, in about September 1969 or thereabouts, to assign reasons for interfering with the defendant’s inheritance; and also for an order that the plaintiff surrenders those properties left by the deceased to the plaintiff. (6) That when the case came up for hearing on 21 October 1969, the plaintiff herein failed to appear in court to answer the summons, even though she had been served with the writ of summons on 14 October 1969. (7) That the Ofoase District Court Grade II, proceeded with the case and heard evidence from the defendant and his witnesses including Opanyin Kwadwo Appiah, the head of the family of both the plaintiff and defendant herein, and on 22 November 1969 judgment was duly and properly entered in favour of the defendant herein. The defendant will crave leave of this court to refer to the said judgment. (8) Paras. (8), (9) and (10) of the statement of claim are therefore misleading. Further, the defendant states that since the deceased hailed from and resided mainly at Brenase where the deceased was also the Krontihene, the Ofoase District Court Grade II had full jurisdiction to hear the said suit which was a succession matter based on the customary law. The deceased only had his farms and small cottage at Amanfupong where he used to visit and conduct inspection, and receive accounts of proceeds from his farm. (9) The defendant therefore contends that the plaintiff is bound by the said judgment, and pleads that the
plaintiff is estopped by the said judgment of the Ofoase court from disputing the defendant’s right to
succeed to the deceased. (10) The defendant states that the plaintiff is his aunt who was duly appointed to succeed to the estate of the defendant’s deceased mother Madam Afua Sarebi, who predeceased Yaw Koramoah, deceased.
(11) That the estate of the defendant’s mother comprised inter alia cash sum of N¢2,000.00, over 200 sheep, landed properties; and all these were appropriated to the use of the plaintiff herein.[p.139] of [1972] 2 GLR 134
(12) The defendant therefore contends that it is inequitable to allow the plaintiff to succeed to the estate of present deceased Opanyin Yaw Koramoah, and at the same time make use of the proceeds arising from the huge estate of the defendant’s deceased mother. (13) The defendant therefore contends in answer to para. (12) of the statement of claim, that the plaintiff is
not the rightful person to succeed to the estate of the deceased, and that this honourable court should
grant the letters of administration of the estate of the deceased to the defendant as the rightful person duly appointed to succeed to the said estate. (14) Save as hereinbefore specifically admitted, the defendant denies each and every allegation of fact contained in the statement of claim as if the same had been set out in extenso and traversed seriatim.” The issues to be tried as set out in the summons for directions were as follows:
“(1) Whether the head of the deceased’s family is Opanyin Anifori Bosompem Ntow or Opanyin Kwadwo Appiah. (2) Which of the parties was appointed by the family to succeed to the deceased.
(3) Whether the Ofoase court had jurisdiction to hear the case brought before it by the defendant in viewof the proceedings before the High Court and paragraph 49 (1) (g) of the Courts Decree, 1966
(N.L.C.D. 84). (4) Whether the plaintiff is estopped by the judgment entered by the Ofoase court.
(5) Whether the plaintiff is the proper person to succeed to the deceased and therefore the proper person to take out letters of administration. (6) Does custom prohibit a member of a family to succeed to two or more deceased members of the said family, i.e. a sister or a brother succeeding a deceased sister or a brother, while nephews and nieces exist?” On the application of learned counsel for the defendant the fourth issue as set out above in the summons for directions was set down for preliminary legal arguments as provided under Order 25, rr. 2 and 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). A full copy of the said proceedings between the parties as recorded by the district magistrate sitting in the Ofoase District Court in Ankoma v. Kumah was, by consent of both counsel, accepted in evidence as exhibit A. [p.140] of [1972] 2 GLR 134
The claim of Kwesi Ankoma as endorsed on the writ of summons filed in the Ofoase court was as
follows:
“The plaintiff claims from the defendant to assign tangible reasons why the defendant is interfering with the plaintiff’s inheritance of late Yaw Koramoah; whereas the plaintiff being the legitimate nephew of the late Yaw Koramoah as Akim Bosome customary rights demand. Therefore the plaintiff seeks the order of the court to surrender to the plaintiff the properties left by the late uncle.”
It is clear from exhibit A, the record of proceedings in the Ofoase District Court that when the case came on for hearing on 21 October 1969, Afua Kuma as the defendant failed to appear although there was proof that she was served on 14 October 1969 to appear for the hearing. Instead of appearing she caused her counsel to post to the court a letter stating that she had applied to the High Court for letters of administration so the magistrate should strike out the case and advise the plaintiff to file a caveat in the High Court. The court did not agree to strike out the case but heard the evidence of the plaintiff Kwesi Ankoma that day and then adjourned the case from 21 October 1969 for continuation on 11 November 1969. On 11 November 1969, both parties appeared and when the claim was read and explained to the defendant for her plea to be taken, she pleaded not liable. The case was then further adjourned for continuation on 13 November 1969 on which date the defendant without assigning any excuse failed to appear in court. The magistrate therefore continued as from that date to hear the witnesses produced byKwesi Ankoma to prove his case. Altogether Kwesi Ankoma called three persons as witnesses.
The first prosecution witness was Yaw Dwamena, the ex-chief of Brenase, who testified that about fifteen years ago Kwesi Ankoma lodged a complaint against his uncle Yaw Koramoah and so he withdrew the case for settlement; that Kwesi Ankoma complained that on the death of Kofi Yebeng, his elder brother, the said Yaw Koramoah had refused to let him inherit his properties as custom demanded; that the late Yaw Koramoah admitted that he had taken possession of £G300, or N¢600, five kente cloths, one double-barrelled gun, and one lorry left by Kofi Yebeng as Kwesi Ankoma who should have succeeded was young; that he had used the £G300 to buy land from the Brenase stool at a place called Asaaso and he went further to explain that when he was dead Kwesi Ankoma was the one who would inherit him; that Yaw Koramoah agreed to take from his son the said lorry left by Koft Yebeng for same to be handed over to Kwesi Ankoma as the latter was a driver. Finally he testified that to seal the said settlement negotiated by him he took from the plaintiff £G2 8s. and one bottle of schnapps from Kwesi Ankoma.
The second witness called by Kwesi Ankoma before the Ofoase court was one Kwadwo Appiah who
testified that he was the head of the [p.141] of [1972] 2 GLR 134 late Yaw Koramoah’s family and that the family with his consent unanimously elected Kwesi Ankoma to succeed to the properties of late Yaw Koramoah; that the women in the family selected Afua Kuma to succeed but he was not in favour of that. Under examination by the court Kwadwo Appiah explained that the relatives of the parties migrated from Amoafu-Ankasi. He concluded his evidence in the following words:
“In my view the plaintiff is the successor. According to our custom when a man dies he should be succeeded by a man. Late Yaw Koramoah is not having a surviving brother. The plaintiff is the most senior nephew who ought to succeed late Yaw Koramoah.”
The third prosecution witness, Kofi Agyepong was the last witness to testify in support of Kwesi
Ankoma’s case. He stated that in July 1969 the two parties and one woman went to his house at Ayirebi where Afua Kuma disclosed to him that Kwesi Ankoma was not on good terms with his uncle the late Yaw Koramoah and so he should get their differences settled. They went to Yaw Koramoah who permitted him to hear and settle the case. Kwesi Ankoma was found guilty and made to pacify his late uncle with one sheep. He further stated that Afua Kuma then told Kwesi Ankoma that she had taken the trouble to get a reconciliation effected, so that when Yaw Koramoah died Kwesi Ankoma would inherit him. Afua Kuma explained that they had no other relative., Yaw Koramoah accepted the pacification of one sheep and one bottle of schnapps, and then proceeded to pour libation to his departed relatives that as he had reconciled with the plaintiff nothing should happen to him when he inherited him after his death.
The drink, the sheep that was slaughtered and, the aseda which was paid were shared by all present.
In the absence of any opposition from Afua Kuma the court gave judgment on the evidence in favour of Kwesi Ankoma and ordered that Afua Kuma should surrender to him all the properties left by the late Yaw Koramoah. According to the statement of claim filed in this action, she filed a motion asking the Ofoase District Court to set aside the judgment given in favour of Kwesi Ankoma but the district court dismissed the motion. She failed however to take any further step to get the said judgment given by the Ofoase District Court on 22 November 1969 set aside or reversed as she was advised that the court acted without jurisdiction.
From the arguments of learned counsel advanced in this court the Ofoase District Court as contended by him had no jurisdiction to hear the case because of the following two reasons:
(1) As Afua Kuma had filed an application in the Cape Coast High Court for letters of administration
on 30 September 1969 and the High Court had on 13 October 1969 made a conditional grant and
ordered notices to be posted for 21 days, the Ofoase District Court had no jurisdiction to entertain
the summons filed by Kwesi Ankoma early in October 1969, because the matter was pending in the
High Court. [p.142] of [1972] 2 GLR 134
(2) At the time of his death Yaw Koramoah had his fixed place of abode at Amanfupong under the
Jurisdiction of Asikuma District Court and not Brenase under the jurisdiction of Ofoase District Court as contended by Kwesi Ankoma. Under the Courts Decree, 1966 (N L.C.D. 84), para. 49 (1),
therefore the proper forum for the determination of the case was the Asikuma District Court and
not the Ofoase District Court.
With regard to the first objection contending that because the plaintiff herein had filed an application for letters of administration in the High Court therefore the defendant had no right to file his action in the district court, it is necessary to examine the plea of lis alibi pendens and the circumstances under which the plea will be sustained. In this regard it will be better to consider first the case of McHenry v. Lewis (1882) 22 Ch.D. 397, C.A. where Jessel M.R. sitting in the Court of Appeal in England considered some of the circumstances under which the plea of lis alibi pendens will be sustained. The headnote in that case is as follows:
“When a plaintiff sues a defendant for the same matter in two courts in this country, such a proceeding is prima facie vexatious, and the court will generally, as of course, put the plaintiff to his election and stay one of the suits. And the same principle applies where one of the actions is in the Queen’s courts in Scotland or Ireland, or any other part of the Queen’s dominions. Under the present practice Lord Dillon v. Alvares 4 Ves. 357 cannot be relied on as an authority.
But if one of the actions is in a foreign country where there are different forms of procedure and different remedies, there is no presumption that the multiplicity of actions is vexatious, and a special case must be made out to induce the court to interfere. The court has, however, power to interfere in such a case under its general jurisdiction to restrain vexatious and oppressive legislation, and will interfere in a proper case even before decree.
And semble, after a decree has been made in one of the actions, the court will be more willing to exercise its jurisdiction.”
The cardinal rule is that a plea of lis alibi pendens will not succeed unless the applicant proves as a matter of fact that the action instituted by the plaintiff is vexatious in the sense that he the applicant is doubly and unnecessarily vexed by reason of another action for the same cause of action which has been instituted in another court between the same parties. Where for instance the same litigant brings two actions about the same matter in two different courts in this country, his conduct is in all cases deemed to be vexatious and the defendant may demand that he shall elect between the two proceedings. However if the plaintiff can show that there is some material advantage that is likely to result from each separate action the court will not stay either of the two actions.
[p.143] of [1972] 2 GLR 134 Thus in the McHenry’s case (supra) cited the court refused to stay any of the two actions pending in England or the third action pending in America as the plaintiff would get different remedies in each. The applicant was only advised to get the two English cases consolidated.
If a party can show that one of the two actions was instituted not by himself but by the other party as in this instant case before the court where the plaintiff herein is suing in the High Court while the defendant was suing as plaintiff in the district court, it cannot be easily said that the action in the district court was vexatious and should therefore be stayed or struck out. In the first place the two actions between the parties were not both brought by the defendant and so it could not be said that Afua Kuma was doubly and unnecessarily vexed by reason of Kwesi Ankuma’s action. Secondly being the defendant in the High Court, Kwesi Ankoma had no control over the proceedings there as Afua Kuma could delay the trial or even discontinue the action in the High Court at any time if she so desired. Thirdly Kwesi Ankoma had much to gain by filing his action in the district court as the cause list there is normally light and the procedure there is by way of summary trial whereas in the High Court there is the cumbersome procedure of first filing a motion for letters of administration followed by the lodging of a caveat by an opponent and the subsequent filing of writ of summons and pleadings by the parties at the appropriate stages.
This does not mean that where one of the two cases concurrently pending in the courts was instituted by the defendant suing as plaintiff in the other court, neither of the two courts should restrain either of the parties from prosecuting either of the pending actions. The court is extremely reluctant in such cases to strike out or stay any of such actions as the decision of the Court of Appeal in Cohen v. Rothfield [1919] 1 K.B. 410 illustrates. The court will however in a proper case restrain one of the parties, be he a defendant or plaintiff, from prosecuting any other action filed by him elsewhere. Thus in the case of Bushby v. Munday (1821) 5 Madd. 297 at p. 307 the English court restrained the defendant by injunction from continuing an action he had filed in Scotland even though he was the plaintiff in the Scottish suit.
The main reason the court in England advanced for stopping the defendant from prosecuting his action in Scotland was explained in the judgment of Leach V.C. in the following words:
“The action in Scotland, and the suit here, both involve precisely the same question—whether by the law of England the defendant Cloves has a right to recover upon the bond in question?
The ultimate consequence of the two proceedings is not however necessarily the same. The plaintiff Mr. Bushby may succeed in his defence in Scotland, and still be exposed to future proceedings upon the bond.
But if Mr. Bushby establish his case here, the bond itself will be delivered up to be cancelled, and he will be absolutely relieved from all future proceedings. It must be admitted that this
[p.144] of [1972] 2 GLR 134 court is a more convenient jurisdiction for determining the question, whether the defendant Cloves has by the law of England a right to recover upon the bond in question, than the court of Session in Scotland; and it is truly stated that the proceeding there is less likely to elicit the truth of the case than the proceeding here, because there Mr. Bushby cannot have the benefit of Mr. Munday’s admissions upon his oath, and because Mr. Munday and Mr. Cracroft being both resident out of Scotland, Mr. Bushby cannot compel their testimony as witnesses.”
On receiving the summons from the Ofoase District Court, Afua Kuma’s best course of action would have been to file a motion in the High Court praying the court in the exercise of its supervisory jurisdiction to determine whether in the particular circumstances of the case either of the two actions concurrently pending in the two different courts should be stayed or dismissed. Any such motion would have enabled the High Court, applying the necessary principles discussed (supra), to rule whether the plea of lis alibi pendens should be upheld and the second action filed in the Ofoase District Court ordered to be struck out or stayed. In the absence of any order from the High Court to suspend or strike out the action regularly filed and pending before it, the magistrate was perfectly right in law to ignore the application of the plaintiff’s counsel urging him to strike out the suit filed by the defendant there.
I now proceed to look into the second objection contending that the last place of abode was at
Amanfupong and therefore the proper forum for the trial of the action was in the Breman Asikuma
District Court and not Ofoase District Court in view of paragraph 49 (1) of the Courts Decree, 1966
(N.L.C.D. 84), now recently repealed.
If it is true that the last place of abode of the late Yaw Koramoah was at Amanfupong under the Asikuma District Court then the defendant should have raised that point and objected to the Ofoase court exercising jurisdiction in the matter. The plaintiff, however, failed to raise that objection when she appeared before the district court on 11 November 1969 and pleaded not liable to the claim before the district court.
Thereafter she has no right to complain once judgment is delivered as provided under paragraph 54 of N.L.C.D. 84, which enacted as follows:
“54. (1) No act done by or under the authority of any District Magistrate shall be void or impeachable
by reason that such act was done, or that any act, offence, or matter in respect of or in relation
to which such act was done, occurred beyond the limits of the district for which the Magistrate was appointed. (2) If the defendant in any civil or criminal matter in which an objection might but for this Decree be of force makes such an objection at or before, but not after, the time when he is required to state his answer or to plead in that matter before the District Magistrate, the Magistrate shall consider the objection, and if it [p.145] of [1972] 2 GLR 134 appears to him that there is a prima facie proof of the objection he shall report the matter to the High Court if the matter is a civil matter and to a Circuit Court if the matter is a criminal matter, and the High or Circuit Court, as the case may be, shall make an order directing where the matter shall be heard and determined, and that order shall not be subject to appeal.”
The plaintiff should have objected to the Ofoase court’s jurisdiction and then if overruled, she could then have followed it up with an application for an order by the High Court for prohibition while the
magistrate was still hearing the case, or an order for certiorari if judgment was delivered in defiance of her objection. Alternatively the defendant should have lodged an appeal for the judgment to be reversed if the magistrate was wrong in any way. Since the plaintiff failed to take any action to get the High Court to set aside or reverse the said judgment of the Ofoase District Court, the same binds the plaintiff and cannot be set aside even in a subsequent action instituted for that purpose unless the plaintiff can establish that the judgment was irregularly obtained as for instance through fraud practised on the court. The case of Kwaa v. Kwakwa (1937) 3 W.A.C.A. 176 at p. 177 may be cited. In that case the plaintiff’s action claiming that the earlier judgment of the Ayeldu tribunal recorded against him be set aside as the land involved was outside the jurisdiction of the tribunal was dismissed by the Ayeldu tribunal on the grounds that the judgment was not obtained by irregularity, mistake and fraud and that there was no want of jurisdiction.
On appeal to the Provincial Commissioner’s Court however the commissioner reheard the evidence,
visited the locus in quo and coming to the conclusion that the land lay wholly within the Abeadzi State which was outside the jurisdiction of the Ayeldu tribunal ruled that the judgment of the Ayeldu tribunal was without jurisdiction and therefore void. He therefore allowed the appeal. On further appeal to the West African Court of Appeal the latter reversed the provincial commissioner’s judgment and restored the judgment of the Ayeldu tribunal. The West African Court of Appeal made the following observation at p. 177:
“There is ample authority for the proposition that a judgment which has been obtained by fraud either in the Court, or of one or more of the parties, can be impeached by means of an action which may be brought without leave and which is analogous to the former Chancery suit to set aside a decree obtained by fraud (18 Halsbury, section 543), but we know of no authority for the proposition that a judgment given in respect of land may be subsequently impeached in another action on the ground that the land the subject-matter of the action lay in fact outside the jurisdiction of the Court … It is impossible for us to hold that the judgment that has been set aside was irregularly obtained merely because months after the judgment was obtained another Court comes to the conclusion that the land in dispute lay outside the jurisdiction of the native Tribunal of Ayeldu. [p.146] of [1972] 2 GLR 134 The jurisdiction of Courts is discussed in the first few paragraphs of 9 Halsbury, paragraph 8, which deals with the remedy for excess of jurisdiction, and is in the following terms: ‘If a Court exceeds its jurisdiction the aggrieved party, or even a stranger, may apply to the King’s Bench Division to exercise its ancient right of either prohibiting the judge of the inferior Court from proceeding further in the matter, or, if judgment has been given of bringing up the record by certiorari in order that it may be quashed (n).’ In our opinion the action was misconceived.” It is clear from all what has been discussed above that the judgment of the Ofoase District Court binds the
plaintiff and suffers from no want of jurisdiction.
It is evident from the summons for directions filed in this action by the plaintiff that she is raising afresh a number of the issues which came up for determination in the earlier trial at the Ofoase District Court. It is clear from the judgment of the trial magistrate that he accepted the evidence of the plaintiff’s second witness Kwadwo Appiah that he was the head of the late Yaw Koramoah’s family and that the defendant who is the eldest nephew of the deceased was the person he elected with the consent of the family to succeed to the late Yaw Koramoah; that the deceased had no brother alive and the defendant who is the only surviving sister being a woman was accepted by him as successor when the women indicated their preference for her. If it is not true that Kwadwo Appiah was the head of family at the time, the plaintiff should have appeared before the Ofoase court to traverse the fact and contest that issue and any other issues of fact. This court will not allow a retrial of any matter after judgment unless the plaintiff can establish that fraud was practised on the court or that new evidence has since the date of judgment been discovered which could not have been brought to the notice of the court by the exercise of due diligence on the part of the plaintiff: The case of Anyimah III v. Kodia IV [1962] 2 G.L.R. 1 may here be cited. In that case Adumua-Bossman J. (as he then was) in his illuminating judgment discussed fully thecircumstances under which the court will permit a retrial of a matter already litigated upon. No ground has been shown for a retrial to be permitted.
It is evident from the proceedings in the Ofoase court that the plaintiff herein did not accept the election by Kwadwo Appiah of the defendant as successor of Yaw Koramoah but it was for that very reason that the defendant sued the plaintiff in the Ofoase court for the declaration in effect that the plaintiff was unduly interfering with his right to succeed and that he has a better right to be appointed successor.
The court gave judgment in favour of Kwesi Ankoma without bothering to point out that the opinion
expressed by Kwadwo Appiah that a woman cannot be appointed to succeed to a man’s estate is
erroneous and contrary to the decision in the case of Asamba v. Paintsil, Cape Coast High Court judgment dated 14 October 1934, unreported. It [p.147] of [1972] 2 GLR 134 is however too late at this stage to attack this and any other error in the judgment of the Ofoase court and since no appeal was ever lodged the judgment binds the parties. There is ample authority to support the court’s action in looking into the propriety or otherwise of the appointment of Kwesi Ankoma as successor because even though it is well settled that the election of a successor to a deceased person is the prerogative right of the members of the deceased’s family the court reserves the right to investigate any appointment of a successor made and to rule whether the same was valid and proper. Any appointment improperly made can be nullified. An example is the case of Poh v. Konamba (1957) 3 W.A.L.R. 74 where the Cape Coast High Court presided over by Adumua-Bossman J. held as stated in the headnote inter alia:
“(iii) Although it is the case that the power of appointment of a successor to a deceased person vests in the family and, although the family in appointing a successor may pass over a person with a prior right to succeed if they are satisfied that in the family interest it would be desirable to do so, yet the person so displaced may not be passed over arbitrarily or capriciously and if this appears to have been done then the court will intervene and order the appointment of the person properly entitled to succeed. In the present case there was nothing to show that the plaintiff was unfit to be appointed as successor or that the family had even considered this aspect of the matter. She was therefore entitled to an order that she be declared as the successor.” In that case some other person had been appointed successor in preference to the plaintiff who had been capriciously by-passed although she was the true person in the direct line of succession, and the court in the proper exercise of its jurisdiction set aside the appointment wrongly made and ordered that the plaintiff “be declared appointed as the successor.” In the instant case the Ofoase court has made a declaration in favour of the defendant and as there was never any appeal that order stands and debars the plaintiff from relitigating over the matter.
Learned counsel for the plaintiff contended further that even if the defendant is found to be the person appointed successor the plaintiff can still apply for letters of administration because the administrator need not necessarily be the successor. It is true that in certain situations the administration of the estate of a deceased person may be entrusted to some person other than the successor as for instance where the deceased owned some business of a complicated nature the affairs whereof could be better managed by some other person having intimate knowledge of the deceased’s business and affairs. That however is not the situation in this case. Here the successor is willing and anxious to be granted letters of administration and since he is the person appointed to control the estate of the deceased by the family in whom the ownership of the properties of the deceased has vested according to native custom, the court normally (except where it disallows the appointment) [p.148] of [1972] 2 GLR 134 endorses the act and desire of the family by granting letters of administration to the successor. Thus in the case of In re Eburahim (deceased); Ansah v. Ankrah (1958) 3 W.A.L.R. 317 at p. 318 the court held as summarised in the headnote inter alia that:
“(ii) The normal practice of the court is to grant a letter of administration to the estate of a deceased person to the person who has, by custom, been appointed by the family of the deceased as his successor or, if no such family appointment has been made, to the person who has, by custom, the right to prior consideration by the family for appointment as successor. Such grant of letters of administration is limited to the self-acquired property of the deceased: family property which the deceased administered on behalf of the family does not come within the scope of such a grant.” In view of what has been discussed (above) the plaintiff’s action is not entitled to succeed and the same is dismissed in limine under Order 25, rr. 2 and 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
DECISION
Preliminary point upheld.
S.E.K.
