NYAME vs. KESE ALIAS KONTO [1999-2000] 1 GLR 236

CASES REFERRED TO

[p.239] of [1999-2000] 1 GLR 236

(1) Conca Engineering Ltd v Moses [1984-86] 2 GLR 319, CA.

(2) New Brunswick Railway Co v British & French Trust Co Ltd [1939] AC 1; [1938] 4 All ER 747, HL.

(3) Laryea v Oforiwah [1984-86] 2 GLR 410, CA.

(4) Henderson v Henderson (1843) 3 Hare 100; [1843-860] All ER Rep 378; 67 ER 313. (5) Yendi Skin Affairs, In re; Andani v Abudulai [1981] GLR 866 CA.

(6) Kyereh v Kangah [1978] GLR 83, CA (full bench).

(7) Basil v Honger (1954) 14 WACA 569.

(8) Jowett v Earl of Bradfordsic(1) [1977] 1 CR 342; [1977] 2 All ER 33; (1976) 12 ITR 97, EAT. (9) Kwasi v Larbi (1952) 12 WACA 76.

(10) Akunor v Okan [1977] 1 GLR 173, CA.

(11) Assampong v Amuaku (1932) 1 WACA 192.

(12) Aduasiah v Addae [1982-83] GLR 226.

(13) Akwei v Akwei [1961] GLR 212.

(14) Yardom v Minta III (1926) FC ‘26-’29, 76.

(15) Agiti v Osahene (1954) DC (Land) ‘52-’56, 257.

(16) Sebeh v Sekyim [1965] GLR 329, SC.

(17) Paul v Kokoo [1962] 2 GLR 213, SC.

(18) Gurney v Grimmer (1932) 38 Comm Cas 7.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff, the head of the Aduana family of Sekyedumase in the Ashanti Region, from the decision of the judicial committee of the National House of Chiefs allowing the appeal of the defendants, the head of the Oyoko family of Sekyedumase and the queenmother, respectively against the decision of the Ashanti Regional House of Chiefs allowing the plaintiff’s appeal from the decision of the Kumasi Traditional Council wherein it upheld the defendants’ preliminary objection that the plaintiff’s action in a chieftaincy dispute be dismissed on grounds of res judicata. The facts are sufficiently stated in the judgment of Acquah JSC.

COUNSEL

Paapa Dadson for the appellant.

Asare Bediako for the respondent.

[p.240] of [1999-2000] 1 GLR 236

JUDGMENT OF EDWARD WIREDU JSC.

This opinion is a concurring contribution to the able and erudite opinion about to be read by my brother Acquah JSC.

The principle of res judicata is now a well established and acceptable principle in judicial proceedings. Its objective is to prevent an abuse of the court’s process by estopping a party to a litigation against whom a court of competent jurisdiction has already determined the issue now being raised by reopening the same subject matter for further litigation. The principle can also be raised against privies of the original parties.

Since its objective is to prevent an abuse of the court’s process there is no need to go into the exercise of hearing the whole evidence on the matter again, otherwise its purpose would be defeated. It can legitimately be determined on an affidavit evidence in appropriate circumstances. Where it is necessary to go into the matter by hearing evidence, such evidence must be restricted to that issue only as a preliminary issue. Practice and procedure rules permit this and the plea must be specifically pleaded to entitle a party to take advantage of it: see Order 25, rr 1, 2 and 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A).

It is now also established as trite law that where a party to a suit admits the existence of an arbitration, the award of which had gone against him, the issue of estoppel per rem judicatem can be raised to estop him from reopening the subject matter of the arbitration unless he is able to establish the invalidity of the award, and in such a situation the validity or otherwise of the award must be determined as a preliminary issue.

In the instant appeal, the trial chieftaincy tribunal dealt with the issue of res judicata as a preliminary issue and in addition to the affidavit evidence took oral evidence also to resolve that issue. This course was legitimate. The trial tribunal after taking oral evidence from both sides, held that the issue had been determined and that the case was one in which the plaintiff was estopped per rem judicatem from reopening the same subject matter again. The trial tribunal was therefore justified in dismissing the appellant’s petition.

JUDGMENT OF KPEGAH JSC.

I had wanted to consider the philosophical underpinings of a plea of res judicata. But considering the manner the concept had been dealt with in the leading and support

[p.241] of [1999-2000] 1 GLR 236 ing judgments, any further excursion to this area by me will be an academic exercise only, of [1999-2000] 1 GLR 236-254 which will add nothing substantial to the quality of views already expressed. I agree that the appeal be dismissed.

JUDGMENT OF ACQUAH JSC.

My lords, the plea of res judicata is never a technical plea. It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits, is conclusive as to the rights of the parties and their privies and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. In Spencer-Bower and Turner’s book, Res Judicata (2nd ed) at p 9, para 9, the plea is explained thus:

“Where a final decision has been pronounced by a … a judicial tribunal of competent jurisdiction over the parties to, and the subject matter of the litigation, any party or privy to such litigation, as against any other party or privy thereto … is estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it be used as the foundation of an action or relied upon as a bar to any claim.”

As to how far interlocutory judgments can give rise to a successful plea of res judicata, one has to distinguish between judgments by default (of appearance or defence) and summary judgment under Order 14 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) (assuming this is regarded as interlocutory) which if successful, required a determination of the merits of the case. In Conca Engineering Ltd v Moses [1984-861 2 GLR 319, our Court of Appeal held, relying on New Brunswick Railway Co v British & French Trust Co Ltd [1939] AC 1, HL that a default judgment is binding only as to defences which it has necessarily and precisely decided. See also Laryea v Oforiwah [1984-86] 2 GLR 410, CA.

The plea of res judicata really encompasses three types of estoppel: cause of action estoppel, issue estoppel in the strict sense, and issue estoppel in the wider sense. In summary, cause of action estoppel should properly be confined to cases where the cause of action and the parties (or their privies) are the same in both current and previous proceedings. In contrast, issue estoppel arises where

[p.242] of [1999-2000] 1 GLR 236 such a defence is not available because the causes of action are not the same in both proceedings. Instead, it operates where issues, whether factual or legal, have either already been determined in previous proceedings between the parties (issue estoppel in the strict sense) or where issues should have been litigated in previous proceedings but, owing to “negligence, inadvertence, or even accident”, they were not brought before the court (issue estoppel in the wider sense) otherwise known as the principle in Henderson v Henderson (1843) 3 Hare 100. See also Andani v Abudulai [1981] GLR 866, CA. The rationale underlying this last estoppel is to encourage parties to bring forward their whole case so as to avoid a succession of related actions.

As stated earlier, the plea can be invoked in respect of any final judgment delivered by a judicial tribunal of competent jurisdiction. Accordingly, since the chieftaincy tribunals of the various traditional councils and houses of chiefs are by statute invested with jurisdiction to determine chieftaincy disputes as defined in the relevant statutes, the final decisions of these chieftaincy tribunals operate as res judicata to prevent those bound by the decisions from seeking to reopen them. The plea of res judicata can therefore be raised in proceedings at any of the chieftaincy tribunals, whenever a party is of the view and has evidence to support such a view that the action before that chieftaincy tribunal is res judicata.

The statement in Kyereh v Kangah [1978] GLR 83 at 91, CA (full bench) that proceedings at the chieftaincy tribunals are in the nature of fact-finding, is not disputed. But that statement does not imply that a chieftaincy tribunal is permitted to hear a matter already adjudicated upon by a judicial tribunal of competent jurisdiction. This will be a recipe for chaos and endless litigation. Accordingly, a chieftaincy tribunal before which a plea of res judicata has been raised, is duty-bound to determine whether the plea has indeed been made cut. And if it is satisfied that the plea has been established, the tribunal is to decline jurisdiction and dismiss the action. This is not an exercise in technicality, but a proper determination of a fundamental issue going to the jurisdiction of that tribunal. For as Coussey JA aptly put it in Basil v Honger (1954) 14 WACA 569 at 572: “The plea of res judicata prohibits the court from enquiring into a matter already adjudicated upon. It ousts the jurisdiction of the Court.” (The emphasis is mine.) In Jowitt v Brandford (Earl) (1977) 1 CR 342 it was held that a court will be exceeding its jurisdiction if it

[p.243] of [1999-2000] 1 GLR 236 proceeds in a matter that is res judicata. It must therefore be fully appreciated that the plea of res judicata is not confined only to the normal courts, but to all judicial tribunals, including the judicial committees of the various traditional councils and houses of chiefs. Of course, it is also settled that the plea applies to a valid customary arbitration award: see Kwasi v Larbi (1952) 13 WACA 76; Akunor v Okan [1997] 1 GLR 173, CA; Assampong v Amadu (1932) 1 WACA 192 and Adusiah v Addae [1982-831 GLR 226.

On the basis of the above exposition, let us now turn to the merits of this appeal. But first the facts. I will refer to the parties in the manner they appeared at the trial court. The plaintiff, Ebusuapanin Kofi Nyame of the Aduana family of Sekyedumase-Ashanti filed a suit at the, Kumasi Traditional Council (KTC) against Ebusuapanin Osei Kese of the Oyoko family and the queenmother, Yaa Kune alias Yaa Fosuwaa, both of Sekyedumase-Ashanti for:

“(a) A declaration that by Ashanti custom, tradition and usage it is the Aduana family or clan of Sekyedumase in whom inheres the right to ascend the stool of Sekyedumase or to choose candidates for the stool of Sekyedumase.

(b) A declaration that the second defendant is not the queenmother or obaapanin of Sekyedumase as the same has not been properly enstooled as such queenmother or obaapanin of Sekyedumase in accordance with custom, tradition and usage.

(c) An order that the Aduana royal family of Sekyedumase do present a candidate to be enstooled on the vacant stool of Sekyedumase.

(d) Such further orders as this honourable committee may deem fit.”

In his accompanying statement of claim, the plaintiff states that the stool of Sekyedumase is traceable to Aduana royal lineage, and that in 1946 one Opanin Kofi Mensah of the Oyoko family sued Opanin Kwasi Tiah of the Aduana family at the Kumasi Divisional Council (KDC) to determine who founded Sekyedumase. The KDC decided that one Ogyina of the Oyoko family founded the town. According to the plaintiff, this decision led to a series of petitions by the Aduana family, culminating in the Asantehene reinstating one

[p.244] of [1999-2000] 1 GLR 236

Nana Kofi Takyi of the Aduana family onto the Sekyedumase stool. Nana Tarkyi was later destooled in 1967 by the Chieftaincy (Amendment) Decree, 1976 (NLCD 112). In his place was enstooled Kwame Abora of the Oyoko family. Kwame Abora later abdicated from the stool and was succeeded by Nana Yaw Gyimah who died in 1989. Since then the stool has been vacant. The statement of claim goes on to state that the Aduana family later petitioned the Provisional National Defence Council (PNDC) Government which directed the Ashanti Regional House of Chiefs (ARCH) to set up a committee to go into the rival claims and offer its advice to the government.. But from the report of this committee, the PNDC Secretary for Chieftaincy Affairs doubted the competence of that committee to go into the rival claims and offer it’s advice to the government. Hence, the filing of the instant suit and the reliefs claimed therein.

In their statement of defence, the defendants denied that the stool of Sekyedumasi is traceable to the Aduana family. They contended that the claims sought by the plaintiff in this action were the subject matter in the 1946 suit at the KDC referred to in the statement of claim, and that the KDC decided the suit in favour of the Oyoko family. That the Aduana family appealed against the decision to the Ashanti Confederacy Council whose decision in favour of the Oyoko family was accepted and adopted by the Chief Commissioner of Ashanti in 1947. Accordingly the plaintiff ‘s Aduana family is estopped by the said decisions from reopening these same claims by this suit.

Now, having raised the plea of res judicata in their defence, the defendants have one of two legitimate methods to adopt thereafter. They may either allow the suit to go on for trial and through cross-examination of the plaintiff and evidence adduced by them, seek to establish their plea and res judicata. In which case, the KTC in its judgment must first determine whether the plea of res judicata has been made out. And if it has, to uphold it and dismiss the suit. Or they may raise the issue of res judicata as a preliminary issue for determination. And if they succeed, the action is dismissed. In the instant case, the defendants adopted the latter method and accordingly filed a motion supported by affidavit, praying that the suit be dismissed on grounds of res judicata. Their affidavit had exhibits attached. The plaintiff swore to an affidavit in opposition contend

[p.245] of [1999-2000] 1 GLR 236 ing that the judgments had been compromised. The KTC, though it could have relied only on the affidavits with the attached exhibits, proceeded to take evidence from the parties, after which by a majority of two to one it upheld the defendant’s contention and dismissed the suit. On appeal to the ARHC, the house accepted that the reliefs claimed by the plaintiffs had been effectively determined by the decisions of 1946-47, but then since the plaintiff claims that those judgments had been compromised, he ought to be allowed to lead evidence on the issue of compromise. The ARHC thus allowed the appeal and ordered the KTC to take such evidence and determine that issue.

The defendants appealed to the National House of Chiefs (NHC) which unanimously held, first, like the KTC and the ARHC, that the claims by the plaintiff had been determined by the 1946-47 judgments, and secondly, that there was no need for any evidence on the alleged compromise since the plaintiff had opportunity to give evidence and did, indeed, offer such evidence at the hearing of the preliminary issue at the KTC. The NHC accordingly set aside the order of the ARHC and confirmed the majority decision of the KTC. Thereafter the plaintiff after obtaining leave from this court, lodged the instant appeal to this court on the following grounds:

“(a) That the judicial committee of the National House of Chiefs grossly erred when it recognised that the fact of compromising earlier decisions in the Sekyedumase stool affairs could operate to obviate the effect of these earlier decisions but failed to reckon that the issue of compromise judgment could not be proved because no evidence was permitted to be led of same at the judicial committee of the Kumasi Traditional Council (KTC).

(b) That the judicial committee of the National House of Chiefs erred when it confirmed the majority decision of the Kumasi Traditional Council (KTC) as the latter dismissed the plaintiff’s case totally without taking evidence with regard to the reliefs sought, particularly relief (b), amongst others, which required evidence to be led.

(c) That the decision of the judicial committee of the National House of Chiefs was against the weight of the evidence and contrary to the proceedings on the record.”

[p.246] of [1999-2000] 1 GLR 236

Arguing grounds (a) and (c) together in his statement of case, the plaintiff contended that the materials before the KTC were not enough to resolve the issues in controversy, and that when a judgment is compromised, that judgment no longer operates as res judicata. Citing Kangah v Kyereh (supra) he contended further that proceedings at chieftaincy tribunals are in the nature of fact-finding, and thus such proceedings should not be cut short by technical objections which have the negative effect of leaving issues unresolved, as in the instant case. He contended that the suit ought to be allowed to go through the full trial. On ground (b), he contended that because no evidence was allowed to be led, his reliefs particularly that of (b) were not dealt with at all, and yet his action was dismissed. And that this fact alone was sufficient to vitiate the judgment of the NHC.

In their contrary submissions, the defendants stated that grounds (a) and (c) were based on false premises as neither the KTC nor the NHC accepted that the judgments were compromised. They pointed out that the plaintiff never pleaded compromise in his statement of claim, and that it was in his affidavit in opposition to the motion that he raised the issue of compromise. Further, the installation of Kofi Takyi was not the result of any compromise, otherwise NLCD 112 would not have removed him from the stool. In respect of ground (b), the defendants contended that the same had been determined in the 1946-47 judgments, and therefore the Aduana family had no claim to that stool to warrant a hearing. They therefore prayed that the appeal be dismissed.

Now, going through the plaintiff-appellant’s statement of case vis-à-vis the record of proceedings, I have no doubt in my mind that the plaintiff is in difficulty in appreciating what took place at the lower tribunals. The crux of his submissions on grounds (a) and (c) is that evidence ought to have been allowed to be led so as to enable him to establish his contention that the judgments of 1946-47 had been compromised. First of all, the contention that the 1946-47 judgments had been compromised implies an admission that those judgments did settle or determine the reliefs claimed. Otherwise the proper defence to res judicata ought to have been a denial that the judgments constituted res judicata. Thus he cannot rely on compromise and at the same time insist that the merits of his reliefs ought to have been heard through evidence. In this wise, the ARHC

[p.247] of [1999-2000] 1 GLR 236 understood the issue better than the plaintiff. Secondly, the compromise relied upon by the plaintiff was not adverted to in his statement of claim. It was in the affidavit opposing the motion to dismiss the suit that the plaintiff suddenly wakes up to the idea of compromise. And even in this idea, the plaintiff was not definite. He pleaded in his paragraph (12) of the said affidavit thus:

“(12) … owing to the fact that even after the decision given in the 1947 palaver coupled with the sentiments expressed later at certain administrative and quasi-judicial for a the Aduana members were enstooled both on the male and female stools of Sekyedumase, the said decision of the Kumasi Divisional

Council referred to in the defendants application is deemed to have been compromised.”

(The emphasis is mine.)

Now, the defendants by their motion on notice to dismiss the action on ground of res judicata, thereby raised the issue of res judicata as a preliminary issue for determination. And the KTC in determining this, did not do so solely on the basis of the rival affidavits together with their exhibits. Instead the KTC took evidence from both parties, which evidence is in the record of proceedings. Both parties appointed attorneys to lead evidence on their behalf.

It is important for the plaintiff to learn and appreciate that it is at the hearing of this preliminary trial on res judicata that he the plaintiff is duty bound to produce all the evidence he has to support his stand that the judgments has been compromised. Otherwise if the defendants succeed in establishing their plea of res judicata the action will be dismissed. It is not at the hearing of the substantive suit that he has to establish his compromise once there is a preliminary hearing on the res judicata. It is such misconception which underlies most of his submissions. Thus in his statement of case, he states:

“At the stage where the Kumasi Traditional Council by a majority struck out the case of the plaintiff-respondent-appellant herein, no evidence had been led to give the particulars an in-depth explanation of how the Aduana’s came to man the stool

[p.248] of [1999-2000] 1 GLR 236 of Sekyedumase after the 1947 decisions as the trial of the case had not commenced.”

But certainly the trial of the substantive suit cannot commence unless the defendant’s plea of res judicata raised as a preliminary issue is defeated by the plaintiff successfully establishing his contention that the said 1947 judgment had indeed been compromised. Especially as in the preliminary trial the plaintiff’s attorney admitted under cross-examination that the said judgments effectively determined his claim in the instant action. Thus in the record, the plaintiff is cross-examined by the defendants as follows:

“Q Does exhibit 1 prove that the Sekyedumase issue has already been determined or does it mean the case has not been determined?

A Exhibit 1 confirms that the Sekyedumase issue has already been determined but being dissatisfied with the decision, we have taken up the matter again.

Q What massage does exhibit 2 which you tendered conveys A I admit that exhibit 2 confirms your claim that the Sekyedumase chieftaincy issue has already been determined but being dissatisfied with the decision on the matter, we are again pursuing the issue.”

The plaintiff thus concedes that his claim had already been determined by a competent tribunal but nevertheless believes that he can reopen it by the instant suit. The doctrine of res judicata does not permit such reopening of matters effectively determined by a competent judicial tribunal.

But in spite of his clear assertion evidenced by the reliefs he claims that he is reopening the Sekyedumase affairs, the plaintiff at the same time seeks to contend that the 1946-47 judgments had been compromised. As to how the compromise came about, the plaintiff’s attorney in his evidence at the preliminary trial stated:

“In 1958 both the Aduana family and the Oyoko family were one day invited to the palace of the Asantehene by Otumfuo Sir Osei Agyemang Prempeh II. When the family appeared before the Asantehene, he informed us that after scrutinising all the relevant documents on the Sekyedumase stool affair, he had [p.249] of [1999-2000] 1 GLR 236 come to the conclusion that the Sekyedumase stool was the property of the Aduana family. In view of this, he gave the Aduana family the go ahead to install their candidate on the Sekyedumase stool. It was in response to the Asantehene’s order that in 1958 the Aduana family installed Nana Kofi Anti alias Nana Kofi Takyi on the Sekyedumase stool … I may point out that the enstoolment of Kofi Anti as Sekyedumasehene in 1958 invalidated the 1946-47 judgment of both the Kumasi Divisional Council and the Ashanti Confederacy Council. It again invalidated the oath sworn by the Aduana family in 1946 in which they pledged that they would remain loyal subjects to the Sekyedumase stool.”

The above evidence from the plaintiff’s attorney explains how the alleged compromise came about and why Nana Kofi Anti of the Aduana family came to be on the Sekyedumase stool. The KTC then cross-examined the plaintiff’s attorney, inter alia, as follows:

“Q Since Otumfuo made that order how many Aduana royals have mounted the stool before?

A Only Nana Kofi Anti has since that time mounted the stool. Kofi Takyi was the same as Kofi Anti. He was removed by a government Decree.

Q Has anyone occupied the stools since the time of Kofi Takyi?

A Since Kofi Takyi, Kwame Abora and Nana Gyima II have occupied the stool before.”

The evidence on record indisputably establish that Kwame Abora and Nana Gyimah II were of the Oyoko family. Now the obvious question is, if indeed what took place in 1958 before Otumfuo Asantehene was a compromise, why was Kofi Anti removed by NLCD 112, and why should Nana Abora be succeeded by Nana Gyima II? But first, does what took place in 1958 amount to a compromise capable of preventing the defendants from reaping the fruits and benefits of the 1946-47 judgments?

For a judgment to be said to have been compromised, it must be established that the parties thereto or their privies voluntarily agreed to submit the said judgment or its subject matter to be settled on terms. The element of voluntary submission is indispensable. Thus

[p.250] of [1999-2000] 1 GLR 236 in Akwei v Akwei [1961] GLR 212 at 213, Ollennu J (as he then was) put it thus:

“If after a court of competent jurisdiction had adjudicated upon a dispute between parties, the parties voluntarily submitted the dispute in respect of the same subject-matter to arbitration, they will be estopped from claiming the fruits or benefits of the said judgment of the court, and would be bound by the award of the arbitration held subsequent to that judgment.”

See also Yardom v Minta III (1926) FC ‘26-’29,76; Agiti v Osahene (1954) DC (Land) ‘52-’55, 257; and Sebeh v Sekyim [1965] GLR 329, SC.

In respect of voluntarily submission, it has been held on a number of occasions that the mere responding to the call of a chief does not amount to such submission, for that person might have done so out of respect for the chief. Especially, in the instant case, where the invitation came from no mean a chief than the Otumfuo Asantehene himself. Thus Adumoah-Bossman JSC in Paul v Kokoo [1962] 2 GLR 213 at 218 stated that:

“Where therefore the attendance is in consequence of an invitation following a complaint, it is essential that the evidence should show clearly and distinctly that a proposal to arbitrate the dispute was put forward, and more important, that both parties voluntarily and in no certain terms expressed their agreement to the proposal.”

Now, the evidence of the plaintiff’s attorney quoted above on the compromise shows that:

(i) there was no complaint from either party to Otumfuo when he invited them in 1958;

(ii) it was the Asantehene himself who on his own decided to invite the parties;

(iii) and this is very important, none of the parties was allowed to say anything: and

(iv) he order of the Asantehene at that meeting was his own without any input from either of the parties.

[p.251] of [1999-2000] 1 GLR 236

How then can what transpired at the Asantehene’s palace in 1958 constitute a compromise of the 1946-47 judgments?

Indeed, the idea of a compromise presupposes that each party to a dispute agrees to give up a part of what he demands, and not a total surrender of his claim. Thus Lawrence LJ in Gurney v Grimmer (1932) 38 Comm Cas 7 at 18 said that a compromised matter:” … assumes that a mutual concession has been made by both parties and that each party has got something less than he claimed.” But in the instant case while the 1946 judgment of the KDC as later confirmed by the Ashanti Confederacy Council had it that both the male and female stools of Sekyedumase are the exclusive property of the Oyoko family, the alleged compromise order of the Asantehene in 1958 was that the Sekyedumase stool belonged to the Aduana family. Such an order is not and cannot be a compromise order of the 1946-47 judgments.

It is therefore clear that from the averments in his affidavit in opposition and the evidence of his attorney, the plaintiff’s contention that the judgments of 1946-47 had been compromised is patently porous and untenable. Indeed, in his evidence, the plaintiff’s attorney said that the 1958 order of the Asantehene “invalidated” and not compromised the 1946 judgment. The majority at the KTC and the NHC were therefore justified in holding that the judgments were not compromised and I agree with them. Grounds (a) and (c) therefore fail.

Now, in respect of his ground (b) of his appeal, the plaintiff contends that because no evidence was permitted to be led, his reliefs, particularly that of (b) were not dealt with and yet his action was dismissed. In his relief (b) the plaintiff claims a declaration that the second defendant is not a queenmother or obaapanin of Sekyedumase as the same has not been properly enstooled as such queenmother or obaapanyin of Sekyedumase in accordance with custom, tradition and usage. But in his accompanying statement of claim there was no averment on this relief, nothing on the proper way of enstooling a queenmother and why the second defendants is alleged not to have been properly enstooled. It was a relief unsupported by any allegation in the statement of claim. And it cannot therefore be doubted that the reason for making that claim was to reopen the Aduana family’s claim to the queenmother’s stool of Sekyedumase a claim which like that of the male stool had been effectively

[p.252] of [1999-2000] 1 GLR 236 determined in the 1946 judgment of the Kumasi Divisional Council in favour of the Oyoko family. The said 1946 judgment wherein the Oyoko family were the plaintiffs and the Aduana, the defendants, is in the record of proceedings, and concludes thus:

“In view of the foregoing, the council finds for the plaintiff and his relatives as against the defendant and his relatives with costs to be taxed. It is decreed that henceforth the two stools, i.e. both the male and the female should be inherited by the plaintiff’s family and become their exclusive property. The defendant and his relatives should be treated as subjects of the stool.”

In the face of the above decision, the plaintiff herein cannot reopen his Aduana family’s claim to the queenmother’s stool of Sekyedumase through any ingenious couching of his relief in the instant action.

It is, indeed, clear from his statement of case that the plaintiff has misread or misunderstood the judgment of the Ashanti Regional Houses of Chiefs. For the statement wherein he criticises the decision of the National House of Chiefs, he sets out what in his view are the problems arising from the decision of the National House of Chiefs and after listing some of these problems, he concludes in his point (c) that: “That was the reason why the Ashanti Regional House of Chiefs said that the parties be left to a full scale trial of the issues in controversy.”

This is false. The Ashanti Regional of House of Chiefs clearly conceded that the claims of the plaintiff were effectively determined in the 1947 judgments. Thus in the record, the Ashanti Regional Houses of Chiefs in its judgment said:

“In deciding this appeal, we think the most crucial issue raised by counsel’s submission is whether or not this matter is, res judicata in view of the earlier judgments. We have no doubt that the parties in the present suit, namely the Aduana and Oyoko families of Sekyedumasi are the same as those in the earlier cases. We have no doubt also that the subject matter of the present petition is the same as that which was determined by the Kumasi Divisional Council, then the Ashanti Confederacy Council and finally by the Chief Commissioner’s

[p.253] of [1999-2000] 1 GLR 236

Court, all being courts of competent jurisdiction. We are of the view that if the above ingredients were the sole criterion for determining the issue of estoppel per rem judicatam,[sic](2) we would have had no hesitation in dismissing this appeal as unmeritorious.”

What the Ashanti Regional House of Chiefs was concerned with was the plaintiff’s contention that those judgments had been compromised. Thus the house goes on in its judgment: “However, learned, counsel’s submission that the earlier judgments in this case were compromised in 1957 by the respondents thereby rendering the said judgments ineffective, is worth considering.” For the above concern, the Ashanti Regional House of Chiefs concluded its judgment thus: “. . . this appeal must be allowed to enable the appellant adduce evidence (if any) in support of his contention that the judgment of 1946 has been compromised by the respondents.” The house then made the following orders:

“(a) The appellant shall file his pleadings on or before the 22 April 1994 in respect of the proceedings or events before the Asantehene in council in 1958 when the 1946 judgment of the Chief Commissioner was allegedly compromised.

(b) On fulfilling this condition, the respondents may file their defence on or before the 14 May 1994 and there after the case would take its normal course.”

By the above orders the Ashanti Regional House of Chiefs wanted evidence to be taken in respect of the plaintiff’s claim that the judgments had been compromised. For in the Ashanti Regional House of Chief’s view, which was of course erroneous, no evidence was led at the time that the issue of res judicata was being determined. Thus the Ashanti Regional House of Chiefs in its judgment said: “It is worth noting at this stage that the committee below decided the issue of res judicata solely on the affidavits and the exhibits tendered by both sides.” But as pointed out earlier, the Kumasi Traditional Council took evidence from both parties. Indeed, because the Ashanti Regional House of Chiefs did not realise that such evidence was led by both parties, nowhere in its judgment did the house quote, refer to nor examine any piece of the evidence [p.254] of [1999-2000] 1 GLR 236 led at that preliminary trial. Such an oversight on the part of the Ashanti Regional House of Chiefs is a serious error which occasioned a substantial miscarriage of justice, resulting in the house making orders on matters in respect of which evidence had already been led. The National House of Chiefs in its meticulous analysis of the record, saw the evidence led by the parties, quoted and examined the relevant portions, and came to the right decision.

In conclusion, the events relied on by the plaintiff as compromising the 1946-47 judgments do not constitute a compromise. And once he had every opportunity at the preliminary trial to adduce whatever evidence he has in support of his alleged compromise, which evidence he did, indeed, adduce through his attorney, he cannot be permitted to reopen the Sekyedumase stool affairs, which all the three chieftaincy tribunals found to have been determined by the 1946-47 judgments. There must be an end to litigation. Accordingly, this appeal ought to be and is hereby dismissed. The judgment of the National House of Chief is affirmed.

JUDGMENT OF ADJABENG JSC.

I agree that the appeal be dismissed.

JUDGMENT OF AKUFFO JSC.

I also agree that the appeal be dismissed.

DECISION Appeal dismissed.

LSNA

Endnotes

1 (Popup – Footnote) sic same in original. 2 (Popup – Footnote) [sic] same in content