M. D. Bassil & Anor V. Abraham Kwaku Honger (1954) LJR-WACA

M. D. Bassil & Anor V. Abraham Kwaku Honger (1954)

Native Law and CustonF—.Master marrying his own female slave—Position of children and their uterine descendants—Lease of family property without concurrence of principal members.
Estoppel—Testimony in another suit not affectingfamily’s position—Testimony by person not a party to that suit.
Res Judicata—Cases not resting on same foundation: different parties, etc

Facts

One Mama Nassu married some female slaves of his and a lawful wife; the main controversy was whether it was only the maternal descendants of the lawful
wife who had a voice in leasing property of the Mama Nassu family: the maternal
descendants of the slave wives claimed that they had a right to be consulted.

At the material time Acquah (the second appellant above) was the head of the family. He, with the concurrence of the family, authorised someone to make an agreement for a lease with G. & S. Busby (but Acquah denied these facts).

Later, Acquah, with the concurrence of his sisters and niece, who with him were
the descendants on the side of Mama Nassu’s lawful wife, but without the concurrence of the principal members on the side of the slave wives—in fact those
of them he consulted opposed it—executed a lease of the premises in favour of
Bassil (the first appellant above).

The Busbys sued Acquah for specific performance of the agreement for a lease to them, and in that suit members of the Mama Nassu family on the side of the slave wives gave evidence that there had been a valid concurrence to a lease to be given to the Busbys. The trial Judge thought (rightly: see the appeal No. 34/53, George Busby and Another v. Kefi Nassu Acquah, decided on 30th June, 1954) that Acquah by executing a lease in favour of Bassil put it beyond his
power to implement the agreement with the Busbys and refused the Busbys’
claim. (For the Busbys’ appeal see p. 574.)

A. K. Honger, the respondent above, sued as head of the family of G. A. Nelson, according to the title of the suit, in fact as head of the Mama Nassu family, and the defendants Acquah and Bassil (appellants above) agreed to have him regarded as such for the purpose of the suit; the plaintiff (now respondent) claimed that the lease be set aside and obtained judgment.

The defendants appealed and the arguments for them were, as they had been in the trial Court, (1) that the descendants on the side of the slave wives had no right to be consulted, and (2) that (a) having supported the Busbys in the earlier suit, they were estopped from pursuing their present suit, and (b) the Court having held in the earlier suit that the lease to Bassil was a bar to granting specific performance to the Busbys thereby declared upon the validity of the lease to Bassil (which was now in question here).

Held

When a master married his own female slave, their children were by customary law adopted into his family and their uterine descendants are members of his family on the same footing as the free uterine descendants therefore the lease to the first appellant executed by the second appellant and his sisters and niece was not valid as against the other principal members of the family and was of no effect as a lease.

Held also: (a) The attitude of the other principal members of the^family in
the earlier suit in which they were not parties was consistent with the respondent’s claim in the present case; the argument drawn from estoppel failed as there was
no alteration in the family’s position.

(6) The judgments in the above suits did not rest on the same foundation: the parties were not the same nor the cause of action; there were no admissions in the earlier suit on which the defendants could rely in the second suit, nor was the validity of the lease here in question an issue in the earlier suit: therefore there was no res judicata.

Appeal dismissed.