SAASUO AND ANOTHER vs. TEMABI AND ANOTHER [1962]DLHC1701

Date	1962-06-04
Suit No.
Citation No.	[1962]DLHC1701

APALOO J.

S. K. K. SOTOMEY FOR THE DEFENDANTS-APPELLANTS.

I. R. ABOAGYE FOR THE PLAINTIFFS-RESPONDENTS.

[1962]DLHC1701
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">SAASUO AND ANOTHER<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">TEMABI AND ANOTHER <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1962] 1 GLR 439<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 4TH JUNE, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

S.
K. K. SOTOMEY FOR THE DEFENDANTS-APPELLANTS.<o:p></o:p>

I.
R. ABOAGYE FOR THE PLAINTIFFS-RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

APALOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO J.<o:p></o:p>This is an appeal from the judgment of the Sekyere Local Court
delivered on the 15th June, 1961. In that action, the plaintiff claims against
the defendant damages for trespass to a farmstead said to be situated at a
place called Boakyi. The local court magistrate non-suited the plaintiff and
ordered the land in dispute to be partitioned between the parties.<o:p></o:p><o:p>&nbsp;</o:p>It appears from the evidence that the land in dispute is situated
between the farms of both parties. The defendant claims that he went on the
land on the authority of his maternal uncle by name Kwasi Akoi. The latter was
joined to the suit as a co-defendant on his own application. A Mr. Kofi Ntem
who also claimed to have authorised the plaintiff who is his niece to institute
the present proceedings also sought to join this action. He was joined as
co-plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The evidence shows that about twenty-two years ago, there was some
sort of dispute on the identical piece of land which is the subject-matter of
the present dispute between the co-plaintiff and the defendant. The record
shows that the defendant was not in funds to pay the oath fee and no
adjudication of the conflicting rights of the parties was made as a result of
it. It does seem, however, that consequent upon that oath case, the defendant
left off farming on the land in dispute. His uncle, the co-defendant was away
from home when this oath case took place. When he returned, he authorised the
defendant to cultivate the area. I think his object was to assert his title and
test the pulse of the plaintiff and her family. The defendant did so and met on
the land the plaintiff and some members of her family. As is only to be
expected, a clash occurred between the defendant and members of the plaintiff’s
family and both parties soon found themselves in the local authority police
station.<o:p></o:p><o:p>&nbsp;</o:p>It seems that the police dismissed the parties after some
admonition, but the scene was clearly set for litigation. A man by name Kofi
Forfie who is admitted to be a relation of the plaintiff, aimed at forestalling
this. He felt that rather than resort to litigation, the dispute between the
parties should be informally decided and settled between them. He accordingly
assembled some elders in the locality to investigate this dispute. There can be
no doubt that Forfie was behaving perfectly properly and with a high sense of
responsibility. A man by name Kwame Brewu was invited by Forfie to preside over
this matter. He did. Both parties willingly gave evidence, paid customary rum
and after hearing evidence the land was viewed. By common consent, the
co-defendant was adjudged to be the owner of the land. All the parties thought
what happened was a customary arbitration. The trial local court magistrate was
of the same view. The reason why the co-plaintiff sued irrespective of the finding
against himself was put in his own words as follows: “Yes, I have recently held
an arbitration with you in respect of the same farmstead before Kwame Brewu but
I was not satisfied, hence this action.”<o:p></o:p><o:p>&nbsp;</o:p>As I have said the local court magistrate was of opinion that what
transpired between the parties was a binding customary arbitration and he felt
satisfied that the parties submitted to it. It turned out from the evidence,
however, that a Mr. Osei Kojo, the Atipenhene of Beposo who was one of the parties
who sat on this matter, was not present when the locus was viewed, but was
present when the award was published. The magistrate thought this was fatal to
the validity of the award and proceeded to annul it. He said: “This is bad in
procedure and the decision of the arbitrators is, therefore, nullified by this
judgment and hereby revoked and set aside.” Having set the arbitration aside,
the magistrate proceeded to hold that “neither party has made any case which
entitles him or her to have a complete possession of the disputed area.” He
then ordered a partition of the land.<o:p></o:p>