AWISI vs. NYARKO [1966]DLHC1658

Date	1966-01-11
Suit No.
Citation No.	[1966]DLHC1658

HAYFRON-BENJAMIN J.

P. D. ANIN FOR THE APPELLANT.

OWUSU-ANSAH FOR THE RESPONDENT.

[1966]DLHC1658
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													<main id="main" class="content" style="min-height: 60rem" >AWISI <o:p></o:p>vs. <o:p></o:p>NYARKO <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1966] GLR 3<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
11 JANUARY 1966.<o:p></o:p>

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

P. D. ANIN FOR THE APPELLANT.<o:p></o:p>

OWUSU-ANSAH FOR THE RESPONDENT.<o:p></o:p>

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

HAYFRON-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.<o:p></o:p>This is
an appeal from the decision of the Tano Local Court held at Yamfo on 2 March
1965. The plaintiff was by that decision declared the owner of the cocoa farm,
the subject-matter in dispute, which is at a place commonly known and called
“AHYIAYEM” on Yamfo stool land and bounded by the cocoa farms of Akosua Kraa,
Amma Nsuapem, Adwoa Ayisi the defendant and Kofi Darko.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s case in the trial court was that the farm in dispute is one of two
farms given to her by her late husband one Kwame Nyina as a gift. This gift was
in the presence of witnesses and she accepted the gift, and gave her husband
some drink and some money by way of aseda. She entered into possession by
placing a caretaker, one Gruma, in charge of the farm, who harvested the crops
twice for the plaintiff. The defendant claiming to have been given this same
farm as a gift by the same man collected the third crop which had been
harvested by the caretaker, and this was the immediate cause of the litigation.<o:p></o:p><o:p>&nbsp;</o:p>She
further said, and this is amply supported by the evidence on the record, that
after her husband had subsequently purported to give this farm as a gift to her
rival, the defendant, she lodged a complaint to one Kwasi Achiampong, the
former Akwamuhene. There was an arbitration and the husband was found in the
wrong, and ordered to pacify the plaintiff and to give the farm back to her.<o:p></o:p>The
defendant’s answer to this case is that the farm was given to her as a gift,
and that it was never given to the plaintiff at all. The local court
magistrate, despite the tortuous style in which he framed his judgment, found
as a fact that the farm was first given to the plaintiff and then to the
defendant. He also accepted the evidence as to the arbitration. The questions
that arise for the determination in this appeal are therefore:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1) Whether the defendant is
bound by the arbitration award; and<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) if not whether the husband
could validly revoke a completed gift to the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>In Abbey
v. Ollennu,1 a vendor sold and conveyed land to the defendant, who built on the
land in ignorance of the fact that after his purchase, and before he built, the
plaintiffs had sued his vendor and obtained a declaration of title in their
favour. The plaintiffs then sued the defendant for recovery of possession of
the land and argued that the defendant was bound by the declaratory judgment
obtained against the defendant’s vendor. It was held by the West African Court
of Appeal that the defendant was not estopped as being privy in estate by a
judgment in an action against his vendor commenced after the purchase.
Foster-Sutton P. delivering the judgment of the court relied on the case of
Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and
Agency Co.2 in which Romer J. said,3 “A prior purchaser of land cannot be
estopped as being privy in estate by a judgment obtained in an action against
the vendor commenced after the purchase.” I am of the view therefore, and I
hold that the arbitration award is not binding on the defendant.<o:p></o:p><o:p>&nbsp;</o:p>However,
the local court magistrate as I have said above found as a fact that there were
two gifts. There is some evidence on the record to support this finding and
even though this court might not have reached the same conclusion as the local
court magistrate, had the case been tried here, I am not entitled to reverse
this finding of fact unless it is proved or established to be clearly wrong and
against the weight of the evidence. As Smyly C.J. said in the case of Lamptey
v. Lamptey4:<o:p></o:p>