ADAI vs. ANANE [1973]DLHC2347

Date	1973-11-13
Suit No.
Citation No.	[1973]DLHC2347

OSEI-HWERE J.

S. K. AKOTO FOR THE APPELLANT.

OSEI KOFI FOR THE RESPONDENT.

[1973]DLHC2347
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													<main id="main" class="content" style="min-height: 60rem" >ADAI<o:p></o:p>&nbsp;vs. <o:p></o:p>ANANE <o:p></o:p>[HIGH COURT,
SUNYANI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
1 GLR 144<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
13 NOVEMBER 1972.<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">

S. K. AKOTO FOR THE APPELLANT.<o:p></o:p>

OSEI KOFI 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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
defendant-appellant (hereinafter called the defendant) appeals against the
decision of the District Magistrate Grade II, Bechem, wherein the
plaintiff-respondent (hereinafter called the plaintiff) was “adjudged owner of
the piece of land in dispute and the sum of ¢100.00 damages awarded against
defendant.” By his writ of summons the plaintiff sued the defendant claiming a
declaration of title, ownership and possession of the land in dispute and
¢300.00 damages for trespass. The plaintiff supported his writ by a statement
of claim in which he traced his root of title to his grandfather. About eight
years prior to the filing of the statement of claim, the plaintiff averred, he
had disputed over the area in question with one Kwame Missa, the plaintiff’s
second witness, a boundary owner, and he had been adjudged the rightful owner
in an arbitration settled before the odikro of Bredi. The defendant also filed
a defence in the following terms:<o:p></o:p>&nbsp;(1) That the subject-matter of this suit had
been adjudicated in an arbitration held and presided by Nana Duayaw-Nkwantahene
in February, 1970, in which the defendant [sic] was present without any duress
and the arbitration award was made in my favour. (2) I plead res judicata in
this case. (3) That I shall submit evidence in support of my defence during
hearing. (4) That the plaintiff’s claim cannot be entertained by reason of
facts contained in paragraphs (1), (2) and (3) above.”<o:p></o:p>At the
hearing, the plaintiff called evidence to support this arbitration before the
Bredi odikro whilst the defendant in turn called evidence to establish the
arbitration before the Duayaw-Nkwantahene. In his judgment the trial magistrate
made certain findings in favour of the plaintiff on the supposed issues raised
in the summons for directions and regarded as a nullity the arbitration award
made in favour of the defendant. It is against this judgment that he filed two
original grounds of appeal and nine supplementary grounds of appeal. At the
hearing of the appeal the defendant’s counsel sought and was granted leave to
argue the supplementary grounds of appeal. The first ground of appeal was that
the trial magistrate was wrong in finding that the defendant slept over his
rights in not joining the alleged arbitration before the odikro of Bredi. The
impugned finding is the result of the trial magistrate’s assessment of the
plaintiff’s evidence on the arbitration before the odikro of Bredi where he
said:<o:p></o:p>“In the
face of incontrovertible evidence of the plaintiff supported by Kwame Missa
himself and the present odikro of Bredi before whom the arbitrators were heard,
the crux of the matter as far as I can see is that as far back as eight years
ago the plaintiff herein brought a case of trespass against Kwame Missa for
entering into the same piece of land whilst the defendant herein was alive and
still alive but slept over his right, not even joining in as co-defendant to
fight for his right.” The defendant’s counsel challenges this finding, first
because it is doubtful whether there was any such arbitration at all. This is
because all the witnesses could not agree how long ago the arbitration took
place. The plaintiff said it took place about eight years ago, the plaintiff’s
first witness (the odikro of Bredi) said five years ago, whilst the plaintiff’s
second witness (Kwame Missa) said it took place about three years ago.
Secondly, there was no evidence to show that the defendant was aware of the
arbitration. Thirdly, what took place before the odikro of Bredi, if it took
place at all, cannot in law constitute an arbitration. Counsel for the
plaintiff made some bold attempts to justify the finding of the trial
magistrate but his argument, to my mind, was on the whole specious. It must be
conceded that where illiterate witnesses testify as to dates due allowance must
be made for imprecision; but where the time lapse testified by such witnesses
are far and wide apart by as much as five years even though the alleged event
occurred inside the period of eight years then the credibility of the witnesses
must be seriously impaired. Equally, the argument by the plaintiff’s counsel
that the defendant ought to have known of the trespass by Kwame Missa and he
should therefore have known of the arbitration is unconvincing. Arbitration
proceedings are not endowed with the same element of publicity as court
proceedings are wont to be. Mere inaction when two strangers are disputing over
one’s property cannot operate as an estoppel because whatever decision is
arrived at will amount to no more than a res inter alios acta which cannot be
admitted in evidence against him. The arbitration before the odikro of Bredi,
if of any worth at all, will merely go to support the plaintiff’s acts of
ownership over the disputed land - a necessary proof to establish a claim to
ownership. The magistrate’s finding clearly discloses that he completely
misconceived the law on what has been described in the terminology of the Court
of Appeal as estoppel by “standing by,” the foundation of which doctrine is the
dictum of Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P. &amp; D. 327
at p. 329 where he said: “[I]f a person, knowing what was passing, was content
to stand by and see his battle fou</main>