ASANO vs. TAKU AND ANOTHER [1973]DLHC2363

Date	1973-07-17
Suit No.
Citation No.	[1973]DLHC2363

EDWARD WIREDU J.

OSEI FOR THE APPELLANT.

CARSON FOR THE RESPONDENTS.

[1973]DLHC2363
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													<main id="main" class="content" style="min-height: 60rem" >ASANO <o:p></o:p>vs. <o:p></o:p>TAKU AND ANOTHER <o:p></o:p>[HIGH COURT, CAPE
COAST]<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 312<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:
17 JULY 1973.<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">

OSEI FOR THE APPELLANT.<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">

EDWARD WIREDU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDWARD WIREDU J.<o:p></o:p>This is
an appeal from the decision of the Fante Nyankumasi District Court Grade II
dated 25 September 1970. That decision dismissed a claim by the
plaintiff-appellant (who shall hereafter be referred to simply as the plaintiff)
to enforce costs awarded him at an arbitration presided over by Nana Kwame Nkyi
of Assin and upheld a claim by the defendants-respondents (who shall hereafter
be referred to as the defendants) to set aside the said award and an order for
a declaration of title in respect of a piece of land over which the said award
was made in favour of the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The brief
facts of this case are that the second defendant is a younger brother of the
first defendant. The evidence shows that the plaintiff is the fetish priest of
an obosum called Tigare brought to the Ochiso village by the first defendant,
the plaintiff and other inhabitants of the village. The obosum was housed in a
building in which the plaintiff is staying situate near the disputed land on the
outskirts of the village. Some weeks prior to the institution of the
plaintiff’s action which has culminated in this appeal the second defendant
went to the area in dispute with a view to constructing a house there but he
observed that the area had been cleared by the plaintiff who objected to his
(second defendant’s) using the place. The second defendant therefore reported
the conduct of the plaintiff to his elder brother, the first defendant, who
went and challenged the plaintiff. The evidence shows that prior to this
confrontation there had been some dispute between the plaintiff and the first
defendant about the plaintiff’s occupation of the area as a result of which the
land in the area was apportioned by the oman between them. The parties on the
evidence appeared to have accepted this apportionment. The events which seem to
have sparked off the present action were that when the first defendant went and
challenged the plaintiff’s authority for objecting to the second defendant’s
presence on the land, he alleged that he put the plaintiff into occupation of
the area he occupies and denied the plaintiff’s title to the same. The
plaintiff thereupon swore an oath on the defendants to which they responded.
Following the response a complaint was made by the plaintiff to the Omanhene
Nana Kwame Nkyi who invited the parties and he and some of his elders and other
members of the oman constituted themselves into an arbitration to determine the
issue which provoked the swearing of the oath. The evidence shows that before
the matter was gone into each party paid an amount of N¢10.10. After this the
plaintiff gave his version of the case. He was cross-examined by the defendants
as well as some members of the arbitration. After him the defendants were each
called upon to give their version of the story which they did. They also like
the plaintiff were cross-examined by some members of the panel of arbitrators
after the plaintiff had cross-examined them. The arbitrators did not call
witnesses of either party and retired to consider their verdict on the evidence
of the parties alone. The evidence shows that during their deliberations the
issue of the witnesses was discussed but a majority of the members thought that
was unnecessary. Members of the arbitration therefore agreed to exclude the
evidence of the witnesses and cae to pronounce their verdict in favour of the
plaintiff and the defendants were asked to pay the plaintiff’s expenses or
costs assessed at ¢27.00. The defendants refused to pay the costs on the ground
that their witnesses were not called to testify at the arbitration. The
plaintiff by his present action is seeking to enforce the costs awarded. The
defendants resisted the plaintiff’s claim and by their counterclaim claimed as
follows:<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">“(a) An
order to set aside the award of the arbitration headed by Nana Kwame Nkyi XII,
and his elders at Assin Manso on Sunday the 19th day of July 1970, in the case
of Yaw Asumang - plaintiff v. Kwadjo Toku and Kwabena Frempong - defendants as
it infringes against the principles of natural justice, equity and law. (b) A
declaration of title to all that piece or portion of land situate, lying and
being at Assin Ochiso and bounded as follows: One side by Opanyin Kwame Pong’s
house, one side by Kojo Yeboah’s house and one side by the village of Ochiso.”<o:p></o:p><o:p>&nbsp;</o:p>After
hearing evidence from both parties and their witnesses the trial magistrate
held as follows:<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</main>