MENSAH vs. ESAH [1974]DLHC407

Date	1974-07-30
Suit No.
Citation No.	[1974]DLHC407

LASSEY J.A

SOWAH J.A

FRANCOIS J.A.

ESSIEM FOR THE APPELLANT.

T. A. MENSAH FOR THE RESPONDENT.

[1974]DLHC407
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH <o:p></o:p>vs. <o:p></o:p>ESAH<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 1 GLR 424<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:
30 JULY 1974.<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">

ESSIEM 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">

LASSEY, SOWAH AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.A.<o:p></o:p>This is
an appeal from the judgment of the high Court, Sekondi. The facts can be stated
briefly. By an amended writ, the plaintiff sought the enforcement of an
arbitration award which declared in his favour, title to nine farms belonging
to one Yareyeya, deceased.<o:p></o:p>The
plaintiff averred that he as the nearest kinsman was the rightful successor of
the late Yareyeya, who through an unfortunate turn of fate had sojourned for
most of his 63 years with the defendant’s family at Bankromisa in Bibiani
having lost touch with his own family. The plaintiff denied that the long stay
of the deceased with the defendant’s family indicated any relationship, blood,
adopted or otherwise, between Yareyeya and the defendant. He maintained that
towards the end of his life, Yareyeya had been re-united with his lost family
and had recognised the plaintiff as the son of his sister, Ackah Manti, and his
natural heir and successor. These facts, according to the plaintiff, were
considered at an arbitration held before the Krontihene of Bibiani. The said
arbitration had ruled in his favour and awarded him eight of the deceased’s
farms and the defendant one. The latter however had added his share to the
plaintiff’s.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant told a different tale and in resisting the plaintiff’s claim, listed
in paragraph (12) of his defence a number of circumstances favouring him in the
successorship stakes. I quote:<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">“(12) The
defendant is therefore entitled to possess, control and enjoy all the nine
cocoa farms and other properties the subject-matter of this action. Firstly by
virtue of the samansiw made in favour of the defendant by Yareyeya a day or two
before his death; secondly, by virtue of his position as the head of Yareyeya’s
new adopted family and thirdly by virtue of the fact that the defendant was the
person appointed by the family and all.”<o:p></o:p>It was
the defendant’s further contention that the subsequent arbitration held by the
Krontihene was invalid as he was not allowed to make his case and that in any
event what transpired at the arbitration amounted to no more than an abortive
attempt at a settlement.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence on record suggests a keen tussle between the plaintiff and the
defendant on the issue of who was the rightful successor of the said Yareyeya.
The plaintiff was at pains to trace his kinship with the late Yareyeya through
an Nzima line and the defendant was equally concerned to establish that
Yareyeya was a Northerner who had been adopted by the defendant’s family and
consequently had lived with the said family all his adult life. There was
therefore enough material on record for a positive finding on the issue of
successorship.<o:p></o:p><o:p>&nbsp;</o:p>The case
was however not fought on that issue. The plaintiff’s stance was that since his
right to succeed had already been determined by the aforesaid arbitration, the
court was merely to enforce the arbitral award. The defendant however denied to
those proceedings any validity and the contest consequently revolved on the
narrow issue whether a valid arbitration had taken place or not. Indeed the
learned judge defined his function 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">“The
claim being within a small compass, i.e. the enforcement of the arbitration
award it seems to me that a lot of effort has been expended both in the
pleadings and evidence to show or contradict the fact that the plaintiff or the
defendant is the person who by virtue of his relationship with Yareyeya is the
more entitled to succeed him. The issue which I am to resolve is whether or not
there was the alleged arbitration, and if so what the award was.”<o:p></o:p>