MANTE AND ANOTHER vs. BOTWE [1988]DLCA638

Date	1988-10-19
Suit No.
Citation No.	[1988]DLCA638

TAYLOR J.S.C.

OSEI-HWERE J.A

LAMPTEY JJ.A.

JONES MENSAH (FOR ASANTE TANOR) FOR THE DEFENDANTS-APPELLANTS.

FRIMPONG BOADU FOR THE PLAINTIFF-RESPONDENT.

[1988]DLCA638
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													<main id="main" class="content" style="min-height: 60rem" >MANTE AND ANOTHER <o:p></o:p>vs. <o:p></o:p>BOTWE<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 479<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:
19
OCTOBER 1988<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">

JONES MENSAH (FOR ASANTE TANOR) FOR THE
DEFENDANTS-APPELLANTS.<o:p></o:p>

FRIMPONG BOADU FOR THE PLAINTIFF-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">

TAYLOR J.S.C., OSEI-HWERE AND LAMPTEY
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.S.C.<o:p></o:p>I agree
with the decision which my brother Osei-Hwere J.A. will be reading that the
appellants are entitled to succeed in their appeal. They lost in the district
court and in the High Court and for that reason, it is necessary to indicate
why the decisions of these lower courts are in effect being set aside by this
court.<o:p></o:p><o:p>&nbsp;</o:p>The facts
have been exhaustively set out in the judgment of my learned brother Osei-Hwere
J.A. and I do not therefore consider it necessary to repeat the said facts.
Pleadings were filed in the district court, but there was no summons for
directions, with the result that the issues were not highlighted to enable the
lower courts to appreciate precisely the matters in controversy which ought to be
resolved to enable a decision to be given. On a close reading of the pleadings
and the evidence led, the issues can be identified, however, as follows:<o:p></o:p>(1) Is the plaintiff estopped from instituting the action by
virtue of a valid customary arbitration held before the odikro of Opoase at
which the disputed land was adjudged to belong to the defendants?<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) Did the plaintiff’s
predecessor in title, Kwesi Larbi, sell one half portion of the disputed land
to Kwadwo Okoto and the other half to Kwame Opee who were respectively, the
predecessors in title of the defendants?<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The lower
courts and the lawyers for the parties devoted considerable attention to the
question of the arbitration before the odikro. In the district court, however,
unchallenged evidence was led on behalf of the plaintiff-respondent
(hereinafter referred to as the plaintiff) that at the arbitration her “witness
was not invited to give evidence.” I do not see how the said evidence given
that the witness of the plaintiff was in effect not called can be controverted
now on appeal when no suggestion whatsoever was put to the witness who gave
this piece of evidence for the plaintiff that her version of the matter is not
true. Lord Herschell L.C. in the House of Lords in Browne v. Dunn (1894) 6 R. 67
at 71, H.L. reiterated the applicable principle when he said:<o:p></o:p>“I have
always understood that if you intend to impeach a witness, you are bound,
whilst he is in the witness box to give him an opportunity of making an
explanation which is open to him.”<o:p></o:p><o:p>&nbsp;</o:p>The same
view was taken by Adumua-Bossman J.S.C. when reading his judgment in our
erstwhile Supreme Court in Ayiwah v. Badu [1963] 1 G.L.R. 86 at 95, S.C. where
he cited, inter alia, the view of Lord Herschell above with approval.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff was apparently illiterate and I am therefore prepared in accordance
with the practice of our courts to take a generous view on her behalf that the
witness she took along with her was not called to testify at the arbitration.
Under normal circumstances she must herself put forward her witnesses before
the arbitral tribunal and her case will be a strong one if the tribunal refuses
to hear a proffered witness. That does not seem to have been the case here, and
it is therefore not easy to disagree with the approach and analysis of any
brother Osei-Hwere J.A. which led him to uphold the arbitration as legally
valid. I think, however, that illiterate persons who are dissatisfied with
decisions of inferior adjudicating authorities or bodies ought to be encouraged
to have their complaints examined on their merits if this is legally feasible.
Indeed, in such situations it is my view that the courts should strain hard
within the law to accommodate them, instead of aborting their complaints in
limine by recourse to notions of estoppel and other technicalities.<o:p></o:p>