USSHER vs. KPANYINLI II [1989]DLCA689

Date	1989-01-19
Suit No.
Citation No.	[1989]DLCA689

OSEI-HWERE JA

AMPIAH JA

LAMPTEY J.A.

OCRAN FOR THE PLAINTIFF-APPELLANT.

SEKYI-HUGHES FOR THE DEFENDANT-RESPONDENT.

[1989]DLCA689
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													<main id="main" class="content" style="min-height: 60rem" >USSHER<o:p></o:p>&nbsp;vs. <o:p></o:p>KPANYINLI II<o:p></o:p>[COURT OF APPEAL, ACCRA.] <o:p></o:p>[1980] GLR 13<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
JANUARY 1989<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">

OCRAN FOR THE PLAINTIFF-APPELLANT.<o:p></o:p>

SEKYI-HUGHES FOR THE DEFENDANT-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, AMPIAH AND LAMPTEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Some time
in 1980 the plaintiff, a subject of the Ekpu stool, disputed with the
defendant, the chief of Ekpu, over the ownership of a piece of land lying at a
place called Ekpu Ezanzie. The plaintiff claimed that this piece of land
belongs to her family whilst the defendant said it formed part of his stool
land. This dispute was brought to the notice of their Omanhene who deputed some
of his elders to arbitrate over it. The parties submitted to the arbitration
and subsequently an award was pronounced in favour of the defendant and the
plaintiff was ordered to pay his costs. The plaintiff failed to comply with the
order and rather mounted her action in the High Court, Sekondi, upon her notion
that the arbitrators decided that the land belongs to her family but found her
liable because she had refused to release the land to the defendant to allocate
to his stool subjects in need. The plaintiff’s amended writ was indorsed with
the following reliefs:<o:p></o:p>“(a) A
declaration that Part II of the arbitration ruling over the land in dispute
between the plaintiff and the defendant held at the Omanhene’s palace, Benyin,
dated 25 August 1980 be declared null, void, ultra vires, unlawful and of no
effect. <o:p></o:p>(b) A
declaration of title to all that piece or parcel of land situate lying and
being at Ekpu Ezanzie and bounded on one side by Mokoah’s land, on another side
by Nyamekeh Agye’s land, on one side by Maame Ena’s land and lastly on another
side by the land of Baako Yeyaw. <o:p></o:p>(c)
¢100,000 damages for trespass to land and destruction or conversion of food
crops on the said land. <o:p></o:p>(d)
Perpetual injunction restraining the defendant, his agents, servants, privies,
representatives, etc from entering the said land.”<o:p></o:p>The
defendant resisted the claims of the plaintiff, particularly her claim that
there was any Part II of an arbitration ruling. His case was that the
arbitration award in favour of his stool was absolute and unqualified. The
plaintiff was ordered to pay his costs of ¢600 and she was further ordered to
slaughter a sheep at his palace and provide also two bottles schnapps. The
parties were in disharmony at the trial on these issues, namely the persons who
formed the panel of arbitrators, the person who presided over the arbitration,
the nature of the award made and whether or not the proceedings were recorded.
The last issue gained some prominence because at the trial the second plaintiff
witness, the Registrar of the Western Nzema Traditional Council, essayed to
tender two copies of the alleged arbitration proceedings incorporating the
award but they were rejected by the trial judge. At the close of the evidence,
the judge, after a careful analysis of the evidence,found against the plaintiff
on all these and the other issues raised for trial and, in effect, dismissed
the indorsements on the plaintiff’s amended writ.<o:p></o:p><o:p>&nbsp;</o:p>Aggrieved
by the judgment of the court below, the plaintiff has appealed to this court.
One of the grounds of appeal urged before us was that the trial judge erred in
rejecting the proceedings tendered. The second plaintiff witness claimed that
he was present at the arbitration and recorded the proceedings in his own hand
on pieces of paper. He later typed and compiled the proceedings which he caused
Awulae Amanzuley Kesse II, Tufuhene of Benyin (described on the face of the
typed proceedings as umpire to arbitrators), to thumb-print. The trial judge
rejected the two copies for want of authenticity on the grounds that they had
not been signed by all the arbitrators and that the whereabouts of the original
documents from which the copies were made out had not been explained to the
court. Counsel for the defendant raised a further legitimate ground that there
was no jurat to the thumb-print of Awulae Amanzuley Kesse II who the second
plaintiff witness put forward as the chairman or umpire of the arbitrators and
who was admittedly an illiterate. Before us counsel for the plaintiff argued
that as the second plaintiff witness recorded the proceedings those copies
should have been accepted for what they were worth and he should thereafter
have given the opportunity to prove their authenticity.<o:p></o:p><o:p>&nbsp;</</main>