SUKA vs. GLAVEE [1991]DLHC2319

Date	1991-02-11
Suit No.
Citation No.	[1991]DLHC2319

ACQUAH J.

R. B. K. ABOAGYE FOR THE DEFENDANT-APPELLANT.

G. K. MENSAH-ETSI FOR THE PLAINTIFF-RESPONDENT.

[1991]DLHC2319
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													<main id="main" class="content" style="min-height: 60rem" >SUKA<o:p></o:p>vs.<o:p></o:p>GLAVEE<o:p></o:p>[HIGH
COURT, HO]<o:p></o:p>[1991] 1
GLR 194<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 11 FEBRUARY 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>R. B. K.
ABOAGYE FOR THE DEFENDANT-APPELLANT.<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">

G. K.
MENSAH-ETSI FOR THE PLAINTIFF-RESPONDENT.
<o:p></o:p>

</div>JUDGMENT
OF ACQUAH J.<o:p></o:p>This is
an appeal against the judgment dated 26 July 1986, of his Worship Sampson
Brako-Yeboah, sitting at the District Court Grade I, Keta. The
plaintiff-respondent (hereinafter referred to as the plaintiff) took this
action at the said district court against the defendant-appellant (referred to
hereafter as the defendant) for an enforcement of the arbitration award of one
Regent Zonyirah, ¢50,000 general damages for trespass and perpetual injunction
restraining the defendant, his workmen, servants, agents and privies from
further trespass onto his land. The boundaries of the land in dispute were set
out as:<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">“On the
east by Chief Adator family land, on the west by Zeye family land, on the north
by Zeye family land and on the south by Tsiame-Asarame motor road.” The case of
the plaintiff is that the said land was acquired through conquest by an
ancestor of his family called Chief Bodua I, who named the place Asarame, i.e.
war camp. On the death of Chief Bodua I, he was succeeded by Chief Bodua II,
then Bodua III and finally he, the plaintiff. Recently he piled a heap of sand
on the land to begin building operations. But the defendant, whose father came
to marry from Asarame, on seeing the activities of the plaintiff on the land,
summoned him before Regent Zonyirah. In the said summons the defendant claimed
the land to be his family property and sought an explanation from the plaintiff
why he had heaped sand on his, the defendant’s, family land.<o:p></o:p>Before
Regent Zonyirah, the plaintiff was informed of the complaint of the defendant,
and he agreed that Regent Zonyirah and his elders should arbitrate on the
defendant’s claim. The elders took evidence from the plaintiff and the
defendant together with their witnesses, visited the locus in quo, and retired
to consider their decision. They made an award declaring the plaintiff’s family
to be owner of the land, and directed the plaintiff to go on with his
operations on the land. Notwithstanding this award, the defendant entered the
land and started building. Hence the plaintiff instituted the instant action
claiming the reliefs set out above.<o:p></o:p>The
defendant’s case is that, although he initiated the arbitration, he rejected
the award which was pronounced. He maintained that the land in dispute belonged
to his family which had exercised overt acts of ownership thereon since time
immemorial. He said his family has granted portions of the land to the Bethel
Church and Asarame Distillers Association. Further he claimed that he took
action in 1964 against one Adakku and Fiador at the District Court, Grade II Heluvi-Kpota
in connection with this land and had judgment in his favour. He tendered the
said judgment as exhibit 1.<o:p></o:p>The trial
magistrate in his judgment found as a fact that there was a valid customary law
arbitration held by Regent Zonyirah and his elders in which an award was made
in favour of the plaintiff. The magistrate then held that the defendant was
bound by the said award, and he therefore entered judgment in favour of the
plaintiff and made an order confirming the said award. He further awarded ¢12,000
damages for trespass, and decreed perpetual injunction restraining the
defendant, his workmen, servants and privies from further trespass onto the
land.<o:p></o:p>It is
against this judgment that the defendant has appealed to this court on two main
grounds, viz:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a)&nbsp;&nbsp;
That the trial is a nullity since the trial magistrate did
not have any jurisdiction to enforce an arbitration award.<o:p></o:p><p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b)&nbsp;&nbsp;
That the judgment is against the weight of evidence.<o:p></o:p>At the
end of the arguments by the appellant’s couns</main>