FOFIE AND ANOTHER vs. WUSU [1993]DLCA4328

Date	1993-05-27
Suit No.
Citation No.	[1993]DLCA4328

LAMPTEY JA

ADJABENG JA

BROBBEY JA

JAMES AHENKORAH (WITH HIM OPPONG) FOR THE APPELLANT.

[1993]DLCA4328
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													<main id="main" class="content" style="min-height: 60rem" >FOFIE AND ANOTHER<o:p></o:p>vs.<o:p></o:p>WUSU<o:p></o:p>[COURT
OF APPEAL]<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">

[1992-93]
2 G B R 877 – 883&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;DATE: 27 MAY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 2.0pt 0in">

JAMES
AHENKORAH (WITH HIM OPPONG) 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 1.0pt 0in">

LAMPTEY
JA, ADJABENG JA, BROBBEY JA<o:p></o:p>

</div>LAMPTEY JA. This appeal is
from the judgment of Anterkyi J sitting at the High Court, Sunyani, dated 27
November 1979. Before the High Court, Afua Fofie (hereinafter referred to as
“the plaintiff”) took action against her nephew, Kofi Wusu (hereinafter
referred to as “the defendant”) and sought a declaration of title to two
separate farm lands at Asennua on Sunyani stool land. Additionally, she sought
the usual ancillary reliefs namely, (a) recovery of possession, (b) damages for
trespass and (c) an order of perpetual injunction.<o:p></o:p>In due course, Yaw Donkor,
a brother of the plaintiff, (hereinafter referred to as “the co-plaintiff”) was
joined as co-plaintiff.<o:p></o:p>I must mention in passing
that the co-plaintiff is the father of the defendant.<o:p></o:p>The defendant resisted the
claims by the plaintiff and co-plaintiff. The defendant did not counterclaim
for any reliefs. At the end of a protracted hearing, judgment was entered for
the plaintiff against the defendant.<o:p></o:p>The co-plaintiff died
before hearing was concluded. The defendant has appealed from that judgment to
this court on a number of grounds of appeal.<o:p></o:p>One ground of appeal that
was argued before us was that the trial judge erred in law when he held that
the arbitration held before Nana Tabiri was a valid customary arbitration.
Learned counsel for defendant submitted that the evidence before the court did
not prove and support a valid customary arbitration. He took the court through
the evidence of the parties and their witnesses and sought to show that it was
not sufficient and satisfactory to prove a valid customary arbitration before
Nana Tabiri.<o:p></o:p>The classic case on
customary arbitration is the case of Budu II v Caesar [1959] GLR 410. In
holding (1) appears the statement of the essential requirements of a valid
customary arbitration. These are:<o:p></o:p>“(1) a voluntary submission of the
dispute by the parties to arbitrators for the purpose of having the dispute
decided informally, but on its merits;<o:p></o:p>(2) a prior agreement by both parties
to accept the award of the arbitrators;<o:p></o:p>(3) the award must not be arbitrary,
but must be arrived at after the hearing of both sides in a judicial manner.”<o:p></o:p>The plaintiff's testimony
showed that when she made her report of trespass on the land against the
defendant, a team of three persons was sent to inspect the land. The team was
mandated to decide whether or not the complaint was made out. It was this team
that gave its opinion and made the award. This was not a customary arbitration.
The evidence showed that the trial judge gravely erred in law when he held that
a valid customary arbitration was held by Nana Tabiri.<o:p></o:p>Another ground of appeal
was that the finding by the trial judge that Nana Addai held a valid customary
arbitration was wrong in law. Learned counsel contended that what took place at
the direction of Nana Addai was not a customary arbitration. The evidence was
that he ordered an investigation into complaint of trespass made to him by
co-plaintiff at the request of the plaintiff. He did not constitute a panel to
hear the parties and their witnesses. None of the parties paid any fee to the
panel, Nana Addai or any other person.<o:p></o:p>I find from the evidence
before the court that the finding by the trial judge that a valid customary
arbitration was held by Nana Addai is not supported by the evidence before the
court. It was wrong in law.<o:p></o:p>A ground of appeal argued
with considerable force and persuasion was that the trial judge erred in law
when he held that the customary arbitration held before the Sunyanihene, DW1
was not a valid customary arbitration. Learned counsel for the defendant took
the court through the evidence of defendant, DW1 and that of the plaintiff and
sought to show that a valid customary arbitration was held before DW1.<o:p></o:p>The evidence of both the defendant
and DW1 contained a comprehensive account of what took place before the
Sunyanihene, DW1 as a result of complaint made by the defendant to the District
Commissioner who referred it to DW1. The evidence was not challenged.<o:p></o:p>The plaintiff testified that
she knew of the hearing of defendant's complaint before the Sunyanihene. Yet
she did not appear before the Sunyanihene to present her claim even though she
was aware that the complaint made by the defendant to the District Commissioner
related to and touched upon the ownership of the land in dispute.<o:p></o:p>It is difficult to believe
her testimony that she did not attend the hearing of the complaint and to
prosecute her claim. In my view, common-sense dictated that since she claimed
ownership of the land in dispute, she should have appeared before the
Sunyanihene to assert her claim to that land. If the learned trial judge had
adverted to the above matters he, no doubt, would have accepted the
unchallenged and credible evidence before him and concluded that a valid
customary arbitration was held by DW1.<o:p></o:p>Indeed it is clear from
the reason the trial judge gave for rejecting the case of the defendant on this
issue, that he failed to consider the evidence impartially and fairly. This was
the reason he gave:<o:p></o:p>“I am unable to uphold any alleged
decision if ever there was such an arbitration before DW1 because I find that
the plaintiff and her brother had been supporters of the Sunyanihene, PW2
during destoolment disputes as between PW2 and DW1 and that by reason of their
support to PW2, DW1, when he ascended the stool once more, wanted the p</main>