WIAMOASE S.D.A CHURCH PER ELDER YAW BOAMAH BOANSI (SUBST. BY) PAUL OPPONG AND GYASI AFUM BOAKYE vs. MADAM AKOSUA AMPOMAA AND ANOTHER [2011]DLHC8261

WIAMOASE S.D.A CHURCH PER ELDER YAW BOAMAH BOANSI (SUBST. BY) PAUL OPPONG AND GY... [2011]DLHC8261

Date	2011-06-22
Suit No.	SUIT NO. C1/18/2008
Citation No.	[2011]DLHC8261

HIS LORDSHIP MR. JACOB B. BOON

AMOAKO – KUSI FOR PLAINTIFF

WILLIAM KUSI FOR THE DEFENDANT

[2011]DLHC8261
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													<main id="main" class="content" style="min-height: 60rem" >WIAMOASE S.D.A
CHURCH PER ELDER YAW BOAMAH BOANSI (SUBST. BY) PAUL OPPONG AND GYASI AFUM
BOAKYE<o:p></o:p>vs.<o:p></o:p>MADAM AKOSUA AMPOMAA AND ANOTHER<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C1/18/2008&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; &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:
22ND JUNE, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AMOAKO
– KUSI FOR PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

WILLIAM
KUSI FOR THE DEFENDANT<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:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP MR. JACOB B. BOON<o:p></o:p>

</div>The plaintiff/applicant, to be called the plaintiff, is a
branch of Seventh Day Adventist Church and is based at Wiamoase near Agona. Per
one of its elders, it instituted a writ of summons against the defendants
jointly and severally claiming a declaration of title to a piece of land
situated at Ahyiresu Wiamoase Zongo on Agona Stool, damages for trespass and an
order of perpetual injunction to restrain the defendants.<o:p></o:p><o:p>&nbsp;</o:p>Indeed, the defendant/respondents (to be referred to as
the defendants hereafter) are natives of Wiamoase whose properties are said to
share common boundaries with the plaintiff. After directions were taken, the
Omanhene of Agona pleaded with the court to allow him to settle the matter out
of court. His request was granted as both sides were agreeable. The Omanhene
then constituted a committee to arbitrate among the parties. At the end of the
arbitration process, the committee submitted a report to the Agona Traditional
Council. The Council then forwarded same to the court for its action. Before
the court could act on the report, the plaintiff filed the instant application
urging the court to have it set aside. The reasons assigned by it were that the
second defendant and his witnesses were not given a hearing by the arbitration
committee. It further deposed that the committee merely made recommendations
for the action of the Omanhene of Agona Traditional Council and as he had not
acted on the said recommendations the parties cannot be bound by the report.
For these reasons, the representative of plaintiff deposed that he does not
accept the report as a final award of the committee. The plaintiff had other
reasons for asking the court to set aside the arbitration report. These were
contained in paragraph 9 of the affidavit in support of the application in the
following terms:<o:p></o:p><o:p>&nbsp;</o:p>“9.
That the representative of the plaintiff do (sic) not accept exhibit ‘A’ as
representing the final award of the committee which must be accepted as
disposing off the suit between the plaintiffs and the defendants for the
following reasons:<o:p></o:p>(a)
That the plaintiff’s representative did not agree with the Committee findings
in paragraphs1, 2, 3, 5, 6 and 7 because all explanations and answers given in
respect of these matters forming the basis for the findings in those paragraphs
were not properly addressed by the committee for example, the committee failed
to explain why, if truly, the late Nana Pim Owusu after realizing that the
portion of the land in dispute belonged to 1st Defendant and
therefore went to the site and demarcated same to the 1st defendant,
he failed to amend the site plan he had earlier on executed for the SDA Church
which included the portion in dispute and swear to another statutory
declaration<o:p></o:p>(b)
That for this reason and others which will be explained during the hearing of
the motion some of the members of the Committee conducted themselves both at
the hearing and at the site inspection, in a situation that the representative
of plaintiff refused to pay the final cost awarded against the parties because
of his dissatisfaction with the whole proceedings.<o:p></o:p>(c)
That by his failure to pay the final cost awarded by the committee there was no
valid customary arbitration at all in terms of a recent Supreme Court
adjudication of what constitutes a valid customary arbitration.<o:p></o:p>(d)
That the committee failed to address the issue between the plaintiffs and the 2nd
defendant who was also sued as committing trespass with the 1st
defendant. If anything at all the report dwells on matters between the
plaintiff and the 1st defendant only.<o:p></o:p>(e)
That finally, the purported report of the committee only makes a recommendation
to Nana Agonahene that ‘he should kindly direct Nana Wiamoasehene to search for
a suitable site for the S.D.A Church to put up the J.H.S. Block at Wiamoase.’<o:p></o:p>(f)
That since Nana Agonahene has not come out to accept or reject the
recommendation of the Arbitration Committee he himself set up to enquire into
the suit between the plaintiff and the defendants, I am verily advised and
believe same to be true that exhibit ‘A’ cannot be a final award of arbitration
to bring to finality the suit between the plaintiff and the defendants.”<o:p></o:p><o:p>&nbsp;</o:p>