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Customary law - Arbitration -
Essential requirements –
Plaintiff lodging complaint of
trespass with arbitrator –
Arbitrator appointing persons to
inspect land - Inspectors making
award – Whether award a valid
arbitration award.
Customary law – Arbitration –
Setting aside award - Principles
for.
Land law and conveyancing –
Declaration of title – Identity
of land – Failure to establish
identity of land claimed fatal.
The plaintiff and co-plaintiff
sued the defendant for
declaration of title,
injunction, recovery of
possession and damages for
trespass to two separate farm
lands. At the trial the
plaintiff and co-plaintiff
relied upon two arbitrations in
their favour, one by Nana Tabiri
and the other by Nana Addai. On
the arbitration allegedly before
Nana Tabiri the plaintiff
testified that when she lodged a
complaint of the trespass on the
land against the defendant a
team of three persons was sent
to inspect the land with the
mandate to decide whether or not
the complaint was made out. The
team accordingly made the award.
On the latter arbitration the
evidence on record was merely
that Nana Addai ordered an
investigation into complaint of
trespass made to him by the
co-plaintiff at the request of
the plaintiff. No panel was
constituted to hear the parties
and their witnesses nor did any
of the parties pay any fee to
Nana Addai or any other person.
The defendant on the other hand
contended that a customary
arbitration was held before DW1,
Sunyanihene, and an award was
made in his favour. He and DW1
testified in support of the said
arbitration that the defendant
had lodged a complaint
concerning the land with the
District Commissioner who
referred it to DW1 for
arbitration. The plaintiff did
not challenge what transpired
before DW1 but explained that
even though she knew of the
complaint before DW1 she did not
attend. However there was
evidence on record that DW1 had
previously sued the co-plaintiff
for tribute. The trial judge
accepted the proceeding by the
team of inspectors appointed by
Nana Tabiri as a valid
arbitration but rejected the
arbitration by DW1 as vendetta
because the plaintiff and her
brother had supported
destoolment proceedings against
DW1. On appeal, counsel for the
defendant contended that neither
the proceeding before Nana Addai
nor Nana Tabiri constituted a
customary arbitration. He argued
further that the trial judge
erred in rejecting the
proceeding before DW1 as a valid
arbitration. Counsel argued
further that the trial judge
erred in granting the
declaration of title because the
plaintiff failed to establish
the boundaries of the farm lands
she claimed.
Held:
(1) The essential requirements
of a valid customary arbitration
were: (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;
(2) prior agreement by both
parties to accept the award of
the arbitrators; (3) the award
must not have been arbitrary,
but must have been arrived at
after the hearing of both sides
in a judicial manner. On the
facts neither the proceeding
before Nana Tabiri nor Nana
Addai constituted a valid
arbitration. Budu II v Caesar
[1959] GLR 410 applied.
(2) The proceeding before DW1 on
the other hand constituted a
valid arbitration. It was
difficult to believe that the
plaintiff did not attend when
she claimed ownership of the
land. Common sense dictated that
she should have appeared before
DW1 to assert her claim to that
land. The rejection of the
arbitration by DW1 as vendetta
was not supported by the record.
Kwaw v Awortwi [1989-90]
1 GLR 190, Budu II v Caesar
[1959] GLR 410, Adai v Anane
[1973] 1 GLR 144, Mante v
Botwe [1989-90] 1 GLR 479,
Foli v Akese (1930) 1
WACA 1 referred to.
(3) To succeed in an action for
a declaration of title to land a
party must adduce evidence to
prove and establish the identity
of the land in respect of which
he claimed a declaration of
title. On the evidence the
plaintiff failed to prove the
identity of the land claimed.
Kwabena v Atuahene [1981]
GLR 136 followed.
Cases referred to:
Adai v Anane
[1973] 1 GLR 144.
Anane v Donkor
[1965] GLR 188, SC.
Baruwa v Ogunshola
(1938) 4 WACA 159.
Bedu v Agbi
[1972] 2 GLR 238, CA.
Budu II v Caesar
[1959] GLR 410.
Darko v Agyakwa
[1943] 9 WACA 163.
Foli v Akese
(1930) 1 WACA 1.
Kwabena v Atuahene
[1981] GLR 136, CA.
Kwaw v Awortwi
[1989-90] 1 GLR 190, CA.
Mante v Botwe
[1989-90] 1 GLR 479, CA.
Udofia v Afia
{1940) 6 WACA 216.
APPEAL from the judgment of the
High Court.
James Ahenkorah
(with him Oppong) for the
appellant.
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.
In due course, Yaw Donkor, a
brother of the plaintiff,
(hereinafter referred to as “the
co-plaintiff”) was joined as
co-plaintiff.
I must mention in passing that
the co-plaintiff is the father
of the defendant.
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.
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.
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.
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:
“(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;
(2) a prior agreement by both
parties to accept the award of
the arbitrators;
(3) the award must not be
arbitrary, but must be arrived
at after the hearing of both
sides in a judicial manner.”
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.
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.
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.
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.
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.
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.
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.
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:
“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 plaintiff and
her brother to see red.”
A careful reading of the
evidence of PW2 will show that
DW1 sued the co-plaintiff and
another because they failed to
pay tribute to DW1. The evidence
of PW2 did not show that the
defendant was a supporter of DW1
or that the defendant was
against the re-enstoolment of
PW2.
More importantly, it was never
the case of the plaintiff that
she, the plaintiff, was a
supporter of PW2; and that
defendant was a supporter of
DW1.
The trial judge erred when he
rejected the undisputed evidence
which proved that a valid
customary arbitration was held
before DW1, the Sunyanihene.
It is instructive at this stage
to refer to holding (1) in the
case of Kwaw v Awortwi
[1989-90] 1 GLR 190 which
re-stated the relevant law as
follows:
“(1) On the evidence, there had
been a valid customary
arbitration into the dispute…
It was equally not open to the
trial court to ignore the
arbitration award which had been
pleaded and established by
evidence before the court
without any legal
justification.” (My
emphasis.)
The court then made reference to
the cases of Budu II v Caesar
[1959] GLR 410 and Adai v
Anane [1973] 1 GLR
144.
The law on the subject matter of
customary arbitration was
re-stated in the case of
Mante v Botwe [1989-90] 1
GLR 479. I reproduce holding (1)
as follows:
“it was well settled that a
contention that an arbitration
award could not be justified by
the evidence or that it was even
mistaken in law, was not a
ground for setting the award
aside. Accordingly, where an
arbitration satisfied all its
essential requirements, no
court, not even a superior
court, could refuse to enforce
its award as the award would be
final and conclusive…”
The court however did state in
clear language that the above
proposition of law is subject to
exceptions. See Foli v Akese
(1930) 1 WACA 1.
Another ground of appeal argued
by learned counsel for the
appellant was that the judgment
was against the weight of
evidence. According to learned
counsel, the plaintiff claimed
that the lands in dispute were
gifted to her by her brother Yaw
Donkor, the co-plaintiff. He
contended that the plaintiff
failed to prove and establish
that the co-plaintiff made a
gift of the land to her. He
complained that the trial judge
failed to advert to this claim
of gift and therefore did not
make a finding on it. He
submitted that the trial judge
erred in law when he held that
the plaintiff was entitled to
the declaration she sought when
she failed to prove the gift to
her of the land.
I have read the record and I
find that there was not a shred
of evidence from the plaintiff
to prove her claim that the
co-plaintiff gifted the lands in
dispute to her. The parties set
down for trial the issue whether
or not the co-plaintiff gifted a
portion of his cultivated forest
land to the plaintiff. See
issues (c) and (d) of the
summons for directions.
In my opinion the failure of the
plaintiff to adduce evidence to
prove and establish that the
co-plaintiff gifted the lands in
dispute to her was fatal to her
claim. The trial judge erred in
holding that the plaintiff
proved her claim.
Another ground of appeal argued
by learned counsel for appellant
was that the trial judge erred
in law when he decided on title
to the lands in dispute in
favour of the plaintiff since
the plaintiff failed to
sufficiently identify the
boundaries of the farm lands she
claimed. He took the court
through the evidence and showed
that the plaintiff did not call
her boundary owners to assist
the court. He referred to the
evidence of the defendant and
his witnesses which established
the boundaries of the land
claimed by defendant and
corroborative evidence on this.
He pointed out that the evidence
before the court as given by the
defendant and some of his
witnesses was on all fours with
the detailed information
contained in the plan, exhibit
A. He submitted that failure of
the plaintiff to adduce evidence
to prove and establish the
identity and boundaries of the
land in dispute was fatal to her
claim.
It is trite learning that to
succeed in an action for a
declaration of title to land a
party must adduce evidence to
prove and establish the identity
of the land in respect of which
he claimed a declaration of
title. In the case of Kwabena
v Atuahene [1981] GLR 136
the Court of Appeal stated that
the onus of proof required by
law as regards the identity of
land would be discharged by
meeting these conditions:
“(a) the plaintiff had to
establish positively the
identity of the land to which he
claimed title with the land the
subject matter of the suit.
Baruwa v Ogunshola (1938) 4
WACA 159 and Anane v Donkor
[1965] GLR 188, SC.
(b) the plaintiff also had to
establish all his boundaries.
Udofia v Afia (1940) 6 WACA
216 and Bedu v Agbi
[1972] 2 GLR 238, CA.
(c) where there was no properly
orientated plan drawn to scale,
which made compass bearings
vague and uncertain, the court
would hold that the plaintiff
had not discharged the onus of
proof of his title. Darko v
Agyakwa (1943) 9 WACA
163.”
The boundaries were more
particularly shown on the plan,
exhibit A. A careful examination
of the plaintiff's evidence
describing the boundaries of the
land she claimed showed that her
land shared a common boundary
with the lands of one Boadi and
one Anto on one side and that
the other boundary was a timber
truck track. She did not mention
the other boundary owners shown
on the plan exhibit A as sharing
boundary with the land in
dispute. The defendant, on the
other hand, gave evidence that
these other persons whose names
appeared on the plan exhibit A
were his boundary owners. His
evidence was not challenged.
The cross-examination of the
plaintiff was to show that her
claim was false and that she did
not own land in the area in
dispute. These were the answers
she gave to the court:
“I do not know any Kwasi Manu,
who farms in the area; nor do I
know one Kwame Kumah .... I do
not know who owned the lands
beyond the timber track.”
I must point out that Kwame
Kumah and Kwasi Manu are persons
whose lands shared a common
boundary with the land in
dispute. Defendant called these
two persons as his witnesses.
They testified as DW7 and DW3
respectively. DW2 Braimah Moshie
whose name appears on the plan
exhibit A gave evidence for
defendant. The evidence before
the trial court showed that the
plaintiff failed to identify and
describe the boundaries of the
land she claimed. On the
contrary, the evidence adduced
by the defendant and his
witnesses correctly identified
and described the boundaries of
the lands in dispute. The
finding of the trial judge that
the whole of the area with the
green border and with the pink
border on exhibit A are the
legitimate farms of the
plaintiff is not supported by
the evidence. That finding is
plainly and clearly wrong.
For all the reasons given above
I am satisfied that the judgment
of the trial court was wrong in
law and must be set aside.
Accordingly, I find that the
appeal succeeds. I dismiss the
action of the plaintiff. I enter
judgment for the defendant
against the plaintiff.
ADJABENG JA.
I agree.
BROBBEY JA.
I also agree.
Appeal allowed.
Justin Amenuvor, Legal
Practitioner. |
