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JUDGMENT
ANINAKWAH, J.A.
This is an appeal
against the judgment of the Circuit Court Takoradi dated
20th March, 2002.
By the said judgment,
the trial judge granted to the plaintiff/Respondent
(hereinafter referred to as plaintiff) all the reliefs
endorsed on his writ of summons.
The plaintiff launched
this claim at the said Circuit Court for:—
(a) Declaration of
title to all that piece and parcel of land situate at
Bangromisea on Sefwi Benchemaa Stool land bounded by the
Lands of Opanin Yaw Bour (deceased) Akua Yeboah (the
Defendant), Kwaku Owusu, (deceased) Kwame Fiakye
(deceased) Maame Kwatemaa (deceased) and Kojo Bossompem.
The plaintiff’s case is
that he is the head of the Asona Family of Sayerano—
Sefwi and Customary successor to his uncle Yaw Bour
(deceased) who died in 1998, and brought this action in
that capacity.
Plaintiff's uncle who,
in his lifetime, was the head of his family, and
customary successor to his predecessors, had possession
and control of the family properties. These properties
were covered by an inventory taken on the 31st May 1995
at Sayerano.
The farm land subject
matter in dispute was included in the said inventory
which was tendered in evidence in this case as Exhibit
'B'.
It is part of
plaintiff's case that after the death of his said uncle,
the properties listed in Exhibit 'B' devolved upon him
by succession.
Thereafter he went onto
the land in dispute to cultivate same, but
defendant/appellant (hereinafter referred to as
Defendant) and her brothers and sisters prevented him
from so doing, and made adverse claims to the land
through their late father Kwaku Fuakye who was a member
of plaintiff's family and one of his predecessors.
Consequent upon the misunderstanding that arose between
the plaintiff on the one side and the defendant and her
brothers and sisters on the other side, the latter
summoned the plaintiff before the chief of Sayerano.
After a panel had gone
into the complaint, the defendant and her brothers and
sisters were found liable. They were asked to pacify the
defendant with a fine of ¢20,000.00 and one bottle
Schnapps. Plaintiff by a show of paternal affection,
having succeeded defendant's said late father accepted
just the bottle of Schnapps. The chief and his elders
then pleaded with plaintiff to release the land in
dispute to the defendant and her brothers and sisters
but plaintiff refused to do it. Eventually it was
decided that the land which had brought the dispute be
demarcated. When the elders went to the land for the
demarcation exercise, the elders directed that the land
be divided unto two portions with each side taking one
portion.
Defendant and her
brothers and sisters would have nothing of this
arrangement. They wanted the whole land, and therefore
ignored the suggestion from the elders and started
working on the land.
In December, 1999 the
plaintiff summoned the Defendant before the chief of
Sayerano for trespassing unto his family land. In an
arbitration that followed, the chief and his elders went
into the matter and found defendant liable. She was
asked to pay costs of ¢10,000.00. She, however, refused
to pay and proceeded to appeal against the arbitration
award of the chief and elders of Sayerano to the
Omanhene of Sefwi Wiawso. I wonder if this procedure
embarked upon by the Defendant was the best. On the
announcement of an arbitration award, the parties became
bound by it. When plaintiff was invited to the
Omanhene's palace, he took an adjournment, and before
the return date took out a writ of summons at the
Circuit Court, Takoradi claiming the relief's endorsed
on his writ of summons and by so doing refused to submit
to the Omanhene's purported appellate jurisdiction.
Defendant on her part
disputed the claim of the plaintiff, and maintained that
the land in dispute formed part of several cocoa farms
owned by her deceased father, the late Kwaku Fiakye in
his lifetime. Her father's said land was bounded by the
farmlands of Kwame Fuakye, Kwasi Amoah, Kwadwo Fuakye,
Opanin Duku, Ama Tawiah, Opanin Kwakye, Opanin Danyansa
and the Sayera River. According to the Defendant, her
father cultivated a big farm with the collective
assistance of her father's two wives including her own
mother. Her father made intervivos gifts of portions of
this farm to each of his said wives. He also gave
another cocoa farm to one Yaw Bour ([husband of
defendant) on an Abusa tenancy. Her father directed that
in the event of the cocoa farm dying, the land should be
taken over by defendant. This land according to her is
the subject matter in dispute. Defendant denied that her
father was related to the plaintiff, neither was her
father a member of plaintiff's family.
She stated that her
father hailed from Kwahu area and went to settle at
Sayerano in the Sefwi area. Members of plaintiff's
family could, therefore, not succeed to her father and
could not inherit his properties. Defendant's assertion
in this regard raised serious Customary law issues,
which were not seriously canvassed in this case, and I
will leave them alone.
Defendant, however,
admitted the second arbitration proceedings before the
chief and elders of Sayerano.
This arbitration was in
respect of the land in dispute. She appeared before the
chief with her witnesses.
The matter was heard.
Both parties and their witnesses gave evidence.
The panel members
inspected the land before announcement of the award
against her. She, however refused to be bound by it.
Defendant having denied
the plaintiff’s claim, filed a counterclaim—for—a
declaration of title to the land in dispute, an Order of
perpetual injunction restraining the plaintiff, his
agent, assigns, privies, servants and the like whosoever
from entering the said land, an Order compelling the
plaintiff to account for all proceeds received from the
harvesting of the cocoa from October 1999, and Recovery
of possession of the land.
At the end of the
pleadings the issues set down for trial were—
"(i) Whether the
defendant was found liable on 2 occasions in an
arbitration [sic] held at Sefwi Sayerano Ahenfie.
(ii) Whether the land
in dispute is for the plaintiff or the defendant and her
siblings.
(iii) Whether the
plaintiff is entitled to his claim.
(iv) Whether the
defendant is entitled to his claim
(v) Any other issue as
may appear on the pleadings"
I must observe that
there is only one dominant issue, determination of which
could resolve the whole matter in dispute. Issue (1)
whether the defendant was found liable on 2 occasions in
an arbitration [sic] held at Sefwi Sayerano Ahenfie.
At the end of the
trial, after the Judge had considered the evidence
before him, he accepted the case of the plaintiff and
found as a fact that there was a valid Customary Law
arbitration held by the chief of Sayerano and his elders
in which an award was made in favour of the plaintiff.
The Judge held that the defendant was bound by the said
award.
The trial Judge went
further to make the following positive findings thus;—
"a party who
voluntarily submits to an arbitration is bound by the
decision and is, therefore, estopped from relitigating
the matter. Quoting for support Acquah J (as he then
was) in the case of Suka vrs. Glavee (1991) 1 GLR.194 AT
202, the trial Judge stated further— 'for a valid
Customary Law Arbitration award is as potent as a
judgment of a Court of competent jurisdiction and
therefore operates as res judicata."
On these positive
findings the trial Judge entered judgment in favour of
the plaintiff, and made an Order confirming the said
award.
He granted all the
reliefs claimed by the plaintiff against the defendant
and awarded ¢1 Million damages for trespass against her.
It is against this
judgment that the defendant has appealed to this Court
on the following grounds;—
Originally defendant
filed two grounds with an indication that additional
grounds would be filed on the receipt of the record of
proceedings, this:—
"(a)
The judgment is against the weight of evidence led at
the trial.
(b) The trial Judge
failed to evaluate the legal effect of a Customary
arbitration.
Later defendant filed
the following additional grounds:—
(a) The trial Judge
failed to distinguish between the enforcement of an
Arbitration award and re-submitting of a matter to a
traditional Court.
(b) The trial Judge
failed to go into the merits of the case.
(c) The trial Judge
failed to distinguish between an arbitration and a
Customary adjudication.
Counsel for defendant
elected to argue ground (b) in the original Notice of
appeal and grounds (a) and (c) in the additional grounds
of Appeal first and together.
As has already been
stated, the dominant issue in the case before the trial
Judge was the determination of the validity of the
Customary arbitration that took place before the chief
and elders of Sayerano.
Evidence on record
spoke of two different matters before the chief and his
elders. The trial Judge unequivocally found as a fact
that the second one sent before the chief and elders by
the plaintiff was a valid arbitration and that the award
was binding on the defendant.
Ground (b) in the
original notice of appeal states that "the trial Judge
failed to evaluate the legal effect of a Customary
arbitration". This ground can be taken together with
ground (b) of the additional grounds which states that:
"The trial Judge failed
to go into the merits of the case".
These two grounds
attack the trial Judge for failing to do what Counsel
for defendant thought the Law enjoined him to do.
Counsel, however,
failed to state in clear terms what should have been
done.
In Zabrama vrs.
Segbedzi 1991 2 GLR. P.221. Kpegah, J.A. (as he then
was) dismissing the appeal held—"to state in a notice of
appeal as did the appellant's counsel, that the trial
Judge misdirected himself and gave an erroneous decision
without specifying how he misdirected himself, was
against the rules and Tendered such a ground of appeal
inadmissible. The implications of rule 8 (2) and (4) of
the Court of appeal rules 1962 (LI 218)—now Rules 8(4)
and (6) of CI 19—Court of appeal rules, 1997, was that
an appellant after specifying the part of a judgment or
Order complained of, must state what he alleged ought to
have been found by the trial Judge, or what error he had
made in point of Law. It did not meet the requirement of
those rules to simply allege 'misdirection' on the part
of the trial Judge. The requirement was that the ground
stated in the notice of appeal must clearly and
concisely indicate in what manner the trial Judge
misdirected himself either on the Law or on the facts.
In the instant case,
the two grounds of appeal failed to meet the required
standard and were clearly inadmissible. However, the
supreme Court in Essilfie vrs. Anafo VI 1993/4 2 GLR 6
per Ampiah, JSC has held, the misdirection to be a
technicality which should not be fatal to the case.
Be that as it may and
contrary to Counsel for defendant's assertion that the
trial Judge failed to go into the merits of the case,
the trial Judge heard full evidence. In his considered
judgment, he evaluated the evidence before him, and
dealt with facts which had not even been made issues
before him.
He considered matters
like the relationship between the plaintiff's family and
the defendant's father. He considered the status of the
farm the subject matter in the dispute and finally the
validity of the arbitration. There is, therefore, no
merit in counsel's assertion that the trial Judge failed
to go into the merits of the case. Overwhelming evidence
on record testified to the fullest extent to which the
trial Judge considered this case on its merits.
Now on ground (a) of
the additional grounds, i.e. "that the trial Judge
failed to distinguish between the enforcement of an
arbitration award and re-submitting of a matter to a
traditional Court"
By this ground, counsel
for defendant appeared to have fallen victim to the
misunderstanding arising in the use of the expressions
"enforcement of arbitration"—which Acquah J (as he then
was) discussed at length in the Suka - case.
In the said case the
trial Judge after comparing the situation under the
judicial committee of the Chieftaincy act 1970 where the
Committee can forward a copy of the judgment or order to
the High Court with a request for execution and upon
payment by the applicant of the necessary fees, the High
Court shall take such steps and issue such process as
may be necessary for the purpose of the execution of the
said judgment or order as it would take or issue as if
it were a judgment or order of that Court, and a
proceeding under Customary arbitration Law where such
Jurisdiction is non-existent, stated thus:—"Most
plaintiffs phrase such relief as—an enforcement of an
award. The word enforcing or enforcement as it is
sometimes used, is strictly speaking, not the correct
word for what the Court is indeed called upon to
determine is not an enforcement of award, but a
determination of the validity and binding effect of the
Customary arbitration and the award made thereby".
Alternatively, instead
of claiming an order for the confirmation of the
Customary award, an award beneficiary can claim for
title, recovery of possession, damages for trespass, and
plead or rely on the Customary arbitration award as
estoppel. There is, therefore, no distinction between
enforcement of Customary arbitration award and an
alleged resubmitting of the case to a Traditional Court
as is being intimated by counsel for defendant. It all
depends upon the procedure adopted, which at the end of
the proceeding could bring out the desired result of the
determination of the validity of the customary
arbitration and its award.
This brings me to
ground (c) on the additional ground of appeal. Ground
(c) states thus:—“The trial Judge failed to distinguish
between an arbitration and a Customary adjudication.”
Arguing this ground
counsel for defendant tried to make a distinction
between arbitration proceedings as practiced under the
English Common Law and our customary arbitration Law. He
tried also to distinguish between proceedings under the
customary arbitration and proceedings under what he
called customary adjudication.
It was counsel’s
submission that at the traditional level of
adjudication, like any matter that was resolved by a
head of the family or clan head or divisional chief,
just as in the regular Courts, decision could be
appealed against through their own hierarchical system.
Counsel, therefore,
contended that the proceedings before the chief and
elders of Sayerano was not a customary arbitration but a
customary adjudication and, was appealable.
Counsel contended that
during the pendency of the appeal before the Omanhene of
Sefwi Wiawso, it was not proper for the plaintiff to
have instituted his action at the Circuit Court
Takoradi.
This according to
Counsel amounted to re-submitting a case on appeal
pending before the Omanhene to a traditional Court.
Counsel for plaintiff,
on his part differed strongly from Counsel for
defendant. Counsel for plaintiff contended that what
took place before the chief and elders of Sayerano was a
valid customary arbitration and so was not appealable.
In fact, no matter what name was given to proceedings at
Customary Law, once all the essential characteristics of
Customary arbitration were present, same could clearly
qualify for valid Customary arbitration.
Essential
characteristics of Customary arbitration were outlined
in the case of Budu vrs. Ceasa [1959] GLR.40 at 4 thus:—
(a) A voluntary
submission of the dispute by the parties to arbitration
for the purpose of having the dispute decided
informally, but on its merits.
(b) Prior agreement by
both parties to accept the award of the arbitration.
(c) The award must not
be arbitrary, but must be arrived at after hearing of
both sides in a judicial manner, and
(d) Publication of the
award.
I have read the
proceedings and agree with Counsel for plaintiff that
all these key features were present in the customary
Arbitration that took place at the palace of the chief
of Sayerano. Further, the defendant herself admitted in
her evidence that there was the arbitration. Earlier she
did not want to submit to the jurisdiction, but on being
persuaded by her D.W.I., she submitted to the
arbitration. She stated that they led evidence, there
was the inspection before the announcement of the award
against her.
What was admitted
needed no proof.
I therefore, find and
accept that what took place at the Sayerano palace the
2nd time was a valid arbitration and that the award was
binding on the defendant.
The last ground I want
to deal with is original ground (a) on the Notice of
appeal, which states—that "the judgment is against the
weight of the evidence led at the trial."
By this ground the
defendant through her Counsel is understood to be saying
that the trial Judge failed to consider certain relevant
pieces of evidence which if had been considered could
turn the scales in her favour or certain pieces of
evidence were wrongly considered to her detriment.
In the word of Counsel
for defendant, "the plaintiff is said to have summoned
the defendant before the Odikro of Sayerano in respect
of the tract of land given to Yaw Bour by Kwaku Fiakye.
At the Odikro’s palace, both parties were called to give
evidence and the matter gone into after which judgment
was pronounced against the Defendant. The Defendant
immediately notified all and sundry that she was going
to appeal against the decision at the Omanhene’s
Palace." Counsel did not state that grounds of
defendant’s intended appeal, neither did he challenge
the validity of the proceedings before the chief and his
elders, which said proceeding have been held to amount
to valid arbitration.
This is the same case
which plaintiff carried to the Circuit Court for
confirmation and which was, in fact, duly confirmed.
Evidence on record
showed that he trial Judge did not just rubber stamp and
confirmed it. He took evidence to determine the validity
of the arbitration before confirming it. The trial Judge
held:— "I hold that in this present case the evidence of
the defendant and her witnesses having confirmed the
case of the plaintiff as to the validity and regularity
of the arbitration held by the chief of Sayerano and his
elders on the complaint of the plaintiff, the plaintiff
has in law discharged the burden in that regard, and the
defendant is estopped from relitigating the issue of
title to the disputed land. I therefore, enter judgment
for plaintiff interms of reliefs (a) (b) of the
endorsement on the writ of summons . . . . . . .
The evidence of the
plaintiff shows that the defendant is still working on
the land etc…….”
The import of the
foregoing statement was that before the trial Judge
entered judgment in favour of plaintiff, he had
satisfied himself of the balance of the weight of the
evidence.
The trial Judge was and
heard the parties and their witnesses.
His assessment of the
evidence cannot be faulted. It is not duty of this court
to easily set aside the concurrent findings of the
Courts below where there is evidence in support of them.
There is a host of
cases in support of this principle see the case of
ABABIO vrs. BEKOEI 1996/7 SCGLR. P.192.
I am therefore
satisfied that this appeal should fail. The appeal is
therefore dismissed.
R. T. ANINAKWAH
JUSTICE OF APPEAL
ARYEETEY, J.A.
I agree.
B. T. ARYEETEY
JUSTICE OF APPEAL
QUAYE, J.A.
I also agree.
G. M. QUAYE
JUSTICE OF APPEAL |
