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ARCHER, ANIN AND
HAYFRON—BENJAMIN JJ.A.
Customary
law—Land—Title—Allodial title to disputed land vested in
plaintiff’s ancestors—Land inherited by plaintiff on
death of uncle—Defendants' predecessor cultivating land
with leave of plaintiff—Defendants cultivating land
after death of predecessor—Dispute over type of tenure
held by defendants predecessor—Plaintiff alleging in
absence of evidence that defendants' predecessor had
sowing tenancy only—Nature of declaration available to
plaintiff in absence of counterclaim.
Customary
law—Arbitration—Essential requirement—Voluntary
submission—Plaintiff lodging complaint with
chief—Defendant invited by chief for settlement of
dispute—Defendant responding to invitation out of
respect of chief—Effect of mere presence of defendant at
meeting—No prior agreement between parties to be bound
by decision of arbitration—Effect of arbitration.
HEADNOTES
The plaintiff inherited
the land in dispute from his deceased uncle. He allowed
one Busumprah, the predecessor of the defendants, to
farm on the land. On the death of Busumprah the
defendants as his successors stepped into his shoes and
continued to farm on the land. Whereupon the plaintiff
lodged a complaint with the chief of the area who
invited the defendants for a settlement of the dispute.
The plaintiff in his evidence did not indicate whether
there was a voluntary submission or an agreement to
submit to the chief's proposed arbitration. The chief
found for the plaintiff. On realising subsequently that
the defendants were not abiding by the result of the
alleged arbitration, the plaintiff sued the defendants
in the district court for a declaration of title to the
land in dispute and damages for trespass. The trial
magistrate in giving judgment for the plaintiff held
that the plaintiff had proved beyond reasonable doubt
that the disputed land belonged to his ancestors. He
also held that there had been a valid arbitration into
the case which had ended in favour of the plaintiff. On
appeal to the High Court, the learned judge held that
there had been a valid arbitration and the defendants
were consequently estopped from relitigating the issue.
On appeal to the Court of Appeal, the main issues for
determination were: (i) whether these defendants were
vested with usufructuary title which they could
maintain against their grantor, and (ii) whether there
had been a valid arbitration.
Held, allowing the
appeal:
(1) in the absence of
a counterclaim by the defendants for a declaration of
their usufructuary interest, the plaintiff was entitled
to a declaration in his favour in respect of his
allodial title to the disputed land and his
reversionary rights as such allodial owner. However,
since he was not in exclusive possession of the land,
having permitted the defendants’ ancestor to make a farm
thereon, and since in the absence of evidence that this
was merely a sowing tenancy, the ancestor's usufructuary
interest in the farm was now vested in possession of the
defendants, his successors, the action for damages for
trespass was consequently misconceived and should be
dismissed. Dictum of Archer J.A. in Mansah v. [p.28]
Asamoah [1975] 1 G.L.R. 225 at p. 236, C.A. and of
Verity C.J. in Emegwara v. Nwaimo (1953) 14 W.A.C.A. 347
at p. 349 applied.
(2) The mere presence
of a party to a dispute at a meeting which purported to
arbitrate upon a dispute between him and another also
present at that meeting was no conclusive evidence of
proof of submission to arbitration. For the party
summoned might have attended the proposed arbitrators'
call only out of respect for their dignified social
position and with the limited intention of merely
explaining himself or giving his version of the
dispute. In the present case, the plaintiff on whom lay
the onus of proving each necessary ingredient of a valid
customary arbitration failed to adduce evidence or prove
the defendants agreement to submit to the chief's
arbitration. What the plaintiff merely established,
which was erroneously held by the learned judge to
constitute voluntary submission of the defendants' part
was their mere presence without more, at the chief's
palace in answer to a prior call. This did not amount
to voluntary submission of the dispute to arbitration,
and the learned judge erred in law in holding that there
had been a valid arbitration. Paul v. Kokoo [1962] 2
G.L.R. 213, S.C.; Asare v. Donkor [1962] 2 G.L.R. 176,
S.C.; Donkor v. Isifu [1963] 1 G.L.R. 418, S.C. and
Dompreh v. Pong [1965] G.LR. 126, S.C. cited.
(3) The question of a
prior agreement to be bound by the decision of the
arbitrators in an alleged arbitration was a question of
fact to be determined by the evidence. The prior
agreement could be indicated by the parties' conduct as
revealed by the evidence, and it could be signified in a
variety of ways, e.g. by the payment by both sides of
the arbitrators' fee before the award, by express
written or oral agreement to that effect or by other
conduct which in the opinion of the court unquivocally
and irresistibly pointed to the same conclusion. In the
present case, since no such evidence was adduced, the
trial judge erred in including that the defendants were
estopped by a valid arbitration. Twumasi v. Badu (1957)
2 W.A.L.R. 204, W.A.C.A. applied.
CASES REFERRED TO
(1) Rufai v. Ricketts
(1934) 2 W.A.C.A. 95.
(2) Kodilinye v. Odu
(1935) 2 W.A.C.A. 336.
(3) Mansah v. Asamoah
[1975] 1 G.L.R. 225, C.A..
(4) Emegwara v. Nwaimo
(1953) 14 W.A.C.A. 347.
(5) Budu II v. Caesar
[1959] G.L.R. 410.
(6) Yaw v. Amobie
(1958) 3 W.A.L.R. 406, C.A.
(7) Paul v. Kokoo
[1962] 2 G.L.R. 213, S.C.
(8) Asare v. Donkor and
Serwah II [1962] 2 G.L.R. 176, S.C.
(9) Donkor v. Isifu
[1963] 1 G.L.R. 418, S.C.
(10) Dompreh v. Pong
[1965] G.L.R. 126, S.C.
(11) Mosi v. Fordjuor
and Adu [1962] 2 G.L.R. 74, S.C.
(12) Twumasi v. Badu
(1957) 2 W.A.L.R. 204, W.A.C.A.
NATURE OF PROCEEDINGS
Appeal from the
decision of the High Court, Sekondi, affirming judgment
of a district court in favour of the plaintiff in an
action for a [p.29] declaration of title and damages for
trespass. The facts are sufficiently set out in the
judgment of Anin J.A.
COUNSEL
James Mercer for the
appellants.
Amua-Sekyi for the
respondent.
JUDGMENT OF ANIN J.A
This is an appeal by
the defendants from the concurrent judgments of two
lower courts in favour of the plaintiff in a suit for a
declaration of title to a parcel of land, two poles
square, at Asafoa Gyintu, and for ¢250.00 damages for
the defendants’ "wrongful entry and cultivation of food
crops upon the said land." On the issue of title, the
trial magistrate held that the plaintiff and his
witnesses "had proved beyond reasonable doubt that the
disputed land was owned by the plaintiff's ancestors”.
He also held that there had been a valid arbitration
into the land case between the parties which ended in
favour of the plaintiff; but that “what disturbed the
mind of the court was the absence of the defendants at
the inspection.”
The doubt entertained
by the magistrate about the legal effect of the
defendants' absence at the inspection of the locus in
quo was dispelled by the learned judge of the Sekondi
High Court who heard the first appeal of the
defendants. In a two-page judgment devoted exclusively
to the arbitration issue, he held that the magistrate
rightly concluded that there had been a valid
arbitration, and the defendants were consequently
estopped from relitigating the case. The learned
judge's decision has been attacked in this appeal on two
grounds argued before us by Mr. Mercer, learned counsel,
for the defendants. The first ground was that:
“The plaintiff had no
cause of action in that according to his own evidence
and that of his witnesses, the land in dispute had been
granted by his predecessor to the late Busumprah whom
the defendants had succeeded and inherited and the
defendants were therefore vested with possessory or
usufructuary title which they could maintain against
their grantor."
The gist of the
plaintiff's case was that the disputed land was
acquired by his ancestors and that he succeeded his
uncle Ntrama who died about ten years before the action
and thereby became the owner in possession of the land.
He permitted the late Busumprah, to farm on the land.
Though he knew that defendants are related to the late
Busumpra, nevertheless he had not permitted them to
farm on the land. When the defendants trespassed upon
the land, he lodged a formal complaint against them
before the chief of Hotopo, who in an arbitration award
found in the plaintiff's favour.
The plaintiff's nephew
and third witness, Ejokosua, corroborated the plaintiff
on his allodial title and gave few details about the
licence given to the late Busumprah to farm on the
land. He claimed to have been present on the occasion,
some three years earlier, when Busumprah approached the
plaintiff for permission to farm on his land at Asafoa
[p.30] Gyintu. His uncle agreed to the request made and
Busumprah "paid the sum of 5s. (50p) for Mfufudzi rum
drink. The plaintiff however returned it to Busumprah
as Ebukan." Though Ejokosua explained under
cross-examination that "the payment of the 50p
represented that permission had been granted to
Busumprah to cultivate the plaintiff's land," yet he did
not explain why it was refunded to the plaintiff, nor
the meaning of "Ebukan." Neither the plaintiff nor
Ejokosua spelled out the duration or type of licence
given to the late Busumprah; for example they did not
disclose whether it was a sowing tenure limited in
duration to one season and not heritable or whether it
was an annual tenure, i.e. from year to year and capable
of being enjoyed until terminated or enduring for so
long as the licensee or his successor recognised and did
not dispute the title of the grantor. Again, the
evidence adduced by and for the plaintiff did not
indicate whether any rent, toll or tribute was payable
periodically or otherwise in respect of the licence
granted. No financial or share-cropping arrangements
were disclosed. Neither an abusa nor an abunu tenancy
was alleged to have been concluded between the parties.
In short, the evidence was completely silent about the
type of licence or,customary tenancy that was created in
favour of the late Busumprah, except for an oblique
allusion in the plaintiff's evidence to "Busumprah
having asked for a piece of land to farm cassava crops."
The plaintiff for his part did not specify the nature or
terms of the licence he is in fact granted in response
to Busumprah's said request.
The spokesman for the
defendants was Buaku Quiacoe, the family linguist, who
was sued jointly as co-defendant. In his evidence, he
claimed that both he and the defendants cultivated
coconut and cassava on the disputed land inherited from
their predecessor Busumprah. He conceded that the
virgin forest on the land was cleared by Ntrama, as
alleged by the plaintiff; but he denied that they had
either submitted to the Hotopo chief's alleged
arbitration or attended the inspection of the land
ordered by him.
After summarising the
evidence on both sides, the trial magistrate concluded
that the disputed land "belongs to the plaintiff and his
ancestors, and that it was given to the late Busumprah
for farming purpose." He thereupon entered judgment for
the plaintiff. It is this conclusion which is being
assailed by learned counsel for the appellants. His
argument is simply that the plaintiff had no cause of
action; because on his own showing the disputed land was
granted by his ancestor Ntrama to the late Busumprah for
farming purpose. Since Busumprah was succeeded by the
defendants, the latter became entitled by operation of
the customary law to Busumprah's possessory or
usufructuary interest in the land. Furthermore, since
Busumprah was duly permitted to farm on the land, he
could not be regarded as a trespasser; neither could his
successors, the defendants, be regarded as trespassers
since they merely stepped into his shoe and were seised
of his usufructuary interest in the land.
For the plaintiff, Mr.
Amua-Sekyi admitted that the late Busumprah made the
farm on the land in question with the prior permission
of the plaintiff. He, however, contended that
Busumprah's licence was limited[p.31] to the cultivation
of cassava crops; and Busumprah must, therefore, be
deemed to have been demised a sowing tenancy of one
season's duration only which was not heritable by his
customary successor. He strongly relied on the
arbitration award in favour of his client as effectively
estopping the defendants from disputing his title to the
land.
It is trite law that a
plaintiff in a claim for a declaration of title to land
bears a heavy onus of proving ownership; and that the
result depends on the strength of his own case and not
on the weakness of the defendant's: see per Webber C.J.
in Rufai v. Ricketts (1934) 2 W.A.C.A. 95 at p. 97 and
in Kodilinye v..Odu (1935) W.A.C.A. 336 at pp. 337-338.
If, as was contended by Mr. Amua-Sekyi, the plaintiff
based his claim on a sowing tenancy demised to the late
Busumprah, then it was incumbent on him to adduce
evidence in support of such a sowing tenancy. This he
failed to do. Since the terms and conditions of the
licence given to Busumprah were not spelled out, it is
impossible to determine into which category the licence
falls. From the evidence adduced, all that can be said
with any certainty is that, first, Busumprah was
permitted to farm on the land in dispute and was
therefore not a trespasser; secondly, he enjoyed a
possessory or usufructuary interest in the land demised
to him and on which he made his farm; thirdly, there is
no evidence that the licence granted to Busumprah was
either terminated or that it lapsed at his death; and
fourthly, that upon Busumprah's death, his possessory or
usufructuary interests in the land vested in his
customary successor, the defendants herein. As this
court recently observed in Mansah v. Asamoah [1975] 1
G.L.R. 225, C.A. (where the main decision was on the
customary law of atuogya):
"In modern Ghana, a
stranger-grantee of farming land, which he has
cultivated, has security. . . like the subject-grantee,
has a possessory heritable interest and so long as he
continues to discharge his obligations, he cannot be
deprived of his interest, although unlike the
subject-grantee, he cannot alienate or dispose of his
interest intervivos without the consent of the stool.
"See per Archer J.A. at
p. 236 of the report. I would add, with respect, that
the principle of law there enunciated is equally valid
whether the allodial title is vested in the stool or a
community or, as in this case, in a family.
The position would have
been quite different if, as has been already mentioned,
the plaintiff had proved the demise of only a sowing
tenancy in favour of the late Busumprah. In that case,
his permission to farm on the land would have been of
one season duration only, and the tenancy would not
have been heritable. If, however, the sowing tenant
dies before his seasonal crops are gathered his
successor is entitled to reap them. As soon as the
crops are gathered in, the tenancy ceases: see Sarbah's
Fanti Customary Laws (3rd ed.) at pp. 68-69. However,
in this case no evidence was adduced tending to
establish the demise of a sowing tenancy.
As was stated by Verity
C.J. in Emegwara v. Nwaimo (1953) 14 W.A.C.A. 347 at p.
348:
[p.32]
“It is essential before
any declaration is made that the party seeking it
should state specifically what is the nature of the
right he claims and that he should prove that the terms
of the grant under which he claims conferred such a
right. Unless these two factors are present, the court
cannot properly exercise its discretion in his favour
and make any declaration."
From the evidence in
this case, it was not disputed that the allodial title
to the disputed land was owned by the plaintiff and his
predecessors, since they originally acquired the land
and cultivated the virgin forest on it. It was also not
disputed that the late Busumprah, the defendants'
ancestor, made a farm on the land with the leave and
licence of the plaintiff; and that the defendants are
now in possession of that farm situated on a parcel of
land measuring two square poles at Asafoa Gyintu. In my
evaluation of the evidence, I hold that the plaintiff is
entitled to a declaration in his favour in respect of
his allodial title to the disputed land and his
reversionary rights as such allodial owner. However,
since he is not in exclusive possession of the land,
having permitted Busumprah to make a farm thereon; and
since the late Busumprah’s usufructuary interest in the
farm is now vested in possession of the defendants, his
successors, the plaintiff's action for damages for
trespass is, in my opinion, misconceived and
unsupportable and ought accordingly to be dismissed. Had
the defendants counterclaimed for a declaration of title
in respect of the usufructuary interest in the farm
they inherited from Busumprah, they would, in my
opinion, have been clearly entitled to it. However, in
the absence of such a counterclaim and in view of the
evidence adduced it would be fair and proper to declare
that the plaintiff is the allodial owner of the land in
dispute; and to declare further that he is not, however,
entitled to the usufructuary interest in the farm made
by the late Busumprah on the disputed land. I would
furthermore dismiss the plaintiff's trespass claim for
the reasons already stated.
Turning now to the
arbitration issue, Mr. Mercer contended that the
evidence adduced did not establish all the necessary
ingredients of a valid arbitration. In particular,
there was no evidence or proof of either the defendants’
voluntary submission to the alleged arbitration or
prior agreement to be bound by the decision of the
alleged arbitrators.
In his judgment, the
learned High Court judge held that from the evidence
the five requirements of a customary arbitration laid
down in the headnote of Budu II v. Caesar [1959] G.L.R.
410 at p. 412 were complied with, namely:
"that in customary law
there are five essential characteristics of an
arbitration, as opposed to negotiations for a
settlement, viz :
(i) a voluntary
submission of the dispute by the parties to arbitrators
for the purpose of having the dispute decided
informally, but on its merits;
(ii) a prior agreement
by both parties to accept the award of the arbitrators;
[p.33]
(iii) the award must
not be arbitrary, but must be arrived at after the
hearing of both sides in a judicial manner;
(iv) the practice and
procedure for the time being followed in the Native
Court or Tribunal of the area must be followed as
nearly as possible; and
(v) publication of the
award
"It is true, he
conceded:
"that it was the
plaintiff who first made the complaint to the chief of
Hotopo and the defendant was sent for and he appeared
before the arbitrators; this in law amounts to voluntary
submission of the dispute by the parties to arbitrators
to settle it informally but on the merits."
And he cited in support
of his conclusion the following passage from Yaw v.
Amobie (1958) 3 W.A.L.R. 406 at p. 408, C.A.:
"It is very rare for
two people who are quarrelling to meet and agree
together that, they would submit their dispute to
arbitration. The usual thing is that one party makes a
complaint to somebody, the other party is sent for, and
if he agrees, the party to whom the complaint is made
arbitrates upon the dispute."
(The emphasis is mine.)
The all important conditional clause emphasised above
and if he agrees was interpreted in the later case of
Paul v. Kokoo [1962] 2 G.L.R. 213 at pp. 216-218, S.C.
to mean, not that if the party sent for agrees to go or
answers the call, then it must be taken that he has
agreed that there should be an arbitration, but that
before it can be said that the party sent for has agreed
to submit to the proposed arbitration, there must be
evidence that the full implications of the purpose of
the meeting was explained to him as well as to the
complainant, and that with full knowledge of the
implications of the purpose of the meeting, they each
agreed that the person(s) before whom they appeared
should arbitrate upon their dispute and give a decision
thereon. It was stressed not only in Paul v. Kokoo
(supra), but in also such cases as Asare v. Donkor and
Serwah II [1962] 2 G.LR. 176 at pp. 179–180, S.C.;
Donkor v. Isifu [1963] 1 G.L.R. 418 at p. 423., S.C. and
Dompreh v. Pong [1965] G.L.R. 126 at p. 132, S.C., that
the mere presence of a party to a dispute at meeting
which purports to arbitrate upon a dispute between him
and another person, also present at that meeting, is no
conclusive evidence or proof of submission to
arbitration. For one thing, the party summoned may have
attended the proposed arbitrators' call only out of
respect for their dignified social position and with the
limited intention of merely explaining himself or of
giving his version of the dispute. On the other hand,
he may well have attended with the intention of
submitting to the proposed arbitration, being aware of
the purpose of the meeting and its implications. It all
depends on the evidence adduced whether his attendance
to the call is explicable on the one ground or the
other. His response to the call as evidenced by his
physical presence before the proposed arbitrators is
[p.34] equivocal and susceptible of two possible
interpretations; and evidence must therefore be adduced
to establish unambiguously his true purpose in attending
the call. Thus, for example, in Asare v. Donkor and
Serwah II (supra), the court found objectively from the
evidence adduced that the party summoned attended the
chief's call out of respect due to the stool dignity but
that he never agreed to submit the dispute to
arbitration.
Applying the relevant
law to the facts of this case, I find that the plaintiff
on whom lay the onus of proving each necessary
ingredient of a valid customary arbitration—see on this
Mosi v. Fordjuor and Adu [1962] 2 G.L.R. 74 at p. 76,
S.C.—failed to adduce evidence or prove the defendants'
agreement to submit to the Hotopo chief's arbitration.
What the plaintiff merely established—which was
erroneously held by the learned judge to constitute
voluntary submission on the defendants' part—was their
mere physical presence, without more, at the chief's
palace in answer to a prior call. The plaintiff's own
testimony on this issue was extremely brief: "I took the
defendants to the chief of Hotopo to explain why they
had trespassed on my land. The defendants appeared
before the chief and his elders. The case was decided
in my favour." Nowhere in his evidence and the plaintiff
advert to the voluntary submission or the agreement of
the defendants to submit to the chief's proposed
arbitration in full awareness of the implications of the
purpose of the meeting. None of his witnesses supplied
this deficiency in his evidence on this vital issue.
Both his fourth witness (Kwasi Nyamekye), an elder and
panel member of the proposed arbitration, and his fifth
witness (Anaman) who spoke about the arbitration were
completely silent about this issue.
On the other hand, the
co-defendant, spokesman for the defendants and family
linguist, explained in his testimony that they attended
the call of the Hotopo chief, accompanied by their first
witness Kofi Ewura; that after the chief had informed
them of the plaintiff's complaint, he "in turn with
respect asked leave of the chief to leave the case and
allow the plaintiff to send his case to court and that
they thereupon left the palace." Kofi Ewura likewise
testified about the defendants having left the palace
“unceremoniously” as soon as the chief told them of the
plaintiff's complaint.
It is of no consequence
and it is immaterial for the purpose of ascertaining
whether or not the defendants' voluntary submission to
the chief's arbitration was established, that the
learned judge preferred the evidence of the plaintiff's
side to the defendants'. As already shown, the
plaintiff bore the onus of establishing that
indispensable ingredient of a customary arbitration; but
he failed to adduce any evidence on that issue.
Consequently, the learned judge erred in law in holding
that a valid arbitration had been established. He
clearly erred in law by holding, in the teeth of the
above-quoted authorities to the contrary, that the fact
"the defendants were sent to and they appeared before
the arbitrators, amounts to voluntary submission" of the
dispute to an arbitration.
On this ground alone,
the learned judge's final conclusion on arbitration,
namely, that all the necessary ingredients had been
established and a valid arbitration as distinct from
negotiations for a settlement had been [p.35] proved is
erroneous and his decision ought to be reversed; for
failure to prove voluntary submission of a party to the
dispute to the proposed arbitration is fatal to the
plaintiff’s case of the validity of the alleged
arbitration: see, for example Budu II v. Caesar (supra)
where it was held, inter alia, that there was neither
submission to the arbitration nor prior agreement by
Caesar to be bound by any decision of the arbitrators;
and that consequently there was no valid arbitration.
Furthermore, the
alleged arbitration fails because of the absence of
evidence or proof by the plaintiff of a prior agreement
between the disputing parties to accept the award of the
arbitrators. The learned judge erred by inferring from
the sheer coincidence that Opanin Kwaku Mensah was
referred to by both sides as a competent witness that
that "was surely evidence that there is a prior
agreement to accept the award of the arbitrators.” With
respect, I fail to see the logical connection that
coincidence and the conclusion reached. His finding was
indeed a non sequitur. From the claim and the
undisputed evidence, it is clear that the said Kwaku
Mensah was an adjoining boundary owner. This being a
land suit involving title and trespass, it is obvious
that this adjoining boundary owner was a key witness to
both parties. But that neutral fact has nothing to do
with the question whether or not the disputants had, as
a matter of evidence, indeed agreed beforehand to accept
the award of the alleged arbitrators. Such a prior
agreement may be inferred for instance, from the payment
by both parties of an arbitration fee prior to the
publication of the award; the prior payment of such a
fee before the award distinguishing a customary
arbitration from a mere negotiation for a settlement.
See on this Donkor v. Isifu (supra) at p. 425. But as
was held in Twumasi v. Badu (1957) 2 W.A.L.R. 204,
W.A.C.A. whether there exists in a particular case of
alleged arbitration a prior agreement to be bound by the
decision of the arbitrators or not, is a question of
fact to be determined by the evidence. I would add
that this prior agreement may be indicated by the
parties' conduct as revealed by the evidence; and it may
be signified in a variety of ways, e.g. by the payment
by both sides of the arbitration fee before the award;
by express written or oral agreement to that effect or
by other conduct which in the opinion of the court
unequivocably and irresistibly points to the same
conclusion. In this case no such evidence was adduced;
and the learned judge, with respect, erred in the
inference he drew from the unrelated piece of evidence
about Kwaku Mensah and in his conclusion that the
defendants were estopped by a valid arbitration.
For the above reasons I
would allow the appeal; set aside the decisions of the
magistrate and the learned High Court judge. I would
dismiss the plaintiff's claim for damages for trespass
and enter judgment in favour of the appellants. With
respect to the plaintiff's claim for a declaration of
title to the land in dispute, I would uphold his
allodial title to the said land, but would declare that
he is not entitled to the usufructuary interest of the
late Busumprah and his successor the defendant in the
farm made on the said disputed land. I would further
set aside the orders made in the two courts below as to
costs, and award the appellants ¢86.30 costs in the
[p.36] trial court and ¢100 costs in the High Court.
The appellants would also be entitled to their costs in
this court assessed at ¢ 114.50.
JUDGMENT OF ARCHER J.A
I agree.
JUDGMENT OF HAYFRON-BENJAMIN
J.A.
I also agree
DECISION
Appeal allowed.
S.O.
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