ASARE v. DONKOR AND SERWAH II
[SUPREME COURT, ACCRA]
DATE: 21ST DECEMBER, 1962
COUNSEL
N. Y. B. Adade for the defendants-respondents-appellants.
Victor Owusu for the plaintiff-appellant-respondent.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. In this action, the identity of the land was not in
dispute, and all the parties were agreed that the land is a portion of the lands of the Odikro of Nagodi
under the stool of Nyinahin, and that the Odikro and his elders are the proper persons to make valid
grants of it. They were also agreed that the Odikro, one Mathew Anokye made a grant of a portion of his stool land at one time to the first appellant, and a portion at another time to the plaintiff. Claiming
that the area in dispute formed part of the land granted to him, the first appellant transferred it to the
second appellant, an Omanhene of another state, and placed her in possession. The respondent resisted
entry of the appellants upon the land, maintaining that the land is in his possession as owner, as part
of the land lawfully granted to him by the Odikro. The appellants then lodged complaint against him
with the Nyinahinhene, who, purporting to arbitrate on the dispute between the parties, declared the
grant made to the respondent to be null and void and ordered the respondent to remove all his crops
from the land and give vacant possession thereof to the second appellant. The respondent then sued.
The main issues joined between the parties are: (1) to whom was the grant of the land in dispute
made: the respondent or the first appellant, and (2) had the dispute been arbitrated upon by the
Nyinahinhene? After hearing evidence, the local court inspected the land before delivering judgment.
Each of the three members of the local court recorded his opinion, which together formed the basis of
the judgment against the respondent.
[p.178] of [1962] 2 GLR 176
The respondent appealed against that judgment to the High Court, which allowed the appeal, set aside
the judgment of the local court, and entered judgment for the respondent.
Four grounds of appeal were argued before us; they may be summarised as follows: (1) the learned
judge erred in that he gave undue weight to the case for the plaintiff, but failed to consider the case for
the defence; (2) the learned judge erred in reversing the findings of fact made by the local court based
on a story of the defendants which stood almost unchallenged, and upon impressions which they
formed upon inspection of the land; (3) that having rejected the findings of fact made by the local
court, the High Court failed to make any findings of its own upon which it could properly enter
judgment in favour of the plaintiff, and (4) the judgment is against the weight of evidence.
The submissions that the learned judge failed to consider the case for the defence, and also failed to
make findings which warranted an entry of judgment in favour of the respondent as plaintiff, have no
foundation. Unlike the local court, the learned judge did consider the principal issues in the case,
namely: (1) did Mathew Anokye, the Odikro of Nagodi, grant this land to the respondent, or did he
grant it to the first appellant, and (2) had the dispute been arbitrated upon?
The only way whereby that first issue can be determined is through the evidence of the said Mathew
Anokye and evidence of any other eye witness to the separate grants. The parties were agreed that the
only other eye witness to the two transactions was one Gyantutu. The appellants subpoenaed the said
Gyantutu, and the respondent subpoenaed Mathew Anokye.
But the appellants withdrew their said witness Gyantutu after Mathew Anokye had given evidence.
The presumption to be drawn from the withdrawal of Gyantutu as a witness is that the evidence he
would have given of the transaction would be the same as that given by Mathew Anokye the only
other independent eye witness to each of the two separate grants, that it would not derogate from it,
and could not advance it any further. Where the evidence of the only independent witnesses on a vital
issue corroborates the evidence of one party or the other, a court is bound to accept the case of the
party so corroborated, unless there are good reasons for discrediting the independent witnesses, in
which case the reasons for discrediting them should be clearly stated in the judgment. The trial local
court did not give any reasons why Mathew Anokye should be discredited. Far from discrediting him,
they said of him: “The plaintiff called the said Mathew Anokye as a witness who also gave evidence
before this court in connection with this case for which the said evidence was well observed.” Guided
by the principle of law that in those circumstances the evidence of Mathew Anokye should be
accepted, the learned judge said:
“It was not disputed that land in the place called Kwame Mensah was allocated to both the
plaintiff-appellant and the first defendant-respondent by the Odikro, Mathew Anokye, plaintiff’s first
witness. Anokye accordingly became a vital witness and there is nothing in the judgment to suggest that he was considered unworthy of credit. He said he allocated the land in dispute to the plaintiff about five
years ago and when the first defendant trespassed upon it and sold part of it to the second defendant he
went to the scene and instructed the first defendant to substitute a portion of his own land . . .
[p.179] of [1962] 2 GLR 176
This evidence was supported to some extent by the plaintiff’s other witnesses. The first defendant on the
other hand called no witnesses in support of his case and in particular, failed to call one Kwame
Gyantutu who is indicated on the record as being his sixth witness and who was present when the land
was allocated to the first defendant.”
It cannot therefore be said that for the determination of the principal issue, namely, to whom was the
land granted, the learned judge did not make findings which resolved that issue in favour of the
respondent.
Again, the criticism of the learned judge’s failure to consider the case of the appellants is unfounded.
He definitely gave sufficient consideration to it, side by side with the consideration he gave to the
respondent’s case, and came to the conclusion that while the evidence of the respondent as to the
grant was corroborated by the evidence of the grantor, Mathew Anokye, that of the appellants stood
unsupported, and moreover the appellants failed to call the only other person who had personal
knowledge of the transaction namely Kwame Gyantutu. Thus, as stated above, the learned judge said:
“The first defendant on the other hand called no witnesses in support of his case and in particular, failed
to call one Kwame Gyantutu who is indicated on the record as being his sixth witness and who was
present when the land was allocated to the first defendant. No comment was made by the court on this
failure.”
As to the second issue, namely, the arbitration, the learned judge stated the facts relied upon as
constituting arbitration and said: “This is referred to by the second member of the court as an
arbitration.” He then made a definite pronouncement upon it. He said: “It is clearly, however,
arbitrary action by the landlord probably to please another stool occupant.”
The facts about the alleged arbitration are: That when the dispute arose between the parties over the
land, the appellants lodged a complaint with the Nyinahinhene against the respondent; the
Nyinahinhene then sent for the respondent and the Odikro of Nagodi, and having held certain
enquiries, ordered that the second appellant should retain possession of the land, and forbade the
respondent from going upon it. The proceedings before the Nyinahinhene, as described, do not
constitute arbitration by customary law. It is correct that one of the recognised ways in which
arbitration proceedings may be initiated by customary law, is for one of the parties to a dispute to
lodge a complaint against his opponent to the would-be arbitrator with a request that he should
arbitrate upon it, and the would-be arbitrator then sends for the other party and obtains his consent
that the dispute be decided by arbitration. But to amount to a submission to arbitration, it must be
shown that when the other party came, upon being sent for, a full explanation was made to him that
his opponent had made a request that the dispute should be determined at an arbitration, not in court,
and that the person to whom he lodged the complaint should preside over the dispute as the arbitrator.
It is only when the person against whom the complaint is made agreed after such explanation, i.e. if
with full knowledge of the implications he also expresses his agreement to the proposal of the
complainant that an arbitration should be so held, that there could be a
[p.180] of [1962] 2 GLR 176
lawful submission to arbitration by both parties, otherwise not. This principle is summarised in Yaw
v. Amobie,1(1) as follows:
“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.”
In the present case, although the evidence shows that the respondent attended the call by the
Nyinahinhene, there is nothing to show that he did so other than as a matter of respect due to a stool
dignitary. The full implications of the complaint made by the appellants to the Nyinahinhene were not
explained to him; and there is no evidence either that the request the appellants made to the
Nyinahinhene was that he should arbitrate on the dispute, meaning that they were prepared to abide
by his award; and certainly there is no evidence that any explanation was made to the respondent
about the request of the appellants for arbitration, and no evidence that the respondent ever agreed to
submit the dispute to arbitration either by the Nyinahinhene or by any other person. On the contrary
what the evidence reveals is that the Nyinahinhene threw his weight about to impress upon the
respondent his authority over the land, and his powers to undo what the immediate owner of the land,
the Nagodi Odikro, had done. Therefore what the Nyinahinhene did was arbitrary, he did not hold an
arbitration. The learned judge was, therefore, right when he described the said proceedings as “arbitrary action.”
It was submitted for the appellants that the impressions which the local court formed from their
inspection of the land are findings of fact upon which they are entitled to come to a decision on the
whole case, and that those findings should not have been disturbed. In support of that submission
counsel cited Nwizuk v. Eneyok,2(2) Abono v. Sunkwa,3(3) and Anto v. Mensah.4(4) The main point
in those cases is that a trial court is entitled to form its impressions at an inspection of land in dispute,
and is entitled to consider the impressions so gained along with the whole of the evidence on the
record and impressions formed from demeanour of witness, but they should not attach too much
weight to those impressions to the detriment of the weight which they should attach to demeanour of
witnesses, and to the weight of evidence given by witnesses not proved to be unworthy of credit, and
they should not substitute the impressions gained at such viewing for the oral evidence given in the
case. Now the views expressed by the first member of the local court showed that the local court
substituted the impressions they formed at the inspection and the alleged personal knowledge they
possessed of local practice of farmers for the facts proved by the evidence. That they are not entitled
to do. Thus the authorities cited do not support the submission on this point.
As pointed out earlier, the parties were ad idem as to identity of the land, subject-matter of the suit,
and there was no difference between them as to any physical features of the land. In those
circumstances there was no issue or doubt which impressions gained from viewing the land would
help to solve. That being the position, inspection of the land was
[p.181] of [1962] 2 GLR 176
absolutely unnecessary. It is only in cases where the identity of the land or any physical features of it
are in dispute that a decision by a local court to view the land can be a proper judicial exercise of its
discretion.
Counsel for the appellants urged the court to exercise the powers given it by rule 31 of the Supreme
Court Rules, 1962,5(5) and remit the case to the local court of the first instance for trial de novo. This
submission is based upon the premises that the High Court had set aside the findings made by the trial
local court, but failed to make its own findings. Therefore the argument is groundless. But even if the
High Court had made no findings, since all the relevant facts are available to this court, this court
would, by virtue of rule 32 of the Rules of the Supreme Court 1962, have to examine the facts and to
make its own findings, and give such judgment on the case as is warranted by the evidence and as the
trial court could have given. On the issue of weight of evidence, it must be observed that upon the
totality of the evidence and the law applicable, the only reasonable judgment which the justice of the
case calls for is the judgment given by the High Court.
In conclusion it must be pointed out that even if the Odikro of Nagodi had been just an ordinary
caretaker, and not a caretaker with an interest as owner of the immediate sub-absolute title in the land,
the superior stool in whom the over-lordship in the land is vested, is not entitled by customary law to overrule a grant validly made by the caretaker.
The judgment of the High Court is sound, and should not be disturbed. We would therefore dismiss
the appeal.
DECISION
Appeal dismissed.
J. D.
