HIGH COURT, SEKONDI
DATE: 10 MARCH 1967
BEFORE: KORANTENG-ADDOW J.
CASES REFERRED TO
(1) Mensah v. Takyiampong (1940) 6 W.A.C.A. 118.
(2) Larbi v. Kwasi (1953) 13 W.A.C.A. 81.
(3) Budu II v. Caesar [1959] G.L.R. 410.
(4) Tanor v. Dapomah [1960] G.L.R. 241.
NATURE OF PROCEEDINGS
APPEAL against the judgment of a local court wherein the appellant was mulcted in damages for failing
to exercise his rights of ownership over a disputed land at the respondent’s expense.
COUNSEL
G. D. Hayfron for the appellant.
Respondent in person.
JUDGMENT OF KORANTENG-ADDOW J.
The plaintiff in this case brought an action against the defendant in the District Magistrate Court Grade II
at Dompim, claiming as follows:
“Plaintiff claims from the defendant the sum of ¢174.63 to wit:
(a) ¢120.00 being damages for establishing unlawful claim to a land known and called ‘Abatafuo’ and deprived the plaintiff from farming for livelihood of himself and family; and
(b) Defendant to refund the amount of expenses of ¢54.63 incurred by plaintiff through his (defendant’s) unlawful action.”
He elaborated on this in his evidence in court in the following terms:
“. . . The defendant . . . took action against me in an arbitration at Dompim No. 1. When the matter was
decided at the arbitration the arbitrators gave judgment against me . . .
Defendant has since then about three (3) years ago failed to give me notice to quit from the land and as such
I find defendant is not the owner of the land but only threatened and took
[p.123] of [1967] GLR 121
this action against me and put me into debt. I therefore took this action against the defendant to claim all my
expenses made or paid to him amounting to ¢54.63 and for ¢120.00 damages for establishing unlawful claim
against me.”
The trial magistrate upheld the contentions of the plaintiff and gave judgment for him. It is from that
judgment that this appeal was made.
The fundamental facts in this matter which are not disputed are that the defendant-appellant (herein to be referred to as the defendant) lodged a complaint against the plaintiff-respondent (herein to be referred to as the plaintiff) with the divisional chief of Dompim No. 1 in respect of a piece of fallow land situate in the Dompim area known and called “Abatafuo.” On being summoned by the divisional chief the plaintiff gave his consent to the matter being gone into by the chief with some of his elders. After hearing the evidence in the matter the panel inspected the land and made a finding in favour of the defendant.
The plaintiff expressed his dissatisfaction with the decision and refused to pay the expenses of the defendant which he was adjudged liable to pay. The defendant subsequently brought an action against the plaintiff in the local court for the said expenses. He succeeded and the plaintiff paid up.
The plaintiff is a stranger in the Dompim area and his case at the arbitration was that the parcel of land in dispute formed part of a larger area granted to him by the relatives of his wife whom he describes as his “fathers-in-law”—two of them. The names of his benefactors he gives as Kojo Ndru and Kojo Effie.
According to the plaintiff the piece of land was granted to him some ten years before the dispute herein
started. He cultivated part of the land into a cocoa farm but three years before the arbitration he gave the remaining portion under a customary tenancy to one Kwaw Hini. It was when Kwaw Hini started tilling this portion of the land that the defendant laid claim to that portion. Why he was dissatisfied with the finding of the arbitrators, according to the plaintiff, was that in his estimation the defendant brought an action against the wrong person. He felt that as he disclosed to the defendant the source of his ownership the defendant should have sued the “fathers-in-law” rather than him. It may be noted that one of the “fathers-in-law,” namely, Kojo Effie, gave evidence for the plaintiff at the arbitration.
As stated in his evidence and quoted above, the plaintiff brought this action against the defendant claiming damages against him for having “failed to give me notice to quit from the land.” In other words the plaintiff asked the court to mulct the defendant in damages
[p.124] of [1967] GLR 121
because the defendant had failed to exercise his right of ownership at the plaintiff’s expense. Even though it has been, asserted by way of caution in several cases that in matters, at the native or local courts it is the substance of the claim rather than the wording of the writ that is to be looked at, this claim herein leaves no room for doubt as to the reliefs sought. And even though in my view native custom has never known of any forms of action the claim of the plaintiff in this matter is difficult to understand. A plaintiff comes to court either for a declaration of his rights or for the protection of those rights if infringed or about to be infringed. A party cannot penalise another for sleeping on his own rights. In my view even under customary law no such cause of action exists. I therefore hold that the writ of the plaintiff disclosed no cause of action and should have been dismissed. Even if one is inclined to be charitable it is still difficult to find in this action an attempt to set aside the award of the arbitration involved in this matter. Mr. Hayfron, learned counsel for the appellant on this matter, dwelt on an argument that the plaintiff cannot resile from an arbitration after an award had been made. He supported his stand with the authorities of Mensah v. Takyiampong (1940) 6 W.A.C.A. 118 at p. 120 and Larbi v. Kwasi (1953) 13 W.A.C.A. 81. And indeed he was attracted to this line of attack by the reasons given by the trial magistrate in arriving at his decision when he said:
“It therefore became plain that the defendant should have summoned the grantors claiming ownership, of the
fallow land at the arbitration instead of the plaintiff whilst the plaintiff had already told him that the fallow land was granted to him (the plaintiff) by his fathers-in-law Kojo Ndru and Kojo Effie.
Under this circumstance, I find that the decision of the arbitration was fruitless and stood on no concrete grounds of expediency. The act of the defendant by summoning the plaintiff at the arbitration was quite detrimental and repugnant to justice and comes within the scope in which damages should be claimed for threatening.”
The absoluteness and harshness of the principle laid down in the cases cited by learned counsel, namely, that a party cannot resile after an award had been made at an arbitration has been denuded to some extent in the course of the evolution of the law. It has been held, and in my view reasonably and rightly, that an award may be null and void and of no legal effect if both sides were not heard in a judicial manner at the arbitration: see the case of Budu II v. Caesar [1959] G.L.R. 410. It has also been held for instance that an award is bad and may be avoided if a party was a judge in his own cause:
[p.125] of [1967] GLR 121
see the case of Tanor v. Dapomah [1960] G.L.R. 241. And indeed there may be other reasons for avoiding or resiling from an award. But the objection of the plaintiff in this matter neither falls on any of these reasonable grounds of avoiding an award nor on any other. His way of looking at the situation as well as the reasons of the trial magistrate err on the side of unreasonableness. If the action can in any way be regarded as an attempt to set aside the award made by the divisional chief of Dompim No. 1, I would hold that in the present state of the law it should have failed. For these reasons I would allow the appeal. I would award the defendant costs in this court assessed at ¢25.20 and those at the court below at ¢21.56. If the defendant has already paid the costs at the court below the same should be refunded to him. The total costs to be paid by the plaintiff are ¢46. 76.
DECISION
Appeal allowed with costs.
S.E.K.
