SUPREME COURT, ACCRA
DATE: 10TH MAY, 1962
BEFORE: KORSAH, C.J., VAN LARE AND ADUMUA-BOSSMAN, JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Land Court, Kumasi, presided over by D. E. Gwira, Esq., Commissioner of Assize and Civil Pleas, in exercise of its appellate jurisdiction, in a matter in which the Asantehene’s “A2” Court also in its appellate jurisdiction had allowed the appeal by the defendant, and set aside a judgment of the Kumasi South District “B” Court, Ejisu, the court of first instance in favour of the plaintiff.
COUNSEL
T. K. Agadzie for the appellant.
No appearance for the respondent.
JUDGMENT OF KORSAH C.J.
Korsah C.J. delivered the judgment of the court. In this case, the writ of summons reads: “The plaintiff claims (a) Judicial Relief:-Ownership of property (fallow land). Statement of Claim:— That I sued the defendant arbitrarily before Kumasi Bantamahene to show reasons why defendant has trespassed to my farmstead and has cleared portion of it for farming cultivation. The case was heard and the order was made for viewing of the farmstead. The Bantamahene did not take part in the viewing and deputed some of the arbitrators to go and view the area. There were inconsistency and irregularities during the viewing because the arbitrators (viewers) did not follow to my boundary I was going to point.
They did not view this.
The arbitrators only inspected the farmstead which the defendant had cleared while the cause of action was a boundary trespass. The arbitrators misconducted and misdirected themselves on palm trees in the area while the palm trees were not the issue before them. A witness who was not called before to the arbitration to testify on oath was in the meantime called by the arbitrators to point out palm trees during the inspection. This is contrary to the rules governing determination of case. When the arbitrators returned from inspection they relied upon the witness who did not give evidence on oath in the main arbitration and gave judgment. That the defendant cleared my old farmsteads in which
[p.346] of [1962] 1 GLR 345
were therein my old plantain trees. The defendant cleared around these plantain trees but the arbitrators
misconductively gave an unfair judgment that the plantain trees were not cut down by defendant so I was found liable.
A. (1) Plaintiff therefore says that the way in which the arbitrators decided the case is repugnant in the way by which the arbitrators heard the case.
(2) There were inconsistencies
(3) There were irregularities.
B. I therefore pray for an order of this honourable court to set aside the order (judgment) given by the arbitrators and hear the case as per claim below.
(a) Particulars of Claim:— The defendant should show cause why she trespased on my fallow land situate lying and being on a place known and called Kwayem’ on Takyiman-Mmerewadwa stool lands having boundaries with Apaasi Dikro Apoodo stream pimpimu and Apaasi old road.
(b) Injunction order: — Plaintiff claims an order to the court to restrain defendant from clearing the area and from making the farm in dispute till final determination of the case.”
By what may be regarded as a statement of defence it is recorded:— “Defendant filed Motion: Defendant filed motion praying for case to be struck out on grounds of estoppel or res judicata by means of arbitration award on the case already.”
At the trial, the plaintiff led no evidence whatsoever about the alleged irregularities and inconsistencies with regard to the arbitration which she termed “repugnant”. The arbitration, it appears, had been held at her request.
The court of first instance heard evidence on the merits and completely ignored the defendants plea of estoppel. In their judgment they did not consider the issue of estoppel raised by the defendant, but merely attacked the evidence adduced by the defendant and her witnesses as if the burden of proof lay upon the defendant on the merits of the case.
Apart from the fact that in a suit for declaration of title the burden of proof is upon the plaintiff, there was the additional burden upon the plaintiff who sought to set aside the award published by the arbitrators in a dispute between herself and the defendant with respect to the same land; if even the defendant had not pleaded estoppel, the plaintiff having by her statement of claim declared that an arbitration had been held and an award published which she wished set aside, the issue of estoppel should have been dealt with before evidence on the merits of the case.
The local court erred not only in basing its decision on the alleged weakness of defendant’s case, but also by their failure to determine the essential issue of estoppel pleaded by the defendant.
On appeal to Asantehene’s “A2” Court, that court pointed out this obvious error and rightly in our view decided that the award operates as estoppel, and that the plaintiff was wrong in “instituting fresh proceedings against the defendant in respect of the same issues which had been arbitrated upon”. The court, therefore, allowed the appeal of the defendant-appellant.
On further appeal to the Land Court by the plaintiff the learned presiding commissioner held that: “The native appellate court based its decision on the arbitration but did not consider that plaintiff had raised objections against the arbitration on the grounds of impropriety, misconduct and irregularity and should have remitted the case to the trial court for retrial to enable plaintiff to substantiate her allegations against the arbitration.”
[p.347] of [1962] 1 GLR 345
The learned commissioner in spite of his own expressed opinion that the case should have been remitted to the trial court allowed the appeal and thereby gave judgment for the plaintiff.
In the first place we are unable to agree with the views expressed by the learned commissioner that the case should have been remitted to the trial court to afford the plaintiff the opportunity of substantiating her allegations, which according to the commissioners she had failed to prove.
In the second place, having regard to the circumstances accepted by the learned commissioner, that the plaintiff had failed to prove her allegations about the arbitration, it is inconceivable how judgment could be entered for the plaintiff in face of the unimpeached arbitration award.
This was the conclusion reached by the native appeal court, and we are of the opinion that the learned commissioner was wrong in reversing that judgment.
We therefore allow this appeal, set aside the judgment of the Land Court and restore the judgment of the Asantehene’s “A2” Court and enter judgment for the defendant. The defendant-appellant will have the costs of this appeal fixed at £G57 7s. 3d. and costs of the Land Court to be taxed. Court below to carry out.
DECISION
Appeal allowed.
