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Nyaasemhwe and Another v. Afibiyesan
[1977] 1 G.L.R. 27
Court of Appeal, Accra
21 June 1976

APPEAL from the decision of the High Court, Sekondi, affirming the judgment of a district court in favour of the plaintiff in an action declaration of title and damages for trespass. The facts are sufficiently set out in the 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 suit for a declaration of a title to a parcel of land, two poles square, as Asafoa Gyintu, and for £250.00 damages for the defendants' wrongly entry and cultivation of food crops 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 ancestor,'' He also held that there had been a valid arbitration into the land case between parties which ended in favour of the plaintiff; but that ``what distributed 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 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 Busumpra whom the defendants had succeeded and inherited the defendants were therefore vested with possessory or usufructuary title which they could maintain against their grantor.''

The gist of the plaintiff's case 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 the 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 and gave a few details about the licence given to the late 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 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 plantiff nor Ejokosua spelled out the duration or type of licence given to the Busumpra; for example they did not disclose whether it was a sowing tenure an limited in duration to one season and not heritable or whether it as annual tenure, i.e. from year to year and capable of being enjoyed until terminated or enduring for so long as the license or his successor recognized and did not dispute the title of the grantor. Again, the evidence reduced 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 sharecropping 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 Busumpra, except for an oblige 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 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 presecessor 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 summarizing 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 by his ancestor Ntrama to the late Busumprah for farming purpose. Since Busumprah succeeded by the defendants, the latter became entitled by operation of the customary law to Busumprah's possessory or usufractuary interest in the land.

For the plaintiff, Mr. Amau-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 usumprah's licence was limited 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 providing 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) 2 W.A.C.A. 336 at pp. 337-388. 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 farm on the land in dispute and was therefore not a trespasser; secondly, he enjoyed a possessory or usufractuary 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 usufractuary 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 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 inter vivos 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 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:

``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 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 prodecessors, since they originally a acquired the land and cultivated the virgin forest on it. It was also not dispute 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 plainfitt 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 Busumpra's usufractuary 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 and in view of the evidence adduced, it would be fair and proper to declare further that he is not, however, entitled to the usufractuary interest in the farm made by the ate 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 alle4ged arbitration or their 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, opposed to negotiations for a settlement, viz:
  1. a voluntary submission of the dispute decided informally, but on its merits;
  2. a prior agreement by both parties to accept the award of the arbitrators;
  3. the award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicial manner;
  4. 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
  5. 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 t settle in informally but on the merits.''

And he cited in support of his conclusion the following passage form 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 emphasized above and if he agrees ws 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, 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 is in Paul v. Kokoo (supra), but in also such cases as Asare v. Donkor and Serwah II [1962] 2 G.L.R. 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 a 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, eing aware of the purpose of the meeting and its implications. It all depends on the evidence adduced whether his attendance to the call is explicate on the one ground or the other. His response to the call as evidence y his physical presence before the proposed arbitrators'is 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 form 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 ingredients of a valid customary arbitration--see on this Mosi v. Fordjour and Adu [1962] 2 G.L.R. 74 at p. 76, S.C.-- failed to adduce evidence or prove the defendant's 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 brief: ``I took the defendants to the chief 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 did the plaintiff advert to the voluntary submission or the agreement of the defendants to submit to the chief's proposed arbitration in full awareness on the implications of the purpose of the meeting. None of his witnesses supplied this deficiency in his evidence on this vital issue. Both this 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 propose 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 failed to adduce any evident 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 contray, that the fact ``the defendants were sent for and they appealed 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 arbitrations as distinct negotiations for a settlement had been 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 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 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 "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 between 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 y both parties of an arbitration fee prior to the publication of the award; the prior payment of such parties 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 on a particular case of alleged arbitrators or not, is a question of fact to be determined y the evidence. I would add that this prior agreement may be indicated y 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 unequivocally 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 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 allodia title to the said land, but would declare that he is not entitled to the usufractuary interest of the late Busumprah and his successor the defendant in the farm made on the said disputed land. I would further aside the orders made in the two courts below as to costs; and award the appellants 86.30 costs in the 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.

I agree

I also agree.

Appeal Allowed.

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Josh DuBois 2004-12-01