NYAASEMHWE AND ANOTHER v. AFIBIYESAN (1977)
NYAASEMHWE AND ANOTHER v. AFIBIYESAN (1977)
NYAASEMHWE AND ANOTHER v. AFIBIYESAN (1977)
21 JUNE 1976
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.
(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 [1ht965] 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
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
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):
"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:
(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
"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.
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.
I agree.
I also agree
DECISION
Appeal allowed.
S.O.