DZAKA AND ANOTHER VRS AHIABLI AND ANOTHER (39/1993.) [2022] GHADC 421 (20 December 2022)

IN THE DISTRICT COURT HELD AT AGBOZUME IN THE VOLTA REGION BEFORE HIS WORSHIP IDDRISU ISSAH ON THE 20TH DECEMBER, 2022. KWAKU DZAKA & ANOR. … PLAINTIFFS SUIT NO.39/1993. KWAKUTSIE AHIABLI & ANOR. … DEFENDANTS VRS: JUDGMENT: On the 12th of May 1993 the Plaintiff issued a writ of summons against the Defendants jointly and severally claiming for the following:- (a) Declaration of title to all that piece or parcel of land containing the land in dispute situate at Penyi-Akpatoeme and bounded as follows: - (i) On the first side by the property of Letsu family. (ii) On the second side by the property of Atsakpo Kato family. (iii) On the third side by the property of Avi family. (iv) On the fourth side by the property of Agbozo family. (b) Order for recovery of possession. (c) Perpetual injunction restraining the Defendants and/or their privies, workmen agents and whomsoever from trespassing on the said land. (d) General and special damages for trespass. The Defendants denied all the claims and counter-claim as follows:- (1) (2) (3) (4) That following a dispute over the ownership to the subject matter, the issue was referred to Togbui Dadzi palace for arbitration. That the Plaintiff and the 3rd Defendants, Kofi Ahiabli on behalf of the Defendant submitted themselves to the said arbitration. That the Defendants were adjudged owners of the disputed subject-matters and in consequence costs of ₡16,400.00 was awarded in their favour. That the Plaintiffs is estopped by the said award from litigating the title with the Defendants regarding the same subject matter. The Plaintiff aver that they hails from Penyi and is a farmer. According to him the Defendants hails from Afife and settled at Penyi Kpeleme. He sued for himself and on behalf of Dzaka family. The Plaintiff avers that he sued the Defendants in respect of a piece or parcel of land at Akpatoeme near Penyi. The said land is bounded on one side by Letsu fmily, on another side with the Atsakpo family, on another side by the Avi family and the fourth side by the Agbozo family. This disputed land was founded by Tuglo, then his son Avugla succeeded him. He was also succeeded by Letsu and later Alotormewor by inheritance. Alotormewor, a woman begat Dzaka who was also the nephew to Letsu. The Plaintiff asserted that Letsu founded a deity with the name Nana, on this disputed land. Letsu then gave a portion of his family land to his nephew Dzaka to live on while asserting him with the deity or fetish. The Plaintiff avers that his late father Yao inherited his father Dzaka. His father had him and other siblings on the said land. As part of the conditions of the deity, his father contributed towards the ritual performance. Plaintiffs continued that his father was in effective occupation of the said land by farming on it without hindrance. Their father died in 1983 and they succeeded him. According to Plaintiff, he is in effective occupation by farming on this land. After ten (10) years of his father’s death the Defendants sued him before the chief. He has farm tenants on the land, Akoto Dzivor and Mido Afetor Kpeli. Akoto Dzivor and his family are in occupation by farming on this land for about 40 years. However, when the Defendants placed some tenants on this land the sued them before Torgbui Ekle but they refused to attend. The Plaintiff invited as witnesses the following: Cephas Yao Tublu (PW1); Kwadwo Avu (PW2), Kudzo Amable (PW3) and Innocent Kwami Dzitornu (PW4). The Plaintiffs invited Cephas Yao Tublu (PW1) as a boundary witness. According to Tublu (PW1) he was 77 years of age and lives at Penyi and Penyi-Akpatoeme respectively. The PW1 stated that the disputed land shares boundaries on one side by Atsakpo Kato; on the second side with Letsu, to the third side with Agbozo and the fourth side with Avi. He is at the Atskpo Kato boundary. According to PW1 the land belonged to Dzaka a nephew to Letsu. While growing up he used to work with his father and the Dzaka too worked on his. It was on the death of Dzaka that Nutsuglo succeeded him. Nutsuglo like his father planted cassava and maize on the land. When Nutsuglo died his children including the Plaintiff succeeded him. He was part of an arbitration before Torgbui Dadzie IV as a witness. The second witness for the Plaintiffs Kwadwo Avu (PW2) stated that he knew the boundaries to this disputed land as follows: On one side by Avi, another side by Agbozo, to the third slide with Atsakpo Kato and the fourth side with Lotsu. He is from the Agbozo family. According to PW2 the disputed land belongs to the Dzaka family. Dzaka used to farm maize and cassava on this land in dispute. PW2 stated that he knew said the Defendants working on the land at the time Dzaka was alive witness avers that he gave a testimony before on arbitral committee earlier on constituted but was not present when the award was published. The third witness for the Plaintiff Kudzo Amable (PW3) testified that his family is the grantor of the land. He knows the boundaries as follows: one side is to Lotsu; another side by Atsakpo Kato, the third side by Agbozo and the last slide by Avi’s land. He stated that the disputed land was founded by his great grandfather, Tuglo. He was succeeded by his son, Avugla, then Torgbui Lotsu and Alortormewor a half-brother to Letsu. This land belongs to Dzaka because Alortormewor begat him. Dzaka is a nephew to Letsu. Letsu asked for financial assistance from Dzaka. After the performance of rites Letsu took Dzaka to the land and granted him a portion as a gift. Dzaka after accepting the gift planted cassava, yam and maize on the land but no other cops. After the death of Dzaka the land devolved through his children to his grandchildren the Plaintiffs family. The Plaintiffs final witness was Innocent Kwami Dzitornu (PW4). He identified himself as the secretary to the arbitral committee before which the parties appeared earlier. According to the PW4 the 1st defendant instituted an action against one Klutse Edator before Torgbui Dadzie IV of Penyi. The PW4 stated that the panel advised the 1st Defendant to sue the person from whom Kwaku Dzaka got the disputed land from. He also stated that the Defendant in that arbitration Klutse Edator could not talk due to age, so he was substituted by the grandson of Kwaku Dzaka. He was no longer the secretary to the chief, so the record of proceedings was at the chief palace. The case of the Defendants as stated for and their behalf by the 3rd Defendant Kofi Ahiabli on the 15th August, 2007 and 3rd September, 2009 is as follows: - The Defendant avers that the land in dispute was founded by their great grandfather Apoli. The land is situated at Akpatome and bounded on one side by the Apoli family land, on another side by Yewewu family land. Their great grandfather cultivated the land with palm plantation, cassava and groundnut. Their great grandfather was succeeded by Awuye one of his sons. The family lane has been succeed from Awuye through Kportufe, Agbonya and to Ahiabli, the grandfather of the Defendants. Amuzu succeed Ahiabli and settled on the land. Amuzu is the father of the Defendants. Defendants stated that around 1992 one Klutsey Edetor trespassed onto the land. They summoned him before the arbitral committee of Togbe Dodzi IV of Penyi for settlement. The arbitral committee made both parties to pay a sum of ₡1500.00 each. On commencement of the arbitral hearings the said Klutsey Edetor stated that he inherited his father’s land, however the Plaintiff herein who was around raised up his hand and stated that Edetor was too old to reason properly. He wanted to replace him. The Plaintiff was allowed subject to a costs of ₡5000. 00. He was joined to the matter and it proceeded to its logical conclusion. The panel went on locus in quo and finally published an award in favour of the Defendants herein against the Plaintiff. A cost of ₡16,400.00 was awarded against the Plaintiff to which he made an initial payment of ₡2000.00 with the promise to pay the rest in two (2) weeks. The application to join the arbitral proceedings before Togbe Dadzi IV by the Plaintiff is found in the case title. “In the matter between Kwame Ahiabli vrs: Klutsey Edetor. This was admitted in evidence and marked exhibit 1’ after a forerisic examination of the examination of the signature of the Plaintiff proved that he joined the arbitration proceedings. The Defendant are claiming in the alternative the enforcement of the arbitral award the following:- Soletey Vedoo (DW1) and Kofi Ahiadzo (DW2). Soletey Vedoo, the DW1 was a panel member of the arbitral committee in Torgbui Dadzie IV of Penyi palace. He stated that it was the Defendants herein who initiated the action against one Klutsey Edetor, however when the Plaintiff herein was substituted, the matter was deliberated upon between them. He stated that before the proceedings commenced, both parties presented drinks. In the course of the proceedings, they visited locus-in-quo and at the end of the trial an award was published in favour of the Defendants. Costs was awarded against the Plaintiff out of which he paid ₡2000.00. He asked for two (2) weeks to pay the remaining balance but could not. The proceedings were recorded by both Kwabla Agbozo and Kwami Dzitornu (PW4) Kofi Ahiadzo (DW2) testified as a boundary owner. He stated that he is a descendant of the Akpoli family, the founder of the larger land. He stated that the Defendants father Amuzu Ahiabli cultivated the land in dispute which shares boundary with theirs. He also stated under cross examination that the dispute was settled at the palace of Torgbui Dadzie IV of Penyi in favour of the Defendants. Given the evidence before it, the Court has found as its findings of facts the following:- (1) (2) Both parties traced their roots of title to the land to their great grandfather. Both parties have exercised various acts of occupation over the subject matter. (3) The parties appeared before an arbitral committee for settlement of the matter. Given the facts of this case the relevant issues for determination are as follows:- (i) (ii) (iii) (iv) Whether or not there is a valid customary arbitration over this land Whether or not ownership and title to the land is in either of the parties. Whether or not the Defendants are caught by limitation. Whether or not damages would lie against any of the parties. In our civil jurisprudence, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumer the onus of proof. The same principle applies to the Defendant who makes a counterclaim. Section 12(1) and 14 of the Evidence Act, 1975 (NRCD 323) state as follows: 13.(1)”Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities 14: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. In the case of Rukayatu Usumanu v Zongo Naa Kungari and 16 others (2021) DLSC 10171 at page 6 held as follows:- “The reliefs the appellant is seeking in this suit include declaration of title and recovery of possession. She is asserting title to the property by her claims, as such, the burden falls on her to produce evidence on the balance of probabilities establishing the following: (a) her root of title (b) her mode of acquisition and (c) various acts of possession..” Both parties to this suit traced their root of title to their great grand fathers. They claim the land through acquisition by inheritance and exercise of occupation over various portions of the land over long periods of time. The evidence in support of these averments spans decades in this Court. Both parties relied on customary grant. According to section 64(1) of the lands Act 2020. Act 1036 on good title provides as follows: (1) Good title is derived from: (a) An enactment (b) A grant, vesting order or conveys ice from the state. (c) A final judgment of a Court of competent jurisdiction: or (d) A grant, an acquisition under customary law, conveyance, assignment or mortgage which is at least thirty years old and establishes that a person is entitled to convey an interest in the land. The evidence presented before the Court are grounded on traditional evidence. The first issue for determination is whether or not there is a valid customary arbitration over this land, the subject matter of dispute. Section 135 of the Alternative Dispute Resolution Act 2010. Act 798 defines customary arbitration as the voluntary submission of a dispute, whether or not relating to a written agreement for a final binding determination. The pre-requisites of a valid customary arbitration were expressed in cases such as Manu v Kontre (1965) GLR 375, Budu II v Caesar (1959) GLR 410 and Suka v Glavee (1991) I GLR 194, that before a settlement will property be described as a valid arbitration at customary law, there should be the following: - (i) (ii) (iii) Voluntary submission by the parties of their dispute to an arbitrator for the purpose of having the dispute decided informally but on the merits. Prior agreement by both parties to accept the award Publication of the award. The Defendants in their argument in support of the existence of a valid arbitration award earlier on tended in a copy of the award. Learned counsel for the Plaintiffs objected to its tendering on the grounds that no foundation was laid. However, learned counsel for the Plaintiff went ahead to cross examine the Defendants on the arbitral process. Some of the questions and answers were as follows: - Q. How many people constituted the panel that purportedly went into the matter at Torgbui Dodzi arbitration Court. A. There were seven (7) people. Q. How come that the panel had two (2) secretaries A. The Panel was there before we appeared before them. Q. At the purported arbitration did the Plaintiff call any witnesses. A. Yes. Q. How many A. Three (3) Q. Can you recall their names? A. Yes, Tublu, Kodzo Avu and Akakpo Amable. Further the Defendant invited Soletey Vedoo as the DW1, on the 17th of August 2011. The DW1 stated he was part of the arbitration panel between the parties herein. He testified that the panel went onto the matter and an award was given in favour of the Defendants herein. Under cross examination by learned counsel for the Plaintiffs the witness stated as follows:- Q. How old are you A. About 100 years old. Q. In which year did you arbitration on the case between these parties. A. This happened about 2 or 3 years ago. Q. Tell this Court, how many of you set on the panel. A. We were seven, as at now only two are surviving. Q. Give us the names of the panelist starting from the chairman A. Adika Gbemu, Takawo Kpogli, Kwadzo Betey, myself, Kwami Dzotornu, Komla Agbozo. I cannot remember the last one. In support of the case of the Defendant on this issue the learned counsel for the defendants argued at page 6 of his address as follows:- of major significance to the case of the Defendants is the confirmation by PW1 that during the arbitration before Torgbui Dadzie IV, the matter was originally between Klutsey Edator and the Ahiablis. That it was the Plaintiff who applied to join the case and indeed replaced Klutey Edator, claiming that the land belongs to him and secondly Klutsey Edator was not healthy enough to testify. The following conversations under cross- examination of the PW1 are revealing. Q. During the arbitration before Torgbui Dadzie, did you get to know that the matter was originally between Klutsey Edator and Ahiabli. A. Yes. Q. Can you tell the Court how Klutsey Edator dropped out for Plaintiff to take his place. A. Plaintiff at the arbitration said the land belongs to him and he should have been sued and secondly Klutsey Edator was not healthy. Q. The arbitrators accepted the Plaintiff as a party to the suit. A. That is so. Q. The arbitrators allowed you to give evidence as a witness. A. Yes. Q. After the evidence you were questioned. A. Yes. Further learned counsel for the Defendant made reference to cases such as Budu II v Caesar & others (1959) GLR 410 and Akara & others v Debra & Olega (1959) IWLR 89 in support of the validity of the arbitration of this matter. The learned counsel for the Plaintiff argued at pages 14 to 15 of his address on the issue of a valid arbitration as follows:- “The Defendants aver that there was a valid arbitration in which on award was published which they are seeking to enforce. When the 3rd Defendant was giving evidence on behalf of the rest of the Defendants, he tendered the alleged arbitral award which was rejected by the Honourable Court. This shows that the so called arbitration did not meet the requirements of the law and even one Kwame Dzitornu who was one of the secretaries told the Court that the arbitration committee advised the Defendants to sue the persons who gave the disputed land to the Plaintiff. This means that the arbitration is inconclusive and the rights of the parties were not determined hence, the arbitration is inconclusive which cannot be enforced” The record of proceedings as referred to by learned counsel for the Plaintiffs are captured in pages 4 to 5 of the record of 3rd September, 2009 where counsel for the Defendants through the D3 tried to tender the arbitral award in evidence. However counsel for the Plaintiff objected to it on the ground that no foundation was laid to its tendering, though the D3 was crossed examined on the arbitration. Further counsel for the Plaintiff argued at paragraphs 3 and 4 of page 7 of his address as follows:- ”The Plaintiff called the secretary to the alleged arbitration known as Innocent Kwami Dzitornu. He is a farmer and knows the parties to this dispute. He intimated to the Court that the 1st Defendant instituted an action against one Klutse Edetor before Torgbui Dadzie IV of Penyi and he is the secretary of the said chief. According to him he was present at the arbitration and recorded the proceedings. He stated that the matter was give into and the panel advised the 1st Defendant to sue the person from whom Kwaku Dzaka got the disputed land from “. Considering the evidence adduced on the issue of arbitration this Court is aware that arbitration operates as estoppel per rem judication. In the case of Akunor v Okan (1977) IGIR 173 CA the Court of Appeal held that the Plaintiff was estopped from bringing a fresh action in Court claiming the same property from the Defendant when the same issue had been disposed of in a customary arbitration. Similarly in the case of Agiti v Osahene DC (land), 52-55, 257 at 259 that where a dispute has been decided upon and an award given, if subsequently another dispute arises, the parties may: (i) (ii) (iii) Apply to enforce the award; or Submit the dispute to further arbitration or Waive the award and have the dispute settled in Court. Having gone through the proceedings in its entirety, this Court is of the view that there was a valid customary arbitration between the parties under Togbe Dadzie IV arbitral committee. The Court would therefore hold the award as binding on the parties. The issue is accordingly found for the Defendants. In the circumstance the Court would consider issue (ii) and (iii) as having been decided. The last issue for determination is whether or not damages would lie against any of the parties. Certainly general damages are legal reliefs paid to any successful party as a matter of cause of action. Given the length of time the matter travelled through the Court, parties have exhausted themselves over time. In the circumstance the Court would award a sum of GH₡4000.00 as damages in favour of the Defendants since no party proved any special loss the Court would dismissed the claim for special damages. Costs of GH₡15,000.00 against Plaintiffs. H/W. IDDRISU ISSAH 20/12/2022. 15