Domenyo & 2 Others Vrs Agbekpornu & 2 Others [2023] GHAHC 251 (1 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: H/L JUSTICE YAW OWOAHENE-ACHEAMPONG, J. SUIT NO: E11/03/2019 1ST MARCH, 2023 - PLAINTIFFS/RESPONDENTS 1. LAWRENCE KORBLA DOMENYO 2. LUCY DOMENYO 3. DELA DOMENYO VERSUS:- 1. GODWIN AGBEKPORNU 2. GEORGE AGBEKPORNU -DEFENDANTS/APPELANTS 3. KORSI KUTOR AGBEKPORNU JUDGMENT Introduction This is an appeal launched by the defendants/J/debtors/appellants (hereafter simply referred to as the appellants) against the judgment of the District Magistrate Court, Anloga presided over by H/W Rosemary Baah Tosju, dated 6th December, 2018 in favour of the Plaintiff/J/Creditors/Respondents (hereafter referred to as the respondents). Background The genesis of this appeal is that, the respondents issued out a writ of summons against the appellants on 09/05/2018 at the District Court, Anloga claiming the following reliefs: 1. Enforcement of an arbitration award published in favour of the plaintiff by Arbitration Court of Togbi Dalah-Avege III of Anloga-Lagbati on the 1st July, 2012, for all that piece or parcel of land situate lying and being at Cape-Coast, Anloga and bounded as follows: on the Keta side by property of Adetsi Agbasa. On the Anyanui side by property of Ahiduievor Agbekpornu. On the Lagoon side by the property of Klu Tagbor and on the Sea side by the property of Mikporde. 2. Perpetual injunction to be decreed, restraining the Defendants by themselves, assigns, privies, workers and any other person or persons whatsoever connected to the Defendants from any further interference with the land subject-matter of the instant suit. 3. General damages for trespass and encroachment. 4. Recovery of (TWO HUNDRED AND THIRTY-EIGHT GHANA CEDIS) GHc238.00 being the balance of cost payable to the Plaintiffs after the arbitration. 5. Cost to be awarded against the defendants. In addition to the above particulars of claim, the respondents also gave a brief summary of the subject matter in that suit, which in my candid opinion is akin to statement of claim in civil matters, under the High Court (Civil Procedure) Rules, 2004 (C. I 47). By an order of the trial court, on 18/06/18, the respondents caused to file a copy of the arbitration award without any objection, to corroborate their case. From the record of appeal, the appellants did not file any court process. Nevertheless, a close reading of the record of appeal will show that the 1st respondent in actual fact, testified for himself and on behalf of the 2nd respondent. After full scale trial, on 6th December, 2018, the trial District Magistrate entered judgment in favour of the respondents in the following statements: “From the evidence adduced before me, I find that there has been a valid arbitration, the parties are bound by it and the defendants have no right to resile from it. I also find that the arbitrators went into the merits of the case and I find their award to be fair and reasonable. I would therefore not depart from it but rather confirm their decision declaring title of the land in dispute to the plaintiffs. I would conclude that the plaintiffs have proved their case on the balance of probabilities. Defendants, their assigns, privies, workmen and anyone claiming through them are hereby perpetually injuncted from dealing with the land the subject matter of the suit in any manner. The plaintiffs are therefore to recover possession of same”. Aside the judgment afore-quoted, the trial court also made the following consequential orders: “I would award general damages of GH¢2,000.00 in favour of the plaintiffs for long period off defendants trespassed on the land. The plaintiffs are also to recover the amount of GH¢238.00 from defendants. And I award costs of GH¢500.00 against the defendants”. The instant appeal: The appellants being dissatisfied with and aggrieved by the judgment of the District Court, Anloga, afore-quoted, caused to file notice of appeal on 19/12/2018 complaining that the entire judgment be set aside on the main ground that “the judgment is manifestly against the weight of overwhelming evidence on record” Pursuant to an order of this honourable court dated 9/12/21, the appellants per their counsel caused to file additional grounds of appeal on the grounds that “the trial Judge erred by not considering the long period of possession of the defendants over the disputed land”. Legal submissions by counsel for appellants. On 4/07/22, learned counsel for the appellants caused to file his written legal submissions and he referred the court to a number of judicial authorities and some statutorily provisions in support of the instant appeal. In his written submissions counsel for the appellants held a view that the following facts were not in dispute at all between the parties: “That there is no receipt evidencing the purported sale of the land to the plaintiffs’ father; that the defendants relied on the revelation of the soothsayer; that the parties are not agreed on the soothsayer’s revelation; that the plaintiffs did not call any witness who was an eye witness to the purchase of the land and that the soothsayer did not say in clear, categorical and unambiguous terms that the disputed land was sold to plaintiffs’ father”. It is the contention of counsel for the appellants that the respondents were unable to prove their claim of ownership to the disputed land and also that the arbitration panel relied on the soothsayer who never claimed that the disputed land was indeed sold and therefore the trial District Magistrate failed to assert her law on the dispute. Counsel for the appellants contends further that the trial court erred by relying on unseen soothsayer and therefore according to counsel for the appellants, the trial District Magistrate erred when she acted on a hearsay evidence. Again, counsel for the appellants argued that the trial court erred by not considering the long period of possession of the appellants over the disputed land. From all the above, counsel for the appellants invites this appellate court to set aside or reverse the judgment of both the arbitration panel and the judgment of the trial court, afore-referred. Submissions by counsel for the respondents. It is the contention of counsel for the respondents that, the respondents have at all material times been in active occupation and possession of the disputed land until 1997 when the appellants started to interfere with the land without any good reason. And therefore, by reasons of interference on their land, the respondents summoned the appellants before the arbitration court of Togbi Dalah-Avege III, of Anloga-Lagbati, which said tribunal published an arbitral award in favour of the respondents on 01/07/2012. It is therefore the case of counsel for the respondents that from the facts of the case the germane issue before the trial court was whether or not there was a valid arbitration which resulted in the award published in favour of the respondents on 1st July, 2012. Counsel for the respondents also referred the court to a number of judicial authorities and contends fiercely that the findings of the trial court is supported by the overwhelming evidence on the record and therefore this appellate court should not temper with a finding of fact made by a trial court. Counsel for the respondents therefore invites the court to dismiss the instant appeal. Evaluation of the evidence on record I proceed to evaluate the grounds of appeal and l shall do so firstly, with the additional grounds of appeal that “the trial judge erred by not considering the long period of possession of the defendants/appellants over the disputed land”. A close reading of the record of proceedings will show that it was rather the plaintiffs/respondents who summoned the defendants/appellants before the arbitration court of Togbe Dela at Anloga in the year 2012, when they (respondents) complained that the appellants had interfered with their landed property they had been enjoying since time immemorial till 1997. From the above therefore, the assertion by counsel for the appellants that, the appellants had been in active and long possession is not borne out of the record. In any case, it must be pointed out that, from the onset of this matter before the trial District court, the parties did not file any pleadings. And this is understandable as pleadings are not mandatory at the District courts, they being courts of summary jurisdiction. That being the case, whether or not there was a long possession of the disputed land by either the appellants or the respondents was never an issue at all for determination at the court below. The contention by counsel for the appellants that the appellants had been in a long and active possession of the disputed land is being raised for the first time in the instant appeal. In my candid opinion, it will be most unfair to permit the appellants to put up an entirely fresh case in this appeal. Since the issue of long possession was never raised at the court below, I am not ready to permit counsel for the appellants to put up an entirely fresh case in this appeal. This is because, modern litigation had long frowned upon ambushed litigation. From the above therefore, the additional grounds of appeal namely, that the trial judge erred by not considering the long period of possession of the appellants over the disputed land is hereby dismissed as being without merits. Now, the main ground of appeal to wit, the judgment is manifestly against the weight of evidence on record What is the position of the law when an appellant alleges that the judgment is against the weight of evidence on record? It is trite law that when an appellant relies on the omnibus ground that the judgment is against the weight of evidence on record, then the appellant has invoked the jurisdiction of the appellate court to examine the entire evidence on record and to ascertain whether the conclusion reached by the trial court is supported by the evidence on record. The authorities are legion on this principle of law and it was succinctly espoused by the Supreme Court in the case of TUAKWA V BOSOM [2001/2002] SCGLR 61 @ 65 in the following words: “An appeal is by way of re-hearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in civil case to analyse the entire records of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at the decision, so as to satisfy itself that, on a preponderance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence. In the instant case, the Court of Appeal failed to do this. After reviewing the record the Court would include that on the preponderance of probabilities, the judgment of the trial judge in favour of the defendant, i.e. the respondent was not supported by the totality of the evidence; and the Court of Appeal therefore erred in confirming the same without any scrutiny of the record.” See also the following cases i. OPPONG KOFI VRS. ATIBRUKUSU II [2011] SCGLR 176 ii. AGYEIWAA VRS. P & T CORPORATION [2007/2008] SCGLR 985 iii. AYEH & AKAKPO VRS. AYAA IDRISU [2010] SCGLR 89 iv. DJIN VRS MUSAH BAAKO [2007/2008] SCGLR 420 v. AKUFO-ADDO V. CATHERINE [1992] 1GLR 377 @390,per KPEGAH JSC In BROWN V. QUARSHIGAH [2003-2004] SCGLR 930 the Supreme Court held in holding 1 as follows: “The expression “an appeal is by way of re-hearing” meant that the jurisdiction of the appellate Court was available but the rule of practice in the Court was that the appellant must invoke it by filing appropriate grounds of appeal distinguishing the so-called omnibus ground, namely, that the judgment was against the weight of the evidence at the trial, from misdirection or errors of law, challenge to jurisdiction or capacity, etc. Thus a party (such as the Plaintiff in the instant case), who gave notice that he intended to rely solely on the so-called omnibus ground should not be permitted to argue point of law. Dictum of Osei-Hwere J (as he then was) in Nkrumah v Atta [1972] GLR 13 at 18 explained.” Learned counsel for the appellants has also argued that the arbitral tribunal relied solely on the revelation on the soothsayer who was not even called to testify at the trial. With due respect to counsel for the appellants, this assertion is not supported by the evidence on record. This is because the sole issue before the trial court was whether or not there was a valid customary arbitration. And as matter of fact, in the particulars of claim against the appellants, the first relief thereto was a claim of enforcement of arbitration award published in favour of the plaintiffs by Togbi Dalah- Avege III of Anloga-Lagbati dated 1/07/12. And the record of appeal will show that quite apart from the revelations from the said soothsayer, the parties and their witnesses appeared before Togbi Dalah and the arbitral tribunal also went to locus in quo, and thereafter published their award. Therefore, the trial Magistrate was right in my candid opinion, when she set down the main issue as to determine whether or not there was a valid customary arbitration. The position of the law on the elements or the ingredients of a valid customary arbitration had been given judicial blessings in plethora of Ghanaian judicial pronouncements and the following cases readily come to mind: i. Vado v. Sampede (1957) 3 WALR 35 ii. Dzasimatu v. Dokosi [1993-94] 1 GLR 463, SC iii. Paul v Kokoo [1962] 2 GLR 213 In his book, “The law of Chieftaincy in Ghana”, at page 380, the learned and venerable S. A Brobbey JSC, wrote as follows; “one of the early authoritative statements on the essentials of customary arbitration was given in Budu II v Caesar [1959] GLR 410 where Ollenu J (as he then was) held in holding (1) of the headnote at page 412 that: “(1) that in customary law, there are five essential characteristics of an arbitration, as opposed to negotiations for a settlement, viz. 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; 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 must be followed as nearly as possible; v. publication of the award.” In Amponsah v. Kwatia [1978] GLR 189, C. A, it was held that a plaintiff who voluntarily submitted to a customary arbitration was bound by the arbitration settlement and could not resile from it. In Manu v. Kontre [1965] GLR 373 SC, it was held that where the proceedings were found by the court to constitute a valid customary arbitration, the parties were held bound by the award. In the case of EBUSUAPANYIN YAW STEPHENS V KWESI APOH 12 MLRG, February, 2010, the Court of Appeal speaking through Anin Yeboah JSC (as he then was) opined thus; “The rule is that once there had been a valid customary arbitration the parties are estopped from raising the same issue subsequently by action in Court.” The authorities are very clear that once parties participate voluntarily in a customary arbitration; and if the parties are given a fair hearing on the merits of their dispute; and in the absence of any allegation of breach of the rules of natural justice, the parties are bound by the award so published. From the totality of the evidence before me and taking inspirations from the authorities, it is my candid opinion that the Judgment of the trial District Magistrate, presided over by Her Worship Mrs. Rosemary Baah Tosu (as she then was) and dated 6/12/2018 was not against the weight of the evidence on record. Rather, the judgment of the trial court is amply supported by the evidence on record. On the preponderance on probabilities the defendants/appellants could not clearly and properly demonstrate that the trial court erred in her judgment on 6/12/2018. The appeal therefore fails and consequently dismissed. Costs of GH¢5,000.00 against the defendants/appellants in favour of plaintiffs/respondents. (SGD.) H/L JUSTICE YAW OWOAHENE-ACHEAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL SENANU AFAGBE FOR PLAINTIFFS/RESPONDENTS K. HLORTSI AKAKPO FOR DEFENDANTS/APPELLANTS eve