Dogbatsey Vrs. Dawolo (E13/41/2020) [2024] GHAHC 387 (29 May 2024)

Page 1 of 11 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, DENU HELD THIS WEDNESDAY 29 MAY 2024 BEFORE HIS LORDSHIP JUSTICE GEORGE BUADI, J JULIE DOGBATSEY (Suing per her Lawful Attorney Jerry Dogbatsey Versus SOFO DAWOLO of Adina } } } JUDGMENT SUIT NO. E13/41/2020 …… PLAINTIFF …… DEFENDANT 1.0 1.1 Introduction I deem it needful to state at the outset that I took over this suit when the hearing had concluded; that was on 26 April 2023 before my esteemed late sister Justice Naana Bedu-Addo. The suit had since been adjourned serially for judgment from 26 April 2023 to 28 Nov 2023 for judgment when it was first called before me. The parties conducted the suit without lawyers. The suit is a simple one and could have been resolved earlier if it were handled by lawyers. The trial is evidently characterized by legal and procedural somersaults and irregularities, which in view of the outcome of the suit, I have resolved to overlook. Page 1 of 11 Page 2 of 11 1.2 On 24 June 2020, the plaintiff commenced this suit against the defendant for the following reliefs: 1 2 3 4 5 6 A Declaration that the Canoe is the property of Plaintiff and must be treated as such. General damages for hardship, deceit and inconveniences. Interest on using the canoe from June 2018 up to the date of final payment. Recovery of possession of same or an order to buy a new canoe if that canoe is not in good shape. Punitive cost. Any other reliefs found due by the Honourable Court. 1.3 The defendant denied the plaintiff’s claims and counterclaimed for the “[r]ecovery of GH¢18,500.00 being the amount the Defendant spent in repairing the canoe”, “interest on the said amount”, and “[c]ost”. 2.0 2.1 Parties’ statement of case The Plaintiff is a trader resident in Accra, whilst the Defendant is a fisherman resident at Adina. The Plaintiff’s case is that in 2014, she bought a fishing canoe and net for her late brother Korku Adadzi to undertake fishing activities and render accounts after every fishing expedition. Her brother Korku Adadzi formed a fishing team with Jacob and Eklu. By the close of the year, on account of inability of her brother Korku Adadzi and his team to account sales, the plaintiff asked her brother and his team to park the canoe. The brother Korku Adadzi died during the period. Page 2 of 11 Page 3 of 11 Plaintiff avers that, two years after the death and burial of her brother Korku Adadzi during which her fishing canoe and net were parked, she went to Jacob and Eklu for the canoe only to realize that the canoe was nowhere to be found. Upon enquiries of the whereabouts of her canoe, Jacob and EKlu, according to the plaintiff, informed her that the Defendant had been using it for his fishing expedition. Plaintiff avers that she summoned Defendant before her family head. Defendant submitted to the summons and stated that he obtained permission from the late Korku Adadzi to use the canoe for fishing on condition of sharing of the proceeds of the fish sales. Plaintiff says that she asked Defendant to park the fishing canoe since Defendant was not accounting to anyone. Plaintiff claims that for close to two years, the defendant is adamant in parking the canoe. Plaintiff adds that her creditors are threatening to mount legal action against her to recover the money she borrowed from them; an embarrassment she wants to avoid hence the instant action. 2.2 Admitting that he is a fisherman resident at Adina, Defendant could not admit nor deny whether the plaintiff bought a fishing canoe and net for her late brother Korku Adadzi for fishing purposes. He admitted however that Korku Adadzi formed a fishing team with Jacob and Eklu using the canoe, but the canoe got spoilt and so was parked. The Defendant could not admit or deny whether the plaintiff asked Jacob and Eklu to park the canoe on account of their inability to render accounts over the use of the canoe. The Defendant states that Jacob was aware that he had repaired the canoe for use upon the permission of the late Korku Adadzi who, according to the plaintiff, was known within the Adina fishing community as the owner of the canoe. Page 3 of 11 Page 4 of 11 Defendant says further that upon his request to repair the canoe, Korku wondered if the canoe was repairable but all the same, permitted him to try the repairs with negotiation for terms for its use to follow later. The defendant says Korku called one Clemence Sewornu to witness the release of the canoe to him who further directed that the canoe be parked and kept with Kwawu Amenyenu. The defendant avers that after he repaired the canoe, he made some trial fishing, but on each of such trials, the canoe was leaking so he reported the development to Korku who asked the canoe to be pulled out for a major repair work. The defendant avers that he ordered for a particular wood that was needed for the required work. However, Korku died before the wood was bought for the repair work to begin on the canoe. Defendant says he repaired the canoe and after the burial of Korku, he went back to Clemence Sewornu who directed him to the late Korku’s brother Zimbo who led him to the head of the Adadzi family Ganya Adadzi who finally handed over the canoe to him with conditions attached to be fulfilled at the end of every fishing season but the season did not close when the plaintiff surfaced claiming ownership of the canoe and summoned him before her head of family Godwin Akey. Defendant avers that at the hearing of the matter, the plaintiff’s head of family Chief Inspector (Rtd) Godwin Akey, Seth Abotsi (the Regional Fisherman, and Papagah Kaevewo as well as some other principal members of the plaintiff’s family were present as panel members. At that meeting, Defendant claims to have explained the circumstances under which he came to possess the canoe and how much he had expended on the canoe, pleading therefore with Plaintiff to allow him to continue using the canoe and for him to account to the plaintiff as owner of the canoe. Page 4 of 11 Page 5 of 11 Defendant avers that the plaintiff said at the meeting that she would not allow him to use the canoe and that the Defendant should give her three months to enable her refund the GH¢18,500.00 that the plaintiff had spent in repairing the canoe. Defendant avers that whilst waiting for Plaintiff to bring the money as promised at the meeting, he was rather served with the instant writ of summons. Defendant avers that the plaintiff is estopped from re-litigating this matter since the same has been settled at her instance and that she is not entitled to her claim 3 Issues for determination On 4 February 2021, the Court adopted the myriad of eleven issues that had been put out by the plaintiff for trial. With the greatest of respect to my esteemed late sister, considering the parties’ pleadings I find the varied issues set down for the trial as irrelevant except just ‘issue h’ which largely coincides with the four issues the Defendant filed as additional issues that in my view revolves around what I deem as the core issue in the suit. They are: i Whether or not the plaintiff summoned the Defendant before the head of her family Chief Inspector GODWIN AKEY in respect of the controversies surrounding the fishing canoe which is the subject matter of this instant suit. ii Whether or not all matters in respect of this fishing canoe have been settled by Chief Inspector {RTD} GODWIN AKEY iii Whether or not at the settlement of this matter the plaintiff [in] her own words promised to pay to Defendant GH¢18.500.00 being the amount Defendant has spent to repair the fishing canoe Page 5 of 11 Page 6 of 11 iv Whether or not the plaintiff can re-litigate this matter since same has … been settled at the plaintiff’s own request. 4.0 4.1 Preliminary and primary fact findings The parties filed their witness statements in March 2021 as directed by the court. Per the pretrial checklist, the Plaintiff called two witnesses - Emmanuel Martey and Akwatey Abla - besides her testimony. On his part, the defendant also per his pretrial checklist called Clemence Sewornu and Godwin Kwami Akey as witnesses. 4.2 On the issues for trial, I need to reiterate here that a trial judge considers the evidence of the parties in the light of their pleadings. Hammond vs Odoi & Anor [1982-83] GLR 1215, at 1235. The need to strictly adhere to the issues earlier set down for trial and the duty to evaluate the evidence submitted thereon depends on the relevance of the issues to the determination of the core issue of controversy in the suit. Based on the pleadings, I would rather stick to and abide by the issues the defendant has set down as the issues for trial, which I deem to be the core issues for the resolution of the controversy in this suit. 4.3 I set off to identify the primary facts that are not in dispute; claims that I find were not denied both on the pleadings and at the trial including claims deemed admitted at the cross-examination for which reason the law does not require further proof. Fori vs Ayirebi & Ors [1966] GLR 627; Bank of West Africa Ltd vs Ackun [1963] 1 GLR 176 SC; Kusi & Kusi vs Bonsu [2010] SCGLR 60. Based on the pleadings, the main issue worth considering is whether the plaintiff had earlier presented and had her cause of action in the instant suit resolved by a panel. Indeed, both parties pleaded this fact. Page 6 of 11 Page 7 of 11 4.4 In paragraph 9 of her statement of claim, the plaintiff averred having “summoned the Defendant before the head of her family for that act”. The plaintiff further set up this issue for trial. That is ‘Issue h’. She further deposed to this fact in her evidence in chief. That is, “[p]laintiff summoned the Defendant before her head of family for that act”.1 On his part, the defendant stated in his statement of defense that: 13 … the plaintiff came claiming ownership of the canoe … summoning [me before] the head of the plaintiff family by name Godwin Akey, Chief Inspector (Rtd). 14 Defendant further says that at the hearing of the matter … Godwin Akey, Seth Abotsi (Regional Fisherman) and Papagah Kaevewo were the panel members, and [also] present were some other principal members of the plaintiff’s own family at Adina … 15 Defendant continues to say that the plaintiff told him in the presence of all the above-mentioned persons that she will not allow him to use the canoe and that I the defendant should give [her the plaintiff] three months to refund the GH¢18,500.00 that I spent in repairing the canoe to me. 16 Defendant avers that whilst he was waiting for the plaintiff to bring the money by her own words in the presence of her own family head and other members, he was rather served with this instant writ of summons at the instant of the plaintiff. 1 See para. 9 of the plaiitiff’s witness statement Page 7 of 11 Page 8 of 11 4.5 I proceed to make findings of fact from the evidence produced at the trial. Though the canoe came into possession of the defendant through the plaintiff’s late brother Korku, who hitherto was known to the defendant as owner of the canoe, the defendant in this suit did not dispute plaintiff’s claim of ownership of the canoe. I find that the plaintiff is a member of the Ackey family of Blekusu and once summoned the defendant before the Ackey family at Blekusu. The defendant did not cross-examine the plaintiff’s witnesses PW1 and PW2. According to him, “he is not disputing the ownership of the Plaintiff of the canoe”. 4.6 I find that the plaintiff’s representative cross-examined the defendant on the fact of a meeting ordered by the plaintiff on the core issue of the canoe that is presently before the court. I find that both the plaintiff and her representative in court Jerry were at the said meeting. Under cross-examination, the defendant stated: I did not know Julie at first. The day she called me before her family head was when I met her. I told her that I had spent a lot on the canoe and that though I acknowledged that the canoe was her, she should allow me to go and work with it, but she refused. She said she also needed the canoe. The family told her to give me the money I had spent on the canoe. She promised to give it to me within three months but she never gave me the money [and had] dragged me to court. (Emphasis added) 4.7 Clemence Serwonu is Defendant’s witness (DW1). He confirmed the defendant's testimony, particularly the fact of the meeting. Under cross- examination, DW1 re-stated that “[w]hen the matter was taken to the Chief Page 8 of 11 Page 9 of 11 fisherman the Dogbatsey family was told to pay an amount of GH¢18,000 and come and retrieve their canoe”. The defendant’s second witness DW2 Godwin Kwamivi Akey is an Ex-police Chief Inspector who is a fisherman at Blekusu. He knows the parties in this suit. I find that DW2 is the head of plaintiff’s family to whom the plaintiff lodged the summons. He confirmed the fact that the matter had once been sat upon by elders including himself and that same was resolved. Under cross-examination, DW2 took leverage to re-state the crux of his evidence in chief: The issue is that Plaintiff is my deceased brother’s daughter. Defendant, I know him as a fisherman at Adina. In the year 2019, my daughter complained to me that she bought a boat for her deceased brother and she spotted the boat being used by the Defendant. Since I could not go into the matter alone, I invited the Regional Chief Fisherman Seth Abokyi and the District Fisherman Papaga Keveo. On the 16th day of June 2019, we assembled in my house to go into the issue. On the whole, we found that the boat was given to Defendant through one Clement Sewornu. The defendant also claimed that before the boat was used, he spent some money to repair it amounting to GH¢18,300.00. My daughter agreed that she would go and bring that money within three months. We also came to the conclusion that the boat was used by the Defendant for one year without rendering account to anybody. I was expecting to hear from my daughter but I did not hear from her until the summons to appear before this Honourable court was issued ... 4.8 When DW2 was asked under cross-examination the question “you were not present when the Defendant took the boat, why are you agreeing and Page 9 of 11 Page 10 of 11 confirming the Defendant’s claim that he spent GH¢18,300.00 and that, that amount should be retrieved before the boat is returned to my sister, he responded “[t]hat was the decision taken by the panel” … “the decision was taken [in the presence of] the Plaintiff and her relatives as well as the Defendant’s relatives … She agreed to pay the money before the panel”. 4.9 Per the evidence before me, I have the calmness to agree with the defendant and to hold that the plaintiff summoned the Defendant before the head of her family DW2 in respect of the controversy surrounding the fishing canoe which is the subject matter of this instant suit before the court. Per the evidence in general and particularly DW2, I hold that all matters in respect of the fishing canoe have been settled by a panel and that the key outcome of the settlement by the panel was for the plaintiff to pay to Defendant GH¢18.500.00 as promised by the plaintiff herself, being amount the Defendant has spent in repairing the fishing canoe. 5.0 I hold further that having earlier settled the matter before a panel that agreed with the plaintiff’s promise to refund GH¢18.500.00 to the defendant as the amount he had spent in repairing the fishing canoe, and that, having not raised any issue before this court that seeks to question the structure, the composition, authority and procedure the panel adopted in the settlement, I agree with the defendant that the plaintiff cannot re-litigate this matter here before the court but to abide by the settlement reached by the panel. 6.0 6.1 Conclusion The court encourages timely resolution of conflicts and enforces them when they are proven to have been resolved fairly and justly by a competent Page 10 of 11 Page 11 of 11 panel. Such an approach helps to maintain law and order not only in society but also promotes the health of the legal system. It is in the interest of the state that there is an end to lawsuits. Pursuant to the maxim interest rei publicae ut sit finis litium the court has a duty to uphold a fact of estoppel in whatever form that is evidently borne by the parties’ pleadings and also established at the trial. See Abdul Rahman Mumuni vs. Alhassan Ibrahim.2 6.2 I have the calmness to uphold the outcome of the settlement of the matter that the plaintiff initiated before a panel chaired by her family head and to hold that she is estopped from relitigating this same issue in this action against the same party. The plaintiff’s action fails on this ground, and same is dismissed accordingly. The plaintiff is entitled to costs, but he waives the costs. Costs, accordingly waived. Ordered accordingly.3 Justice George Buadi High Court, Denu. 2 3 Civil Appeal No. J4/9/2012 (Decided on Wed. 27 Feb 2013 The end of the final judgment in the suit intituled Julie Dogbatsey (Per her lawful attorney Jerry Dogbatsey) vs. Osofo Dawolo (Suit No. E13/41/2020) Page 11 of 11