VINCENT KWADZO KANU & 2 OTHERS vs. KOMLA AGUNE & 3 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    HO - A.D 2017
VINCENT KWADZO KANU AND 2 OTHERS - (Plaintiffs/Appellants)
KOMLA AGUNE AND 3 OTHERS - (Defendants/Respondents)

DATE:  15TH NOVEMBER, 2017
CIVIL APPEAL NO:  H1/01/2017
JUDGES:  ADJEI J.A. (PRESIDING), SOWAH J.A., MENSAH J.A.
LAWYERS:  NELSON KPORHA FOR PLAINTIFFS/APPELLANTS
DOROTHY ESINAM TETTEY FOR DEFENDANTS/RESPONDENT
JUDGMENT

SOWAH, J.A.:

The plaintiffs'/appellants' [who hereinafter will be referred to as ‘plaintiffs'’] are appealing part of the judgment of the trial Circuit Court which declared the land in dispute to be jointly owned by the parties. The plaintiffs are praying that that part of the judgment be set aside as it is contrary to the decision contained in the Arbitration awards published in favour of the plaintiffs' which the trial court was to give effect to.

 

The suit instituted by the plaintiffs at the Circuit Court Aflao on 16th October 2008 sought the following reliefs:

 

Declaration of rightful title of ownership, occupation and recovery of possession to all that piece or parcel of land situate, lying and being at Gbawormekope-Aflao and bounded as follows:

 

On one side by the property of Gakpe Family, on another side by the property of Batorme land, on the third side by the property of Huime land and on the forth side by Teshie and Avedzi land.

 

General damages and Special Unlawful Trespass, threat and persistent harassment.

 

An order of court to confirm, enforce and or give effect to the arbitration award published by the native arbitration court of Torgbui Agbegidi Sohoin of Avedzi and the senior native arbitration court of Torgbui Amenya Fiti V of Aflao Traditional Area touching and appertaining to the same subject matter on 26/12/2006 and 19/9/2008 respectively by voluntary submission thereto in accordance with Aflao native customary law and usages.

 

Estopped on grounds of laches, acquiesance and Res Judicata.

 

Perpetual injunction be decreed restraining the defendants either by themselves, their agents, assigns, privies, workmen, etc. from in any manner committing any further acts of, trespass onto the land and hereditaments referred to supra.

 

Any other reliefs found due.

 

The defendants' counterclaimed in their amended statement of defence at page 77 of the Record as follows:-

 

Damages for trespass

 

Declaration of title to the disputed land

 

An order to revoke plaintiffs’ license and for ejection

 

At the trial in respect of plaintiffs' claim (c) for order of court to confirm, enforce and or give effect to two arbitration awards in their favour, the plaintiffs' tendered exhibits ‘A’ and ‘B’ respectively at pages 27-28 and 30-35 of the Record of Appeal.

 

The trial court in its judgment dated 26th September 2012 [at pages 166-172 of the Record] rightly identified the issue of arbitration between the parties over the land to be central and crucial to the disposition of the case before him. He therefore proceeded to analyze the evidence of the parties’ vis a vis the ingredients of the essentials of a valid customary arbitration. The learned trial judge concluded and held as follows at page 171 of the record:

 

“In this case, I find as a fact that, all the elements which have been stated by the authorities above were present when the parties appeared before Torgbui Fiti V in 2006 (sic). And I so hold.”

 

On the legal effects of a valid arbitration, the trial judge stated:

 

“The effect of arbitration award is that it is final unless it is tainted by fraud or unless the rules of natural justice was not followed. Otherwise you take your arbitrators for better or for worse.”

 

Further on in the judgment after reciting what the Torgbui Fiti V arbitration panel had held vide exhibit B, the trial judge reiterated:

 

“As I have stated earlier, I have no power to question the arbitration award.”

 

He then, whilst ostensibly restating the terms of the Torgbui Fiti award made the Orders which have precipitated this appeal.

 

In plaintiffs' Notice of Appeal filed on 9th May 2013, the grounds of appeal are as follows:

 

The learned trial Judge erred in holding that both parties are to occupy the land the subject matter of the suit as jointly owned contrary to the Arbitration Awards published in favour of the plaintiffs which awards the trial court purported to confirm or had given effect to.

 

The learned trial Judge erred in refusing to grant recovery of possession to the plaintiff/appellant in the same vain ordered both parties not to interfere with each other’s occupation and use of their respective portions of the land.

 

Further grounds to be filed upon receipt of the record of proceedings.

 

The plaintiff's did not file any further grounds of appeal as had been indicated. Also, their counsel conceded that the plaintiffs' had not specifically asked for recovery of possession and abandoned the second ground of appeal.

 

Before probing the merits of the appeal, it will be useful to set out the undisputed facts of the case. These are that the plaintiffs' belong to the AYORTOR family, otherwise known as Gbugla family of Gbugla/Gbawoemekope/Aflao whilst the defendants' belong to the KPETSEKU or Avedzi family of Gbawoemekope/Avedzi. The defendants' initiated arbitration against plaintiffs' before the senior native arbitration court of Torgbui Amenya Fiti V of Aflao Traditional Area. The dispute related to ownership of land at Gbawoemekope. The panel heard the parties, visited the locus and also considered a previous “judgment” from the Arbitration court of Torgbui Agbagidi dated 26th December 2006 i.e. exhibit ‘A’. An award was published on 9th September 2008. The plaintiffs' tendered the arbitration proceedings as exhibit ‘B’ and the defendants' also tendered same as exhibit ‘1’

 

There is no disagreement between the parties herein that the subject-matter of the arbitration is the land which was the subject-matter of the suit before the trial Circuit Court and in this appeal.

 

In their written submissions, counsel for both parties hold up the Arbitration award exhibit B as valid. Neither criticizes the trial judge for confirming the award. Indeed on the Record, it is clear that essential ingredients of a valid customary arbitration were all present; namely voluntary submission of the dispute by the parties to arbitrators for the purpose of having the dispute decided, both sides were heard in a judicial manner, and an award was made and published.

 

Plaintiffs' counsel however contends that the trial judge wrongly interpreted the arbitration award in exhibit ‘B’ and thus came to the wrong conclusion that the parties owned the land in dispute jointly.

 

On the other hand, the defendants' counsel is of the view that there is no ambiguity in the judgment to have warranted this appeal. He however states the defendants' understanding of the arbitration award; which needless to say is different from plaintiffs' understanding. It is also interesting to note the admission by defendants' counsel that the arbitration award lacked clarity as to the precise dimension of the land being disputed, and so there is currently pending a suit involving the same parties in an attempt to establish concisely the part of land occupied by the plaintiffs'.

 

We have taken note that although both parties appear to give different versions of their understanding of the award, however neither party asked for the award to be set aside because it was ambiguous, inconsistent or uncertain. On the contrary, they are both ad idem that the award is valid and binding. It is therefore likely that either one of them is trying to wriggle out of the binding effect of a valid arbitration.

 

Be that as it may, the only issue we are called upon to decide in this appeal is whether the trial Circuit Court erred in the construction of its final orders which was purportedly made pursuant to confirmation of the Arbitration award.

 

The Judgment/Award of the arbitration panel in exhibit ‘B’ published on 19th September 2008 is reproduced below:

 

JUDGMENT:

During cross-examination both parties accepted the fact that their forefathers live together in Gbawoeme but the parties still have differences on the actual land allocated to the Gbugbla’s.

The panel came with the conclusion that:

1. The whole parcel of land situated and laying at Agbawoeme is Avedzi land owned by Torgbui Sohoe.

2. Torgbui Ayortor cultivated and claimed his own land when working with Torgbui Sohoe.

3. The farmland under litigation have never been cultivated by the Avedzis’.

4. There is still boundaries separating the Avedzis from Gbugblas

5. The actual cause of litigation is the burial ground.

The panel therefore ruled that, since the Gbugblas stayed with the Avedzis and cultivated the said land for centuries, the Avedzis have no base to drive them away or reallocate a land to them. Both parties are therefore advised to live in harmony and occupy same land as did by their forefathers. A new cemetery is to established for both parties to bury their dead.

Judgment is therefore entered in favour of defendants.”

 

Below is how the learned trial judge concluded his judgment:

 

“As I have stated earlier, I have no power to question the arbitration award. I therefore rule that both parties are to occupy the land as jointly owned. Any proceeds which will be derived from land should be shared equally between the parties. [my emphasis]

 

I therefore cannot order the defendants to give possession of the land to the plaintiffs vice versa. I am also unable to order for damages for trespass or injunction.

 

Both parties are restrained from interfering with each other’s occupation and use of their respective portions of the land.”

 

Having stated correctly that he had no power to question the arbitration award, I would think that all that the trial judge needed to do was to grant the relief sought by the plaintiff; namely to make the declaratory order confirming and giving effect to the arbitration award as published.

 

In attempting to re-phrase the terms of the award it is apparent that the trial judge added a new significant meaning to the published award. Nowhere in the award was reference made to ‘joint ownership’ which is a legal term. Black’s Law Dictionary 7th Edition defines ‘joint ownership’ as:

 

‘Ownership shared by two or more persons whose interests at death, pass to the survivor or survivors by virtue of the right of survivorship.’

 

If a property is held jointly with right of survivorship (as opposed to, for example, as tenants in common) when the first joint owner dies, the surviving joint owner in the normal course automatically becomes the owner of all of the property.

 

In contrast, ‘ownership in common’ is defined as:

‘Ownership shared by two or more persons whose interests, at death, pass to the dead owner’s heirs or successors’

 

In the context of the award made, and considering the finding of the arbitrators that ‘there is still boundaries separating the Avedzis from Gbugblas’, it would seem that the rights envisaged in the award is more in harmony with ownership in common than joint ownership. Defendants' counsel in his submissions even says that “if the parties per the arbitration award are to live together as their fathers lived, it goes without saying that they must occupy the respective portions that their fore fathers occupied’.

 

It is also difficult to understand the basis of the trial judge’s Order for proceeds to be derived from the land to be shared equally between the parties since this was not part of the award nor even a relief sought by the plaintiffs' or the defendants' in their respective claims and counterclaim.

 

We are satisfied from our evaluation of the record that the conclusion of the trial judge in his judgment was not a mere confirmation and repetition of the published award [as defendant counsel argues]. He misconstrued Exhibit ‘B’ and erred by coming to the conclusion that by the Torgbui Titi V. award, the parties owned the land in dispute jointly, and also that proceeds were to be shared.

 

The appeal thus succeeds on these grounds.

 

We accordingly hereby strike out the part of the ruling of the trial Judge which reads:

 

“I therefore rule that both parties are to occupy the land as jointly owned. Any proceeds which will be derived from land should be shared equally between the parties.”

 

In its place, we enter judgment for the plaintiff on their claim (c) on the writ of summons.

 

In respect of ground (b) of the appeal where the appellant complained about the failure of the trial Judge to order recovery of possession, it is our considered view that the learned trial Judge was right in refusing to grant recovery of possession to the plaintiff/appellant or award damages for trespass. This is because on the record, the plaintiffs did not sufficiently prove with clarity the area of land they wanted to recover or the head of damages.

 

To that extent, that ground of appeal fails.

 

(Sgd.)

CECILIA H. SOWAH

(JUSTICE OF APPEAL)

 

(Sgd.)

ADJEI, (J. A.)                           I agree                    DENNIS ADJEI

(JUSTICE OF APPEAL)

 

(Sgd.)

MENSAH, (J. A.)                    I also agree     LAWRENCE L. MENSAH

(JUSTICE OF APPEAL)