JUDGMENT

DOMAKYAAREH (MRS) J. A. Sitting as Additional High Court Judge.

1. Before the court is a Motion on Notice filed on behalf of the applicant herein on 5th August 2015 praying the court for an order to join the said applicant Nii Okpelor Jacob Ablorh Mensah as the 5th defendant to this suit.

2. The affidavit in support of the motion averred that:

·         the applicant is the current head and lawful representative of the Okpelor Sowah Din family of Teshie;

·         following a customary arbitration held on 27th March 2012, the applicant was made the substantive Head of the Okpelor Sowah Din family while the 4th defendant was recommended to be confirmed as the chief of Nmai Dzorn.

·         the instant suit is founded on a claim that the 4th defendant has been appointed as the Head of the Okpelor Sowah Din Family.

·         he the applicant will be adversely affected and bound by the outcome of the suit if he should sit by and watch the case go on

·         his joining the suit will help unravel the controversy of who is the head of the Okpelor Sowah Din Family

·         he should be joined to the suit as 5th defendant to protect his interest as the substantive Head of the Okpelor Sowah Din Family

3. The plaintiffs and the defendants all filed affidavits in opposition to the application.

4. In a supplementary affidavit in support filed on 14th December 2015, the applicant denied all the material facts raised in the affidavit in opposition save those expressly admitted or by necessary implication.

5. The defendants opposed the application for joinder through an affidavit in opposition deposed to on their behalf by the 1st defendant and filed on 4th September 2015. They averred that:

·         in the unreported Court of Appeal case of Dede Kosey Yohunu & Anor v Annie Kumah Agbeti & 3 Ors Civil Appeal No. H1/50/10, dated 15th May, 14 it was held that the applicant is not the Head of family of the Okpelor Sowah Din Family of Teshie,

·         in consequence of the disobedience of above Court of Appeal judgment by the applicant by the publication in the Daily Graphic Newspaper of Friday June 8, 2012 to the effect that he was still the head of family, the applicant was cited for contempt with same contempt application still pending. The said contempt application was filed on 13th October 2014.

·         by virtue of the Court of Appeal judgment which has not been set aside or overturned on appeal, the issue of the headship of the Okpelor Sowah Din family has become res judicata and cannot be reopened in the instant court

·         12 days after the death of Eugene Sowah Odametey who died on 17th September 2007 the family members of the Okpelor Sowah Din family numbering about 80 met and appointed the 4th defendant as head of family upon his nomination by the 1st plaintiff.

·         thereafter, through various machinations by the applicant herein against the 4th defendant, the late Madam Adzorkor was pronounced as the successor to the headship of Eugene Odametey Sowah and Madam Adzorkor was also succeed by Madam Kai so it is never true that he was appointed to succeed Eugene Sowah Odametey as averred in paragraph 3 of his affidavit in support of the motion.

6. The defendants also denied that the applicant was made head of family after a customary arbitration, averring that the customary arbitration judgment relied on by the applicant was written by Nii Adjei Kpobi Asawa II and a certain La Agbawe Akutso upon the influence of the applicant without offering the 4th defendant herein a hearing after the latter was prevailed upon to withdraw his complaint about the female headship of the family with Nii Adjei Kpobi Asawa II. The defendants averred that an irregular recommendation by an arbitration body not properly constituted cannot make the applicant head of family.

The gravamen of the opposition to the application for joinder by the defendants is the unreported Court of Appeal case Civil Appeal No. H1/50/10 dated 15th May 2014 cited supra. The defendants contended that per this judgment the applicant was declared not to be the head of family. In the said case, the plaintiffs and the 1st defendant both claimed they acquired the parcel of land in dispute from the Okpelor Sowah Din family, albeit from different persons in the said family. The plaintiffs acquired the land from the applicant herein who held a power of attorney from the head of family to manage the family lands. The defendant acquired his land from the actual head of family Eugene Okpelor Sowah. The trial Court found for the plaintiffs. On appeal by the defendants, it was held that the power of attorney executed in favour of the applicant herein was not valid as it did not comply with s.1(2) of the Power of Attorney Act, 1998 (Act 549) because there was no witness who was present to attest to the instrument. Aside this finding by the Court of Appeal, the court was of the view that even if the power of attorney was valid, yet the plaintiffs must still fail because the applicant misconstrued the power of attorney given him. This is what the court said at page 39 of the unreported judgment cited supra.

“Looking at Exhibit ‘3’ Jacob Ablorh Mensah and one Nii Okpelor signed an indenture as joint head of family with Nii Okpelor O Sowah. This is not true. Jacob was granted power of attorney by Eugene but was not made a joint head of family. From the evidence, Jacob got confused about the power granted him thinking he could act as head of family.

In Exhibit ‘4’ Jacob signed the indenture as the head of family of Okpelor Sowah Din family of Nmai Djorn Teshie, Accra with the consent and concurrence of the principal members of the said family. This is palpably false. Jacob was never head of the family…”

7. It is to be noted that this case was filed in 2010 going by the suit number. Even though the Court of Appeal decision is dated 15th May 2014, the judgment was on the 2010 suit. It can therefore be safely concluded that as at 2010, the applicant was not the head of family. The applicant is however relying on a 2012 arbitration award and anything could happen between 2010 and 2014 when the Court of appeal delivered its judgment. There is evidence that the applicant was cited for contempt on 13th October, 2014 for disobedience of the Court of Appeal judgment by a publication in the Daily Graphic Newspaper of Friday June 8, 2012 to the effect that he was still the head of family. As the contempt application still pending one cannot say that the defendants have been vindicated.

8. The plaintiffs on their part also opposed the application for joinder per their affidavit in opposition deposed to by the 2nd plaintiff on behalf of herself and the 1st plaintiff filed on 25th September 2015.

The plaintiffs averred that:

·         the applicant has never been recognized as the head of family;

·         that a purported power of Attorney that he had been relying on to take legal actions on behalf of the family had been revoked upon death of Eugene Odametey Sowah and vacated by the Court of Appeal;

·         that in any event he resorted to ex-parte applications in the legal actions thus not giving opportunity to anyone to challenge his capacity;

·         by tradition their family chooses its heads from the oldest surviving generation;

·         the plaintiffs represent the present oldest generation to succeed to the headship hence their opposition to 4th defendant doubling himself as chief as well as head of family during their life time;

·         the Court of Appeal has already decided the status of the applicant therefore his joining the suit will not help in resolving any matter.

9. During their oral submissions while opposing the application for joinder, Counsel for the plaintiff challenged the capacity of the applicant to join the suit as a defendant as being misconceived. He submitted that since the 4th defendant was already being sued for holding himself out as head of family and the applicant was also claiming that he was the head of family, then the reasonable thing for him to have done was to seek to join as plaintiff.

The plaintiffs in opposing the application also relied on the same unreported Court of Appeal case cited supra. With respect to their contention that he ought to apply to join as plaintiff instead of defendant, I find the applicant to be caught between a rock and a hard place so to speak. Here is a case in which the plaintiffs herein are contesting the purported appointment of the 4th defendant as head of family over and above their heads as the eldest surviving generation contrary to the long established tradition and practice of their family. He would therefore find it difficult to join the plaintiffs because their interests are at variance with his interest as he is also claiming to have been elected as head of the family. He would rather choose the hard place of joining the defendants to stave off the claims of the plaintiffs. In any event whether he can join or not will depend on the weight of the affidavit evidence of the plaintiffs and the defendants and the validity of the arbitration award that the applicant is relying on.

10. The applicant based the strength of his application for joinder on a customary arbitration held on 27th March 2012 marked as Exhibit “OM1” of his affidavit in support. However, an examination of Exhibit “OM1” showed that the arbitration was not held on the said date but that that judgment (arbitration award) was rather presented to the family of Nii Sowah Din Okpelor on the said date after postponing the presentation for 3 times. Twenty members of the family attended the presentation. In their affidavit in opposition, the defendants also took issue with the said arbitration labeling it as an irregular recommendation by an arbitration body not properly constituted.

11. If the customary arbitration was a valid one then the award would be binding on the parties. The case of Akunnor v Okan (1977) 1 GLR 173 is one of the several cases that set out the ingredients of a valid customary arbitration. In that case, the plaintiff brought an action for, inter alia, a declaration of title to a piece of land. Both parties claimed to have been granted the land by one Nii O. K. and to have been in undisturbed physical occupation of the land since shortly after the grant till her enjoyment was disturbed by the other party. The defendant furthermore testified that in April 1960, after the plaintiff had interfered with her right to the land, there had been an arbitration before the La Mantse and his elders and that the arbitrators had made an award in her favour. The trial judge found for the defendant. On appeal, counsel for the plaintiff submitted, inter alia, that the alleged arbitration before the La Mantse did not conform to the requirements of a valid customary arbitration because:

(a) there had been no prior agreement by both parties to accept the award and (b) the proceedings were not held in a judicial manner; and that accordingly the trial judge misdirected himself in holding that the alleged arbitration was valid. In dismissing the appeal, the Court of appeal held as follows: -:

“(1) the ingredient of the customary arbitration under consideration was satisfied not at the time of the award when an adverse decision might cause one of the parties to reconsider his participation in the proceedings but at the opening of the proceedings. It was an agreement to be bound by the decision made as a precondition for the arbitration taking place. The evidence established conclusively that the plaintiff agreed to every aspect of the arbitration. A prior agreement to be bound by an arbitration could not be displaced by a subsequent act.

(2) An arbitration need not follow any formal procedure. But both sides must be heard and be given the fullest opportunity to present their case. There was evidence before the trial court that the parties and their witnesses were heard and that every opportunity was given to call witnesses. Since the learned judge held that, on the evidence, there had been a valid customary arbitration that should end the matter.

(3) The rule was that once there had been a valid customary arbitration the parties were estopped from raising the same issue subsequently by action in court. Consequently the matter having been disposed of by arbitration the plaintiff was not entitled to bring this fresh action in court claiming the same property from the defendant.”

In other words, there must be an agreement by the parties to submit to the arbitration; they must also agree to be bound by the decision made before the start of the arbitration, both sides must be heard and be given the fullest opportunity to present their case. If the above conditions are met, then the parties and their privies would be bound by same.

12. In the said arbitral judgment, there were four defendants namely: Nii Opintso, Mr Okoe Rancy, Nii Asafoatse Okplen and Mr Daniel Boye. Nii Opintso could not attend the proceedings because he was indisposed and Nii Asafoatse Okplen did not also attend any of the sitting with no apology. Can it be said from the forgoing that all the parties were given the fullest opportunity to present their case? The arbitral judgment only said the claims and counterclaims of the parties were long and wordy which is not sufficient to determine whether the parties had ample opportunity to present their respective cases. It is noted that the plaintiffs in the instant case and also the defendants are members of the same family as the applicant herein but they are collectively opposing his application for joinder in his capacity as head of family. Can it therefore be said that the family agreed to be bound by the arbitral decision prior to the start of the arbitration? There is no evidence to that effect in Exhibit “OM1” or any other piece of evidence annexed to the affidavit in support. The twenty members of the family presented themselves for the presentation of the arbitration judgment, how representative were they of the entire family. At the presentation of the judgment on 27th March 2012, it was stated that the presentation had been postponed three times. What were the reasons for the postponement? The evidence does not indicate why. What it because of lack of quorum or boycott? The evidence does not disclose any explanations to determine their acceptability or their implications. On the authority of the Akunnor case cited supra, I am of the considered opinion that the ingredients of a valid customary arbitration have not been demonstrated in the arbitration award relied on by the applicant. Consequently that arbitration judgment cannot cloth the applicant with authority as head of family of the Okpelor Sowah Din family of Teshie. That being the case, he has no personal interest to protect in the instant suit.

13. The application for joinder is therefore refused.