DRAMANIJABAGHI VRS SARE & 2 OTHERS (UW/WA/CT/A1/01/2024) [2024] GHACC 265 (27 June 2024)

IN THE UPPER WEST CIRCUIT HELD AT WA ON FRIDAY THE 27TH DAY OF JUNE 2024 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE -------------------------------------------------------------------- SUIT NO. UW/WA/CT/A1/01/2024 ALHAJI SAAKA DRAMANIJABAGHI NAA …………………………. PLAINTIFF VRS 1. HASHIM MAHAMA SARE …………………………DEFENDANT 2. ASANYI YAHAYA 3. LANDS COMMISSION. WA JUDGMENT Introduction This is a matter that got settled at the Wa Customary Lands Secretariat in August 2014 with a written ruling but the Defendants resiled in implementing same. The suit before me therefore seeks for the said customary arbitration to be upheld and so counsel have filed praying for a number of reliefs. Reliefs sought Led by counsel, Plaintiff filed a writ in this court in December 2023 seeking the following reliefs: 1- Declaration of title to all that piece of land situate at Bill Boo Residential Area and measuring 2.06 acres or 0.08 hectares and demarcated in the plan of land for Alhaji Saaka Dramani Jagaghi Naa 2- Recovery of possession of all that piece of land described in relief “A” 1 3- An order of the court directed at 3rd Defendant to delete, expunge any registered title or purported registration made by the 1st and 2nd Defendants in respect of the subject land. 4- An order of perpetual injunction restraining the Defendants, their heirs, assigns, servants, privies and all persons claiming through them from in any way interfering with Plaintiff’s quiet enjoyment of the land in dispute. Default of appearance of Defendants Lawyers for the Plaintiff sought these reliefs and subsequently got the processes served on all three Defendants but non-entered appearance leading to a judgment in default of appearance per Order 10 Rule 1 of CI 47 for 2nd and 3rd Defendants because service was proved on those two. Since there was no prove of service on the docket for 1st Defendant counsel moved the court and it agreed with him that the processes should be served by substitution on 1st Defendant by posting the processes for service on him on the notice boards of both the Circuit Court and High Courts in Wa. This was carried out with 1st Defendant still not responding and so counsel applied for directions and filed the issues he wanted considered when he leads evidence on the reliefs sought. Evidence of Plaintiff Counsel on 30th May 2024 counsel led Plaintiff in evidence in chief where he described himself to be bringing the suit in a representative capacity as the head of the Mantin Jabaghi of Wa and that he was doing so to protect a family property as described in the schedule which was been threatened. The 17-paragraph pleading spoken to by Plaintiff emphasized the following: That 1st Defendant is being sued for wrongfully selling plots of land within the disputed land to some persons and further executing deeds of lease in favour of those persons who bought plots in the disputed area and registering same at the Lands Commission, Wa. 2 That Defendants sold the said plots of land within the disputed land in their capacity as the Heads of the Sare family of Dokpong of which same came into contention before the Wa Central Customary Lands Secretariat and the contending parties together with the chief of Dokpong agreed and submitted themselves to the secretariat for a hearing and resolution of the matter. The contention before the Secretariat was premised on the fact that Hashim Mahama Sare, the 1st defendant, had sold some plots of lands including portions of the disputed land to other persons when he did not have the right to so do and further that the land in question did not belong to the Sare family of Dokpong after all. At the resolution, it was agreed that all such interest in portions of the disputed land created by the 1st defendant was not proper because 1st defendant had no such right and that the land did not belong to the Dopkong people of Wa. That 1st defendant further agreed that he was going to take steps to relocate all the persons to whom he had sold portions of the disputed land to for which those persons had gone ahead to register their titles with the Lands Commission, Wa, this was contained in a ruling delivered on the 3rd of August, 2014 with all parties willingly approving of the decision by appending their signatures. Plaintiff went ahead to tell the court that a recent search at the Lands Commission, Wa revealed that portions of the disputed land still had registered interest of plots made between Hashim Mahama Sare and Asani Yahaya and other persons of which he Plaintiff needs to recover but is unable to do so because of the prior titles and interests created by the defendants that affect portions of the disputed land and so his case to repossess those affected lands and to have the registration expunged from the record of the Lands Commission. 3 The Relevant/Applicable Law in Resolving the only issue Plaintiff being before the court to have his reliefs upheld to effectuate the intent of the parties. The law has been settled that, this case being a civil one, the standard of proof is on the preponderance of probabilities as stated under section 11(4) and 12 (1) of the Evidence Act 1975 (NRCD 323) See: Yorkwa V Duah (1992-1993) GBR 278 CA This standard of proof carries with it a burden on a party to produce sufficient evidence so that, on all the evidence a reasonable mind could conclude that, the existence of the evidence or the fact is more probable than its non-existence. See: Ackah V Pergah Transport Ltd & Ors (2010) SCGLR 728 Gihoc Refrigeration & Household Products Ltd V Hanna Assi (2005-2006) SCGLR 456. The preliminary issue requiring redress from the pleadings of the Plaintiff of which the Defendants have elected not to enter appearance is whether or not there was an arbitration over the disputed land between the parties and whether that was pleaded by Plaintiff in his pleadings. It would therefore be in consonance with settled law, equity and good conscience for it to be determined as a preliminary legal point which is required by law. In the celebrated case of Pong V Mante IV (1964) GLR 593, arbitration was defined as follows: “The practice whereby natives of this country constitute themselves into an adhoc tribunal popularly known and called arbitrations for the purpose of amicably settling disputes informally between themselves or their neighbours has long been recognised as an essential part of our legal systems, provided all the essential characteristics of holding valid arbitrations are present, the courts will undoubtedly enforce any valid awards published by such adhoc bodies”. 4 The essential requirements of a valid customary arbitration by the decision supra are as follows: a) Voluntary submission to the arbitration b) Prior agreement to accept the award c) Publication of the award. See: Mansah & Ors V Adutumwaa & Ors (2013-2014) 1 SCGLR 38 Ankrah V Dabra (1956)1 WALR 89 WACA Manu V Kontre (1965) GLR 375 SC Nyaasemhwe V Afibiyesan (1977) 1 GLR 27 CA Customary arbitration need not follow any formal procedure as to how it is initiated or heard. However, the rules of natural justice should be adhered to. This means, each party must be given the opportunity to present his or her case before the arbitrators. See: Mansah & Ors V Adutumwaa & Ors (supra) Dzasimatu & Ors V Dokosi & Ors. (1993-1994) 1 GLR 463 SC I have examined Exhibit “A” which is a document from the Wa Customary Land Secretariat which is titled Judgment/Ruling and its content revealed that Plaintiff had initiated the process of resolution of the land dispute. The parties were lawfully summoned and the attendance proves the parties were all present and the issue in contention thoroughly discussed. The appendix to the proceedings shows that, both parties in this case were present and they had no objection to the panel who sat over the matter with the belief that a resolution outcome will be acceptable to them all. The issue before the committee was in respect of the ownership of a land which is now in dispute before this court. 5 From the ruling, the parties were voluntarily allowed to state their case after which the committee gave its decision. There is no evidence that any of the parties, was forced to submit to the panel and its decision. There is also no evidence that, the rules of natural justice were breached. In my candid opinion, the exhibit therefore satisfies all the requirements of a valid customary arbitration as was held in the recent Supreme Court case of Mansa & Ors V Adutwumwaa & Ors (supra) What therefore is the effect of a customary arbitration award? a) The award is final, and nobody or court can relitigate over it, not even the Supreme Court. A court is only to enforce it or set it aside if it is tainted with fraud, breach of natural justice etc. There is no right of appeal against the award. b) The award technically operates as estoppel by conduct and is resjudicata C) The parties and their privies are bound by the award d) It should be dealt with before the merits of the case are determined. e) The rule is that, once there is a valid customary arbitration, the parties are estopped from raising the same issue subsequently by any action in court. The principle is that, you take your arbitrators for better or for worse. See: Appiah V Addai (1962) 1 GLR 345 SC Vado V Sampede (1957) 3 WALR 35 6 It is therefore, the law that, if an action succeeds on a plea of statute of limitation, lack of jurisdiction, estoppel as a result of valid arbitration or lack of locus standi, the trial court should not proceed to determine the merits of the case irrespective of the evidence. See: Graves V Oyewoo (1967) GLR 803 CA Akrong V Bulley (1965) GLR 469 SC Sakordee I V Boateng II (1982-1983) GLR 715 SC This means if an action succeeds on a preliminary point that a suitor lacks the requisite locus standi, it means the proper parties are not in court for the court to pronounce on the merits of the case. It also means that, the action had lapsed by operation of law. See: Stephens V Apoh (2010) 27 MLRG 12 CA. As I have indicated already, I find as a fact that per exhibit “A” all parties essential to the resolution of this dispute appeared before the committee. The parties were heard in a judicial manner and an award was published against the plaintiff in respect of the disputed affected lands. Are Arbitration Awards Final I wish to conclude by stating the finality rule in arbitration as was held in the case of Klimatechnick Engineering Ltd V Skanska Jensen Int. (2005-2006) SCGLR 913 at 916 per Wood JSC (as she then was) as follows “I would reiterate that, the finality rule must be made to bite. In so far as the award is not tainted, and the procedural and natural justice rules had been strictly observed, the parties should be prepared to accept the decision of an arbitral tribunal even if they have reason to believe a court or some other tribunal would have adjudged matters differently. Thus in the absence of any clear evidence of impropriety on the part of the arbitrators or umpire, if our counts would routinely review and overturn, on the law and the merits, awards which 7 were given within the jurisdiction and were not improperly procured, and in respect of which the procedural and natural justice rules were never breached, the speed and above all, the finality of the arbitral process would be greatly undermined and jeopardised. The courts have a duty to support and give validity to arbitral awards properly procured”. I am bound by this ratio decidendi by virtue of the principle of stare decisis. I therefore find as a fact that, the arbitral proceedings and award as in exhibit “A” was properly held and an award was published in favour of the Plaintiff family. I do not have power to set that aside. It meets all the requirements of a valid arbitration under customary law, it binds the parties, their assigns, privies etc. I do not think it would serve any useful purpose to determine the issues set down in this case by the Plaintiff. It would be a mere academic exercise. The Defendants cannot resile from the award once same has been published. The parties chose their forum and must abide by the award. And like Essau in the Bible in Genesis 25:32-34 who sold his birth right and therefore could not complain thereafter. Decision In conclusion, the Plaintiff family’s action succeeds in its entirety and same is upheld irrespective of the fact that Defendant chose not to appear in court. A- I hereby proceed to affirm the family’s title to the disputed land as was published by the Wa Customary Land Secretariat to be situate at Bill Boo Residential Area and measuring 2.06 acres or 0.08 hectares and demarcated in the plan of land for Alhaji Saaka Dramani Jagaghi Naa. B- That Plaintiff recovers of possession of all that piece of land described in relief “A” forthwith making those who have grants from the 1st and 2nd Defendants, their assigns, servants, privies etc restrained perpetually from interfering with the management of those lands as theirs. 8 C- I further direct by a court order that 3rd Defendant delete by expunging any registered title or purported registration made by the 1st and 2nd Defendants in respect of the subject land. D- I will award no cost. H/H Jonathan Avogo Circuit Court Judge, Wa 9