ADAI v. ANANE

JUDGMENT OF OSEI-HWERE J.

The defendant-appellant (hereinafter called the defendant) appeals against the decision of the District Magistrate Grade II, Bechem, wherein the plaintiff-respondent (hereinafter called the plaintiff) was "adjudged owner of the piece of land in dispute and the sum of ¢100.00 damages awarded against defendant." By his writ of summons the plaintiff sued the defendant claiming a declaration of title, ownership and possession of the land in dispute and ¢300.00 damages for trespass. The plaintiff supported his writ by a statement of claim in which he traced his root of title to his grandfather. About eight years prior to the filing of the statement of claim, the plaintiff averred, he had disputed over the area in question with one Kwame Missa, the plaintiff's second witness, a boundary owner, and he had been adjudged the rightful owner in an arbitration settled before the odikro of Bredi. The defendant also filed a defence in the following terms:

[p.147]

(1) That the subject-matter of this suit had been adjudicated in an arbitration held and presided by Nana Duayaw-Nkwantahene in February, 1970, in which the defendant [sic] was present without any duress and the arbitration award was made in my favour.

(2) I plead res judicata in this case.

(3) That I shall submit evidence in support of my defence during hearing.

(4) That the plaintiff's claim cannot be entertained by reason of facts contained in paragraphs (1), (2) and (3) above."

At the hearing, the plaintiff called evidence to support this arbitration before the Bredi odikro whilst the defendant in turn called evidence to establish the arbitration before the Duayaw-Nkwantahene. In his judgment the trial magistrate made certain findings in favour of the plaintiff on the supposed issues raised in the summons for directions and regarded as a nullity the arbitration award made in favour of the defendant. It is against this judgment that he filed two original grounds of appeal and nine supplementary grounds of appeal. At the hearing of the appeal the defendant's counsel sought and was granted leave to argue the supplementary grounds of appeal. The first ground of appeal was that the trial magistrate was wrong in finding that the defendant slept over his rights in not joining the alleged arbitration before the odikro of Bredi. The impugned finding is the result of the trial magistrate's assessment of the plaintiff's evidence on the arbitration before the odikro of Bredi where h