KLUTSE AKORTSU _ ORS. v. NELSON AZADE ANOR
1999
COURT OF APPEAL
GHANA
CORAM
- OFORI-BOATENG JA. (PRESIDING)
- FORSTER JA.
- ESSILFIE-BONDZIE JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Alternative dispute resolution
- Evidence Law
1999
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Ofori-Boateng, writing for the Ghana Court of Appeal, addressed a land dispute between two Ho families over the area plaintiffs called the Afevu Grassland. Plaintiffs anchored their claim on a local custom tying ownership of adjacent grassland to ownership of a forest, and objected to defendants planting permanent trees there. In November 1969, both families selected elders and others to inspect the site; both sides paid 15 and, eight days later, the panel decided the grassland belonged to defendants. Plaintiffs rejected the decision, and the Circuit Court later held the process was not a valid customary arbitration and found for plaintiffs. On appeal, the Court held the parties had in fact engaged in customary arbitration but that it was invalid because arbitrators included interested family elders, violating natural justice. Further, a court-ordered plan (Exhibit One) omitted Tsasime and Afevu and the trial judge failed to ascertain the alleged custom under section 55. The Court remanded for a proper rehearing.
JUDGMENT
OFORI-BOATENG JA:
This is an appeal from the Circuit Court, Ho, presided over by His Honour Judge Agyare Kwabi. In this appeal the Plaintiffs/ Respondents will be known as Plaintiffs; and the Defendant/Appellants will be known as the Defendants.
Long before this case came to the courts, the two families in this litigation had a quarrel over a piece of grassland which the plaintiffs call the Afevu Grassland. According to the plaintiffs, the custom of the Ho area, is that whenever a person owns a forest land, he automatically becomes the owner of the adjacent grassland. Nobody could grow permanent plants like cocoa, palm trees etc. on this grassland, except with the permission of the owner of the forest land. The plaintiffs complained that they had noticed that the defendants were planting palm trees on their plaintiffs’ grassland.
The defendant insisted that they had their own forest together with the land the plaintiffs were claiming was their grassland, from time immemorial. They also maintained that there was no custom in the area about forest land and grassland, as the plaintiffs were asserting. One day in November 1969, the plaintiffs approached the head of the defendants’ family and pleaded with him to try and bring about a settlement of this dispute. The two families agreed and fixed a day for the resolution of the dispute.
On the appointed day the families selected some elders and relatives from their families together with others not members of the family to inspect the lands on which there was the quarrel. After the inspection of the lands the team that went to the land declared that they would announce their finding in eight days time.
In eight days time the team announced the result of its inspection. The verdict was that the grassland, the subject of the dispute was the property of the defendants. There and then, the plaintiffs rejected the finding, because they say they only sought a settlement whose finding was only binding on them, if they agreed to it. The defendant held that what they agreed with the plaintiffs was to institute an arbitration into the ownership of the grassland, and so the result was binding on the plaintiffs. Before the inspection party went to inspect the lands, each family paid ¢15.00 to it.
The plaintiffs sued eventually in the Circuit Court about the ownership of the grassland. The Circuit Court decided that what took place was not a valid arbitration in customary law, and so the decision of the arbitr