KWAKU ADDO v. GODFRED A. BOADI _ ORS
2004
COURT OF APPEAL
GHANA
CORAM
- ESSILFIE-BONDZIE, J.A. (Presiding)
- GBADEGBE, J.A.
- ANIN YEBOAH, J.A
Areas of Law
- Civil Procedure
- Alternative dispute resolution
- Probate and Succession
2004
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Writing for the Court of Appeal, Anin Yeboah, J.A., reviewed a dispute arising from the purported redistribution of the estate of Opanin Kweku Boadi. The appellant sought to set aside the redistribution, restrain recipients, claim damages for trespass, and obtain a refund paid to the adjudicating panel; the respondent counterclaimed that a customary arbitration validated the redistribution. Mid-trial, the High Court limited evidence to the validity of the arbitration, despite no record of hearing on the application, and later recharacterized the matter as a negotiated settlement, upholding it in the respondent’s favour. The Court of Appeal held that arbitration and negotiated settlement are distinct, and the trial judge erred by substituting an unpleaded theory and by stating he had heard counsel when the record showed no hearing. The court also criticized the failure to address other pleaded issues under Order 36 rule 4, set aside the judgment, and ordered a new trial.
JUDGMENT
ANIN YEBOAH, J. A.
In these proceedings the appellant herein (the plaintiff in the court below) seeks the reversal of the judgment of the court below entered in favour of his adversary, the respondent herein who was the defendant in the trial High Court holden at Akim-Oda. In his action before the trial court the appellant sought an order to set aside what he described as a redistribution of the estate of Opanin Kweku Boadi. In addition to this relief the appellant also sought an order of perpetual injunction against the persons in whose favour the alleged redistribution was done, namely the respondents herein as well as damages for trespass and a refund of the amount paid by him to the panel which conducted the proceedings resulting in the redistribution which provoked the action herein.
This explains why the fourth to the ninth defendants who were members of the panel were made parties to the action. I must say that the reliefs indorsed on the writ as sealed from the registry of the court below included a demand for cost but in my view nothing of any consequence needs be attached to the said claim for it was an incompetent relief; one which is always in the discretion of the court and not a legitimate head of claim. Upon the service on him of the writ the respondent submitted himself to the jurisdiction and also counterclaimed in respect of the proceedings leading to the redistribution of the estate of Opanin Kweku Boadi. In his statement of defence and counterclaim he described the process leading to the redistribution as an arbitration and therefore naturally claimed against the appellant that the said arbitration was regular. In my opinion, the effect of the grounds raised in this appeal is whether having regard to the evidence, the judgment of the trial court was reasonable. This to my mind raises considerations of mixed law and fact turning upon the evaluation of the evidence.
At the end of the pleadings several issues were raised in respect of which directions were taken under Order 30 of the rules of the trial court. Subsequently the matter proceeded to a full-scale trial. In the middle of the evidence of the appellant, a lawyer other than the one known to the record purportedly applied for the setting down of the issue of estoppel by arbitration which was raised against the appellant by the respondent. I wish to note of the said process which was filed by the new counsel that it was one which offended against the rules as to appearan