December 16, 2010
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Authored by Justice F. Kusi-Appiah, this Court of Appeal decision arises from a dispute within the Akpo Kwami family over the sale of two plots from the late Akpo Kwami’s land. The 1st plaintiff, head of the family, and the 2nd, 3rd, and 4th plaintiffs challenged the 1st defendant, Clement Akpo’s sale to the 2nd, 3rd, and 4th defendants, alleging lack of consent. The defendants responded that a prior customary arbitration before Togbe Baduvie, Chief of Peki Tsame, had validly addressed the dispute by directing a sharing of the property per Peki custom and treating the sold plots as part of the 1st defendant’s share. The record showed voluntary submission, payment of customary gin fees, receipt of evidence, and publication of the award. Applying authorities such as Asare v Donkor, Boateng v Manu (No. 2), Kwaw v Awortwi, and Mante v Botwe, the Court held that a valid arbitration bound the parties and estopped re-litigation, affirming the High Court’s dismissal and dismissing the appeal.
KUSI-APPIAH, J. A. :
By their writ of summons the plaintiffs/appellants (hereinafter referred to as the plaintiffs) sued the defendants/respondents (hereinafter also simply referred to as the defendants) claiming:
1 Declaration that the sale of portions of Akpo Kwami family land bounded hereunder by the 1st defendant to 2nd, 3rd and 4th defendants is invalid.
On one side by the property of Togbe Agbley.
On one side by the property of Atiemo.
On one side by the property of Amenu and mama Koboki Tedeku.
On the last side by the property of Atiase Peter.
2 Damages for trespass against 2nd, 3rd and 4th defendants.
3 Recovery of possession.
The facts relied on by the parties to establish their respective claims were not complicated.
The plaintiffs averred by their pleadings that the 1st plaintiff is the head of the Akpo Kwami family whilst the 2nd, 3rd and 4th plaintiffs are children of three deceased male children of the late Akpo Kwami and thus grandchildren and principal members of the said family.
The plaintiff further averred that the late Akpo Kwami died in 1948 and was survived by four children, namely: the 1st plaintiff, 1st defendant and two other women, Magaret Addey and Aurelia Akpo.
According to the plaintiffs, the 1st plaintiff is the eldest of the surviving children whilst the 1st defendant is also the only surviving male child of the late Akpo Kwami.
The main claim of the plaintiffs was that the 1st defendant has sold part (two plots) of the family’s land (the property of the late Akpo Kwami) to the 2nd, 3rd and 4th defendants without the knowledge and consent of the head and principal members of the family.
It was further averred that the 2nd, 3rd and 4th defendants went ahead to purchase the land from the 1st defendant in the face of strong warning by the plaintiffs not to do so, hence this action.
The defendants resisted the plaintiffs claim.
By paragraph 2 of the statement of defence, the defendants contended that the 1st defendant is the current Head of the Akpo Kwami family of Peki Avetile.
The gravamen of the 1st defendant’s defence is that he sold only two plots of land to the 2nd defendant with the tacit consent and knowledge of the 1st plaintiff herein.
Narrating what prompted him to resort to the sale of two plots of land, the 1st defendant averred that sometime ago, he seriously fell sick and needed money to treat himself.
In the process, he consulted his three sisters including the 1st plaintiff and they all agreed