NYAASEMHWE AND ANOTHER v. AFIBIYESAN

JUDGMENT OF ANIN J.A

This is an appeal by the defendants from the concurrent judgments of two lower courts in favour of the plaintiff in a suit for a declaration of title to a parcel of land, two poles square, at Asafoa Gyintu, and for ¢250.00 damages for the defendants’ "wrongful entry and cultivation of food crops upon the said land." On the issue of title, the trial magistrate held that the plaintiff and his witnesses "had proved beyond reasonable doubt that the disputed land was owned by the plaintiff's ancestors”. He also held that there had been a valid arbitration into the land case between the parties which ended in favour of the plaintiff; but that “what disturbed the mind of the court was the absence of the defendants at the inspection.”

The doubt entertained by the magistrate about the legal effect of the defendants' absence at the inspection of the locus in quo was dispelled by the learned judge of the Sekondi High Court who heard the first appeal of the defendants. In a two-page judgment devoted exclusively to the arbitration issue, he held that the magistrate rightly concluded that there had been a valid arbitration, and the defendants were consequently estopped from relitigating the case. The learned judge's decision has been attacked in this appeal on two grounds argued before us by Mr. Mercer, learned counsel, for the defendants. The first ground was that:

“The plaintiff had no cause of action in that according to his own evidence and that of his witnesses, the land in dispute had been granted by his predecessor to the late Busumprah whom the defendants had succeeded and inherited and the defendants were therefore vested with possessory or usufructuary title which they could maintain against their grantor."

The gist of the plaintiff's case was that the disputed land was acquired by his ancestors and that he succeeded his uncle Ntrama who died about ten years before the action and thereby became the owner in possession of the land. He permitted the late Busumprah, to farm on the land. Though he knew that defendants are related to the late Busumpra, nevertheless he had not permitted them to farm on the land. When the defendants trespassed upon the land, he lodged a formal complaint against them before the chief of Hotopo, who in an arbitration award found in the plaintiff's favour.

The plaintiff's nephew and third witness, Ejokosua, corroborated the plaintiff on his allodial title and gave few details about the licence given to the late