HIGH COURT, SEKONDI
Date: 28 JANUARY 1971
EDUSEI J
CASES REFERRED TO
(1) Foli v. Akese (1930) 1 W.A.C.A. 1.
(2) Montgomery, Jones & Co. v. Liebenthal & Co. (1898) 78 L.T. 406, C.A.
(3) Saasuo v. Temabi [1962] 1 G.L.R. 439.
[p.289] of [1974] 2 GLR 288
NATURE OF PROCEEDINGS
APPEAL against a decision by a district magistrate, setting aside an arbitration award and upholding the respondent’s counterclaim for damages for misconduct of appellant’s son with respondent’s daughter. The facts are sufficiently stated in the judgment.
COUNSEL
K. E. Amua Sekyi for the appellant.
S. Adubofuor for the respondent.
JUDGEMENT OF EDUSEI J
This is an appeal against the judgment of the District Court Grade II, Bibiani, presided over by his worship Mr. G. K. Quaye, district magistrate grade II.
The defendant’s case was that the plaintiff s son, John Addae, had sexual intercourse with the defendant’s sister, and a child was born. The plaintiff s son, by a letter addressed to his father, denied responsibility for the pregnancy, for he said he could not be the father of the child having regard to the time he had sexual intercourse with the sister of the defendant.
The defendant referred the matter to an arbitration at which the plaintiff s first witness, Nana Adomako Ansah, was the president. There were six other members of the arbitration. The subject-matter of the arbitration was that the defendant was claiming certain sums of money from the plaintiff because his son John Addae had put the defendant’s sister in a family way. The arbitrators went into the matter and decided against the defendant and asked him to pay N02O.1O to the plaintiff which in the nature of things amounted to costs of the arbitration proceedings.
The plaintiff instituted this action to claim this amount, and at the trial both parties were represented by counsel. It turned out that the whole issue depended on whether there was an arbitration or negotiations for a settlement. The trial court decided that there was an arbitration but went on to say that the arbitrators’ decision was not based on the merits of the case and therefore it was not an arbitration and he proceeded to set it aside.
The evidence which the trial magistrate accepted shows that both parties gave evidence and called witnesses in support of their respective claims before the arbitration. This is what the magistrate said: “From the evidence of the plaintiff s first witness and what I have on record I have come to the conclusion that the proceedings were an arbitration and not a negotiation for a settlement.” It does seem that the magistrate later on in his judgment proceeded to say that the decision was not based on the merits and therefore no arbitration took place. It is clear from his judgment that he did not consider the reasons given by the arbitrators as legally sound for their decision; the reasons being that:
(a) both parties were living in the same village and yet when the defendant’s sister gave birth to a child the plaintiff was not informed for some eight months after the event by the defendant; and
[p.290] of [1974] 2 GLR 288
(b) that the defendant named the child and if he knew that it was the child of the plaintiff s son the defendant would have informed the plaintiff.
Without any hesitation, I can only say that the magistrate was wrong, for he was not sitting on appeal over the matter. The contention that the arbitration award cannot be justified by the evidence or even if it is mistaken in law is not a ground for setting aside the award. This principle was made clear in the case of Foli v. Akese (1930) 1 W.A.C.A. 1 where the West African Court of Appeal held that the ground that an award is mistaken in law or not justified by the evidence is not a ground which can be urged as a reason for setting it aside. In that case Deane C.J. cited Montgomery, Jones & Co. v. Liebenthal & Co. (1898) 78 L.T. 406, C.A. where Smith L.J. at p. 408 said:
“I for my part have always understood the general rule to be that the parties took their arbitrators for better or for worse, both as to decisions of fact and decisions of law. That is clearly the law.”
See also Saasuo v. Temabi [1962] 1 G.L.R. 439 where a similar point was urged on Apaloo J. (as he then was), but it was rejected by him.
It must always be borne in mind that an arbitration is in itself an informal judicial proceeding, and provided nothing is done that sins against the rules of natural justice, a court should be very slow in setting aside an arbitration which was properly conducted and in which all the parties were afforded an opportunity of being heard. This fundamental and deep-rooted principle of natural justice was observed in the arbitration in the instant appeal and I cannot understand why the district magistrate could set it aside. I do not, however, find the reasons for the arbitrators’ decision to be wholly without merit. The matter which the defendant himself referred to the arbitration was decided against him, i.e. that the plaintiff was not liable to pay him any money.
In the result I allow the appeal, set aside the judgment appealed from and enter judgment for the plaintiff that the arbitration was binding on the defendant and that the amount of N020.10 was payable by the defendant to the plaintiff for I do not find anything wrong in principle where a successful party to an arbitration, cannot sue to recover what was adjudged to be a reasonable sum for his expenses—like costs awarded by a court of law.
The question of the counterclaim does not in the circumstances arise, for the trial court cannot re-open the matter, because the arbitration which was binding on the parties estops the defendant from re-litigating the issue afresh. In any case, arbitration apart, the defendant’s counterclaim for N0300.00 damages from the plaintiff for his failure to obtain a wife for his son Addae is, in my view, untenable now in this latter part of the twentieth century when social conditions in this country have made some of our customs outmoded and incompatible with the social conscience of the community. The district magistrate who allowed the counterclaim and awarded N0200.00 damages to the defendant based his decision
[p.291] of [1974] 2 GLR 288
on a passage in Sarbah’s Fanti Customary Laws (2nd ed.) at p. 39 of that monumental work where it is stated that:
“Not only is a father liable to maintain his child, but if he fail to obtain a wife for his son on reaching the age of puberty, he is liable for damages arising from the son’s misconduct with any woman.”
A further reading on the same page shows that this custom was not, even in Sarbah’s days, of universal application, and each case had to be decided on the evidence of a particular district. Even if such a custom prevailed in the days of Sarbah, it is undoubtedly true to say that it cannot be the custom now for it is against good conscience to permit it to persist to the present times when present-day children are asserting their freedom of action and thought in diverse ways. If the son is old enough to know what is sex, and in these days when there is nothing esoteric about sex, I cannot see by what stretch of legal ingenuity a parent should be saddled with the son’s irresponsibility.
In the result, the judgment for the counterclaim is also set aside, and it is dismissed. The costs of this appeal are fixed at N05O.OO and the costs below to be taxed.
DECISION
Appeal allowed.
S.Y.B.-B.
