ASANO vs. TAKU AND ANOTHER [1973] 2 GLR 312

CASES REFERRED TO

(1) Adisi v. Construction & Furniture Co. (W.A.) Ltd. of Accra [1963] 2 G.L.R. 42, S.C.

(2) Paul v. Kokoo [1962] 2 G.L.R. 213, S.C.

(3) Twumasi v. Badu (1957) 2 W.A.L.R. 204, W.A.C.A.

(4) Yaw v. Amobie (1958) 3 W.A.L.R. 406, C.A.

(5) Saasuo v. Temabi [1962] 1 G.L.R. 439.

(6) Nyame v. Yeboah [1959] G.L.R. 218.

[p.314] of [1973] 2 GLR 312

(7) Foli v. Akesse (1934) 2 W.A.C.A. 46, P.C.

(8) Appiah v. Addai [1962] 1 G.L.R. 345, S.C.

(9) Appiah v. Okyir [1963] 1 G.L.R. 201.

(10) Vado v. Sempede (1958) 3 W.A.L.R. 35.

NATURE OF PROCEEDINGS

APPEAL against the decision of the trial magistrate, Cape Coast, dismissing the plaintiff’s claim for costs awarded him at an arbitration and upholding the defendants’ claim to set aside the award and making an order for a declaration of title in respect of land over which the said award was made in favour of the plaintiff. The facts are fully set out in the judgment.

COUNSEL

Osei for the appellant.

Carson for the respondents.

JUDGMENT OF EDWARD WIREDU J.

This is an appeal from the decision of the Fante Nyankumasi District Court Grade II dated 25 September 1970. That decision dismissed a claim by the plaintiff-appellant (who shall hereafter be referred to simply as the plaintiff) to enforce costs awarded him at an arbitration presided over by Nana Kwame Nkyi of Assin and upheld a claim by the defendants-respondents (who shall hereafter be referred to as the defendants) to set aside the said award and an order for a declaration of title in respect of a piece of land over which the said award was made in favour of the plaintiff.

The brief facts of this case are that the second defendant is a younger brother of the first defendant. The evidence shows that the plaintiff is the fetish priest of an obosum called Tigare brought to the Ochiso village by the first defendant, the plaintiff and other inhabitants of the village. The obosum was housed in a building in which the plaintiff is staying situate near the disputed land on the outskirts of the village. Some weeks prior to the institution of the plaintiff’s action which has culminated in this appeal the second defendant went to the area in dispute with a view to constructing a house there but he observed that the area had been cleared by the plaintiff who objected to his (second defendant’s) using the place. The second defendant therefore reported the conduct of the plaintiff to his elder brother, the first defendant, who went and challenged the plaintiff. The evidence shows that prior to this confrontation there had been some dispute between the plaintiff and the first defendant about the plaintiff’s occupation of the area as a result of which the land in the area was apportioned by the oman between them. The parties on the evidence appeared to have accepted this apportionment. The events which seem to have sparked off the present action were that when the first defendant went and challenged the plaintiff’s authority for objecting to the second defendant’s presence on the land, he alleged that he put the plaintiff into occupation of the area he occupies and denied the plaintiff’s title to the same. The plaintiff thereupon swore an oath on the defendants to which they responded. Following the response a complaint was made by the plaintiff to the Omanhene Nana Kwame Nkyi who invited the parties and

[p.315] of [1973] 2 GLR 312 he and some of his elders and other members of the oman constituted themselves into an arbitration to determine the issue which provoked the swearing of the oath. The evidence shows that before the matter was gone into each party paid an amount of N¢10.10. After this the plaintiff gave his version of the case. He was cross-examined by the defendants as well as some members of the arbitration. After him the defendants were each called upon to give their version of the story which they did. They also like the plaintiff were cross-examined by some members of the panel of arbitrators after the plaintiff had cross-examined them. The arbitrators did not call witnesses of either party and retired to consider their verdict on the evidence of the parties alone. The evidence shows that during their deliberations the issue of the witnesses was discussed but a majority of the members thought that was unnecessary. Members of the arbitration therefore agreed to exclude the evidence of the witnesses and cae to pronounce their verdict in favour of the plaintiff and the defendants were asked to pay the plaintiff’s expenses or costs assessed at ¢27.00. The defendants refused to pay the costs on the ground that their witnesses were not called to testify at the arbitration. The plaintiff by his present action is seeking to enforce the costs awarded. The defendants resisted the plaintiff’s claim and by their counterclaim claimed as follows:

“(a) An order to set aside the award of the arbitration headed by Nana Kwame Nkyi XII, and his elders at Assin Manso on Sunday the 19th day of July 1970, in the case of Yaw Asumang – plaintiff v. Kwadjo Toku and Kwabena Frempong – defendants as it infringes against the principles of natural justice, equity and law.

(b) A declaration of title to all that piece or portion of land situate, lying and being at Assin Ochiso and bounded as follows: One side by Opanyin Kwame Pong’s house, one side by Kojo Yeboah’s house and one side by the village of Ochiso.”

After hearing evidence from both parties and their witnesses the trial magistrate held as follows:

“After taking considerable time to hear all evidence in both the plaintiff’s claim and the defendant’s counterclaim and considering same carefully, I agree with counsel for the plaintiff that the defendants submitted to the arbitration and the arbitrators decided an issue involving ownership of a piece of land, but the only point worthy of consideration in this case comes under the general core upon which judgment is given in a case, i.e. upon the weight of evidence. The question then is did the arbitration decide upon the weight of evidence that there was no irregularity? The answer is in the negative. It is clear from the evidence on record that the arbitrators refused to call witnesses on either side before giving their decision when parties had gone before the arbitration with witnesses; the reason for so doing is not disclosed in evidence, only that they found it not necessary which the court fails to understand. One can without any

[p.316] of [1973] 2 GLR 312 hesitation call such a decision unjust and irregular, because the arbitrators could not possibly arrive at a proper decision without calling witnesses to support or disprove each other’s case; if that was done then of course the defendants could not resile when the publication of the award turns out to be detrimental to their cause. In the view of this court, all the requisite elements constituting a valid and binding arbitration are not found in the arbitration in this case. I am of the view that the arbitrators erred and that the plaintiff’s claim should fail and therefore fails and is accordingly dismissed. On the counterclaim the defendants could only succeed upon the preponderance of evidence they have so far adduced on record which the plaintiff had not rebutted. I therefore set aside the award of the arbitration and enter judgment for the defendants for a declaration of title. Costs to be taxed.”

It is from this decision that the present appeal has been brought on the following grounds: (1) That the trial magistrate erred in setting aside the arbitration award. (2) That the judgment of the trial magistrate is against the weight of evidence on record. Arguing ground (1) Mr. Osei for the appellant submitted that the evidence led by the plaintiff and his witnesses satisfied the customary law requirements of a valid arbitration and that it was wrong for the trial magistrate to have set aside the award and to have decreed title to the disputed area to the defendants. Counsel contended that the evidence of both parties was heard and an award published on the evidence heard. He argued that failure to allow the witnesses for both sides to give evidence did not prejudice the case of either of them because both were equally denied the right to call witnesses. Counsel contended that the admission by the second defendant that if judgment had gone in their favour they would have been pleased showed that there as no improper conduct on the part of the arbitrators and that the admission also by the first defendant that he knew that judgment was going to be against them showed that he did not fare well with his evidence especially so as no indication was given as to how the minds of the members of the arbitration were before retiring into consultation about their verdict. Counsel therefore contended that the award was valid and that judgment should have been entered for the plaintiff.

On the second ground, learned counsel submitted that the defendants were estopped from re-opening the same case which had been adjudicated upon between themselves and the plaintiff at an arbitration by a fresh action in court. He further argued that even if the award was invalid it was wrong for the trial magistrate to have decreed title to the defendants on their counterclaim since the evidence led in support of their title fell short of the standard required by law. Learned counsel referred to the admission by the first defendant that title to the disputed area was vested in Nana Obu of Esiam and the further admission that it was the oman which cleared and weeded the same area. He also referred to the evidence by the first defendant that the area was not a virgin forest when he saw

[p.317] of [1973] 2 GLR 312 it. Learned counsel therefore contended that the judgment in favour of the defendants in respect of their counterclaim for title was wrong in law.

Replying on behalf of the defendants, Mr. Carson submitted that in order to operate as an estoppel the arbitration relied upon by the plaintiff must be shown to be a valid one. Counsel argued that the matter which went before the omanhene was commenced with the swearing of an oath. Counsel submitted that customary law required that such cases should automatically be referred to the omanhene for determination. He therefore contended that there could not be a voluntary submission where the law enjoins parties to appear before a particular person without leaving the parties with any choice. Counsel argued therefore that since voluntary submission was an essential requirement to prove the existence of a valid arbitration its absence invalidated the award. Finding himself on the case of Adisi v. Construction & Furniture Co. (W.A.) Ltd. of Accra [1963] 2 G.L.R. 42, S.C. he submitted that by failing to call the witnesses for the parties the arbitrators completely ignored the ordinary rules of proper administration of justice and therefore the trial magistrate was right in setting aside the award and giving judgment for the defendants on their counterclaim for title. On the evidence as to title counsel submitted that the plaintiff on the undisputed evidence was a licensee of the first defendant and therefore was precluded by law from challenging the title of his grantor.

In Paul v. Kokoo [1962] 2 G.L.R. 213, S.C. it was held as stated in the headnote that:

“(1) the only solid foundation of a valid customary arbitration and of a binding award is the submission by the disputants of their dispute to a relatively disinterested third party to make a fair investigation into it and give a decision on it …

(2) Where attendance before a chief, elder or other such person is in consequence of an invitation following a complaint it is essential that the evidence should show clearly and distinctly that a proposal to arbitrate was made, and more important, that both parties voluntarily and in no uncertain terms expressed their agreement to the proposal.”

See also Twumasi v. Badu (1957) 2 W.A.L.R. 204, W.A.C.A. The question as to what amounts to a voluntary submission is a question of fact to be determined on the evidence, the conduct of the parties and the circumstances surrounding each individual case: see the case of Yaw v. Amobie (1958) 3 W.A.L.R. 406, C.A. So also is the question of what amounts to a fair investigation a question of fact to be determined on the evidence and the particular facts of each individual case.

In the High Court case of Saasuo v. Temabi [1962] 1 G.L.R. 439, Apaloo J. (as he then was) held as stated in the headnote that “customary arbitrations are informal proceedings and provided the rules of natural justice are observed and all parties offered an opportunity of being heard, a court should be slow to interfere with the award.” Thus even though

[p.318] of [1973] 2 GLR 312 the law requires that the decision of an arbitration must be arrived at on the merits, no formal procedure is required at its proceedings and it is also not on all occasions that the taking of evidence will be required to enable the arbitration to arrive at a fair decision on merits. Thus in the case of Nyame v. Yeboah [1959] G.L.R. 218 where the decision of an arbitration was attacked on the ground that there was nothing to show that evidence was taken to show that the boundary shown by the Beponghene was the path which had been awarded under the name Aworoso Oworobong, Ollennu J. (as he then was) held as summarised in the headnote at p. 219 that”if parties appoint an arbitrator to identify a previously named boundary because they are satisfied that he is acquainted with it of his own knowledge, it is unnecessary that he should take evidence as to its identity.” There are therefore circumstances in which matters in issue may be of such public notoriety that no evidence of witnesses in addition to the case put up by the parties is required to decide which version of the story is the correct one.

In the present case the undisputed evidence shows that the disputed area was cleared and weeded by the oman. There is also undisputed evidence that there had been a previous dispute between the plaintiff and the first defendant before the oman which led to the apportionment of the area between them so that the matter is one of such a public notoriety that the circumstances under which each of them came to possess his portion is no secret. In my judgment therefore the mere failure on the part of the arbitrators to call evidence from witnesses of the parties on the particular facts of this case where they felt that such evidence was unnecessary could not be said to have denied the defendants, who lost, the opportunity of being heard fairly since the plaintiff was also in like manner denied the privilege of the testimony of his witnesses who on the evidence were present. I further do not share the view that the conduct of the arbitrators in this regard completely ignored the ordinary rules of the proper administration of justice. The arbitrators acted equally fairly to both parties and in the words of the second defendant he would have been satisfied if the decision had gone in their favour. The evidence on record shows that not even those members of the arbitration who had earlier on wanted to hear the witnesses suggested or imputed any improper conduct on the part of any member of the arbitration and that they all joined in the publication of the award in favour of the plaintiff. In my judgment therefore the trial magistrate erred in his view that there was a denial of justice because of the failure to call witnesses for the parties and rejecting learned counsel for the defendants’ submission in support of that view. The case of Foli v. Akesse (1934) 2 W.A.C.A. 46, P.C. which decided that, the fact that an award is not justified by the evidence is not a ground for setting aside the said award also stands heavily against the view taken by the trial magistrate as to the weight of evidence.

The next interesting submission by learned counsel for the defendants is the question of voluntary submission. Whilst it is true that customary law requires that whenever an oath is sworn and it is responded to the

[p.319] of [1973] 2 GLR 312 parties are by law enjoined to appear before the ohene, the same is equally true that under such situations the parties to the oath are deemed to have submitted voluntarily to the jurisdiction of the ohene. No one is by law bound to respond to an oath sworn on him and failure to respond to such an oath carries no sanctions against the individual declining to respond. The significance of refusing to respond is to deny the ohene jurisdiction. Counsel’s contention therefore that there was no voluntary submission in the instant case because the appearance before the Omanhene was commenced by the swearing of an oath falls to the ground not only for the above reason but for the reason also that the trial magistrate found as a fact that there was evidence by the defendants themselves to support.

My finding against the two submissions by learned counsel for the defendants concludes the case against the defendants but there remains one other point canvassed by learned counsel for the defendants as to the burden of proof. Counsel submitted that from the nature of the plaintiff’s claim and the defendants’ counterclaim the onus was on the plaintiff who was seeking to enforce an arbitration award to prove its validity. I have no doubt that under normal circumstances the above statement of the law is correct but on the particular facts of this case I think the authorities are against the stand taken by counsel. In the case of Appiah v. Addai [1962] 1 G.L.R. 345, S.C. it was decided that where a party has by his own showing admitted the existence of an arbitration between himself and the other party relating to the same subject-matter in respect of which an award had been made against him and which award he is seeking to set aside, he assumes the burden of doing so and that the issue of estoppel should beraised against him and dealt with even if the other party does not raise it: see also the case of Appiah v. Okyir [1963] 1 G.L.R. 201 at p. 203. In the instant case the defendants like the plaintiff in the Addai case (supra) assumed the dual burden raised by the issue of arbitration and the issue of proving their title. I am satisfied on the evidence on record that the defendants failed in their dual duty and the principle of the law enunciated in Vado v. Sempede (1958) 3 W.A.L.R. 35 should have been invoked against them not to reopen the same case by a fresh action in court.

I will therefore allow the appeal, set aside the judgment appealed from and enter judgment in favour of the plaintiff for the sum claimed in his summons. Costs in favour of the plaintiff in the court below are assessed at ¢45 and in this court assessed at ¢75.

DECISION

Appeal allowed with costs.

S. E. K.