DIVISION: IN THE SUPREME COURT
DATE: 13TH MAY, 1963
BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.
CASES REFERRED TO
(1) Moshie v. Fordjour [1962] 2 G.L.R. 74, S.C.
(2) Budu v. Caesar [1959] G.L.R. 410
(3) Ankrah v. Debra and Olaga, Land Court, Accra, March 31, 1954, unreported; (1956) 1 W.A.L.R.
89, W.A.C.A.
(4) Kwasi v. Larbi [1953] A.C. 164, P.C.
(5) Asare v. Donkor [1962] 2 G.L.R. 176, S.C.
(6) Paul v. Kokoo [1962] 2 G.L.R. 213, S.C.
(7) Foli v. Akesse (1931) 2 W.A.C.A. 46, P.C.
(8) Gyesiwa v. Mensah, W.A.C.A., December 10, 1957, unreported.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Apaloo J. reversing a decision of the Berekum Local Court “B” in an action
for enforcement of an alleged customary arbitration award. The facts are sufficiently set out in the
judgment of the Supreme Court.
COUNSEL
P. D. Anin for the appellant.
E. T. Okorley for the respondent.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Apaloo J.
which reversed a decision of the Berekum Local Court “B.” The respondent, plaintiff in the local court,
sued and claimed in effect enforcement of an alleged arbitration award which laid a boundary between the
adjoining lands of the defendant and himself. The defendant denied that there was a binding award of an
arbitration; according to him there was a futile attempt to negotiate a settlement of conflicting claims
made by the parties as to the boundary between their two lands.
After they had heard evidence and inspected the land, the local court came to the conclusion that the
proceedings relied upon by the plaintiff were not a valid arbitration, and that even if they were an
arbitration the arbitrators acted without jurisdiction since upon the evidence they rejected the line claimed
by each party as the boundary, and cut a new line which they considered should be a fair and reasonable
boundary. The High Court reversed those findings of the local court and held that there was a valid
arbitration by customary law, the award of which was binding upon the parties. It held further that even if
the proceedings constituted negotiations for settlement, and not a valid arbitration, the decision thereof
was accepted by the defendant, and he was therefore estopped from disputing the boundary fixed thereby.
Five grounds of appeal were filed and argued; the submissions made thereon were grouped under three
main points, namely, (i) misdirection that what took place was a valid arbitration; (ii) even if there was an
arbitration the arbitrators exceeded their jurisdiction; and (iii) misdirection that the defendant accepted the
decision of the attempted settlement of the dispute between the parties as to their boundary.
[p.421] of [1963] 1 GLR 418
On the issue whether there was a valid arbitration counsel for the defendant dealing with the essentials of
a valid arbitration at customary law, referred us to the judgment of this court in Moshie v. Fordjour,1 in
which the court adopted the decision on this point in Budu v. Caesar,2 to Ankrah v. Debra and Olaga,3
and to Kwasi v. Larbi.4 Those essentials as set out in Budu v. Caesar, supra, are, (i) a voluntary
submission of the dispute by the parties to arbitrators for the purpose of having the dispute decided
informally, but on its merits; (ii) a prior agreement by both parties to accept the award of the arbitrators;
(iii) the award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicial
manner; (iv) the practice and procedure for the time being followed in the native court or tribunal of the
area must be followed as nearly as possible; and (v) publication of the award.
The evidence of the alleged arbitration was given by two witnesses on either side. On the one hand by the
plaintiff and his uncle, who was his second witness, and on the other, by the defendant and his second
witness. The plaintiff said:
“In order to have amicable settlement I complained to one Kojo Kumah, brother of the defendant, to see that
extra judicial settlement between the defendant and me be made. In regard to this settlement, seven people
went into the farm and set up the boundary line between him and me. The arbitration composed of seven
people decided that the orange tree should be owned by the defendant thus the boundary line was put up
straight through the forest. What I mean is that the arbitration decided that the correct boundary should be
placed up into the forest in such a way that the orange tree should be in the farm of the defendant. A few
days ago, on request of the defendant, I went to the farm again and found that the defendant had altered the
boundary.”
The plaintiff’s second witness said in his evidence-in-chief:
“One day I went together with parties in the dispute to set up a boundary line. In all seven people went for the inspection of the boundary. The plaintiff made the arbitration to learn that the defendant had crossed the
forest boundary line. In our inspection we noted that both the plaintiff and the defendant disagreed to their
own boundary line. In order to establish peace we cut the correct boundary line up to the forest, this was
agreed by the two people.” In cross-examination this witness said, “The rum has not been drunk by the arbitration, because the award
does not seem to be genuine to defendant.” The version of the defendant is as follows:
“I met the plaintiff on the road leading to the farm and I put it before him that he had trespassed but that I
was not prepared to enter into litigation with him. I therefore invited the plaintiff in order that the boundary
line
[p.422] of [1963] 1 GLR 418
be put up. The arbitration was composed of Kofi Kumah, Kwabena Mframa, Kwasi Gyatoe, Kwasi Badu,
Asante, Kwasi Duku and a certain youngman whose name is not quite familiar to me. I went with the
arbitrators referred to above. I showed them my portion of the farm, the plaintiff too showed his portion of
the land. The arbitrators themselves decided to cut the boundary line themselves by not relying on our
boundary line. The boundary was cut straight from the stream towards upwards of the forest. The arbitrators
permitted us to raise up any question, but I said that at that moment I had got nothing to say. After the
conclusion we were told to pay seven shillings as rum to validate the decision as demanded by customary
law but I refused to pay my part of three shillings and six pence on the ground that I was not satisfied with
the decision of the arbitration. On my return from a funeral I sent a special bearer to inform the plaintiff and
Opanin Kwasi Badu, his blood uncle, that I was not satisfied with the boundary cut by the arbitrators and that
we should re-assemble for correction and better boundary line but the plaintiff did not agree whilst the
arbitration agreed and the present summons is the result.”
The defendant’s second witness said:
“One day I went with an arbitration to cut a boundary line. After the conclusion of the case the parties said
that they got nothing to say. Seven shillings rum to validate the decision was ordered to be paid by the
parties. One day Opanin Badu, president, got three shillings and six pence from the plaintiff as his share for
safe keeping. After the boundary cutting, the arbitrators said the parties should return home and inform the
president if satisfied or not. On our return home, the defendant, the next day told president that he was not
satisfied with the boundary line cut, and the arbitration decided upon a fresh boundary line.”
One striking feature of the evidence of the alleged arbitration as given by both sides is the complete
absence of any formal submission of the dispute by the parties to arbitration. All that the evidence reveals
is that upon complaint by one or other of the parties, a party of seven men led by the plaintiff’s uncle, his
second witness, went with the parties to the farm in dispute and there each of the parties pointed out to the
seven men, what he alleged to be the boundary between the two lands; the party were unable to accept
what each of the disputants said was the correct boundary, but they had no evidence or material before
them upon which they could determine the real boundary which might well lie between the two extreme
claims made by the parties. Having failed to reach a decision on the dispute, the seven men, in the interest
of peace and harmony, cut an arbitrary line which they hoped would be satisfactory and acceptable to the
parties. They then asked the parties what they had to say about the arbitrary boundary. The defendant said
he had nothing to say at that moment. The party then requested them, i.e. the plaintiff and the defendant,
to go and consider the matter and communicate their decision thereon to the president. The next day the
defendant indicated that the suggested boundary was not acceptable to him. Therefore the party made a
second attempt at a settlement of the dispute but that too failed.
[p.423] of [1963] 1 GLR 418
The learned trial judge found that there was no clear evidence that the parties submitted their dispute to
the seven men to arbitrate upon. We would go further and say that there was no evidence at all of
submission to arbitration. Yet the learned judge after recording the fact that the parties accompanied the
seven men to the farm and were present when the arbitrary line was cut concluded that that was evidence
of submission to arbitration. He said:
“Although there is no clear evidence of it, it seems obvious that they agreed that seven people should set a
boundary between them. These people on the undisputed evidence proceeded to the farm and marked out a
boundary for them. Although the defendant said they deviated from an ancestral boundary . . . There is
evidence of submission to an arbitration and the demarcation of the boundary in the presence of the parties
constituted publication of an award.”
In this the learned judge misdirected himself. The presence of the parties at the farm and the demarcation
of the boundary in their presence is ambiguous; more than one explanation can be given for their
presence. The mere presence of a party to a dispute at a meeting which purports to arbitrate upon a
dispute between him and another person, also present at that meeting, is no conclusive evidence or proof
of submission to arbitration. To constitute submission to arbitration in such circumstances there must be
evidence that the full implications of the purpose of the meeting was explained to each party, and that
with the full knowledge of those implications they each agreed that the person or persons before whom
they appeared should arbitrate upon their dispute and give a decision thereon. The position is fully
explained in two recent judgments of this court, namely Asare v. Donkor,5 and Paul v. Kokoo.6
From the account of the demarcation of the boundary as given above, it is clear that the first essential of
arbitration by customary law, namely, voluntary submission, is absent. The third essential of valid
arbitration is also absent upon the evidence before the court. As already stated the arbitrators rejected the
conflicting claims made by the parties; at the same time they had no evidence upon which they could lay
down what the true boundary between them was; therefore, upon their own showing they took it upon
themselves to cut an entirely fresh boundary not based in any way upon any evidence before them. In this
they acted arbitrarily. They explained their conduct by saying that they did so, “In order to establish
peace.” The learned judge accepting their explanation in that regard said, “There is no reason to believe
that these persons were not doing their best to achieve an equitable balance between the two disputants.
There is no evidence of any impropriety on their part.”
This is not a question of propriety or impropriety, honesty or dishonesty. It is a question of the power or
the scope of jurisdiction of the arbitrators. In this respect arbitration under customary law has the same
[p.424] of [1963] 1 GLR 418
principle as arbitration under the Arbitration Act, 1961.7 In Foli v. Akesse,8 a case of an award by an
arbitration under the Arbitration Ordinance,9 it was held that a boundary so arbitrarily cut was without
jurisdiction. In the course of their judgment their Lordships said10
“As regards excess of jurisdiction, the appellant maintained, in the first place, that, in view of the terms of
the reference, it was only open to the Arbitrator to award one or other of two boundaries, viz., either the
boundary line edged red or that edged green. Their Lordships agree with the learned Judges of the Court
below in rejecting this contention, on the grounds stated by them. These two coloured lines set out the
extreme claims of the parties, but the matter in difference between them was as to the exact line of the
boundary. In their Lordships’ opinion it was open to the Arbitrator; if he found, as matter of title, that the
existing boundary lay between these extremes, to make his award in accordance with such boundary.
In the second place, the appellant maintained that it appeared on the face of the award that the Arbitrator had
laid down a new boundary line, not as matter of existing title, but as a fair demarcation of boundary as
between the parties. If this criticism can be justified, there can be no doubt that the award was beyond the scope of the reference, for the duty of the Arbitrator was to ascertain a boundary existing as matter of title,
and not to lay down a new boundary, however fair that might appear to be in light of the circumstances
disclosed in the evidence.” They concluded as follows11
“Their Lordships are therefore of opinion that the learned Arbitrator has misconceived his duty under the
reference, in respect that by his award he has laid down a new boundary line, based on consideration of what
would be a fair division of the disputed area between the parties. It follows that the award should be set aside
on the ground that the Arbitrator has acted ultra fines compromissi.”
But while an arbitrator exceeded his jurisdiction if he gave a decision not based upon the facts but based
entirely “on consideration of what would be a fair division of the disputed area between the parties,” a
party negotiating a settlement of a dispute would be well within his powers to propose for the
consideration of the parties any decision which in his opinion is fair and reasonable. In his unreported
judgment in Ankrah v. Debra and Olaga,12 which was upheld by the West African Court of Appeal,13
Wilson C.J. described this form of settlement of a dispute as:
“simple investigation of a dispute by a chief and his elders or other persons at which the parties to the dispute
are heard and an attempt is made to negotiate a settlement agreeable to both parties which will obviate any
recourse to violence and prevent the growth of bad feeling amongst members of the community. The essence
of this procedure is the continuing consent
[p.425] of [1963] 1 GLR 418
of the parties to negotiate, so it follows that either may withdraw at any time and need not accept the award.
The essential difference between it and the form of arbitration contemplated by the cases cited above is that
the parties come before the arbitrators for negotiation of a settlement of their dispute, not for an adjudication
on its merits. Prior agreement to be bound by the award is not essential; what really matters is that there
should be subsequent acceptance of the negotiated settlement.”
See also Gyesiwa v. Mensah,14 and Budu v. Caesar.15
For such a decision to be binding and operate as estoppel against any party, it must be shown that it was
accepted by the parties, and that the people who gave the decision had every reason to be satisfied that
their mission had been successful, and that the parties had unequivocably accepted their decision. The
usual thing in customary law is to give the parties time to consider the decision and thereafter to signify
their acceptance of it. Thus other differences between an arbitration award and a decision given by
persons negotiating a settlement of dispute are: that in arbitration the arbitration fee is, as a rule, collected
before the publication of the award, and when the award is published there is no question of the parties
being asked whether or not they are satisfied, while in negotiations for a settlement no fee for delivery of
the decision is collected from any of the parties until after the decision has been announced and accepted;
and after the pronouncement of the decision the parties must be asked whether or not they accept it.
On this question of negotiation for settlement the learned judge held as follows, “Even if what happened
at the farm could not be said to be an arbitration in the strict sense it is at least a negotiated settlement
accepted by the parties.” The evidence on this point is that when the party of seven men announced their
proposed decision they enquired from each party if he had anything to say about it; according to the
plaintiff and his witness the defendant said he agreed to the decision, but later he rejected it; according to
the defendant and his witness the defendant replied that he had nothing to say then, and later he rejected
it. The defendant’s second witness who is the only independent member of the negotiating party who
gave evidence at the trial said that when the proposed decision was announced,
“the arbitrators said that the parties should return home and inform the president if satisfied or not. On our
return home the defendant the next day told the president that he was not satisfied with the boundary line cut
and the arbitration decided upon a fresh boundary line.”
According to the defendant and his witness he did not pay his part of the fee of seven shillings. Even the
president of the alleged arbitration, the plaintiff’s uncle, and his second witness, said that a fee of seven
shillings collected had not been shared among the arbitrators yet as the defendant had not agreed to the
decision.
[p.426] of [1963] 1 GLR 418
The evidence that the parties were asked whether they accepted the decision shows that the proceedings
were nothing but an attempt at making a settlement which would be satisfactory to both parties; and the
evidence of the plaintiff ‘s second witness that the fee collected (which upon the evidence could only
have been paid by the plaintiff alone) had not been shared among the arbitrators, shows that the
negotiators themselves were not satisfied that they had completed their work and that the parties had
accepted their decision. That fact affords corroboration of the evidence of the defendant’s second witness
that the defendant never accepted the decision. Therefore the learned judge erred in holding that the
decision is binding upon the defendant.
It follows that the plaintiff failed to prove the arbitration award upon which he based his claim, and also
failed to prove an accepted negotiated settlement of the boundary between his land and that of the
defendant. The learned judge therefore erred in interfering with the decision of the native court.
For these reasons the appeal is allowed, the judgment of the High Court is set aside including the order as
to costs; and costs paid to be refunded. The judgment of the local court dismissing the plaintiff’s claim is
restored. The appellant will have his costs in the court fixed at £G46 18s. 3d. he will also have his costs in
the High Court to be taxed. Court below to carry out.
DECISION
Appeal allowed.
Local court judgment restored.
J. D.
