GYM v. INSAIDOO [1965] GLR 574

DIVISION: HIGH COURT, SEKONDI

DATE: 10 AUGUST 1965

BEFORE: KORANTENG-ADDOW J.

CASES REFERRED TO

(1) Budu II v. Caesar [1959] G.L.R. 410.

(2) Penin v. Duncan (1869) Sar.F.C.L. 118.

(3) Mphumeya v. R. 1956 Rhodesia and Nyasaland Law Reports(R. & N.) 240.

(4) Neva v. R. 1961 R. & N. 538.

(5) Sastry Velaider Aronegary v. Sembecutty Vaigalie (1881) 6 App.Cas. 364; 44 L.T. 895; sub nom.

Sastry Velaider Aronegary & Sembecutty Sinnepullei v. Kassanader Sambonade 50 L.J.P.C. 28,

P.C.

(6) Kofi v. Mensah (1930) 1 W.A.C.A. 76.

(7) Rakpoweri v. Alawa, Divisional Court, Sekondi, 15 June 1957, unreported.

NATURE OF PROCEEDING

ACTION for the return of chattels seized and detained by the defendant. The facts are set out in the judgment.

COUNSEL

J. K. Polley for the plaintiff.

J. Ofori Boateng for the defendant.

JUDGMENT OF KORANTENG-ADDOW J.

For about four or five years the plaintiff was living and sharing rooms with the defendant at Essikado,

Sekondi, and to all appearances they were husband and wife. According to the plaintiff she was living with the defendant in a state of concubinage, but the defendant on the other hand claims that the plaintiff was his wife. The question of whether the relationship between the parties was one of concubinage or that of a valid customary marriage would have assumed no importance had the event culminating in this suit not arisen to ruffle the even tenor of their relationship.

According to the plaintiff, some time in 1959 her sister, the plaintiff’s first witness was about to leave the town of Sekondi to

[p.576] of [1965] GLR 574 have a baby at Elmina. The said sister therefore left in the plaintiff’s charge and custody her room, all her personal effects and other belongings in a house near the Zongo at Sekondi. Even though the plaintiff’s sister had not left town the plaintiff had taken charge of the room. She had gone to the said room on the fateful day when her sister had left for Kojokrom, a village near Sekondi. When the plaintiff was in her sister’s room the defendant entered the room with some other persons. He pounced on the plaintiff and started beating her up. While this assault was going on the defendant asked his companions to remove all the things in the room. The companions obeyed the defendant’s orders. Personal effects belonging to her sister were taken and carried away. On top of that, the defendant informed the plaintiff that he had seized all the belongings of the plaintiff in the room he shared with the plaintiff at Essikado.

After many abortive demands made by the plaintiff over a period of seven years for the return of her things and those belonging to her sister left in her custody, the plaintiff came to court.

The defendant’s version of the happenings leading to and the facts of the seizure are different. According to him as a result of injuries he sustained in a motor accident he was admitted into hospital some time in

1957. On his return home he discovered that an amount of £G322 which he kept in a secret place in the room he shared with the plaintiff had vanished. He asked the plaintiff about the money but the plaintiff denied any knowledge of it. At the same time he heard that the plaintiff had hired a room in another part of the town and had taken some of her own things and certain things belonging to him into the said room.

According to the defendant he reported the matter of the loss of his money and other belongings to the police and also passed on the information he had had about the whereabout of the stolen articles to the police. He took the police to the room where he heard the plaintiff had hidden the things. There he and the police discovered the missing articles. The police therefore took possession of them after they had taken an inventory. At the police station the defendant alleges, “the inspector told me to take the things away because the matter involved was a matter between husband and wife. I therefore took them away and gave them to my father to keep.”

Both parties agree that after the seizure of the articles the matter came before some elders for settlement.

The important said elders were Opanyin Kwadjo Abaka, Nana Anaisie III, the former Omanhene of Dutch

Sekondi, Osafohene Gyasi (the first defence witness) and Mr. Kwofie (the plaintiff’s second witness).

There is however a good deal of conflict about the happenings at the meeting as well as the result. There is even a doubt as to how the matter found its

[p.577] of [1965] GLR 574 way before the elders. According to the plaintiff it was the defendant who made a complaint to the elders.

According to the defendant however the matter was withdrawn from the police station at the request of the plaintiff or the members of the plaintiff’s family.

As to the happenings before the elders there is first of all a dispute as to the nature of the complaint. The defendant says: “I told the meeting that I had lost an amount of £G322. The plaintiff admitted having taken the amount. She said she had given £G30 to her mother and £G52 to Ata Tandoh to buy silk cloth for her. The members of the plaintiff’s family promised to refund my £G322 in a fortnight’s time. I agreed but they never turned up.

The arbitrators said that when the amount is brought they would settle the matter and see to it that I returned the things I had taken.”

According to the plaintiff the sum of money the defendant claimed was an amount of £G63. She says:

“The defendant told me that I had his money in my possession and that he would only give me back my personal belongings if I refunded his money to him. The money he referred to was an amount of £G63 he gave me for safe-keeping and which he has in fact had back. The defendant lodged a complaint with some elders, Mr. Kojo, Osafohene Gyasi and Chief Atta. The elders went into the matter and decided that the defendant should produce the goods in his possession on the next day which was a Monday. The elders met on the Monday but the defendant failed to attend the meeting and did not produce the things.”

As to the conclusion of the matter before the elders it is apparent from the quotations above that the meeting fizzled out and nothing was decided in the meantime until the parties had exchanged “money” and “goods.” From the evidence of Ekua Atta the second defence witness the result of the meeting before the elders was:

“The arbitration said that since the plaintiff admitted knowing something about part of the money – about

£G220 alleged lost, and since they – the plaintiff and the defendant were the only persons occupying the room where the money is alleged to have been stolen, and again since there is no witness about the matter, the plaintiff should pay the amount alleged stolen to the defendant.”

The evidence of the plaintiff that when the defendant and his men entered her sister’s room to collect the contents of the room the defendant beat up and assaulted her was neither challenged nor denied. I therefore accept it. I do not believe the defendant’s

[p.578] of [1965] GLR 574 story that it was the plaintiff’s uncle who asked that the matter be withdrawn from the police station to be settled. I do not even believe that there ever was a complaint to the police which was eventually withdrawn. There is no evidence either about the complaint or its withdrawal. All we have are the bare allegations of the defendant unsupported in any way even though denied by the plaintiff. I believe however the plaintiff’s story that it was the defendant who lodged a complaint to Nana Anaisie III, the former Omanhene of Dutch Sekondi, who, though alive during the hearing of the case, was not called. All

Osafohene Gyasi the first defence witness who was to support the defendant on this score said about the aspect of the matter is, “I was informed by Nana Anaisie III and Nana Kojo Abale that the plaintiff’s uncle called Kwame Asong asked them to remove a complaint from the police station for settlement and that they would wish me to settle it.”

The defendant’s own evidence confirms me in my belief that there was nothing at the police station to be withdrawn. He said in his examination-in-chief:

“They [police] took the things to the police station after an inventory had been taken by one Martin Solomon.

At the police station the inspector told me to take the things away because the matter involved was a matter between husband and wife. I therefore took them away and gave them to my father to keep.”

Assuming that a report was ever made to the police the above piece of evidence shows that the police did not entertain the matter. There was therefore nothing to be withdrawn at a later time. The introduction of the police into the defendant’s story is at best to lend a semblance of legality to the laws of the jungle procedure he adopted.

In his statement of defence, paragraph (3) thereof the defendant avers, “The police took an inventory of the contents of this room and later delivered them to the defendant for safe-keeping”, but at the hearing it turned out that the inventory was not taken by the police but by one Martin Solomon – one of the men who accompanied the defendant. I find it hard to believe that if indeed the police went with the defendant to the room where the “stolen articles” were discovered they would stand by like idle spectators to the drama and watch a private person take charge and take an inventory. If my appraisal of the evidence does injustice or violence to the defendant’s case and if I am wrong, I hold that in these matters the burden of proof which lay on the defendant was not discharged.

I do not believe that if the defendant had an amount £G322 in the room he shared with the plaintiff at the time he was admitted

[p.579] of [1965] GLR 574 in hospital he would not have mentioned the fact to his “wife” because at the time and in fact they were on the best of terms. And again if the defendant had left such an amount in the room and had not mentioned it to the plaintiff I think the very first thing any sensible man would have done on his return from hospital would have been to find out whether the money was safe. According to the defendant he only discovered his loss of the money about two weeks after his discharge from hospital and indeed found after that time also that some of his own belongings and some of his wife’s had been removed.

I believe that there was discussion about an amount of money at the meeting before the elders. There is however a good deal of controversy about the figure that was discussed. The defendant who asserts that he lost £G322 says that he told the meeting that he had lost that amount. His first witness, Osafohene

Gyasi, supports him in that. But his second witness, Ekua Atta, mentions an amount of £G220. The plaintiff and her second witness, Kwofie, mention an amount of £G63. I believe that the defendant asserted at the meeting that he had lost £G322 but I do not believe that the plaintiff admitted having taken the said amount or any part thereof.

I believe the plaintiff’s evidence that she agreed to refund an amount of £G63 the defendant gave her for safe-keeping. If in fact the plaintiff admitted at the meeting that she had taken the amount of £G322 alleged lost in the room she shared with the defendant why could the defendant not assert that fact in his statement of defence? In paragraph (4) thereof the defendant rather asserted among other things, “During the arbitration Nana Kwamena Anaisie III and his friend found that the plaintiff took the money.” I do not believe the defendant and his witness Osafohene Gyasi on that point and I reject their evidence thereon.

If as stated by the second witness for the defendant, Madam Ekua Atta:

“the arbitration said that since the plaintiff admitted knowing something about £G220 alleged lost, and since they – the plaintiff and the defendant – were the only persons occupying the room where the money is alleged to have been stolen, and again since there is no witness about the matter, the plaintiff should pay the amount alleged to be stolen to the defendant,”

(and that is in line with the pleadings) I hold that the finding is perverse and against the principles of equity and law.

This brings me to the question of the character of the meeting which took place before Osafohene Gyasi,

Nana Anaisie III, Mr.

[p.580] of [1965] GLR 574

Kwofie and the other elders. Hitherto I have sedulously refrained from dubbing it an arbitration. If anything at all that meeting was an arbitration properly so called. The elders purported to investigate a matter and to give a decision on the merits but failed in their efforts. They set out to make a finding – to find whether or not the £G322 alleged to have been lost was stolen by the plaintiff.

If as I have already found the plaintiff did not admit having taken the lost money and if according to the pleadings the panel found that the plaintiff “took the money” because as deposed to by Madam Ekua Atta the second defence witness “since the plaintiff and the defendant were the only persons occupying the room where the money is alleged to have been stolen and again since there is no witness about the matter,” then I hold the award was a travesty of justice and a nullity in law.

If the arbitrators reached their conclusion by the method described by the second witness for the defendant then the arbitration ran counter to the principles of equity and customary law. The proceedings would be null and void ab initio. As Ollennu J. (as he then was) succinctly expressed it in Budu II v.

Caesar:1

“If it is shown on the face of proceedings of arbitration according to customary law that the practice and procedure according to custom was not followed, or that no proper judicial hearing took place before an award was made, the proceedings would be null and void ab initio, and would not create any necessity to institute proceedings to have them set aside. It is a fundamental principle of customary law that no person shall be condemned either in respect of his person or his property without being given a fair hearing.”

I hold also that the proceedings before the arbitrators were a nullity in law, being ultra vires and illegal.

The matter the arbitrators purported to try is in the nature of a crime, that is to say, stealing. It is an offence which could only be tried by a court of competent jurisdiction.

Learned counsel for the defendant submitted on this point that no theft could be committed by one spouse against the other under the English common law which is now part of our common law. There is some force in that submission, but it seems to lose sight of the fact that that principle of the English common law is in conflict with the principle of Ghanaian customary law, namely, that one spouse is capable of stealing from the other – stealing by a wife of her husband’s property is one of the main grounds of divorce under the customary law: see the opinion and views expressed by the

[p.581] of [1965] GLR 574

Judicial Assessors in the case of Penin v. Duncan.2

I further rely for support on the Nyasaland cases of Mphumeya v. R.3 and Neva v. R.4 They accord with my views. In the two cases the Nyasaland courts declined to apply the English rule that a wife is incapable of stealing from her husband in a case where parties were married under customary law. The

Anglo-Saxon concept of the unity of personality between husband and wife would not apply because marital relationship under the customary law which is potentially polygamous runs counter to Lord

Penzance’s and the Anglo-Saxon view of the union of one man to one woman for life to the exclusion of all others.

The foregoing submission and argument of learned counsel for the defendant has been based on the contention that the plaintiff and the defendant in this case are husband and wife. The question whether or not the plaintiff was ever married is one of the matters that therefore call for solution in this case. The evidence of the plaintiff is that she lived for many years with the defendant in concubinage and parted company with him some seven years ago. The defendant admits that he lived with the plaintiff as a concubine for some years but that eventually he performed the necessary custom which cemented their relationship into a valid customary marriage. According to the defendant, his father sent a friend of his by name Kwasu Awuki the third defence witness herein to convey the customary drinks and money to an uncle of the plaintiff at Elmina and to ask for the hand of the plaintiff. The third defence witness was called by the defendant to corroborate that aspect of the evidence. His evidence was short and to the point. The main facts are that he is a friend of the defendant and he was living at Wawsa Manso. He first knew the defendant some fourteen years ago. When he knew the defendant he was living with the plaintiff as husband and wife. He went on to say however that some years afterwards he was sent for by the father of the defendant. When he attended the call, the defendant’s father sent him to go and perform the necessary custom and obtain the hand of the plaintiff in marriage for the defendant. He said as he did not know the said uncle of the plaintiff, the defendant accompanied him to Elmina where the uncle was pointed out to him by the defendant. According to the third defence witness he did not know the name of the said uncle of the plaintiff. The evidence goes on to say that the witness handed an amount of £G3 3s. and a bottle of schnapps to the plaintiff’s uncle who accepted the drink and money. In answer to a question from

[p.582] of [1965] GLR 574 the court the witness said, “When they [he and the defendant] went to Elmina the plaintiff was at Sekondi,

She did not accompany them.” The plaintiff’s evidence, and, before that her pleadings, is a denial of the defendant’s averments and evidence.

Publicity, in the absence of writing, is and has been one of the essential features, nay, requirements of customary transactions such as marriage and the conveyance of land. Dr. Danquah in his Akan Laws and

Customs (1928), pp. 147-148 describes the transaction in these terms:

“In the course of time the husband,… would inform his parent or guardian of his intention, and it devolves upon the father, uncle or other guardian, with whom he has been living, to send to the parents of the intended wife, for the purpose of `begging’ them to give their daughter in marriage to his son or nephew as the case may be … He [the father] gives his messenger… `aseda’ or sanction-money, and when the presentation of the girl is made by her parents that money is paid over to Bagua or witnesses present, the husband’s own messengers retaining for their own use half (6s.) of this amount in their capacity as witnesses or Baguafo.”

The detailed account given above of the method of contracting a valid customary marriage illustrates and underscores the importance of publicity.

We may now examine the evidence of the witness of the defendant in the light of the foregoing. It will be noticed that instead of “messengers” he was the only person sent. According to him, and in fact the defendant himself, he (the defendant) accompanied him only to point out the plaintiff’s uncle to him as he did not know the uncle in person. When the uncle was identified to him, according to the third defence witness he handed him the bottle of schnapps and the amount of £G3 3s. The third witness for the defendant is the only witness to the transaction as there were no other witnesses.

In the absence of publicity I am left with no choice but to disbelieve and reject the evidence of the third defence witness and to accept the plaintiff’s version, namely, that she lived with the defendant in a state of concubinage and that no ceremony has ever been performed to consolidate their union into a valid customary marriage. I was invited by learned counsel for the defendant in his submissions to presume marriage from the fact of cohabitation. In support of that contention he referred me to Cross on Evidence

(2nd ed.), p. 119 and to the case of Sastry Velaider Aronegary v. Sembecutty Vaigalie5 and particularly to the statement quoted

[p.583] of [1965] GLR 574 hereunder:

“It was contended by Dr. Phillimore that the presumption of marriage arising from cohabitation with habit and repute did not apply to the case of the Tamils and to Ceylon; but it appears from the authorities which he cited that, according to the Roman-Dutch law, there was a presumption in favour of marriage rather than of concubinage. It does not, therefore, appear to their Lordships that the law of Ceylon is different from that which prevails in this country; namely, that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.”

In that case, the members of the Board of the Privy Council were of the opinion that the trial judge had erred in supposing that it was incumbent on the plaintiff who contended that she had been validly married according to Tamil customs, to prove that a valid marriage had been contracted. That case is distinguishable from the present case. In the Sastry case cited above the cohabitation began with the performance of a marriage ceremony but in the present case both the plaintiff and the defendant admit that their association did not begin with a marriage ceremony. According to the defendant a marriage ceremony took place after they had cohabited for some years. The third defence witness in fact in his evidence says he knew the parties some fourteen years ago but that he was sent by the defendant’s father about nine years ago to perform the marriage ceremony on behalf of the defendant.

Since the cohabitation did not begin with a marriage ceremony it is my view that the presumption of marriage would not arise and that the defendant has to prove affirmatively his contention that he performed the customary marriage ceremony.

It was submitted on behalf of the defendant that in seizing the chattels the defendant was exercising his customary law right of a creditor seizing his debtor’s goods and chattels and retaining them till his claim is satisfied – he referred to Sarbah’s Fanti Customary Laws (2nd ed.), p. 115 in support thereof. In the alternative learned counsel for the defendant also referred to Halsbury’s Laws of England (3rd ed.), Vol.

24, p. 143 and submitted that the defendant in refusing to release the goods was exercising his common law right of lien to enforce a debt owed to him by the plaintiff.

The customary right of seizure relied upon by the defendant is a species of the right called panyarring.

The section in Sarbah at pp. 115-116 referred to and relied upon in his submission by learned counsel for the defendant reads:

[p.584] of [1965] GLR 574

“There are two kinds of Panyarring, namely (a) persons, (b) chattels.

(a) Among the coast tribes and members of the same tribe, panyarring of persons was not customary.

When a member of a different tribe was found in a distant place he was liable to be seized with all his goods, and detained in bondage for a debt due by a member of his tribe till such debt had been paid to the satisfaction of the person or creditor who had so detained him.

(b) A creditor whose claim remains unsatisfied after repeated demands, followed by unfulfilled promises of payment by the debtor, is entitled to seize his debtor’s goods and chattels, usually of a higher value and retain them till his claim is satisfied in full. The creditor has no power or right to sell the goods so seized or to use them; but he is under no obligation to take any special care of them, or to account for their safe custody or keeping.

Panyarring (pronounced payaring) is rather a law than a custom, and although sometimes prostituted to bad purposes, is frequently the only way to recover a just debt. If exercised unlawfully, the amount of damages to be paid as satisfaction is so much as to cause the financial ruin of the wrong-doer.”

This custom of enforcing the payment of debt looks barbarous. It may have served a useful purpose in the olden days when there was no legal machinery for enforcing the payment of debt. But there is no gainsaying the fact that such a method of enforcing payment is a relic of the past. It has no doubt outlived its usefulness. If it has not been abolished it no doubt has fallen into desuetude. It is a practice which would not be upheld by this court. But Sarbah himself tells us that the custom of panyarring has been abolished since 6 March 1844 and refers us to the Bond of 1844 at p. 281 of his second edition. Paragraph

2 of the Bond executed between the Fanti chiefs and Her Majesty’s Government reads as follows,

“Human sacrifices and other barbarous customs, such as panyarring, are abominations and contrary to law.” The right is therefore not available for the defendant.

The fact that no such right of seizure exists in customary law is illustrated by such a case as Kofi v.

Mensah6 a case in which the court had to decide whether or not the vendor of goods (in that case a lorry) could seize the goods to enforce the payment of the debt in respect of the goods. The West African Court of Appeal decided that the creditor has no right of seizure even though the agreement

[p.585] of [1965] GLR 574 between the parties stipulated that the creditor could take possession of the lorry on failure of the debtor to pay the agreed instalments of the debt. The interesting feature of the case is that the West African Court of Appeal held that there is no such right of seizure for the purpose of enforcing payment of such a debt and had this to say7:

“[O]n the authority of Thompson v. Veale, 1896 74 L.T. 130, the Defendant would have no right to seize the lorry on failure of the Plaintiff to pay the instalments, even although the Judge found that the Plaintiff had agreed in his contract to that course, and his only remedy would be to enforce payment of the instalments by action in the courts. This it is agreed is the English law on the subject, and although Mr. Awere argued that the native law was in favour, he has not been able to adduce any authority to support that contention.”

But even before we get as far as panyarring one fundamental question has to be answered. Did the plaintiff owe the defendant a debt at the time of the purported seizure? The defendant’s case is that he left the plaintiff in a room in which he had kept an amount of £G322 when he went to hospital. Two weeks or so after his discharge from hospital he discovered that he had lost the said amount. When he asked the plaintiff she denied any knowledge of the amount. He therefore concluded that she and no other person must have stolen the money. From this he concluded that the plaintiff owed him £G322. How the above narrative crystallizes into a debt beats the imagination and I conclude that the relationship of debtor and creditor never arose between the plaintiff and defendant. Even assuming that the right of panyarring were extant, there would be no debt outstanding at the time the defendant purported to exercise the said right.

His seizure of the goods would therefore be according to native custom wrongful and illegal.

On the question of lien learned counsel for the defendant referred me to the definition of lien but failed to tell me what type of lien the defendant was availing himself of. The evidence is that the plaintiff shared a room with the defendant at the time this cause of action arose about some eight years ago and had her personal belongings in the said room. This aspect of the matter is neither in doubt nor dispute. The plaintiff was therefore in possession of the said goods and chattels. The evidence has it also that the defendant went and seized certain things in a room at the Zongo-Sekondi. The plaintiff says those things belonged to her sister the plaintiff’s first witness and had been left in her custody by her said sister who

[p.586] of [1965] GLR 574 had left to have her baby delivered at Elmina, their home town. The defendant says the said articles belonged to the plaintiff and not her sister, but admits having taken them.

The very passage quoted to me by learned counsel for the defendant from Halsbury’s Laws of England

(3rd ed.), Vol. 24, p. 143, para. 262 says:

“A general lien entitles a person in possession of chattels to retain them until all claims or accounts of the person in possession against the owner of the chattel are satisfied.”

(The emphasis is mine.) The said right can only be exercised over things in one’s possession. At the time the defendant had his imaginary debt he did not have possession of the goods over which he purported to exercise his non-existent right of lien. A lien is the right exercisable by a person over the property of another by way of the enforcement of a right subsisting in such a person against the owner of the property, e.g. the enforcement of the payment of a debt owed by the owner of the property. The right ordinarily arises by implication of law. It arises for instance when chattels of an owner are in the exclusive possession of another for certain specific purposes, e.g. for repairs to be done to them or for the price of them to be paid before delivery, etc. By contract also an owner of a chattel may create a lien over his chattel by way of security. In such a case for the right to accrue it is essential that the person having the right of lien should have some degree of possession or control over the chattel in question. The person in whose favour such a right is created must have a “special” property in a chattel. Without such special property no lien can arise either by the operation of law or by contract. As Adumua-Bossman J. (as he then was) put it in the case of Rakpoweri v. Alawa,8 a judgment of the Divisional Court, Sekondi,

“Possession is a sine qua non to the existence of a lien, and therefore a right of lien claimed but founded on a complete absence of possession or control over a chattel is a legal impossibility.”

The learned judge in the said case made a thorough review of all the important cases on the subject before coming to that conclusion which I respectfully consider to be in line with both the decided cases and principle.

In this present case the defendant had neither the general property of an owner in the goods he seized nor had he any special property on which he could in any way have founded that purported

[p.587] of [1965] GLR 574 right of lien. Even though the goods seized in the room he shared with the plaintiff were in the said room the general property in them still remained in the plaintiff. With regard to those seized in the plaintiff’s sister’s room it is obvious that he had no control over them at the time he took them, and he knew that they did not belong to the plaintiff. In his own evidence he mentions among other things that he took “the personal effects of a child.” There is no evidence that the plaintiff either had a child by the defendant or any other man. Why did the defendant seize those things?

Nor could it be said that the debt in respect of which the defendant seized the articles, the subject-matter herein, arose at the arbitration that according to the defendant took place before Nana Anaisie III at the house of Osafohene Nana Gyasi the first defence witness. If it did then the original seizure and detention of the goods which took place before the arbitration were wrongful.

If the object of the arbitration was to investigate the complaint lodged by the defendant with the police and allegedly withdrawn to be investigated by the arbitrators, namely, whether or not the plaintiff had stolen the amount of £G322 the defendant alleges he left in the room he shared with the plaintiff, then the gathering which had to investigate and decide such a question could be no other but arbitrators in the true sense and not a body to settle a difference between the parties. The question to be tried brooked no compromise and could only be decided and not settled.

One of the essential differences between arbitration and settlement through negotiation is that whereas in a negotiated settlement the body sitting on the matter need not arrive at the conclusion on the merits, in an arbitration properly so called the decision must not be arbitrary but on the merits.

On the question of arbitration the defendant called three witnesses; and the onus was on him to prove the said arbitration and the award arrived at as he based his defence primarily on it. Each of the three witnesses gave a different version of the award. On the question of whether the plaintiff took the amount of £G322 the second witness had this to say:

“The arbitration said that since the plaintiff admitted knowing something about £G220 alleged lost, and since they—the plaintiff and the defendant—were the only persons occupying the room where the money is alleged to have been stolen, and again since there is no witness about the matter the plaintiff should pay the amount alleged to be stolen to the defendant.”

The dominant feature of the evidence is that the defendant said he had no witness and the arbitrators then decided that as he had no

[p.588] of [1965] GLR 574 witness and as the plaintiff was the only person who shared rooms with him she must have stolen the money.

In the result I find the defendant liable on the claim herein and give judgment in favour of the plaintiff thereon and order the defendant to return to the plaintiff the goods and things seized on or before 17

August 1965 or in the alternative to pay the plaintiff the sum of £G728. Costs in favour of the plaintiff are assessed at 150 guineas.

DECISION

Judgment for the plaintiff.

J. D.