SUPREME COURT, ACCRA
DATE: 20TH JULY, 1962
BEFORE: KORSAH, C.J., SARKODEE-ADDO AND ADUMUA-BOSSMAN, JJ.S.C.
CASES REFERRED TO
(1) Twumasi v. Badu (1957) 2 W.A.L.R. 204, W.A.C.A.
(2) Gyesiwa v. Mensah, 1947, West African Court of Appeal Cyclostyled Judgments, p. 45
(3) Budu II v. Caesar [1959] G.L.R. 410.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Apaloo, J., sitting in the High Court, Kumasi, wherein he upheld the plaintiff’s claim to a cocoa farm and set aside the judgment of the Ahafo Ano Local Court, Mankranso, given in the defendant’s favour. The facts are sufficiently set out in the judgment of the Supreme Court.
COUNSEL
Hayfron-Benjamin for the appellants.
No appearance for the respondent
[p.75] of [1962] 2 GLR 74
JUDGMENT OF KORSAH C.J.
This is an appeal from judgment of Apaloo, J. sitting in the Land Court, Kumasi, in exercise of its jurisdiction as appellate court from the judgment of the Ahafo Ano Local Court, Mankranso. The Land Court allowed the appeal, and set aside the judgment of the local court which had given judgment for the defendant who is now appellant before this court.
The plaintiff, Kwabena Mosi, by his writ claims for himself and on behalf of his family of Jachie, a declaration of title and possession of one cocoa farm situate at Mankranso, at a place commonly known and called Sowodadiemu. The claim is against the first defendant who is executor and trustee under the will of Kwame Aboah deceased and the second defendant, Abraham Kwasi Adu, beneficiary under the will of the said Kwame Aboah deceased.
The facts have been fully discussed in both the judgments of the local court, and of the Land Court, Kumasi. The learned judge of the Land Court said: “It seems to me that the issues which the trial court was called upon to decide were two, firstly at the date of Aboah’s death was the farm in dispute his exclusive property or was it the property of Nsiah (his predecessor); secondly, did the second defendant submit to an arbitration in which he compromised his rights under the will and accepted partition of the properties by the family . . . The trial magistrate resolved these two issues in favour of the second defendant and proceeded to dismiss the plaintiff’s claim.”
On the first issue, the learned judge said, “As to the finding that at the date of his death Aboah was the sole owner of the property and had full testamentary rights over it, I find abundant evidence to support it,” but on the second issue he said, “The plaintiff’s contention that the magistrate failed to give adequate consideration to the evidence of the arbitration at which the second defendant agreed not to enforce his rights under the will seems to me a formidable one.”
I must disagree with this latter conclusion. On the contrary, there is hardly such evidence as would convince a court that the ordinary principles of voluntary submission to an arbitration had been fulfilled. It will be observed that the plaintiff’s contention throughout has been that the cocoa farm was not the property of the testator, but of his predecessor and was therefore family property; the second defendant, on the other hand, insisted that it was cultivated by the testator and at the date of his death he was the sole owner thereof. The parties having joined issue on the question of title and the court having resolved that question in favour of the second defendant, in order to divest the second defendant of his rights there must be very clear evidence that he voluntarily renounced those rights and divested himself of the property in favour of any particular persons.
I find nowhere in the proceedings such evidence; on the contrary the evidence of the alleged arbitration put forward by the plaintiff is based on the evidence of his third witness Kwaku Atta, who said: “When Opanin Aboah died about a year ago his funeral was celebrated. About sixteen days after the funeral the plaintiff and members of his family including Kofi Fofie and Pensah came to see the Jachihene. They told the Jachihene through me that they learnt the late Aboah made a will bequeathing his properties to the second defendant but the family were not satisfied, in that the properties were not self-acquired by Aboah; that the
[p.76] of [1962] 2 GLR 74
family have agreed to share the estate and disregard the will and they wished the Jachihene’s representative to go and assist them. The Jachihene appointed me, Yaw Kobi and Kwame Asare. We went to plaintiff’s house where all the members of the family including the second defendant, his sister, mother and grandmother were present. We asked the second defendant if it was true that he wished to disregard the will and share the properties again. He replied he did not like litigation.”
It will be observed that it was the plaintiff with other members of the family, not including the defendants, who went and invited the chief who in turn appointed the persons who are alleged to have arbitrated in the matter. This kind of proceeding by which one party requests a chief or an elder to send other persons to settle a dispute has been held in numerous cases in this court not to be a voluntary submission by both parties of a dispute to an arbitration, but at best it may, according to native customary practice, be regarded as negotiation for a settlement. The distinction between this native custom and an arbitration was discussed in Twumasi v. Badu1(1).
(1) where it was held that: “the essential difference between a binding arbitration and a reference to a third party for the purpose of seeking a negotiated settlement is the presence or otherwise of a prior agreement to be bound by the decision of the arbitrator or negotiator. Whether this exists or not is a question of fact to be determined by the evidence: in the present case there was no evidence of a prior agreement to be found.” Also in Gyesiwa v. Mensah2(2).
(2) Verity, Ag. J.A. said inter alia: “It is, however, clear from many decisions that there must be not only a voluntary submission of the matter in dispute but also it must be shown that it was agreed by both parties that the decision of the arbitrators will be accepted as final and binding.” In Budu II v. Caesar3(3).
(3) it was held that: “in customary law there are five essential characteristics of an arbitration, as opposed to negotiations for a settlement, viz (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 burden of proof when an arbitration is alleged is upon the party who relies upon the plea that a proper arbitration has been held and therefore the other party is estopped from re-litigating the matter.
In this case, I am unable to hold that the plaintiff who relies on the alleged arbitration has discharged the burden on him to satisfy the court that the essential requirements of a valid arbitration had been fulfilled. I agree with the view expressed by the local magistrate that the motive for this action was expressed by the plaintiff’s third witness Kwaku Atta, who claims to be the principal arbitrator. He said: “If your relative dies and you have not assisted him during his lifetime you can still inherit him. If he makes a will and the family are not in agreement they can set the will aside and re-share the property. In this case also the family did not agree with the will, hence they shared the property again. I did not ask for the will to be produced and read to me.”
[p.77] of [1962] 2 GLR 74
This court will not encourage these flagrant attempts to defeat the intentions of testators by such spurious evidence of arbitration when those who object to deceased members of their family disposing of their self-acquired properties by will, inveigle beneficiaries to a pre-arranged family meeting and then use what they have done at the meeting as if it was an award of arbitrators. For these reasons I would allow this appeal, set aside the judgment of the Land Court, and restore the judgment of the local magistrate with costs.
JUDGMENT OF SARKODEE-ADDO, J.S.C.
I agree.
JUDGMENT OF ADUMUA-BOSSMAN, J.S.C.
I also agree.
DECISION
Appeal allowed.
Judgment of local court restored.
J.D.
