SUPREME COURT, ACCRA
DATE: 21ST DECEMBER, 1962
BEFORE: VAN LARE, ADUMUA-BOSSMAN AND BLAY, JJ.S.C.
CASES REFERRED TO
(1) Yaw v. Amobie (1958) 3 W.A.L.R. 406
(2) Ayafie v. Banyea (1884) Sar.F.L.R. 38
(3) Mire v. Danso (1924) D.Ct. ‘21-’25, 95
(4) Samuel v. Okyi, Civ. App. 16/47, unreported
(5) Gyesiwa v. Mensah, W.A.C.A., December 10, 1947, unreported
(6) Kwasi v. Larbi (1952) 13 W.A.C.A. 76
(7) Ankra v. Dabra (1956) 1 W.A.L.R. 89
(8) Twumasi v. Badu (1957) 2 W.A.L.R. 204
(9) Yerenchi v. Akuffo (1905) 1 Ren. 362
[p.214] of [1962] 2 GLR 213
NATURE OF PROCEEDINGS
APPEAL from a judgment of Crabbe, J. delivered in the Land Court, Sunyani, reversing a decision of the Brong-Ahafo (South) Local Court at Goaso striking out the plaintiff’s claim on the ground of estoppel per rem judicatam. The facts are sufficiently set out in the judgment of Adumua-Bossman, J.S.C.
COUNSEL
N.Y. B. Adade for the appellants.
V. Owusu for the respondent.
JUDGMENT OF ADUMUA–BOSSMAN J.S.C.
The action resulting in this appeal was instituted by the plaintiff-appellant-respondent (hereinafter shortly referred to as the plaintiff) against the defendants-respondents-appellants (hereinafter referred to as the defendants) in the Brong-Ahafo (South) Local Court at Goaso. The plaintiff alleged that he was the owner of scrub and an adjacent forest situate on land called Asuokokoo Agya on Mim stool land, with boundaries as set out in the summons, but that without his consent, the first defendant sold the said scrub and forest to the second and third defendants, wherefore he claimed declaration of his ownership and an injunction to restrain the defendants from having anything to do with the said land.
Before the trial commenced the second defendant moved the court to “strike out and non-suit the plaintiff on the legal ground of res judicata,” alleging that the dispute had previously been decided in his favour by the award of a customary arbitration made by the Akwaboahene. The plaintiff denied this, and the court held an enquiry into this preliminary issue at which the parties called witnesses; the second defendant called the Akwaboahene and the plaintiff called one Abu. The Akwaboahene’s evidence as to what took place before him which is now relied on as constituting a valid customary arbitration is of such decisive importance, in my view, that I will set out the material portion thereof.
This came after the Akwaboahene had explained that about five months before the action, after he had sent the first defendant to allot a portion of forest land at Asuokokoo on Mim stool land under his control to the second defendant, the plaintiff accompanied by a stool subject one Kwasi Ampofo of Mim, complained to him that it was their lands which the first defendant allotted to the second defendant, and he thereupon sent one Kwasi Wusu to go with them to inspect in order to ascertain the position. Kwasi Wusu verified that the allotment to the second defendant was not near Ampofo’s area; nevertheless the plaintiff alone returned and insisted that it was land allotted to him by Ampofo which was allotted to the second defendant, whereupon, after he had ascertained that in any event the plaintiff had not given any drink for the land, he ordered the plaintiff not to go on the land for the time being until he had sent to re-inspect it and the plaintiff went away. Shortly afterwards however the second defendant came and complained that the plaintiff had felled trees on the land. Then came the evidence relevant to the arbitration, as follows: “I invited both plaintiff and second defendant to meet me in my village. Both met me. When they met I put the second defendant’s complaint to plaintiff. I asked him why I ordered him to depute people to go and view the area which I had allocated to second defendant, as they both were contesting its ownership, and he had gone contrary to my orders by going into it to fell trees therein. I asked plaintiff whether he had cleared the forest, and he replied that he had not but asked Ampofo to cut it for him; I asked him why he had not cleared it but had the audacity of felling trees where someone had cleared without paying for the cost of labour done by
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the person who weeded it, even if the place was for him. He could not answer. I told him that I had allocated first the area to second defendant and had obtained customary drink on it, and why was he worrying me? He then told me that he had offended me. I gave judgment against him for second defendant. He apologised to me. I accepted it. After returning from consultation he pacified me with a bottle of rum. I accepted it and after the acceptance I forgave him. I ordered that I had given the area in dispute to second defendant for which I had obtained drink to pour libation on my stool, so he should not trespass into it again . . . I told him that it was because of the stool that he was going to take the forest, but I was the occupant and I had given it to second defendant; because he found himself faulty and pacified me on the same area, I vested possession of the forest in second defendant.”
Examined by the court he added the following: “How I made the arbitration award, then at present the second defendant is the owner of the area in dispute because I have collected drink to pour libation on the stool of Akwaboa which myself and plaintiff serve under. If two people make a complaint and the first one is not heard and plaintiff apologised, then I have right to order that the area was for defendant, because plaintiff told me that he never weeded there before…. Judgment was not given in the case between plaintiff and second defendant. When plaintiff apologised, then I made my order. According to the order made by me, it is no more necessary to try the complaint lodged.”
After the Akwaboahene’s evidence, the plaintiff’s witness Abu testified that what happened at the meeting was that when the second defendant’s complaint was put to the plaintiff he explained that because messengers sent by the Akwaboahene, as promised, inspected the land without him, that was why he proceeded to fell trees to assert his ownership; that the Akwaboahene asked why he did not report the conduct of his messengers before felling the trees and the plaintiff admitted he was at fault and apologised and pacified the Akwaboahene with one bottle of rum which the latter accepted and then gave back to the plaintiff as a gift.
The trial local court having then to determine whether there had been a valid customary arbitration and award from the evidence of the witnesses above referred to, held as follows: “According to both parties’ witnesses’ evidence the case which second mover [second defendant] sent was not actually judged, but plaintiff was found liable on the same complaint which was made by Akwaboahene on the same land. On that case plaintiff apologised to Akwaboahene. The case which was sent to Akwaboahene by second defendant became sub judice to Akwaboahene’s case which was reported. By the plaintiff [being] faulty to Akwaboahene then it became unnecessary that second defendant’s case was heard…. The plaintiff apologised to Akwaboahene and pacified him before he ordered that the forest land be owned and possessed by second defendant. I am satisfied that the order made in this way was in the way of customal [customary] arbitration procedure, and it is not repugnant to natural justice and custom, because the plaintiff had not then possessed the area in dispute, so I hold an opinion that the arbitration was held to cover the defendant’s complaint against plaintiff, so the motion be upheld.”
The decision as above delivered by the president and concurred in by the other panel members was followed by a plainly erroneous order that “the forest land and adjacent scrub to be owned by second defendant” (which was erroneous because the second defendant had not counterclaimed for that relief) and a final order that: “Case brought by plaintiff
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is struck out.” The plaintiff thereupon appealed to the then existing Land Court, Sunyani, and the appeal came in due course to be argued before Crabbe, J. (as he then was). After hearing arguments he gave judgment in the course of which he referred to the portion of the Akwaboahene’s evidence that: “judgment was not given in the case between plaintiff and second defendant. When plaintiff apologised then I made my order. According to the order made by me it is no longer necessary for me to try the complaint lodged,” then held that: “It seems from the above that the complaint which the plaintiff [rather defendant] made to the Akwaboahene was never investigated on the merits and there was no award . . . In my view, the order made by the Akwaboahene was not an adjudication upon the subject-matter.”
In the result he allowed the appeal and set aside the judgment of the trial court, but by inadvertence made no order to remit the case to the trial court for hearing on the merits.
In this appeal against the judgment of the High Court the main ground argued is that: “The learned judge misdirected himself on the issue of arbitration before the Akwaboahene, for, from the evidence of the Akwaboahene, if believed, there was a proper and concluded arbitration which was binding on all parties.”
Developing this ground, learned counsel referred to the Akwaboahene’s evidence set out supra and argued that if the evidence be believed, it clearly established a customary arbitration. At this stage, the court expressed the opinion that the fact that parties go before an elder following complaint to him by one party against the other, does not necessarily mean that the parties have agreed that their dispute should be arbitrated by him. Counsel thereupon referred to Osei Yaw v. Amobie1(1) and cited the dictum that: “It is very rare for two people who are quarrelling to meet and agree together that they would submit their dispute to arbitration. The usual thing is that one party makes a complaint to somebody, the other party is sent for, and if he agrees, the party to whom the complaint is made arbitrates upon the dispute.”
He contended that in the instant case complaint was made against the plaintiff, he was sent for, and when he attended and the parties met he agreed to an arbitration and the Akwaboahene arbitrated; that he accepted the decision and gave one bottle of rum; that the instant case is therefore covered by that authority. The court observed that as far as the citation is concerned the reading and understanding of the phrase “and if he agrees” imports that the party sent for would be made to understand clearly and distinctly that it was proposed that the elder should arbitrate the dispute about which complaint was lodged, and he, as well as the other party who has complained would have to agree that the dispute between them should be settled by the elder before the elder could properly arbitrate. The phrase can not mean that if the party sent for agrees to go, or answers the call, then it must be taken that he has agreed that there should be an arbitration. The court further drew counsel’s attention to Gyesiwa v. Mensah2(2) which was commented on and adopted in Twumasi v. Badu.3(3) After perusal of these
latter authorities, counsel stated that in view
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of the court’s indication of its views on the question of the arbitration he did not propose to argue further.
In my view, it is to counsel’s credit that he honourably abandoned further arguments for his main contention that the Akwaboahene’s account of what took place before him constituted a valid arbitration was clearly untenable. The local court’s own findings on the subject when they held that: “According to both witnesses’ evidence the case which second mover [second defendant] sent was not actually judged; but the plaintiff was found liable on the same complaint which was made by Akwaboahene on the same land”—is decisively against counsel’s contention, and should have concluded the trial of the preliminary issue in favour of plaintiff. Instead of that, the local court went on to hold that it was satisfied “that the order made in this case was in the way of customal [customary] arbitration procedure and it is not repugnant to natural justice and custom.” That pronouncement, with respect, is meaningless.
The law is now too clearly settled to admit of any dispute or doubt that the only solid foundation of a valid customary arbitration and binding award is the voluntary submission by the disputants, however much they may be quarrelling, of their dispute to a relatively disinterested third party to make a fair investigation into it and give a decision on it for them: See Ayafie v. Banyea4(4); Mire v. Danso5(5); Samuel v. Okyi6(6); Gyesiwa v. Mensah7(7); Kwasi v. Larbi8(8); Ankra v. Dabra9(9) and Twumasi v. Badu.10(10)
In respect of arbitration proceedings originating in a complaint lodged by one party to a chief, elder, or other person, against another party, which may be claimed to be a valid customary arbitration, there is this warning that when a party attends before a chief, elder, or other person because of a complaint made against him, it is difficult to draw the line between his attendance with the intention merely to explain himself or of giving his version of the dispute, on the one hand; and his attendance with the intention of submitting himself to the investigation of the dispute and the giving of a decision upon it by the chief, elder, or other person, on the other hand. An attendance consequent upon an invitation resulting from the lodging of a complaint against a party is undoubtedly an act or conduct which is equivocal and susceptible of two interpretations, more often than not of the interpretation that the party attended to hear the complaint and explain himself only. That is why some of the authorities, for example Gyesiwa v. Mensah and Twumasi v. Badu, supra, deny to proceedings originating in that manner the recognition given to a valid customary arbitration. On the other hand when no complaint has been made against a party and he and the other disputing party together attend before a chief, elder, or other person and request him to investigate a dispute between them and give a decision on it for them, that act is
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obviously unequivocal and susceptible of the only rational interpretation that both voluntarily submitted their dispute to his investigation and adjudication, that is to his arbitration. Where therefore the attendance 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 the dispute was put forward, and more important, that both parties voluntarily and in no uncertain terms expressed their agreement to the proposal. That, it seems to me, is the feature conspicuously lacking in the proceedings before the Akwaboahene in this case.
It only remains to mention, finally, that in any event the Akwaboahene himself was too involved and interested in the dispute to have been qualified to act as arbitrator. “Native Custom” — said Griffiths C.J.,—”generally consists of the performance of the reasonable in the special circumstances of the [particular] case”—see Yerenchi v. Akuffo.11(11) It can hardly be said that the investigation of the dispute between the plaintiff and the second defendant by the Akwaboahene who himself so readily took up the cudgels against the plaintiff as soon as the parties met before him in his village can be considered reasonable. The learned judge who presided at the hearing of the appeal in the Land Court was therefore right in his decision that there was no valid customary arbitration award subsisting to estop the plaintiff from prosecuting his action, and his decision setting aside the judgment of the local court should be affirmed. He omitted however, as already pointed out, to make a consequential order
that the suit should be tried on its merits, which order should now be made. In the result I would affirm the judgment of the High Court, Sunyani, setting aside the judgment of the Brong-Ahafo (South) Local Court, and order that the case be remitted to the said local court for trial on the merits, and would dismiss this appeal.
JUDGMENT OF VAN LARE J.S.C.
I agree.
JUDGMENT OF BLAY J.S.C.
I also agree.
DECISION
Appeal dismissed.
J. D.
