Division: IN THE HIGH COURT, CAPE COAST
Date: 10 NOVEMBER 1964
Before: LASSEY J
JUDGMENT OF LASSEY J
Lassey J [stated the facts as set out in the headnote and continued:] With respect to the liability of the respondents to the appellant the evidence led at the trial was that after the settlement of the dispute between the appellant and the third respondent had been announced, the fourth respondent, Yaw Adutwim, openly stated that the appellant was in possession of a document and demanded its production. Despite the strong objection raised by the appellant’s caretaker to the production of the said document he was forced under pressure to release it to the respondents. There was evidence which the trial court accepted that the appellant’s caretaker, Yaa Tanoa, objected to the production of the said document on the ground that the fact that the appellant had in his possession a document relating to the land in dispute was never raised as matter of dispute for any decision by the arbitrators, and therefore was outside their province as such. After some heated and angry argument between the members present, including the
third respondent, the said document was eventually handed through one man to the first respondent in his supposed capacity as chairman of the arbitration. The first respondent also delivered the said document by hand to Kyiame, the second respondent, who lit a match which he must obviously have had in his pocket for that purpose, and set fire to the said document of title, and thereby causing its destruction with the approval of all five respondents. It must be noted that there was no dispute on the evidence as to the fact that the document was actually burnt by the second respondent who himself pleaded liable to the appellant’s action for damages in the local court.
When the matter came up before the circuit judge in his appellate capacity for consideration he set aside the finding of the local court magistrate, giving as his reason for so doing that what the respondents had done was a judicial or quasi-judicial act and was therefore privileged. On this ground alone the appeal was allowed and the respondents were absolved from liability to pay to the appellant damages for the wanton destruction of his document of value.
In this court counsel for the appellant contended that apart from the fact that the respondents acting jointly had no legal right to destroy or burn the appellant’s document, they acted quite outside their province even as arbitrators and therefore could not have been protected by any privilege normally accorded to a body of persons properly exercising judicial functions for any wrongful or illegal act committed in the due exercise of such functions.
The principle of law upon which the learned circuit judge appeared to have based his decision raised a very interesting, if not a novel, legal proposition concerning which I have not been able to find any parallel in any of our local decisions as a guide in considering the merits of this appeal. In considering whether or not the respondents could be liable for destroying the document the learned circuit judge assumed that they still exercised the powers of arbitrators when they ordered the document to be destroyed; he must have been led to think this way by the argument presented to him by counsel for the respondents who, in replying to Mr. Sampson Baidoo’s submissions, stated that, as one of the incidental issues which fell for consideration before the arbitrators concerned the ownership of the land on which the third respondent felled the 40 oil palm trees and consequently the right of the third respondent to be
on the land, the arbitrators were perfectly entitled to call for and examine all documents in the possession of the parties to the dispute or their representatives before coming to any conclusion on the matter in dispute which had been referred to them as arbitrators to decide. Counsel for the appellant could not agree with this argument; he contended that even if the arbitrators wished to see the document they had every right to do so, so long as they properly constituted themselves into a valid arbitration at law; even then, counsel argued, their sole duty after examining the document which had been produced by the appellant’s caretaker was that if in their opinion the document appeared illegal or was a forgery, all they had power to do as arbitrators was to make their finding as such, but not to order the document to be destroyed; learned counsel for the appellant, very properly, in my view, contended that at the time the appellant’s document was produced and burnt, the arbitrators had finished their job in respect of the specific matter of the dispute which had been voluntarily submitted to them for settlement, and that having made known their decision on that particular matter they had become functi officio. He therefore submitted that the respondents could not have had any legal justification in calling for the appellant’s document and wilfully ordering or causing its destruction by fire. With this submission I am in full agreement, as the evidence led at the trial afforded ample support for this contention. In my opinion, if the evidence showed that at the time that the document was ordered to be burnt, and when it was in fact burnt, the arbitrators were still seised of the real matter in dispute which had been referred to them for their decision and still continued to exercise their judicial powers or functions, then in the absence of any evidence of any mala fides on their part they would be entitled to the protection of privilege for their wrongful or illegal act.
In this country there are statutory provisions in the nature of rules and regulations by virtue of which the members of tribunals exercising proper judicial functions and all officers whose duty it is to execute their orders are protected from being sued by any aggrieved party or parties who may have suffered some damage resulting from any illegal act or conduct on the part of a tribunal member. It must be stressed that the protection of privilege is only afforded where the particular tribunal or its officers act illegally but in good faith in the due performance of their judicial functions.
The importance of the practice whereby natives of this country constitute themselves into ad hoc tribunals popularly known and called arbitrations for the purpose of amicably settling disputes informally between themselves or their neighbours has long been recognised as an essential part of our legal system; provided all the essential characteristics of holding a valid arbitration are present, the courts will undoubtedly enforce any valid awards published by such ad hoc bodies. However, on the facts of this particular case, it was not so much the validity or the enforcement of the arbitration award which was in question: it was the conduct of the members of the so-called arbitration that was called in question; the evidence was that the
respondents conducted themselves in such an illegal manner that they were not entitled to enjoy the privilege of protection normally given to persons properly exercising judicial functions.
If all the respondents, excepting, of course, the third respondent, had ordered the destruction of the appellant’s document in the exercise of their judicial function as arbitrators, or had reasonable grounds to believe that they had the necessary jurisdiction which entitled them to act in the manner they did, an action instituted against them for any wrongful act or illegal order made by them in good faith would not succeed. It was not sufficient for the respondents here to say that they thought that they were acting within their right in order to escape liability for the payment of damages for their wrongful act clearly committed outside their province as arbitrators.
Although it has been contended on behalf of the other respondents that they thought they had the jurisdiction or power to order the document to be burnt, the evidence on record was such that this court was satisfied that it was impossible that the respondents could have thought so. It was apparent from the circumstances leading up to the destruction of the document and the manner in which it was done by the second respondent that all the respondents were actuated by malice and or acted in collusion with the third respondent in causing the appellant’s document to be burnt.
The facts showed that the so-called arbitrators, including the first and second respondents, had completed their task and had found the appellant liable; their job as such was at an end; the evidence clearly showed that after the publication of their award all the respondents including the third respondent who was the appellant’s opponent in the dispute, together ordered the appellant’s document to be burnt by the second respondent. In my view, the first, second, fourth and fifth respondents acted in bad faith and in collusion with the third respondent in burning the appellant’s document, and all five of them must be made liable to pay damages for their wrongful and outrageous act. The difficulty which the case presented seemed to have been due to the fact that the learned appellate circuit judge was of the erroneous view that the first and second respondents were still acting under their supposed jurisdiction as arbitrators, and also that the third, fourth and fifth respondents were also members of the said arbitration. This misapprehension might have arisen from the rather irregular manner in which the arbitration was constituted and also from the reckless way in which the evidence showed they proceeded to do business; but the evidence on the whole warranted the conclusion that when the document was burnt by the second respondent in such an outrageous manner it was done with the express approval or the tacit consent of the other respondents so as to make all the respondents liable in damages to the appellant.
In my opinion all the five respondents must be held responsible for the wrong done to the appellant by destroying his said document. This appeal must succeed and is accordingly allowed. The decision of the circuit judge is set aside including the order as to costs, and the judgment of the Breman-Asikuma Local Court given in favour of the appellant including the award of £G55 damages restored. The costs awarded at the circuit court if paid to be refunded to the appellant. I award the successful appellant costs of this appeal fixed at 25 guineas inclusive of counsel’s brief fee of 20 guineas.
Court below to carry out.
DECISION
Appeal allowed.
N.A.Y.
