REPUBLIC vs. VE TRADITIONAL COUNCIL; EX PARTE ATSU [1968] GLR 784

CASES REFERRED TO

(1) Yaw v. Amobie (1958) 3 W.A.L.R. 406, C.A.

(2) Twumasi v. Badu (1957) 2 W.A.L.R. 204, W.A.C.A.

(3) Parkin v. Thorold (1852) 16 Beav. 59; 22 L.J. Ch. 170; 16 Jur. 959; 51 E.R. 698. (4) Boadu v. Fosu (1942) 8 W.A.C.A. 187.

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

(6) Kanning v. Pong (1953) 14 W.A.C.A. 244.

NATURE OF PROCEEDINGS

APPLICATION for writ of certiorari to quash the decision of the Ve Traditional Council in a land suit. The facts are sufficiently set out in the ruling.

COUNSEL

I. N. K. Wuaku for the applicant.

F. T. C. Amorin for the plaintiff.

JUDGMENT OF KINGSLEY-NYINAH J.

This is a cause in which the defendant-applicant (hereafter called the applicant) has sued for an order for certiorari on the following grounds:

(i) Want of jurisdiction;

(ii) Breach of natural justice; and (iii) Bias of interest.

The order is sought against the Ve Traditional Council described as “Arbitrary Court of Togbe Delume VI of Ve Traditional Area,” to quash its proceedings of 3 December 1966, in a matter which involved the applicant for certiorari as defendant, and the respondent herein as plaintiff.

Supporting his application for certiorari, the applicant (now deceased), swore to an affidavit, in paragraph (6) whereof he made the following averment:

“when the council met and proceeded to hear and determine the matter of difference between the plaintiff and myself, the council sat as a traditional council and therefore had no jurisdiction to entertain the matter despite the erroneous description of its deliberations as ‘Arbitrary Court of Togbe Delume VI of Ve Traditional Area’.”

In connection with this contention it becomes pertinent to look at section 15(1) of the Chieftaincy Act, 1961 (Act 81), which provides as follows:

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“A Traditional Council shall have jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within its area, not being one to which …. a Paramount Chief is a party.”

From the facts and the evidence before me, there can be no doubt at all, and I find as a fact, that the matter before the Ve Traditional Council was certainly not one that raised any constitutional issues which touched, affected or involved the plaintiff-respondent (hereafter called the respondent) or the defendant-applicant in his or their capacities as Togbewo. And it is clear, also, and I find, further, that the decision that court arrived at was one that affected the private personal interests, in land, of the parties whose dispute it had investigated and determined.

But section 15 of the Chieftaincy Act, 1961, notwithstanding, there is no law anywhere in any of our statutes which precludes either a traditional council vested with the power to inquire into matters affecting the election or installation of any person as a chief, or the claim of any person to be elected or installed as a chief, or any body of traditional chiefs and elders, from constituting itself, or themselves, into an arbitration and settling disputes that have arisen between members within its, or their areas of traditional influence, so that brethren dwell together in unity, and so that peace, goodwill and concord prevail in that area.

Looking at the constitution of the “Arbitrary Court of Togbe Delume VI,” there can be no doubt that it had the full semblance of a traditional council made up, as it was, of chiefs, traditional rulers, elders and linguists. In the peculiar circumstances of this case, however, I hold the view that what is of essential significance is not the composition of the court of Togbe Delume VI, but rather the object and purpose for which it was so constituted and convened,and the nature of the business that it transacted.

The applicant herein readily concedes and admits the fact that there was “a matter of difference” between the respondent herein and himself, and that that matter was adjudicated upon by the body of persons whom he now seeks to impeach. How did that “matter of difference” first come before Togbe Delume VI and his elders? Let us now look at exhibit A, the respondent’s writ of summons. On examining it, we find that even though it is in the form of the ordinary writ such as always triggers off proceedings in our district courts grade II, its essence and content was a native customary summons intentionally primed towards bringing both the “complainant” and the “accused” (defendant) before an assemblage of elders to hear and to settle some grievance. The respondent leaves no doubt at all as to the strictly

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customary nature of his suit because, after particularising the defaults of the applicant, he ended his summons in the following customary manner: “I am making this summons with two bottles of schnapps.” This is in accordance with customary practice.

After very carefully considering all the facts and the evidence before me, I find as a matter of decisive fact, that Togbe Delume VI and the other elders and Togbewo did not sit to conduct any business as the Ve Traditional Council. On the contrary, I am fully persuaded to find as a decisive fact, that his court sat as a body of arbitrators charged with the duty of investigating the plaintiff’s cause, or complaint.

A further close examination of the peculiar circumstances, and of the facts and evidence before me, strongly impels me to find as a fact that at all times material after the dispute had found its way before Togbe Delume VI, the defendant-applicant well knew that the Togbewo and elders who had assembled over that matter of difference deliberated as a court of arbitration, and not as a traditional council. In all the circumstances of this matter, therefore, I find and hold that it does not matter at all by what name Togbe Delume’s court was called. What does matter, really, is the functions it performed and the power and authority it had and exerted over both of the parties to the dispute before it.

On the authority of Yaw v. Amobie (1958) 3 W.A.L.R. 406, C.A. and having particular regard to the evidence on the affidavits and the supporting exhibits before me, I have no difficulty at all in coming to the firm conclusion of fact that the applicant voluntarily submitted himself to the jurisdiction of the court held under the presidency of Togbe Delume VI, a court which he, the said applicant, well knew had met to inquire into the respondent’s complaint against him. The conduct of the applicant in obeying the summons of that court; in presenting himself before that court; in sitting throughout the proceedings and taking an active and interested part therein, right up to judgment – all this is proof positive and convincing which cannot admit of any other interpretation but that the applicant herein not only freely consented to the jurisdiction and authority of that court, but that he also agreed and was willing to be bound by its decision: see Twumasi v. Badu (1957)2 W.A.L.R. 204, W.A.C.A.

Consent to submit to and be bound by the decision of the arbitrators is one of the essential elements and characteristics of a valid customary arbitration. It is my considered opinion that the consent need not be expressly given or uttered by the parties. It is enough if it can be reasonably inferred from the facts of the case, the conduct of the parties, and the circumstances of the case.

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In this instant application, the defendant has failed to show by any satisfactory evidence, or at all, that he was never allowed by the court to state his case adequately, or at all. Apropos of this, it is significant to note that everything necessary to be done to give him notice of the respondent’s summons was regularly and properly done. I am satisfied that the principles of natural justice were, quite clearly, complied with, the evidence showing that on receipt of the respondent’s summons, the applicant was enabled, and permitted, promptly, to join issue with the respondent by means of his counterclaim.

That counterclaim, I find, discloses a fact of telling significance against the applicant herein. In that cross-complaint, the applicant made reference to some prior proceedings wherein he, the said applicant, and others, “summoned” this instant respondent, “at the arbitrary court of Togbe Akortia.” This is from exhibit B produced by the applicant in support of his petition for certiorari. It clearly shows dishonesty, and bad faith in the applicant, and it is detrimental to his application. I hold, therefore, that he cannot now be heard to contend that there is no such body as an arbitrary court. Does it really matter, then, by what name the gathering of elders was called if, as I have already indicated above, its main function was that of listening to the matter in difference between the parties, following the rules of customary and traditional practice, and those of natural justice, and coming to a fair decision based upon the issues raised by the parties before them? It is not for nothing, therefore, that equity is said to pay more attention to the substance of things rather than to the mere form thereof. See the case of Parkin v. Thorold (1852) 16 Beav., 59 at pp. 66-67 where it was stated that:

“But Courts of Equity made a distinction in all cases between that which is matter of substance and that which is matter of form; and if it find that by insisting on the form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat the substance.”

See also, the case of Boadu v. Fosu (1942) 8 W.A.C.A. 187, where the headnote states: “On appeals from Native Tribunals it is necessary to look at the substance of the claim rather than at the form of the writ.”

I accept the affidavit of Sammy Kwasi Doe (the pupil teacher who was merely invited to act as a recorder of the proceedings), as convincing evidence that Togbe Delume VI and his councillors met and acted as an arbitration. If, therefore, the present applicant once saw it fit and proper to sue his plaint before a body of traditional elders in, and of, his locality known as and called the “Arbitrary Court of [p.789] of [1968] GLR 784

Togbe Akortia,” then, by the very same token, the present respondent had equal right and justification in seeking the help of the “Arbitrary Court of Togbe Delume VI.”

The applicant, I am fully convinced and satisfied, believed in the power of Togbe Delume VI’s court. He submitted his counterclaim to that court; he must now accept the decision of that court of his own choice. He cannot now, and he must not, therefore, be permitted to resile from its decision, simply because it has turned out to be unfavorable to him. In these circumstances, I hold that it becomes the legal duty of Martin Atsu, the applicant herein, to stay with,and to accept the judgment or decision of the “Arbitrary Court of Togbe Delume VI,” and not to try to discredit and upset it or run away from it, through the medium of certiorari: see Budu II v. Caesar [1959] G.L.R. 410 at p.413 et seq., where Ollennu J. (as he then was) stated the law thus, inter alia,”In the case of arbitration, the award is binding upon the parties to it; whether or not they accept it. the parties cannot resile after the award has been published.”

Relating the results of the proceedings before the Arbitrary Court of Togbe Delume VI, to the substance of the respondent’s summons, and considering these against the background of the other facts and the peculiar circumstances of the case, I am persuaded to find and to hold, that Togbe Delume VI, and his elders and councillors, acted properly and never exceeded their jurisdiction. And I am furthermore satisfied that their judgment was a decision on the merits of the complaint, and of the counterclaim, lodged with them by the parties herein. I hold, therefore, that the arbitration was valid and effective because it conformed to the principles of natural justice and it was not arbitrary. Indeed, the significant fact about this instant application is that the applicant’s attacks are not directed at the substance of the “Arbitrary Court’s” decision. His complaint is centred in the composition of the court at the close of the proceedings.

He contends that some four members of the court were absent when the final decision was taken. He further contends that the decision of the remainder of the members was influenced by Sammy Kwasi Doe, the recorder, who very improperly retired into conclave with the arbitrators. Putting the affidavit to the secretary, or the recorder, and that of the applicant herein on even scales, I am persuaded to find that the facts and the circumstances of this case convincingly preponderate against the applicant who has failed to adduce any evidence clearly showing, or at all, that Sammy Doe is a paid or part-time secretary of the Ve Traditional area; or any evidence showing in what way or manner the recorder, if he did indeed retire with the elders – how he so adversely influenced them as to cause

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them to decide the dispute against him, the applicant herein. Nor has the applicant made any contrary averments by any affidavit, challenging, convincingly or at all, the fact herein therefore admitted, that before the final decision was given, all the remaining arbitrators went on to the disputed parcel of land with both the plaintiff-respondent and the defendant-applicant herein, viewed it and took further evidence. All the applicant has done in this instant matter is to say that at that later stage of the proceedings, the four members he has specifically mentioned in paragraph (4) of his supporting affidavit, “did not attend the hearing on the final day.” It is a fact of telling significance against the applicant herein that he has never ever contended that he raised any objection to the continuance of the proceedings in the explained absence of those four members.

In the circumstances of this case, I am fully satisfied to hold that it was enough that the four members had been with the court, and they had heard both parties right up to the point of the inspection of the locus in quo, at which stage they had fallen out. Up till then, the composition of the court had been consistent and unvaried. An entirely different consideration would have arisen if after the departure of the four named members, Togbe Delume VI had replaced them, at that stage, with some new elders, absolute strangers to the proceedings, who also latterly joined the court in making its decision. It could then have been rightly argued that justice was not manifestly seen to have been done unto the applicant. If there had been any evidence showing that the membership of Togbe Delume’s court was varied after the departure of the four, I would have been bound by the authority of Kanning v. Pong (1953) 14 W.A.C.A. 244 to declare the entire proceedings a nullity.

As matters stood there is convincing data for the inference and the probabilities are strongly present, that before their exit from the arbitration, those four members had made known to their other colleagues whatever views they held for or against the respondent. In the signal absence, therefore, of any evidence to the contrary, the absence of those four members (which still left a significant membership of fifteen), cannot be used as a meritorious contention, or accepted as such, to upset the proceedings or to vitiate the judgment of Togbe Delume’s court. It is not a contention of any substance because the applicant has failed to show in what way the presence of those four members at the final stages would have swung the decision of the court in his favour; or how the absence of those very same four cheated him out, or robbed him, of a judgment he so well merited by reason of the preponderance of the facts and the evidence in his favour. At such tribunals, the decision is always carried by the majority of the elders present.

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It has been from time immemorial customary in our native tribunals for a party, found either guilty or liable, invariably to be penalised with a fine. That customary amercement took various forms, such as the provision of a sheep, or drinks or hard cash. Like present-day costs, those fines were imposed in favour of the successful party to compensate and put him in pocket for various expenses he has incurred and which his victory entitles him to recover from the other party. It is in this regard and context, therefore, that the sum of ¢41.58 shown on exhibit C herein must be considered.

It is my opinion that notwithstanding the fact that proceedings before Togbe Delume VI were essentially a native customary arbitration (which chose to adopt – and was entitled, in fact, to follow procedures known to our established courts if to do so would assist the court more easily to do substantial justice between both parties), that total sum of “¢41.58” was a penalty in the form of costs. As the successful party, the respondent had established a strong, albeit prima facie, claim to a reimbursement for those items of expenditure so clearly shewn upon the face of exhibit C. I hold, therefore, that since the applicant failed to rebut that claim which is rather fully supported by the peculiar circumstances of this case, the applicant is bound to make due payment thereof. And it is irrelevant that the applicant voluntarily absented himself (obviously because judgment had gone against him) “during the hearing of this bill of cost”: exhibit C.

In all the circumstances of this case, then, I find for the respondent and I hold that even if the court of Togbe Delume VI had sat as the Ve Traditional Council, it had full statutory power and right to constitute itself into, and to act, as an arbitration because section 5 of the Chieftaincy Act, 1961 (Act 81), specifically provides as follows:

“(5) The power of any Chief to act extra-judicially as an arbitrator under customary law in any dispute in

respect of which the parties thereto consent to his so acting is hereby preserved.”

(The emphasis is mine).

It is for these reasons, therefore, that I hereby dismiss this application and hold that certiorari does not lie to avail the defendant-applicant herein. Costs are awarded to the respondent against Martin Atsu, the applicant herein, in the sum of 31 guineas or N¢65.10.

DECISION Applicaton dismissed. S.K.T.