HIGH COURT, KUMASI
DATE: 4TH JUNE, 1962
BEFORE: APALOO, J.
CASES REFERRED TO
(1) Edusei v. Denkye (1947) 12 W.A.C.A. 121
(2) Foli v. Akese (1930) 1 W.A.C.A. 1
(3) Re Arbitration between Montgomery, Jones & Co. and Liebenthal (1898) 78 L.T. 406, C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Sekyere Local Court in a land case.
COUNSEL
S. K. K. Sotomey for the defendants-appellants.
I. R. Aboagye for the plaintiffs-respondents.
JUDGMENT OF APALOO J.
This is an appeal from the judgment of the Sekyere Local Court delivered on the 15th June, 1961. In that action, the plaintiff claims against the defendant damages for trespass to a farmstead said to be situated at a place called Boakyi. The local court magistrate non-suited the plaintiff and ordered the land in dispute to be partitioned between the parties.
[p.440] of [1962] 1 GLR 439
It appears from the evidence that the land in dispute is situated between the farms of both parties. The defendant claims that he went on the land on the authority of his maternal uncle by name Kwasi Akoi.
The latter was joined to the suit as a co-defendant on his own application. A Mr. Kofi Ntem who also claimed to have authorised the plaintiff who is his niece to institute the present proceedings also sought to join this action. He was joined as co-plaintiff. The evidence shows that about twenty-two years ago, there was some sort of dispute on the identical piece of land which is the subject-matter of the present dispute between the co-plaintiff and the
defendant. The record shows that the defendant was not in funds to pay the oath fee and no adjudication of the conflicting rights of the parties was made as a result of it. It does seem, however, that consequent upon that oath case, the defendant left off farming on the land in dispute. His uncle, the co-defendant was away from home when this oath case took place. When he returned, he authorised the defendant to cultivate the area. I think his object was to assert his title and test the pulse of the plaintiff and her family. The defendant did so and met on the land the plaintiff and some members of her family. As is only to be expected, a clash occurred between the defendant and members of the plaintiff’s family and both parties soon found themselves in the local authority police station.
It seems that the police dismissed the parties after some admonition, but the scene was clearly set for litigation. A man by name Kofi Forfie who is admitted to be a relation of the plaintiff, aimed at forestalling this. He felt that rather than resort to litigation, the dispute between the parties should be informally decided and settled between them. He accordingly assembled some elders in the locality to investigate this dispute. There can be no doubt that Forfie was behaving perfectly properly and with a high sense of responsibility. A man by name Kwame Brewu was invited by Forfie to preside over this matter. He did. Both parties willingly gave evidence, paid customary rum and after hearing evidence the land was viewed. By common consent, the co-defendant was adjudged to be the owner of the land.
All the parties thought what happened was a customary arbitration. The trial local court magistrate was of the same view. The reason why the co-plaintiff sued irrespective of the finding against himself was put in his own words as follows: “Yes, I have recently held an arbitration with you in respect of the same farmstead before Kwame Brewu but I was not satisfied, hence this action.”
As I have said the local court magistrate was of opinion that what transpired between the parties was a binding customary arbitration and he felt satisfied that the parties submitted to it. It turned out from the evidence, however, that a Mr. Osei Kojo, the Atipenhene of Beposo who was one of the parties who sat on this matter, was not present when the locus was viewed, but was present when the award was published. The magistrate thought this was fatal to the validity of the award and proceeded to annul it. He said: “This is bad in procedure and the decision of the arbitrators is, therefore, nullified by this judgment and hereby revoked and set aside.” Having set the arbitration aside, the magistrate proceeded to hold that “neither party has made any case which entitles him or her to have a complete possession of the disputed area.” He then ordered a partition of the land.
The defendants appeal to this court against that judgment on the main ground that the plaintiff and co-plaintiff were estopped from re-litigating the question of the ownership of the farm in question by
[p.441] of [1962] 1 GLR 439
reason of the admitted award of the arbitration. As a necessary corollary to that argument, counsel also contended that the local court magistrate erred in law in holding that the arbitration proceedings were null and void.
The order of partition was also the subject of complaint by counsel for the appellants. Mr. Aboagye for the respondents conceded that the order of partition in the circumstances of this case was wrong and he did not seek to support it. Although he did not dispute that an award of a customary arbitration could operate as an estoppel per rem judicatam, he contended that what took place in this case was not an arbitration as such but an attempt to arrive at a settlement which he said was unsuccessful. He submitted that the element of consent which is an indispensable ingredient of a valid customary arbitration was absent in this case. This meeting, said counsel, was induced by the so-called arbitrators, and was not the voluntary wish of the parties.
Counsel for the respondents also argued that in any event the award was void inasmuch as it was founded on an alleged ruling of the state council which was devoid of legal backing. He argued that if his submission was accepted, the defendants are estopped by the oath case to which I have already referred, from disputing the plaintiffs’ title. Appreciative of the difficulty in which he was while seeking to defend a judgment which in substance was not in his favour, counsel for the respondents contended that the local court magistrate erred in non-suiting the plaintiffs and submitted that it was a proper case which should be remitted for a rehearing.
With regard to the order for partition, I share the view of counsel and I am also of opinion that the local court magistrate was in error when he made this order which was not sought and did not follow any adjudication to that effect made by him.
As I have said, the local court magistrate annulled the arbitration award because he held that one of the parties to the publication of the award did not attend the viewing. I can find no rule of customary law which justifies such a step. An arbitration is in itself an informal judicial proceeding and to insist on what may well be technicalities, would deprive it of its use. Its principal virtue lies in its informality. Provided nothing is done which sins against the rules of natural justice a court should, I think, be slow in setting aside an arbitration which was properly conducted and in which all the parties were afforded an opportunity of being heard. In Edusei v. Denkye,1(1) the Court of Appeal held that it is not necessary for all the court members trying a case to attend an inspection. A local court is to a certain extent obliged to conduct its proceedings in accordance with fixed rules. If notwithstanding that, it can view a locus without all the sitting panel, how much more an arbitration? I feel no doubt that in annulling the arbitration on the ground which he stated, the local court magistrate was in error. Although the magistrate did not regard that as a ground for annulling the award, the co-plaintiff seeks to resist it on the ground that the award was not based on an independent assessment of the merits of the case by the arbitrators but was wholly founded on an alleged ruling of the state council. That was also the second limb of the submission of counsel for the respondents. In other words, it was said the award cannot be justified
[p.442] of [1962] 1 GLR 439
by the evidence. In my opinion, that point is easily disposed of. In Foli v. Akese2(2) the Court of Appeal held that the ground that an award is mistaken in law or not justified by the evidence is not a ground which can be urged as a reason for setting it aside. In that case, Deane C.J. cited Re Arbitration between Montgomery, Jones & Co. and Liebenthal where Smith, L.J. said: “I for my part have always understood the general rule to be that parties took their arbitrators for better or for worse both as to decisions of fact and decisions of law. That is clearly the law.”3(3)
It is not in dispute that the issue fought in the arbitration, namely, the ownership of the Boakyi farmstead is the same issue canvassed before the magistrate, and clearly the parties are the same.
Accordingly, if the arbitration is valid, as I hold that it is, it estops the plaintiffs from relitigating the ownership of the Boakyi farmstead before the local court. It follows, in my judgment, that the contention of counsel for the appellant is right. The magistrate ought to have held that the plaintiffs were estopped by the arbitration from re-litigating the ownership of the farmstead in dispute, and inasmuch as he held otherwise was clearly in error.
Accordingly, this appeal ought to be and is allowed. The judgment of the local court is set aside. For it, I substitute a judgment dismissing the plaintiffs’ claim. The defendants will have their costs in this court assessed at 35 guineas and in the local court to be taxed.
DECISION
Appeal allowed.
