TOGBE ADONTSIRI VI vs. ADDO MLORFE & ANOR

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – AD. 2026

CORAM: AMADU JSC (PRESIDING)

KWOFIE JSC

ADJEI-FRIMPONG JSC

AMALEBOBA JSC

ACKAAH-BOAFO JSC

CIVIL APPEAL

NO: J4/18/2026

8TH JULY, 2026

TOGBE ADONTSIRI VI ……… PLAINTIFF/APPELLANT/APPELLANT

VRS

1. ADDO MLORFE DEFENDANTS/RESPONDENTS/

2. KENNEDY KUMAHLOR RESPONDENTS

(A.K.A. TOGBE ADONTSIRI VII)

TEFLE

JUDGMENT

TANKO AMADU, JSC:

Introduction

This appeal invites the Court to consider a question of some importance to the administration of customary arbitration in this country: by what process, and within what limits, may a party who is aggrieved by a customary arbitration award come to the courts to have it set aside. Customary arbitration is among the oldest and most trusted mechanisms of dispute-settlement known to our law, and Parliament has, in Part Three of the Alternative Dispute Resolution Act, 2010 (Act 798), given it for the first time a comprehensive statutory foundation.

That statute not only declares a customary award to be binding; it also prescribes, with precision, the single avenue by which such an award may be impeached. The present appeal turns upon whether that avenue may be disregarded, and the general jurisdiction of the High Court invoked in its stead by an ordinary writ of summons.

The facts giving rise to the appeal lie within a narrow compass, though they are set against a protracted contest for the Adontsiri Stool of the Deh Clan of Tefle. An award of a customary arbitration presided over by the Paramount Chief of the Tefle Traditional Area was made against the Appellant in June 2014. Some eight years later he came to the High Court, Sogakope, not by an application to set the award aside, but by a writ of summons seeking declarations that the award is a nullity for want of voluntary submission and for breach of the rules of natural justice. The High Court dismissed the action, and the Court of Appeal affirmed that dismissal; but both courts did so upon the ground that the action was a cause or matter affecting chieftaincy, and so beyond their jurisdiction.

With respect to the courts below, we are of the view that, the appeal falls to be determined upon an anterior question which neither court considered. Section 112 of Act 798 prescribes the procedure by which a Customary Arbitration Award is to be set aside: an application, by originating motion on notice, to the nearest District, Circuit or High Court, made within three months of the award and confined to defined statutory grounds. The Appellant invoked none of it. Where a statute has laid down a particular procedure for a particular relief, that procedure must be followed; and the failure to follow it is no mere irregularity, but a matter going to the jurisdiction the litigant seeks to invoke. That principle, in our judgment, is decisive of this appeal, and it ought to have been the starting point of the inquiry in the courts below.

The Facts and Background

The Adontsiri Stool of the Deh Clan is a divisional stool within the Tefle Traditional Area. On the death of Togbe Adontsiri V in October 2007 the succession fell into dispute between two gates: the Mlorfe Gate, which put forward the late Sylvanus Chartey Kumahlor, and the Kudze Gate, which put forward the Appellant on the footing that the Stool rotates between the gates. Each gate installed its own candidate, and by late 2010 two men were laying claim to the single Stool of Togbe Adontsiri VI.

The impasse came before Togbe Nakakpo Dugbaza VIII, the Fiaga or Paramount Chief of the Tefle Traditional Area. After a caution to both gates and a reference to the Research Committee of the Volta Regional House of Chiefs, the Fiaga was informed that, the matter lay within his own paramountcy. By a summons letter of 28th February 2014, on its face addressed to both claimants, he called the parties before him and directed each to bring elders to speak for him.

What followed is disputed on the pleadings, though not, as will appear, on the arbitration record itself. The Respondents say, on the strength of that record (Exhibit AM ‘1’, at pages 37 to 55 of the record of appeal), that both gates attended; that Dan Hodzie Kudze of the Appellant’s family was allowed time to settle the matter and failed; that the parties returned and were heard; that the Appellant was represented by Tetteh Adabla Kudze, who gave and tested evidence; and that on 15th June 2014 the panel published an award pronouncing the late Chartey Kumahlor the properly installed Togbe Adontsiri VI. The Appellant says he was never served, never authorised anyone to speak for him, and learnt of the award only in 2015, when it surfaced in an injunction application before the Sogakope Circuit Court.

The Appellant thereafter petitioned the Judicial Committee of the Volta Regional House of Chiefs in 2016 (which he later discontinued), and the Judicial Committee of the National House of Chiefs in 2019 (which, on the uncontradicted evidence, remains pending). Then, on 13th October 2022, he issued the writ of summons in the High Court, Sogakope, out of which this appeal arises, seeking:

A declaration that, there having been no voluntary submission to the arbitration panel, the award is contrary to law and void.

A further declaration that, the award affecting the Plaintiff personally, the failure to hear him offends the rules of natural justice and renders the award void.

A declaration that the award was made without jurisdiction and is void.

An order setting aside the award of 15th June 2014.

A perpetual injunction restraining the Defendants from using the award against the Plaintiff, with costs.

the Application to Dismiss the Suit

The Respondents did not file a defence to the amended writ. They entered a conditional appearance and moved the trial court, in limine, to dismiss the action. Their application rested upon two principal grounds. The first was that, the action, whatever its form, was in substance a cause or matter affecting chieftaincy, and so lay beyond the jurisdiction conferred on the High Court, having regard to Section 57 of the Courts Act, 1993 (Act 459). The second was that, the action was an abuse of the process of the court: the Appellant, it was said, had a petition pending before the Judicial Committee of the National House of Chiefs in which he sought, in substance, the same relief, so that the High Court action offended the rule against lis alibi pendens and amounted to an attempt to litigate the same matter piecemeal and in two fora at once. The Respondents contended, further that, in so far as the action sought to set aside the award, it was out of time.

The Appellant opposed the application by an affidavit in opposition. His answer, in short was that, the action was not a cause or matter affecting chieftaincy at all, but a challenge to the validity of a Customary Arbitration Award on grounds of nullity, which the High Court had jurisdiction to entertain by a fresh action; that it was neither an abuse of process nor caught by lis alibi pendens, the chieftaincy petition and the action to set aside the award being, in his submission, distinct proceedings directed to distinct ends; and that, the award being void, no question of limitation could arise, since a nullity might be impeached at any time.

The Ruling of the Trial High Court

By its ruling dated 17th March 2023 the trial High Court, Sogakope, upheld the application and dismissed the action. The court accepted the whole of the Respondents’ case. It held that, the action was a cause or matter affecting chieftaincy, and that it therefore had no jurisdiction to entertain it; that the action constituted an abuse of the process of the court and offended the rule against lis alibi pendens, the Appellant having a petition pending on the same subject before the National House of Chiefs; that the Appellant was thereby engaged in forum shopping and in the litigation of his grievance in piecemeal fashion; and that, in so far as the action sought to set the award aside, it had been brought out of time. Upon those grounds the suit was dismissed. It is to be observed, and we shall return to it, that the action was thus determined upon a preliminary objection, before pleadings had closed, before any issue was tried, and before any evidence was led.

The Appeal to, and the Judgment of the Court of Appeal

Dissatisfied with that ruling, the Appellant appealed to the Court of Appeal. By its judgment dated 19th December 2024 the Court of Appeal dismissed the appeal. The Court of Appeal rejected the Appellant’s reliance upon AGYARKWA VS. FOLAGIN [2020] GHASC 14 (11 March 2020), holding that case to be distinguishable on the footing that, the challenge there was to a decision already before the High Court, and not to the decision of a customary tribunal touching the question of who should be installed as chief. It then held that, the Appellant’s arguments notwithstanding, the implications of his claim affected the installation and selection of a chief; and that, the Appellant having brought the action in the very Stool name that was itself in dispute, the action was thereby rendered a cause affecting chieftaincy, which ought not to be subject to the original jurisdiction of the courts.

The Court of Appeal went further. Adopting the language of Ocran JSC in IN RE OGUAA PARAMOUNT STOOL; GARBRAH VS. CENTRAL REGIONAL HOUSE OF CHIEFS & HAIZEL [2005-2006] SCGLR 193, it held that the action, however carefully its reliefs were couched, was “a third rail” connecting directly to the question of who was the proper occupant of the disputed stool, and that to grant the reliefs sought would be to affect a ruling of a customary tribunal upon that very question; the matter, it concluded, was better suited to the judicial committees of the Houses of Chiefs than to the courts. Upon the merits of the arbitration, the court held that the Appellant had been represented before the panel by elders who spoke on his behalf, so that at custom he had been given a hearing; and, from the absence of any indication on the record that he had stopped those elders, it drew the presumption that they had duly represented him and had submitted to the arbitration on his behalf. The custom of representation by elders it described as “an innovative way” of ensuring that a candidate’s installation met the basic requirement of being effected by elders. Concluding that it would “not provide any oxygen” to the action, the court dismissed the appeal. It is against that judgment of the Court of Appeal that the Appellant now appeals to this Court.

The Grounds of Appeal

By his notice of appeal of 29th January 2025 the Appellant appealed on six grounds as follows:

(a) The ruling is against the weight of evidence.

(b) The Court of appeal erred when it held that the

Appellant voluntarily submitted to the said arbitration panel.

(c) The Court of Appeal erred when it held that the Appellant was represented by his elders at the tribunal, and therefore, at custom, the Appellant was given a hearing.

(d) The Court of Appeal erred when it endorsed the view or claim of the Fiaga of the Tefle Traditional Area that at custom or per customary law, parties in such chieftaincy disputes did not speak before the tribunal, but rather, were presented by their elders, having regard to the evidence on record.

(e) The Court of Appeal erred when it held that the said suit or case was a cause or matter affecting chieftaincy.

(f) The Court of Appeal erred when it held that the institution of the said suit or case by the Appellant in his stool name rendered the same a cause or matter affecting chieftaincy.

Further grounds of appeal shall be filed upon receipt of the record of appeal.

PRELIMINARY OBSERVATION ON THE GROUNDS OF APPEAL

The first ground is the familiar omnibus ground. Its meaning and requirements are settled. As this Court explained in TUAKWA VS. BOSOM [2001-2002] SCGLR 61, and repeated in DJIN VS. MUSAH BAAKO [2007-2008] 1 SCGLR 686, a ground that the judgment is against the weight of the evidence throws the whole case open and casts on the appellate court the duty to examine the entire record of evidence, to weigh the pieces of evidence led on either side, and to determine whether, on that evidence, the decision can be supported. The appellant who invokes it must point to the specific pieces of evidence on the record which, properly applied, would have produced a different result, or which were wrongly applied against him.

The ground therefore presupposes, as its very foundation, that there was evidence — that is, evidence led at a trial — which the court below weighed. Here there was none. The action was dismissed on a preliminary objection, before pleadings closed and before any hearing on the merits. No witness testified; no exhibit was tendered and admitted in proof of a fact in issue; there is no body of evidence, and so no “weight of evidence,” for this Court to assess. Ground (a) is accordingly not merely unpersuasive; it is incompetent, because it complains of the weight of evidence in a cause that, by reason of its summary determination, never reached evidence at all. It is dismissed. We would add that this misconceived ground is itself a symptom of the deeper defect in the action, to which we now turn.

The other grounds also, while alleging errors, do not disclose the manner in which those errors are being impeached, by way of particularisation. The Rules of Court makes this obligatory. See Rule 6(2)(f) of the Supreme Court Rules, 1996 (C.I. 16). Eventhough these other grounds were improperly formulated, the court, in doing justice to both parties, and bringing this issue to a finality shall focus on their substance.

THE LAW ON CIVIL APPEALS

It is trite that, an appeal is by way of rehearing. It is a firmly settled rule, restated by this Court in TUAKWA VS.. BOSOM [2001-2002] SCGLR 61, and again in DJIN VS. MUSAH BAAKO [2007-2008] 1 SCGLR 686, that an appellate court is under a duty to consider the whole of the record of appeal, to examine and weigh the totality of the evidence, and to satisfy itself that, on a balance of the probabilities, the conclusions of the trial court are reasonably supported by the evidence. Where an appellant complains that the judgment is against the weight of the evidence, the whole case is opened up for review.

In the exercise of that jurisdiction the appellate court is entitled to draw its own inferences from the primary facts, and, where the justice of the case so requires, to arrive at its own conclusions upon the evidence. The rehearing is nonetheless conducted upon the record, and not by a fresh trial; the appellate court does not receive evidence anew, but reviews the evidence already led, together with the judgment appealed from and the grounds of complaint against it.

The rehearing principle is, however, tempered by a proper respect for the advantages enjoyed by the trial court. Where a finding turns upon the credibility of witnesses seen and heard by the trial judge, an appellate court will not lightly disturb it. And where a trial court and a first appellate court have concurred in findings of fact, this Court will not interfere with those concurrent findings unless they are shown to be perverse, or unsupported by the evidence on the record, or reached upon a wrong application of a principle of law, or unless it is demonstrated that the courts below plainly erred in the manner in which they dealt with the evidence.

These principles govern the review of findings of fact. They do not fetter the Court upon a question of law, which the Court determines for itself; and a question going to the jurisdiction of the court, or to the competence of the proceedings, may be raised and considered at any stage, for it goes to the foundation of the action and cannot be cured by the acquiescence of the parties. It is against the background of these principles that we now consider the grounds of appeal.

The Formalities of a Binding Customary Arbitration

Because the questions in this appeal, both the procedural question that decides it and the merits questions we address in the alternative turn upon the law of customary arbitration, it is important to set out that law before applying it.

Customary arbitration is an ancient and valued feature of our legal system. As Ollennu J (as he then was) described it in BUDU II VS. CAESAR [1959] GLR 410 AT 417, it is the reference of a dispute between two or more parties, for determination after hearing both sides in a judicial manner, by a person other than a court of competent jurisdiction. The courts have long enforced valid customary awards: see PONG VS. MANTE [1964] GLR 593.

What makes such an arbitration binding was stated in BUDU II VS. CAESAR (supra), where five essential characteristics were identified: first, a voluntary submission of the dispute by the parties for a decision on the merits; secondly, a prior agreement by both parties to accept the award; thirdly, an award arrived at not arbitrarily but after a hearing of both sides in a judicial manner; fourthly, adherence, as nearly as possible, to the practice and procedure of the local tribunal; and fifthly, publication of the award. This Court has affirmed those requirements repeatedly in DZASIMATU VS. DOKOSI [1993-94] 1 GLR 463, and in REPUBLIC VS. JUDICIAL COMMITTEE OF THE BRONG AHAFO REGIONAL HOUSE OF CHIEFS; EX PARTE OBAAPANIN AMMA MANSAH [2013-2015] 1 GLR 682, where it was emphasised that voluntary submission, prior agreement to be bound and publication are the core requirements, and that whether a party voluntarily submitted is to be judged upon the prevailing circumstances of each case.

Those common-law essentials are now overlaid by, and to be read with, the statutory scheme in Part Three of Act 798, which for the first time places customary arbitration on a legislative footing. Section 89 permits a party to submit a dispute to customary arbitration, but forbids the submission of criminal matters. Section 90 governs how a submission comes about: by Section 90(1), a report of a dispute to a qualified person, followed by a request to that person to help resolve it, constitutes a submission; by section 90(2) and (3), the arbitrator must invite the other party and both parties to pay a fee or token, and it is the payment of that fee or token that constitutes their consent to submit and the appointment of the arbitrator; by section 90(4), the arbitration does not commence where the invited party rejects the invitation by failing to pay; and, importantly, by section 90(6), “a person shall not be forced or coerced” to submit to customary arbitration. Section 93(1) obliges the arbitrator to apply the rules of natural justice and fairness. Section 105 provides that a party may not withdraw once the arbitration is under way. Sections 108 and 109 provide for the form of the award and make it binding on the parties and those claiming through them, without need of registration.

Two points emerge from reading the common law and the statute together, and both matter to this case. The first is that voluntary submission remains the foundation of a binding award, at common law and under section 90 alike; but the statute supplies concrete indicia of it, namely, the report and request, and above all the payment of the fee or token by which the fact of submission may be judged, so that the inquiry is no longer left wholly to inference from attendance. The second is that the manner of the hearing is to follow, as nearly as may be, the custom of the locality (Budu II, fourth essential; section 93), so that what natural justice requires in a customary arbitration is to be measured against the customary mode of proceeding, and not against the forms of the ordinary courts.

The Setting Aside of a Customary Arbitration Award

A customary award, once made and published, is binding: section 109. It does not follow that it is beyond challenge. Both the common law and the statute recognise that an award may be impeached; but they confine the grounds, and the statute prescribes the manner. At common law, an award made without a voluntary submission, or in breach of the rules of natural justice, or by an arbitrator who exceeded his jurisdiction, is not binding: REPUBLIC VS. GA TRADITIONAL COUNCIL; EX PARTE DAMANLEY [1980] GLR 609; and a party may resist or impeach it on those grounds. The statute now gathers these grounds and provides the vehicle.

Section 112 of Act 798 is the provision directly in point. It provides:

112. (1) A party aggrieved by an award may apply to the nearest District, Circuit or High Court to set aside the award on the grounds that the award (a) was made in breach of the rules of natural justice, (b) constitutes a miscarriage of justice, or (c) is in contradiction with the known customs of the area concerned.

(2) An application under subsection (1) shall be made to the court within three months of the award, and on notice to the other party to the arbitration.

Several features of the section deserve to be drawn out, for together they define both the substance and the form of the remedy. As to substance, section 112(1) confines the grounds of challenge to three, and three only: breach of the rules of natural justice; miscarriage of justice; and contradiction with the known customs of the area. A customary award may not be set aside at large, as if on a general appeal on the merits; the aggrieved party must bring his complaint within one of the three statutory grounds. As to forum, the section makes the remedy available in the nearest District, Circuit or High Court, a deliberately accessible and local forum, consonant with the informal and community-rooted character of customary arbitration; the High Court enjoys no monopoly. As to time, Section 112(2) fixes a short limit of three months from the award, reflecting the premium the law places upon finality in customary dispute-settlement; and it is to be noted that, unlike Section 58(4) which governs conventional arbitration awards, Section 112(2) contains no express power in the court to enlarge that period.

As to the manner of invoking the remedy, which is the point on which this appeal turns, Section 112 requires the aggrieved party to apply, on notice, to set the award aside. It does not contemplate a writ of summons and a statement of claim, followed by pleadings, discovery and a plenary trial. It contemplates an application and, since the aggrieved party is not already before the court in any existing suit but comes to invoke the court’s jurisdiction for the first time under statute, that application is necessarily an originating motion on notice, supported by affidavit, to which the other party may respond by affidavit, and which the court determines upon the affidavit evidence and the record of the arbitration. That is the summary and expeditious procedure the statute lays down, and it fits the subject: the court is not to retry the customary dispute, but to examine the award against the three permitted grounds.

It is a settled principle that where a statute prescribes a particular procedure for obtaining a particular relief, that procedure must be followed, and the party may not resort at his election to some other and more general procedure. In BOYEFIO VS. NTHC PROPERTIES LTD. [1996-97] SCGLR 531 this Court held that where an enactment has prescribed a special procedure by which a thing is to be done, it is that procedure alone that is to be followed. The rule is no technicality; it gives effect to the will of Parliament, which, having chosen a procedure, is taken to have intended it. And the consequence of ignoring the prescribed procedure is not a mere irregularity to be waived but a matter going to jurisdiction. In AYIKAI VS. OKAIDJA III [2011] 1 SCGLR 205 Gbadegbe JSC held that where the applicable law prescribes a particular mode of seeking relief, the failure to proceed in that mode “is not only an irregularity but raises an issue that goes to jurisdiction”; and in OWUSU-MENSAH VS. NAPTEX [2017-2020] 2 SCGLR 708 at 711 this Court observed that a court “might have jurisdiction to entertain a cause or matter but the procedure invoking its jurisdiction might deny the court the jurisdiction” where a statute has specially laid down the procedure for redress. Nor may the defect be cured under Order 81 of C.I. 47: KWABENA OBENG VS. KUMASI METROPOLITAN ASSEMBLY (Civil Appeal No. J4/53/2016); NETWORK COMPUTER SYSTEMS LTD. VS. INTELSAT GLOBAL SALES & MARKETING LTD. [2012] 1 SCGLR 218 AT 231, REPUBLIC VS. GHANA NATIONAL GAS COMPANY, EX-PARTE KINGS CITY DEVELOPMENT COMPANY (LANDS COMMISSION INTERESTED PARTY) CIVIL APPEAL NO.J4/61/2021, DATED 15TH DECEMBER 2021 applied.

THE INCOMPETENCE OF THE APPELLANT’S ACTION

Against that framework, the Appellant’s action is easily tested and, with respect, easily found wanting. The award he impugns is a customary arbitration award. His complaint that there was no voluntary submission and that he was condemned unheard is a complaint of breach of the rules of natural justice, the first of the three grounds in section 112(1)(a). The relief he seeks, a declaration of nullity and an order setting the award aside is the relief that section 112 exists to give. In substance, therefore, his action is an application to set aside a customary award for breach of natural justice, and Part Three of Act 798 tells him exactly how such an application is to be made: by originating motion on notice, to the nearest District, Circuit or High Court, within three months of the award.

The Appellant did none of these. He did not move by originating motion on notice; he issued a writ of summons and a statement of claim. He did not proceed within three months; he came to court in October 2022, more than eight years after the award of June 2014. He sought not the summary setting-aside that the statute provides but final declarations of nullity in a plenary action. In short, having a prescribed procedure available to him, he set it aside and fashioned his own. On the authorities we have cited, that was not open to him. His action, being brought otherwise than in the manner the statute prescribes, was incompetent, and the want of a competent procedure went to the very jurisdiction the Appellant sought to invoke.

Article 129(4) of the Constitution, 1992, provides that, for the purposes of hearing and determining a matter within its jurisdiction, “the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.” The effect of the clause is that, on a second appeal, this Court is not confined to remitting a matter with directions; it may itself make the very order that the court below could and should have made. In substance it steps into the shoes of the High Court and exercises that court’s powers directly.

Article 129(4) is, however, an enabling provision of a procedural character. It clothes this Court with the powers of the lower courts so that litigation may be brought to a just and final end without needless remittal; it does not enlarge a litigant’s substantive rights, nor dispense with the substantive conditions Parliament has attached to a jurisdiction. It cannot, therefore, be used to convert the Appellant’s incompetent writ into a competent section 112 application and then to try, in this Court and at first instance, questions that belong to a trial. Article 129(4) supplies power; it does not supply evidence, and it does not cure the absence of a proper originating process.

The High Court, seised of this action, ought to have dismissed it not on the ground of “cause or matter affecting chieftaincy,” which it erroneously made, but rather on the ground that the Appellant had failed to invoke the statutory procedure in section 112 of Act 798. That is the order the High Court had the power, and the duty, to make; and by Article 129(4) this Court has that self-same power, and exercises it now. The just and final course is for this Court to enter the dismissal the High Court should itself have entered.

In the Alternative: the Action Would in Any Event Have Failed on the Merits

What we have said suffices to dispose of the appeal. But the parties argued the merits fully, the questions are of general importance to the law of customary arbitration, and it is right, so that our decision is not thought to rest on a point of procedure alone, that we should say why the action was in any event bound to fail. In doing so we address the merits as they truly stand not through the lens of “cause or matter affecting chieftaincy,” on which the courts below wrongly fixed, but by asking the questions the law of customary arbitration actually poses.

THE CHIEFTAINCY CHARACTER OF THE DISPUTE DID NOT BAR THE SETTING ASIDE OF THE AWARD

We must first clear away the ground on which the courts below decided the case, for it was, with respect, the wrong ground. Those courts held that the action failed because it was a cause or matter affecting chieftaincy. We do not agree that the chieftaincy character of the underlying dispute could, of itself, defeat a challenge to the award. This Court held in EBUSUAPANYIN NTIAKO KOBINA VS. AHANTA TRADITIONAL COUNCIL [2017-2018] 1 SCGLR 340 that a challenge confined to the competence of an adjudicating body of customary origin, and to the lawfulness of its process, is not, without more, an adjudication of the chieftaincy dispute itself; the court is not asked to say who ought to be chief, but whether the body that purported to decide that question was competent and acted lawfully. Section 112 of Act 798 puts the matter beyond doubt, for it expressly empowers the District, Circuit and High Courts to set aside a customary award for breach of natural justice, a power that would be illusory if the mere fact that the award concerned a stool ousted those courts. The broad proposition accepted below, that any challenge to a customary decision touching a stool is for that reason alone a cause or matter affecting chieftaincy, is therefore mistaken, and we would not have upheld the dismissal on that ground.

The true question on the merits, then, is not whether the suit trespassed upon chieftaincy, but whether the customary arbitration was a valid one which resolves, into whether there was a voluntary submission and whether the rules of natural justice were observed. On the arbitration record, we are satisfied that both were made out. We emphasise, before turning to the record, that on this alternative branch we are not called upon to resolve any genuine conflict of oral testimony: the primary facts appear from the arbitration record itself (Exhibit AM ‘1’, pages 37 to 55 of the record of appeal), a document whose contents the Appellant does not dispute. What he disputes is not what the record says happened, but its legal effect, a question of law fit for decision.

VOLUNTARY SUBMISSION

The record discloses the following, none of it contradicted. A dispute existed between the two gates. The Mlorfe Gate lodged a complaint with the Fiaga. The Fiaga invited both gates; and although the Appellant’s gate at first declined to attend on three occasions, both gates did attend upon the summons of 28th February 2014. When the panel began to take evidence, a member of the Appellant’s own family, Dan Hodzie Kudze, sought and obtained leave to withdraw the matter for two weeks to attempt a settlement; on 5th April 2014 he reported that he could not settle it and asked that the panel hear the case; and on 26th April 2014 the parties returned and the arbitration proceeded to an award.

Two features of that history establish voluntary submission. The first is the earlier refusal. The Appellant’s central submission drawn from ASARE VS. DONKOR [1962] 2 GLR 176 and from Dr. Agbosu’s article on customary arbitration, is that attendance upon a chief’s summons cannot be equated with free consent, because a subject cannot safely refuse his chief. The principle is sound, and Section 90(6) of Act 798 gives it statutory force in providing that no person shall be forced or coerced to submit. But the record refutes the premise of the argument as applied to this case. The Appellant’s gate did refuse the Fiaga’s invitation, three times, and no sanction befell them. A party who has shown that he can decline the summons with impunity, and who then chooses to attend, cannot afterwards say that his attendance was compelled. His submission, on the fourth occasion, was in the fullest sense voluntary; the very fact on which the Appellant would rely to show coercion is the fact that disproves it.

The second feature is the conduct of the Appellant’s side once before the panel. It was his own kinsman who asked for time to settle and then, having failed, invited the panel to hear the case. That is not the conduct of a party dragged unwilling to a tribunal; it is the conduct of a party engaging with the process and asking it to proceed. Under Section 90(1) of Act 798 a report of a dispute followed by a request to resolve it constitutes a submission to customary arbitration; and that, through Dan Hodzie Kudze, is exactly what the Appellant’s family did. Section 105, moreover, forbids withdrawal once the arbitration is under way. Clearly, the requirement of voluntary submission was satisfied.

THE RULES OF NATURAL JUSTICE WERE OBSERVED

The Appellant’s natural-justice complaint is that he was condemned unheard, having been neither personally served nor personally present. This misconceives what the audi alteram partem rule requires in a customary arbitration concerning a stool. The rule requires notice and a fair opportunity to be heard; it does not prescribe the manner of the hearing, still less require a party to speak in person where the custom ordains otherwise. As the fourth essential in Budu II and Section 93 of Act 798 make clear, the customary arbitration is to follow the procedure of the locality, and it is against that customary mode, not the forms of the ordinary courts, that the fairness of the hearing is to be measured. Here the summons of 28th February 2014 was addressed to the Appellant and directed the parties to bring their elders to speak for them: he was given notice, and told how, by the custom, he was to be heard.

The uncontradicted record shows that he was so heard. He was represented before the panel by Tetteh Adabla Kudze, who spoke for him, gave evidence and was cross-examined. That Tetteh Adabla Kudze carried the Appellant’s authority is not a matter of presumption but of demonstrated fact: under cross-examination he stated that he had “marked” the Appellant, that is, that he had himself performed the customary act of designating the Appellant as candidate for the very stool in issue. A man does not “mark” a candidate for a stool without the standing to speak to that candidature. The panel itself explained the custom, that the occupant of a stool does not speak in his own defence but is represented by an elder with knowledge of the stool, particularly the Stool Father. To have required the Appellant to speak in person would have been to impose on a customary tribunal a mode of hearing the custom excludes.

The complaint of “non-service” must be seen in the same light. The originating summons named the Appellant and reached his gate, whose elders attended and one of whom, his own kinsman, took an active part. Where an addressee’s accredited representatives appear upon the summons and participate without demur, it is not open to him afterwards to found a case of nullity upon the want of personal service; to do so would elevate form above the substance which the rule of natural justice exists to protect, a fair opportunity to be heard which the Appellant plainly had and took. Section 93(1) of Act 798 required the panel to observe the rules of natural justice and fairness; and it did so, hearing both sides through their elders in the customary manner before publishing its award.

There is no inconsistency between this and our refusal, on the procedural branch, to make findings of fact on an untried record. There the action was incompetent whatever the facts, and it would have been wrong to try contested questions to fill the gap. Here we address the merits only in the alternative and only upon the arbitration record, whose contents the Appellant does not dispute; what he disputes is their legal effect, which on full argument we are entitled and bound to determine. Determining it, we hold that had the Appellant come to the court by the proper Section 112 procedure his action must still have failed: there was a valid customary arbitration, to which he voluntarily submitted and at which he was heard, and no ground existed under Section 112(1) on which the award could have been set aside.

Conclusion

The award the Appellant seeks to impugn is a customary arbitration award; the procedure for setting such an award aside is that prescribed by Section 112 of Act 798, namely an originating motion on notice to the nearest District, Circuit or High Court within three months of the award; and the Appellant, having proceeded instead by writ of summons for declarations of nullity, more than eight years out, brought an action that was incompetent from the outset.

Granted arguendo, that the actionn had been competently brought under Section 112, it would still have failed on its merits. The objection that the suit was a cause or matter affecting chieftaincy would not, of itself, have barred relief; but the true questions, whether there was a valid customary arbitration, to which the Appellant voluntarily submitted and at which the rules of natural justice were observed fall, on the arbitration record, to be answered against him. He voluntarily submitted, his gate having earlier declined the Fiaga’s summons without consequence and then attended and asked the panel to proceed; and he was heard, in the manner the custom prescribes, through an elder who bore his authority. No ground existed under Section 112(1) on which the award could have been set aside.

The courts below were right to dismiss the action, though not for the reasons they gave; and an appellate court may affirm a correct result on a different and more appropriate ground. The appeal is dismissed, and the Appellant’s action in the High Court, Sogakope, is dismissed as incompetent, for failure to proceed by way of an application under Section 112 of the Alternative Dispute Resolution Act, 2010 (Act 798). In any event, the substance of the action itself is devoid of merit.

(SGD.) I. O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. KWOFIE

(JUSTICE OF THE SUPREME COURT)

(SGD.) R. ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. AMALEBOBA (JUSTICE OF THE SUPREME COURT)

(SGD.) K. T. ACKAAH-BOAFO

(JUSTICE OF THE SUPREME COURT)

COUNSEL

EVANS GADETO DJI ESQ. FOR THE PLAINTIFF/APPELLANT/APPELLANT

GEORGE MINTAH ESQ. FOR THE DEFENDANTS/RESPONDENTS/

RESPONDENTS LED BY DR. JOE ATTIPOE ESQ.