GBERBIE v. GBERBIE AND OTHERS [1966] GLR 789

Division: HIGH COURT, ACCRA

Date: 16 DECEMBER 1966

Before: AMISSAH J.A.

CASES REFERRED TO

(1) Koney v. Union Trading Co., Ltd. (1934) 2 W.A.C.A. 188.

(2) Manche Tete Kpeshie II v. Manche Ahuma Koji II (1946) 12 W.A.C.A. 50.

(3) Ankrah v. Dabra (1956) 1 W.A.L.R. 89, W.A.C.A.

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

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

(6) Yaw v. Amobie (1958) 3 W.A.L.R. 406, C.A. NATURE OF PROCEEDINGS APPEAL against the decision of a local court giving judgment for the plaintiffs. The facts are sufficiently set out in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

Ansah for the appellant.

Joe Reindorf for Bossman for the respondents.

[p.790] of [1966] GLR 789

JUDGMENT OF AMISSAH J.A.

The appellant, who was the defendant in the court below, appeals from the decision of the local court that the respondents, who were plaintiffs, should recover from him the sum of £G68 13s. 4d. plus £G9 3s. costs. The sum of £G68 13s. 4d. is the share of the proceeds of a farm owned by all the parties together, during the period when the appellant was caretaker of the farm. The appellant and the respondents spring from the same father. The case which the respondents sought to establish was that during his stewardship the appellant realised £G150 from the farm of which amount he said he had used £G50 for the repair of their grandmother’s house. Therefore allowing him this amount of £G50 as legitimately spent, there was an amount of £G100 unaccounted for, to which they were all entitled. According to the respondents that amount was found due to them at an arbitration before two arbitrators. The substance of this case was accepted by the local court magistrate, who, taking in view that the appellant was entitled to his rateable share of this residue of £G100 awarded £G68 13s. 4d. as the respondents’ proportionate share of the money.

Various grounds of appeal have been filed by the appellant since the judgment of the local court. The final addition to these grounds was made in November 1966 and at the hearing of the appeal his counsel abandoned all the others and sought leave to argue these latest additional grounds only. His arguments therefore were confined to them. They are as follows:

(i) the plaintiff’s claim was statute-barred and should not have been allowed by the local court magistrate, and

(ii) the local court magistrate was wrong in holding that there was a valid arbitration when in fact there was no arbitration at all.

The first ground founded the argument that the respondents’ claim arose out of an alleged customary arbitration which took place, if at all, some eleven years prior to their action. That being the case, it was submitted that the action was not maintainable as it was brought more than six years after the cause of action accrued. Counsel cited the leading case of Koney v. Union Trading Co., Ltd.1 in support of his argument that the English Statute of Limitation of 16232 has been declared to apply to this country and that by virtue of paragraph 93 (2) of the Courts Decree, 1966,3 it continues to apply. But the relevant enactment at the time of the action before the local court, namely, in 1961, was not the Decree. It was the Courts Act, 1960,4 which in section 154 (4) provided for the continuation in [p.791] of [1966] GLR 789

Ghana of statutes of general application. Even so, it is necessary to examine the extent of the application of the statute to this country because according to Koney’s case, which decides that it applies, it does not apply to all transactions nor does it affect relations between all persons in Ghana. It appears that its operation in this country is excluded from relations or transactions where the parties are Ghanaian natives (and the word “native” is not used here in any pejorative sense) who have never contemplated that their relations or conduct be governed by English legal rules or forms. And if in an action before a court one of the parties seeks the assistance of the statute the onus would be on him to satisfy the court that it should be applied. On the other hand in transactions between Ghanaian natives and non-natives, the onus will be upon the party seeking to exclude the application of the statute to satisfy the court that this is so. It goes without saying that the statute will apply to transactions or relations between Ghanaian natives where English legal forms have been used or where it was clearly contemplated that the governing law should be the English common law as received in this country and also to transactions and relations between non-Ghanaians in the same circumstances. This, in my view, was the extent of application of the Statute of Limitations in Ghana when section 154 (4) of the Courts Act, 1960, became law. It provided that: “The repeal by this Act of section 83 of the Courts Ordinance (Cap. 4) [which applied the Statutes of general application in England before 24 July 1874 to Ghana] shall not be taken to affect the continued application of such of the statutes of general application which were in force in England on 24th July, 1874 as applied in Ghana immediately before the commencement of this Act.”

I have emphasized the fact that the statutes were continued as they applied in Ghana because local conditions have determined the limits of the operation of these statutes and in the case of the statute of limitation in particular the extent of this application had been delimited in Koney’s case. And it was this limited application that was continued by section 154 (4) of the Courts Act, 1960. Thus although I am in agreement with counsel that the statute applied in Ghana, at the time of the action, and still continues to apply, the question for consideration is whether it applies to the transaction which is the subject-matter of this dispute.

If there was an arbitration or any transaction upon which the action was founded eleven years before it was brought, it was not a

[p.792] of [1966] GLR 789 transaction which, to my mind, the parties to this appeal, all Ghanaians, contemplated should be governed by English law. The indications from the record are that the respondents are simple country folk who could not have had any idea of English legal forms. Nor in this regard does the appellant appear to be differently placed. The thoughts of the arbitrators named, both farmers, who were called as witnesses at the trial could not have been further divorced from English law. Indeed the whole transaction was described by counsel for the appellant in his submission on the other ground of appeal which he argued as not meeting the standards of a customary arbitration. How could persons so described or relations arising out of a transaction of this nature be affected by the Statute of Limitation?

Counsel for the respondents, however, did not meet this submission on behalf of the appellant on this ground. He sought to take the relationship of the parties out of the sphere of application of the Statute of Limitations by projecting its fiduciary character. The money which is being claimed, he argued, is money which the appellant collected in the course of his duties as caretaker. He likened the caretaker in our customary law to a trustee or an agent and submitted that the Statute of Limitations does not affect claims arising out of the relationship of trustee and cestui que trust or principal and agent. On this, reliance was placed on the passage in Halsbury’s Laws of England (3rd ed.), Vol. 24, p. 282 at para. 558, which says: “Where any person as agent, guardian, or in any other fiduciary capacity, is in possession of money for which it is his duty to account or has received or converted to his own use such money, no lapse of time, so long as the relation of confidence exists between the parties, can bar the right to an account from the beginning of the transactions, nor will the statute begin to run when the relation is put an end to.” While not prepared to say that the caretaker in Ghanaian customary law is like the trustee developed by English law, I can see some force in the argument that the caretaker is in a fiduciary relationship with those on whose behalf he caretakes. But taking the view as I do that the Statute of Limitation does not apply to the relations of the parties to this appeal for the reasons given earlier, I do not feel called upon to make a final pronouncement on this issue.

One last point on this question before I move on to the next: Counsel for the respondents submitted briefly that even if the Limitation Act, 1623, applied to Ghana, in matters relating to land, the relevant limitation period mentioned by the 1623 Act was twenty g[p.793] of [1966] GLR 789 years and not six years as advocated by counsel for the appellant. I do not think that the 1623 Act prescribed a twenty year limitation period, though the Real Property Limitation Act, 1833,5 also a statute declared to apply to Ghana (see Manche Tete Kpeshie II v. Manche Ahuma Koji II6) did. But this is no criticism of counsel because the difficulty involved in even getting at the few copies of these statutes available in Ghana to find out what they say is immense. It is a strong argument in favour of an enactment of a limitation statute of our own. To make matters worse the statute which the passage in Halsbury quoted above refers to is the English Limitation Act, 1939,7 an Act which has never applied to Ghana, although the cases cited by Halsbury in support of the proposition are ancient enough to make it applicable to the statutes which apply in Ghana. The situation is unsatisfactory, to say the least, and it is hoped that an early opportunity would be taken to provide Ghana with a comprehensive statute of limitation of its own.

On the second ground of appeal it was argued on behalf of the appellant that the transaction upon which the respondents relied did not possess any of the characteristics of a customary arbitration as laid down by the authorities. These characteristics are that there must first of all be a voluntary submission of the dispute by the parties to the arbitrators for the purpose of having the dispute decided informally on the merits. Secondly there must be a prior agreement by both parties to accept the award of the arbitrators; a characteristic which has been singled out as decisive in determining whether the proceedings are in fact an arbitration or a negotiation for a settlement. For should the parties not have previously agreed to accept the award, no decision in the particular proceedings binds them unless they subsequently accept it. Thirdly there must be publication of the award. These were the characteristics enumerated in Ankrah v. Dabra8 and Twumasi v. Badu.9 A further characteristic was revealed in the case of Budu II v. Caesar.10 The headnote to the case gives the impression that two separate characteristics were laid down by the case, namely, that the award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicial manner, and secondly that the practice and procedure for the time being followed in the native court or tribunal of the area must be followed as nearly as possible. A reading of the judgment itself does not bear this division out. It would appear from it that where the practice and [p.794] of [1966] GLR 789 procedure of the native (or in later days local and now perhaps district) court or tribunal in the area has been followed as nearly as possible, this in itself is evidence that there has been a hearing of the dispute in a judicial manner. Thus the request to follow this practice or procedure of the officially recognised tribunal for the administration of customary law becomes no more than a guide as to what should satisfy a court that the decision was not arbitrary. And indeed this new characteristic, upon consideration, turns out to be no more than the recognition of that fundamental principle of natural justice—audi alteram partem—as a necessary part of our customary arbitration procedure. Can these characteristics be discerned in the transaction which occurred eleven years before the respondents brought their action? The evidence does not show a prior meeting of the parties at which it was decided to submit the dispute to arbitrators. But then this has been held not to be necessary. In Yaw v. Amobie,11 the same type of argument met with this rebuff from the Court of Appeal: “I am not impressed with the argument. 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.”

See Ollennu J. who read the judgment of the court. The dispute which led to the proceedings described as an arbitration can be narrowly circumscribed. For on the evidence of both sides it could not have been disputed that there was a farm owned by all the parties in common and that the appellant was at the material time the caretaker of the farm. The vexed question was how much had he collected from the farm which he had not accounted for. There is evidence from Hana Arku Gberbie that over this question the defendant “was reported to some arbitrators known as Mr. J. K. Wayo and Tetteh Kulehome for accounts to be rendered to [the respondents].” Obviously the appellant was summoned and he agreed to render the accounts because according to the witness “he accounted for an amount of £G150 and he explained to [the respondents] that he had used £G50 out of it in repairing our grandmother’s house at Prampram.” The outstanding amount was £G100 which must have been accepted by the respondents because they asked for its production and the appellant promised to produce it.

Evidence on the record of a prior agreement to accept the award by the arbitrators is rather thin. Unless his consent to appear and the

[p.795] of [1966] GLR 789 fact of his rendition of the account can be construed as consent by the appellant to be bound by whatever the arbitrators said, it would be extremely difficult to spell out this element of a valid arbitration from the evidence before the local court. And on this ground alone I am prepared to say that the proceedings were not an arbitration recognised by our customary law. They did conform more to proceedings for a settlement. For the settled conclusion was made known sufficiently to the parties to satisfy the test of publication.

But having said that, does it mean that the local court was basically wrong in its order? I think not. A customary settlement of a dispute can be as binding on the parties as an arbitration. The only difference being that while in an arbitration there must be a prior agreement to be bound by the award, in the settlement, the conclusions are not binding unless accepted by the parties. As I said earlier, it was the appellant who according to the evidence rendered the accounts showing that £G100 was outstanding. When it was accepted by the respondents and he was called upon to produce it he promised to do so. This is the evidence of Hana Arku Gberbie and it is supported by Tetteh Kulehome, one of the named “arbitrators”, when he said in evidence-in-chief that, “the amount remained to be shared by both parties was £G100, after deduction for some part against repairs to a house.” Then in cross-examination, he said “it was before me that you rendered the £G100 accounts to the plaintiffs.”

I must here say in parenthesis that where there is a conflict between the evidence of Tetteh Kulehome, the “arbitrator” who appeared to be independent and the one who stated that he was a relation of the appellant, there is no reason why the magistrate should not prefer Kulehome’s evidence. The appellant did not seriously challenge this case before the local court. Granted that there was a dispute about the accounts, he never put forward his version of the amount, which must be peculiarly within his knowledge, which he had collected nor did he say in his evidence what he did with any money which he had collected. He never mentioned any figures at all. He said rather lamely that none of the respondents had ever approached him for their money. But that is no answer to the claim that a definite figure had been arrived at as remaining to be shared by the parties and that this figure must have been based on material supplied by the appellant himself. At the end of his cross-examination, the appellant makes this revealing statement that, “I shall be compelled to abide by their [i.e. the alleged arbitrators] evidence for they were the only men present when we met to render accounts.” And finally before judgment, there is the sole but even more revealing statement made by the appellant that, [p.796] of [1966] GLR 789

“One of our brothers may have share from this farm for he has died one and a half years now.” These are not the statements which may be made by a defendant who is seriously attacking the claims of a plaintiff. From the record it is quite clear to me that a satisfactory account was rendered acceptable to all parties and that this constituted a settlement of the dispute binding on the parties. Thus there is, on a final analysis, only the misuse of the word “arbitration” in the local court proceedings. At the hearing of the case, it was open to the magistrate to make his award on the basis that though there had been no arbitration as recognised by the law there had been a binding settlement of whatever issue was in dispute between the parties, namely, how much money raised from the farm of which the appellant was caretaker they all were entitled to partake in. And it was the acceptance of this binding settlement that caused him to award the respondents their rateable share of the amount. I do not think the local court was substantially wrong in coming to this conclusion. Accordingly the appeal is dismissed. Costs of ¢25 to the respondents.

DECISION

Appeal dismissed.

S. K. T.