ADAI vs. ANANE [1973] 1 GLR 144

CASES REFERRED TO

(1) Wytcherley v. Andrews (1871) L.R. 2 P. & D. 372; 25 L.T. 134; 35 J.P. 552; 19 W.R. 1015.

(2) Akyem Abuakwa Stool v. Adansi Stool (1957) 3 W.A.L.R. 171; subnom. Nana Ofori II v. Nana Abu Bonsra II [1958] A.C. 95; [1957] 3 W.L.R. 830; [1957] 3 All E.R. 559; 101 S.J. 882, P.C.

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

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

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

(6) Yao v. Amobie, Court of Appeal, Cyclostyled Judgments, January- June 1958. (7) Donkor v. Isifu [1963] 1 G.L.R. 418, S.C.

NATURE OF PROCEEDINGS

APPEAL from the decision of the District Court Grade II, Bechem, wherein the plaintiff was adjudged the owner of the land in dispute. The facts are sufficiently set out in the judgment.

COUNSEL

S. K. Akoto for the appellant.

Osei Kofi for the respondent.

JUDGMENT OF OSEI-HWERE J.

The defendant-appellant (hereinafter called the defendant) appeals against the decision of the District Magistrate Grade II, Bechem, wherein the plaintiff-respondent (hereinafter called the plaintiff) was “adjudged owner of the piece of land in dispute and the sum of ¢100.00 damages awarded against defendant.” By his writ of summons the plaintiff sued the defendant claiming a declaration of title, ownership and possession of the land in dispute and ¢300.00 damages for trespass. The plaintiff supported his writ by a statement of claim in which he traced his root of title to his grandfather. About eight years prior to the filing of the statement of claim, the plaintiff averred, he had disputed over the area in question with one Kwame Missa, the plaintiff’s second witness, a boundary owner, and he had been adjudged the rightful owner in an arbitration settled before the odikro of Bredi. The defendant also filed a defence in the following terms:

[p.147] of [1973] 1 GLR 144 (1) That the subject-matter of this suit had been adjudicated in an arbitration held and presided by Nana Duayaw-Nkwantahene in February, 1970, in which the defendant [sic] was present without any duress and the arbitration award was made in my favour.

(2) I plead res judicata in this case.

(3) That I shall submit evidence in support of my defence during hearing.

(4) That the plaintiff’s claim cannot be entertained by reason of facts contained in paragraphs (1), (2) and (3) above.”

At the hearing, the plaintiff called evidence to support this arbitration before the Bredi odikro whilst the defendant in turn called evidence to establish the arbitration before the Duayaw-Nkwantahene. In his judgment the trial magistrate made certain findings in favour of the plaintiff on the supposed issues raised in the summons for directions and regarded as a nullity the arbitration award made in favour of the defendant. It is against this judgment that he filed two original grounds of appeal and nine supplementary grounds of appeal. At the hearing of the appeal the defendant’s counsel sought and was granted leave to argue the supplementary grounds of appeal. The first ground of appeal was that the trial magistrate was wrong in finding that the defendant slept over his rights in not joining the alleged arbitration before the odikro of Bredi. The impugned finding is the result of the trial magistrate’s assessment of the plaintiff’s evidence on the arbitration before the odikro of Bredi where he said:

“In the face of incontrovertible evidence of the plaintiff supported by Kwame Missa himself and the present odikro of Bredi before whom the arbitrators were heard, the crux of the matter as far as I can see is that as far back as eight years ago the plaintiff herein brought a case of trespass against Kwame Missa for entering into the same piece of land whilst the defendant herein was alive and still alive but slept over his right, not even joining in as co-defendant to fight for his right.” The defendant’s counsel challenges this finding, first because it is doubtful whether there was any such arbitration at all. This is because all the witnesses could not agree how long ago the arbitration took place. The plaintiff said it took place about eight years ago, the plaintiff’s first witness (the odikro of Bredi) said five years ago, whilst the plaintiff’s second witness (Kwame Missa) said it took place about three years ago. Secondly, there was no evidence to show that the defendant was aware of the arbitration. Thirdly, what took place before the odikro of Bredi, if it took place at all, cannot in law constitute an arbitration. Counsel for the plaintiff made some bold attempts to justify the finding of the trial magistrate but his argument, to my mind, was on

[p.148] of [1973] 1 GLR 144 the whole specious. It must be conceded that where illiterate witnesses testify as to dates due allowance must be made for imprecision; but where the time lapse testified by such witnesses are far and wide apart by as much as five years even though the alleged event occurred inside the period of eight years then the credibility of the witnesses must be seriously impaired. Equally, the argument by the plaintiff’s counsel that the defendant ought to have known of the trespass by Kwame Missa and he should therefore have known of the arbitration is unconvincing. Arbitration proceedings are not endowed with the same element of publicity as court proceedings are wont to be. Mere inaction when two strangers are disputing over one’s property cannot operate as an estoppel because whatever decision is arrived at will amount to no more than a res inter alios acta which cannot be admitted in evidence against him. The arbitration before the odikro of Bredi, if of any worth at all, will merely go to support the plaintiff’s acts of ownership over the disputed land – a necessary proof to establish a claim to ownership. The magistrate’s finding clearly discloses that he completely misconceived the law on what has been described in the terminology of the Court of Appeal as estoppel by “standing by,” the foundation of which doctrine is the dictum of Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P. & D. 327 at p. 329 where he said: “[I]f a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case.” This dictum received its highest judicial stamp in Akyem Abuakwa Stool v. Adansi Stool (1957) 3 W.A.L.R. 171, P.C. It is clear from the decision of Akyem Abuakwa v. Adansi Stool (supra) that for the doctrine of estoppel by “standing by” to apply there must be disclosed some privity of interest between the party sought to be estopped and the losing party in the earlier suit. No privity of interest was disclosed between the defendant and Kwame Missa and there was even no evidence that the defendant knew what was passing. I am satisfied that the trial magistrate erred in law when he held that the defendant slept over his right.

The defendant’s counsel contends that there was no proper arbitration before the Bredi odikro because there was no evidence of any award and also because the arbitration was before an interested party. To those arguments the plaintiff’s counsel countered that even if what took place before the odikro was no arbitration it was a negotiation for settlement which was accepted by both parties and it became binding. Kwame Missa, as the plaintiff’s evidence disclosed, gave up the land to the plaintiff. According to counsel this settlement had the same effect as an arbitration award. The distinction between an arbitration and a negotiation for settlement was discussed in Twumasi v. Badu (1957) 2 W.A.L.R. 204, W.A.C.A. where it was held as summarised in the headnote that

[T]he essential difference between a binding arbitration and a reference to a third party for the purpose of seeking a negotiated

[p.149] of [1973] 1 GLR 144 settlement is the presence or otherwise of a prior agreement to be bound by the decision of the arbitration or negotiator. Whether this exists or not is a question of fact to be determined by the evidence . . .” It is, indeed, true to say that the decision in the case of proceedings in the nature of negotiation for settlement of a dispute becomes binding only after it has been accepted by the parties and not otherwise: see Ankrah v. Dabra (1956) 1 W.A.L.R. 89, W.A.C.A. and also Budu II v. Caesar [1959] G.L.R. 410. The plaintiff, however failed to lead sufficient evidence to show whether what took place before the plaintiff’s first witness was an arbitration or negotiated settlement and the trial magistrate should have been cautious in founding his judgment upon it. I do not think that there can be any answer to the contention that the odikro of Bredi’s standing as an arbitrator vitiated the whole arbitration (if there was any) by reason of his avowed interest in the property. There was ample evidence before the trial magistrate that the odikro of Bredi, the plaintiff’s first witness, is a close relation of the plaintiff and that, as the plaintiff’s statement of claim disclosed, the plaintiff’s first witness represents the interest of Kwame Bawuah of Bredi. It is this Kwame Bawuah who, according to the plaintiff, succeeded his father and presented the land in dispute to him. An arbitrator’s position must not offend one of the rules of natural justice, that is, he must not be a judge in his own cause. If a person acts as an arbitrator in his own cause or in a cause in which he has legal bias any decision he gives will be arbitrary. If the trial magistrate had considered the true position of the plaintiff’s first witness he would have refrained from condemning the refusal of the defendant to attend the alleged arbitration before the plaintiff’s first witness which formed the third ground of his supplementary appeal. Counsel for the plaintiff has happily conceded that submission to an arbitration is voluntary and also that there is no appeal from a customary arbitration award and that the trial magistrate erred in so holding. In Budu II v. Caesar [1959] G.L.R. 410, Ollennu J. (as he then was) said at p. 417 “It is of the utmost importance that there should be a judicial hearing of each party to an arbitration, particularly as there is no right of appeal from an award.” This disposes of the third ground of appeal.

The second ground of appeal is that the magistrate’s conclusion that the odikro of Bredi is the caretaker of Bredi lands and only answerable to the Duayaw-Nkwantahene is not supported by the evidence before the court. This ground of appeal is unimportant as that finding did not form any part of the ratio decidendi. Ground (4) of the appeal alleges that the trial magistrate failed to resolve the real issues of the case in accordance with the evidence before the court. In support of this ground the defendant’s counsel argued that the trial magistrate failed to consider the important issue of the onus of proof of title on the plaintiff. A plaintiff in an action

[p.150] of [1973] 1 GLR 144 for a declaration of title assumes the heavy burden of proof and he does not discharge that onus by merely calling his relations to support his evidence. To do so would invite the failure of his claim. This is exactly what the plaintiff did. All his witnesses, the first and second hailed from a common grandfather with him. Besides his reasoning for holding that the plaintiff had established his title was faulty. According to him the plaintiff had established that he had derived his tide from his grandfather and that he had been in possession for about fifteen years without interruption and that when the plaintiff’s second witness trespassed he opposed him whilst the defendant who claimed he has been the owner of the land for the past 57 years did not raise a finger against the plaintiff’s second witness. He further held that the defendant could not acquire title by just walking on a proposed track and stopping somewhere to farm. His reasoning presupposed the finding that the defendant had notice of the trespass and yet he did nothing. He also seems to be saying that because the plaintiff’s title was derivative it was more worthy of acceptance than the defendant who said that he acquired original title about 57 years ago. His complete rejection that the defendant could acquire title by the method he described is in complete disregard of the customary method whereby a stool subject can acquire vacant stool land. Equally the trial magistrate’s reasoning for holding that the defendant had trespassed onto the plaintiff’s land is untenable. Grounds (5) and (6) can conveniently be taken together. The former alleges that the trial magistrate erred in rejecting the strong and overwhelming evidence in support of the arbitration before the Duayaw-Nkwanta Traditional Council whilst the latter complains that his findings on the arbitration showed a gross ignorance of the normal arbitration. It is worthy that I quote in extenso the magistrate’s finding in respect of the arbitration before the Duayaw-Nkwanta Traditional Council. This is what he had to say:

“Now the next thing to consider is the matter of the so-called arbitration where the plaintiff was found against; let us see whether the laid down arbitration procedure was strictly followed. I say no. Because the arbitrators left almost all material ingredients unconsidered by calling witnesses to confirm or deny by evidence but they gave a decision in favour of the defendant herein. And in contrast to laid down rule that at the end of the arbitration costs will have to be assessed against who has lost. In this case certain amounts were claimed from each party beforehand thereby forestalling the question of a party being found against and he refuses to pay the expenses. In normal circumstances if both parties remain seated throughout an arbitration to a finish any decision given is binding on the lost party as well as the other party but the party who feels dissatisfied and has to leave before an award was given he is not bound by the award. For this reason I could

[p.151] of [1973] 1 GLR 144 see all moneys were claimed from both parties before the arbitration came to an end which is uncustomary and therefore unlawful. The award of the arbitrators should accordingly be regarded as a nullity.” Little wonder that the plaintiff’s counsel was sent ablushing when he came to argue these two grounds. He fully conceded the essential characteristics of an arbitration as laid down in Budu II v. Caesar (supra) but he, however, embarked on face-saving and argued that there was lacking the characteristic of a prior agreement by the plaintiff to be bound by the award of the arbitrators and also that the award was arbitrary as it was not arrived at after the hearing of both sides in judicial manner. This is because the plaintiff’s first witness gave evidence that the plaintiff had at first refused to attend the arbitration but that he had advised him to go. Again this witness complained that when the locus in quo was visited all the other witnesses at the arbitration, except himself, were asked questions. Counsel for plaintiff finally argued that the magistrate arrived at the correct conclusion that there was no valid arbitration before the traditional council although he gave wrong reasons. Counsel sought to supply the correct reasons.

I am satisfied that the defendant’s counsel fully made his point that there was overwhelming evidence to support the defendant’s contention that there was a valid arbitration before the Duayaw-Nkwanta Traditional Council. Both the plaintiff and his first witness fully supported this. Both parties submitted themselves voluntarily to the arbitration; both of them gave evidence and called witnesses; both of them paid the customary fee before the award as well as the inspection fee and after the award costs were assessed in favour of the defendant. There is, however, evidence that before the award the plaintiff tried to resile but that he apologised for his conduct and remained seated. The plaintiff admits this much himself. What he says, however, is that he did not pay the customary “Abene” fee of ¢9.00 after the decision as he did not remain. There can be no doubt from the conduct of the plaintiff that he appeared before the arbitrators voluntarily and fully participated at the proceedings without any reservations. Even if the plaintiff’s first witness’s evidence were accepted then it shows that the plaintiff submitted himself to the arbitration with the mind that in the event of an award being made against him then he would appeal against that award. This implies his agreement to be bound by the award and then to exercise his right of appeal which the plaintiff’s first witness ignorantly thought he had. It is clear from the foregoing that the magistrate misapplied the customary law of arbitration. Where there is a valid arbitration the award is binding upon the parties to it whether they accept it or not; the parties cannot resile after the award has been published – see Yao v. Amobie, Court of Appeal, Cyclostyled Judgments, January-June 1958 and Budu II v. Caesar (supra). The time for the payment of the fee distinguishes an arbitration from a negotiation for a settlement; in the latter case the fee is only collected when the decision

[p.152] of [1973] 1 GLR 144 has been accepted whilst in the former it is paid before the publication of the award: see Donkor v. Isifu [1963] 1 G.L.R. 418, S.C. It is not necessary, for the hearing of an arbitration in a judicial manner, that all the witnesses should be asked questions when the arbitrators inspect the land in dispute. The purpose of such a visit is only to enable the arbitrators to collect sufficient evidence upon which they can base a fair award. In the light of the above findings the trial magistrate ought to have upheld the defendant’s plea of estoppel per rem judicatam and dismissed the plaintiff’s claim. In view of my finding that the defendant established his plea of estoppel it is unnecessary to consider the remaining grounds of appeal. Indeed ground (7) has already been considered. In all the circumstances the appeal must succeed. I accordingly allow the appeal and set aside the judgment and costs of the court below and in place thereof I enter judgment for the defendant with ¢80.00 costs to the defendant.

DECISION

Appeal allowed.

S.O.