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TANOR v. DAPOMAH


  • appeal
  • 1960-11-30
  • HIGH COURT
  • GLR 241-249
  • Print

ADUMUA-BOSSMAN, J.


Summary

Customary law?-Arbitration?-Undesirability of person to whom original complaint made being appointed arbitrator?-Relationship of arbitrator to one of the parties?-Bias?-Land?-Customary law?-Right of farm owner to reasonable portion of adjoining forest land for expansion purposes?-Evidence of customary gift of land.

Headnotes

The dispute in this case arose as a result of cultivation by the defendant of part of a cocoa farm and adjoining forest land, which the plaintiff claimed he owned by virtue of a gift from his father some 40 years previously. At the outset of the dispute, the defendant complained to the Nkawkawhene who was either her present or a former husband. The parties appeared before him. No inspection of the land took place and the dispute was decided in favour of the defendant. The plaintiff was dissatisfied and the defendant subsequently took [p.242] action against him in the Native Court "A" at Nkwatia. This action was discontinued through the mediation of one Kofi Boye to enable the dispute to be settled privately. Kofi Boye, despite a protest by the plaintiff, referred the dispute again to the Nkawkawhene. At this "arbitration" no evidence was taken, the land was not inspected and the defendant was merely ordered to take possession of the land in dispute. The plaintiff thereupon brought this action in the Local Court "B" of Kwahu, and claimed against the defendant "Damages the sum of G50 for trespass committed on plaintiff's cocoa farm and Oworakwae (i.e. virgin forest) which plaintiff owns by right of cultivation on a parcel of land situate at Akronsua on Obomeng stool land, bounded on all sides by the properties of Kwaku Twum, Kofi Brako, Rivers Ewin and Akronsua respectively." The defendant pleaded "not liable." The trial court did not take the view that the dispute had been settled by a valid customary arbitration and on the merits of the case gave judgment for the plaintiff. The defendant appealed to the local appeal court. That court, relating its judgment solely to the second reference to the Nkawkawhene, held that there had been a valid arbitration and reversed the decision of the trial court. The plaintiff appealed to the Land Court.

Judgement

APPEAL against a decision of the Native Appeal Court of Kwahu State given on July 7, 1959 allowing an appeal from the decision of the Local Grade "B" Court of Kwahu given on January 26, 1959 in favour of the plaintiff in an action claiming damages for trespass. The facts are set out in the headnote.

(His lordship referred to the history of the case, and on the issue whether or not there had been a valid customary arbitration continued):

Firstly, we find that it is not one of those cases in which parties to a dispute, even if through or by means of the intervention or persuasion of some third party or parties, in the ultimate result have themselves proprio motu (of their own accord or volition) not only agreed to refer their dispute to a person or persons agreed on by them to investigate the merits thereof fairly and impartially from their respective points of view and give a decision thereon, but also undertaken to abide by or accept the decision. Rather we find, in this case, one party complaining of the other to the Ohene or chief of the town, the other attending at the chief's and the matter was said to have been investigated and a decision given against the party complained against. The evidence on record is not clear as to what exactly happened after the complaint had been made to the Nkawkawhene, i.e., as to how the plaintiff was informed and how he was made to attend before the chief. Normally the chief would send his messenger to notify him that complaint had been made against him and that he would like to see him at such and such a time concerning the complaint. But all too often a chief or elder to whom complaint against another is made, having heard of general representations as to unfair and unjust treatment of the complainant by the person complained against, all too quickly reacts by way of surrendering his mind and spirit to the insidious and subtle influence and bias of the complainant, and makes himself the self-appointed champion of the complainant to right the wrongs alleged or supposed to have been done to the complainant by the person complained against. At any rate, it certainly cannot be desirable that a person who will have in due course to investigate a dispute between two parties, should prior to the appearance of both parties to present their respective cases before him, meet with one party and hear him beforehand by way of complaint against the other. There is, therefore, that undesirable feature about an arbitration originating in a complaint by one party against the other to a chief, elder, or person who himself ultimately undertakes the investigation and decision of the dispute between the parties. There is also the feature that when a party attends before a chief, elder, or person because of a complaint made by another against him, it is difficult to draw the line between his attending with [p.244] the intention of explaining himself or his version of the dispute on the one hand, and his attending with the intention that the dispute might be investigated and decision given thereon, on the other hand. An attendance following a complaint is an act or conduct which is equivocal and susceptible of two interpretations; whereas when no complaint has been made against him and he and the other disputing party together agree to refer or actually bring a dispute to a chief, elder, or person to decide for them, that act or conduct is unequivocal and more easily susceptible of the only possible interpretation, namely that both have voluntarily referred or submitted their dispute to his adjudication or decision. Be that as it may, whether because of the considerations above referred to or others not here touched upon, there appears to be a fair amount of authority denying to these arbitral proceedings originating in complaints made initially to the arbitrator by one of the parties, the characteristics of a valid customary arbitration. See the cases of Amocoo v. Duker (Sar. F.L.R. 34) Gyesiwa v. Mensah (W.A.C.A., December 10, 1947) Hormeku v. Fuga (unreported) Twumasi v. Badu (2 W.A.L.R. 204).

Learned counsel has, however, expressed reliance on the Appeal Court's decision in a recent case Yaw v. Amobie and Another (3 W.A.L.R. at p. 408) ?- and in particular the following proposition stated in that judgment.

?"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.?"

This proposition, as applied to the form of arbitral proceedings accepted and/or recognised by the courts as valid customary arbitration, is difficult to assent or subscribe to, with all deference to the members of the court who promulgated it; although it may be correct as applied to customary negotiation for settlement.

The case of Yaw v. Amobie and Another (supra) was one which originated in a complaint by one party to an elder who thereupon sent for the other and after hearing each party's version of the matter claimed and received 25s. from each before inspection at which he proposed and fixed a boundary as to which one party refused to agree. The arbitrator himself understood that in all the circumstances and by reason of conduct of the party not agreeing to his proposed boundary he had not succeeded in settling the case, so that he was able to tell the trial native court that, "In fact I could not decide the case because no award was pronounced." (ibid at p. 408) The trial native court after hearing the evidence of the whole circumstances as to the so-called arbitration was able to come to the decision that no award was published and there was no valid customary arbitration. It is difficult to understand how an appellate court disagreed with the trial court's findings of fact and came to a decision that there was a valid customary arbitration. At any rate the decision appears to be in clear conflict with Gyesiwa v. Mensah (W.A.C.A. unreported) and Twumasi v. Badu (2 W.A.L.R. 204) both of which also originated in complaints and the party denying the subsistence of a valid [p.245] arbitration paid money to the arbitrator. Neither of these two cases was cited to the Court of Appeal at the hearing of the appeal in Yaw v. Amobie and Another (3 W.A.L.R. 406).

Accordingly, following the enunciation of the rule of practice made by Greene, M. R. in Young v. Bristol Aeroplane Co., Ltd. ([1944] K. B. at p.726) that: ?- "The court is unquestionably entitled to choose between the two conflicting decisions ?- " approved and adopted by the West African Court of Appeal in Osumanu v. Amadu and Others (12 W.A.C.A. 437), I have felt obliged to prefer and follow the earlier authorities, particularly Gyesiwa v. Mensah (W.A.C.A., December 10, 1947) and Twumasi v. Badu (2 W.A.L.R. 204).

If therefore regard is had to the decided cases which I have referred to, it seems fairly and reasonably clear that in this particular case where the so-called arbitration originated in a complaint by one party, the defendant, and consisted in nothing more than a doubtful and unsatisfactory sort of investigation, the trial court was perfectly entitled to take the view or come to the conclusion that there had been no mutual voluntary submission of the dispute between the parties to arbitration, or any undertaking to be bound by any decision of the Nkawkawhene, and therefore there had been no valid customary arbitration. Indeed, all concerned, even the native appeal court, appear to have taken that view at any rate of the first part or stage of the proceedings.

But then it was argued that if the first part or stage of the proceedings which was commenced by a complaint may be said to lack the essential requirements of a voluntary submission and undertaking to accept the decision, the same cannot be said of the second part or stage where according to the evidence Kofi Boye withdrew the court action and then referred the dispute to the Nkawkawhene, with the ostensible consent of both parties. If however that proposition is put forward and relied on by the defendant, she is then met by the disclosure by her own witness Kofi Boye that:?- "None of the parties gave evidence before Nana Nkawkawhene on the second occasion". It was also common ground that there was no inspection on this second occasion also, so that virtually there was no second or fresh investigation, and it was just a case of restoring the first decision which the plaintiff had protested against and refused to accept. If then we have to be referred back to the first proceedings, then it seems to me that, as even the native appeal court did not declare that it recognised the first proceedings as a valid customary arbitration, both courts would appear to be agreed that there is no ground, at least on the question of the subsistence of a valid customary arbitration, for disturbing the judgment of the trial court.

There is the minor issue of fact as to the plaintiff paying the costs awarded by the second arbitration to the defendant which is relied on as indicating or proving that plaintiff accepted the award of the second arbitration. It is to be observed however that the plaintiff himself was not examined about that matter nor, more important, was his witness Okyeame Baah. Moreover, when the defendant and her witnesses gave [p.246] evidence about the matter there is a material conflict in the evidence. It seems difficult to believe that the plaintiff who had declared against the same decision as being unacceptable because given without an inspection of the land in dispute and had rejected it so emphatically as to make it necessary for the defendant to sue him, would, when the same decision is restored by the same arbitrator, this time without his being allowed even to make a statement and again without an inspection would now accept the decision and not only provide drink for the arbitrators but pay the costs of the defendant. He however shortly afterwards complained to the Nifahene and subsequently swore to an affidavit to prevent defendant from entering the farm and finally instituted this action. His whole conduct is so consistently against acceptance of this adverse decision made against him without inspection of the disputed farm, that I find ample grounds for the trial court's conclusion that: ?- "The court in summing up the evidences of the parties is satisfied with the statement of the plaintiff supported by his witnesses." By that finding the defendant's case that plaintiff paid her the costs of the arbitration was rejected land in my opinion, rightly so rejected.

Continuing, however with our consideration of circumstances about the arbitral proceedings which point to their not constituting a valid customary arbitration, there is that conspicuously striking feature that the complaint was made not to some person relatively neutral to both parties as one would have expected, but to a person in the exceptionally close relationship of being either the husband or else the former husband of the complainant. Plaintiff said of him: ?- "Defendant's husband is the President so he gave judgement against me." The Nkawkawhene himself, third witness for the defendant, states in his evidence "defendant is my ex-wife." If we go by the fact that the trial court has accepted the plaintiff's version where it conflicts with that of defendant or his witnesses, then the position accepted by the trial court is that the Nkawkawhene is the defendant's present husband. But even accepting his own version that the defendant is his ex-wife, it seems to me a disqualifying feature about the arbitral proceedings.

"Native custom" said Griffiths, C.J. "generally consists of the performance of the reasonable in the special circumstances of the case.?" See Yerenchi v. Akuffoo (Ren. Rep. Vol. I pt. I at p. 367). And therefore a person to whom both parties are related may very well undertake the settlement of a dispute between them, as was the case in Mensah v. Botchwey (Div. Full Ct., 1911-16, 58) in which one Ashong Kwasi investigated a dispute between plaintiff his son and the defendant his sister, and Smyly, C.J. said as follows: ?-

?"The subject matter in dispute had been brought before a competent tribunal . . . and had been withdrawn from that tribunal for settlement by Ashong Kwasi both parties agreeing; and it seems, to me impossible to hold that the plaintiff should be at liberty to accept one portion of Ashong Kwasi's award, and to reitigate that portion which was unfavourable to himself." [p.247]

But I think it is impossible to find any saving grace about a situation in which a husband is to arbitrate between his wife and a total stranger or third party, or to hold that situation satisfies that test of "the reasonable in the special circumstances of the case." The general law of the land has happily sufficiently developed to demand and insist on a higher standard of judicial administration even by the former native courts and tribunals, than was the case 25 years or so ago; so that in a case like State Council of Peki v. Adamoo and Others (Div. Ct. 1931-37, 58) Aitken, J. was able to follow the decision of Deane, C.J., in an earlier case entitled State Council of Peki v. Kwamla Ayim V (unreported) and hold that the situation disclosed by the record of appeal in the case where the tribunal acted as both prosecutor and judge constituted such a violation of the fundamental principles of natural justice that the tribunal's decision could not be sustained. Even so a situation in which a husband purports to act as a judge in a case between his wife and a third party seems to me to violate the fundamental principles of natural justice. True, the case was not being tried by a legally constituted court. It is however in effect a court recognised by customary law?-Assampong v. Amuaku (1 W.A.C.A. 192). The principle that its proceedings must not violate the principles of natural justice must apply in some degree to it. At any rate the plaintiff gave evidence that "defendant's husband is the President Nana Kofi Asamoa so he gave judgment against me."

Further the trial court expressly declared that it was satisfied with the statement of the plaintiff supported by his witnesses; that is to say the plaintiff charged the arbitrator with bias or improper conduct and adduced evidence to support it, primarily that in a case where he should have the area in dispute inspected he did not do so, and the trial court found the allegation established. That seems to me the significance of the trial court's observation about the arbitration when they said, inter alia,

"The arbitrators ordered defendant to have possession of the disputed farm despite plaintiff's demand (more accurately-demand made on plaintiff's behalf) for inspection of the land by the arbitrators."

There was therefore that further ground on which the trial court was entitled to reject the arbitral proceedings as a valid customary arbitration.

(His lordship then referred to the lack of investigation by the "arbitrators" as to the real issue between the parties and the failure to inspect the land and concluded):

Turning now to the decision of the dispute on the merits in favour of the plaintiff ?- I do not consider that the objections urged against it are sound. The main objection was that the plaintiff did not discharge the onus of affirmatively proving the gift. But it seems to me the plaintiff's evidence was sufficient to discharge the onus. It should not be forgotten that he was in possession, and needed only to relate that possession to the alleged gift. His evidence as follows: ?- "my father granted this forest land to me in the presence of Akosua Hwanin, Ama Oduraa, Akwamahene Kwadjo Mireku, etc.?" was not only virtually unchallenged, but was corroborated by Kwadjo Mireku.. It was further corroborated by the undisputed evidence of his having clear boundaries with certain boundary [p.248] owners with distinct boundary marks marking those boundaries. One of these boundary owners Kofi Brako appears to have been a witness as much for the defendant as for the plaintiff, and when he gave evidence acknowledging a boundary with the plaintiff, the defendant did not ask him a single question to challenge his evidence in favour of the plaintiff. That all requisite customary requirements in relation to the making of a gift were complied with seems to be implied in plaintiff's answer in cross-examination by the defendant when he said: " Akosua Hwanin was present when such gift [more accurately 'the custom in relation to such gift'] was performed." As was pointed out by Deane, C.J. in United Products Ltd. v. Afari and Others (Div. Ct. 1929-31 at p. 12).;

"The case of the Basel Mission Factory v. S. K. Suapim, a judgment of Smyly, Chief Justice, reported in Local reports of 1919, page 14, is not in my opinion an authority as contended for the proposition that in order to prove a gift before a Court an eye-witness of the transaction must give evidence of the gift; all that the learned Chief Justice does there is to state the well-known principle of law, namely, that for a gift to be valid it must be made in presence of a witness, in other words a man could not be heard to say that a gift had been made to him by a donor secretly without a witness. The proving of a gift before the Court must in my opinion be proved as any other fact is proved and when a person who alleges a gift made in the presence of a witness does not call that witness that is a fact that merits most serious consideration but when the other circumstances in the case all most strongly support the allegation and are in fact only explicable on the basis of the allegation being true the Court is I conceive quite entitled to come to the conclusion that the allegation is proved."

Accordingly the trial court having in this case accepted not only the plaintiff's but the evidence of an eye witness and other circumstantial evidence so that they were able to make the following categorical findings: ?-

"The court is satisfied with the statement of the plaintiff supported by his witnesses and confirmed by the court's inspection report. During the inspection the court found that there were isolated cocoa trees on the farms in dispute . . . The two Odum and Onyina trees marking the end of boundary between plaintiff and his late father's property were identified. The disputed farm forms part of plaintiff's cocoa farm. This farm appears to have been cultivated 20 years ago . . . The ownership of the said land has been proved by plaintiff witnesses, and that of Kofi Brako, witness for both parties who stated in his evidence that he met plaintiff cultivating the virgin forest as indicated on plaintiff's claim".

These are findings amply supported by the evidence, and there is no ground for interfering with them.

As for the observations of the trial court concerning the custom of a fair portion of forest land being left by a cultivator between an existing farm and the new farm he desires to make ?- I apprehend that as merely [p.249] comment on the part of the trial court to emphasize the impropriety of the defendant commencing the cultivation that has led to the institution of this action actually in a portion of the plaintiff's farm and carrying it on to the adjoining forest land. It does not in anyway affect the material findings.

In the result, I am of the opinion that the trial court's judgment should not have been disturbed, and I allow the appeal, set aside the judgment of the native appeal court and restore the judgment of the trial court.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

Ofosu Asante

Defendant / Respondent

Ofori Atta

Referals

(1) Amocoo v. Duker (1883) Sarbah's F.L.R. 34,35.

(2) Gyesiwa v. Mensah W.A.C.A. December 10, 1947.

(3) Hormeku v. Fuga (1954) Land Court, Eastern Judicial Division, 12th April, 1954 unreported.

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

(5) Yaw v. Amobie and Another 3 W.A.L.R. 406.

(6) Young v. Bristol Aeroplane Co., Ltd. [1944] K.B. 718.

(7) Osumanu v. Amadu and Others 12 W.A.C.A. 437.

(8) Yerenchi v. Akuffoo Renner's Reports, Vol. I, Pt. I, 362.

(9) Mensah v. Botchwey Divisional & Full Court, 1911-16, 58.

(10)  State Council of Peki v. Adamoo and Others Divisional Court, 1931-37, 58;

(11)  State Council of Peki v. Ayim V unreported.

(12) Assampong v. Amuaku 1 W.A.C.A. 192.

(13) United Products Ltd. v. Afari and Others Divisional Court, 1929-31, 11.

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