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JUDGMENT
OFORI-BOATENG JA:
This is an appeal from
the Circuit Court, Ho, presided over by His Honour Judge
Agyare Kwabi. In this appeal the Plaintiffs/
Respondents will be known as Plaintiffs; and the
Defendant/Appellants will be known as the Defendants.
Long before this case
came to the courts, the two families in this litigation
had a quarrel over a piece of grassland which the
plaintiffs call the Afevu Grassland. According to the
plaintiffs, the custom of the Ho area, is that whenever
a person owns a forest land, he automatically becomes
the owner of the adjacent grassland. Nobody could grow
permanent plants like cocoa, palm trees etc. on this
grassland, except with the permission of the owner of
the forest land. The plaintiffs complained that they
had noticed that the defendants were planting palm trees
on their plaintiffs’ grassland.
The defendant insisted
that they had their own forest together with the land
the plaintiffs were claiming was their grassland, from
time immemorial. They also maintained that there was no
custom in the area about forest land and grassland, as
the plaintiffs were asserting. One day in November 1969,
the plaintiffs approached the head of the defendants’
family and pleaded with him to try and bring about a
settlement of this dispute. The two families agreed and
fixed a day for the resolution of the dispute.
On the appointed day
the families selected some elders and relatives from
their families together with others not members of the
family to inspect the lands on which there was the
quarrel. After the inspection of the lands the team
that went to the land declared that they would announce
their finding in eight days time.
In eight days time the
team announced the result of its inspection. The
verdict was that the grassland, the subject of the
dispute was the property of the defendants. There and
then, the plaintiffs rejected the finding, because they
say they only sought a settlement whose finding was only
binding on them, if they agreed to it. The defendant
held that what they agreed with the plaintiffs was to
institute an arbitration into the ownership of the
grassland, and so the result was binding on the
plaintiffs. Before the inspection party went to inspect
the lands, each family paid ¢15.00 to it.
The plaintiffs sued
eventually in the Circuit Court about the ownership of
the grassland. The Circuit Court decided that what took
place was not a valid arbitration in customary law, and
so the decision of the arbitration was not binding on
the plaintiffs, and so the suit in the Circuit Court was
in order. Further, the Circuit Court found for the
plaintiffs’ hence this appeal.
There are three arising
from this appeal which I would like to deal with. They
are:—
(1) Whether what was
done by the parties to settle their quarrel before they
came to Court was an arbitration, or an attempt to
reach a settlement.
(2) What is the name of
the disputed land, and its whereabouts?
(3) Is there any custom
in the Ho area about forest land and grassland, which
custom is the basis of the claim of the plaintiffs to
the grassland, the subject matter of this litigation?
1. What are the
differences between arbitration and a settlement in
customary law? This question had been subjected to a
long list of settled judicial decisions, and I will
therefore simply summaries them. According to decided
authorities, before a customary arbitration would be
considered as valid, the following factors should exist:
(a) The parties
concerned should have agreed that they would be bound by
the decision of the arbitration on the subject matter.
The agreement to constitute an arbitration must be
stamped by the payment of a specific sum of money by
both sides; to the members of the arbitration or its
chairman before the arbitration starts its work.
(b) The arbitration
should give each side a chance of stating its case, or a
chance of showing its boundaries if the arbitration
concerns the position of boundaries of land.
(c) The arbitration
should not violate any rule of natural justice; that is
arbitration should not be constituted of persons who are
directly or indirectly interested in the subject matter
over which they are arbitrators.
(d) The decision of the
arbitration will be binding on the parties whether the
loser resiles from it or not. The person who loses in
estopped from resiling from it.
See Moshie v. Fordjour
[1962] 2 GLR 74 S.C.
Ankrah v. Debrah and
Olaga [1956]
1 WALR 89 also see
Kwasi v. Larbi [1955] A.C. 164 P.C.
The difference between
arbitration and a settlement is given in a Supreme Court
decision of Ankrah v. Debrah and Olaga 1956 1 WLR 89.
In that case Wilson CJ said:
“Simple investigation
of a dispute by a Chief and elder or other persons at
which the parties to the dispute are heard and an
attempt is made to negotiate a settlement agreeable to
both parties which will obviate any cause to violence
and prevent the growth of bad feelings amongst members
of the community, the essence of this procedure is the
continuing consent of the parties to negotiate; so it
follows that either may withdraw at any time and need
not accept the award. The essential difference between
it and the form of arbitration contemplated by the cases
cited before, is that the parties come for negotiation
for settlement of their dispute, not for adjudication on
its merits. Prior agreement to be bound by the award is
not essential; what really matters is that there should
be subsequent acceptance of the negotiated Settlement.”
In this present case,
was what took place, an attempt to reach a settlement or
was it an arbitration over a border dispute? In his
statement of claim the Plaintiffs claimed at part 7 as
follows:
“Sometime in November
1969, the plaintiffs approached one Ati Klu the then
head of the Defendants’ family to sound his mind towards
a possible settlement of the long outstanding dispute
between the two families. The said Ati Klu and the
plaintiff agreed that on an agreed dated both parties
will meet on the land to view the land which had been
the bone of contention between them”.
The 4th plaintiff
supported this pleading by his evidence in chief that:
“In 1969 my family sent a deputation to the head of
family of the Defendants called Ati Klu and requested he
should go and inspect his family and defendants; family
lands and see the acts of trespass being committed by
the defendants on my family land. It was amicable
settlement we requested for”.
Although the
plaintiffs’ say that it was a settlement they asked for
and not an arbitration of the dispute, they and the
defendants paid fifteen cedis per party to the team. In
customary law this payment meant that there was going to
be an arbitration on the merits of the case; and that
the payers of the fees, before even the case was
started, had agreed to be bound by the decision provided
no rule of natural justice was violated.
In part 12 of his
statement defence the contradicted the plaintiffs and
insisted that it was the plaintiffs who approached Ati
Klu the Head if the plaintiff for an arbitration which
Ati Klu accepted (Paras. 13, 14 & 15). The people
selected and appointed Togbe Anikpi as their chairman
and each party was made to pay fifteen cedis before the
arbitration went into the bush to inspect the dispute
land.
Both the plaintiffs’
and the defendants agree that they both paid voluntarily
what in law should be paid if they wanted an
arbitration. I am therefore unable to believe that
inspite of their not wanting and arbitration, but a
settlement, the plaintiffs would have followed the
procedure to achieve a valid arbitration. If even the
plaintiffs did not know what constitute a valid
arbitration, the ignorance of the law cannot be a plea.
I find as a fact that the plaintiffs wanted this
boundary question settled once and for all, outside
court, and wittingly or unwittingly chose arbitration.
If the plaintiffs
submitted themselves to an arbitration, was it
constituted in such a way that it can be regarded as
valid, and so binging on the parties?
In the effort to
indicate the ingredients of a valid customary
arbitration, it was stated above as follows:
“(c) the arbitration
should not violate any rule of natural justice i.e. the
arbitration should not be composed of persons who are
directly or indirectly connected with the subject matter
over which the members are arbitrating”.
In the case of Tanor v.
Dapomah [1960] GLR p. 241 at 247, Adumoah Bossman J (as
he then was) said:
“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 a third party ….. 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 more than 25 years or so ago”.
And so in the case of
State Council of Peki v. Adamoo DV Court 1931-1933 the
decision of Deane C.J. said that where a tribunal acted
as both the prosecutor and judge, it constituted such a
violation of the fundamental principles of natural
justice that the tribunal’s decision could not be
sustained.
In this case, the
arbitration in question was composed of some elders of
the plaintiffs and defendants together with some
independent members of the society. But such an
arbitration cannot be like a third party not interested
directly or indirectly in the issue involved. An
arbitration, some of whose members are the litigants
themselves can be likened to the arbitration whose
members in State Council of Peki v Adamoo where the
tribunal acted as both the prosecutor and judge, or as
in Tanor v Dapomah where a husband was the arbitrator
between his wife and another woman.
Under these
circumstances I find the arbitration invalid. The
plaintiffs therefore in law are not bound by this
invalid arbitration, and they are not therefore estopped
from suing in the Circuit Court.
2. The next issue to
be examined is the whereabouts of the disputed land.
At the request of both
parties, the court ordered surveyor to make a plan and
to include the principal features of the disputed land
in the parties’ cases. The surveyor was ordered by the
court to include for example the Plaintiffs’ Afevu
grassland – see p. 32 and 35 of the record of
proceedings. Upon these instructions the surveyor made
the plan – Exh One. Also at page 23 of the record of
proceedings there is the summons for direction,
indicating the issues upon which the court was going to
try the cases, among which were there:
(b) “whether or not
the Plaintiffs are owners of a piece or parcel of land
commonly known and called Tsamise and Avenu forest land
and its adjacent grassland the subject matter of this
suit;”
(c) “whether or not the
Plaintiffs’ Tsamime and Afevu land together with the
grassland adjacent or attached thereto is the same as
the Defendants’ Kohoe and Hagble lands, founded by their
ancestor by name Adaze”.
In his evidence in
chief the plaintiffs said:
“The land in dispute
has always been the property of my family…… I do not
know the Kohoe land the defendant are referring to.
There is however Hagble land, but this is the property
of the defendants, and it does not form part of the land
in dispute. The area we have sued for does not include
Hagble land. Hagble is grassland.”
In Exh. One the
boundaries for the plaintiffs surround the whole of the
disputed land made up of Hagble and Kohoe lands.
Therefore if the 4th Plaintiff, the representative of
the plaintiffs, in his evidence depose that Hagble is
not his family’s land and that he does not know Kohoe
land, it means that he is challenging the accuracy of
Exh. One, the plan submitted by the courts own witness,
or the 4th plaintiff himself does not know the land he
was claiming or its whereabout.
Before this suit came
to the courts, the two contesting families, in and
invalid arbitration, as I have demonstrated, went to the
Tsasime and Afevu lands. When the case was before the
Circuit Court, the judge sent his registrar and some of
the litigants without himself to go and inspect the
disposed land. It cannot be said therefore that the
disputed land does not exist. It exists, only the court
witness, the surveyor did not put Tsasime and Afevu, the
subject matter of the plaintiffs claim, on the plan;
instead he put on the plan Hagble and Kohoe which the
plaintiff disclaims. There cannot be a proper decision
of the case by using such a flawed exhibit as Exhibit
One.
3. The third issue is
the existence of the custom that the owner of a forest
land is automatically the owner of the adjourning
grassland. It may be noted that the foundation of the
plaintiffs’ claim to the grassland, is based solely on
this customary law and practice. According to the
plaintiffs, they own Afevu Forest to which Afevu
grassland is attached, therefore they also own Afevu
grassland. Is there any such customary law upon which a
claim to land can be based? The learned trial judge
assumed that there is such a law because the plaintiffs
say so, inspite of the defendants denial that there is
such a custom. Such questions should be solved by s.55
of the Courts Act 1993 (Act 459) and the judge should
have resorted to it before coming to his conclusion that
such a custom exists. The law provides:
“55. (1) Any questions
as to the existence of a rule of customary law is a
question for the court not a question of fact;
(2) If there is a
doubt as to the existence or content of a rule of
customary law relevant in any proceedings before a
court, the court may adjourn the proceedings to enable
an inquiry to be made under sub. S(3) of this section
after the court has considered submissions made by or on
behalf of the parties and after the court has considered
reported cases, text books and other sources that may be
appropriate to the proceedings.
(3) The inquiry shall
be held as part of the proceedings in such a manner as
the court considers expedient.”
The failure of the
court to follow the law should not be to the advantage
or disadvantage of any of the parties. If there is a
mistake in law which makes the whole trial defective,
then the mistake cannot be tolerated by the Court of
Appeal.
Because of the
inaccuracies in “Exh. One” due to sheer disobedience of
the order of the Court by the surveyor, the court’s own
expert witness, we do not know the whereabouts of the
disputed land; also because of the failure of the judge
to ascertain the existence of the customary law he used
for judging the case, the Court of Appeal finds it
impossible to assess the basis of justice of the cases.
For the above reasons it is my view that the case should
be returned to the Circuit Court for a proper rehearing.
J. OFORI-BOATENG
JUSTICE OF APPEAL
FORSTER JA.:
I agree
A. A. FORSTER
JUSTICE OF APPEAL
ESSILFIE-BONDZIE JA.;
I agree
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL.
COUNSEL
T. K. ADZOE FOR
PLAINTIFF/RESPONDENTS
JAMES AHENKORAH FOR
DEFENDANTS/APPELLANTS. |
