Appeal Court, 21st May, 1940.  

Appeal against a decision of the Divisional Court ruling that the question of ownership of land had not already been settled by arbitration under native customary law-question to be decided whether land private or family property-effect of award on arbitration-distinction between validity and enforcement. Appeal allowed.

Held: (1) No question of English law was involved or could have arisen out of the arbitration and the sole question for decision was" which of the properties were family property", which was a question eminently suitable for decision by a Native Tribunal or by a native or natives upon an arbitration held in accordance with Native Law and Custom. The existence of a Will was immaterial.

(2) Section 58 of Native Administration Ordinance does not prevent the holding of such an arbitration. The award is binding on the parties inter se.

(3) Legal effect of the arbitration is not affected by any provisions of the Arbitration Ordinance (Cap. 16).

There is no need to set out the facts.

K. A. Bossman for Appellants.

Frans Dove for Respondent.

The following joint judgment was delivered ;-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE.

In this case the Plaintiff, in his capacity of Head of the family of Kwadjo Poku deceased, instituted a suit against the Defendants in the Tribunal of the Omanhene of Akyem Abuakwa, claiming recovery of possession of two pieces of land at Dokrokyewa in the State of Akyem Abuakwa, £100 mesne profits and an injunction. The suit was transferred to the Divisional Court by order of the Provincial Commissioner of the Eastern Province and pleadings were ordered. In paragraph 5 of their defence the Defendants pleaded as follows :-

.• 5. The Defendants further allege that the Plaintiff and they the Defendants have voluntarily submitted this dispute about these two properties comprised in the Will aforementioned to the arbitration in

accordance with native customary law of Nana Ofori Kuma II Omanhene of Akwapim and that the said arbitrator on or about the 15th September, 1932, made his award in favour of the Defendants and against the said Plaintiff-and the said Defendants will therefore contend that the said Plaintiff is bound by that award and is barred by law from making this claim or bringing this action."

The Divisional Court rightly treated this pleading as raising a preliminary issue " as to whether the ownership has been settled by arbitration under native customary law." After hearing evidence upon that issue the learned Trial Judge ruled against the Defendants upon the point raised. Against that ruling the Defendants now appeal to this Court.

In the Divisional Court the submissions of Counsel for Plaintiff - Respondent were as follows :-

(1) That there was no arbitration by the Omanhene and his Councillors.

(2) That though the Omanhene attempted to settle the dispute, he did so without the plaintiff's consent.

(3) That in any case the arbitrators were not competent to interpret a Will.

(4) That in view of section 58 of the Native Administration Ordinance (Cap. 76) the award is of no legal effect, and

(5) That in view of the Arbitration Ordinance (Cap. 16) the award is of no legal effect.

Upon submissions (1) and (2) the learned Trial Judge recorded the following findings :-

" I accept the version of the alleged arbitration given by the witnesses for the defence; I am satisfied that there was an arbitration held by the Omanhene. sitting with his councillors, and that (except in so far as questions of English law were involved) it was held in accordance with native customary law. I believe that both parties agreed to the arbitration, to the award, and to the subsequent demarcation of boundaries"

We agree with these findings of fact. But the learned Trial Judge upheld submissions (3) and (4) whilst he gave no definite ruling on submission (5). In regard to submission (3) he said :-

.• I now turn to objection (3). In ~he arbitration in this case the only substantial issue of fact was: Which of the properties in dispute were family property and which were private property? In due course this issue was no doubt defined. but as the lands now in dispute were claimed under an English '''ill, English law was necessarily involved. The effect of probate and the question what property could be disposed of under an English Will had to be considered .

•. The head-note to Ekua Ayafte v. Kwamina Banyea (1884). reported in Sarbah's Fanti Law Reports, p.38. reads as follows :-

•. Where matters in difference between two parties are investigated at a meeting. and in accordance with customary law and general usage a decision is given, it is binding on the parties, and the Supreme Court will enforce such a decision".

" The arbitration in that case was concerned with accounts, but although it is inevitable that native customary law should be applied to the new circumstances of modern life, it is another matter to apply new law. I am not aware that this Court has ever held valid as an arbitration held under native custom one in which a claim is based on English law. I do not feel justified in extending what I believe to have been the practice of the Supreme Court since its earliest days, particularly as there is an Arbitration Ordinance on the Statute Book. The objection will therefore be upheld."

We do not agree with this reasoning; we agree with the contention of Appellants' Counsel that no question of English law was involved or could possibly have arisen upon the arbitration, and that the sole question for decision was-" which of the properties were family property" -a question eminently suitable for decision either by a Native Tribunal or by a native or natives upon an arbitration held in accordance with native law and custom. The existence of a Will concerning the land did not make the matters in dispute such as could not be submitted to arbitration in accordance with native law and custom. We think that there has been a confusion of thought in regard to the effect of such an arbitration. The award is not such that it will be enforced by the Supreme Court in the sense that the successful party can invoke the aid of the Court to proceed to execution upon it, but this is very different from holding it to be invalid in the sense that it is not binding upon the parties. In our opinion it is as binding upon the parties as such decisions upon arbitrations in accordance with native law and custom have always been, that the unsuccessful party is barred from re-opening the question decided, and that if he tries to do so in the Courts the decision may be successfully pleaded by way of estoppel.

Nor do we agree with the learned Trial Judge's finding upon submission (4). We think that section 58 of the Native Adminis­tration Ordinance (Cap. 76) has no bearing on the question at all. The part of the ruling dealing with this submission is as follows: .

•• Objection (4). As recently as the 6th December, 1932, Sir George Deane, C.j. affirmed an award in an arbitration under native customary law in Asiedu v. Kwabena Ofori & Another. The present proposition that in view of section 58 (formerly 51) of the Native Administration Ordinance such arbitrations are invalid was not considered by the learned Chief justice. It is clear that he was not aware that in 1930 Mr. justice Howes had held that by virtue of the said section, a Tribunal has no jurisdiction to enforce an award in such an arbitration (Bernasko v. Andoh). This case was followed by the same Judge in 1933 in Adejatu Tomole v. Ilugbo Aro (Div. Court judgments, 1931-37, p.8) .

•• In his judgment in the last mentioned case we find the following :-

•. In my view, the meaning of section 51 of the Native Administration Ordinance is clear, viz., that all disputes between natives are to be decided exclusively by the Tribunals constituted by the Ordinance, and must be brought to those Tribunals for decision. In effect the section says:-

.• You may go to arbitration over petty disputes if you like; but if you do, the tribunals will not enforce the award given by the arbitrators" .

•. I do not find this section easy to construe, but I can follow Mr. justice Howes' interpretation to this extent. I agree that the jurisdiction conferred on Tribunals under the Ordinance is exclusive (so far as native authorities are concerned) and may not be exercised by native authorities extra-judicially, except in petty disputes. The Omanhene of Akwapim and his Councillors are a native authority; the dispute would have been within the jurisdiction of a Paramount Chief's Tribunal under section 48 of the Native Administration Ordinance, if the parties agreed thereto; and the dispute was not of a petty nature. I feel obliged therefore on this further ground to hold that the award is invalid ".

Here again we think that there is the same confusion of thought as has been mentioned under submission (3). The relevant parts of section 58 reads as follows :-

•• Save as is hereinafter provided with respect to Provincial Councils, the jurisdiction, civil and criminal, which is defined and the exercise of which is facilitated and regulated by this Ordinance, shall (so far as concerns native authorities) be enjoyed and exercised exclusively by the Tribunals and State Councils and Provincial Councils mentioned herein, and only in accordance with the provisions hereof.

•• Provided that nothing herein contained shall be deemed to affect the power of any native or Native Authority to act extra-judicially as an arbitrator in any dispute of a petty nature in respect of which the parties thereto consent to his so acting under native customary law; but resort shall not be had for the purpose of enforcing the award to the powers or facilities provided by this Ordinance."

There is nothing in the main part of the section to prevent the holding according to native law and custom of such an arbitration as the one with which we are now concerned. Nor can such a prohibition be held to exist on account of the proviso, for it is well-established law that when the previous part of a section is not doubtful as to its scope, " a proviso cannot imply by law the existence of words of which there is no trace in the previous part" (Beal's Cardinal Rules of Legal Interpretation (3rd Edition p. 305). The proviso in the section under consideration appears to be redundant; perhaps it is an instance of what Lord Herschel referred to in the case of West Derby Union v. Metropolitan Life Assurance Society (1897). A .C. 647, at page 656 with the words :-

•• My Lords, I am satisfied that many instances might be given where provisos could be found in legislation that are meaningless because they have been put in to allay fears when those fears were absolutely unfounded, and when no proviso at all was necessary to protect the persons at whose instance they were inserted".

The proviso is however useful in the present discussion in that it draws a clear distinction between validity and enforcement.

In our opinion there is nothing in the section which can possibly alter the binding effect of the arbitration upon the parties inter se.

As to submission (5), we can find nothing in the Arbitration Ordinance (Cap. 16) which prevents such an arbitration as the present one from being held, or which declares that, if it is held, it shall be of no legal effect. In our view this Ordinance also has no bearing upon the points in issue.

We accept all the learned Trial Judge's findings of fact and hold that upon them he ought to have upheld the Defendants ­Appellants' contention in paragraph 5 of their defence.

The appeal is allowed, the ruling of the Court below is set aside, and it is ordered that the Plaintiff's claim do stand dismissed and that judgment be entered for the Defendants with costs to be taxed.

The Defendants-Appellants are awarded costs in this Court assessed at £64 18s. 11d.